Report No. 41
2.11. Presidency Magistrates.-
In the previous Report1 as well as in the earlier Fourteenth Report,2 the Law Commission has recommended the continuance of the special class of Judicial Magistrates known as Presidency Magistrates functioning in the three Presidency towns. At the same time, the Commission stressed3 that only persons of special merit should be appointed as Presidency Magistrates. The high standard for recruitment to this cadre which prevailed until not very long ago is apparently not being maintained, which is unfortunate. However, we agree that the administration of criminal justice in large cities requires a measure of special treatment.
The Magistrates there ought to be better qualified and more competent to deal expeditiously with sophisticated crimes, particularly in the soci.-economic field, which are more common in the cities. Apparently from this point of view, Gujarat found it necessary to have special Magistrates for the city of Ahmedabad and enacted the Ahmedabad City Courts Act, 1961, under which the City Magistrates were equated in all respects with the Presidency Magistrate of Bombay. Other large cities like Delhi, Bangalore and Hyderabad might hereafter feel the same need.
1. 37th Report, paras. 69 and 101.
2. 14th Report, Vol. II.
3. 37th Report, para. 69.
2.12. Name to be changed.-
We therefore propose that the institution of Presidency Magistrates should be maintained in the Code. Presidencies having disappeared from the political map of India more than 30 years ago, it is archaic to refer to Calcutta, Bombay and Madras as "Presidenc.-towns", and it will be a misnomer to call other large cities by that name. These areas may more appropriately be referred to as "metropolitan areas" and the special class of Magistrates functioning therein as "Metropolitan Magistrates".
2.13. Power to declare metropolitan areas and set up Metropolitan Magistrates' Courts.-
It should be provided in the Code that a State Government may by notification declare any area in the State comprising a city whose population exceeds one million to be a metropolitan area, and then set up as many Courts of Metropolitan Magistrates for that area as it thinks fit. The State Government should have the power to extend, reduce or alter the boundaries of the area from time to time as changed circumstances may require, but not in such manner as to reduce its population to less than one million. The three Presidenc.-towns and the city of Ahmedabad would automatically become metropolitan areas under the proposed amendment.
As regards the city of Calcutta, we have pointed out the anomaly that exists at present purely on account of historical reasons. The original limits of this "Presidenc.-town" still form the limits of the local jurisdiction of the City Sessions Court and of the Presidency Magistrates' Courts despite the enormous growth of the city. It would be open to the State Government to extend the limits of the "metropolitan area" of Calcutta by a notification under the new provision and thereby to remove the anomaly, either completely, or to such extent as may appear to be desirable.
2.13a. Executive Magistrates in Metropolitan areas.-
In the Presidenc.-towns there are at present no officers corresponding to District Magistrates and Sub divisional Magistrates, although under section 7(4) every presidenc.-town is deemed to be a district for the purpose of the Code. In Bombay, some Presidency Magistrates are specially invested with the powers of an Executive Magistrate under the Code. There seems to be no good reason for making this distinction in regard to metropolitan areas. As every such area will be a separate district, it may have the same se.-up on the executive side as any other district, and the functions of the Metropolitan Magistrates under the Code may be exactly the same as those of Judicial Magistrates in any other district.
2.14. Territorial divisions.-
Sections 7 and 8 deal with the territorial divisions of a State (which term includes a Union territory) for the purposes of administering criminal justice. Although su.-section (1) of section 7 provides that "every State (excluding the presidenc.-towns) shall be a sessions division, or shall consist of sessions divisions", the exclusion has become meaningless after the establishment of City Sessions Courts under special State Acts. Each of the Presidenc.-towns is now a sessions division for the purposes of the Code and the State Acts have made the requisite amendment in the su.-section.
For instance, as amended by Bombay Act 23 of 1951, the su.-section reads, "The State of Bombay shall consist of sessions divisions; and every sessions division shall, for the purposes of this Code, be a district or consist of districts." Su.-section (4) of section 7 already provides that every Presidenc.-town shall be deemed to be a district, with the result that at present every Presidenc.-town is a district as well as a sessions division, and the rest of the State in which the Presidenc.-town is situated has to be divided by the State Government into one or more sessions divisions and each sessions division into one or more districts.
2.15. Su.-divisions in metropolitan areas.-
Under su.-section (1) of section 8, a Presidenc.-town may not be divided into su.-divisions, but the State Government is authorised to divide other districts into su.-divisions. There appears to be no good reason for this special exclusion of Presidenc.-towns in regard to a purely discretionary power. It is quite conceivable that in an area declared to be a "metropolitan area" in future, the State Government may find it convenient to create su.-divisions and to appoint Executive Magistrates separately for such su.-divisions.
2.16. Revised sections 6, 7 and 8.-
We propose, in the light of the foregoing discussion, the following revised provisions in place of the existing sections 6, 7 and 8 of the Code.-
"6. Classes of criminal courts.-Besides the High Courts and the Courts constituted under any special law, there shall be in every State the following classes of Criminal Courts, namely.-
(i) Courts of Session;
(ii) Judicial Magistrates of the first class;
(iii) Judicial Magistrates of the second class; and
(iv) Executive Magistrates, and in addition, in every State having a metropolitan area, Metropolitan Magistrates.
"7. Territorial divisions.-(1) Every State shall be a sessions division or shall consist of sessions divisions; and every sessions division shall, for the purposes of this Code, be a district or consist of districts:
Provided that every metropolitan area shall, for the said purposes, be a separate sessions division and district.
(2) The State Government, in consultation with the High Court, may alter the limits or the number of such divisions and district.
(3) The State Government may divide any district into su.-divisions and may alter the limits or the number of such su.-divisions.
(4) The sessions divisions, districts and su.-divisions existing in a State when the Code of Criminal Procedure (Amendment) Act, 197., comes into force therein shall be deemed to have been formed under this section.
8. Metropolitan areas.- (1) The State Government may, by notification in the Official Gazette, declare that, as from such date as may be specified in the notification, any area in the State comprising a city whose population exceeds one million shall be a metropolitan area for the purposes of this Code.
(2) As from the commencement of this Code, each of the Presidenc.-towns of Bombay, Calcutta and Madras and the city of Ahmedabad shall be deemed to be an area notified under su.-section (1) to be a metropolitan area.
(3) The State Government may, by notification in the Official Gazette, extend, reduce or alter the limits of, a metropolitan area, but not in such manner as to reduce its population to less than one million."
2.17. Appointment of Sessions Judges.-
Section 9 provides for the establishment of a Court of Session for every sessions division and for the appointment of judges to that Court. As the section stands at present, it is the duty of the State Government to establish the Court of Session and to appoint the Sessions Judge. The State Government is further empowered to appoint Additional and Assistant Sessions Judges to exercise jurisdiction in the Court, to appoint the Sessions Judge of one sessions division to be at the same time an Additional Sessions Judge of another sessions division and to direct at what place or places the Court shall ordinarily hold its sittings.
2.18. Constitutional position.-
In the State of Assam v. Ranga Muhammad, (1967) 1 SCR 454: AIR 1967 SC 903, the Supreme Court decided that the transfer of "district judges" already in the cadre from one district to another in the State must be regarded as part of the "control over district courts" referred to in Article 235 of the Constitution and as such, the power to direct such transfers is vested exclusively in the High Court. Such transfers and the "postings" involved therein are outside the scope of the power conferred on the Governor of the State by Article 233.
The word "posting" may mean either the stationing of an employee at a particular place or the assignment of an appointee to a particular position or job. According to the Supreme Court, the word "posting", occurring as it does in association with the words "appointment" and "promotion", clearly bears the second meaning. "These words indicate the stage when a person first gets a position or job and 'posting' by association means the assignment of an appointee or promotee to a position in the cadre of district judge."1
1. State of Assam v. Ranga Muhammad, (1967) 1 SCR 454: AIR 1967 SC 903.
2.19. Commission's previous recommendation.-
In view of this decision, the Law Commission took up for urgent consideration the question whether section 9 required to be modified in order to bring it into line with the Constitution and made its recommendation in the 32nd Report. Briefly put, the Commission took the view that all the functions in relation to a Court of Session, except its initial establishment, and in relation to the Judges of the Court mentioned in section 9, are functions of "control over the district courts" and consequently the relevant powers must be vested in the High Court.
It recommended that su.-section (1) of section 9 should be split into two parts, the first stating that "the State Government shall establish a Court of Session for every sessions division", and the second stating that "the High Court shall appoint a Judge of such Court". In the other su.-sections of section 9, "High Court" should be substituted for "State Government".
2.20. Connotation of "appoint" in section 9.-
We have considered the awkwardness involved in making the High Court the competent authority for "appointing" the Sessions Judges, Additional Sessions Judges and Assistant Sessions Judges under su.-sections (1) and (3) of section 9. The two su.-sections when so worded, will strike one as being inconsistent with Article 233, but the inconsistency is more apparent than real.
We have to understand the "appointments" referred to in section 9 of the Code, not as the first appointment to the cadre of Sessions Judges, Additional Sessions Judges or Assistant Sessions Judges, but as the process of assigning or posting officers already in the cadre to a specified Sessions Court. It is not easy to find a more appropriate expression than "appoint" for the purposes of section 9, and since the section will have to be read and construed in the light of Article 233, no practical or legal difficulty can arise by using the word "appoint".
2.20a. It has been brought to our notice that occasionally, owing to the sudden transfer or demise of the Sessions Judge and delay in the choosing and posting of his successor, the sessions division remains without a Judge for a considerable period causing great hardship and inconvenience to the public. Section 17(4) which enable the Sessions Judge to make provision for the disposal of urgent applications "when he himself is unavoidably absent or incapable of acting" cannot obviously be pressed into service in this contingency as the previous incumbent has ceased to be the Sessions Judge and there is no one in the sessions division to make the necessary formal order. It appears desirable that an express provision should be included in section 9 enabling the High Court to take action in such a contingency.
2.21. We accordingly propose that section 9 be revised to read as follows.-
"9. Court of session.- (1) For every sessions division, there shall be a Court of Session, the Judge of which shall be appointed by the High Court.
(2) The Court of Session shall ordinarily hold its sitting at such place or places as the High Court may by notified order specify; but if, in any particular case, the Court of Session is of opinion that it will tend to the general convenience of the parties and witnesses to hold its sitting at any other place in the session division, it may, with the consent of the prosecution and the accused, sit at that place for the disposal of the case or the examination of any witness or witnesses therein.
(3) The High Court may also appoint Additional Sessions Judges and Assistant Sessions Judges to exercise jurisdiction in a Court of Session.
(4) The Sessions Judge of one sessions division may be appointed by the High Court to be also an Additional Sessions Judge of another division, and in such case he may sit for the disposal of cases at such place or places in either division as the High Court may direct.
1(5) Where the office of the Sessions Judge is vacant, the High Court may make provision for the disposal of any urgent application by an Additional or Assistant Sessions Judge, or, if there be no Additional or Assistant Sessions Judge, by a Chief Judicial Magistrate, in the sessions division; and such Judge or Magistrate shall have jurisdiction to deal with any such application."
1. Existing su.-section (5) of section 9 has been omitted as being spend and no longer necessary.
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