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Report No. 37

221. Section 73.-

With reference to section 73, the suggestion of a State Government1 to require the complainant to deposit reasonable expenses of the accused residing in another district, has not found favour with us.

1. F. No. 3(2)/55-L.C., Pt. II, S. No. 33.

222. Section 74.- No change is required in section 74.

223. Section 74A (New)-service of summons by post.A new section-section 74-is proposed, for the service of summons by post.1

1. See discussion under section 68, supra.

224. Sections 75 to 77.- No change is needed in sections 75 to 77.

225. Sections 78.-

In section 78(1), the following amendments are necessary:-

(i) Instead of "Magistrate of the first class", we have to substitute "Judicial Magistrate of the first class". (Compare the Punjab amendment).

(ii) "Chief Judicial Magistrate" may be added. Compare the Punjab Amendment.

(iii) Instead of the words "district or sub-division", the words "area of jurisdiction" may be substituted, in view of the above changes.

226. Sections 79 and 80.- No change is needed in existing sections 79 and 80.

227. Section 81.-

With Teference to section 81, the provisions of Article 22 of the Constitution have been considered. As section 81 is confined to arrest under warrant, it is unnecessary to disturb the language of the section.

228. Sections 82 to 86.-No change is needed in sections 82 to 86.

229. Section 87.-

With reference to section 87, the question whether section 87 applies to attachment for contempt has been examined. The Supreme Court judgment1 holding that section 87 does not apply to such attachment has been considered by us. It was felt, that as the matter relates to the law of contempt of court, it could be dealt with better in the rules to be made by the High Courts.

It is unnecessary to add that reasons should be recorded before action is taken under section 87. A mandatory provision, however, to that effect may render a proclamation issued without recording the reason void.2 This would be particularly so, as courts construe sections 87-88 strictly.3

1. Peterson v. Forbes, (1963) Suppl 1 SCR 40: AIR 1963 SC 692.

2. Cf the case-law as to section 90.

3. Cf. Pal Singh v. State, AIR 1955 Punj 18.

230. Section 87(2).-With reference to section 87(2), the following suggestion1 has been made by the Chief Presidency Magistrate, Madras.

"Section 87(2) prescribes the procedure for the publication of the proclamation to serve on an accused person. The suitability of making a provision for the publication in a daily (that a particular person is wanted in a particular case in a particular court) either as an additional or an alternative mode of securing the accused, could be usefully considered."

We think that publication in the daily newspapers, in addition to existing modes under section 87(2), as an optional mode where the court thinks fit, should be added.

(Question of expense of publication can be dealt with by a suitable provision in the rules).

1. F.3(2)/55-L.C., Pt. III, S. No. 52.

Code of Criminal Procedure, 1898 (Sections 1-176) Back

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