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Report No. 14

21. Personnel and machinery for supervision.-

It is not unlikely that difficulties of obtaining adequate trained personnel may be experienced in the initial stages. In such cases the scheme may be introduced by stages in groups of districts.

The evidence before us shows that a scheme of separation does involve additional duties of supervision over the judicial magistrates which the District and Sessions Judges will not be able to perform. It would, therefore, be necessary in order that the scheme may work efficiently that the district judge should be given the assistance of a District Magistrate (Judicial) or an Additional District and Sessions Judge whose principal functions would be supervision of the subordinate magistrates' courts.

The advantage of the appointment of a District Magistrate (Judicial) rather than an Additional District and Sessions Judge to perform these duties would be that he cannot be taken away for the performance of sessions or civil appellate work, and that he would probably be a person more fitted to supervise the work of the subordinate magistrates. It may be mentioned that the system we are recommending has worked satisfactorily in Madras.

22. Conclusions.-

The system of separation of the judiciary from the executive having been accepted as one of the directive principles of State policy, one would have thought it unnecessary to discuss the advantages of separation, and the arguments against it. We have dealt with these matters because we found, as stated above, a lurking opposition to the principle of the scheme in various States based on considerations which are not well-founded. We are of the view that this is a matter on which legislation by Parliament is necessary. Such legislation will have the advantage of bringing into operation throughout the country a uniform system of separation and force the pace of its introduction in States which have delayed and fallen behind.

The Bombay Separation of Judicial and Executive Functions Act (XXIII of 1951) would, we think, serve as a model for such legislation. We may, however, indicate that our preference is for leaving the actual trials even in cases under sections 108 to 110 of the Criminal Procedure Code to the judicial magistrates as in Madras, the executive magistrates' duties being confined in this respect to such immediate action as may be necessary. In order, however, to obviate delays which are bound to arise in enacting such legislation by the Union Parliament we would recommend that the States which have not so far introduced the scheme of separation should forthwith introduce it by executive action as has been done in Madras.

Recommendations.- Our recommendations which are set out below will have no application to the scheduled and tribal areas which are under the Constitution being administered under special provisions.

(1) Separation has worked satisfactorily where it has been introduced and its introduction has not led to any "difficulties in the executive officers being able to maintain law and order. There is, therefore, no reason why the scheme should not be put into operation in the remaining States.

(2) The additional expense of administration due to the introduction of separation will not be great as is known by the experience of the States which have introduced it. Such additional expenditure as may be involved is essential for the proper administration of justice.

(3) The lack of adequate personnel may create difficulties in its immediate introduction all over the State. These difficulties can be met by following the Madras method of introducing separation in groups of districts year by year so that the scheme is introduced throughout a State within a period of three to five years.

(4) The system of separation should be a real one and not merely one in form as in Uttar Pradesh and in the Punjab.

(5) Under the scheme of separation, it would be desirable to appoint a District Magistrate (Judicial) for the purpose of exercising effective supervision and control over the subordinate magistrates, as the District and Sessions Judge will not be able to find the time for the performance of those duties.

(6) Legislation for bringing about separation should be enacted by Parliament on the model of the Bombay Separation of Judicial and Executive Functions Act (XXIII of 1951). But pending the passing of such legislation, the States which have not so far introduced separation should introduce it forthwith by executive action as in Madras.

Annexure

Statement Showing The Allocation of Powers and Functions Between The Judicial and The Executive Magistrates In The Scheme of Separation of Judiciary in Madras and Bombay



Madras

Bombay

Subject-matter

Judicial Magistrates empowered to act under section

Judicial Magistrates empowered to act under section

Judicial Magistrates empowered to act under section

Judicial Magistrates empowered to act under section

Remarks

1

2

3

4

5

6

1

Security for keeping the peace on conviction.

106

..

106

..

Note.-The Numbers given in columns 2 to 5 indicate the section of the Code of Criminal Procedure.

2

Security for keeping the peace in other cases.

..

107

..

107

Sections 108-126 A. In Madras, the rule is that only judicial magistrates will have jurisdiction to conduct proceedings. But in order to provide for contingencies; both the judicial as well as executive magistrates have been given concurrent jurisdiction under these sections.

3

Secuirty for good behaviour from persons disseminating seditious matters.

108

108

..

108

4

Security for good behaviour from vagrants and suspected persons.

109

109

..

109

5

Security for good behaviour from habitual offenders.

110

110

..

110

Sections 127-132 and 144. In Madras, according to executive instructions, judicial magistrates should take action only in grave emergencies in the absence of Executive Magistrates.

6

Procedure to be followed by magistrates in security proceedings.

112-126A

112-126A

..

112-126A

7

Procedure in dealing with unlawful assemblies.

127-132

127-132

127-132

127-132

Sections 133-134 and 145-148. In Madras, according to the original plan the Executive Magistrates exercised jurisdiction at the preliminary stage but at the trial stage i.e, the final stage the cases were transferred to the judicial magistrates. Since 1954, these matters are exclusively dealt with by the Executive Magistrates.

8

Procedure in dealing with public nuisances.

..

133-143

..

133-143

9

Power to issue temporary orders in urgent cases of nuisance or apprehended danger.

144

144

..

144

10

Proceedings where dispute concerning immovable property is likely to cause breach of of peace.

..

145-148

..

145-148

11

Role of Magistrates at the stage of police investigations.

155-163

155-163

155-163

155-163

Section 144. In Madras Judicial Magistrates act in the absence of Executive Magistrates. A Chief Presidency Magistrate is empowered to Act under the provisions of section 144 Cr. P.C.

12.

Powers of Magistrates to record confessions and statements.

164

..

164

164

13

Reports to Magistrates on investigation

165-166 and 169-173

165-166 and 169-173

165-166and 169-173

165-166and 169-173

14

Authorising detention of accused

167

167

167

..

Sections 155-163. In Madras, if any inquiry under these sections result in the submission of a charge sheet, it (the charge sheet) has to be laid before the judicial magistrate for trial of the case.

15

Inquest as to cause of death

..

174-176

..

174-176

16

Powers to take congnizance of offences

190(1)(a)(b)(c) and 190(2)

90(1)(1)(c)

190

17

Procedure as to trial of cases

200-265

200-265

..

18

Power to tender pardon

337(1) 2nd paragraph(proviso)

337(1) 2nd paragraph (proviso) 337(1) 1st paragraph

337(1) (proviso) and 337(2)

337(1) 1st paragraph (proviso)

19

Appeal from order refusing to accept or rejecting a surety.

406A(c)

406A(C)

20

Procedure regarding references of wives and revision.

435-438

..

435(1), (X) 436(1) 437-438(Y)

435(2) and (4) and 436(2)

(X) Only the High Court or the sessions Court can exercise powers.

21

Order for maintenance of wives and children

488

..

488

..

(Y) Only the Session Court is competent to exercise powers under section 435 Cr. P.C.

22

Appeals from and revision of orders relating to forfeiture of bonds

515

..

515

515

23

Power to withdraw or refer cases

528(2), (3) and 4

528(2), (3) and (4)

528

..

528(2), (3) and (4). In Madras, where a matter in respect of which an inquiry is being held falls within the jurisdiction of the Executive Magistrate the transfer of the case will be made by the Collector-cum-Additional District Magistrate. In other the judicial District Magistrate.



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