Report No. 41
48.2. Summary of main changes proposed.-
We do not consider it necessary to give a complete summary of all the recommendations made in the foregoing pages. We have indicated in each Chapter of this Report, corresponding to a Chapter of the Code, the provisions which should be made in lieu of, or in addition to, the existing provisions, and also the amendments, both major and minor, to be made in them. The main changes proposed by us are set out below in broad outline.-
(1) The extent clause should state the factual position, viz., that the Code extends to the whole of India except the State of Jammu & Kashmir, the State of Nagaland and the Tribal Areas in the State of Assam.
(2) Steps should be taken to have the same Penal Code and Criminal Procedure Code operating in Jammu & Kashmir as in the rest of India.
(3) The jurisdiction of Criminal Courts, in relation to territorial waters should be clarified.
(4) The revised Code should, while giving effect to the separation of the executive from the judiciary in the administration of criminal justice, provide for uniformity in the set-up of Criminal Courts, the distinction between Executive and Judicial Magistrates and their respective functions under the Code.
(5) All Judicial Magistrates should be under the control of the High Court and organised in two classe.-Magistrates of the third class being abolishe.-under a Chief Judicial Magistrate for each district. In districts with large sub-divisions and a concentration of Judicial Magistrates at sub-divisional headquarters, Additional Chief Judicial Magistrates should be appointed to do the work of co-ordination and supervision now done by Sub-divisional Magistrates.
(6) Executive Magistrates in, a district should be under the control of the State Government and organized, as at present, under a District Magistrate, Additional District Magistrates (where necessary) and Sub-divisional Magistrates. There is no need for putting Executive Magistrates in two or three different classes according to the powers exercisable by them.
(7) The institution of Presidency Magistrates should be maintained. Since "Presidencies" disappeared from the political map of India long ago these Magistrates should be designated Metropolitan Magistrates and the areas in which they exercise jurisdiction, viz., the "Presidency-towns" of Bombay, Calcutta and Madras and the city of Ahmedabad, should be called metropolitan areas. The institution should be capable of being extended to other cities with population exceeding one million.
(8) Ordinary original criminal jurisdiction of High Courts, which is now exercised only by the Calcutta High Court in a very small category of cases, should be abolished.
(9) Section 30 need not be retained in any form, but every Chief Metropolitan Magistrate and Chief Judicial Magistrate, and any Additional Chief Metropolitan Magistrate or Additional Chief Judicial Magistrate empowered by the High Court, should have the power to pass sentence of imprisonment upto seven years. The sentencing power of first class Magistrate should be enhanced to three years' imprisonment and Rs. 5,000 fine and that of second class Magistrate should be enhanced to one year's imprisonment and Rs. 1,000 fine.
(10) The powers of Justices of Peace should by defined in the Code.
(11) When a person is arrested by the police without warrant, he should be informed immediately of the grounds of his arrest and, if the arrest be for a bailable offence, of his right to be released on bail.
(12) Provision should be made for service by post of summonses addressed to witnesses.
(13) In Chapter 8, security proceedings under section 107 only should be the concern of Executive Magistrates, and those under sections 108, 109 and 110 should be handled by Judicial Magistrates.
(14) In regard to abatement of public nuisances under Chapter 10, power should be with the Executive Magistrates. Assistance by jury provided for in section 138 should be dispensed with.
(15) Executive Magistrates alone should have the power to take action under sections 144, 145 and 147.
(16) In regard to proceedings under sections 145 and 147 (disputes as to immoveable property), the position existing prior to the amendments made in 1955 should be restored.
(17) In section 161 relating to the examination of witnesses by the police, two changes should be made: first, persons shall be bound to answer truly questions put to them, and secondly when the statement of a literate person is reduced to writing, he should be allowed to read and sign the statement so recorded.
(18) Section 167(2) should be amended to provide for remands in custody during an investigation for a period not exceeding 15 days at a time and 60 days in the whole.
(19) The duty of furnishing copies of police report, statements of witnesses and documents to the accused under section 173(4) should be assigned to the Magistrate taking cognizance of the offence.
(20) In regard to petty offences adequately punishable by a small fine, provision should be made for the offender to send a plea of guilty and the proposed fine instead of appearing before the Court.
(21) Commitment proceedings in sessions cases should be abolished. When the case is instituted on police report, the Magistrate taking cognizance will only do the preliminary work of supplying the accused with copies of the police report, statements of witnesses, documents etc., and then send the case to the Court of Session. When the case is instituted otherwise than on a police report, the Magistrate should make a preliminary inquiry as provided in section 202, and then commit the case to the Court of Session.
(22) All provisions relating to trial by jury should be omitted.
(23) Provision should be made that when the accused is convicted in a sessions case or a warrant-case he should be heard or the question of sentence before it is passed.
(24) Section 250 should be liberalised so that the Magistrate may award compensation up to the maximum amount of fine he is empowered to impose, when he is satisfied that there was no reasonable ground for making the accusation.
(25) The procedure to be followed in a case where an incorporated company or other body corporate or a society registered under the Societies Registration Act, 1860, is an accused, should be laid down in detail.
(26) The right of an indigent accused person to assignment of counsel at State expense should be recognised in the Code, at least in all sessions cases in the first instance, with provision for extending it to other serious cases tried by Magistrates.
(27) In order to avoid unnecessary commitment of cases to the Court of Session, provision should be made for subordinate Magistrates to submit cases to the Chief Judicial Magistrate for imposing adequate punishment.
(28) The provisions relating to the mode of recording evidence and the language of the record in different classes of cases should be systematised.
(29) In regard to judgments in capital cases, the Judge should be required to state his reasons for awarding the particular sentence whether it be a sentence of death or one of imprisonment for life.
(30) Provision should be made for postponement of execution of a death sentence in case of appeal to the Supreme Court.
(31) Section 386(1) should be amended to authorise the recovery of fine by the Collector as an arrear of land revenue.
(32) In cases where the Central Government is immediately concerned, the State Government should exercise its power to remit or commute the sentences only in consultation with the Central Government.
(33) The right of appeal to the Supreme Court conferred by Article 134(1)(a) of the Constitution should be extended to cases where a High Court has on appeal reversed an order of acquittal and sentenced the accused to imprisonment for life. There should also be a right of appeal when a person is convicted on a trial held by a High Court and sentenced to imprisonment for more than six months or to fine exceeding Rs. 1,000.
(34) Provision should be made for appeal by the Government against sentence on the ground of its inadequacy.
(35) In order to combat perjury of a blatant kind, a summary procedure is recommended for punishing a person who gives contradictory statements on oath in the same case.
(36) Provisions for securing the attendance in Criminal Courts of persons confined or detained in prisons, whether for answering to a charge or for giving evidence, should be included in the Code.
(37) The Public Prosecutor of the district should be given a greater authority, a higher status and a wider range of functions than he has at present, approximating to those of a Director of Public Prosecutions. He should be an advocate of not less than seven years' standing and should have been recommended by the High Court for appointment.
(38) The Code should provide the frame work for organising the prosecuting agencies in the district in a systematic way.
(39) In order to prevent any conflict of interests between the Centre and the State in the matter of withdrawal from prosecutions, the State Public Prosecutor in charge of a case of substantial concern to the Central Government should obtain its previous permission before withdrawing from the prosecution.
(40) Provision should be made enabling a person to obtain "anticipatory bail order" from the High Court or Court of Session in certain circumstances.
(41) The provision in section 526(8) which obliges a subordinate Court to stop all proceedings on the mere intimation by a party that he intends to move the High Court for transfer has lent itself to gross abuse and should be repealed.
(42) Section 561A which recognises the "'inherent power" of the High Court should be expanded to cover the inherent power of other Criminal Courts to prevent abuse of their process or to secure the ends of justice.
(43) The Second Schedule which classifies offences from five stand-points should be simplified. The number of offences triable exclusively by the Court of Session should be reduced.