Report No. 37
391. Section 145(10).- No change is needed in section 145, sub-section (10).
392. Section 146.-
We think that the amendments made in 1955 in section 146 (reference to a civil court), instead of shortening the proceedings, tend to lengthen them. Further, the main object of proceedings under section 146 should be to take steps for immediately preventing breach of the peace. Once these steps are taken, proceedings under the Code should come to an end.
Reference to a Civil Court, as a part of the proceedings under the Code, is an anomalous procedure. The aggrieved party can take proceedings of his own in a civil court. But a criminal court should not be required to make such a reference. The position before 1955 should be restored, so far as section 146 is concerned.
393. Section 146 and view of High Court Judge.-
With reference to section 146, a High Court Judge1 has also expressed dissatisfaction with the existing position. For the present, our recommendation2 to restore the pre-1955 position is enough.
1. F. 3(2)/55-L.C., Pt. II, S. No. 33(a).
2. See discussion as to section 146.
394. Section 146 and suggestion of U.P. Committee.-
It has been suggested by the U.P. Committee,1 that section 146 of the Code of Criminal Procedure may be amended so as to restore the position as it obtained before the amendment of 1955.
We have already dealt with the matter.2
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, p. 48, draft Bill, pp. 233-234.
2. See discussion under section 146.
395. Section 146 and revision.-
With reference to section 146, we may refer to Resolution No. 22 passed at the Bihar Lawyer's Conference1 (12-13-14 April, 1963), which is as follows:-
"This Conference reiterates its opinion that review and revision should lie against orders passed under section 146, Criminal Procedure Code and in that view of the matter this Conference recommends that the words 'nor shall any review or revision of any such finding be allowed' be deleted."
[The words in question appear in section 146(1D)1.
We are recommending reverting2 to section 146 as it stood before 1955. Hence, this suggestion need not be considered.
1. F. 3(2)/55-L.C., Pt. VI, S. No. 271.
2. See recommendation regarding section 146.
396. Section 147(1).-
Under section 147(1), the following points were considered:-
(a) The power may be given to-
(i) Chief Presidency Magistrate (To be added).
(ii) District Magistrate and S.D.M. (as in existing section).
(iii) Executive Magistrates, first class. (Cf. the Punjab Amendment).
(b) The order must mention the date of receipt of police report etc., and that should be crucial date.1
(c) The order must also specify the date and time for appearance.2
(d) Affidavit procedure need not be inserted under this section. Necessary amendment is recommended.
1. Cf. discussion relating to section 145(1).
2. Cf discussion relating to section 147(1).
397. Section 147(1A).-
With reference to section 147(1A), certain points arise1 by reason of its wording, in relation to the power to order interim attachment in cases to which section 147 applies. But no change appears to be practicable without making the section extremely cumbersome.
1. Cf suggestion of a High Court Judge, F. No. 3(2)/55-L.C., Pt. II, S. No. 45.
398. Section 147(2).-
The conflict of decisions1 as to the scope of the words "prohibiting an interference with the exercise of such right" in section 147(2) has been considered by us. The history of the amendment made in 1923 (with reference to the 1914 Bill and the Lowndes Report etc.) has also been gone through. It is desirable that the position in this respect should be clarified, so as to empower the court to order removal of an obstruction, in a proper case.
(i) Hem Chandra, AIR 1942 Cal 244 (FB).
(ii) Shantilal, AIR 1954 Bom 368
(iii) Ram Ishwar, AIR 1965 Pat 17. with
(a) Abdul Wahab, AIR 1951 All 238 (FB).
(b) Angappa, AIR 1959 Mad 28.
(c) Chiotanda, AIR 1914 Lah 210.
399. Section 147(2), proviso.-
Section 147(2), proviso, should now mention the date of receipt of the police report etc.1
1. See discussion relating to section 147(1).
400. Section 147(3).- No change is needed in section 147(3).