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Report No. 40

19. Section 4.- Section 4 empowers the State Government to exclude by general or special order any person or class of persons from the operation of section 3, and lays down that "so long as any such order remains in force, the provisions of section 3 shall not apply to such person or class of persons". The question may arise whether the State Government is competent to make such an order in regard to a person for whose attendance a civil (or criminal) court has earlier issued an order under section 3 and if it does, which order will prevail.

Having regard to the considerations underlying section 4, the Commission is of the view that the State Government should have power to make an order under section 4 prevailing even over an earlier order of the court, and this should be made clear in the corresponding provision in the Code. We have for this purpose, proposed that the words whether "before or after the order of the State Government" should be added in the provision corresponding to section 4.

In one of the comments1 which we received on our tentative proposals, it was stated that these words involve "avoidable conflict of decisions by the court and the Government", and are also likely to cause delay in the progress of the case. When the Government arrests a person, it is stated, it must have means to know whether such person should or should not be produced before the court, and there is no reason why precisely at that moment the Government should not take the appropriate decision in the matter. Moreover, if the question of exemption is taken up by the Executive after the Civil Court has ordered the production of a prisoner, it may cause delay which may turn out to be absolutely unjustified if ultimately the Government does not agree to pass an order of exemption.

We do not agree with this view of the matter. At the time when a person is arrested, the Government would hardly apply its mind to the question whether his production in court should or should not be barred. In our view, no serious delay is involved or likely to be involved in the change which we have suggested. In any case, the matter is one of policy, relating to the maintenance of law and order, and we think it proper that the State Government's order, whether made earlier or later, should prevail.

1. Comment of the District and Session Judge, Andamans.



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