Report No. 14
7. Retention of revisional powers of district magistrates (Reference to sessions judge).-
In view of our proposal to give immediate effect to the separation of the judiciary and the executive and our consequent recommendation that the appellate powers enjoyed by the district magistrate under section 407 of the Code as it stood before its amendment should be restored, we would leave the powers of the district magistrate to order further inquiry under section 436 or to direct the commitment of an accused to the court of session untouched. His powers to call for the record of proceedings for examination under section 435 Criminal Procedure Code should also be preserved and all cases in which he considers that the lower court's order needs correction should be referred by him to the sessions judge for disposal.
8. Revision against summary convictions (Substance of evidence to be recorded).-
In order that the revisional court should be able effectively to exercise its correctional jurisdiction, it is necessary that the record kept by the lower court, whatever it be, should be made available to the revising court. This is of importance in cases where summary procedure is adopted. A magistrate trying a case summarily may impose a fine upto Rs. 200 and, as the sentence is not appealable, he is not bound to keep a record of the evidence taken in the proceedings. However, if the same magistrate follows the ordinary procedure and imposes a fine exceeding Rs. 50 the sentence would be appealable and the appellate court would have before it a record of the evidence taken in the proceedings.
Though, in the former case, the accused person will have right to apply for a revision, such a right may not be of much use in the absence of a record of the evidence by the magistrate which can be examined by revisional court. We think, therefore, that it is essential that even in non-appealable cases tried summarily, the substance of the evidence of the witnesses should form part of the record to enable the revising court to exercise its revisional jurisdiction effectively.
9. Revisions against convictions by presidency magistrates (Presidency magistrates to record substance of evidence).-
Though presidency magistrates are not empowered to try cases summarily, in non-appealable cases, even if they are warrant cases, they are not required to record the evidence or to frame a charge. They can, in exercise of this jurisdiction, pass a sentence of imprisonment not exceeding six months or a fine not exceeding Rs. 200. Cases in which non-appealable sentences are awarded would be the subject matter of revision applications to the High Court. The revisional court is, in such cases, at a disadvantage for want of a record of the evidence.
We are of the view that this is likely to lead to injustice. Where the witnesses are all heard, at a stretch and judgment follows immediately, it may be that the magistrate is able to do full justice to the accused without having before him a record of the evidence. However, looking at the matter from the point of view of an accused person who may be sentenced to a period of imprisonment and who may wish to take the matter to the High Court in revision, the position would be very unsatisfactory if the magistrate has not recorded any evidence. On what materials can he ask the revisional court to scrutinize the matter?
It may be that presidency magistrates do, in such cases, record the substance of the evidence for their own use. Such a record, however, not being required to be kept by the law, would not be before the revisional court. One may compare the position with that which arises in the case of other magistrates and even sessions judges. These judicial officers have to keep a record of the evidence even in cases where non-appealable sentences are awarded by them, except in summons cases and in the case of offences triable summarily. There appears to be no principle underlying this distinction. We would, therefore, recommend that the presidency magistrates should, even in non-appealable cases, make a record of the substance of the evidence before them.
10. Presidency magistrates to frame charge in all warrant cases.-
A further distinction which stands on more or less the same footing is in regard to the framing of a charge. A presidency magistrate is not obliged to frame a charge even in warrant cases if the sentence passed by him is non-appealable. This position has been adversely commented upon by the Madras High Court1 which has suggested an amendment. We think it is desirable that the Code should be amended so as to impose an obligation on the presidency magistrates to frame in all warrant cases.
1. Yalpanathan (in re:), AIR 1952 Mad 50.
11. Inherent powers of courts.-
Though laws attempt to deal with all cases that may arise, the infinite variety of circumstances which shape events and the imperfections of language make it impossible to lay down provisions capable of governing every case which in fact arises. Courts which exist for the furtherance of justice should, therefore, have authority to deal with cases which, though not expressly provided for by the law, need to be dealt with to prevent injustice or an abuse of the process of law. This has led to the acceptance of the principle that even in cases where the law is silent and has made no express provision to deal with a situation which has arisen, the courts have inherent powers to do real and substantial justice and prevent an abuse of their processes.
12. Statutory recognition of inherent powers of High Court in criminal cases.-
The doctrine of inherent jurisdiction was for the first time given statutory recognition in the case of High Courts exercising criminal jurisdiction by the enactment of section 561A in the Criminal Procedure Code in 1923. This section assumes the existence of such inherent power in the High Courts and provides that nothing in the Code is to be deemed to limit its inherent power to make such orders as would be necessary to give effect to any order under the Code or to prevent abuse of the process of any court or to otherwise secure the ends of justice. The inherent power, thus recognised, empowers the court, inter alia, to prevent the abuse of the process not only of the High Court but of any court. The High Court thus exercises its inherent jurisdiction not only in respect of proceedings before it but also in respect of proceedings in the subordinate court.
13. Inherent powers of other criminal courts.-
This statutory recognition, however, extends only to the inherent powers of the High Court. One may compare it with the recognition of the inherent powers of all civil courts by section 151, Civil Procedure Code.
In a number of decisions before and after the enactment of section 561A, various High Courts have also recognised the existence of such power in subordinate criminal courts1 We would, therefore, recommend a statutory recognition of such inherent power which has been recognised as vesting in all subordinate criminal courts.
1. Achambit Mondal v. Mahatab Singh, AIR 1915 Cal 119; Nagen Kundu v. Emperor, 61 Cal 498; Krushna Mohan v. Sudhakur Das, AIR 1953 Ori 281.
14. Limitations on their inherent power.-
However, the general principle of law is that the inherent power of a court can be exercised only to give effect to orders made by it or to prevent abuse of its own processes. Section 561A has, however, enabled the High Court to exercise inherent power to give effect not only to its own but to any order passed under the Code and to prevent the abuse of the process of any court. The court of session which exercises appellate and limited revisional jurisdiction over the criminal courts and which we are now recommending should exercise a fuller revisional jurisdiction, is, however, not entitled to exercise its inherent power in respect of proceedings pending in lower courts.
Thus, it has been held in an Allahabad case1 that when a sessions judge had granted bail to an accused person against whom committal proceedings were pending in a lower court, he could not in the exercise of his inherent power cancel the bail even if he was satisfied that the accused was tampering with the prosecution evidence. Similarly, it has been held2 that a sessions judge could not, in an appeal under section 476B of the Code, order the lower court to record further evidence inasmuch as that would be an exercise of his inherent power to require another court to do a certain thing.
1. Manni Lal vs. Emperor, AIR 1937 All 305.
2. Bachhu Lal v. State, AIR 1951 All 836.
15. Grant of inherent powers to the sessions court.-
The court of sessions is, generally speaking, a court of appeal against sentences passed by magistrates. We have recommended an enlargement of its revisional jurisdiction so as to enable it to pass final orders in revisions from proceedings of the lower courts. We think it, therefore, appropriate that the sessions court should, like the High Court, have inherent jurisdiction in respect of proceedings pending before subordinate courts, We, therefore, recommend an amendment of section 561A so as to confer on the court of session, such an inherent power.
16. Summary of recommendations.-
Our conclusions on criminal revisions and the inherent powers of criminal courts can be summarised as follows:-
(1) All criminal revision petitions in the High Court other than those in which a sentence of death or transportation for life can be passed should be heard and finally disposed of by a single judge.
(2) Sessions judges should be invested with full powers to pass final orders in revision in all matters other than petitions against orders of acquittal or for enhancement of sentence.
(3) The judicial district magistrate should continue to retain his power of revision under the Code to refer cases to the sessions judge for final orders.
(4) Magistrates should maintain a memorandum of the substance of the evidence of witnesses even in non-appealable cases tried summarily.
(5) Presidency magistrates also should be required to make a memorandum of the substance of evidence in non-appealable cases.
(6) Presidency magistrates should be required to frame a charge in all warrant cases even if they pass only non-appealable sentences.
(7) The inherent powers of all criminal courts should be statutorily recognised.
(8) The courts of session should be recognised as having inherent power to pass appropriate orders to prevent the abuse of the process of any subordinate court by an appropriate amendment to section 561A of the Criminal Procedure Code.