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Report No. 41

1.21. Section 3 practically spent.-

Su.-section (1) of section 3 provides for the construction of references to the old Codes and other enactments repealed by the Code of 1898. The general rule in section 8 of the General Clauses Act, 1897, regarding the construction of references to repealed enactments, would have taken care of the matter, but for the fact that enactments passed before the passing of that Act are not governed by that Act. Such references cannot at present be many and su.-section (1) may be omitted as being hardly of any practical importance. Su.-section (2) contains rules for the construction of certain expressions which are used in old enactments, being expressions which refer to Magistrates or Judges under the phraseology used in the pr.-1898 Codes. These rules of construction also may be regarded as practically spent, and su.-section (2) can be safely omitted.

1.22. Proposed rule of construction in earlier Report.-

In the earlier Report,1 it was proposed to insert in section 3 a provision for the construction of expressions used in the existing enactments where those expressions refer to Magistrates by their present nomenclature. This provision was as follows:

"In every enactment passed on or after the first day of July, 1898 and before the Code of Criminal Procedure (Amendment) Act, 197...comes into force.-

(a) references to a Magistrate of the first, second or third class shall be construed as references to a Judicial Magistrate of the first, second or third class respectively;

(b) references to any other Magistrates, not being references to a Presidency Magistrate, shall be construed as references to the corresponding Judicial or Executive Magistrate as the nature of the case may require."

On further consideration we feel that the latter rule of construction is too vague and imprecise to be of any practical assistance.

1. 37th Report, para. 74.

1.23. Proposed rule in Union Territories Bill.-

We notice that the Union Territories (Separation of Judicial and Executive Functions) Bill, 1968, as introduced in Parliament contains the following clause.-

"5. Functions exercisable by Judicial and Executive Magistrates.- Where under any law, the functions exercisable by a Magistrate relate to matters which involve the appreciation or sifting of evidence or the formulation of any decision which exposes any person to any punishment, or penalty, detention in custody pending investigation, inquiry or trial or would have the effect of sending him for trial before any court, such functions shall, subject to the provisions of this Act and the Code of Criminal Procedure, 1898, as amended by this Act, be exercisable by a Judicial Magistrate; and where such functions relate to matters which are administrative or executive in nature, such as the grant of a licence, the suspension or cancellation of a licence, sanctioning a prosecution, or withdrawing from a prosecution, they shall, subject as aforesaid, be exercisable by an Executive Magistrate."

As a broad classification of the functions of judicial and executive magistrates and as a guide to the authorities in Union Territories when faced with the task of interpreting other laws in force in these Territories, this provision may have some use. But on the other hand they may not find it easy to interpret and apply this clause to borde.-line cases where the nature of the functions is either not very clear or partly executive and partly judicial. If any such provision is included in the Code itself and made applicable, not only to laws in the central and concurrent field, but also to laws in the State field, the constitutional question can be raised whether Parliament is competent to legislate in this indirect fashion affecting State laws. In our opinion, such a provision is more likely to raise technical difficulties and problems of interpretation than help to solve them.

1.24. We are proposing in the next chapter that every district should have on the judicial side a Chief Judicial Magistrate, one or more Judicial Magistrates of the first class and one or more Judicial Magistrates of the second class, but need not have any Su.-divisional Magistrates or Magistrates of the third class as at present. On the executive side it should have a District Magistrate, Su.-divisional Magistrates and other executive Magistrates without class distinction.

Presidency Magistrates will be replaced by Metropolitan Magistrates. When the amended Code comes into force in any State and the magistracy is r.-organised on this pattern, we do not apprehend that any grave difficulty will immediately arise in administering other Act.- State or Centra.-which contain references to Magistrates. The definition of "Magistrate"1 in the various General Clauses Acts as including every person exercising all or any of the powers of a Magistrate under the Code of Criminal Procedure for the time being in force will continue to apply unless there is something repugnant, in the subject or context.

Thus a reference to a Magistrate without any qualification may be taken to be a reference to any judicial or Executive Magistrate and, until it is clarified by a specific amendment made by the competent legislature, there can be no legal objection to either type of Magistrate performing the function. Reference to District Magistrates and Su.-divisional Magistrates are normally to be found in connection with the discharge of executive functions and since these functionaries will be found in each district, no difficulty can arise.

1. See e.g., section 3(32) of the General Clauses Act, 1897.

1.25. We therefore consider that the following rule of construction will be sufficient from the practical point of view:

3. Construction of references to Magistrates in other enactments.- In every enactment passed before the Code of Criminal Procedure (Amendment) Act, 197..., comes into force.-

(a) any reference to a Magistrate of the first class shall be construed as meaning a Judicial Magistrate of the first class;

(b) any reference to a Magistrate of the second class or of the third class shall be construed as meaning a Judicial Magistrate of the second class;

(c) any reference to a Presidency Magistrate or Chief Presidency Magistrate shall be construed as meaning a Metropolitan Magistrate or Chief Metropolitan Magistrate respectively.

1.26. Section 4(1.-Existing definitions considered and amended.-

(i) The expression "Advocat.-General" occurs only in sections 194 and 333 both of which are proposed to be omitted. Clause (a) may accordingly be omitted.

(ii) The expression "Clerk of the State" occurs in one or two sections relating to original trials before the High Court which are proposed to be omitted. Clause (e) also may be omitted.

(iii) In clause (f) which defines "cognizable offence", the words "within or without the presidenc.-towns" may be omitted as the Code will extend also to the police in Presidenc.-towns.

(iv) Clause (g) which defines "Commissioner of Police" may be omitted in view of the proposal to remove all special provisions in the Code applicable to Commissioners of Police in the Presidenc.-towns.

(v) The definition of "complaint" in clause (h) was discussed in detail in the previous Report.1 In view of the conflicting decisions and uncertainty in regard to this definition and the connected provisions in sections 173, 190, 207A and 251A of the Code, the Commission recommended that the definition should make it clear that the report made by the police on an unauthorised investigation of a no.-cognizable case is a complaint. We agree with this recommendation and propose to substitute for the words "the report of a police officer" in clause (h) the words "a police report". A definition of police report will have to be added in this section.2

(vi) The definition of "High Court" in clause (i) is completely out of date. For every State, there is a High Court under the Constitution which is the' highest court of criminal appeal other than the Supreme Court. As regards the Union Territories, the position is that the jurisdiction of a State High Court has been extended by Parliament by law to some of them,3 and in others, a High Court4 or a Judicial Commissioner's Court5 established by law is the highest court of criminal appeal. The definition may accordingly be as follows.-

(i) "High Court" means

(i) in relation to any State, the High Court for that State under the Constitution;

(ii) in relation to a Union Territory to which the jurisdiction of the High Court for a State has been extended by law, that High Court; and

(iii) in relation to any other Union Territory, the highest court of criminal appeal for that Territory, other than the Supreme Court.

(vii) In clause (k) which defines "inquiry", the previous Commission recommended a minor amendment to remove an ambiguity, namely, to place the words "other than a trial" within brackets.

(viii) In clause (n) which defines "no.-cognizable offence" and "no.-cognizable case", the specific reference to Presidenc.-towns is unnecessary. The words "within or without a Presidenc.-town" which now occur in the definition may be omitted.

(ix) In regard to the definition of "officer in charge of a polic.-station" contained in clause (p), the Commission considered in the earlier Report6 a suggestion that the definition should be amended to provide that a su.-inspector in charge, even when out on duty in the interior, should continue to be regarded as the officer in charge of the police station for the purposes of the Code. The Commission, however, felt that such a change in the definition would not be suitable, since the scheme of the Code is that at any given time there is only one officer in charge of a police station. We agree with this view and consider that the definition does not require any amendment.

(x) Clause (q) defines a "place" as including a house, building, tent and vessel. In the earlier Report7 reference was made to a decision of the Supreme Court8 that a motor vehicle is not a "place" within the meaning of sections 102 and 103 of the Code, so that the formalities laid down by those sections need not be observed when a motor vehicle is to be searched. The Commission was of the opinion, that the judgment of the Supreme Court had revealed a lacuna in the definition of "place", because, as a motor vehicle is not a place, the powers of search under various other sections of the Code9 which authorise searches of a "place", would not authorise searches of motor vehicles. The Commission considered it desirable expressly to include vehicles in the definition which would then read.-

"(q) "place" includes also a house, building, tent, vehicle and vessel;" We agree with this recommendation.

(xi) With reference to clause (r) which defines the expression "pleader", the Commission observed10 that it was unnecessary to enumerate the various classes of practitioners and suggested that the definition should be simplified as follows.-

"(r) 'pleader' used with reference to any proceeding in any Court, means a person authorised under any law for the time being in force to practise in such Court , and includes any other person appointed with the permission of the Court to act in such proceeding."

(xii) Clause (w) defines a "warrant case" as a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding one year. Cases relating to other offences are summons cases. In the Report11 on the Reform of Judicial Administration, the Commission recommended the substitution of "three years" for "one year" in this definition, in order that, as a general rule, all offences which do not carry a punishment of imprisonment for more than three years might be triable under the summons case procedure.

The main reasons for this recommendation were that it would lead to the expeditious disposal of a large number of cases particularly those relating to statutory offences which are for the most part of a technical nature; that even under the Indian Penal Code, there are several offences of the same kind, but differing in degree, which at present have different modes of trial; that the distinction between summon.-cases and warran.-cases is arbitrary, e.g. offences under sections 168 and 169, or offences under section 342 on the one hand and sections 343 and 344 on the other; and that the expansion of the category of summons cases as recommended would not be prejudicial to the accused.

The Commission, however, reached a different conclusion in the 37th Report for the following reasons.-

"In the first place, expansion of the category of summon.-cases, as recommended in the earlier Report, would bring in numerous offences, of Which some are really serious.-for example, offences under sections 136, 153A, 295A, 419, 465 etc., Indian Penal Code; and we are not convinced that there will be no prejudice to the accused in such cases. Secondly, the objection that the division is at present arbitrary would survive even if the limit is raised to three years, because the dividing line will still be dependent on an arbitrary period (period of maximum imprisonment).

Thirdly, some of the offenc.-such as those under sections 153A, 295A and 465, Indian Penal Cod.-involve nice questions of intention or interpretation of facts, and the warran.-case procedure, whereunder a precise charge is to be formulated, is, in our view, preferable for such offences. We are not, therefore, carrying out the recommendation made in the earlier Report."

We also agree that no change is necessary in clause (w).

1. 37th Report, para. 75 and Appendix III.

2. See para. 1.27 below.

3. Jurisdiction of the Calcutta High Court has been extended to the Andaman and Nicobar Islands; of the Kerala High Court to the Laccadive, Minicoy and Amindivi Islands< of the Gujarat High Court to Dadra and Nagar Havali; of the Madras High Court to Pondicherry; and of the High Court for Punjab and Haryana to Chandigarh.

4. High Court for Delhi and Himachal Pradesh.

5. There is a Judicial Commissioner's Court for Goa, Daman and Diu, fOr Manipur and for Tripura.

6. 37th Report, para. 83.

7. 37th Report, para. 84.

8. Bhagwanbhat v. State, (1963) 3 SCR 386 (392) (Search under the Bombay Prohibition Act, 1949).

9. For example, sections 98(1) and 165(1).

10. 37th Report, para. 86.

11. 14th Report, Vol. 2.

1.27. Additional definitions.-

(1) With a view to shortening the language of some sections, we propose to add in section 4(1) a definition of "local jurisdiction" as follows.-

"(mm) 'local jurisdiction' in relation to a Court or Magistrate, means the local area within which the Court or Magistrate may exercise all or any of its or his powers under this Code, and, where such local area adjoins the sea, includes the territorial waters extending into the sea to a distance of twelve nautical miles measured from the coast."

Normally, the Code refers to "a Court within the local limits of whose jurisdiction the offence was committed" (vide sections 177 to 183): it would be simpler to refer to "a Court within whose local jurisdiction the offence was committed".

(ii) As indicated in the previous paragraph, su.-para. (v), a clause will be necessary defining "police report" as follows.-

"(rr) 'police report' means a report by a police officer to a Magistrate under su.-section (1) of section 173."

1.28. Rule of construction for references to Magistrates.-

In the next chapter we are proposing the replacement of Presidenc.-towns by metropolitan areas and the appointment of Metropolitan Magistrates in those areas. The powers of the Chief Metropolitan Magistrate and of the Metropolitan Magistrate will, however, with a few exceptions, be the same as those of the Chief Judicial Magistrate and of Judicial Magistrates of the first class respectively. In order to avoid repetitive references to the two categories of Magistrates, we may have a rule of construction in section 4 as follows.-

"(1A) Except in Chapter II and unless the context otherwise require.-

(a) any reference without qualifying words to a Magistrate includes an Executive Magistrate as well as a Judicial Magistrate and a Metropolitan Magistrate;

(b) any reference to a Magistrate of the second class means a Judicial Magistrate of the second class;

(c) any reference to a Magistrate of the first class means a Judicial Magistrate of the first class, and includes in relation to a metropolitan area a Metropolitan Magistrate;

(d) any reference to the Chief Judicial Magistrate includes, in relation to a metropolitan area, the Chief Metropolitan Magistrate for that area.

1.29. Section 4(2).-

As noted by the Commission in the previous Report, the first part of section 4(2) stating that "words which refer to acts done extend also to illegal omissions" is superfluous in view of section 3(2) of the General Clauses Act, 1897, and may be omitted. The second part, however, may remain, for the time being.

1.30. Section 5.- Section 5 does not require any modification.

Code of Criminal Procedure, 1898 Back

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