Report No. 37

Appendix 5

Points of Difference between Presidency Magistrates and Other Magistrates

(1) Appointments: Section 18-

The Chief Presidency Magistrate and Additional Chief Presidency Magistrate are "District Judges" within the meaning of Article 236 of the Constitution. They should be "appointed" in consultation with the High Court.

Other Magistrates (including the District Magistrate) are not "District Judges" within Article 236 of the Constitution.

(2) Subordination: Section 21-

(a) Presidency Magistrates are subordinate to the Chief Presidency Magistrate, to the extent defined by the State Government. Powers of transfer are exercised by the Chief Presidency Magistrate-sections 528(2), 192(1).

(b) The Acts providing for Sessions Courts in the three Presidency Towns do not subordinate the Presidency Magistrates to the Sessions Court. But, by virtue of section 528(1C), a power of transfer is conferred on the "Sessions Judge", and this has been held to apply to cover the Sessions Judges in Presidency towns also.1

(c) Magistrates in the mofussil are subordinate to the District Magistrate. Except as provided by the Code2 they are not "subordinate" to the Sessions Judge.3-4

(3) Benches: Sections 19 and 15-

The Chief Presidency Magistrate can frame rules, and, subject thereto, the Presidency Magistrates can sit in Benches of two or more Magistrates (section 19).

In the mofussil, the Magistrates cannot sit together unless the State Government directs the constitution of benches, and invests them with powers (section 15).

(4) Offences that can be tried: section 28, Second Schedule, column 8, and section 32(a)-

Presidency Magistrates are sui generis regarding the offences that can be tried and the sentences that can be imposed. There is no "gradation" amongst them.

(5) Examination of complainant: section 200, proviso (b)

A Presidency Magistrate may dispense with the administration of oath to the complainant and his witnesses. He need not reduce the substance to writing, if the complaint is a written complaint.5

Other magistrates must follow the detailed procedure given in section 200.

(6) Committal Proceedings: sections 206 and 213-

(a) Commitment by Presidency Magistrates is to the High Court under the scheme of the Code (section 206). This position has been changed by local amendments, which create a City Sessions Court in the three Presidency towns.

(b) A Presidency Magistrate need not give reasons for commitment. (This is changed in Madras).

(7) Record of Evidence and charge: Section 362(4) and 411-

Where no appeal lies (i.e., cases in which the punishment is imprisonment less than six months and fine less than Rs. 200) the Presidency Magistrate need not record the evidence nor frame a charge.6 [section 362(4)].

(8) Judgment: Section 370-

Presidency Magistrate need not write a judgment, but should keep the record on the basis of particulars mentioned in section 370. But, where the Presidency Magistrate awards imprisonment or fine exceeding Rs. 200, a brief statement of the reasons for the conviction should be maintained.

(9) Appeal: Sections 411 and 406, 406A-

(a) Appeal lies to the High Court where the sentence exceeds six months or where the fine exceeds Rs. 200 (Section 411).

(b) An appeal lies to the High Court from an order requiring security for keeping the peace or good behaviour [section 406(a)].

(c) So also, an appeal lies to the High Court from an order refusing to accept or rejecting a surety [section 406A(a)].

(10) Reference: sections 432(2) and 441-

Presidency Magistrates can refer a question of law to the High Court.7

(11) Revision: Sections 436 to 439 and 441

(a) To the High Court only-The powers of the High Court under section 439 are unaffected.8

Bombay and Madras enactments establishing Courts of Sessions for the respective Presidency towns (sections 9, 10, 11) have not made changes in these provisions, but the enactment creating the City Sessions Court, Calcutta, expressly states that the City Sessions Court will not have powers of Appeal, reference and revision (section 6, West Bengal Act 20 of 1953).

(b) A Presidency Magistrate can submit his views to the High Court (section 441).

(12) Transfer: Section 528-

See "Subordination" above, and "withdrawal" below.

(13) Attendance of Prisoners: Section 542-

Apart from powers conferred by the Prisoners (Attendance in Courts) Act, 1955 (32 of 1955), which applies to all the territories in India (except Jammu and Kashmir), a Presidency Magistrate has special power under section 542.

(14) Compensation for groundless arrest: Section 553-

Applicable only to Presidency Towns.

(15) Withdrawal and transfer of cases-Sections 526(1A) and 528(1C)-

Before 1955, there was no power in the Sessions Judge to transfer cases from one Magistrate to another. The 1955 Amendment-sections 526(1A) and 528(1C)-gives this power. It has been held to extend to Presidency Towns.9

The power of the Chief Presidency Magistrate (section 528) is controlled by the superior power of the City Sessions Judge.10 On rejection of transfer application [section 526(1A)] by the Chief Presidency Magistrate, an application can be made to Session Court [section 528(IC)].

1. Ahmed Moideen v. Inspector D. Division, AIR 1959 Mad 261 (269), paras. 25 to 28.

2. Section 17(5).

3. ILR 2 All 205 (FB): ILR 26 Mad 596.

4. ILR 6 Pat 39: AIR 1927 Pat 111.

5. Cf. Aiyar, AIR 1948 Mad 424.

6. The Law Commission, in its 14th Report, Vol. 2, has recommended an amendment requiring recording of substance of evidence and framing of charge by Presidency Magistrates.

7. See-

(i) Girish, AIR 1929 Cal 756 (FB); and

(ii) Abdul Rahman, (1960) 1 SCR 749: AIR 1960 SC 82.

8. Cf. Malik Pratap Singh v. Khan Mohamed, (1909) 36 Cal 994 and R.G. Ruia v. State, AIR 1958 SC 97 (103).

9. Ahmed Moideen v. Inspector D. Division, AIR 1959 Mad 261 (279), paras. 25 to 28.

10. Ahmed Moideen v. Inspector D. Division, AIR 1959 Mad 261.