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Report No. 67

Chapter 23

Procedure in Regard to Offences-Sections 70-72

23.1. Introductory.-

There are three sections dealing with procedure in regard to offences-sections which constitute modifications of, or additions to, the general provisions of the Code of Criminal Procedure, 1973. They deal with-

(i) the conditions requisite for the initiation and continuance of proceedings,

(ii) the Court competent to try the offence, and

(iii) the venue.

23.2. Section 70.-

The conditions requisite for the initiation and continuance of proceedings are to be found in section 70. A large number of matters are mixed up in that section. Under sub-section (1), no prosecution in respect of any offence punishable under this Act or any Act hereby repealed, shall be instituted without the sanction of the Collector or such other officer as the State Government generally, or the Collector specially, authorises in that behalf. Under sub-section (3), the Chief Controlling Revenue Authority, or any officer generally or specially authorised by it in this behalf, may "stay any such prosecution or compound any such offence". It may be noted that this sub-section really comprises two topics: (i) compounding and (ii) stay. Under sub-section (2), "the amount of any such composition shall be recoverable in the manner provided by section 48".

23.3. Section 70(2) to be amended.-

We have no comments on section 70(1). As regards section 70(2), we think that the authority competent to initiate and the authority competent to compound under sub-section (2) should not be different1, and, therefore, the Collector should also have power to compound an offence under sub-section (2), since he is the person who ordinarily sanctions prosecutions. He is in the know of facts, and is conversant with the general policy for the initiation of prosecutions. He should, logically, be empowered to determine whether or not the offence should be compounded. It is, therefore, desirable that the Collector should be added in sub-section (2), while retaining the present authorities.

1. Cf. section 279, Income-Tax Act, 1961.

23.4. Criticism of Provision as to stay in section 70(2).-

While we see no objection to the power given to the Chief Controlling Revenue Authority and others regarding the institution of prosecutions and compounding, we have serious objection to the present provision as to "stay" in sub-section (2). The word "stay" in this sub-section has led us to a consideration of the important principle involved. We do not think that in this context, the power of "staying the proceedings" is appropriately vested in an executive officer. It is for the court to adjourn its proceedings from time to time when the exigencies of its business or other considerations of justice require.

An executive officer should not be given the power of staying judicial proceedings. Perhaps, what the legislature intended was withdrawal of the prosecution. If so, the word "stay" is inappropriate and in any case, such withdrawal can be safely left to be dealt with by the general provision in the Code of Criminal Procedure, 1973. We may mention that the suggestion put in our Questionnaire1 was that the stay under section 70 should be by the court, and not by the Collector, and that section 70(2) should be amended for the purpose. That has received general approval in the replies to the Questionnaire. Although what we are recommending is slightly different from what we put in the Questionnaire, there is identity of approach between the two.

1. Q. 69.

23.5. Recommended re-draft.-In the light of the above discussion, we recommend that section 70 should be revised as under:

"70(1). No prosecution in respect of any offence punishable under this Act1 shall be instituted without the sanction of the Collector or such other officer as the State Government generally, or the Collector specially, authorises in that behalf.

(2) The Chief Controlling Revenue Authority, or the Collector or an officer specially authorised by the Chief Controlling Revenue Authority in this behalf, may compound any such offence.

(3) The amount of any such composition shall be recoverable in the manner provided by section 48".

1. Reference to repealed Act is omitted.

23.6. Recommendation to delete section 71.-

It is provided by section 71 that no Magistrate other than a Presidency Magistrate or a Magistrate whose powers are not less than those of a Magistrate of the second class, shall try any offence under this Act. The net effect of this section is that a Magistrate of the third class cannot try an offence under the Act. Under the revised Code of Criminal Procedure,1 there are no third class Magistrates. We therefore recommend that the section should be omitted.

1. The Code of Criminal Procedure, 1973.

23.7. Section 72-Introductory.-

Under section 72, "every such offence" (offence under the Act) committed in respect of any instrument may be tried in any district or presidency-town in which such instrument is found, as well as in any district or presidency-town in which such offence might be tried under the Code of Criminal Procedure for the time being in force. The words "such offence" refer to "an offence under this Act"-the words used in section 71. As section 71 is proposed to be omitted1, these words will require a slight verbal change. It is also desirable to substitute "metropolitan area" for "presidency town" in view of the phraseology adopted in the new Code of Criminal Procedure.2

1. See discussion as to section 71, supra.

2. See the Code of Criminal Procedure, 1973.

23.8. Recommendation to revise section 72.-

We, therefore, recommend that section 72 should be revised as follows:

"72. Every offence under this Act committed in respect of any instrument may be tried in any district or metropolitan area in which such instrument is found, as well as in any district or metropolitan area in which such offence might be tried under the Code of Criminal Procedure for the time being in force."

We may state that the proposed change has been approved by all replies1 received on this question.

1. Q. 71



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