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Report No. 87

VII. Recording of reasons for order of the Magistrate

5.29. Reasons for a direction under section 5.-

We have so far discussed, in regard to section 5, questions of a substantive nature mainly concerned with scope of the section. It is now necessary to consider matters of a procedural character. As the section stands at present, the magistrate is not required to give reasons for the direction made by him under the section1. It appears to us that there are several important considerations justifying the insertion of such a requirement.

In the first place, the section applies to "any person"-though, under the proviso, it is necessary that such person should at some stage have been under arrest. Its scope is thus fairly wide. In the second place, the section authorises the giving of a direction for the purpose of "any investigation or proceeding" under the Code. This also shows the width of its coverage. In the third place, the kind of action that may be directed under the section interferes with bodily integrity and refusal is attended by criminal penalties.2 Propriety, therefore, requires that reasons should be given for such a direction.

Apart from this one cannot overlook the emerging interpretation3 of "procedure established by law" (Article 21) that is now being developed by the Supreme Court. In view of this development, it is desirable that the section should incorporate such a safeguard as is suggested above. For all these reasons, we are including this amendment in the redraft of section 5 which we are recommending later in this Chapter4.

1. I.E. Gubbary v. Emperor, AIR 1936 Cal 65 (67).

2. Section 6.

3. See Appendix 3.

4. Para. 5.32, infra.



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