Report No. 129

Chapter VII

Criminal Jurisdiction

7.1. While dealing with urban litigation, it would be a glaring omission if some change is not suggested in the present court structure dealing with criminal cases in urban areas. Undoubtedly when an exhaustive revision of the Code of Criminal Procedure is undertaken, the question of dealing with criminal litigation can be adequately dealt with. Even then during the interregnum, certain steps can be taken which would reduce the burden on the criminal courts in urban areas.

7.2. During the British rule and for some years after independence, there was a method of appointing honorary magistrates to deal with ordinary routine criminal cases, such as violation of municipal law, traffic regulations, simple private complaints and matters alike in character. The research shows that in appointing honorary magistrates under the British rule, the test was of loyalty to British regime. The power was used for extending State largesse. Some title holders under the British regime were appointed as honorary magistrates. Even then, some of them acquitted extremely well but by and large a good number of them did not come up to expectation with the result that the system came into abuse. And nemesis overtook it. The system was discontinued instead full time stipendiary magistrate's courts were set up.

7.3. The criminal litigation has proliferated so much and the crime chart is going up at suc-h a break-neck speed that it is rather difficult to provide for the system of stipendiary magistrates for all sorts of criminal cases. There is a body of opinion that large number of offences as set out in the Indian Penal Code of 1860 vintage deserve to be deleted consistent with the mores of the present day society. There is a belief that being guilty of over-legalisation; a case is made out for delegalisation. The behaviours that need to be decriminalised are those of homosexuality, prostitution, abortion, bigamy, et al. This requires an in-depth study and the Law Commission has started its research in this behalf. However, it will take some time before a thorough probe can be made and a well-considered report is submitted.

7.4. During the interregnum, the system of appointing honorary magistrate must be re-introduced. But departing from the past practice, a specific qualification must be prescribed that only those retired personnel of the judiciary who in their active life rendered service as Judges should alone be appointed as honorary magistrates. There are now nearly hundreds of retired Judges available for being appointed as honorary magistrates. Their experience in decision making, their expertise in dealing with cases, their sense of justice and fair play and their rational approach acquired over a whole working life would wake them ideal honorary magistrates. They can be entrusted with any work which a stipendiary magistrate can undertake.

7.5. Therefore, it is hereby recommended that honorary magistrates, subject to condition in the foregoing paragraph, may be appointed at once. They should sit in the same courts where the regular courts sit in the early hours of the morning. Their terms and conditions of payment can be worked out and they will be able to take over all the old cases on which they can concentrate, relieving the burden on the sitting Judges. This one suggestion would help in reducing the burden in urban criminal litigation.

7.6. In preparing this report, the Law Commission must acknowledge with thanks the assistance rendered by Mrs. Jyotirmoyee Nag, retired Judge of the Calcutta High Court.

7.7. The Law Commission recommends accordingly.

D.A. Desai,
Chairman.

V.S. Rama Devi,
Member Secretary.

New Delhi,
Dated: 8th August, 1988.