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Report No. 41

24.71. Petty theft should be compoundable.-

We have received a suggestion that the term relating to "theft where the value of property stolen does not exceed 250 rupees" should be omitted from the list in su.-section (2) of section 345. It is said that, after the offence of theft has been made compoundable to this limited extent in 1955, habitual thieves are taking advantage of it and escaping punishment.

This is not easy to understand. In such cases, it is very likely that the prosecution has mentioned in the chargesheet itself the previous convictions of the accused with a view to asking for enhanced punishment under section 75 of the Indian Penal Code, or, if for some reason it has initially failed to do so, it will bring the fact to the notice of the court when permission to compound the offence is sought. We do not think any harm is being done by the amendment of 1955 which has made petty thefts compoundable with the permission of the Court.

24.72. Compulsory labour not to be compoundable.-

We recommend that the offence of unlafwul compulsory labour punishable under section 374 of the Indian Penal Code, should not be compoundable and that this item should be omitted from the list in section 345(1).

24.73. Section 346.-

As it is possible that a Magistrate inquiring into or trying an offence may find that some other Magistrate should deal with the case; a provision is made in section 346 enabling the Magistrate to report the case to his superior, who can then deal with it himself, or transfer it to some other competent Magistrate. Want of jurisdiction is not mentioned in the section as a reason for presuming that "the case should be heard by another Magistrate", and some doubt has, on occasions, been expressed1 whether "lack of jurisdiction", is covered by section 346. We think it is, and we propose to make this clear by a suitable change in the language.

There may be cases which a subordin e Magistrate cannot dispose of but which the Chief Judicial Magistrate can e.g. a case relating to an offence punishable with imprisonment for a term t at may extend to 7 years. There is, at present, no provision empowering a subordinate Magistrate to refer such cases to the Chief Judicial Magistrate before or during trial. Such a provision would obviously be useful from the point of vie of reducing the work of Sessions Courts.

Presidency towns are expressly exclude from the scope of the section, but we think that it can be usefully extended to me ropolitan areas. Under our proposed scheme, the Chief Metropolitan Magistrate will have higher powers of trial and sentencing than ordinary Metropolitan Magistrates, and there are likely to be quite a few cases which an ordinary Metropolitan Magistrate cannot dispose of, but which should be referred to the Chief Metropolitan Magistrate for disposal instead of being committed to the City Sessions Court. We would, therefore, extend the section to metropolitan areas.

Section 346 is a provision, for the transfer of proceedings concerned with offences, i.e., inquiry into and trial of offences. We propose to make it clear that it is so limited, by adding the words "into an offence" after the word "inquiry".

Accordingly, section 346 may be revised as follows.-

"346. Procedure in cases which Magistrate cannot dispose of.- (1) If, in the course of any inquiry into an offence or a trial before a Magistrate in any district, the evidence appears to him to warrant a presumptio.-

(a) that he has no jurisdiction to try the case or commit it for trial, or

(b) that the case is one which should be tried or committed for trial by some other Magistrate in the district, or

(c) that the case should be tried by the Chief Judicial Magistrate, he shall stay the proceedings and submit the case, with a brief report explaining its nature, to the Chief Judicial Magistrate or to such other Magistrate having jurisdiction as the Chief Judicial Magistrate directs.

(2) The Magistrate to whom the case is submitted may, if so empowered, either try the case himself or refer it to any Magistrate subordinate to him having jurisdiction to commit it for trial."

1. State v. Pokker, AIR 1959 Ker 53 (Reviews case).

24.74. Procedure in cases which Magistrate cannot dispose of.-

Section 347 lays down the procedure when, after commencement of the inquiry or trial before a Magistrate, he finds that the case ought to be tried by the Court of Session. As all Magistrates will be competent to commit a case to the Court of Session and the reference to High Courts will have to be deleted, the section may be formally revised as follows.-

"347. If, in any inquiry into an offence or a trial before a Magistrate, it appears to him, at any stage of the proceedings before signing judgment that that case is one which ought to be tried by the Court of Session, he shall commit it to that Court under the provisions hereinbefore contained."

24.75. Section 348.-

Section 348 requires a Magistrate to commit to the Court of Session the case of any accused person liable to enhanced punishment under section 75 of the Indian Penal Code as a previous convict. In order to avoid unnecessary commitment to the Sessions Court, however, two exceptions have been provided in the section, (i) when a Magistrate having powers under section 30 of the Code is available to try the case, and (ii) when the Magistrate dealing with the case is of opinion that he will be able to inflict suitable punishment in case of conviction. No change of substance is necessary in this section, but it may be formally revised as follows.-

"348. Trial of persons previously convicted of offences against coinage, stam.-law of property.- (1) Where a person, having been convicted of an offence punishable under Chapter XII or Chapter XVII of the Indian Penal Code with imprisonment for a term of three years or upwards, is again accused of any offence punishable under either of those Chapters with imprisonment for a term of three years or upwards, and the Magistrate before whom the case is pending is satisfied that there is ground for presuming that such person has committed the offence, he shall be sent for trial to the Chief Judicial Magistrate or committed to the Court of Session, unless the Magistrate is competent to try the case and is of opinion that he can himself pass an adequate sentence if the accused is convicted.

(2) When any person is sent for trial to the Chief Judicial Magistrate or committed to the Court of Session under su.-section (1), any other person accused jointly with him in the same inquiry or trial shall be similarly sent or committed, unless the Magistrate discharges such other person under section 251A or section 253, as the case may be."

24.76. Section 349.-

Section 349 deals with the transfer of a case pending before a second or third class Magistrate if he thinks the accused guilty but meriting punishment which the Magistrate is not competent to impose. The case then goes to his superior who has to decide it on the merits. This provision is obviously necessary and useful. We propose to extend it to convictions before first class Magistrates also, so that they can report the case to the Chief Judicial Magistrates.

The latter have higher powers of sentencing, and it would be useful if cases tried by Magistrates of the first class could be sent to them for punishment, where the circumstances demand the imposition of a sentence higher than what a first class Magistrate can impose. At present, this is not possible, both because Magistrates of the first class are not mentioned in sub¬section (1), and because the proviso to su.-section (2) restricts the sentencing powers of the Magistrate to whom the case is forwarded. We consider both these restrictions to be unnecessary. Su.-section (1) may be revised as follows.-

"(1) Whenever a Magistrate x x x is of opinion, after hearing the evidence for the prosecution and the accused, that the accused is guilty and that he ought to receive a punishment different in kind from, or more severe than, that which the Magistrate is empowered to inflict, or, being Magistrate of the second class, is of opinion that the accused ought to be required to execute a bond under section 106, he may record the opinion and submit his proceedings and forward the accused to the Chief Judicial Magistrate to whom he is subordinate."

Apart from consequential changes in su.-sections (1A) and (2), the proviso to su.-section (2) may be omitted.

24.77. Section 350(1).-

Section 350 deals with "par.-heard cases", when one Magistrate who has partly heard the case is succeeded by another Magistrate, either because the first Magistrate is transferred and is succeeded by another, or because the case is transferred from one Magistrate to another Magistrate. The rule mentioned in section 350 is that second Magistrate need not r.-hear the whole case; he can start from the place the first Magistrate left it, unless of course he is of opinion that "further examination of any of the witnesses whose evidence has already been recorded is necessary in the interest of justice." The decision for a r.-hearing, thus, rests with the Magistrate, and this arrangement is, we think satisfactory.

The section is confined to cases in the Magistrate's Courts, and is inapplicable to the Courts of Session. We have considered the advisability of extending this rule to Sessions cases, as we understand that sometimes Sessions Judges are transferred, leaving behind par.-heard cases which have to be heard all over again. It would be an ideal position if such transfers did not take place, as Sessions cases are to be heard from da.-t.-day and decided within a few days.

It is obviously desirable that in serious cases the whole evidence should be heard by the Judge who finally decides the case. However, having regard to the realities of the situation, it is necessary to make some provision for cases where such transfers do take place, because a mandatory provision for a de novo trial may often cause considerable inconvenience and hardship. We, therefore, propose to extend the section to Judges of Sessions Courts by referring to "Judge or Magistrate" instead of "Magistrate" only.



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