Report No. 37
151. Section 30 and utility of Magistrates appointed thereunder.-
Regarding the respective utility of Assistant Sessions Judges appointed under section 9 and Magistrates appointed under section 30, conflicting views have been expressed in the various suggestions received by us.
Thus, the suggestion1of two High Court Judges is that section 30 should be deleted, and Assistant Sessions Judges should be appointed. There should (according to them) be a separate cadre for Assistant Sessions Judges, as the entrustment of work of Assistant Sessions Judges to Civil and Sessions Judges only leads to delay.
The suggestion2 of the Administration of a Union Territory is, that until separation it is not desirable to enlarge the powers of Magistrates to dispose of cases at present tried by Assistant Sessions Judges.
The view of a Public Prosecutor is,3 that there is little difference between a Magistrate empowered under section 30 and an Assistant Sessions Judge, that Assistant Sessions Judges do not usually pass sentences for more than two years, and that the cases now committed to Assistant Sessions Judges can be adequately dealt with by a Magistrate with enhanced powers.
No change need, we think, be made in the statutory provisions. The Code leaves the matter elastic, because it is open to the State Government to provide for the required number of posts of Assistant Sessions Judges, or to resort to section 30.
1. F. 3(2)/55-L.C., Pt. II, S. No. 33(b).
2. F. 3(2)/55-L.C., Pt. II, S. No. 34.
3. F. 3(2)/55-L.C., Pt. II, S. No. 34(b).
152. Section 30 and suggestion of a High Court Judge.-
The following suggestion1 has been made by a High Court Judge:-
"There are hardly any Magistrates exercising powers under section 30. Section 30 may, therefore, be suitably amended to confer on experienced first class Magistrates power to punish offences with imprisonment which may extend to 3 years and to bring within their jurisdiction offences punishable with rigorous imprisonment of 5 years."
We think, that it is better to keep the matter elastic by retaining section 30.
1. F. 3(2)/55-L.C., Pt. III, S. No. 49(a).
153. Section 30 and serious offences triable by First Class Magistrates.-
Regarding section 30, it has been stated1 that there is an anomaly regarding powers of a "section 30 Magistrate" to try offences under sections 326, 382, 392, Indian Penal Code, as these offences are punishable with imprisonment for more than 7 years. We do not think that such an anomaly exists. A Magistrate invested with powers under section 30 does not, in our opinion, thereby lose his powers as First Class Magistrate to try the offences that are otherwise triable by a first Class Magistrate. The anomaly is more apparent than real.
Whether, in such cases, his enhanced powers of sentencing under section 34 are also attracted, is another matter. Our view is, that in such cases, his powers as to sentencing are only those conferred by section 32. In such cases, if the Magistrate thinks that a punishment higher than imprisonment for two years is needed, he has to commit the accused to the Court of Session. It is that position which is, in our view, anomalous. To remove that anomaly, it is better to substitute the words "ten years" for "sever years", in section 30, so that the provisions of section 34 will be attracted. The 7 year's limit in section 34 should not, however, be increased.
1. F. 3(2)/55-L.C., Pt. I, S. No. 83.
154. Section 30 and suggestion for restoring pre-1955 provision.-
The following suggestion1 has been made by a District Judge:
"Section 30 be amended so as to restore it to the position it had before the amendment made by Act XXVI of 1955. Several cases which are committed to the Court of Sessions are petty, and can as well be tried by experienced Magistrates."
A suggestion made by another District Judge2 may also be noted.
"Section 30 has to be suitably amended by empowering the experienced magistrates to try all offences not punishable with death as was under the old provision. The amendment made by Act XXVI of 1955 has tended to increase the work considerably in Sessions Court."
We are not, however, inclined to accept the suggestion in toto, though we are recommending certain other modifications3
1. F. 3(2)/55-L.C., Pt. III, S. No. 49(b).
2. F. No. F. 3(2)/55-L.C., Pt. III, S. No. 49(e).
3. See section 30 (as proposed).
155. Section 31.- No change is necessary in section 31.
156. Section 32.-
In section 32(1), opening line, the word "Judicial" need not be added before the word "Magistrate".
157. Section 32(1)(a).-
The following suggestion1 has been made by a High Court.
"The Judges of the High Court feel, that as a result of the separation of the judiciary from the executive, and with the experience gained by the Magistracy, first-class Magistrates with 5 years experience may be given the power to impose a sentence of imprisonment upto 4 years. See the Law Commission's recommendations, in this respect.2
This question has been already considered.3
1. F. No. F. 3(2)/55-L.C., Pt. III, S. No. 32.
2. The reference seems to be to the 14th Report, Vol. 2.
3. See discussion relating to section 30.
158. Section 32 and suggestion of Uttar Pradesh Committee.-
With reference to section 32, it has been suggested by the U.P. Committee that Magistrates who have exercised first class Magisterial powers for more than five years may be invested with power to impose sentence of imprisonment up to four years.
We have already considered a similar suggestion made in the earlier Report of the Law Commission.1-2
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, pp. 39-40.
2. See discussion relating to section 30.
159. Section 32 and imprisonment upto 3 years.-
We have considered suggestions1-3 to increase the powers of a first class Magistrate to punishment of imprisonment up to 3 years, but we are not inclined to accept them. It is true, that in many recent special laws, the maximum punishment of imprisonment laid down is three years, and, in such cases, as the position now stands, a First class Magistrate (if he thinks that a sentence of two years is not enough), was to commit the case to Sessions. But we do not see anything seriously unsatisfactory in that position.
1. F. 3(2)/55-L.C., Pt. I, S. Nos. 36 and 49.
2. F. 3(2)/55-L.C., Pt. II, S. No. 33 (Suggestion of a State Government).
3. F. 27/3/55-Judl. II (Home Ministry's file), Appendix I, Item No. 6.
160. Section 33.-
In section 33, the following points have been considered-
(a) Before the word "Magistrate", the word "Judicial" need not be added.
(b) It is unnecessary to increase the limit of imprisonment in default from one fourth to one half. The increase in the Magistrate's powers regarding the maximum amount of fine was due to rise in prices, and was not the result of any decision to increase the powers of Magistrates as such.