Report No. 41
2.22. Sections 10 to 1.-Provisions for appointment of Judicial Magistrates separated.-
Sections 10 to 13 provide for the appointment in each district of the District Magistrate, Additional District Magistrates, Su.-divisional Magistrates and other subordinate Magistrates and for defining the local limits of their jurisdiction. In order to implement the scheme of separation of Executive Magistrates from the Judicial Magistrates, the provisions for the appointment of these two distinct categories of Magistrates will have to be separate. Those relating to Judicial Magistrates may be as follows.-
"10. Courts of Judicial Magistrates.- (1) In every district (not being a metropolitan area), there shall be established as many Courts of Judicial Magistrates of the first class and of the second class, and at such places, as the State Government may, in consultation with the High Courts, notify in the Official Gazette.
(2) The presiding officers of such Courts shall be appointed by the High Court.
11. Chief Judicial Magistrate and Additional Chief Judicial Magistrate.- (1) In every district (not being a metropolitan area), the High Court shall appoint a Judicial Magistrate of the first class to be the Chief Judicial Magistrate.
(2) The High Court may appoint any Judicial Magistrate of the first class to be an Additional Chief Judicial Magistrate and such Magistrate shall have all or any of the powers of a Chief Judicial Magistrate under this Code or under any other law for the time being in force as the High Court may direct."
In these two sections also, the word "appoin.- will bear the same connotation as in section 9 namely, the assignment of judicial officers in the cadre of Magistrates to particular districts and investing them with the powers of a Judicial Magistrate of the first or second class or with the powers of a Chief Judicial Magistrate, as the case may be.
2.23. Application of Articles 233 to 235 to Judicial Magistrates recommended.-
The separation of the executive from the judiciary will be effective only when the Judicial Magistrates are brought under the control of the High Court and this can be readily achieved by action under Article 237 of the Constitution. The provisions of Articles 233, 234 and 235 should be made applicable by a public notification of the Governor to all Judicial Magistrates in the State. We note that this action has already been taken in some States.
2.24. Number and location of courts to be determined by State Government in consultation with High Court.-
It will be observed that in the revised section 10 above, the power to determine the number of courts of Judicial Magistrates of either class and their location is left to the State Government since it will have to take into account various administrative and financial considerations. The State Government, however, is required to exercise this power in consultation with the High Court in order that an adequate number of Magistrates' courts is established in all districts and at suitable places.
2.25. Section 1.-Special Executive Magistrates not required.-
With regard to Special Magistrates dealt with in section 14 of the Code, the previous Report of the Commission recommended1 that there might be two categories, Special Judicial Magistrates and Special Executive Magistrates. On reconsideration, we do not think that there is likely to be any need for the latter, since the functions devolving on the Executive Magistrates under the revised Code are going to be very limited and, in any event, the State Government will have the power to appoint as many Executive Magistrates as it finds necessary for performing those functions.
As recommended) in the previous Report, the High Court should be the only authority to appoint Special Judicial Magistrates in any district or Special Metropolitan Magistrates in any metvopolitan area, and with this transfer of power to the High Court, su.-sections (3) and (4) of the existing section 14 are not necessary. The section may accordingly be revised as follows and placed after the revised section 11 above.-
"12. Special Judicial Magistrates.- (1) The High Court may confer upon any person who holds or has held any judicial post under the Union or a State or possesses such other qualifications as may be prescribed by the High Court in this behalf all or any of the powers conferred or conferrable by or under this Code on a Judicial Magistrate of the first class or of the second class, in respect to particular cases or to particular classes of cases or to cases generally, in any district not being a metropolitan area.
(2) Such Magistrates shall be called Special Judicial Magistrates and shall be appointed for such term as the High Court may by general or special order direct."
1. 37the Report, para. 119.
2.26. Section 1.-Local jurisdiction of Judicial Magistrates.-
Under section 12 the local limits of the jurisdiction of subordinate Magistrates are defined by the State Government, or, subject to its control, by the District Magistrate. So far as Judicial Magistrates, including Special Judicial Magistrates, are concerned, this power may be given to the Chief Judicial Magistrates subject to the control of the High Court. The revised section may be as follows.-
"13. Local jurisdiction of Magistrates.- (1) Subject to the control of the High Court, the Chief Judicial Magistrate may from time to time define the local areas within which the Magistrates appointed under section 10 or under section 12 may exercise all or any of the powers with which they may be invested under this Code.
(2) Except as otherwise provided by such definition, the jurisdiction and powers of such Magistrates shall extend throughout the district."
2.27. Section 1.-Benches of Judicial Magistrates.-
Section 15 provides for the formation and functioning of Benches of Magistrates in a very general way. In practice, however, Benches are only formed of Honorary Magistrates, i.e., persons who are appointed as Special Magistrates under section 14, and Stipendiary Magistrates are never asked to sit together as a Bench. As an institution, Benches of Honorary Magistrates are not much in favour but, provided the right type of educated and publi.-spirited persons come forward for rendering this service to the community and are chosen and appointed by the High Court, they can certainly give much valuable assistance to the har.-worked Stipendiary Magistrates. We would, therefore, retain the section in a simplified form.
The power to form Benches may be vested in the Chief Judicial Magistrate subject to the control of the High Court. It is hardly necessary to provide for the formation of a Bench consisting of some Special Magistrates invested with first class powers and some others with second class powers. Looking at it from the practical point of view, such a Bench is not usually formed; and in fact it does not appear to be very desirable that it should be formed and invested with the powers of a Judicial Magistrate of the first class.
Under section 16 the power to frame rules for the guidance of Benches is conferred on the State Government as well as on the District Magistrate subject to the control of the State Government. It is proposed that this power should be with the Chief Judicial Magistrate subject to the control of the High Court.
2.29. Sections 15 and 16 combined and simplified.-
Sections 15 and 16 may accordingly be combined and simplified as follows.-
"14. Benches of Judicial Magistrates.- (1) Subject to the control of the High Court, the Chief Judicial Magistrate may direct any two or more Special Judicial Magistrates of the same class to sit together as a Bench for trying cases, and every such Bench shall, for the purposes of this Code, be deemed to be a Judicial Magistrate of that class.
(2) Subject to the control of the High Court, the Chief Judicial Magistrate may make rules for the guidance of such Benches as respects
(a) the classes of cases to be tried;
(b) the times and places of sitting;
(c) the constitution of the Bench for conducting trials:
(d) the mode of settling differences of opinion which may arise between the Magistrate in session."
2.30. Sections 18 to 2.-Provisions revised for Metropolitan Magistrates' Courts.-
Sections 18 to 21 deal with the courts of Presidency Magistrates on lines not very different from those adopted in sections 10 to 15 in regard to courts of Magistrates in the districts. We have recommended above that, after the revision of the Code, the three Presidency Magistrates' Courts and the Ahmedabad City Magistrates' Court should be known as Courts of Metropolitan Magistrates.
At present Articles 233, 234 and 235 of the Constitution apply only in relation to the Chief Presidency Magistrate and the Additional Chief Presidency Magistrate (vide definition of "district judge" in clause (a) of Article 236), and not in relation to the other Presidency Magistrates and their Courts (even if the latter could be regarded as Courts different from the Court of the Chief Presidency Magistrate or the Court of an Additional Chief Presidency Magistrate). When the Code is revised and Presidency Magistrates are replaced by Metropolitan Magistrates, it will naturally be necessary for the Governor to issue a public notification under Article 237 directing the application of Articles 233, 234 and 235 to all Metropolitan Magistrates.