Report No. 37
231. Section 88(2).-
In section 88(2), after the words "District Magistrate", the words "Chief Judicial Magistrate" should be added. Compare the Punjab Amendment.
232. Section 88(6).-
In section 88(6), reference to the 1908 Code of Civil Procedure may be substituted.
233. Section 88(6B).-
In section 88(6B), after the words "District Magistrate", the words "Chief Judicial Magistrate" should be added. Cf. the Punjab Amendment.
234. Section 88(6C).-
In section 88(6C), proviso, after the words "District Magistrate", the words "Chief Judicial Magistrate" should be added, though the Punjab amendment does not make this change. It is unnecessary to provide-as has been done in the Punjab amendment to section 88(6C),- that a claim or objection made before a District Magistrate or other Executive Magistrate should be referred to the Chief Judicial Magistrate (who may then refer it to a Judicial Magistrate subordinate to him). There is no harm if claims or objections made before an Executive Magistrate in respect of property attached under his orders) are investigated by him, as the rights of aggrieved parties are sufficiently protected by the right of suit which is preserved by the section.1
1. See section 88(6D).
235. Section 88.-
A suggestion1 to exempt subsistence allowance from attachment under section 88 has not been found acceptable by us.
1. F. 3(2)/55-L.C., Pt. II, S. No. 48.
236. Section 89.-
Under section 89, the following suggestion1 has been made by a High Court Judge:
"It should be provided that if the absconding person, does not appear within 2 years or so, the attached property may be sold and the proceeds credited to the State Government."
In our view, existing section 88(7) gives this power by implication.
We are not, therefore, recommending any amendment in this respect.
1. F. No. 3(2)/55-L.C., Pt. III, S. No. 49(a).
237. Section 90.-
As to section 90, there is a conflict of decisions on the question whether the provision for recording of reasons is directory or mandatory 1-2-3 It would not, however, be convenient to resolve the conflict by an amendment of section 90, as the matter really relates to application of the provisions saving irregularities. We may, however, state here, that the object of this requirement is to draw attention to the consideration that a warrant ought not to be issued where a summons can serve the purpose, and that care should be exercised by the court to satisfy itself that upon the materials before it, it was necessary to issue a warrant.4
1. ILR 38 Mad 1088.
2. Sahebulla, ILR 51 Cal 1 (FB).
3. Indra, AIR 1955 Punj 81.
4. Cf. Sahebulla, ILR 51 Cal 1 (FB).
238. Section 91.-
With reference to section 91, it has been suggested1 that the section may be amended so as to give power to a court to require execution of a bond in such terms as could make it obligatory for the person to either appear in the court which took the bond or in any other court to which the case may be transferred. We have studied the law on the subject. The point is also of interest2 in connection with section 514(1), and Fifth Schedule, Form No. 42 (Generally as to section 91, the under-mentioned case may be seen).3
We see no objection to the suggested amendment being made, and we recommend accordingly.
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. 40-41, Bill at p. 225.
2. To be noted under section 514(1).
3. Vasu Deo, AIR 1958 All 578.
239. Section 94 and the accused.-
It has been held by the Supreme Court,1 that section 94 does not apply to the accused. Where it is intended to require an accused person to produce a document etc., a summons cannot, therefore, be issued under section 94; nor can a warrant for search be issued under the first two paragraphs of section 96. But section 96, last paragraph, can be used. We considered the question whether any change in the language of section 94 is needed to codify the proposition that it does not apply to the accused. We came to the conclusion that it was not necessary.2
1. State of Gujarat v. Shyam Lid, AIR 1965 SC 1257 (1259), paras. 29 to 32.
2. For a detailed discussion, see Appendix 7.
240. Section 94(1) and right of the defence to summon documents.-
With reference to section 94(1), a suggestion has been made by the Markapur Bar Association, Andhra Pradesh1, to amend the section so as to provide for summoning documents in the possession of the prosecution at the instance of the accused even before he has entered into defence (being documents useful for cross-examination). The suggestion refers to a decision in Yusuf Sahib v. Hayogi Vendor, (1955) 1 AP WR 409 (Subha Rao C.J.). holding that this right is restricted to a stage after the accused has entered on defence. The suggestion says, "If this view is correct, proceedings are unnecessarily prolonged even in cases where there could have been a discharge." Hence, before the words "such Court may issue a summons", the words "at any stage of the proceedings" should be inserted.
1. F. 3(2)/55-L.C., Pt. III, S. No. 50(O).
241. We have examined the entire case-law in this respect.
As has been pointed out, "the words of section 94 are very large, and, it seems, advisedly so."1
The section is wide enough to empower the court to exercise this power at the instance of the accused even before he enters on his defence.2-4 This is clear from the word "whenever" used in the section.
No change is now necessary.
1. Nizam of Hyderabad v. A.M. Jacob, 1892 ILR 19 Cal 52 (64) (Ameer Ali J.).
2. Dr. Raghotham (in re7), AIR 1963 AP 362 (363), para. 4 (DB).
3. Hari Charan v. State, AIR 1955 Punj 17 (18), para. 4.
4. Armugam v. State, AIR 1961.
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