Report No. 41

Chapter II

Constitution of Criminal Courts and Offices

2.1. Separation of executive from judiciary by parliamentary legislation.-

The problem of separating the executive from the judiciary has been fully discussed1 in the previous Report. The Commission recommended2 that this separation should be effected by central legislation and we entirely agree with this recommendation. It is very desirable that the uniform Code of Criminal Procedure which has been evolved in the course of a century, should not be allowed to take different forms in different States. The se.-up of criminal courts, the distinction between Judicial and Executive Magistrates and their respective functions under the Code should, in our view, be the same in all the States and should be clearly laid down in the Code itself instead of being regulated as at present by executive orders in some States and special State legislation in others.

1. 37th Report, paras. 32 to 62.

2.2. Present position in States.-

Madras was the first State to work out a comprehensive scheme of separation of the judiciary from the executive and to initiate the reform even before the passing of the Constitution.1 Pursuant to the directive principle of State policy laid down in Article 50 of the Constitution, the States have been taking steps to form separate cadres of Judicial Magistrates, place them under the control of the High Court and make them independent of the executive.

In as many as seven States, viz., Maharashtra, Gujarat, Jammu and Kashmir, Mysore, Punjab, Haryana and West Bengal, the separation of the Judicial Magistrates from the Executive Magistrates has been brought about by amending the Code. In West Bengal, however, the recently passed Separation of Judicial and Executive Functions Act, 1968, has so far been brought into force only in the Presidenc.-town of Calcutta and in Hooghly District. In the other States (except Nagaland where the Code itself is not operative), separation of functions has been effected to a varying extent by executive orders on the lines originally adopted in Madras.

It appears to be complete in Andhra Pradesh, Assam (excluding the autonomous districts and the North East Frontier Tracts, where again the Code is not operative), Bihar, Kerala, Madras, Orissa and Rajasthan. The scheme is in operation in the greater part of Uttar Pradesh and Madhya Pradesh and it is only a question of time and of finding the requisite number of qualified judicial officers before it is brought into operation throughout these two States.

1. See 14th Report, Vol. II.

2.3. Present position in Union territories.-

As regards the Union territories, Chandigarh and a good part of Himachal Pradesh are covered by the Punjab Act. Executive orders, similar to those passed in Madras, are in force in Pondicherry. A Bill to provide for the separation of executive and judicial functions in the Union territories other than Chandigarh has been recently passed by Parliament, and the Act is expected to be brought into force and implemented in all the territories fairly soon.

2.4. No practical difficulty in central amendment of Code.-

We do not apprehend any serious practical difficulty in giving effect to the scheme of separation on a uniform basis by a central amendment of the Code. In areas where separation of the executive has not been effected, steps should be taken to do so by means of executive orders as in Madras, in anticipation of such central amendment.

2.5. Classification of Magistrate in previous Report too elaborate.-

The previous Report recommended1 that this amendment should provide for a broad classification of Courts of Magistrates into Courts of Judicial Magistrates and Courts of Executive Magistrates, for a further classification of Judicial Magistrates as Presidency Magistrates, Chief Judicial Magistrates, Judicial Magistrates of the first class, Judicial Magistrates of the second class, Judicial Magistrates of the third class and Special Judicial Magistrates, and for a parallel classification of Executive Magistrates as District Magistrates, Su.-divisional Magistrates, Executive Magistrates of the first class, Executive Magistrates of the second class, Presidency Magistrates especially empowered by the State Government and Special Executive Magistrates. We consider that any such elaborate classification is unnecessary and that a simpler scheme for the se.-up of Courts in all the States is both desirable and feasible.

1. 37th Report, paras. 94 to 103, new section 6A.

2.6. Executive Magistrates.-

As regards the Executive Magistrates, we do not see any point in maintaining the distinction of first and second class. The functions to be performed by Executive Magistrates under the Code are very few and they hardly admit of being divided into more important functions that will have to be performed by Executive Magistrates of the first class and less important ones that could be left to junior magistrates put in the second class. In fact, the da.-t.-day, routine work of an Executive Magistrate under the Code arising in any su.-division may not require more than one officer to handle. We notice that in Bombay, according to the amendment of the Code made in 1951, Executive Magistrates are not divided into those of the first class and of the second class nor is there a division of functions between senior and junior Magistrates.

Provision is made for a category designated Taluka Magistrates who are presumably subordinate revenue officers in charge of talukas. We propose that there need be only one class of Executive Magistrates under the Code, that the chief officer in charge of the administration of the district (whether known as District Collector, District Officer or Deputy Commissioner) should continue, as at present, to be the District Magistrate, and that the institution of Su.-divisional Magistrates on the executive side should also be retained. If there is need for an Executive Magistrate at the taluka or tahsil level in any State, an executive or revenue officer of the Government can be appointed simply as Executive Magistrate to exercise functions under the Code.

2.7. Judicial Magistrate.-abolition of third class recommended.-

As regards the classes of Judicial Magistrates, the view was expressed in the previous Report1 that the institution of third class Magistrates might be necessary for purposes of training and its retention was recommended. We, however, find that in many States there are no Magistrates of the third class at all. In the States where separation of the executive from the judiciary has been effected, civil judicial functions and magisterial functions are ordinarily combined in the same officer and, even for purposes of initial training it is hardly necessary that a civil judge or munsif should start with the very limited jurisdiction and powers now available to a Magistrate of the third class under the Code. We are of the opinion that this class could be safely abolished.

1. Ibid., para. 93.

2.8. Chief Judicial Magistrate for every district.-

In the previous Report1 it is recommended that in every district there should be a Chief Judicial Magistrate, mainly to take the place of the District Magistrate on the judicial side and to exercise proper supervision and control over the work of all other judicial Magistrates in the district. This has been provided for in the Punjab Act and we have no doubt that this is a better system than the Bombay system under which all Judicial Magistrates are directly subordinate to the Sessions Judge. Because of the diverse and important nature of the work which the District and Sessions Judge has to do, he has little time to spare for inspecting Magistrates' courts and giving guidance to them in their work. We are of the opinion that this important task can be performed best by a Chief Judicial Magistrate who will naturally be in closer touch with the Judicial Magistrates in the district than the Sessions Judge.

1. 37th Report, para. 99.

2.9. No need for Su.-divisional Magistrates (Judicial).-

There, however, appears to be no need for a special category of Su.-divisional Magistrates on the judicial side. We notice that in the eastern States, particularly Bihar and West Bengal, where the revenue districts are large and the Su.-divisional system of administration is of long standing, the Su.-divisional Magistrate coordinates and distributes the work among the other Magistrates working in the su.-division and exercises a certain measure of superintendence over them.

In these States wherever considered necessary, an Additional Chief Judicial Magistrate may be posted at Su.-divisional Headquarters. Provision for the appointment of one or more Additional Chief Judicial Magistrates in a district has been recommended in the previous Report and we think that this category of senior and experienced Magistrates could be utilised to serve the same purpose as Su.-divisional Magistrates do at present in these States.

2.10. Proposed se.-up of Magistrates' Courts in districts.-

We accordingly propose that in every district (outside the Presidenc.-towns) it is sufficient to have three categories of Magistrates, namely, Judicial Magistrates of the first class, Judicial Magistrates of the second class and Executive Magistrates. Every district will have a Chief Judicial Magistrate who will have all the powers of a Judicial Magistrate of the first class and certain additional powers which we shall discuss in the next chapter. Where found necessary, one or more Judicial Magistrates of the first class may be appointed as Additional Chief Judicial Magistrates. On the executive side there will continue to be the District Magistrate at the head, Additional District Magistrates to the extent found necessary in large districts and Su.-divisional Magistrates as at present.