Report No. 37
251. Section 98(2) and Judicial Magistrate.-
The power under section 98 should be given to both Judicial and Executive Magistrates, because section 98 does not necessarily contemplate a pending judicial proceeding.1-2
1. See S.K. Srivastava v. Gajanand, AIR 1956 Cal 609 (612).
2. See also Mohammed Serajuddin, AIR 1962 SC 759 (762), para. 12.
252. Section 99.- No change is needed in existing section 99.
253. Section 99A.-
Certain points relating to section 99A have been considered. The conclusions arrived at by us are as follows:-
(i) It is unnecessary to require that an order of forfeiture should be issued only on the certificate of the Advocate-General, or other principal law officer.1 The existing safeguard-review by the High Court-is enough.
(ii) Section 99A refers to certain sections of the Indian Penal Code. In this respect, the constitutional validity of section 99A will depend on the validity of those sections.
1. Contrast The Young persons (Harmful Publications) Act, 1956.
254. Section 99A and obscence matter.-
We recommend that section 292, Indian Penal Code (obscene matter) should be added in section 99A. This recommendation is independent of the suggestion1-2 made by the Ministry of Home Affairs, asking us to consider the question of making certain amendments to section 292, Indian Penal Code, and other connected amendments in the Code of Criminal Procedure.
In the course of our discussions on the subject, it was, urged that section 292, Indian Penal Code (obscene matter) does not stand on the same footing as seditious or other matters mentioned in section 99A. Seditious or other matters (it was stated) might require urgent action from the point of view of maintenance of law and order, while obscene matter would not ordinarily affect law and order. Further, it was stated, it is not fair to throw on the author the burden to move the High Court, as would be the position if section 99A is applied to obscene matter.
The view taken by us, however, is that, in order to check the growing evil of obscenity, it is necessary to amend section 99A, to add obscene matter.
But, it is not, in our view, necessary to mention specifically indecent or obscene matter contained in reports of judicial proceedings (as has been done in the Bombay Amendment).
1. F. 3(9)/56-L.C., Pt. I, S. No. 31 (suggestion of the Ministry of Home Affairs).
2. F. 3(2)/55-L.C., Pt. IV, S. No. 97.
255. Section 99A-Descriptive portion.-
It is not necessary to omit the descriptive portion in section 99A, even though it amounts to a repetition of the description of the offending matter as given in section 124A etc. of the Indian Penal Code.
256. Section 99B.- No change is required in section 99B.
257. Sections 99C to 99F.-
ection 99C requires decision by a Bench of three Judges of the High Court. In relation to Courts of Judicial Commissioners composed of less than three members, this requirement cannot be fulfilled. But, as difficulty has not arisen in practice, and, as the problem may not occur often in practice, no change is required for the present.
It has been suggested by two High Court Judges,1 that the hearing under section 99C should be allowed by two Judges. We regret that we are unable to accept the suggestion, as the proceedings under section 99C are important enough to justify the present provision, which requires that the application should be heard by a Bench of three Judges.
1. F. No. 3(2)/55-L.C., Pt. II, S. No. 33(b).
258. No change is needed in sections 99D to 99F.
259. Section 99G.-
Under section 99G, we have considered the question whether an amendment is needed with reference to the words "otherwise than in accordance with, section 99B". These words may or may not have the effect of barring an application under Article 226 of the Constitution, in a fit case. It is, however, unnecessary to disturb the language to provide for that.
260. Section 100.-
1n section 100, the following points have been considered:-
(i) No changes have been made by the Punjab or Bombay Amendments to confine the power under section 100 either to Judicial or to Executive Magistrates. Having regard to the fact that concurrent jurisdiction may be convenient for emergent action, no change is required in this respect.
(ii) It is unnecessary to replace, in section 100, the word "confined" by the words "believed to be so confined", though that is the meaning.1
1. Kallan Beg v. Emp., AIR 1936 All 306 (308).