Report No. 37

321. Section 126.-

Section 126 may be amended so as to confine the power of discharge to the court by which security was ordered. Compare the Bombay and Punjab amendments.

322. Section 126A.-

In section 126A, after the word "Magistrate", the words "or court" should be inserted.1

1. This is consequential on the changes proposed to section 126.

323. Sections 127 to 132A.-

Sections 127 to 132A deal with the dispersal of unlawful assemblies. These powers have been kept only with Executive Magistrate, in the Punjab. In Bombay, the sections have not been amended, which means that both classes of Magistrates can exercise the powers. In Madras, the scheme is as follows. Primarily and normally, these functions devolve on Executive Magistrates. But, when for some reason or other, the Executive Magistrate is not available on the spot, the officer for the time being in-charge of a police station, or any higher police officer, may seek the assistance of the Judicial Magistrates.

The Judicial Magistrate should act as though he were the Executive Magistrate, pending the arrival of the latter. "The moment the Executive Magistrate comes on the scene and is able to take charge of the situation the Judicial Magistrate will efface himself. But, before withdrawing from the picture, the Judicial Magistrate will, if so requested by the Executive Magistrate having territorial jurisdiction, modify or cancel whatever directions he may have issued, so that the Executive Magistrate will be able to act unhampered by orders not of his own making."1

1. Government of Madras, G.O.Ms. No. 2304, dated the 24th September, 1952, para. 18.

324. While we recognise the utility of a scheme (as in Madras) giving concurrent powers to deal with emergencies, we felt, that, to avoid confusion and also in view of the fact that separation is now to be introduced by legislation, it would be better to confine the power to only one set of Magistrates, namely Executive Magistrates. Any practical difficulty could be solved by appointing more Executive Magistrates.

325. Section 127 and suggestion of Madras Bar Council.-

The following suggestion1 has been made by the Madras Bar Council:-

"Chapter IX-Unlawful Assemblies-may be omitted. Appropriate legislation for the dispersal of an unlawful assembly by police and military authorities should be made. Courts and Magistrates should not be invested with any powers to disperse unlawful assemblies, as such power is purely executive in character. It is necessary that Magistrates should not be made to feel that they are part of the executive. If this Chapter is to be retained, the Magistrates may be divested of the power given to them under this Chapter by appropriate deletion and amendments."

We think, however, that this power must be retained, for dealing with emergencies. We do not see any need to disturb the, structure of the Code, by putting these provisions in separate legislation.

1. F. No. F. 3(2)/55-L.C., Pt. III, S. No. 52 (p. 281, correspondence).

326. Section 127(1) and suggestion of High Court Judge.-

With reference to section 127(1), the following suggestion1 has been made by a High Court Judge:-

"The power to command any unlawful assembly to disperse is rather wide. The real object would be served only by retaining the power to disperse an unlawful assembly of five or more persons likely to cause breach of peace. The words "any unlawful assembly" may be omitted."

1. F. 3(2)/55-L.C., Pt. III, S. No. 49(a) (p. 188, correspondence).

327. We are, with great respect, unable to accept the suggestion,1 for the reasons given below. Primarily, the power is to disperse an "unlawful assembly". The power to disperse other assemblies likely to cause a disturbance of the peace etc.2 is only an extension of the first power. The extension is considered necessary, because such assemblies are potentially unlawful assemblies.

Section 127(1) of the Code runs thus-

"127 (1) Any Magistrate or officer in-charge of a police station may command any unlawful assembly or any assembly of five or more persons likely to cause a disturbance of the public place, to disperse........."

The omission of the words "unlawful assembly" (as suggested)2 would give a wrong colour to the section.

1. Para. 326, supra.

2. See also section 151, Indian Penal Code.

328. If section 127 is altered so as to confine it to an unlawful assembly of five or more persons likely to cause breach of the peace, it will be much narrower than the existing section but, then it will become vague, because "breach of the peace" is a test difficult to apply.

It may be added, that armed forces can be employed only when public security so requires.1

The section (section 127) now covers

(i) unlawful assemblies-section 141, Indian Penal Code;

(ii) other assemblies which are potentially unlawful-section 151, Indian Penal Code.

It cannot be confined to only one category-i.e., (i) above.

1. See sections 129 and 131, Code of Criminal Procedure, 1898.

329. Generally, as to the Crown's right, undermentioned case may be seen.1

1. Chanappa v. Emp., ILR 55 Bom 263; AIR 1931 Bom 57 (FB).

330. Section 133.-

Under section 133, the following points have been considered:-

(i) Powers under section 133 may be assigned to Executive Magistrates, the section being designed to afford a rough and ready procedure for removing public nuisances. Further, primarily the section is intended to be used in urgent cases,1-4 though of course, long user cannot legalise a public nuisance .5

(ii) Under section 133(1), opening paragraph, the Executive Magistrates empowered will be-

(a) Presidency Magistrates specially empowered; (Compare the Bombay Amendment);

(b) District Magistrates and Sub-divisional Magistrates (as in the existing section);

(c) Executive Magistrates of the first class (see the Punjab Amendment).

(iii) In section 133(1), concluding paragraph, for the words "Magistrate of the first or second class", it is necessary to substitute the words "Executive Magistrate of the first or second class" (compare the Punjab amendment). (It is unnecessary to add some other Presidency Magistrate specially empowered etc., in the concluding paragraph).

(iv) In section 133(1), concluding paragraph, in place of the words "move to have the order set aside or modified" the words "show cause why the order should not be made absolute" should be substituted. The existing language is not in harmony with the language of section 135(b) and sections 136, 137 etc.

1. Mir Imam Abdul Aziz v. Emp., (1897) 4 PR Cr.

2. Basanti Devi v. Rex., AIR 1949 All 650.

3. Rameshwar Prasad v. State, AIR 1958 Pat 270.

4. Kedar Nath v. Satish Chandra, AIR 1940 Oudh 75 (77).

5. State v. Manji Raghu, (1964) 2 Cr LJ 94.