Report No. 41

46.11. Section 544.-

No change is required in section 544 which provides for payment by Government of the reasonable expenses of complainants and witnesses. As a general provision relating to inquiries and trials, this section could be put in Chapter 24.

46.12. Section 545.-

Under clause (b) of sub-section (1) of section 545, the Court may direct "payment to any person of compensation for any loss or injury caused by the offence when substantial compensation is, in the opinion of the Court, recoverable by such person in a civil court". The significance of the requirement that compensation should be recoverable in a civil court is that the act which constitutes the offence in question should also be a tort. The word "substantial" appears to have been used to exclude cases where only nominal damages would be recoverable. We think it is hardly necessary to emphasise this aspect, since in any event it is purely within the discretion of the criminal courts to order or not to order payment of compensation, and in practice they are not particularly liberal in utilising this provision. We propose to omit the word "substantial" from the clause.

46.12a. Section 546A.-

Section 546A applies only to complaint cases where the accused is convicted of a non-cognizable offence. In such cases, the Court may, in addition to the penalty imposed on the accused, order him to pay to the complainant the fee paid on the petition of complaint and the process fee for summoning witnesses and the accused. These fees are small amounts compared to the total expenses properly incurred by the complainant in prosecuting the offender. We consider that the Court should have the power to award full costs. Sub-section (1) of section 546A may be revised to read as follows.-

"(1) Whenever any complaint of a non-cognizable offence is made to a Court, the Court, if it convicts the accused, may in addition to the penalty imposed upon him, order him to pay to the complainant in whole or in part the cost incurred by him in the prosecution, and may further order that in default of payment, the accused shall suffer simple imprisonment for a period not exceeding thirty days. Such costs may include any expenses incurred. in respect of process fees, witnesses and pleader's fees which the Court may consider reasonable."1

1. Cf. section 148(3).

46.13. Section 549(1) amended.-

Section 549(1) refers to "the Army Act, the Naval Discipline Act, the Indian Navy (Discipline) Act, 1934, and the Air Force Act", all of which are no longer in force. This may be substituted by "the Army Act, 1950, the Navy Act, 1957 and in the Air Force Act, 1950" which are relevant Acts now in force.

The sub-section refers to "commanding officer of the regiment, corps, ship or detachment, to which he (the accused) belongs". As suggested by the Ministry of Defence, it is proposed that after the word "ship" the word "unit" should be added in order to include the basic organisation of the Air Force.

The Ministry of Defence have also suggested that an explanation be added to the effect that Court-martial includes a disciplinary Court constituted under section 95 of the Navy Act, 1957 and also a summary trial by the commanding officer of the ship under section 93(2) of that Act. This suggestion appears to proceed on a misconception of the object of section 549. Every offence triable under the Navy Act may, according to section 93(1), be tried and punished by Court-martial; and under section 549(1) of the Code the Central Government has the power to make such rules as may be appropriate for the Navy consistent with the provisions of the Navy Act. No change appears to be necessary in section 549 on this point.

46.14. Provision for securing attendance of a prisoner before a Court-martial.-

In our Report1 on the law relating to attendance of prisoners in Courts we had recommended that clause (d) of section 491(1) be omitted and the provision incorporated in a modified form in section 549. The following sub¬section may accordingly be added to this sectio.-

"(3) A High Court may direct that a person detained in any jail within the State be brought before a Court-martial for trial or to be examined touching any matter pending before the Court-martial."

1. Fortieth Report, para. 20.

46.15. Sections 550 and 552.-

We have in an earlier Chapter1s recommended that sections 550 and 552 should be put in Chapter VII of the Code as sections 104A and 100A respectively.

1. See paras. 7.9 and 7.10 above.

46.16. Section 553.-

Section 553 provides for compensation to "persons groundlessly given in charge in Presidency-towns". Where any person causes a police-officer in a Presidency-town to arrest another person and it appears to the Magistrate by whom the case is heard that there was no sufficient ground for causing the arrest, the Magistrate can order payment of compensation as provided in the section. The section is at present confined to arrests in Presidency-towns but we think that it is a salutary provision and should be extended to all places. Accordingly sub-section (1) of section 553 may be amended by omitting the words "in a Presidency-town".

46.17. Section 554 omitted in view of Article 227.-

The subject-matter of section 554 is fully covered by clauses (2) and (3) of Article 227 of the Constitution under which every High Court has power to call for returns, make and issue general rules and prescribe forms for regulating the practice and proceedings of courts etc. This Article applies also to Courts of Judicial Commissioners.1 Section 554 is therefore redundant and may be omitted.

1. See the Judicial Commissioners (Declaration as High Courts) Act, 1950.

46.18. Section 555 amended.- Consequentially, in section 555, the reference to section 554 may be omitted.

46.19. Section 557.-

Section 557 prohibits a pleader practising in a criminal court from "sitting as a Magistrate" in that court or in any court subordinate to that court. Practically this prohibition is in relation to pleaders appointed as honorary Magistrates. The section enables a pleader practising in the civil courts to accept such an appointment and function as a Magistrate. The words "in a Presidency-town or district" are superfluous and may be omitted from the section.

46.20. Section 558.-

Under section 558, the State Government may determine what shall be the language of each Criminal Court in the State other than a High Court (not being the Court of a Judicial Commissioner). The analogous provision of Civil Courts is contained in section 137 of the Civil Procedure Code. Some States have issued notifications under section 558 determining the language of subordinate Criminal Courts.

Although Article 345 of the Constitution specially empowers the legislature of a State to determine by law what language shall be used for all or any of the official purposes of the State, there does not appear to be any real conflict between that article and section 558 of the Code. As a pre-existing law, this section has been continued in force by Article 372 of the Constitution "until repealed, altered or amended by a competent legislature". No change of substance is necessary in the section, but as a formal amendment, for the words "territories administered by such Government", the word "State" may be substituted.