Report No. 41
2.31. Revised sections.-
In lieu of existing sections 18 to 21 of the Code, the following sections may be put in this Chapter, immediately after the revised section 14 proposed above.-
"15. Courts of Metropolitan Magistrates.- (1) In every Metropolitan area there shall be established as many Courts of Metropolitan Magistrates, and at such places, as the State Government may in consultation with the High Court, notify in the Official Gazette.
(2) The presiding officers of such Courts shall be appointed by the High Court.
16. Chief Metropolitan Magistrates.- (1) The High Court shall appoint a Metropolitan Magistrate to be the Chief Metropolitan Magistrate for the area.
(2) The High Court may appoint any Metropolitan Magistrate to be an Additional Chief Metropolitan Magistrate and such Magistrate shall have all or any of the powers of a Chief Metropolitan Magistrate under this Code or under any other law for the time being in force as the High Court may direct.
17. Special Metropolitan 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 Metropolitan Magistrate in respect to particular cases or to particular classes of cases or to cases generally, in any metropolitan area.
(2) Such Magistrates shall be called Special Metropolitan Magistrates and shall be appointed for such term as the High Court may by general or special order direct.
18. Benches of Metropolitan Magistrates.- (1) Subject to the control of the High Court, the Chief Metropolitan Magistrate may direct any two or more Special Metropolitan Magistrates 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 Metropolitan Magistrate.
(2) Subject to the control of the High Court, the Chief Metropolitan Magistrate may make rules for the guidance of such Benches as respect.-
(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 Magistrates in session."
2.32. Provisions for Executive Magistrates.-
The appointment of Executive Magistrates and the definition of their local jurisdiction may be provided for separately in two sections as follows.-
"19. Executive Magistrates.- (1) In every district, the State Government may appoint as many persons as it thinks fit to be Executive Magistrates and shall appoint one of them to be the District Magistrate.
(2) The State Government may appoint any Executive Magistrate to be an Additional District Magistrate, and such Additional District Magistrate shall have all or any of the powers of a District Magistrate under this Code or under any other law for the time being in force as the State Government may direct.
(3) The State Government may place an Executive Magistrate in charge of a su.-division and relieve him of the charge as occasion requires. Such Magistrate shall be called Su.-divisional Magistrates.
20. Local limits of Executive Magistrates' Jurisdiction.- (1) Subject to the control of the State Government, the District Magistrate may fro.- time to time define local areas within which Executive Magistrates 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."
2.33. Section 11 omitted.-
We do not think that a provision similar to section 11 is practically necessary. Even if a temporary hiatus in the office of a District Magistrate is allowed by the State Government to occur, which itself is unlikely, it will not be very material so far as his functions under the Code are concerned.
2.34. Section 17 replaced by four new sections.-
Reverting to existing section 17 of the Code which deals with the subordination of Courts, it is proposed, for the sake of greater clarity, to replace it by four sections as follows.-
"21. Subordination of Assistant Sessions Judges.- (1) All Assistant Sessions Judges shall be subordinate to the Sessions Judge in whose Court they exercise jurisdiction.
(2) The Sessions Judge may, from time to time, make rules consistent with this Code as to the distribution of business among such Assistant Sessions Judges.
(3) The Sessions Judge may also make provision for the disposal of any urgent application, in the event of his absence or inability to act, by an Additional or Assistant Sessions Judge, or, if there be no Additional or Assistant Sessions Judge, by the Chief Judicial Magistrate, and such Judge or Magistrate shall have jurisdiction to deal with any such application.
22. Subordination of Judicial Magistrates.- (1) Chief Judicial Magistrates shall be subordinate to the Sessions Judge; and all Judicial Magistrates shall, subject to the general control of the Sessions Judge, be subordinate to the Chief Judicial Magistrate.
(2) The Chief Judicial Magistrate may, from time to time, make rules or give special orders consistent with this Code as to the distribution of business among such Magistrates and Benches.
23. Subordination of Metropolitan Magistrates.- (1) All Metropolitan Magistrates, other than the Additional Chief Metropolitan Magistrates, shall be subordinate to the Chief Metropolitan Magistrate.
(2) The High Court may, for the purposes of this Code, define the extent of the subordination, if any, of the Additional Chief Metropolitan Magistrates to the Chief Metropolitan Magistrate.
(3) The Chief Metropolitan Magistrates may, from time to time, make rules or give special orders consistent with this Code as to the distribution of business among Metropolitan Magistrates and as to allocation of business to Additional Chief Metropolitan Magistrates.
24. Subordination of Executive Magistrates.- (1) All Executive Magistrates, other than Additional District Magistrates, shall be subordinate to the District Magistrate, and every Executive Magistrate (other than a Su.-divisional Magistrate) exercising powers in a su.-division shall also be subordinate to the Su.-divisional Magistrate, subject, however, to the general control of the District Magistrate.
(2) The District Magistrate may, from time to time, makes rules or give special orders consistent with this Code as to the distribution of business among the Executive Magistrates subordinate to him and as to allocation of business to an Additional District Magistrate."
2.35. Sections 22 and 2.- Justices of the Peace.-
Section 22 empowers the State Government to appoint Justices of the Peace and section 25 declares the Judges of High Courts, Sessions Judges, District Magistrates and Presidency Magistrate to be Justices of the Peace e.-officio. In the previous Report, the Commission recommended1 that the appointment of Justices of the Peace under section 22 should be made in consultation with the High Court and that such Justices should be citizens of India. While we agree with the latter recommendation, we do not think it necessary that the High Court should be consulted in regard to appointments to an office the functions of which are not essentially, or even mainly, of a judicial character.
At present, except in Bombay and West Bengal, the powers and duties of a Justice of the Peace are not defined by law. We agree that this lacuna in the Code should be filled as recommended2 in the previous Report.
Under section 25, Judges of the High Court are, at present, e.-officio Justices of the Peace for the while of India. We think that it is not necessary to retain this part of the section, as being Justices of the Peace does not add to the dignity of Judges of the High Court. We do not think it necessary to add to the list of e.-officio Justices of the Peace as recommended in the previous Report3.
In lieu of sections 22 and 25, the following sections may be included in this Chapter.-
"25. Justices of the Peace.- (1) In virtue of their respective offices, Sessions Judges, Chief Metropolitan Magistrates, Chief Judicial Magistrates and District Magistrates are Justices of the Peace within and for the whole of the State in which they are serving.
(2) The State Government may, by notification in the Official Gazette, appoint any person resident in the State, being a citizen of India, to be a Justice of the Peace within and for the local area specified in the notification.
26. Powers of Justices of the Peace.- (1) A Justice of the Peace shall have, within the area for which he is such Justice, the power of arrest conferred on a police officer by section 54 and on an office.-i.-charge of a police station by section 55.
(2) A Justice of the Peace making an arrest in exercise of any such power shall forthwith take or cause to be take a the person arrested before the office.-i.-charge of the nearest police station and furnish such officer with a report as to the circumstances of the arrest; and such officer shall thereupon r.-arrest the person.
(3) A Justice of the Peace shall have, within such area, power to call upon any police officer to aid hi.-
(a) in taking or preventing the escape of any person who has participated in the commission of any cognizable offence or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists of his having so participated;
(b) in the prevention of crime in general and, in particular, in the prevention of a breach of the peace or a disturbance of the public tranquility.
(4) Where a police officer has been called upon by a Justice of the Peace to render aid under su.-section (3), such call shall be deemed to have been made by an authority competent to make the call.
(5) Subject to such rules as may be made by the State Government, a Justice of the Peace for a local area may, when so requested in writing by a police officer investigating an offence committed within that area, record any statement made by a person in respect of whom an offence affecting the human body is believed to have been committed, being a statement relating to the circumstances of the offence or of the transaction which resulted in the offence. Such statement shall be recorded in the manner hereinafter prescribed for recording the evidence of a witness in the trial of a warrant case.
(6) A Justice of the Peace for any local area, not being a legal practitioner, may, in accordance with such rules as may be made by the State Governmen.-
(a) issue a certificate as to the identity of any person residing within such area, or
(b) verify any document brought before him by any such person, or
(c) attest any such document required by or under any law for the time being in force to be attested, by a Magistrate; and until the contrary is proved, any certificate so issued shall be presumed to be correct, any document so verified shall be deemed to be duly verified, and any document so attested shall be deemed to have been attested by a Magistrate."
1. 37th Report, para. 138.
2. 37th Report, paras. 139 and 140.
3. 37th Report, para. 142.