Report No. 41
Sections 127 to 130A deal with the dispersal of unlawful assemblies. Powers in this respect are conferred primarily on any Magistrate, or officer in charge of a polic.-station. When the public security is manifestly endangered and when no Magistrate can be communicated with, any commissioned officer of the armed forces may disperse the assembly with the help of the forces under his command.
9.2. Power to disperse for Executive Magistrates only.-
In the earlier Report the question whether the powers should be with Executive Magistrates or with both Judicial and Executive Magistrates was examined and the Commission came to the conclusion1 that it would be better to confine these powers to Executive Magistrates. We are also of the same view.
1. 37th Report, paras. 323 and 324.
9.3. Provisions should remain in the Code.-
The Commission considered an extreme suggestion made by the Madras Bar Council that Magistrates should not have anything to do with the dispersal of unlawful assemblies and it should be left to the police and the armed forces to tackle them. The Commission did not agree with the suggestion and saw no need to disturb the structure of the Code by putting the provisions in a separate law. We share this view.
9.4. Sections 132 and 132A.-
Section 13.-clauses (b) and (d.-provides that no officer acting under section 131 in good faith and no inferior officer, or soldier, sailor or airman in the armed forces doing any act in obedience to any order which he was bound to obey, shall be deemed to have thereby committed an offence. The expression "officer" is defined in section 132A as meaning a person commissioned or gazetted or in pay as an officer of the armed forces and including a junior commissioned officer, a warrant officer, a petty officer and a no.-commissioned officer.
Though the Expression "inferior officer" is not defined, it is fairly clear that this expression as used in section 132(d) covers all officers other than the one actually in command in a certain situation and who have to act in obedience to that officer's orders. In every armed force of the Union other than the Army, the Air Force and the Navy, there is a division between officers and men, but the latter may not strictly come within the description of "soldier, sailor or airman". In order to remove this slight lacuna, we propose that clause (d) of section 132 should refer generally to "officer or member of the armed forces" and a definition "member" added in section 132A.
9.5. Amendments proposed.-
No other amendments of substance are required in this Chapter. The following amendments may be carried out.-
(i) In sections 127 to 132, for the word "Magistrate" wherever it occurs, the words "Executive Magistrate" be substituted.
(ii) In section 127, su.-section (2) be omitted;
(iii) In section 128, the words "whether within or without the Presidency towns" be omitted;
(iv) In section 132, clause (d), for the words "inferior officer, or soldier, sailor or airman in the armed forces", the words "officer or member of the armed forces" be substituted; and in the proviso, for the words "soldier, sailor or airman in the armed forces", the words "member of the armed forces" shall be substituted;
(v) In section 132A, the following clause be added, namely.-
"(c) 'member', in relation to armed forces, means a person in the armed forces other than an officer."