Report No. 37
131. Section 18(5).-
Section 18(5), as amended in Bombay, contains a provision that when a notification under Article 237 of the Constitution is issued, the appointment of Presidency Magistrates shall be made according to the terms of the notification. The "appointment" to which Article 237 relates is recruitment, and we do not think it necessary to insert such a provision in section 18, whereunder the emphasis is on the conferment of magisterial powers in relation to a particular locality.1-2
The designation "Presidency Magistrate" may be retained, in respect of Presidency towns.
1. Cf. discussion relating to section 12.
2. See also para. 130, supra.
132. Section 18(1), and Police Officers.-
With reference to section 18, the following suggestion1 has been made by a High Court:-
"A proviso should be added to sub-section (1) of section 1 to the effect that no police officer of any rank shall be appointed as Presidency Magistrate. The anomalous position of the Commissioner functioning as a Magistrate and performing judicial duties like remanding has been adversely commented upon in judicial decisions. It is not in consonance with the scheme of the separation of judiciary from the Executive. Hence a proviso is recommended".
We considered this suggestion in detail.2 The matter, it appears to us, falls within the State List as provisions conferring Magisterial powers on Commissioners of Police are usually contained in enactments relating to the police. The States can take action to delete the provision in the Police Act concerned. Thus, for example, section 13, Bombay Police Act, 1951 was deleted by Bombay Act 21 of 1954.
1. F. 3(2)/55-L.C., Pt. III, S. No. 52.
2. Compare section 5, Police Act, 1861 (5 of 1861).
133. Section 19.- No changes are needed in section 19.
134. Section 20.- No changes are needed in section 20.
135. Section 21(1)-part relating to powers of Chief Presidency Magistrates.-
In section 21(1), in the part relating to the powers of the Chief Presidency Magistrates, we are recommending certain verbal changes.
136. Section 21(1)-part relating to rules.-
In section 21(1), in the part relating to rules, verbal changes, in order to bring the provision in section 21 in line with section 16, are recommended.
Rules under section 21(1) must be made with the sanction of the High Court (instead of the sanction of the State Government, as at present).
Necessary change is recommended.
137. Section 21(2)-subordination of Presidency Magistrates.-
Section 21(2) leaves it to the State Government to define the extent of subordination of Presidency Magistrates to the Chief Presidency Magistrates. Our views in this respect are as follows:-
(a) In so far as the subordination of the Additional Chief Presidency Magistrate to the Chief Presidency Magistrates is concerned, we think that the power to define their subordination should be given to the High Court, and not to the State Government.1
(b) So far as Presidency Magistrates generally are concerned (including their Benches), they should be subordinate to the Chief Presidency Magistrate. For the sake of uniformity, a provision to that effect should be substituted.
Necessary changes are recommended.2
1. Cf. discussion relating to section 18.
2. Cf. section 21, as proposed.
138. Section 22.-
Section 22 deals with the appointment of Justices of the Peace. Following changes are recommended in section 22:-
(i) The appointment of Justice of the Peace should be made in consultation with the High Court;
(ii) They should be citizens of India.1
With reference to section 22, a suggestion to define the powers and duties of Justices of the Peace has been received.2 We have dealt with the matter separately.3
1. See section 22, as proposed.
2. F. 3(2)-55-L.C., Notes, pp. 30-34.
3. See discussion regarding powers of Justices of Peace (New section 22A etc.).
139. Section 22A (New).-
After section 22, we recommend the insertion of a new section, to deal with the powers of the Justices of the Peace, which are not defined under the present law. The provision which we propose1 has been framed after studying section 22A of the West Bengal Amendment and section 539D of the Bombay Amendment.
1. See section 22A, as proposed.
140. Section 22B (New).-
Another section may be inserted1 regarding the power of the Justice of the Peace to record a dying declaration. Section 22B as inserted by the West Bengal Amendment lays down a number of "duties" to be performed by the Justice of the Peace, but we think that it would not be desirable in an All India Code, to impose all these duties on a Justice of the Peace, and it will suffice to give them the power to record a dying declaration. We also think, that the function should be described as a "power", and not as a "duty".
The expression "dying declaration" is really a loose word for a statement which, on death, becomes relevant under section 32(1) of the Indian Evidence Act. Hence the description of the statement to be recorded should conform, as far as possible, to the language of section 32 of the Indian Evidence Act, 1872.
1. See section 22B, as proposed.
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