Report No. 37
59. West Bengal Scheme.-
While this report was under preparation, a Bill was introduced in the West Bengal Legislative Assembly for carrying out separation.1 The broad principle on which separation is proposed in that Bill2 seems to be this; that only those powers which relate to inquiry into or trial of offences should be assigned to the Judicial Magistrates, and other powers be left to the Executive Magistrates.
1. The West Bengal Separation of Judicial and Executive Function Bill, 1967 (Calcutta Gazette Extraordinary, dated August 23, 1967).
2. See the Statement of Objects and Reasons, to the West Bengal Bill, para. 3.
60. The West Bengal Bill also gives a list of concurrent powers.1 Some of these powers are incidental to the main powers respectively allocated to each category of Magistrates. But some-such as those under sections2 164 and 167-are "concurrent" in the real sense.
1. The First Schedule, as proposed to be inserted by the West Bengal Bill shows at a glance the powers of each category of Magistrate.
61. The scheme of allocation of functions proposed in West Bengal has been thus described1:-
"The Judicial Magistrates will primarily deal with cognisance, investigation, inquiry into and trial of any offence under the Indian Penal Code or under any other local or special law, while the Executive Magistrates will be mainly concerned with prevention of offences and other executive and administrative functions."
1. Statement of Objects and Reasons to the West Bengal Bill, para. 3.
62. Another interesting legislative device adopted in the West Bengal is, that while certain sections of the Code have been specifically amended by prefixing the word "Judicial" or by proposing similar verbal amendments, at the same time the First Schedule (as proposed to be added to the Code by the Bill) contains a list of sections, powers whereunder are given to each category of Magistrates or to both categories.
The third feature is the provision1 for Sub-divisional Magistrates, both Executive and Judicial.
1. Sections 13 and 13A, as amended or inserted by the West Bengal Bill.
63. Another major change to be considered is the abolition of jury trial. This question has been considered by the Law Commission in an earlier Report,1 wherein a recommendation has been made for abolition of the system. The principal reasons for recommending abolition were-
(a) The verdicts of the jury were often influenced by extraneous considerations. They did not satisfy the test of fairness, and did not ensure justice in its true sense.
(b) It was difficult to get jurors who could objectively evaluate the evidence for arriving at a fair and unbiased verdict.
(c) Many persons got themselves chosen as jurors only for the sake of remuneration and illegal gratification.
(d) An accused convicted on a trial by jury had only a limited right of appeal.
(e) Trial by jury took longer time than trial by a Judge. Being untrained persons, jury-men were naturally slow in appreciating the evidence and in following arguments.
(f) Practical experience of the system was not favourable.
It is unnecessary to discuss this matter further at this stage. The changes to be made can be considered when the relevant sections2 are considered.
1. 14th Report, Vol. 2.
2. Sections 267 et seq, which are outside the scope of this Report.
64. Modes of trials and inquiries.-
At first sight, the modes of trial as provided in the Code may appear to be numerous. Proceedings by way of, or preliminary to, the trial of offences could be enumerated as follows:-
A. Magistrates' Courts-
(1) Committal proceedings instituted on a police report (Chapter 18).
(2) Committal proceedings instituted otherwise than on a police report (Chapter 18).
B. Magistrates' Court-Trials in the Mofussil
(1) Trial of summons cases (Chapter 20).
(2) Trial of warrant cases instituted on a police report (Chapter 21).
(3) Trial of warrant cases instituted otherwise than on police report (Chapter 21).
(4) Summary trial, with some variations in appealable and non-appealable cases (Chapter 22).
[Note.-Magistrates empowered under section 30 have higher powers, but there is no special procedure prescribed for them. They follow the same procedure as would be followed by ordinary Magistrates of the first class in the trial, except that by virtue of their higher powers, they can themselves dispose of many cases which otherwise would require to be committed.]
C. Magistrates' Courts-Presidency Towns
Trials in the Courts of Presidency Magistrates, with variations in appealable and non-appealable cases. (Chapter 25).
D. Courts of Session
(1) Trial in the Court of Session by jury (Chapter 23).
(2) Trial in the court of Session by the Judge alone (Chapter 23).
E. High Courts
(1) Trials before the High Court with the aid of jury (Chapter 23), and
(2) Trials before the High Court of cases transferred to it, which may be tried without jury (Chapter 23).
65. The multiplicity of modes of trial is, however, more apparent than real.1 Commitment proceedings for an offence and trials of that offence are really two different stages of the same case. Most High Courts do not exercise ordinary original criminal jurisdiction. And the distinction between cases instituted on police report and cases instituted otherwise is a recent innovation, introduced by the Amendment Act of 1955. In practice the kinds of trials usually met with in the Mofussil are trial of warrant cases instituted on police report, trials before courts of Session, and trial of summons cases. The difference in procedure (in these three cases) is attributable mainly to the gravity or nature of the offence to be tried.
1. See also 14th Report, Vol. 2.
66. The question of Magistrates in Presidency towns requires some discussion. It is sometimes argued, that the institution of Presidency Magistrates should be abolished. In earlier Report of the Law Commission,1 the view had been expressed, however, that the institution of Presidency Magistrates had been a useful one.
1. 14th Report, Vol. 2.
67. The question of abolishing the distinction between Presidency Magistrates and other Magistrates was raised by non-official members before' the Joint Committee1 which considered the 1922 Bill. The Committee did not think it proper to alter the provisions. It, however, expressed a hope, that at a later date a special Committee might undertake a full inquiry into the status, powers and procedure of Presidency Magistrates.2
1. Report of the Joint Committee, dated 26th June, 1922, under clause 94 (section 364).
2. No such Committee seems to have been appointed.
68. It should also be noted, that all the Judges of the Calcutta High Court and the majority of the Judges of the High Court of Madras had expressed their view when the Bill which led to the Act of 1923 was on the anvil, (and this was noted by the Joint Committee of 1922 also) that the system should be maintained,1 though some of them did say that recruitment should be improved.
1. Legislative Department, Assembly & Council-A, Proceedings, October 1923, No..1-54, Opinions dated 5-3-1918 and 14-12-1917, Paper No. IV, Opinion No. 13 (Clause 89), and Paper No. IV, Opinion No. 16.
69. It may be noted, that the Constitution1 makes special provisions regarding appointment of the Chief Presidency Magistrates and Additional Chief Presidency Magistrates. As regards other Presidency Magistrates, it is only a question of time before the power ultimately pass to the High Courts.2 Only persons of special merit would be appointed as Presidency Magistrates. For these reasons, we do not recommend abolition of this special category of Magistrates.
(Certain changes regarding of evidence etc. by Presidency Magistrates were recommended, in an earlier Report.3 But these are matters of detail).4
1. Article 233(1) read with Article 236(a), Constitution of India.
2. Cf. section 18(5) of the Code as amended in Bombay, and also Article 237 of the Constitution of India.
3. 14th Report, Vol. 2.
4. See section 362.
70. In fact, there may be certain advantages in having a special class of Magistrates even in places other than Presidency towns-a matter to which we shall advert later. i.e.,
1. See paras. 101-103, infra.
71. Another matter of importance is the ordinary original criminal jurisdiction of High Courts. The subject was discussed in an earlier Report of the Commission,1 and, for the reasons set out in that Report2 at another place, it was suggested that the ordinary original criminal jurisdiction of the Calcutta High Court be abolished. (The High Courts of Bombay and Madras no longer exercise this jurisdiction). The matter requires careful consideration, and will be dealt with under the appropriate section.3
1. 14th Report, Vol. 2.
2. 14th Report, Vol. 2.
3. See discussion regarding section 28.