Report No. 37
141. Sections 23-24.- Sections 23 and 24 are already omitted.
142. Section 25.-
Section 25 may be retained, (though it has been omitted in West Bengal) as "duties" are not being imposed on Justices of the Peace in our Scheme.1 But we recommend2 that Judges of the Supreme Court may be included in the section.
1. See discussion relating to sections 22A and 22B (proposed).
2. See section 25, as proposed.
143. Sections 26-27.- Sections 26 and 27 are already omitted.
144. Section 28 and original criminal jurisdiction of High Court.-
In connection with section 28, the question of retention of ordinary original criminal jurisdiction of the High Court (wherever it exists) was considered at great length by us. The matter was discussed in an earlier Report,1 the view expressed there being that the ordinary original jurisdiction of the Calcutta High Court in respect of murder should be abolished. We have, however, come to a different conclusion. In our opinion, it is better to have justice from a court of superior jurisdiction than from a court of inferior jurisdiction, and where justice from a superior court is available under the existing law (as in Calcutta), strong reasons should be needed to disturb the law.
1. See 14th Report, Vol. 2.
145. We may point out, that it is the judgments of the High Courts on the original side that have enriched not only our Civil law, but also our criminal law. To illustrate this, it will suffice to refer to only one judgment1 dealing with section 302, Indian Penal Code. No better or more lucid exposition of the distinction between culpable homicide and murder can be found than in this judgment. We are aware, that the recommendation in the earlier Report was made after recording evidence. Nevertheless, we think that there are cogent reasons for not disturbing the existing position. That will be too big a price to pay for uniformity.
1. Reg. v. Govinda, 1876 ILR 1 Bom 342 (344-346).
146. Regarding the original Criminal jurisdiction of High Courts, we would like to refer to the remarks which Mr. Justice Mathew made in England while addressing the Lord Mayor, in connection with a suggestion that the criminal business of the country should be handed over to the Court of Quarter Sessions:1
"I think you will agree with me that the respect and the confidence which attaches to the administration of the criminal law is largely due to the fact that the judges attend the assizes. It is an old constitutional principle and rule that when the liberty of the humblest subject of the Queen is imperilled, his trial should be presided over by one of the high officials of the law. The traditions of the Bench and their obligations are well understood by the country; and it is expected that the accused man should have one protector in Court, and that is the Judge. It is expected that every precaution that experience can suggest should be taken to prevent the greatest of all tragedies-the conviction of an innocent man."
1. See (1897) 2 CWN (Journal) 33.
147. Section 29.-
Section 29 has been amended in Madras.1 In substance, the Madras amendment assimilates the procedure in the High Court to that in the Court of Session. The matter really pertains to Chapter 23 (section 266 et seq.)2
1. Madras Act 34 of 1955.
2. To be considered under section 266 (Madras Amendment to section 29).
148. Section 30.-
Under section 30, the following points require to be considered-
(a) In view of separation, mention of the District Magistrate may be omitted, and the Chief Judicial Magistrate may be added. Compare the Punjab Amendment.
(b) In earlier Report,1 a recommendation was made for amending section , 30, so that all first class Magistrates with five years' experience may be given the power to impose sentences of imprisonment upto 4 years, after separation of the Judiciary.
On this change being made, the list of offences triable concurrently by the Court of Session and the Court of such Magistrates would have been enlarged, and the need for a provision for specially empowering specified first class Magistrates under section 30 would (it was contemplated), have disappeared.
1. 14th Report, Vol. 2.
149. We have given our anxious consideration to this matter. But we are compelled to differ with the recommendation of the 14th Report on this point. The recommendation was based on the assumption that any Magistrate of five years' standing would be fit to impose the heavier sentence. We are not sure if the general standard of Magistrates justifies this assumption. Instead, the existing provision in section 30, which provides for a selection of the more capable amongst the senior Magistrates, seems to be preferable. We, therefore, think that section 30 should be allowed to continue at least for the present.
150. Section 30 and conferment of powers.-
With reference to section 30, it has been suggested1 that enhanced powers under section 30 of the Code of Criminal Procedure should be conferred on Magistrates with the concurrence of and not merely in consultation with the High Court.
The changes which we are recommending in the sections relating to appointment of, and conferment of powers on Magistrates, achieve the object in view.2
1. F. 3(2)/55-L.C., Pt. VII, S. No. 449 (Suggestion of the U.P. Committee for Investigation of Causes of Corruption in Subordinate Courts in Uttar Pradesh (1963), Report, p. 39, (Bill at p. 224).
2. See sections 12, 36 and 37 as proposed.