Report No. 64
4.11. Recommendation as to various powers in view of separation.-
In view of separation of the judiciary from the executive, our recommendations with reference to each of the powers of Magistrates, as enumerated above, are as follows:-
(i) Power under section 7(1) is, at present, confined to "District Magistrate", and may continue in that form, not being a judicial power.
(ii) As regards the power under section 11(4), it pertains to trial, and should be confined to judicial Magistrates-i.e., Magistrates of the first class or Metropolitan Magistrates who would be Judicial Magistrates.
(iii) The power to require security under section 12(4) is analogous to the power under section 110, Cr.P.C. in 1898 and the corresponding provision in the new Code. In the new Cr.P.C., the power under the provision1 corresponding to section 110 has been given to Magistrates of the first class, and it would be proper to give the power under section 12(4) also to a Magistrate of the first class, or Metropolitan Magistrates-who would be judicial Magistrates.
(iv) As regards the power to make orders for custody under sections 15(5) read with section 17(1) and the power to issue orders for rescue of a girl under section 16, these are similar to the power under sections 100 and 552 of the Cr.P.C., 1898. In the new Criminal Procedure Code2, powers under the corresponding provision are given to the District Magistrate and Sub-Divisional Magistrate (who are Executive Magistrates), as well as to Magistrates of the first class or Metropolitan Magistrates (who are judicial Magistrate). Powers under section 15(5) read with section 17 and powers under section 16 read with section 17 of the Suppression of Immoral Traffic Act may, therefore, also be given to the same Magistrates, i.e. concurrently to both judicial and executive Magistrates.
(iva) Powers under section 18 (closure of brothels and eviction from promises) may be given to Executive Magistrates, being somewhat analogous3 to the power under section 20. The powers may be given to District Magistrates and Sub-Divisional Magistrates.
(v) The reasoning applicable to section 16 applies4 to powers under section 19 of the Act, relating to applications by women for being kept in a protective home. The power may, therefore, be given to both classes of Magistrates.
(vi) The power under section 20 is analogous to that under section 133, Cr. P.C., 1898 (prohibition of public nuisances). Under the new Criminal Procedure Code5, the power under the corresponding provision is given to District Magistrates, Sub-Divisional Magistrates, and Executive Magistrates specially empowered by the State Government, and the power under, section 20 may also be given to them.
(vii) Section 22 provides that "No court inferior to that of a Magistrate as defined in clause (c) of section 2 shall try an offence under section 3, section 5, section 6, section 7 or section 8." As this is a judicial power, the power should now be transferred to a Magistrate of the first class or a Metropolitan Magistrate-who are judicial Magistrates.
1. Section 110, Criminal Procedure Code, 1974 (old section 110).
2. Code of Criminal Procedure, 1974, sections 97-98 (old sections 100 and 552).
3. See below as to powers under section 20.
4. See above recommendation relating to powers under section 15.
5. Code of Criminal Procedure, 1974, section 133 (old section 133).
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