Report No. 37
51. Allocation of functions between Judicial and Executive Magistrates.-
As regards the fourth question-powers of each category of Magistrates and the pattern of the Magistracy- the Law Commission had, in an earlier Report,1 recommended adoption of the Bombay pattern (subject to certain modifications). After that Report was submitted, the Punjab Act has been passed.2 While the Punjab Act follows certain provisions of the Bombay Act, it differs from the Bombay Act in certain other respects, both as regards the nomenclature of and control over the magistracy, and as regards the allocation of functions between Executive and Judicial Magistrates.
1. 14th Report, Vol. 2.
2. The Punjab Separation etc. Act, 1964 (Punjab Act 25 of 1964).
52. Patterns of separation.-
Thus, at present there are three main patterns of separation (introduced by statute, or otherwise), namely,-
(1) The Bombay pattern;
(2) The Madras pattern;
(3) The Punjab pattern.
(The Bombay and Madras patterns have been described in the earlier Report.1 The broad features of the Punjab pattern will be indicated wherever necessary).
1. 14th Report, Vol. 2.
53. Allocation of powers in each pattern.-
The allocation of powers between the Executive Magistrates and Judicial Magistrates is a matter which has been tackled in different ways in different States. To give one example, the powers of ordering the furnishing of security under sections 108 to 110 of the Code have been assigned in Bombay and Punjab to Executive Magistrates. In Madras,1 they have been assigned primarily to Judicial Magistrates, but Executive Magistrates have been given a concurrent power, only to provide for all contingencies.2
To take another example, powers under section 164 of the Code are assigned, in Bombay, to both classes of Magistrates, and, in Punjab, to Executive Magistrates only, while in Madras they are assigned to Judicial Magistrates only.
1. Cf. the views expressed in 14th Report, Vol. 2.
2. See Government of Madras, G.O. Ms. No. 2304, dated 24th September, 1952, para. 19(3) and Schedule, Item 18.
54. These divergences are understandable; it is not always easy to classify a function as judicial or executive, even theoretically. Moreover, even where a classification is in theory possible, practical considerations (such as the need for urgent action in emergency), might make it advisable to give concurrent jurisdiction to both classes of Magistrates.
55. Allocation under Bombay and Punjab Schemes.-
The broad considerations which weighed with the framers of the Bombay Act seem to be, that powers other than those of trial of offences should be left to Executive Magistrates, even where the and sifting of evidence and a decision thereon are required.1 The Punjab Act also seems to proceed on the same pattern2 as is illustrated by the amendments made in the Punjab in sections 107 to 110, 127 to 132, 133, 143, 144, 145, 147, 155, 190 etc. It is true that both in Bombay and in the Punjab, certain powers are kept with both categories of Magistrates, such as powers under sections 94, 95, and 96(2).
But the principal reason for adopting this course seems to be, that most of these powers are in the nature of "ancillary" powers, which may be needed by any Magistrate, whatever be the function he is performing.3-4 That is because Magistrates who are "Executive" Magistrates, nevertheless, continue to be "Courts"5 for several purposes. The distinction between such concurrent powers under the Bombay and Punjab Acts (on the one hand), and the concurrent jurisdiction under the Madras pattern (on the other hand), is this-in Bombay and Punjab, the concurrent powers would not be exercised in the same case, so that there is no conflict of jurisdiction.6 The Madras pattern is somewhat different.
1. Section 164 as amended in Bombay is an exception to this.
2. Section 88(6c) as amended in the Punjab is an exception to this.
3. Sections 98 and 100 are possible exceptions to this.
4. Sections 60 and 61 are also left undisturbed for the same reason.
5. Sections 6, 6A and 17B, Bombay and Punjab.
6. Section 10 as retained in Bombay and Punjab and section 98 as retained in Bombay and as amended in Punjab are exceptions to this.
56. Allocation under Madras scheme.-
The Madras scheme has been designed as to operate within the frame work of the Code without statutory amendment, and without much change in the nomenclature of Magistrates. The broad principle1 on which the Madras scheme is based, is that matters which involve the and sifting of evidence are strictly within the purview of Judicial Magistrates. But concurrent jurisdiction is provided in for some cases. Thus, powers under Chapter 9, (sections 127 to 132A) and Chapter 11 (section 144) are kept with both Judicial and Executive Magistrates but judicial Magistrates shall exercise them only in emergency and only until an Executive Magistrate is available.
Conversely, powers under sections 108 to 110 are assigned to Judicial Magistrates, but Executive Magistrates are given concurrent jurisdiction to provide for all contingencies. Again, in cases under section 145, the initiation of proceedings will be before an Executive Magistrate, but, if it is necessary to hold an inquiry, proceedings will be transferred to Judicial Magistrates .2
1. Government of Madras G.O. Ms. No. 2304, dated 24th September, 1952, paras. 3 and 17, and Notes thereto, para. 2(1).
2. Government of Madras, G.O. Ms. No. 2304, dated 24th September, 1952, para. 20 as amended by G.O. Ms. No. 2993, dated 30 August, 1961.
57. Another special aspect of the Madras scheme is that, with reference to section 155, in non-cognizable cases, both Executive and Judicial Magistrates can order an investigation, and the final Report is sent to the Magistrate-(Executive or Judicial); who ordered the investigation.1 The "charge-sheet", however, can be sent only to the Judicial Magistrate, who alone can take cognizance2 on the report of the police officer for on complaint). Lastly, Executive (as well as Judicial) Magistrates can take cognizance under section 190(1)(c),3 though the former are not competent to hold trial of offences.
1. Government of Madras, G.O. Ms. No. 2304, dated 24th September, 1952, para. 21(2) and Schedule, Item 24.
2. Government of Madras G.O. Ms. No. 2304, dated 24th September, 1952, para. 21(1), and Schedule, Item 24.
3. Government of Madras, G.O. Ms. No. 2304, dated 24th September, Schedule Item 29.
58. Essence of separation present in each pattern.-
Notwithstanding these points of difference, it must be stated, that the essence of separation is present in all the patterns. The primary object with which a Magistrate is constituted, is the trial of offences1 (under section 28). That power has been assigned in all the patterns to independent Magistrates.
It is unnecessary at this stage to discuss the position in detail as to how far separation has been implemented by statute in each State or Union Territory.2
1. Cf. Emp. v. Noor Mohamed, AIR 1928 Sind 1 (4).
2. Separation has been introduced in Mysore by the Code of Criminal Procedure (Mysore Amendment) Act, 1965 (Mysore Act 13 of 1965).
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