Report No. 37
31. Major problems.-
We shall now set out some of the major problems to which we had to devote considerable attention. We shall here merely enumerate them. These issues are-
(a) separation of the judiciary and the Executive;
(b) abolition of the jury trial;
(c) simplification of the various categories of trials;
(d) Magistrates in Presidency Towns;
(e) abolition or retention of the ordinary original criminal jurisdiction of High Courts;
(f) the law of arrest;
(g) the law of search and seizure;
(h) the duty to give information about offences.
32. Problem of separation.-
The problem of separation has assumed both theoretical and practical importance in India during the last 20 years or so. The Constitution directs1 that the State shall take steps to separate the Judiciary from the Executive in the public services of the State. As introduced originally,2 Article 39A of the Constitution sought to provide that the State shall take steps to secure that within a period of three years from the commencement of this Constitution, there is separation of the Judiciary from the Executive in the public services of the State.
But later,3 the time limit of three years was deleted, in view of the fact that it might not be possible to bring about the desired result within three years in the States which were not former Indian provinces. The Prime Minister also explained, that while Government was entirely in favour of separation, a time limit may produce enormous confusion in some parts of the country where it was very difficult to bring about separation.
1. Article 50 of the Constitution.
2. Constituent Assembly Debates, 24th November, 1948, p. 582.
3. Constituent Assembly Debates, 25th November, 1948, p. 585.
33. In the field of criminal law, separation of the judiciary from the Executive broadly means the administration of the criminal justice by members of the judiciary who are independent of executive control. This general principal involves two consequences; first, that a Judge or a Magistrate who tries a case must not be in any manner connected with the prosecution or interested in the prosecution, and second, that he must not be in direct administrative subordination to anyone connected with the prosecution.1
1. Cf the speech of Mr. Justice Meredith, quoted in (1949) 2 Indian Law Review 302.
34. So far as the first aspect is concerned, the principle is already recognised, to some extent, by section 556. The Explanation to that section, however, in so far as it provides that a Judge or a Magistrate shall not be deemed to be a party or personally interested, to or in any case by reason only that he is concerned in a public capacity, modifies the provision to some extent. Cases where the Magistrate has himself directed the prosecution,1-2 and cases where the Magistrate had taken a direct part in the investigation,3 apart, section 556 does not bar a Magistrate from trying a case merely because he has the slightest official dealing in the case. In fact, the Explanation seems to be intended to meet the consequences arising from the unavoidable incidents of the executive and the magisterial duties being united in one and the same person4.
1. See illustration to section 556.
2. See also Het Lall Roy (in re:), (1874) 22 SWR Cr 75 (76).
3. Sudhama v. Q.E., 1895 ILR 23 Cal 328 (334).
4. Cf. Emp. v. Basant Ram, 1883 All WN 181.
35. Read with the illustration, the Explanation to section 556 seems to emphasise two aspects, namely, if a person has directed the prosecution of a person for an offence, he is disqualified1-2 and so also he is disqualified if he otherwise takes an active part, for example, by dispersing an unlawful assembly and arresting its members.3 But, if his participation is merely formal,4 he is not disqualified.
Thus section 556 is subject to certain limitations, some of which may be usefully elaborated.
1. Kharak v. Tarack, 1883 ILR 10 Cal 1030.
2. Girish Chundra Ghose v. Q.E., 1893 ILR 20 Cal 857 (865) (Trevelyan &. Rampini JJ.).
3. See further, Q.E. v. Chenchi Reddi, ILR 24 Mad 238.
4. Cf. Dasrath Rai, 1909 ILR 36 Cal 869 (872).
36. In particular, courts seem to have made a distinction between "directing" a prosecution on the one hand, and merely "authorising" a prosecution on the other hand.1-2
Thus, a Magistrate in charge of the opium and excise administration of a district is not "personally interested" in the observation of the provisions of the Opium Act, merely because it is his duty to see the law relating to sale of opium enforced and maintained in his district; he is, therefore, not precluded from exercising jurisdiction in respect of offences against the said Act, because the words "personally interested" must refer to "some particular and immediately personal interest in the case and its results."3 A District Magistrate is not precluded under this section from trying an offence under the Police Act, merely because he is the head of the police.4 The fact that the District Magistrate controls the police does not, of itself, disqualify him from trying or inquiring into cases investigated by the police of his district.5
1. See Rameshwar Bhartia, AIR 1952 SC 405.
2. See also Lorinda v. Crown, 1919 ILR 1 Lah 35 (38).
3. Ganeshi (in re:), 1893 ILR 15 All 192 (194) (FB).
4. Q.E. v. Narain Singh, (1900) ILR 22 All 340 (342).
5. Maung Lal, 1 Cr LJ 477.
37. But, where the Magistrate as president of the octroi sub-committee directed the prosecution of an accused for evading the payment of octroi, the Magistrate was debarred from trying the case, even though the accused had consented to be so tried.1 A Magistrate is not disqualified from trying a case based on a private complaint which has not been filed under his direction and sanction, merely and solely on the ground that the validity of certain orders passed by him in his capacity as an Executive or Revenue Officer is directly put in issue and is likely to be challenged before him, and that the innocence or guilt of the accused considerably depends on the effect of such orders.2
1. Emp. v. Bisheshar, ILR 32 All 635.
2. Mohandas, 27 Cr LJ 1333 (1334); see also Md. Abdul Khan Ahmed, AIR 1946 Cal 303.
38. The observations of the Judges in the under-mentioned case1 stress the evils of a combination of functions.
Separation would eliminate many of the controversies under section 556, by removing the functions of initiating or sanctioning prosecutions from the province of those who try the case.
1. Lopuri Domini v. Assam Rly. and Trading Co., (1883) ILR 10 Cal 915.
39. The second aspect is the more important one, namely, a person administering criminal justice must not be subordinate to the Executive.
40. Some of the important aspects of the principle of separation were spelt out in the amendment moved by Mr. A.C. Dutt on the resolution of Babu Kishori Mohan Chaudhari on 4th April, 1922 in the Bengal Legislative Council. The Resolution was as follows:-
"This Council recommends to the Government that early steps be taken for the total separation of the judicial from the executive functions in the administration of the Presidency."
Mr. A.C. Dutt moved an amendment that the following words be added at the end-
"That the said separation be affected in consonance with the following principles:-
(1) Officers appointed to perform executive duties in no case to perform judicial duties and vice versa.
(2) Officers appointed to perform judicial duties to be in no way subordinate to executive officers.
(3) The entire control and management of criminal judicial service, including the powers of promotions, transfers and punishment of judicial officers, be vested in the High Court."
The amendment was lost, but the original resolution was put to vote and passed.1
1. See Government of Maharashtra, Report of the committee on the Separation of Judiciary from the Executive, (1947), p. 9, para. 28.