Report No. 40
35. Section 3.- (i) Application to security proceedings.-Under. section 3, any criminal court in a State may issue an order to the officer in charge of a prison, whether within the same or another State, requiring him to produce before the court any prisoner or detenue either for the purpose of giving evidence in a matter pending before the court or for the purpose of answering to a charge of an offence which has been made, or is pending, before it. Since sub-section (2) refers to "charge of an offence", it does not enable a criminal court to direct the production of a prisoner for the purpose of defending himself in proceedings under sections 107 to 110 of the Code of Criminal Procedure. As there could hardly be any such cases, we do not consider that the provision should be modified to cover them,
(ii) Counter-signing by Sessions Judge or Chief Judicial Magistrate instead of District Magistrate.- Sub-section (3) provides that no order made under sub-section (1) or sub-section (2) by a criminal court which is inferior to the Court of a first class magistrate shall have effect unless it is countersigned by the District Magistrate to whom that court is subordinate or within the local limits of whose jurisdiction that court is situate.
This provision gave rise to a slight difficulty in States where the separation of the judiciary from the executive had taken place and the judicial magistrates of the second or third class were not subordinate to the District Magistrate. In Punjab, the difficulty was surmounted by an amendment of the 1955-Act substituting "Chief Judicial Magistrate" for "District Magistrate" in sub¬section (3) of section 3. In Bombay, where judicial magistrates are subordinate only to the Sessions Judge, the position is that a judicial magistrate of the second or third class making an order under section 3 has to submit it to the District Magistrate of the district for countersignature.
Although this may not be a serious difficulty, it is certainly anomalous to bring in the head of the executive administration of the district into an essentially judicial matter. It would be more appropriate to provide for the submission of such cases to the Sessions Judge or Chief Judicial Magistrate to whom the court making the order is subordinate.
(iii) Counter-signing necessary.- We have, in this connection, considered whether the procedure of countersignature could be dispensed with (as recommended above in the case of subordinate civil courts)1, but come to the conclusion that scrutiny by a higher authority is desirable in the case of lower ranking magistrates.
(iv) Procedure for counter-signing.- In order to enable the countersigning officer to decide the matter expeditiously, it is desirable that the magistrate should submit the case with a statement of facts indicating why he considers it necessary to secure the personal attendance of the prisoner. The 1955-Act leaves the procedure in this respect to be prescribed by rules vide section 9(2)(a), whereas section 36(2) of the Prisoners Act, 1900, contained the necessary direction to the inferior court and also expressly provided that the District Judge or Magistrate could, after considering the inferior court's statement, decline to countersign the order. We recommend that a provision on those lines should be made in the Code.
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