Report No. 41
3.8. Few Magistrates empowered under the section.-
It appears that only in four States, viz., Punjab, Haryana, Madhya Pradesh and Jammu & Kashmir, Magistrates have been empowered under section 30 and even in these States, except Jammu & Kashmir, the number so empowered is very small. There are four such Magistrates in Punjab, three in Haryana and only one in Madhya Pradesh. Five Presidency Magistrates have been empowered under section 30 in Bombay, but none in Calcutta, Madras or Ahmedabad.
3.9. Chief Judicial Magistrates to have enhanced powers of punishment.-
The object of the section is, of course, to reduce the volume of work before Courts of Session and to get the less important sessions cases disposed of more expeditiously by experienced Magistrates. We have recommended in the previous chapter that there should be a Chief Judicial Magistrate for each district. He would naturally be a senior and experienced Magistrate who could be safely entrusted with the power to impose punishment up to seven years' imprisonment. In the hierarchy of Judges and Magistrates in a district, the Chief Judicial Magistrate would normally hold the same rank as an Assistant Sessions Judge and be equally competent from the professional point of view.
After the separation of the executive from the judiciary, there would not be any objection to such a Magistrate trying serious cases and awarding sentences up to seven years simply because he is designated a Magistrate. It is further more desirable that, in addition to the administrative control and supervision which he would be expected to exercise over other Magistrates in the district, he should also be made responsible for the trial of important criminal cases.
The vesting of the Chief Judicial Magistrate in each district (and of the Chief Metropolitan Magistrate in each metropolitan area) with enhanced powers of punishment will give the necessary relief to the Sessions Courts and will, in our opinion, be advantageous from every point of view. If in any metropolitan area or other large district the number of cases which ought to be tried by the Chief Metropolitan Magistrate or the Chief Judicial Magistrate is large, one or more Additional Chief Metropolitan Magistrates or Additional Chief Judicial Magistrates may be appointed1 and invested2 by the High Court with the power to impose a sentence up to seven years' imprisonment.3
1. Section 11, above.
2. Section 16, above.
3. Section 32, below.
3.10. Retention of section 30 not necessary in view of revised Second Schedule.-
It is, however, unnecessary to retain section 30 in its present form or in a modified form. We propose to revise the Second Schedule drastically, enlarging the number of offences triable by Magistrates of the first class and pro tanto reducing the number of offences triable exclusively by the Court of Session. Broadly speaking, offences punishable with imprisonment for 7 years or less will be within the jurisdiction of Magistrates. Offences in respect of which only the Court of Session is mentioned in the Second Schedule as revised will all be offences which, by reason of their nature, should be tried only by that Court.
Even where the punishment does not exceed 7 years' imprisonment as is the case with a few of these offences1, they should be triable only by the Court of Session and it is not necessary to confer a special jurisdiction on the Chief Judicial Magistrate to try such offences. Some offences triable by a Magistrate of the first class under the Second Schedule are punishable with more than 7 years' imprisonment. The Chief Judicial Magistrates, being himself a Magistrate of the First Class, will be competent to try all these offences. A provision on the lines of section 30 empowering him to try as a Magistrate all offences not punishable with death or imprisonment for life or with imprisonment for a term exceeding seven years is therefore not required. Section 30 is accordingly proposed to be omitted.
1. Sections 124, 201, 211, 234, 308, 376, 402, 489C, 5000(A) and 502(A) of the Indian Penal code.
3.11. Section 31.- No change is required in section 31.
3.12. Sections 32 and 34 combined and revised.-
Sections 32 and 34 lay down the maximum sentences which Magistrates of different categories may pass. In view of the omission of section 30 proposed above, it would be desirable to combine the two sections. We have in the previous chapter recommended the abolition of third class Magistrates. When the separation of the executive from the judiciary is fully effected, a great majority of Magistrates will be legally qualified and trained members of the judiciary who can be entrusted with somewhat higher sentencing powers than they now have under section 32.
We propose that a Magistrate of the second class may pass a sentence of imprisonment not exceeding one year or of fine not exceeding rupees one thousand or both. Similarly, the powers of a Metropolitan Magistrate or of a Magistrate of the first class may be enhanced to three years as respects imprisonment and rupees five thousand as respects fine. The revised section 32 may be as follows.-
"32. Sentences which Magistrates may pass.- (1) A Chief Judicial Magistrate may pass any sentence authorised by law except a sentence of death or of imprisonment for life or of imprisonment for a term exceeding seven years.
(2) A Magistrate of the first class may pass a sentence of imprisonment for a term not exceeding three years, including such solitary confinement as is authorised by law, or of fine not exceeding five thousand rupees, or of both.
(3) A Magistrate of the second class may pass a sentence of imprisonment for a term not exceeding one year, including such solitary confinement as is authorised by law, or of fine not exceeding one thousand rupees, or of both."
3.13. Sections 33 and 35.- Sections 33 and 35 do not require any change of substance.
3.14. Sections 36 to 38 and 3rd and 4th Schedule.-omission recommended.-
Section 36 describes what are called the ordinary powers of District Magistrates, Su.-divisional Magistrates and Magistrates of the first, second and third class. These powers which accrue to these different categories of Magistrates directly from the provisions of the Code are catalogued in five different parts of the Third Schedule. Similarly, the Fourth Schedule sets out in a sizeable chart, the additional powers with which a Su.-divisional Magistrate or a Magistrate of the first, second or third class may be invested by the State Government or by the District Magistrate, as provided in particular sections of the Code.
While these two Schedules might have had some utility in the past for reference purposes, they are, from the statutory point of view, an unnecessary duplication. The nature and extent of the ordinary powers or of the additional powers have in every case to be ascertained from the particular section of the Code and the orders of the appropriate authority empowering the Magistrates either individually or as a class. There appears to be no point in maintaining sections 36 and 37 and carefully revising the Third and the Fourth Schedules after taking into account all the changes which are being proposed in the relevant sections and in the categories of Magistrates. We consider that these two sections and Schedules, and consequentially section 38 also, should be omitted.
3.15. Sections 39 to 41.-
In the last three sections of this Chapter which deal with the conferment, continuance and cancellation of powers, a reference to the High Court will have to be made in addition to the reference to the State Government, since in many places the. High Court is being made the authority for conferring powers in judicial matters. Similarly, su.-section (2) of section 41, should be amended to include the Chief Judicial Magistrate besides the District Magistrate."
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