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Report No. 41

32.9. Changes necessary in view of separation of judiciary.-

Because of the separation of the judiciary from the executive, some changes have to be made in the revisional powers of the courts. The Chief Judicial Magistrate will, of course, in respect of the judicial magistrates exercise the powers now vesting in the District Magistrate; but in respect of executive Magistrates exercising certain judicial functions, power must remain with the District Magistrate, and we are providing for that.

It is not, however, proper that the Magistrate, who will now be an executive officer only, should have the power to finally decide anything. His power will be limited to sending a report to the High Court for decision, with his recommendation. The Sessions Judge, however, will have power in respect of all Magistrates. In the result, section 435 will have to be revised as follows.-

"435. Power to call records of inferior courts.- (1) The High Court or any Sessions Judge or Chief Judicial Magistrate may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purposes of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of such inferior Court and may, when calling for such record, direct that the execution of any sentence or order be suspended, and, if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.

Explanatio.-All Magistrates, whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this su.-section and of section 437.

(2) If an application under su.-section (1) has been made either to the Sessions Judge or to the Chief Judicial Magistrate, no further application shall be entertained by the other of them.

(3) The District Magistrate shall have and may exercise all the powers of the Sessions Judge under su.-section (1) in respect of any proceeding before an Executive Magistrate.

(4) If an application under this section has been made either to the Sessions or to the District Magistrate, no further application shall be entertained by the other of them.

32.10. Revision of order dismissing a complaint.-

One suggestion made to us regarding section 436 was that, before an order dismissing a complaint under section 203 is disturbed, notice should go to the accused person so that he can urge what he likes in support of the dismissal order. This, was sought to be supported by the principle of natural justice. We do not, however, see how such an accused person can be called a "party to the proceedings" at that stage, and the Supreme Court has ruled1 that it is hardly proper to permit him to intervene in the proceedings.

Further, in a number of cases, it will happen that notice to him will mean unnecessary trouble and expense to a person who may be wholly innocent. If a Magistrate has, on considering the facts, found that there is no ground for proceeding against any person and therefore dismissed the compliant summarily, there is hardly any reason for the revising Court to call any one to Court as an accused or as a respondent until of course, after a further inquiry has been made, and that inquiry justifies the issuing of process.

1. Chandre Deo, AIR 1963 SC 1430: (1964) 1 SCE 639.

32.11. Only a few formal amendments are required in sections 436, 437 and 438, as follows.-

(i) In section 436, for the words "District Magistrate" the words "Chief Judicial Magistrate" shall be substituted.

(ii) In section 437, for the words "District Magistrate" the words "Chief Judicial Magistrate" shall be substituted; for the words "committed for trial" the words "committed to the Court of Session for trial" shall be substituted; and in the proviso for the words "why the commitment should not be made" the words "why the order should not be made" shall be substituted.

(iii) In section 438(1), after the words "Sessions Judge" the words "Chief Judicial Magistrate" shall be inserted.

32.12. Section 439(3) to. be omitted.-

Section 439 empowers to revise any order made by a Criminal Court, and to do so not only if moved by a party or by the Sessions Judge or the District Magistrate, but also on its own motion irrespective of how the order may have come to its notice. Su.-section (3) provides that the High Court may not impose any sentence heavier than might have been inflicted by a first class Magistrate, unless the sentence under revision was passed by a Magistrate acting under section 34, in which case there is no such limitation.

The ordinary rule in respect of an appellate court is that it cannot impose a sentence heavier than the trial court could have done1; and we think that the same limitation should apply when the revisional power of the High Court is exercised. We propose to do this by deleting su.-section (3) from section 439, and thus leaving the High Court with the ordinary powers of an Appellate Court. As all such Courts will have the power to enhance a sentence on proper appeal,3 the words "and may enhance the sentence" will be omitted from section 439(1).

1. fagot Bahadur, AIR 1966 SC 945 (947): (1966) 2 SCR 822.

2. See paras. 31.39 to 31.43 above.

32.13. Section 439(6) to be omitted.-

Su.-section (6) of section 439 says that a person required to show cause why his sentence should not be enhanced is entitled to sh6w that his conviction is unsustainable although he may not have appealed against his conviction. The principle underlying this rule is sound; but as we are separately providing for "enhancement of sentence" through an appeal,1 this su.-section would be redundant, and we, therefore, propose to omit it.

There was a suggestion2 that the High Court should have power under section 439 to convert an order of acquittal into one of conviction. We do not think that that would be at all proper. An order of acquittal is, on appeal, capable of being altered to an order of conviction3, and that is sufficient for dealing with erroneous acquittals.

No other change is necessary in the scheme of revisional powers.

1. See para. 31.39 to 31.43 above.

2. Home Ministry File No. F. 27/3/5.-Judl. II, App. 1, Item 76 (Suggestion of the Inspector General of Police, Orissa).

3. Section 417.

32.14. Section 44.-finally revised.-

Section 440 may be finally revised to read as follows.-

"440. Option of court to hear parties.- Save as otherwise expressly provided by this Code no party has any right to be heard either personally or by pleader before any Court when exercising its powers of revision but the Court may, if it thinks fit, when exercising such powers, hear any party either personally or by pleader..........."

32.15. Sections 44.-442.- Sections 44.-442 need no change.



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