Report No. 41
8.11. Power to vest exclusively in Judicial Magistrates of the first class.-
This matter was again discussed in detail before us. We are of the view that, having regard to the fact that the final order to be passed in these proceedings affects the liberty of the person against whom the proceedings are instituted and that sifting of evidence in a judicial manner is required before an order demanding security can justifiably be passed, it is desirable to vest these powers exclusively in Judicial Magistrates. Inquiry under any of these three sections partakes of the character of a trial, though technically the person against whom the proceedings are taken is not an accused person, there is no offence to be inquired into or tried and the ordinary rules of evidence are relaxed to some extent.
All Magistrates of the first class may, in our opinion, be given powers under these three sections. At the same time, we do not think that the powers under these sections need be vested concurrently in both Judicial and Executive Magistrates although this is the position in some States at present. Under a statutory scheme of separation, such a system is likely to create confusion and even otherwise has nothing to commend it.
8.12. Section 108(1) revised.-
Su.-section (1) of section 108 may accordingly be revised as follows.-
"(1) When a Magistrate of the first class receives information that there is within his local jurisdiction any person who, within or without such jurisdiction, either orally or in writing or in any other manner, intentionally disseminates or attempts to disseminate or abets the dissemination of.-
(a) any matter the publications of which is punishable under section 124A or 153A of the Indian Penal Code, or
(b) any matter concerning a Judge which amounts to criminal intimidation or defamation under the Indian Penal Code, and the Magistrate is of opinion that there is sufficient ground for proceeding, the Magistrate may, in the manner hereinafter provided, require such person to show cause why he should not be ordered to execute a bond, with or without sureties, for his good behaviour for such period, not exceeding one year, as the Magistrate thinks fit."
8.13. Section 109 revised.-
As regards section 109, clause (a), the Commission referred1 in the earlier Report to the controversy as to whether the person proceeded against should be concealing his presence within the Magistrate's jurisdiction or whether it is sufficient if the person, being within Magistrate's jurisdiction, is taking precautions to conceal his presence with a view to committing an offence. The following r.-draft of the section will make the intention clear.-
"109. Security for good behaviour from vagrants and suspected persons.-When a Magistrate of the first class receives informatio.-
(a) that there is within his local jurisdiction a person taking precautions to conceal his presence and that there is reason to believe that he is doing so with a view to committing an offence, or
(b) that there is within his local jurisdiction a person who has no ostensible means of subsistence or cannot give a satisfactory account of himself, the Magistrate may, in the manner hereinafter provided, require such person to show cause why he should not be ordered to execute a bond, with sureties, for his good behaviour for such period, not exceeding one year, as the Magistrate thinks fit."
1. 37th Report, para. 299.
8.14. Section 110 amended.-
In section 110, the opening paragraph may be amended as follows.-
"When a Magistrate of the first class receives information that there is within his local jurisdiction a person wh.-".
8.15. Sections 118 and 123(3).-
In regard to sections 118 and 123, we notice that it is provided in section 367(6) that an order under section 118 or section 123(3) shall be deemed to be a judgment. The object of this provision (inserted by the Amendment Act of 1923) is apparently to ensure that reasons are given separately and in sufficient detail as to each person proceeded against under this Chapter. It would, in our opinion, be more appropriate to lay down this requirement (which in practice is observed by Magistrates) in section 118 itself by adding a su.-section as follows.-
"(2) Every order made under this section shall contain the point or points for determination, the decision thereon and the reasons for the decision." Order under section 123(3) are passed by Sessions Judges who may be expected to give reasons without a statutory requirement. We do not consider it necessary to add a similar provision in section 123(3).
8.16. Section 124.-
Section 124 gives power to the Chief Presidency Magistrate in a Presidenc.-town and to the District Magistrate elsewhere to release persons jailed for failing to give security if he thinks that it can be done without hazard to the community. This is treated as a purely executive or administrative function, analogous to the power vested in the Government to suspend, commute or remit sentences passed on persons convicted of offences. As such we do not consider it necessary or even desirable to corner a concurrent power on the Chief Judicial Magistrate, as recommended by the Commission in the earlier Report.1
Since our scheme visualises a District Magistrate in metropolitan areas, we propose to omit all references to Chief Presidency Magistrate in section 124.
In su.-section (2) an exception is made of when the original "order has been made by some Court superior to the District Magistrate". It would be simpler and clearer to refer expressly to the High Court and the Court of Session. The words in brackets may be amended to read "unless the order has bee.-Made by the High Court or the Court of Session".
1. 37th Report, para. 317.
8.17. Section 125.-
In section 125 also, the reference to the Chief Presidency Magistrate may be omitted and the words "not superior to his Court" may be replaced by the words "other than the High Court or the Court of Session".
8.18. Section 126.-
As recommended in the earlier Report,1 section 126 requires to be amended so that the power to discharge sureties vests in the Court which ordered the bond to be taken. The section may be revised as follows.-
"126. Discharge of sureties.- (1) Any surety for the peaceable conduct or good behaviour of another person ordered to execute a bond under this Chapter may at any time apply to the Court making such order to cancel the bond.
(2) On such application being made, the Court shall issue a summons or warrant, as it thinks fit, requiring the person for whom such surety is bound, to appear or to be brought before it."
8.19. Section 126A.-
In view of the amendment made in section 126, section 126A will require a consequential amendment, viz. the addition of "or Court" after "Magistrate".