Report No. 32
37. Comments received on the draft amendment considered.-
We had circulated the draft amendment prepared by us1 to State Governments, High Courts, Administrations of Union territories and courts of Judicial Commissioners for comments. Along with the draft amendment, we had circulated the suggestion of the Mysore High Court which forms the background of this report 2 and a copy of the judgment in State of Assam v. Ranga Muhammad 3. Comments received from State Governments, High Courts, etc., on the draft amendment so circulated may be grouped under three categories, namely, those in favour of the draft amendment, those opposed to it, and those favouring it with some modification or addition.
1. The draft amendment circulated was the same as that in Appendix 1.
2. See para. 1, supra.
3. See paras. 7 and 11, supra.
38. Most of the comments are in favour of the proposed amendment. Thus, it has been stated1, that the proposed amendment will certainly bring the law in conformity with the view expressed in the State of Assam v. Ranga Muhammad; that section 9(1) may be suitably amended as suggested2-3; that the amendments proposed are in order and the court approves the same4; that the proposed amendment is in conformity with the suggestion made by the High Court itself 5; that the amendment of section 9 is in the right direction6; that for the purpose of removing any doubt or anomaly, the proposed amendment to section 9 may be made7; that the High Court agrees with the proposed amendment of section 9 for the purpose which the Law Commission has in view8; that the proposed amendment is welcome, since the district judges and other subordinate judges are subordinate to the High Courts and Courts of Judicial Commissioners, and they must have fair knowledge about the qualities and standard of these officers9; that the State Government has no objection to the proposed amendment10; that the State Government is in favour of it11.
1. S. No. 20 (a State Government).
2. S. No. 22 (a High Court).
3. S. No. 22 (a High Court).
4. S. No. 23 (High Court of Mysore).
5. S. No. 24 (Court of a Judicial Commissioner).
6-7 S. No. 26 (a High Court).
8. S. No. 28 (Court of a Judicial Commissioner).
9. S. No. 41 (a State Government).
10. S. No. 45 (a State Government).
39. One comment received from the Administration of a Union territory1 states, that Article 235 does not apply to Union territories, and that the Courts of the Judicial Commissioners have not been declared High Courts for the purposes of the said Article, and therefore the Administration of the Union territory is not directly concerned with the proposed amendment, but in principle it has no objection to it.
1. S. No. 30 (Administration of a Union territory).
40. We now come to comments opposing the draft amendment. It has been state1 that it is not understood what connection there is between the decision of the Supreme Court in the State of Assam v. Ranga Muhammad and the amendment of the Code of Criminal Procedure, and that the proposed amendment has far-reaching consequences and it is not considered advisable to effect the amendment just now, particularly in view of the fact that section 9 of the Criminal Procedure Code has presented no difficulty in regard to the administration of criminal justice under the Code during the past.
1. S. No. 37 (a High Court).
41. Some replies say that they have no comments to offer1-2
1. S. No. 29 (a High Court).
2. S. No. 43 (a State Government).
42. One High Court1 has no comments to offer, but has sent a note of one of its Judges2 where it has been stated that the reasons which have necessitated amendment of section 9 also necessitate amendment of section 18 in relation to the power of appointment of Chief Presidency Magistrates and Additional Chief Presidency Magistrates.
1. S. No. 44 (a High Court Judge).
2. Enclosure to S. No. 44.
43. We now come to comments which seem to approve of the proposed amendment with some modification or addition. Thus, one comment1, while remaining silent about the main amendment in section 9(1), states that since the place of sitting of the district court is fixed by the State Government in consultation with the High Court under the Civil Courts Act of the State, and since the District Judge is also the Sessions Judge, to avoid anomaly it is necessary to empower the State Government to fix the place or places of sitting of a Court of Session.
We have already referred to the comment1 indicating the need for amendment of section 18.
1. S. No. 36 (a State Government).
2. Para. 42, supra.
44. Another comment states1, that in the draft of section 9 as proposed to be amended, it should be made clear that the first appointment of District and Sessions Judge need not be made, by the High Court, but by the State Government in consultation with the High Court. Accordingly, that comment has suggested the addition of an Explanation to proposed section 9(1) and section 9(3) as follows:-
'Explanation-The word "appoint" shall not be taken to include first appointment to the post'.
1. S. No. 39 (Administration of a Union Territory).
45. A State Government1, while agreeing that section 9(1) conflicts with the decision in the State of Assam v. Ranga Muhammad inasmuch as it empowers the State Government to appoint a Judge of a particular Court of Session, and therefore stating that the amendments to section 9(1) and section 9(3) are in order, objects to the amendment proposed is section 9(2). It is stated, that the decision in State of Assam v. Ranga Muhammad does not suggest that the power of the State Government to decide at what place or places a Court of Session should sit should be transferred to the High Court.
The comment adds, that the State Government can be expected to know which place would be suitable having regard to the public convenience; financial implications also may be involved, as suitable buildings have to be found or constructed for a court. Therefore, the amendment to section 9(2) and to the latter part of section 9(4) is not considered as necessary by that Government, and it is of the opinion that the power of deciding the place should continue with the State Government and need not be transferred to the High Court as proposed.
1. S. No. 42 (a State Government).
46. Some of the points made in the comments which approve of the amendment proposed may be dealt with. As regards the place of sitting1, in our opinion, that is as much a part of "control" within Article 235 as the power of appointing judges to a particular Court of Session, and must accordingly be transferred to the High Court. Financial, administrative and other considerations would be taken into account by the High Court also, and, in any case, in view of the provisions of Article 235, it will not be permissible to keep this power with the State Government.
1. Para. 40, supra and para. 45, supra.
47. As regards the point1 that amendments may be required in section 18, we have elsewhere dealt with the amendments required in the other provisions2 of the Code.
1. Paras. 42 and 43, supra.
2. Para. 50, infra.
48. As regards the difficulty1 that the place of sitting of the Court of District Judge is (under the local Civil Courts Act) fixed by the State Government, we should draw attention to the discussion wherein we have not ruled out an amendment of the Civil Courts Act2.
1. Para. 43, supra.
2. Para. 51, infra.
49. As regards initial posting1, that power also must now vest in the High Court 2.
1. Para. 44, supra.
2. See paras. 26 and 27, supra.