Report No. 14
20. First Class magistrates.-
Whether a case is to be tried by a first class magistrate or is to be sent to the court of session for trial depends largely on the facts of that case and on whether the proper punishment for that offence would exceed the limits of the powers of the first class magistrate. For instance, the offence of rioting armed with a deadly weapon, which is punishable with imprisonment up to three years, is triable by a court of session, a presidency magistrate or a first class magistrate; but it is very seldom that an accused charged with this offence is committed to the court of session. When that is done, he is always charged with some other offence which is generally exclusively triable by the court of session.
Other cases where the magistrate is not competent to impose a sentence of sufficient severity are also taken to the court of session. Before a case is tried at the court of session, there has to be a preliminary inquiry by a court authorised to hold such an inquiry and the accused has to be committed to the sessions to undergo his trial. There is, accordingly, a double investigation, as it were, an initial inquiry by a magistrate followed by a trial in the court of session.
21. Another feature that has to be noticed is that even when a magistrate tried a case for which the punishment prescribed exceeds his own powers of punishment, rarely does he award even the maximum sentence that he can impose. A first class magistrate's power in this regard is limited to two years' imprisonment. If, for example, such a magistrate tried an offence under section 326, Indian Penal Code, namely, voluntarily causing grievous hurt by dangerous weapons, the punishment for which may extend to ten years' imprisonment, he rarely awards a sentence of two years.
In the normal run of cases triable by magistrates, therefore, the sentence imposed by them falls short of the maximum of their powers and where it is considered necessary to commit such cases to the court of session. It is for the reason that the sentence to be awarded would exceed the maximum which a first class magistrate can impose. There seems to be no reason why in such cases, the magistrate's powers to impose sentences should not be raised so that such cases can be tried by the magistrate himself instead of having to be placed before the court of session involving, as it does, a preliminary inquiry and a trial.
22. Under section 30 of the Code of Criminal Procedure, authority has been given to the State Government to invest any district magistrate, presidency magistrate or a magistrate of the first class with powers to try, as a magistrate, all offences not punishable with death or imprisonment for life or with imprisonment for a term exceeding seven years. There is a proviso to this section added by the recent amendment which requires that a magistrate, before he is invested with such powers, should have exercised, for not less than ten years, the powers of a magistrate not inferior to those of a first class magistrate.
A magistrate so empowered may pass any sentence, except a sentence of death or imprisonment for life or imprisonment for a term exceeding seven years. The Legislature evidently proceeded on the view that a person who has exercised the powers of a magistrate of the first class for not less than ten years is a fit person to be invested with such enlarged powers. This section recognizes that it is by no means unusual or improper to invest a first class magistrate with power to try more serious offences and invest him also with the power to award severe sentences of imprisonment.
23. We, therefore, feel justified in recommending that all first class magistrates with five years' experience may be given the power to impose a sentence of imprisonment up to four years provided that the judiciary is separated form the executive. If this recommendation is accepted, Schedule II to the Code will have to be amended to enlarge the list of offences triable concurrently by the court of session and the court of the magistrate. The provision for specially empowering first class magistrates under section 30, Criminal Procedure Code, will also have to be repealed.
24. It should then be the normal rule that all cases which are so concurrently triable should be tried by the courts of magistrates and except for reasons to be recorded, such cases should not be committed to courts of session. This, in our view, would also have the advantage of reducing the time taken in the disposal of cases which at present have to be sent up to the court of session for trial.
25. Except in those rare cases when a magistrate takes cognizance of a case upon information received from any person other than a police officer or upon his own knowledge or suspicion, criminal cases are initiated either on the basis of a police report or a private complaint, but generally most cases arise out of a police report. In whatever manner the case might come before a court, the procedure provided by the Code of Criminal Procedure prior to the recent amendment was the same. The Code devised two methods for dealing with them by effecting a division of cases into summons cases and warrant cases.
26. Warrant cases.-
A warrant case means a case relating to an offence punishable with death or imprisonment for life or imprisonment for a term exceeding one year. All other cases are summons cases. This division is important as the method of procedure to be adopted in the trial of the two classes of cases varies. In a warrant case which is also triable by a court of session, if the magistrate finds that the offence is of a nature that justified trial by the court of session, he can, if competent to commit, make an inquiry and commit the accused to take his trial before that court.
27. The trial of warrant cases is fairly elaborate. By the recent amendment of the Code, the procedure applicable to warrant cases arising on police reports was made different from that applicable to those instituted on private complaints. Summons cases are of a less serious nature. Accordingly, for their trial, a simpler form of procedure is devised.
28. Procedure in summons cases.-
Whether a summons case arises on a private complaint or on a police report, the accused, on his first appearance in court, is informed of the particulars of the offence which he is alleged to have committed and is asked to show cause why he should not be convicted. It is not necessary to frame a formal charge. If he admits the commission of the offence, his admission is recorded and if he shows no sufficient cause why he should not be convicted, conviction follows. If the accused does not make such an admission, then the magistrate proceeds to take all the evidence produced in support of the prosecution; he hears the accused and takes all the evidence produced for the defence.
In proper cases, the magistrate may, on application by either side, summon witnesses. Upon taking evidence as above and examining the accused, the magistrate either finds the accused guilty and convicts him or finds the accused not guilty and acquits him. It is open to the magistrate, however, to convict the accused of any offence triable under this procedure, if such an offence (though it is different from that mentioned in the complaint) is made out from the facts admitted or proved.
29. Procedure simple.-
In the above class of cases, evidence of both sides is required to be ready and is recorded at a single sitting and is followed by a judgment without any delay. The trial of a case under this procedure is thus designed to occupy the minimum amount of time. As offences triable by this procedure are of a minor nature, power has been given to the magistrate to acquit the accused if the complainant does not appear on any date fixed for hearing. The complainant is also at liberty to withdraw his complaint with the permission of the magistrate.
30. Extension of summons procedure desirable.-
We have noticed that the procedure of trial in summons cases laid down in Chapter XX of the Code of Criminal Procedure leads to expeditious disposal of cases. The procedure is, however, available only in respect of a comparatively few offences; for, a summons case is one which is not punishable with a term Of imprisonment exceeding one year. Prior to the amendment of the Code by Act XXVI of 1955, this limit was six months. During the debate in the Rajya Sabha, it was stated that prior to the amendment, only seventy eight offences under the Penal Code came under the category of summons cases and that the amendment added only twenty six more offences.
The amendment accordingly has not enlarged to any appreciable extent the number of cases triable by this procedure. The creation of numerous statutory offences during recent times which are, for the most part, technical in nature and involve nothing more than a violation of or a noncompliance with a rule or regulation calls for a speedier determination of those cases. Even under the Indian Penal Code, there are several offences of the same kind, but differing in degree, which at present have different modes of trial.