Report No. 37
Appendix 4
Note on Section 15(2) and Powers of Benches
Section 15(2) of the Code runs as follows:-
15(2) Power exercisable by Bench in absence of Special direction.-Except as otherwise provided by any order under this section, every such Bench shall have the powers conferred by this Code on a Magistrate of the highest class to which any one of its members, who is present, taking part in the proceedings as a member of the Bench, belongs, and as far as practicable shall, for the purpose of this Code, be deemed to be a Magistrate of such class."
The true meaning to be attached to the section is that Government, in its order under the section can specify the gradation (first, or second or third class), but if Government does not do so, then the Bench has the powers of the member of the highest class. Thus, it is open to the Government to invest a Bench composed of Magistrates of a lower class with ordinary or additional powers of a Magistrate of the higher class.1
Section 15(2) has also another aspect, namely, the Bench has all powers (of the highest class of Magistrates to which one of its Members belongs). The emphasis, now, is not on the grade but on the nature of the powers. This removes the difficulty felt under section 50 of the Code of 1872, whereunder the High Court was unable to infer2 that a Bench had jurisdiction with regard to miscellaneous matters,-such as disputes as to immovable property-from the mere fact that the Bench had been empowered to try "cases."
The words "sit together" in section 15 were explained by Beaumont C.J. as follows3:-
"Acting under section 15, the Government of Bombay, on 9th December, 1931, directed that ten Magistrates of the Satara District, two having powers of the first class and eight of the second class should sit together as a Bench, and conferred on the said Bench all the powers conferred by the said Code on a Magistrate of the first class except certain powers referred to in the notification.
The view taken by the Sub-divisional Magistrate is that under that notification all ten members of the Bench must sit together, these being the words used in the notification, and that the special powers of a First Class Magistrate conferred by the notification only apply if the whole Bench is sitting together. He takes the view further that as only three members of the Bench were sitting (three being a quorum) the powers of the Bench were those conferred by sub-section (2), section 15, viz., the powers of a Second Class Magistrate, no member of the Bench of three being of a higher class than that.
It seems to me that the latter view of the Sub-divisional Magistrate cannot be supported, because' the Bench on which powers are conferred by sub-section (3), section 15, in the absence of any special powers conferred under sub-section (1), is the same Bench as that on which special powers might have been conferred under sub-section (1), and if the learned Sub-divisional Magistrate is right in thinking that the powers under sub-section (1) can only be conferred on the whole Bench of ten Magistrates then no powers arise under sub-section (2), and a Bench consisting of less than ten Magistrates would seem to be a Bench devoid of powers.
No doubt some force is lent to the view of the learned Sub-divisional Magistrates on the former point by the use of the words "sit together" in the Government Notification. These words follow the language of section 15, and as the notification is expressly made under the powers conferred by that section, we must, I think, construe the words in the notification as having the same meaning as similar words in the section.
"We have therefore to use what the words "sit together" in section 15 really mean. Now if they are to be construed literally, they mean that the whole Bench must sit in session together. Two difficulties arise on that construction. In the first place there would seem to be no force in the power given in section 16 by which the Local Government can make rules for the constitution of Benches. If a Bench in session must always consist of all the members of the Bench that power seems to be nugatory.
In the second place it is plain that if the whole Bench must at all times sit together it would for practical purposes be useless as a Bench, because it is notoriously difficult to get a considerable number of Honorary Magistrates to "sit together" for any length of time. We must read sections 15 and 16 together, and reading them together it seems to me that the words "sit together", in section 15 must be construed as equivalent to "constitute",4 so that the Local Government may direct any two or more Magistrate to constitute a Bench, and then they may invest that Bench with special powers, and they may make rules under section 16 providing how the Bench is to be constituted for the purpose of conducting trials.
If that is so, the rules which have been made by Government, providing that a Bench should consist generally speaking of five members with a quorum of three, are valid. If the right construction of sections 15 and 16 of the Code is as I have indicated above, then a similar meaning must be given to the words "sit together" in the notification made by Government under section 15, and we must hold that three Magistrates, members of the whole Bench of ten, who formed the trial Bench, had the powers of a First Class Magistrate under the notification. That being so, the learned Sub-divisional Magistrate had no jurisdiction to deal with the case."
To put the matter differently, "The two sections must be interpreted so as to give effect to both, and that can only be done, it seems, by holding that the Benches created by notification under section 16 (c) out of the Bench created by section 15 have the powers given to that Bench by the order under section 15".5
Even where one of the Magistrates is of the first class, Government can direct that the Bench shall be a Second class one. This is clear6 from the word "except as otherwise provided" in section 15(2).
Where an Honorary Magistrate was a member of an "independent" Bench, he could not (unless specially authorised) exercise Magisterial powers when not sitting on the Bench.7
1. Cf. Emp. v. Noor Mahmomed, AIR 1928 Sind 1 (5) (FB).
2. Sufferudin v. Ibrahim, 1877 ILR 3 Cal 754.
3. Emp. v. Bhimablai Sitaram, AIR 1934 Bom 176 (177, 178).
4. Emphasis supplied.
5. Barlee J. in Emp. v. Bhimabai, AIR 1934 Bom 176 (178).
6. See Joseph v. Changanacherry Municipality, AIR 1963 Ker 200 (201).
7. Emp. v. Nuri Shaikh, (1902) ILR 29 Cal 483 (486).
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