Report No. 37
301. Sections 110(e) and 110(f).-
We have been unable to accept a suggestion1 to omit section 110, clauses (e) and (f).
1. F. No. 27(5)/54-Judl. (Home Ministry File); Appendix II, Item 12.
302. Section 110 and illicit distillation.-
The suggestion of a State Government1 to add, in section 110, persons who habitually commit illicit distillation etc. was considered by us at some length; but we are not in a position to accept it. These are offences by virtue of local laws, and it would not be correct to put them in a provision applicable to the whole of India.
1. F. No. 3(2)/55-L.C., S. No. 25.
303. Section 110-Magistrates to be empowered.-
Power under section 110 may be given to Executive Magistrates, as it is vitally concerned with the maintenance of law an order. These will be-
(a) Presidency Magistrates specially empowered (See the Bombay Amendment);
(b) District Magistrates (See existing section 110);
(c) Sub-divisional Magistrates (See existing section 110); and
(d) Executive Magistrates of the first class (See the Punjab amendment).
304. Section 110 and other points.-
We have considered a suggestion1 to put various restrictions on the power under section 110 and to provide for compensation for false information leading to proceedings under section 110 etc. In our opinion, these changes would not be practicable.
1. F. 27(5)/54-Judl. (Home Ministry File), Appendix IV, Items 2,3,4.
305. Sections 111 to 116.-
Section 111 is already omitted, no changes are needed in sections 112 to 116.
306. Sections 112 and 117(1)-Remand.-
With reference to sections 112 and 117(1), it has been suggested,1 that the courts should have power to remand to custody persons arrested under section 55 of Code for being proceeded against under Chapter VIII of the Code of Criminal Procedure.
We would, however, point out, that section 55 is meant for urgent cases. A remand should not be necessary in such arrests. Arrest under section 55 should be followed promptly by proceedings for obtaining orders under section 109, if the case so justifies.
As to remand in cases2 under section 107(3), section 107(4) may be seen. As to remand pending inquiry under Chapter 8, section 117(3), and also the undermentioned cases,3-4 may be seen.
We do not think, that any change is necessary.
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. 42-43, Bill at p. 226.
2. See Shravan Kumar, AIR 1957 All 189 (192) (V. Bhargava and Sahi JJ.) (Case under section 107).
3. ILR (1960) 2 All 792.
4. C. Kabui v. Union Territory of Manipur, AIR 1963 Manipur 12 (14), para. 9.
307. Section 117-power under.-
The detailed inquiry under sections 117 to 119 should be left to Executive Magistrates,1 who would have issued the initial order.2
In an earlier Report,3 a recommendation was made for leaving the actual inquiry under sections 117 et seq. to Judicial Magistrates. Under the Madras pattern jurisdiction under section 107 is exclusively with the Executive Magistrate. But, in regard to proceedings under sections 108 to 110, where the proceedings are initiated (as almost invariably they are) on information from the police the information can be laid directly before the Judicial Magistrate, and if a private person seeks to initiate proceedings,4 he can be referred to the Judicial Magistrate.
Thus, it is the Judicial Magistrate who conducts the proceedings, under the Madras pattern. No question of emergency (it is stated)5 can arise under sections 108 to 110; but, to provide for all contingencies, concurrent jurisdiction is given to both classes of Magistrates.
1. This, however, involves no verbal amendment in section 117.
2. See discussion regarding sections 107 to 110.
3. 14th Report, Vol. 2.
4. Government of Madras, Order No. G.O.Ms. 2304, dated 24th September, 1952, para. 19(3), and Schedule, entry 18.
5. Government of Madras, Order No. G.O.Ms. 2304, dated 24th September, 1952, para. 19(3), and Schedule, entry 18.
308. We have considered the Madras pattern1 and also the recommendation in the 14th Report for leaving the actual proceedings to Judicial Magistrates (confining the powers of Executive Magistrates to such immediate action as is necessary). In our opinion, such a procedure would not be convenient for adoption for the whole of India, particularly when separation is to be introduced by law. The sections are preventive, and, though recording and sifting of evidence are required, yet the proceedings are vitally concerned with the maintenance of law and order.
1. The West Bengal Bill also assigns these powers to Executive Magistrate. See the first Schedule to the Code, as proposed to be inserted by the West Bengal Separation etc. Bill, 1967.
309. Sections 118 to 122.- Sections 118 to 122 need no change.