Report No. 41
Processes to Compel Production of Things
7.1. Section 94(1).-
Section 94 empowers any Court or, in any place beyond the limits of the towns of Calcutta and Bombay, any officer in charge of a polic.-station, to issue a summons for the production of any document or thing required for the purposes of any investigation, inquiry, trial or other proceeding. The exclusion of the town of Bombay from the purview of this section, so far as the police are concerned, has been removed by a local amendment1 of the section. The exclusion of Calcutta also may be removed by omitting the words "in any place beyond the limits of the towns of Calcutta and Bombay" from su.-section (1).
1. Bombay Act 20 of 1956.
7.2. Section 94(3).-
In the earlier Report,1 the Commission examined the effect of section 94 vi.-.-vis the Bankers' Books Evidence Act, 1891, and recommended that a reference to this Act should be included in su.-section (3) if section 94 so that it may be clear that the provisions of this Act override the general provisions of the Code. It also recommended that the Act should be amended to cover investigations besides inquiries and trials. We agree with both the recommendation. Su.-section (3) of section 94 of the Code may be amended to rea.-
"(3) Nothing in this section shall be deeme.-
(a) to affect sections 123 and 124 of the Indian Evidence Act, 1872, or the Bankers' Books Evidence Act, 1891, or
(b) to apply to any letter, postcard, telegram or other documents or any parcel or thing in the custody of the postal or telegraph authority."
1. 37th Report, paras 242, 243.
7.3. Sections 95 and 96.-
No amendment of substance is required in sections 95 and 96, but the references to "Chief Presidency Magistrate" in both these sections may be replaced by "Chief judicial Magistrate", which expression will, in a, metropolitan area, mean the Chief Metropolitan Magistrate.
7.4. Section 98(1).-
In section 98(1), first paragraph, the words "Presidency Magistrate" may be omitted. In the fourth paragraph, power to issue a searc.-warrant for obscene objects is conferred only on the District Magistrate and Su.-divisional Magistrates in a district and on Presidency Magistrates in a Presidenc.-town. We see no objection to the power being conferred on all Judicial Magistrates of the first class as in the first paragraph. We, therefore, propose that for the words "or a Presidency Magistrate" in the fourth paragraph, the words "or Magistrate of the first class" be su.-statuted.
7.5. Section 98(2).-
In section 98(2), the reference to section 19 of the Sea Customs Act, 1878, should be changed to section 11 of the Customs Act, 1962.
7.6. Section 99A.-
In the earlier Report1, the Commission recommended that newspapers, books and documents containing obscene matter should also be brought within the scope of section 99A. We endorse this recommendation. Su.-section (1) of section 99A is, at present, cumbrously worded and can be shortened by omitting the description of the offences under the specified sections of the Indian Penal Code as being redundant. The section may be revised as follows.-
"99A. Power to declare certain publications forfeited and to issue searc.-warrants for the same.- (1) Where it appears to the State Government that a newspaper, book or document, wherever printed, contains any matter the publication of which is punishable under sections 124A, 153A, 292 or 295A of the Indian Penal Code, the State Government may, by notification in the Official Gazette, stating the grounds of its opinion, declare every copy of the issue of the newspaper containing such matter, or, as the case may be, every copy of such book or document, to be forfeited to Government; and thereupo.-
(a) any polic.-officer may seize the same wherever found in India, and
(b) any Magistrate may by warrant authorise any polic.-officer not below the rank of su.-inspector to enter upon and search for the same in any premises where any copy of such issue or any such book or document may be or may be reasonably suspected to be.
(2) In su.-section (1),
(a) 'newspaper' and 'book' have the same meanings as in the Press and Registration of Book Act, 1867;
(b) 'document' includes any painting, drawing or photograph or other visible representation."
1. 37th Report, para. 254.
7.7. Section 99C.-
Under section 99C, an application under section 99B to set aside an order of forfeiture made under section 99A has to be heard and determined by a Special Bench of the High Court composed of three Judges. As pointed out in the earlier Report1, this will not be possible in the case of the three Judicial Commissioners' Courts which are the High Courts for Goa, Manipur and Tripura. No practical difficulty appears to have arisen, perhaps because no such order was ever passed in these Union Territories. It seems desirable, however, to restrict the section to High Courts which have three or more Judges so that the law does not lay down an impossible procedure for any area. Section 99C may be amended to read.-
"99C. Hearing by Special Bench.- Every such application shall, where the High Court consists of three or more Judges, be heard and determined by a Special Bench composed of three Judges."
1. 37th Report, para. 257.
7.8. Section 100.-
Under section 100, power is conferred on any Presidency Magistrate, Magistrate of the first class or Su.-divisional Magistrate to issue a warrant to search for a person wrongfully confined. It is suggested that, as in section 98, the power may be conferred on the District Magistrate, Su.-divisional Magistrate or Magistrate of the first class. The latter expression will be sufficient to include Metropolitan Magistrates in any metropolitan area.
7.9. New section 100A, same as section 552.-
The analogous provision conferring powers on a Presidency Magistrate or District Magistrate to compel the restoration of abducted females is tucked away in the last Chapter of the Code as section 552. We propose that this provision with a slight modification be added in Chapter VII immediately after section 100, thu.-
"100A. Power to compel restoration of abducted females.- Upon complaint made on oath of the abduction or unlawful detention of a woman, or of a female child under the age of eighteen years, for any unlawful purpose, a District Magistrate, Su.-divisional Magistrate or Magistrate of the first class may make an order for the immediate restoration of such woman to her liberty, or of such female child to her husband, parent, guardian or other person having the lawful charge of such child, and may compel compliance with such order, using such force as may be necessary."
7.10. New section 104A , same as section 550.-
No changes are required in other sections of this Chapter.
We notice that among the really miscellaneous provisions collected in the last Chapter of the code is section 550. The police power to seize property suspected to be stolen or found in suspicious circumstances is analogous to the powers mentioned in Chapter VII. It would be appropriate to transfer section 550 to this Chapter and put it after section 104 as section 104A.
7.11. Section 105A.-
Section 105A provides for mutual aid between "courts in the territories to which the code extends" on the one hand, and "courts in the State of Jammu and Kashmir and courts established or continued by the authority of the Central Government in any area outside the said territories" on the other, in the matter of serving summons and executing warrants of arrest and search warrants. The last mentioned category of courts were those few courts established or continued under the Foreign Jurisdiction Act, 1947, but since no such courts exist at present in any area outside India, there is no need to refer to them.
We have, in our discussion of section 1, proposed an amendment in the extent clause1 so that not only the State of Jammu and Kashmir but also the State of Nagaland and the tribal areas within the State of Assam will be textually excluded from the operation of the Code. The following consequential amendments will be necessary in section 105A so that courts in Nagaland and the tribal areas of Assam may be put in the same position, as courts in Jammu and Kashmir.-
"In su.-sections (1) and (2), for the words a court in the State of Jammu and Kashmir or a court established or continued by the authority of the Central Government in any area outside the said territories' the words 'a court in any State or area in India outside the said territories' be substituted."
1. See para. 1.7.