Report No. 37
41. Classification of functions of Magistrates.-
The usual way1 of classifying the functions of Magistrates under the Code of Criminal Procedure and various other statutes is to divide them into three broad categories, namely-
"(a) Functions which are "police" in their nature, as for instance, the handling of unlawful assemblies;
(b) functions of an administrative character, as for instance, the issue of licences for firearms, etc., etc.; and
(c) functions which are essentially judicial, as for instance, the trial of criminal cases."
The essential feature of the scheme for separation (it is stated)2 would be, that "purely judicial functions coming under category (c) above are transferred from the Collector and magistrates subordinate to him, to a new set of officers who will be under the control not of the Collector but of the High Court. Functions under (a) and (b) above will continue to be discharged by the Collector and the Revenue Officers subordinate to him."
1. See Government of Madras, Public (Separation) Department, G.O. Ms. No. 2304, dated 24th September, 1952.
2. See Government of Madras, Public (Separation) Department, G.O. Ms. No. 2304, dated 24th September, 1952.
42. Functions of Magistrates-elaborate discussion.-
In order to obtain a more concrete picture, however, it is, necessary to deal with the functions of Magistrates more elaborately. An idea of the variety of their functions can be obtained from the numerous statutory powers and duties of the District Magistrate (and other Magistrates). In most of these cases, he acts as an "officer" or "authority", and not as a "court". These functions could be broadly grouped as:-
(a) functions of the District Magistrate as Head of the police, or otherwise in connection with the police force, (e.g., an order passed) under section 44 of the Bombay Police Act;1
(b) order by the District Magistrate prohibiting certain petition writers from carrying on their business within the precincts of the district court;2
(c) order by a Magistrate under section 17, Police Act, 1861, appointing special constables3, or order sanctioning prosecution under section 4 of that Act4;
(d) order by an Additional District Magistrate as persona designata, e.g., an order in exercise of special powers conferred by an enactment, to carry out its provisions and untrammelled by any inquiry;5
(e) other- Executive orders, e.g.-
(i) order by District Magistrate for registration of a Sarai under section 3, Sarais Act (22 of 1857).6 "The District Magistrate as the chief officer charged with the executive administration of a district in criminal matters can under no stretch of language be treated as a court. His functions as an executive officer are poles asunder from his functions as a judicial officer.";
(ii) order of requisitioning;7
(iii) order under section 45(3) of the Code of Criminal Procedure, appointing a person as headman of a village;8-9
(f) licensing, for example-
(i) order by the District Magistrate under the rules for licensing and controlling places of public entertainment framed under section 39A, Bombay District Police Act, 1890;10
(ii) similar functions of the District Magistrate, e.g., under the Police Act;
(g) powers concerning law and order, e.g.-
(i) tendering pardon,11
(ii) orders for deposit of security by a newspaper,12 or orders of forfeiture of security.13-15
1. Pandurang (in re:), (1910) 11 Cr LJ 705: 8 IC 747: 12 Bom LR 1029.
2. Sukhdeo Prasad, (1902) AWN 175.
3. Parmeshar v. Emp., AIR 1917 Oudh 170.
4. Chotey Lal v. Chhedi Lal, AIR 1923 All 149 (Mears C.J. and Piggott J.).
5. Hazari v. Emp., AIR 1939 All 124 (127), and cases cited therein.
6. Ghulam Sadid-uddin v. Emp., AIR 1941 Lah 71 (72) (Din. Mohamad J.).
7. Ujamshi v. Emp., AIR 1946 Bom 533 (535) (FB).
8. Salet Singh, AIR 1948 All 114.
9. Damma, (1907) AIR 29 All 563 (564) (P.C. Banerji J.).
10. Manghanmal v. Emp., AIR 1939 Sind 340 (341).
11. Section 337(1), main para.
12. Agasyed Jalauddin v. K.E., (1913) 17 CWN 1245.
13. See section 3(1) (proviso), Indian Press Act, 1910 (1 of 1910) considered in Annie Besant v. Government of Madras, (1916) ILR 39 Mad 1085 (1106, 1112).
14. Gulzar v. Emp. AIR 1918 Lah 219.
15. See also Mahomed Ali, 1913 ILR 41 Cal 466 (484, 485) (FB) (Jenkins C.J.).
43. It is in this background that the concept of separation has to be understood. In its essence, separation means separation of judicial and executive functions in such manner that the judicial functions are exercised by the judiciary which is not controlled by the executive. This would ensure that influence of the executive does not pollute the administration of criminal justice.
44. Since the broad question of separation is no longer a controversial issue, it is unnecessary to deal in detail with its history. An excellent historical discussion is contained in the Report of the Bombay Committee.1 Developments that have taken place since the submission of the Report of that Committee (apart from the adoption of the Constitution) are mainly in the nature of Reports of Committees or Commissions appointed in several States on the subject, and legislation or executive orders passed or proposed as a result of such Reports or otherwise. It is not necessary to encumber this part of the Report with a discussion of those developments. Case-law on the subject is also developing.2
1. Government of Bombay, Report of the Committee on the Separation of the Judiciary from the Executive, 1947 (1964 Reprint), pp. 3-13.
2. Cf. para. 46, supra.
45. Questions raised by separation in relation to the Code.-
For the purpose of considering the question of separation vis-a-vis revision of the Code of Criminal Procedure, one has necessarily to consider certain questions, namely,-
(i) should separation be effected by legislation or by executive orders;
(ii) if it is to be effected by legislation, should it be done by a Central legislation, or should it be left to the States;
(iii) what should be the authority to exercise control over Magistrates exercising judicial functions;
(iv) what powers under the Code should be given to the Magistrates exercising judicial functions and what should be left to others, and what powers, if any, should be allotted to both.
46. Legislation necessary for separation.-
On the first question,1 we think that legislation must be resorted to for achieving separation. We are aware that separation has been effected in some States by executive orders. But this method suffers from certain drawbacks. The legislature would have no opportunity of discussing the scheme. The executive orders can have no legal force, so that if an "Executive" Magistrate decides, say, to exercise judicial powers, complications may arise2. As an experimentation, separation by executive orders has certain merits, no doubt. But once the stage of experimentation has passed, separation must take legislative shape.
The trend of recent developments in some States has also been in that line, as evidenced by the Punjab Act,3 and by the Bill which was introduced for the Union Territory of Delhi.4 and by the Bill recently introduced in West Bengal.5
1. Para. 45(i), supra.
2. See the decisions in
(i) AIR 1959 Ker 46.
(ii) State v. G. Subbegowela, (1962) 2 Cr LJ 711 (Mys).
3. The Punjab Separation etc. Act, (1964) (Punjab Act 25 of 1964).
4. The Delhi and Himachal Pradesh Separation Bill, 1966 (Lok Sabha Bill of 1966). The Bill lapsed on the dissolution of the Lok Sabha.
5. The West Bengal Separation etc. Bill (August 1967).
47. Separation-whether to be by Central Law.-
The second question1 is more difficult one. The Law Commission had, in an earlier Report, expressed2 its view in these words:-
"We are of the view that this is a matter on which legislation by Parliament is necessary. Such legislation will have the advantage of bringing into operation throughout the country a uniform system of separation and force the pace of its introduction in States which have delayed and fallen behind."
1. Para. 45(ii), supra.
2. 14th Report (Reform of Judicial Administration), Vol. 2.
48. In deciding the question whether separation should be introduced by Central Law or by States, we were faced with various considerations.
Three important aspects were considered in favour of State Legislation. First, separation involves changes in the magisterial set up and in the number of courts, and necessitates several administrative arrangements. Secondly, separation entails the amendments of Central Acts (besides the Code of Criminal Procedure, 1898), and some State Acts, and it would not be possible to carry out those amendments by Parliamentary legislation, particularly because some of those Central Acts and most of the State Acts fall within the State List. Thirdly, a decision was taken at the Law Minister's Conference1 in 1960 that whatever measures are suitable to local conditions be adopted, and Parliamentary legislation is not needed.
1. Proceedings of the Law Ministers' Conference, held at Srinagar on 28th June, 1960.
49. We gave our anxious consideration to these aspects.1 It appeared to us, that though the actual implementation of separation may involve many administrative arrangements, yet it would be desirable to have a uniform pattern of magistracy and control over them, for all the areas to which the Code applies. Amendment of other Central Acts and State Acts will, of course, have to be undertaken by the States.2
Further, in the States where separation has been already introduced but on lines different from those which we are recommending, the process described will have to be undergone again. The demands of uniformity are, in our opinion, paramount to these difficulties, and it should be possible, by fixing a sufficiently late date for commencement of the Bill which may be introduced on the subject, to give the States sufficient time to plan the administrative arrangements as well as the legislative amendments referred to above.
1. Paras. 47-48, supra.
2. Para. 48, supra.
50. As regards the third question-that is, the authority that will exercise control over the Magistracy-there are several patterns,1 from which we have to choose.
1. See discussion relating to section 17(1).