Report No. 41
15.81. Section 191.-
Since clause (c) of section 190(1) contemplates the possibility that cognizance of an offence may have been taken by a Magistrate because of his own knowledge or his own information, a safeguard has been provided in section 191 that in such a situation the accused must be told, "before any evidence is taken," that he is entitled to have the case tried by another court and if he so chooses, "the case shall be committed to the Court of Session or transferred to another Magistrate". This rests on the view that administration of justice should always appear to be unbiased. As the provision now stands, however, it is possible that a Magistrate may, in spite of the accused's previous objection, go on with the inquiry in order to commit him to the Court of Session.
The proper and dignified course for a Magistrate would, in our opinion, be to make over the case to another Magistrate as soon as an objection is raised. This procedure would be fairer to the Magistrate as well as the accused. If cognizance is taken by a Magistrate under clause (c) and the accused objects to the Magistrate hearing the case, the case must at once be made over to another Magistrate competent to inquire into or try it. No mention of the Court of Session would then be necessary in the section. We recommend that it should be modified as follows.-
"191. When a Magistrate takes cognizance of an offence under clause (c) of su.-section (1) of section 190, the accused shall, before any evidence is taken, be informed that is entitled to have the case inquired into or tried by another Magistrate, and if the accused, or any of the accused if there be more than one, objects to further proceedings before the Magistrate taking cognizance, the case shall be transferred to such other Magistrate as may be specified by the Chief Judicial Magistrate in this behalf."
15.82. Section 192.-
Section 192 has two su.-sections. The first empowers a Chief Presidency Magistrate, a District Magistrate or a Su.-divisional Magistrate to transfer a case after taking cognizance of it, to another magistrate subordinate to him. This is a necessary power for the proper arrangement of criminal work and the object is that senior Magistrates may find it convenient to look at most of the cases in the first instance but after taking cognizance send them for disposal to their subordinates. The second su.-section enables a District Magistrate to clothe a first class Magistrate with powers like his own under su.-section (1). This again is useful in order to relieve the District Magistrate of unnecessary burden.
15.83. To cover cases concerning offences only.-
Section 192 is placed with other sections which deal with cognizance of offences by criminal courts and, as far as the express provisions of the Code are concerned, they speak of cognizance only of offences. Section 192(1), however, speaks of "any case of which he (i.e. the Magistrate) has taken cognizance". The Courts have therefore been persuaded to hold that the power of transfer mentioned in section 192(1) includes the power to transfer all kinds of cases under the Code, and not only cases concerned with offences. In concrete terms, the decisions hold that not only an ordinary case under the Indian Penal Code can be thus transferred but also proceedings under sections 107 or 133 or 145 of the Criminal Procedure Code.
We take no exception to this interpretation. We feel, however, that it is a bit incongruous that this kind of power of transferring proceedings under section 107, Cr. P.C. should be included in a provision which in its proper context should deal only with "offences" and their cognizance. The power of transferring other proceedings necessary as it may b.-should be mentioned in a more suitable context. The language of section 192 should be changed to make it clear that it has nothing to do with transfer of a case other than a case involving an offence. The provision for transferring other kinds of cases will be placed in the Code elsewhere.
15.84. Revision recommended.-
We recommend that section 192 should be revised as follows.-
"192. Making over of cases to Magistrate.- (1) Any Chief Judicial Magistrate may, after taking cognizance of an offence, make over the case for inquiry or trial to any competent Magistrate subordinate to him.
(2) Any Magistrate of the first class empowered in this behalf by the Chief Judicial Magistrate may, after taking cognizance of an offence, make over1 the case for inquiry or trial to such other competent Magistrate as the Chief Judicial Magistrate may, by general or special order, specify."
1. Cf. section 528(2) and (4).
15.85. Section 193.-
Su.-section (2) of section 193 provides that Additional Sessions Judges and Assistant Sessions Judges shall try such cases only as the State Government may direct them to try or as the Sessions Judge of the division may make over to them for trial. It appears unnecessary to bring the State Government into what is, mainly, a matter of distribution of work among the courts in district, a matter of day to day control of the work of the courts which, as pointed out by the Supreme Court2, must rest with the High Court.
In Bombay, the power of the State Government to issue directions under this provision is exercisable only in consultation with the High Court. Even this restricted power need not be retained with the State Government. As it is, the distribution of cases is mainly attended to by the Sessions Judges and they should continue to do so under the overall control of the High Court. We recommend that the su.-section may be amended to rea.-
"(2) An Additional Sessions Judge or Assistant Sessions Judge shall try such cases only as the Sessions Judge of the division, by general or special order, may make over to him for trial or as the High Court, by special order may direct him to try."
15.86. Section 1.- original jurisdiction of High Court.-
Section 194 deals with the cognizance of offences by the High Court. We have discussed above in Chapter III the question whether the ordinary original criminal jurisdiction of the Calcutta High Court requires to be retained, and recommended that it should be abolished and that the City Sessions Court in Calcutta should have the same complete jurisdiction with regard to criminal cases as in Bombay and Madras. Since the other High Courts do not exercise ordinary original jurisdiction there is no need for su.-section (1) of section 194.
15.87. Section 194(2).-
Su.-section (2) of section 194 deals with a special procedure known as "information by the Advocate General". It provides that the Advocate General may exhibit information against persons to the High Court for all purposes for which Her Majesty's Attorney General may exhibit information on behalf of the crown in the High Court of Justice in England. This special procedure has been considered in England as too dilatory and too inconvenient to afford any satisfactory remedy1 and seems to have been used but rarely. The last such case2 to be filed in England was in 1910 in respect of a libel on the king. The procedure has since been abolished altogether.3
1. R. v. Davies, (1906) 1 KB 41.
2. R. v. Mylius, 1910.
3. The Criminal Law Act, 1967 (C.58), section 6(6).
15.88. Special procedure found unsuitable in India.-
In India also the procedure has seldom been used. The last case under this provision seems to be one filed in the Patna High Court in 1930. In that case,1 where information was exhibited against certain person for fabricating and giving false evidence on a capital charge, it was observed by the Privy Council that the procedure adopted "of an e.-officio information was unfortunate and undoubtedly prejudicial to the accused", and further that the case "did not differ from other cases of perjury and conspiracy which have been tried by the ordinary procedure and its result, it is to be hoped, will be to discourage the recourse to unusual procedure in similar cases in future".
In two other cases,2 both involving contempt of court, references were made to section 194(2) as for were raised in both cases that the proper procedure to be adopted for initiating contempt of court proceedings was the one prescribed in section 194(2). In both cases the Courts held that the procedure under section 194(2) is not to be preferred. This procedure which is not necessary and has so little to commend it, need not be retained, especially as the corresponding provision in English law on which it was modelled has been abolished.
1. Dzvarkanath v. Emit, AIR 1933 PC 124.
2. Advocate of Allahabad (in re:), AIR 1935 All 1; Tushakanti Ghosh (in re:), AIR 1935 Cal 419.
15.89. Repeal of section 194.- We would therefore recommend that section 194 be repealed.
15.90. Section 195 deals with prosecution for three different groups of offences, viz., contempt of lawful authority of public servants, certain offences against public justice and certain offences relating to documents given in evidence. The second and third groups are connected in that both of them affect the administration of justice. Clause (a) of su.-section (1) and su.-section (5) concern public servants, clauses (b) and (c) of su.-section (1), su.-section (2) and su.-section (3) concern the Courts, and su.-section (4) relates to both. It would, in our opinion, be conducive to clarity if the two subjects are dealt with in separate sections. We recommend that section 195 may be split up on the lines indicated above.