Report No. 41
46.21. Section 559(2).-
Sub-section (2) of section 559 requires to be formally revised as follows.-
"(2) When there is any doubt as to who is the successor in office of any Metropolitan Magistrate, Judicial Magistrate or Executive Magistrate, the Chief Metropolitan Magistrate, the Chief Judicial Magistrate or the District Magistrate, as the case may be, shall determine by order in writing the Magistrate who shall, for the purpose of this Code or of any proceedings or order thereunder, be deemed to be the successor in office of such Magistrate."
46.22. Section 561.-
Section 561 contains two special provisions with respect to the offence of rape where it is committed by a man on his wife. Under sub-section (1) only a Chief Presidency Magistrate or District Magistrate is competent to take cognizance of the offence and to commit the man for trial, if necessary, to the Court of Session. Under sub-section (2), when a police investigation is ordered, no police-officer of a rank below that of a police-inspector may take part in the investigation. The object of these special provisions appears to have been to prevent harassment by unfriendly neighbours, but considering that prosecutions for this offence have been extremely rare, these special provisions appear to be practically unnecessary. We propose that the section may be omitted.
46.23. Section 561A.-
Section 561A recognises the inherent power of the High Court to do real and substantial justice between parties. Assuming its existence, the section provides that nothing in the Code shall be deemed to limit or affect the inherent power of the High Court to give effect to any order under the Code (whether made by itself or by a subordinate Court) or to prevent abuse of the process of any Court (including subordinate Courts) or otherwise to secure the ends of justice.
In an earlier Report,1 the Law Commission observed.-
"This statutory recognition, however, extends only to the inherent powers of the High Court. One may compare it with the recognition of the inherent powers of all civil courts by section 151, Civil Procedure Code.
In a number of decisions before and after the enactment of section 561 A, various High Courts have also recognised the existence of such power in subordinate Courts.2 We would, therefore, recommend a statutory recognition of such inherent power which has been recognised as vesting in all subordinate criminal courts. However, the general principle of law is that the inherent power of a court can be exercised only to give effect to orders made by it or to prevent abuse of its own processes."
We agree with this recommendation. We do not, however, consider it necessary or desirable to go further and recognise an "inherent power" in Courts of Session and other Courts of Appeal to pass appropriate orders to prevent the abuse of the process of any subordinate Court.
We propose that the section may be expanded as follows.-
"561A. Saving of inherent powers of Criminal Courts.- Nothing in this Code shall be deemed to limit or affect the inherent powe.-
(a) of the High Court to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice, or
(b) of any other Criminal Court to make such orders as may be necessary to prevent abuse of its process or otherwise to secure the ends of justice."
1. Fourteenth Report, Vol. II.
2. Achambit Mondal v. Mahatab Singh, AIR 1915 Cal 119; Nagen Kundu v. Emperor, 61 Cal 498; Krushna Mohan v. Sudhakur Dass, AIR 1953 Ori 281.
46.24. Section 562(1), proviso, and section 380 combined.-
With reference to the proviso to section 562(1) we have in an earlier Chapter1 recommended that section 380 may be added to this proviso with which it is immediately connected. The reference to Magistrates of the third class is the proviso will have to be omitted since this class of Magistrates is to be abolished. The proviso may be revised to read as follows.-
"Provided that where any first offender is convicted by a Magistrate of the second class not specially empowered by the High Court in this behalf, and the Magistrate is of opinion that the powers conferred by the section should be exercised;
(a) he shall record his opinion to that effect and submit the proceedings to a Magistrate of the first class, forwarding the accused to, or taking bail for his appearance before, such Magistrate; and
(b) such Magistrate may thereupon pass such sentence or make such order as he might have passed or made if the case had originally been heard by him, and, if he thinks further inquiry or additional evidence on any point to be necessary, he may make such inquiry or take such evidence himself or direct such inquiry or evidence to be made or taken."
1. See para. 27.11 above.
46.25. Section 562(1A) amended.-
Under sub-section (1A) of section 562, it is permissible to release a first offender after admonition only in the case of certain offences punishable under the Indian Penal Code. It has been state1 that Courts very often release first offenders after admonition in petty cases under various laws other than the Indian Penal Code, although this is not strictly covered by section 562. In principle, however there is no reason why section 562 should not apply also to other laws. We accordingly propose that the words "under the Indian Penal Code" may be omitted from sub-section (1A).
Occasionally doubts have been raised whether an offence punishable only with fine is covered by the expression "any offence punishable with not more than two years' imprisonment". Although the Courts2 have answered this question in the affirmative, it seems desirable to make the position clear by adding the words "or with fine only" after the words "not more than two years' imprisonment".
1. F. 3(2)/55-L.C., Pt. II, S. No. 17 (Shri N.C. Chatterjee, Ghose Lane, Calcutta).
2. See Emperor v. Manchershnw, AIR 1935 Born 156.
46.26. Section 565.-
Section 565 empowers the Courts to order previously convicted offenders to notify their place of residence and any change of, or absence from, such residence after their release. As the section is at present worded, it has been held1 that it does not apply to persons convicted of attempts, abetments and conspiracies to commit any of the offences listed in clause (a) of section 565(1). It is obviously desirable that the section should apply also to such persons. Clause (b) of the section is practically obsolete because of lapse of time and may be omitted, sub-section (1) of section 565 may accordingly be revised as follows.-
"(1) When any person having been convicted by a Court in India of an offence to which this section applies is again convicted of any such offence by any Court other than that of a Magistrate of the second class, that Court may, if it thinks fit, at the time of passing sentence of imprisonment on such person, also order that his residence and any change of, or absence from, such residence after release be notified as hereinafter provided for a term not exceeding five years from the date of the expiration of such sentence.
(1A) This section applies to any of the following offences, namely.-
(i) any offence punishable under Chapter XII or Chapter XVII of the Indian Penal Code with imprisonment for a term of three years or upwards;
(ii) any offence punishable under sections 215, 489A, 489B, 489C or 489D of the same Code;
(iii) an abetment of, or attempt to commit, of conspiracy to commit, any of the aforesaid offences."
1. Doraiswamy, AIR 1942 Mad 521.