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Report No. 32

32. Section 40, Code of Criminal Procedure, 1898.-

Before taking a decision regarding the change which we recommend1, we considered the provisions of section 40 of the Code of Criminal Procedure, 1898. The position under that section2 is, that (subject to certain qualifications), a person holding an office in the service of the Government, who has been invested with any powers under this Code, throughout any local area", carries these powers with him on his being "appointed to an equal or higher office of the same nature, within a like local area under the same State Government".

The language of the section is not applicable to Sessions Judges, and the section is, in practice, understood as confined to Magistrates. The relationship of section 4 with section 12 will be well understood from the observations which Mr. Justice Plowden made in his judgment in Bisheshar Nath v. Empress, 1884 Punj Re No. 15 Cr., pp. 20 (22-23) (DB) (per Plowden J.).

"Under section 12 of the Code of Criminal Procedure, 1898, the appointment of Magistrate rests with the local Government, which may appoint such persons as it thinks fit to be Magistrates of the first, second or third class in any District. The local area of the jurisdiction of a Magistrate so appointed may extend to the whole District, but does not, by force of that section extend beyond it.

A Magistrate appointed under section 12 may, however, be competent to exercise magisterial functions in a District, other than that in which he is a Magistrate, by appointment under section 12, without being appointed to be a Magistrate in that District. This is brought about by section 40 operating upon officers of Government, who, being invested with magisterial powers under the Code, are transferred from the District to an office in another District. In this case, such officer is competent to exercise magisterial functions in the latter District, not by appointment to be Magistrate in that District but by virtue of his holding some office in that District.

When therefore, the question is whether a particular person is competent to exercise the power of a Magistrate of any class described in section 12 at a particular moment of time in a particular District, the answer cannot be in the affirmative unless either first he has been appointed by the Local Government under section 12 to be a Magistrate in such District and such appointment is still in force, or secondly he holds in that District, at the time when he assumes to act as Magistrate, some office in the service of Government on which section 40 can operate.".

1. Appendix 1.

2. Section 40, Code of Criminal Procedure, 1898.

Section 9 of the Code of Criminal Procedure, 1898 - Appointment of Sessions Judges, Additional Sessions Judges and Assistant Sessions Judges Back

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