The Code Of Criminal Procedure,1889

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Law Commission Report

The Code Of Criminal Procedure,1889

CONFIDENTIAL |..o. 92. xxxvn
----'-----'-"' moo'-'_'

LAW COMMISSION

Thirty-seventh Report

The Code of Criminal Procedure, I889

(SECTIONS I to I76)

DECEMBER, I967

Price: (Inland) Rs. 4-00 (Foreign) 9s. 4d. or $1 44 Cents.

5, Jor Bagh, New Delhi--3

J L KA Dated 19th February, 1968
. . pun,

My dear Minister,

Ihave great pleasure in forwarding herewith the 37th
Report of the Law Commission on the Code of Criminal
Procedure, 1898, sections 1 to 176.

1. The circumstances in which the subject was taken up
for consideration are stated in the first few paragraphs of the
Report. After the subject was taken up, a study of the Code
was undertaken.

2. A Press communique was also issued inviting sugges-
tions on the existing Code. The suggestions received from the
public, as well as various suggestions received through the
Ministry of Home Affairs, were voluminous.

3 . Certain preliminary points were discussed and decided
at the 29th meeting of the Commission.

4. Some points of detail were considered at the 39th
meeting of the third Commission. As a conseqence of that
discussion, preparation of a draft Report and Bill was; then
undertaken under the directions of a member of the t ird
Commission. The work at that stage proceeded upto section

176.

5. Further study of the subject was continued, and has
been going on throughout.

After consideration of the Code of Civil Procedure,
Capital Punishment and other urgent matters was ﬁnished,
the Code of Criminal Procedure (upto section 176) was, in
the fourth Commission, discussed at several meetings held in
1967, namely, the 86th meeting held on 15th to 20th May,
1967, the 87th meeting held on 8th to 11the August, 1967,
the 88th meeting held on 21st to 26th August, 1967, and
the 89th meeting held from 25th September to 30th Septem--
bet and 4th and' 5th October, 1967.

6. In the light of the decisions taken at the various -
meetings mentioned above, and on a consideration of the .

(ii)

suggestions received from time to time, and also incorpora--
ting the studies made in the meantime, a fresh draft Report
(up to section 176) was prepared. The resh draft Report
was approved, with modiﬁcations, at the 90th meeting of the
Commission held from 18th to 25th November 1967.

7. The fresh draft Report was revised in the light of the
decisions taken at the meeting held in November, 1967.

8. The draft Report was not circulated to State Govern-
ments, High Courts etc. for comments, as the Report was to
be urgently submitted.

9. In response to the suggestion made to usin this behalf,
we are submitting this Report dealing with sections 1 to 176 of
the Code, to be followed by recommendations relating to
other sections.

10. Reports on some important topics under the Code
have been separately submitted. These are enumerated in
paragraph 10 of this Report. '

11. I would like to say that in the preparation of this
Report a great deal of labour and time had to be expended, by
our Secretary Mr. P. M. Bakshi. The suggestions made; by
various High Courts, lawyers, Executive Officers and others
interested in law were received at different times. They ;had
to be collected under various sections of the Code, and edited
with comments. The case law which ran into a good few
thousands of pages,"_and which had to be studied and condensed
into the pages of the report, was a time and energy absorbing
job. Then, historical and comparative study of the materials
had to be and was made, and extensive and intensive research.
done, and the material was put and projected into the Draft
Report.

Mr. Bakshi has been of the greatest assistance to us. I
would commend his work and thank him for his cooperation,
assistance and hard and intelluent work. »

Yours sincerely,

(J. L. Kxpun)

Hon'ble Mr. P. Govinda Menon,
Minister of Law,

New DELHI.

'O the Report on Code of Criminal Procedure, 1898 (Sections 1 to 176)

INDEX

Para N°- . . . . . Subject matter Page
' . No.

1 Genesis of the Report 1

2--3 Qbjectives of revision , . 1

4 Importance ,of the Code 2

5-9 Object of the Code 2

10 Reports submitted 3

11-12 Materials studied . . 3

13-16 Lines on which Code revised in the past . 4

17 Historical survey . 6

18 Position before 1861 6

19 1861 Code . 7

20 1872 Code . . . 7

21--23 1,861 Code and other Acts upto 1872 . 7

24 Separate Acts for High Courts and Presidency towns 9

25----26 1882 Code 10

l7--29 1898 Code . . . . . ll

30 Special laws not dealt with in this Report 12

31 Major problems . 12

32----40 Problem of separation . . 12

41 Classiﬁcation of functions of Magistrates 15

42--44 Functions of Magistrates elaborate discussion 16

45 Questions raised by separation in relation to the Code . 18

46 Legislation necessary for separation 18

47--50 Separation whether to be by Central Law . . . 18
51 Allocation of functions between Judicial and Executive Magis-

trates. . . . . . . . . 20

52 Patterns of separation . 20

53--54- Allocation of powers in each pattern . 20

55 Allocation under Bombay and Punjab schemes 21

56-57 Allocation under Madras Scheme . 21

58 Essence of separation present in each pattern . 22

59--63 West Bengal Scheme . 22

164-71 Modes of trials and inquiries 24

72 Section-wise discussion 26

73 Section 1 . . . . . . . 26

74 Sections 2 and 3 . . . . . . . 25

75 Section 4(1)---"complaint". . . . 26

76--77 Section 4(1) and deﬁnition of Court . . . 27

78 Section 4(1)(i),---"l-Iigh Court". . . . . 28

79 Section 4(l)(k)--"inqui1'y". . . . . . 28

80 Section 4(l)(I)--"Investigation" . . . . 28

81-82 Section 4(1)(m)----"Judicia1 proceeding" . . . 28

iii

Para No. Subject matter Page
No.
83 Section 4(1)----Oﬁcer-in-charge etc. . . 29
84 Section 4(1)(q)----"Place". . . . . . . 29
85-86 Section 4(l)--"p1eader" . . . . . . 29
87--89 Section 4(l)(w)--"warrant case" . . . . . 30
90 Section 4(1)(w)--Deﬁnition "warrant cases"--Suggestion of High
Court . . . . . . . . . 3 1
91 Section 4(2) . . . . . . . g 0 31
92 Section 6 . . . . . . . 31
93 Section 6 and Third Class Magistrates . . 31
94--95 Section 6A (New) and the pattern of Magistracy . . 31
96 Judicial Magistrates in the Mofussil , 31
97 Executive Magistrates in the Mofussil . . 3?.
98 Magistrates in Presidency Towns . . 32
99 Scheme recommended regarding mofussil 33
100 Scheme recommended regarding Presidency towns 33
101-103 Other cities of special importance . . . . 33
104 Section 7 . . . . . . . 34
105 Section 7(4) and Presidency Magistrates 34
106 Section 8 . . . . 35
107 Section 9 and earlier Report 35
108 Section 9(3) 35
109 Section 9(4) 35
110 Section 10 . . . . 35
111 Section 10 and Mobile Courts 36
112 Section 11 36
113 Section 12 . . . . . . 36
114 Section 12 and suggestion regarding appointment ' 37'
115 Section 13 . . . . .' 37
116 Section 13(ZA) (To be added') 37
117 Section 14 . . 38
118 Section 14A(New) 38
119 Section 15 . 38
120 Section 16 . . . i 38
121 Section 17(1) . . . . . . 38
122 Chief Judicial Magistrate--proposal regarding 39
123 Section 17(2) 1 39
124 Section 17(3) 39
125 Section 17(4) . . 39
126 Section 17(4)--Suggestion regarding 40
127 Section 17(5) ' ' . . 40
128 Section 17A(New) ' 40
129 Section 17B(New) ' . 40
130 Section 18 ' . . . 41
131 Section 18(5) ' . ' . ' . . 41
132 Section 18(1), and Police oﬂicers 41
133 Section 19 . 42

Para No. Subject matter Page
No.
134 Section 20 . I . - . - . - . - . - . . . . 42
135 Section 21(1)---part relatingto powers of Chief Presidency Magi -
trates. , . , . . o o . o . . . . 42
136 Section 21.(1)---part relating to rules . . . . 42
137 Section 2L(2)--subordination of Presidency Magistrates 42
138 Section 22 . . . . . . . . . . 42
139 Section 22,A(Neyv) . _ . _ . , . 43
140 Section 22B(New) H . _ . . . , . _ . 43
141 Sections 23-24 . , . , . . . . 43
142 Section 25 . _ . , . , . . _ . , . . . . 43
143 Sections 26-27 . . . 4 . , . V . 4 . . 43
144-146 Section 28 and original criminal jurisdiction of High Courts 43
147 Section 29 . . . . , . _ . . . 44
l48----149 Section 30 . . _ . , . _ . 44
150 Section 30 and conferment ,of powers' . _ . . . . 45
151 Section 30 and utility of Magistrates appointed_ thereunder . 45
152 Section 30, and suggestion of a High Court Judge . . . 46
153 Section 30 and serious offences triable b 7 First Class Magistra tes 46
154 Section 30, and suggestion for restoring pre-19,55 provision 46
155 Section 31, . 47
156 Section 32 . . . 47
157 Section 32,(1)(a), . , _ . , . . . 47
158 action 32,and suggestion .of U.P. Committee . . 47
159 Section 32, and, imprisonment upto 3 years . . 47
160 Section 33. . . . , . , . . . . . 48
161 Section 33 .and suggestion 'to make it self-contained . . 43
162 Provision for consideration after section 33. Life imprisonment 48
163 Section 34, . , . , . . . . 49
164---168 Section 35, . , . , . , . , . . . _ . _ . 49
169 Section 35 and suggestion of U.P. Committee , . . 51
170 Sections 36 to 38 . . . . . . . . . , . . . 51
171 Section 39 . . . . . . . . . o 52
172 Section 40 . ,. -. . . . . , . . . . . 52
173 Section 41.. . . , . . . . . . . . 52
174 Section 42.. . . , . . . . . , . . . . . 52
175 Section 43 . . . , . . . . . . . , . ,. . . 52
176 Section 44.. . . . . . . . . , . . . . . 52
177 Section 44 and burden of proof.. .. .o o . . 53 --
178 Section 44(1)and. oifences undet,the Railway Act . . 53
179-180 Section 45 . t . . . . . . . . . . . . . . 53
181 Sections 46 to 50 .. , . . . . . i. . . 53
182 Section 51 ,. , . .. , . _ . . 53
183 Section 51 and medical examination of the accused 54
184 Section 51 and articles of 'daily,use .. 54
185 Section 52 . . . . 7. 54
186 Section 52A(New) . . ,. 54

Subject matter

Para
No.

187 Section 53 . . . . . . . . . 54
188-189 Section 54 . . . . . . . . . 54
190 Section 54. suggestion to Limit powets . . . . 55
19I--192 Section 54 and communication of grounds . . . 55
193 Section 54 and arrest beyond jurisdiction . . . 55
194 Section 54 and recording reasons of arrest . . . 56
195 Section 55 . - . . . o n 0 o o 55
196 Section 55(1)(b) . 0 . 0 . . . . 56
19? Section 56 . - . . . . . . . 57
198 Section 57 . - . . . . . . . 57
199 -Section 58- . - . . . . . 57
200 Section 59 . . . . . . . . 57
201 Section 59A(New) . . . - . - . . . 58
202 Section 59B(New) . . . - . - . . . 58
203 Section 60 . » . . . . . . . . 58
204 Section 61 . . . . . . . . . . 59
205 Section 62--VVhether cha necessary for Presidency towns . 59
206 Section 62--Competent Magistrate (i.e. outside Presidency towns) 59
207 Section 63 . . . . . . . . . 59
208 Sections 64 to 67 . -- . . . . . . 59
209 Section 65 and issue of warrant - . . . . . 59
210 Sections 66-67 . - . - . . . . . . 60
211-214 Section 68 and service . . . . . . . 60
215 Section 68 and Corporations . . . . . 60
216 Section 68 and Benches - . . . . . . 61
217 Section 69 . . . . . . . . . 61
218 Section 70 . . . . . . . . 61
219 Section 71 . . . . . . . . . 61
220 Section 72 . 0 o o 0 o o - o 61
221 Section 73 . . . . . . . . . 51
222 Section 74 . . . . . -- . . . . 61
223 Section 74Au(New)--Sei-vice of summons by post . 61
224- Sections 75- to 77 - . - . - . . . . . 61
225 Section 78 - . -. . ». . . . . . 61
226 Sections 79 and 80 o '0 0 V . . . . 61
227 Section 81 . . . . - . . . . . 62
228 Sections 82 to 86 --. -. o o 0 . . 62
229 Section 87 - . -. . . o 0 . . . v 62
230 Section 87(2) . . . . . . . . ' 62
SCCCEOD o I 0 I 0 0 o
Section o o o u o o o . '
233 Section 8B(6B) . . . . . . . . 62
234 Section 8B(6C) . . . . . . . 63
235 Section 88 . . . . . . . . . 63
236 Section 89 . . . . . . . . . 63
Section 90 . o - . 53

237

Para Subject Matter
No.

238 Section 91 . . 64-
239 Section 94 and the accused . . . . . . 64
240-241 Section 94(1) and right of the defence to summon documents 64-
242--243 Section 94(3) and Banker-'s Books . 65
244-245 Section 95 . . . . . . . 65
246 Section 96 . . . . . . . . . 55

247 Section 96(1) and oﬂicers to whom search-warrant should b
directed. . . . . . . . . 65
248 Section 97 . . . . . . . . 66
249 Section 98 . . . . . . . . . 66
250 Section 98(2) . . . . . . . . 66
251 Section 98(2) and Judicial Magistrate , . , . . 66
252 Section 99 . . . . . . . . 67
253 Section 99A . . . . . . . . 67
254- Section 99A and obscene matter . . . - - 67
255 Section 99A Descriptive portion . . . . 67
256 Section 99B 7 . « . ~ . . - . - . - . 67
257-258 Section 99c to 99F . . . . . . 68
259 Section 99G . . . . . . . 68
260 Section 100 . . . . . . . 68
261--264 Section l00--Notice and procedure for inquiry . . 68
265 Sections 101 and 102 . c c 0 o . . 70
266 Section 103 . . . . . . . . 70
267-271 Section 103---Various other suggestions . - . 70
272 Section 103 and search of the person . . 72
273 Section 103 and list of respectable persons . . 72
274 Section 103 and suggestion of UP. Committee . . 72
275 Section 103(3) . . . . . . 72
276 section 104 . . . . . . . 72
277 Section 105 . . . . . . 72
278 Section 105A . . . . . 73
279 Section 106 .. -. e. -. -. -. 73
280 Section 106 and the offences covered . . . . 73
281-282 Section 106 and the words "oﬂence involving breach of peace". . 73
283 Section 106(3) and Sessions Judges . . 75
284 Section 106 and Magistrates empowered . . 75
285 Sections 106 and 110--maximum period . . 75
286 Sections 107 to 110--Retention of (general question) 76
237 Section 107 . . . . . . . . 76
288-290 Section 107(1) and suggestion of a High Court Judge . 76
291--295 Section 108--retention of jurisdiction under . 77
296 Section l08--changes required . . . . . . 81
297 Section 109--Suggestion regarding intention to commit crime . 81
298 Section 109--Powers under . . . . . . 81
299 Section 109(3), and the words "to conceal his presence". . 31
300 Section 109(b)---Constitutionality of . 82

P .
£21 Subject matter Pig

301 Section 110(e) and l10(f) 34.
302 Section 110 and- illicit distillation 84
303 Section 110-Magistrates to be empowered . 84
304 Section 110 and other points . 84
305 Sections 111 to -116 -- . . 84
306 Sections 112 and 117-(1)--Remand 84
307-308 Section 1l7--Powers under . 85
309 Sections 118 to 122 85
31o--312 Section 122 . . * . . . as
313 Section 123(2) and Magistrates empowefed . . . 87

314--315 Section 123 'and suggestion to delete conﬁrmation by Sessions
u 83- ' - ' 0 ' o 0 0 o c . . . 87'
316 Sections 124 and 125, and separation - . . - . 87
317 Section 124 . . _ . _ . 37
318 History of section 124 . . . . . . . . 88'

319 Power, to release persons imprisoned for failing to give secu-
'itY o . . . . _ . , . , . . . . 88
320 Section 125 89
321 Section 126 89
322 Section 126 A _ . 89
323--324 Sections 127 to 132A . . . . . . 89
325 Section 127 and suggestion qf Madras Bar Council . . 90
326-329 Section 127(1) and suggestion of a_ High_Cou§t Judge . . 90
330 Section 133 _ . . . . . . . . . 91
331 Sections 133-34 and U.P. Committee's suggestion 92
332 Section 133(1) and Magistrates empowered . . . . 92
333 Section 133 and Jury . . . . . . . . 92
334 Section 133 and_ summons _pi-ocedure. . ' . . . . 92
335 Section 134 . . . 93
336 Section 135 . . _ . . _ . _ . 93
337 Sections 135-136 and U,P. Cqmmit_tee's suggestion . 93
S€Cti0I'l . _g _u _o _u ,0 O 0 Q .
339 Section 137 . V . . . 93
340 Section 137A(New) . . . . . . . . 93
341 Sections 138 to 139 and suggestion of High Court Judge . 93
342 Sections 138-l39'and U.P. Committee's suggestion 94
343 Section 139A . . . . . . . 94
344 Section 139A and U.P. Committee's sugestion . 95
345 Sections 14Q to 142 _ . 95
346 Section 143 . . . . . 95
347 Section 143 and need for previous adjudication 96
348 Section 143 and penalty and _procedure . . . . 96
349 Section 144--Validity of . . . 96
350 Section 144 and Members of Parliament . 96
351 Section 144 and newspapers 95
352 Section 144(1) 97

Para Subject matter Page
No. No,
353 Section 144(1) and competent Magistrates . . . . 97

354 Section 144(3) and meaning of the expressions "place" and "fre-
quenting." . . . . . . . . . 97
355 Section 144(6) . . . . . 97
356 Section 144(6)--Suggestions regarding . . . . . 97
357 Section 145(1) . . . . . . . . . 98
358--363 Section 145(1) and date . ' . . . _. . . 98
364 Section 145(1) suggestion of a High Court Judge _ . . . 100
365 Section 145(1) and date . . '. '. . . . . 101
366 Section 145(1) and omission to record grounds _ . . . 101
367 Section 145(2) . . . . . . o . . 101
368 Section 145 and suggestion of U.P. Committee . . . 101
369 Section 145(6) and punishment by Magistrate I . . . . 102
370 Section 145(1) and suggestion to exclude private complaints . 102
371 Section 145(1) and suggestion for service of aﬂidavits . . 103
372 Section 145 and resolution of Lawyers' Conference . . . 103
373 Section 145(3) . . . . . . . 104
374 Section 145(4) . . . . . . . 104
375 Section 145(4) 3rd proviso . . . . . . . 104
376 Section 145(4A) New . _ . . . . . . . 104
377 Section 145(5) and restoration . . . . . . 104
378 Section 145(5) . . . . . . . . 104
379 Section 145(5) and release from attachment . . . . 104
380 Section 145(5A)(New) . . . . . . . . 104
381-384 Section 145(6) and penalty for disobedience . . . . 104
385-386 Section 145 (6) and restoration to party previously in possession . 105
387 Section 145(6A)(New) . . . . . . . . 105
388 Section 145(7) and (8) . . . ' . . . . . 106
389-390 Section 145(9) . . . . . . . . . 106
391 Section 145(10) . . . . . . . . . 107
392 Section 146 . . . . . . . . 107
393 Section 146 and view of High Court Judge . . . . 107
394 Section 146 and suggestion of the U.P. Committee . . . 108
395 Section 146 and revision . . . . . . . 108
396 Section 147(1) . . . . . . . . . 108
397 Section 147(1A) . . . . . . . . . 108
398 Section 147(2) . 109
399 Section 147(2), proviso . . . . . . . 109
400 Section 147(3) . . . . . . . . . 109
401 Section 147--A(New) . . . . . . . . 109
402 Section 148 . . . . . . . . . 109
403 Sections 149 and 150 . . . . . . . . 109
404 Section 151 and seizure of subject of dispute, . . . . 110
405 Section 151 and breach'of peace I. 3. . i . . . 110
406 Section 152 . . . . . . 110
407 Section 153 . . . . . . . . . 110

Para

No. Subject matter Plalie
408-409 Section 154 and First Information Report by the accused . . 110
410-412 Sections 154 and 155 111

413 Section 155(1) . , 112
414 Section 155(2) . 112
415 Section 155---Explanat1on (New) . . . 112
416 Section 155(2) and cognizable oifences . . . . . 112
417-418 Section 155-. . '. '. . . . 113
419 Section 156' . . . , , , , , _ 114
420 Section 156(3) and suggestion as to particular police oﬂicer I14
421 Section 157 ' . . . . . . . . . 114
422 Section 157 -and investigation' in areas of other police stations . 114
423 Section 158(2) . 114
424 Section 159' . ' . . . . . 114
425 Section 160 and expenses . . . . 114
426 Section 160 and attendance of women . . . 115
427 Section 160- and requiring attendance for identiﬁcation 115
428-434 Section 160 and applicability of section 160 to the accused . 116
435-436 Section 161 and obligation to speak the truth . 113
437 Section 161 and points in 14th Report . 118
438 Section 161 and confessions . . . 110
439-440 Section 161 and sending of 'copies . . . . . 120
441 Section 161 and sending of ' copies toMagistrates--Suggestion
, of Madras Bar Council . . . . . . 121
442-445 Section 161 and identiﬁcation parades 127-
446---448 Section 161 and Judges Rules . 113
449 Section 162(1) . . . . . . . . . 125
450-451 Section 162 and cross-examination by the prosecution of defence
' witness. ' . ' . . I . . . . . . . 125
452 Section 162 and suggestionitozsubstitute "cross-examination" for
- "contradiction". » . - . . . . 125
453 Section 162(1) proviso, - and Court witnesses . . . . ' 127
454-455 Section 162(1), proviso and omissions -- . . . . . 127
456----45 8 Section 162(1) and suggestion regarding presence of Counsel . 127
459 Section 162-various suggestions. . ' . . . . 129
460 Section 163(2) . 129
461--464 Section 164(1) . 129
465 Section 164 and exclusion of police 130
466 Section 164(2) and administration of oat]: 130
467 Section 164 and confessions made before investigation 131
468 Section l64(3)----Suggestion of a High Court Iudge 131
469 Section 164 and Identiﬁcation' ﬁnger prints etc. . . . l 132
470 Section 164 and retracted confessions . . . . . 132
471 Section 164 and recording statements at the instance of the
' accused. . . . . . . . . . . 134
472 Section 164(1) and'.-iuggestion to make recording of statements by 1
Magistrate obligatory. . . . . . . . 134
473 Section 165 . . 135

Para

Subject matter Page
No. No.
474 Section 165(5) . . . 0 . . . 135
475 Section 165 and recovery by police of abducted persons 136
476 Section 166 . . . . 136
477--478 Section 167 and period of remand . 136
479 Section 167 and remand for more than 15 days . 137
480 Section 167 and Magistrates to be empowered 137
481 Section 167(2) and military custody . . 137
482 Section 167 and physical production of the accused. 138
483 Section 167(4) 138
484 Section 168 . 138
485 Section 169 138
486 Section 170 138
487 Section 171 . . 138
488 Section 172 . . . . . . . . . 138
489-490 Section 172(1) and suggestion regarding sending case-diaries to the
Magistrate. . . . . . . . . . 138
491 Section 172(2) and suggestion regarding sending diaries in capital
cases . . . . . . . . . . . 13 9
492--497 Section 172 and discretion to be given to court to allow inspec-
tion. . . . 0 . . . . . . 13 9'
498 Section 173(1)(a) . . . . . . . . . 141
4-99--502 Section 173(1)(a) and investigation after chalan . _ 141
503-504 Section 173(1) and suggestion for barring re-investigation 142
505 Section 173 and complaint cases . 143
506 Section 173(4) . . . . . . . 143
507 Section 173(4) and suggestion of a State Government 143*
508 Section 173(4) and suggestion of a High Court Judge , 144
509 Section 173(4) and suggestion of Special Police Establishment
ﬂicers. . o . . . . . . . . 144
510 Section 173(4) and suggestion of Public Prosecutor, Madras . 144
511 Section 173(4) and suggestion of Commissioner of Police, Madras 145
512 Section 173(4), and copies left out through mistake . 145'
513 Section 173(4) and immediate supply of copies , 145.
514 Section 173(4) Various other suggestions . _ 145:
515 Section 173 and cases of corruption . . 147'
516 Section 173(4) and section 202 . . . . . . 147'
517 Section 174 and suggestion regarding death in police custody 147'
518 Section 174(5) . . . . . . 147
519 Section 175(1) . . . . . . . 147
520 Section 175(1) and suggestion regarding copies . . . 148,
521 Section 175A suggestion regarding consequence of failure to send
copies. . . . u . . - . . 148
522 Section 176 and information to relatives . . . 148
523-524 Section 176(1) and death in police custody . . . 148
525 Sections 177 to 565 . . . . . . 149
526 Appendices . . . . - - - .

149

APPENDIX
No .

LIST I
List of Appendices

SEc'rIoN

PAGE of THE REPORT

APPENDIX 1

APPENDIX 2
APPENDIX 3

APPENDIX 4

APPENDIX 5
APPENDIX 6

APPENDIX 7

APPENDIX 8

APPENDIX 9

APPENl)IX 10

APPENDIX 1 1

APPENDIX 12
APPENDIX 13
APPENDIX 14

APPENDIX 15

APPENDIX 16

Note on section 1.
Note on section 4.

Note on section 15(2) and Powers
of Bench.

Note on section 18
Note on section 51.

Note on section 94 and the accu-
sed.

Note on section 109(a)---"con-
cealing".

Note on section 144(3) and the
expression "place" and fre-
quenting.

Note on section 144(6).

Note on section 161 (2) and the
expression "truly".

Note on section 162.
Note on section 163.
Note on section 164(3).

Note on section 167 and section
344.

xiii

Recommendations as

shown in the form

of draft amendments

to the existing Code .
180

182

198
200
203

208

213

216
217

219
223
234
234-
235

Recommendations in
respect of other Acts.

THIRTY-SEVENTH REPORT ON THE CODE OF
CRIMINAL PROCEDURE, 1898.

(SECTION 1--l76)

1. Revision of the Code of Criminal Procedure, 1898,
has been undertaken by the Law Commission in the follow-
ing circumstances. '

After the Law Commission submitted its report on the
Reform of Judicial Administration,' Government asked the
Law Commission to undertake examination of the Code,
not merely from the point of View of implementing the
recommendations made in the Report referred to, but also
with the object of attempting a general revision. Work on
the subject was started immediately, and has been conti-
nuously going on since then, The process of revision took
time because of the vastness and importance of the subject-
matter, the proliﬁc case-law that had accumulated on the
Code, the several important matters of constitutional im-
portance that had to be considered, the voluminous sugges-
tions received on the subject, the detailed study that was
needed for examining the effect on the Code of the sepa-
ration of the Judiciary from the Executive, and the pre-
occupation of the Commission with certain other subjects
which were urgent.

2. In the revision of the Code, as proposed here, we
have proceeded generally on the lines usually followed in
the Commission's other Reports on the revision of statutes.
Attention, however, should be drawn to some important
aspects. First, a law of Criminal Procedure affects a larger
number of persons than most other laws; secondly, criminal
law is an instrument for the protection of society, and
criminal procedure is its chief means. Criminal Courts are
the main agencies for its administration. The ordinary
citizen is, or is likely to be brought, directly or indirectly,
into contact with the criminal law, more often than with
most other laws. He may appear as a witness, a juryman,
or, often, as an accused or a complainant. If he is the
accused, he may be faced with the possibility of loss of
personal liberty (and sometimes life) and in most cases,
even if he is acquitted, a harm to his reputation. Beginning
with arrest and ending with appeal to the highest appellate
court, the stages of a criminal proceeding touch the indivi-
dual in vital matters. A decision as to the policy to be
adopted in the procedural law, therefore, often involves
a nice balancing of conﬂicting considerations, a delicate
weighing of opposing claims clamouring for recognition,
and the -extremely diiﬁcult task of deciding which of them
should pre-dominate.

The very nature of the subject-matter is, thus such,
that human values are involved to a greater degree than in

Genesis of
the report

Objectives
of revision

1- 14th Report of the Law Commission (Reform of Judicial Administration).

1
2-29 Law,'68

Importance
of the code

Object of
the code

other laws. On any responsible body of persons, this work
would impose considerable mental and moral strain. We
hope that our recommendations as to the changes to be
made or not to be made in the existing law have done
justice to the subject, though we do not expect that all
of them will ﬁnd universal or general acceptance.

3. Some of the problems which We had dealt with are
of a recurring nature; such as, the law of arrest; the ques-
tioning of the accused; the use in evidence of statements
recorded during investigation by the police; and so on. The
consideration of speed and the demands of justice had to
be harmonised, in dealing with these and similar problems.
Often, the solution was not easy, as each of the alternatives
had weighty arguments in support. What appears in this
Report as our conclusion on some of the important matters
was not arrived at without some hesitation.

4. The importance of a Code of Criminal Procedure is
based on two considerations :--

First, expense, delay or uncertainty in applying the
best laws for the prevention and punishment of offences
would render those laws useless or oppressive; secondly,
the law relating to Criminal Procedure is more con-
stantly used and affects a greater number of persons
than any other law.'

5. Very brieﬂy stated, the object of Criminal Procedure
is the ascertainment of the guilt or innocence of the
accused. Therefore, the matters dealt with in a Code of
Criminal Procedure would mainly pertain to the various
stages incidental to the process of ascertainment of the
guilt. From the legal point of view, the law of Criminal
Procedure is the law dealin with the process of applying
the instrument of Criminal aw--punishment----to the facts
of a particular case.

6. The object of the Code of Criminal Procedure is,
(to state it in a different form), to provide a machinery
for the punishment of offences against the substantive
law."-3 Thus, a Code of Criminal Procedure would mainly
deal with the judicial process in so far as it pertains to
the institution, conduct and disposal of criminal prosecu-
tions.

7. If the law of Criminal Procedure had only tb deal'
with the chronological stages of a criminal trial, it would
have been very simple and short. That is not so, how-
ever, because human values are involved. '

8. Because a criminal trial involves human issues, the
right to a fair trial ﬁgures prominently. The requirements
of a fair trial, speaking broadly, relate to the character of

1. Stokes, Anglo-lndian Codes, Vol. 2, page 1.
"'"2'.'é;7mesh Narain, (1889) 1.1_.p.. 13»-Blom. 590, 593.
3 E. V. Abdul Rehman, (1891), I.L.R. 16 Bom. 580, 584.

the court, the venue, the mode of conducting the trial (parti-
cularly trial in public), rights of the accused in relation to
defence, and other rights.'

9. Moreover, before the actual trial, there are stages of
some importance, namely,--

(i) investigation, which is the gathering of facts;

(ii) the magisterial inquiry in important cases---which
is the unfolding and testing of the prosecution
case-,2 and

(iii) the charge which is the ﬁnal instrument giving a
precise shape to the accusation. The law has to deal
with them also.

These matters. increase the ﬁeld and volume of the
inquiry to be embarked upon, when revising a Code of
Criminal Procedure.

10. On some of the important sections of the Code, the Reports
Law Commission has already submitted reports separately. submitted
These Reports deal with some matters which required
detailed and separate examination or urgent considera-
tion."--'-5

Besides these, the Commission also had to study the
procedural provisions in various special laws, in connection
with its report on Soc1o--econom1c offences.'

11. The materials studied by the Commission for the Materials
revision of the Code may be brieﬂy classiﬁed as-- studied

(a) case-law;
<(b) local amendments;

~(c) law in other common-law countries, wherever prac-
ticable and relevant, and the literature thereon:

«(d) eﬁect of the constitutional provisions, particularly
those dealing with fundamental rights;

(e) Report of the Commission on the Reform of Judi-
cial Administration (14th Report).

right,1,.' 7lSl,ar1ri6s,I.(*::'£l1(e2- gisggrt to afair trial in criminal proceedings as ahuman

2. See Devlin, The C'imina1 Prosecution in England (E.L.B. Edn. 1966), page
111.

3. 25th Report, (Report on Evidence of Officers about forged stamps, currency
notesetc.(Section 509A, Code of Criminal Procedure, as proposed)

4. 32nd Report (Section 9, Code of Criminal Procedure, 1898).

5. Report on section 44 ofthe Code--Proposal to insert provision for disclo-
sure of offences relating to bribery etc. (The Report is under submission).

6. 29th Report (Report on the proposal to include certain Social and Economic

«Offences in the Indian Penal Code).

(f) Suggestions received from time to time by the
Commission being----

(i) suggestions forwarded by the Government of
India or State Governments or High Courts;

(ii) opinions or suggestions which were received by
the Joint Committee which examined the
Amendment Bill of 1954';

(iii) other suggestions relating to sections of the
existing Code made directly to the Law Com-
mission;

(g) academic literature.

12. We have found that in many cases it was neces-
sary to examine in detail not only the Codes of 1861, 1872,
1882 (predecessors of the present Code), and the Code of
1898 as it stood before the amendments of 1923 and 1955,
but also the debates and discussions relating to those Codes
in the Legislature, and the suggestions and opinions which
were considered by the various Committees which were
entrusted with examining the Bills which ultimately led to
the Codes of 1861, 1872 and 1882 and the present Code, and
the Amendment Acts of 1923 and 1955. It may not, perhaps,
be out of place to mention here, that the Amendment Act
of 1923, which made important amendments in numerous
sections of the Code, was the result of a long period of
discussion and consideration, extending over a period of
12 years.

Lines on 13. Some idea of the lines on which the Code should
which Code be revised may be obtained from the lines on which its
'°Vi5¢d in revision has been done in the past. The Code of 1861, was
'he 9°" the ﬁrst general Code" of Criminal Procedure appli able
to the whole of British India (excepting the Presi rncy
Towns and the High Courts), while the ﬁrst revision? was
done in 1872. The revision attempted in 1872 appears in inly
to have been directed at a re-arrangement of the sectio in
more convenient and useful ﬂorm, together with changes
of substance in a few sections. Case-law on the previous
Code had not, at that time, accumulated to such 8. eat
extent as to require detailed examination from the grriint

of view.

14. The primary object of the Code of 1882 was to
re--cast the Code of 1872, and also to consolidate with it the
substance of the High Courts Act and the Presidency Magis-
trates Act, and to incorporate in it the numerous reported

estions forwarded to the oint Committee were not embodied
in th,l,'A%:,::?ilngs'}13gi%1 of 1954. The Joint Comnilittee stated, that some of theseraised
important issues and opportunities for eliciting general opinion thereon had not yet
been given. The Joint Committee recommended that these should be taken up for
consideration after circulating them for ublic opinion, and, if necessary, Govern-
ment might bring before the House another suitable Amending Bill (Report of the
Ioint Committee dated 3rd September, 1954, para. 55)-

2. For detailed historical discussion, see paragraphs 17 et seq, infra.

decisions on its wording, and thus give to India "a single
and complete Code of Criminal Procedure, and carry out,
so far, the policy of providing a simple and uniform system
of law for that country."'

_ The language of the Code of 1872 was departed from
in 1882 only so far as was necessary for the main purpose.

The secondary object of the Code of 1882 was to consoli-
date portions of certain special enactments (7 in number)
dealing with the execution of process, the police, justices
of the peace, inquiries into crimes committed abroad by
British subjects etc. Thus, the process was in the nature
of consolidation of statutes plus amendment.

The Code of 1898 was mainly a revising measure,
intended to--

(a) incorporate changes made by several Acts which
amended the law of criminal procedure;

,(b) deal with matters brought to the notice of the
Government of India, in regard to necessary amend-
ments of the law; and

(c) to remove defects and difficulties in administering
the law and contradictory interpretations, as shown
by the Law Reports."

15. The Amending Act of 1923 had its genesis in the
Bill of 1914. In the Statement of Objects and Reasons,"
the object of the amendment was thus stated. "Since the
existing Code was passed, a number of suggestions for the
amendment of particular points have, from time to time,
reached the Government of India, and the Police Commis-
sion has also made various recommendations. The present
Bill is the outcome of the examination of this accumula-
tion of proposals, and is one of the series of revisions which
experience of the actual working of the Code has necessi-
tated from time to time."

The Amendment Bill of 1955 was mainly intended to
ensure speedy disposal of cases, and to make certain other
amendments on certain matters of importance.

16. Thus, the process began with consolidation in 1882.
After consolidation, the main revision of the Code has been
in the direction of re-arrangement, incorporation of case-
law and changes on certain matters of policy. After the
Amendment of 1923, a lot of case-law has accumulated. It
may also be stated, without meaning any disrespect to those

1. Stokes, Anglo--Indian Codes, Vol.2, page 4-
2. See Statement ofObjects and Reasons to the Bill of 1897.

3. Statement of Objects and Reasons to Bill No. 3 of 1914, Gazette oflndia,
1914, Part V, page 119.

Historical
survey

Position
before 1861

who framed the Amending Act of 1923, that on certain sec-
tions, fresh controversies have arisen by reason of some of
the amendments introduced in 1923.1 The task of revision
now is a stupendous one, involving, as it does, a study of---

(i) hundred years of case-law ;
(ii) the genealogy of many sections of importance ; and

(iii) local amendments, particularly of the ﬁeld of sepa-
ration.

17. A historical survey of the Code itself is not out of
place before we deal with the major changes. History of
the Code seems to represent four stages-

(a) The period of formation;
'(b) The period of consolidation;
(c) The period of revision; and
(d) The period of reﬁnement.

18. An idea of the diversity in the structure of criminal
courts and their procedure, in 1855, can be had from the
fact that in their First Report3 the Commissioners on the
Reforms of the Judicial Establishment had to prepare as
many as 8 parts, outlining the Constitution and procedure
of the various Courts as follows 1--

"Appendix B

1. Outline of the Constitution and Procedure of Her
Majesty's Supreme Courts of Judicature at Cal-
cutta, Madras, and Bombay. '

2. Outline of the Constitution and Powers of the
Justices of the Peace and Magistrates of the Presi-
dency Towns of India.

3. Outline of the Constitution and Procedure of the
East India Company's Courts of Civil Judicature in
the Presidency of Bengal.

4. Outline of the Constitution and Procedure of the
East Indian Company's Courts of Criminal 'Judi-
cature in the Presidency of Bengal.

5. Outline of the Constitution and Procedure of the
East India Company's_ Courts. of Civil Judicature in
the Presidency of Madras.

6. Outline of the Constitution and Procedure of the
East India Company's Courts of Criminal Judica-
ture in the Presidency -of Madras.

. econ rovers recrar in_ ni iono com ain is one su exa e.
lTh t y ,,d2deﬁt f" It" ch ml

2. See First Report ofthe Commissioners on the Reform of Judicial Establishment
nlndia, (1855), page 208 (AppendixB).

7. Outline of the Constitution and Procedure of the
East India Company's Courts of Civil Judicature in
the Presidency of Bombay,

8. Outline of the Constitution and Procedure of the
East India Company's Courts of Criminal Judica-
ture in the Presidency of Bombay."

19. The Code of 1861 was the result of long labours 1861 Code.
spread over a number of years. We quoted from Stokes',-

"So long ago as the 20th March, 1847, the President
in Council instructed the Indian Law Commissioners
to prepare a scheme of pleading and procedure with
forms of indictment adapted to the provisions of the
Penal Code, and such a scheme, together with several
forms, was prepared by Messers Cameron and Elliott,
and submitted with a report dated 1 Feb. 1848? Their
draft was examined and considered by a new set of
Commissioners appointed in 1854 under 16 and 17 Vict.
c. 95, section 28, and comprising Sir John Romilly M. R.,
Sir John Jervis C. K., Sir Edward Ryan. and Messrs
Cameron, Ellis, Lowe (now Lord Sherborne), and
Millett. These Commissioners produced a draft Code
which was presented to Parliament in 1856, and was
in the following year introduced into the Legislative
Council by Mr. (now Sir Barnes) Peacock. It ulti-
mately was passed by the Legislative Council as Act
XXV of 1861. This Code came into force on 1 Jan.
1862: it applied in the ﬁrst instance only to the terri-
tories subject to what were called the general regu-
lations, but was gradually extended to the rest of British
India except the Presidency-towns. It was amended by
Acts 33 of 1861, 15 of 1862, 8 of 1866, and (very largely)
by Act 8 of 1869."

20. In 1872, the principal Code and its amending Acts 1872 Ccde.

were repealed and replaced by Act 10 of 1872, The Code
was drawn partly by Mr. '(later Sir Fitzjarnes) Stephen
(who framed the sections corresponding with sections
221-240 of the present Code)" ' and partly by Mr. H. S. Cun-
nighamf but chieﬂy by Captain Newbery, Personal Assis-
tant to the Inspector General of the Punjab Police."

21. The history of the Code of 1861 and other Acts upto 1861 Code
1872 was thus' traced by Sir James Fitzjames Stephen (them "$15 031;):

Mr. Stephen) while presenting the Supplementary Report 1872
of the Select Committee on the 1872 Bill.

I. Stokes, Anglo~lndian Codes, Vol. 2, pages 1-2.

2. There was aprevious report dated 4Nov. 1843 regarding the qualiﬁcations,
summoning, and challenging assessors and jurors. This I have not seen.

. Stephen, History ofthe Criminal Law, iii. 337n-

4. Mr. Stephen also drew Chapters Il--VII, XXIII (chief) and XXXVI.

5. Mr. Cunningham drew section 90, most of Chap. XIX, and Chap. XXXIV.
6. See Stokes, Anglo--Indian Codes, Vol. 2, pages 1-2.

7. Speech of Mr. Stephen, Proceedings of th: Governor General in Council'
dated 16th April, 1872.

"I may perhaps be allowed to give, in a very few
words, the history of the Code. It has been built up by
slow degrees by the labours of successive generations of
legislators ever since legislation ﬁrst began in this country.
The very earliest Regulations of 1793 provide for the estab-
lishment of a system for the administration of criminal jus-
tice. Th1S system was repeatedly altered, varied and re-
adjusted, so as to meet the varying wants of the country and
to supply the requirements which were shown by experi-
ence to exist. The mass of legislation which thus accu-
mulated was very large, and when the Penal Code was
passed in 1860, it was considered a matter of pressing im-
portance to prepare a Code of Criminal Procedure as quick
as possible, in order to act as a companion to it. Act XXV
of 1861 was the result. It threw together all the existing
law on the subject to which it related, and so consolidated
an immense mass of Re lations and Acts. I will not say
how many, but I think ey were counted by the hundred.
Act 25 of 1861 was drawn by men thoroughly well acquaint-
ed with the system with which they were concerned; but
I am inclined to doubt whether -they did not know it rather
too well, for they certainly threw the various provisions
together with very little regard to arrangement, and with-
out any general plan. Various Acts for the amendment of
the Code became necessary after it had been passed. These
were consolidated by Act XVIII of 1869. The result was
rather to increase than to diminishthe confusion which had
previously existed. Act VIII of 1869 was not regarded as a
ﬁnal measure, and a correspondence on several points con-
nected with it, and with the further reform of the system
of criminal procedure took placelbetween the Government
of India and the Indian Law Commissioners, who gave
their opinion on various matters submitted to them in one
of their very latest reports. This report was the cause of
the present Bill. I must now say what appears to be neces-
sary upon its provisions." '

22. Mr. Stephen then proceeded to make some obser-
vations as to the chan es introduced. "I wish, in -the ﬁifst
place, to state distincty my own position with regard 'to
the Bill. Of course, I am fully responsible for it; but at the
same -time I must observe that I have not been so presump-
tuous or foolish as to attempt Q0 introduce modiﬁcations
of my own devising into the workin of a system gradually
constructed by the minute care an vast practical experi-
ence of many successive generations of Indian administra-
tors and statesmen. I have carefully avoided that fault. I
have regarded myself, rather as the draftsman and secre-
tary of the Committee, by whom all the important working
details of the Bill have been settled, than as its author;
and to them, rather than to me, is due any merit which
may attach to the practical improvements which I hope this
Bill will be found to have introduced in the administration
of criminal justice, and in the general maintenance of the
public security. I am the more anxious to say this, because,

'when I last addressed the Council on this subject, I made
various criticism from the point of View of an English
lawyer on the administration of justice in this country."

23. Continuing his speech, Mr. Stephen then stated, ''I
do not wish to retract or to modify what I then said. I
shall feel that the system of criminal justice in this country
is open to serious objection, and would admit, in course of
time, of considerable improvement. I think I could suggest
means by which those improvements might be brought
about quickly and gradually; but the task of the critic
differs essentially in my opinion from that of the legislator.
The task of the critic is to form and express his opinion
as pointedly as possible, in order that they may form the
subject of public discussion and gradually produce whatever
effect may properly belong to them. The task of the legis-
lator, in reference to an existing system like that of Indian
Criminal Procedure, is much more like that of the editor
'of a law-book. It is his duty to re-arrange, to explain what
experience has proved to be obscure, to supply defects, and
to make such alterations as harmonize with, and carry
out, the leading idea of the system with which he is con-
cerned_ The notion that any one could, if he would, or
'that he ought to wish, if by any accident he had the power,
to make a new set of laws for his fellow-creatures out of his
own head, and without reference to existing materials, is, to
my mind, altogether wild and absurd. This I believe to be
true everywhere, but it is emphatically and peculiarly true
of India. It is simply impossible to make extensive changes
'in the administration of this country suddenly. The reason
is obvious, though I think people in England are apt not
unnaturally to overlook it. It is, that the number of officers
"is so small, their duties so unremitting, and the nature of
the engagements between them and the Government which
employs them so stringent, that the Whole administration
would be thrown into confusion by any change which
'greatly altered the duties, or involved any serious modi-
ﬁcation in the position, of the officers concerned."

24. The Code of 1872 did not extend to the Courts estab- Separate

'lished by Royal Charter in Calcutta, Madras and Bombay. m
The position, as stated by Stokes,' was as follows :.--- and p,;,_
dency towns

"For these Courts, as well as for the High Court at
Allahabad and the Chief Court at Lahore, provision was
imade by Act 10 of 1875 (to regulate the procedure of
the High Courts in the exercise of their original crimi-
nal jurisdiction), which reduced the number of jurors
to nine and the number of pre-emptory challenges to
eight, dispensed with the necessity of a unanimous
verdict, codiﬁed the law relating to habeas corpus, pro-
vided a simple substitute for the writ of certiorari,

1. Stokes, Anglo-Indian Codes, Vol.2, pages 2-3.

and repealed and re-enacted in an improved form the
seven Acts' by which the Legislature had from time to
time amended the criminal procedure of the Supreme
Courts, or their successors the High Courts. This Act*
was drawn by the writer and carried by Mr. (now Lord)
Hobhouse. The Code of 1872 was also inapplicable to
the Magistrates' Courts at Calcutta, Madras, and Bom-
bay. For these, provision was made by Act 4 of 1877
(_to regulate the procedure and increase the jurisdic-
tion of the Courts of Magistrates in the Presidency
Towns)._ This Act, which increased the jurisdiction of
the Presidency Magistrates, assimilated their procedure
to that of the provincial Magistrates, and made many
other improvements, was drawn by the writer and
carried by Mr. (now Sir Theodore) Hope."

1881 Code 25. The position before 1882 has been thus stated:--"

"It thus appears that, before the present Code of.
Criminal Procedure was passed, no less than three such

Codes were in operation in British India: Act 10 of

1872, amended by Act 11 of 1874, which was in force

throughout the Mufassil; the High Courts Act, 10 of'

1875, which was in force in the Presidency-towns,
Allahabad and Lahore; and the Presidency Magistrates

(Act 4 of 1877), which. also, was in force in the Presi-

dency-towns."

"Many of the provisions of these Codes merely"
repeated one another; many of their rules, though-
dealing with the same subjects, unnecessarily varied in
language; and the result was that the bulk of the Indian
Statute-book was far greater than it needed to be, and'
that the Courts when construing one Code were often
deprived of the guidance of prior decisions on another."

26. The object of the 1882 Code has been thus described
by Stocks:------"

"The primary object of the present Code, which

was framed by the writer at the suggestion of the)

Secretary of State in his despatch (Legislative), No. 414,
dated 26th October, 1876, was to recast the Code of 1872,

combining with it the substance of the'High_CourtS"
Act and the Presidency Magistrates' Act, and 1ncorpo----

rating in it the numerous reported decisions on its

1. Acts 3] of 1838, 22 of 1939, 4 of 1862 (except sections 26-35, 47-53), and Act
13 of 1865, a useful measure, carried by Sir H. Maine, with (inter alia) abolished grand
juries. Certain other provisions relating to the criminal procedure of the Supreme
Courts were contained in9Geo.4 c. 74, which was repealed by Act 10 of 1875,
with the exception of section 1, 7, 8, 9, Z5, Z6 and 56. It also repealed certain enact-
ments (in Acts 24 of 1866 and 13 of 1869) relating to the High Court for the NW.
Provinces.

2. Except sections 97 and 98 (Act 10 of 1882), section 305, which were drawn
by Mr. Hobhouse.

3. Stokes, Anglo-Indian Codes, Vol. 2, pages 344.

'11

working, and thus at last give to India a single and com-
plete Code of Criminal Procedure, and carry out, so
far, the policy of providing a simple and uniform system
of law for that country. The language and arrange-
ment of Act 10 of 1872 were, for obvious reasons,
departed from only so far as was necessary for the
main purpose of the Code. But it was obviously im-
possible to reproduce the inartiﬁcial wording of many
of the sections, and an arrangement according to which,
for example, the provisions for the prosecution of crimes
came before the provisions for their prevention. and
the change (i.e. the written accusation of an offence)
was dealt with after trials, appeal and execution."

27. The Code of 1898 was a revision proposed for these 1893 Code
reasons.'

"It has been usual to consolidate and amend the
law relating to Criminal Procedure at the end of suc-
cessive decades. Thus, the first Code of Criminal Pro-
cedure Act. 25 of 1861, was succeeded by Act 10 of 1872
and the latter was followed by Act 10 of 1882.

"Since 1882 there have been passed sixteen Acts'
all relating to Criminal Procedure and many of them
expressly amending the Code of 1882.

"In addition to this, several matters have been
brought to the notice of the Government of India in
regard to necessary amendments of the law, which have
been deferred until the periodical amendment of the
Code shall have been undertaken. The Law Reports
also have shown many defects and difﬁculties in ad-
ministering the law and occasionally contradictory
interpretations by the High Courts in giving it effect.

"On these considerations the Government of India
have determined again to consolidate and amend the
law relating to Criminal Procedure. Such alterations
as have been made in the present law are printed in
italics, and the material amendments it is proposed to
introduce are referred to in the notes on clauses given
below. Where changes have been made in the num-
bering of existing sections. their former numbers have
been given on the margin."

28. The 1898 Code has been amended by numerous Acts
of the Legislature. Of these, the most important were two
Acts of 1923. the Criminal Law Amendment Act (12 of 1923)
and the Code of Criminal Procedure Amendment Act, 1923

91. Statement of Objects and Reasons to the Code of Criminal Procedure Bill,
18 7.

2. Act} of1884; Act 10 of 1886, Act 5 of 1887; Act 15 of 1887: Act I of 1889:
Act 5 of 1889; Act 13 of 1880-, Act 3 ofl891', Act 4 of 1891; Act 10 of 1891; Act 12
ofl891; Act3of 1894; Act 10 of 1894; Act 40f l895;Act 50f 189S;Act 5 of
1800 and Act 17. of 1896.

(18 of 1923). The genesis of Act 18 of 1923 dates as far back
as l91t_l. In 1914, a Bill (No. 3 of 1914) was introduced in the
Imperial Legislative Council, and was thereafter referred
to the Local Governments and Administrations. Their opi-
nions raised numerous queries. Meanwhile, in 1916 the
Government referred this Bill and the opinions received
thereon to a Select Committee !(known as the Lowndes Com-
mittee). The Bill (as revised by this Committee) was again
introduced in the Imperial Legislative Council in 1917. Some
further suggestions for the amendment of -the Code were
received by the Government in the meanwhile. After the
termination of the war, a new Bill was prepared in 1921,
which was substantially the same as the one introduced in
1917. This Bill (No. 3 of 1921) was introduced in the Council
of State on the 21st February, 1921, and was referred to a
Joint Committee.

29. The Joint Committee submitted its report after a
year (in September, 1922); and the Bill as revised by this
Committee, with certain alterations made during the dis-
cussions in the Council of State in September, 1922 and in
the Legislative Assembly in January and February,' 1923,
ugléigrnately passed into law, and was enacted as Act 18 of
1 .

The other major amendment was in 1955, which is too
recent to require detailed discussion at this place.

Sp?-C_i8_1, 30. We would like to make it clear, that though various
121°" \;:'1.'t'h special laws contain provisions relevant to criminal proce-
in thgg' dure, this Report does not purport to deal with revis on of
Report those provisions.
M350' 31. We shall now set out some of the major problems
P'°bl°"'° to which we had to devote considerable attention. We shall
here merely enumerate them. These issues are-----

.(a) separation of the judiciary and the Executive;

(b) abolition of the jury trial;

(d) Magistrates in Presidency Towns ;

1(e) abolition or retention of the ordinary original

criminal jurisdiction of High Courts;

(f) the law of arrest;

(g) the law of search and seizure;

(h) the duty to give information about offences.
'P'°b1°m °f 32. The problem of separation has assumed both theora-

°°p°"'i°" tical and practical importance in India during the last 20
years or so. The Constitution directs' that the State shall

1. Article 50 of the Constitution.

take steps to separate the Judiciary from the Executive in
the public services of the State, As introduced originally,'
article 39A of the Constitution sought to provide that the
State shall take steps to secure that within a period of three
years from the commencement of this Constitution, there
is separation of the Judiciary from the Executive in the
public services of the State. But laterf the time limit of
three years was deleted, in View of the fact that it might
not be possible to bring about the desired result within three
years in the States which were not former Indian provinces.
The Prime Minister also explained, that while Government
was entirely in favour of separation, a time limit may pro-
duce enormous confusion in some parts of the country where
it was very difficult to bring about separation.

33. In the ﬁeld of criminal law, separation of the judi-
ciary from the Executive broadly means the administra-
tion of the criminal justice by members of the judiciary who
are independent of executive control. This general princi-
pal involves two consequences; ﬁrst, that a Judge or a
Magistrate who tries a case must not be in any manner
connected with the prosecution or interested in the prose-
cution, and second, that he must not be in direct adminis-

trative subordination to anyone connected with the prose-
cution.'

34. So far as the first aspect is concerned, the principle
is already recognised, to some extent, by section 556. The
Explanation to that section, however, in so far as it provides
that a Judge or a Magistrate shall not be deemed to be a
party or personally interested, to or in any case by reason
only that he is concerned in a public capacity, modiﬁes the
provision to some extent. Cases where the Magistrate has
himself directed the prosecution,',5 and cases where the
Magistrate had taken a direct part in the investigation,'
apart, section 556 does not bar a Magistrate from trying
a case merely because he has the slightest official dealing
in the case. In fact, the Explanation seems to be intended
to meet the consequences arising from the unavoidable in-
cidents of the executive and the magisterial duties being
united in one and the same person'.

35. Read with the illustration, the Explanation to sec-
tion 556 seems to emphasise two aspects, namely, if a
person has directed the prosecution of a person for an

1. Constituent Assembly Debates, Z4-th Novem'ber,Vl943, page 582.
2. Constituent Assembly Debates, 25th November, 1948, page 585.

302 3. Cf.the speech of Mt. Justice Meredith, quoted in (l949)2 Indian Law Review

4. See illustration to section 556.

75 See also In re Het Lall Roy, (1874) 22 Sutherland Weekly Reports, Criminal,

6. Sudhama v.Q.E., (l895)LL.R. 23 Cal. 328, 334.
7. Cf.Emp. v.Bascmt Ram, (l883)All Weekly Notes 181.

offence, he' is disqualified" and so also he is disqualiﬁed if
he otherwise takes an active part, for example, by dis-
persing an unlawful assembly and arresting its members."
But,_1f his participation is merely formal,' he is not dis-
-qualiﬁed.

Thus section 556 is subject to certain limitations, some
of which may be usefully elaborated.

_ 36. In particular, courts seem to have made a distinc-
tion between "directing" a prosecution on the one hand, and
merely "authorising" a prosecution on the other hand."

Thus, a Magistrate in charge of the opium and excise
administration of a district is not "personally interested"
in the observation of the provisions of the Opium Act,
merely because it is his duty to see the law relating to sale
of opium enforced and maintained in his district; he is,
therefore, not precluded from exercising jurisdiction. in res-
jpect of offences against the said Act, because the words
"personally interested" must refer to "some particular and
immediately personal interest in the case and its results?"
A District Magistrate is not precluded under this section
from trying an offence under the Police Act, merely be-
cause he is the head of the police' The fact that the Dis-
trict Magistrate controls the police does not, of itselﬁ, dis-
qualify him from trying or inquiring into cases investigated

by the police of his district.'

37. But, where the Magistrate as president of the octroi
-sub-committee directed the prosecution of an accused for
evading the payment of octroi, the Magistrate was debarred
-from trying the case, even though the accused had. con-
sented to be so tried." A Magistrate is not disqualiﬁed from
trying a case based on a private complaint which has not

been ﬁled under his direction and sanction, merely and

solely on the ground that the validity of certain orders
-passed by him in his capacity as an Executive or Revenue
Officer is directly put in issue and is likely to be challenged
before him, and that the innocence or guilt of the accused
considerably depends on the effect of such orders."

1. Kharak v. Tarack, (1883) I.L.R. 10 Cal. 1030-
2. Girish Chundra Ghose v. Q.E., (1893) l.I.'.R. 20 Cal. 857, 865 (Trevelyan &

Rampini _I].).

\O00~IO\uI.;;u;

10.
1 .
11946 C

. See, further. , Q.E.v. Chenchi Reddi, I.L.R. 24 Mad. 238-

. Cf. Dasrath Rm', (1909), I.I_.R. 36 Cal. 869,872.

. See Rameshwar Bhartia, A.I:R. 1952 S.C. 405.

. See. also Lorinda v. the Crown, (1919) I.L.R. 1 Lab. 35,38.

. Inre Qaneshi, (1893) I.L.'R. 15 All. 192, 194 (F.B.).

. Q.E.v. Narain Singh, (1900) I.L-R- 22 All. 340. 342-

. Maung Lat, 1 Cr. L-]~477-

Emp.v. Bisheshar, I.L.'R. 32 All. 635.

I Mohandas, 27 Cr. L.]. 1333, 1334; see also 'Md. Abdul Khan Ahmed. A.l.R-
al. 3035

38. The observations of the Judges in the under-

mentioned case' stress the evils of a combination of
functions.

Separation would eliminate many of the controversies
under section 556, by removing the functions of initiating

or sanctioning prosecutions from the province of those who
"try the case.

39. The second aspect is the more important one,
namely, a person administering criminal justice must. not be
subordinate to the Executive.

40. Some of the important aspects of the principle of
separation were spelt out in the amendment moved by
Mr. A. C. Dutt on the resolution of Babu Kishori Mohan
~Chaudhari on 4th April, 1922 in the Bengal Legislative
Council. The Resolution was as follows :--

"This Council recommends to the Government that
early steps be taken for the total separation of the
judicial from the executive functions in the adminis-
tration of the Presidency."

Mr. A. C. Dutt moved an amendment that the follow-
ing words be added at the end----

"That the said separation be affected in consonance
with the following principles 1--

(1) Officers appointed to perform executive

duties in no case to perform judicial duties and
vice versa.

(2) Officers appointed to perform judicial
duties to be in no way subordinate to executive
officers.

(3) The entire control and management of
criminal judicial service, including the powers of
promotions, transfers and punishment of judicial
officers, be vested in the High Court."

'The amendment was lost, but the original resolution was
put to vote and passed?

41. The usual way" of classifying the functions of Magis- Classiﬁca-
trates under the Code of Criminal Procedure and various "°" °f

other statutes is to divide them into three broad categories, 'ﬁggﬁiﬁgigf
'namely----

"(a) Functions which are "police" in their nature,

as for instance, the handling of unlawful assem-
blies;

I. Lopuri Dominiv. the Assam Rly.a.nd Trading Co., (1883) I-LR. 10 Cal. .915-

2. See Government of Maharashtra, Report of the committee on the
of Iucliciary from the Executive, (1947), page 9, para. 28-

3. See Government of Madras, Public (Separation) Department, G.O.'_Ms, No.
22304 dated the 24th September, 1952.

Separation

_ (b) functions of an administrative character, as for
instance, the issue of ltcences for ﬁrearms, etc. etc ; and

. (c) functions which are essentially judicial, as for
instance, the trial of criminal cases."

_ The essential feature of the scheme for separation (it
15 stated)' would be, that "purely judicial functions coming
under category (c) above are transferred from the Collector
and magistrates subordinate to him, to a new set of ofﬁcers
who will be under the control not of the Collector but of"
the High Court. Functions under (a) and (b) above will

' continue to be discharged by the Collector and the Revenue
Officers subordinate to him."

Functions of 42. In order to obtain a more concrete pic-ture, hozwever,

ggiggigtfes it is, necessary to deal with the functions of Magistrates

discussion more elaborately. An idea of the variety of their functions"
can be obtained from the numerous statutory powers and
duties of the District Magistrate ('and other Magistrates).
In most of these cases, he acts as an "officer" or "authority",
and not as a "court". These functions could be Broadly
grouped as :-- '

(a) functions of the District Magistrate as head of
the police, or otherwise in connection with the police
force, (e.g. an order passed) under section 44 of the
Bombay Police Act.'

(b) order by the District Magistrate prohibiting
certain petition writers from carrying on their business
within the precints of the district court,'

\(c) order by a Magistrate under section 17, Police
Act, 1861, appointing special constables', or order sanc--
tioning prosecution under section 4 of that Act';

(d) order by an Additional District Magistrate as
persona designata, e.g. an order in exercise of special
powers conferred by an enactment, to carry out its;
provisions and untrammelled by any inquiry.'

(e) other Executive orders, e.g.--

(i) order by District Magistrate for registra-v
tration of a Sarai under section 3, Sarais Act ('22 of
1857).' "The District, Magistrate as the chiefofﬁcer
charged with the executive administration of a
district in criminal matters can under no stretch of

1. See Government of Madras, Public (Separation) Department, G.O. Ms. No-
2304 dated the 24th September, 1952.

2. In re Pandurang, (1910) 11 Cr. L.]. 705; 8 I.C. 747; 12 Bob. LR. 1029.

3. Sukdeo Prasad, (1902), A.W.N- 175.

4. Parmeshar v. Emp., A.I.R. 1917 Oudh170.

5. Chotey La! v. Chhedi Lal, A.I.R. 1923 All. 149 (Meats C-]. and Piggott 1.).

6, Hamri v. Emp., A.I.R. 1939 All. 124, 127, and cases cited therein.

7. Ghulam Sadid-uddin v. Emp., A.I.R. 1941 Lab. 71.72 (Din. Mohamed 1.).

language be treated as a court. His functions as an
executive officer are poles asunder from his func-
tions as a judicial ofﬁcer."

(ii) order of requisitioning.'

(iii) order under section 45(3) of the Code of
Criminal Procedure, appointing a person as head-
man of a village.'-'-3

(f) licensing, for example-

(i) order by the District Magistrate under the
rules for licensing and controlling places of public
entertainment framed under section 39A, Bombay
District Police Act, 1890'

(ii) similar functions of the District Magistrate,
e.g. under the Police Act ;

(g) powers concerning law and order, e.g.---

(i) tendering pardon ,5

(ii) orders for deposit of security _by a news-
paper," or orders of forfeiture of. security,' 3'

43. It is in this background that the concept of sepa-
ration has to be understood. In its essence. separation
means separation of judicial and executive functions in
such manner that the judicial functions are exercised by the
judiciary which is not controlled by the executive. This
would ensure that inﬂuence of the executive does not
pollute the administration of criminal justice.

44. Since the broad question of separation is no longer
a controversial issue, it is unnecessary to deal in detail with
its history. An excellent historical discussion is contained
in the Report of the Bombay Committee," Developments
that have taken place since the submission of the Report of
that Committee :('apart from the adoption of the Constitu-
tion) are mainly in the nature of Reports of Committees or
Commissions appointed in several States on the subject, and
legislation or executive orders passed or proposed as a

. Ujamshiv. Em1>., A.I.R. 1946 Bom. 533, 535(F.B.).

. Salet Singh, A.I.R. 1948 All. 114.

. Damma, (1907) I.A.R. 29 All. 563.564 (P.C. Banerji J.).
. Manghanmalv. Emp.,A.I.R. 1939 Sind. 340,341.

. Section 337(1), main paragraph.

. Agasyed Jalauddin v. K.E. (1913) 17 C.W.N. I245.

. See section 3(1) (proviso. Indian Press Act, 1910 (1 of 1910) considered in
Annie Besantv. Government ofMadras. (1916) I.L.R. 39 Mad. 1085, 1106, 1112.

S. Ciulzar v. Emp. A.I.R. 1918 Lab. 219.

CJ)9. See also Mahomed Ali, (1913) I.L.R. 41 Cal. 466, 484, 485 (F.B.). (Jenkins

10. Government of Bombay, Report of the Committee on the Separation of the
Judiciary from the Executive, 1947 (1964 Reprint), pages 3-13.

3-29 M of Law{68

-lO\U|-§-b~)t~)r-

Questions
raised by
separation
in relation
to the Code

Legislation
necessary
for
separation

Separation
whether to
be

Central Law

result of such Reports or otherwise: It is_not necessary to
encumber this part of the Report with a discussion of those
developments. Case-law on the subject is also developing.'

_ 45. For the purpose of considering the question of sepa-
ration ms-a--vzs revision of the Code of Criminal Procedure,
one has necessarily to consider certain questions, namely,

(i) should separation be effected by legislation or
by executive orders;

(ii) if it is to be effected by legislation, should it be
done by a Central legislation, or should it be left to the
States ; »

.(iii) what should be the authority to exercise con-
trol over Magistrates exercising judicial functions;

(iv) what powers under the Code should be given
to the Magistrates exercising judicial functions and
what should be left to others, and what powers, if any,
should be allotted to both.

46. On the ﬁrst question," we think that legislation
must be resorted to for achieving separation. We are aware
that separation has been effected in some States by execu-
tive orders_ But this method suffers from certain draw-
backs. The legislature would have no opportunity of
discussing the scheme, The executive orders can have no
legal force, so that if an "Executive" Magistrate decides,
say, to exercise judicial powers, complications may arise".
As an experimentation, separation by executive orders has
certain merits, no» doubt. But once the stage of experimen-
tation has passed, separation must take legislative shape.

The trend of recent developments in some States has
also been in that line, as evidenced by the Punjab Act,' and
by the Bill which was introduced for the Union Territory
of Delhi? and by the Bill recently introduced in West
Bengal."

47. The second question? is more diﬁicult one. The
Law Commission had, in an earlier Report, expressed' its
view in these words :-

"We are of the View that this is a matter on which
legislation by Parliament is necessary. Such legisla-

l. Cf. paragraph 46, supra.
2. Paragraph 45(i), supra.

3. See the

decisions in--

(i) A.l.R. 1959 Ker. 46.
(ii) State v. G.Subbegowela, (1962) 2 Cr. L.]. 711 (Mysore).
4. The Punjab Separation etc. Act, (1964) (Punjab Act 25 of 1964).

S.
1966).

The Delhi and Himachal Pradesh Separation Bill, 1966 (Lok Sabha Bill of
The Bill lapsed on the dissolution of the Lok Sabha.

6. The West Bengal Separation etc. Bill (August 1967)-
7. Paragraph 45 (ii), supra.
8. 14th Report (Reform of Judicial Administration), Vol. 2, pages 859-860, para 22.

tion 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."

'48. In deciding the question whether separation should
be introduced by Central Law or by States, we were faced
with various considerations.

Three important aspects were considered in favour of
State Legislation, First, separation involves changes in the
magisterial set up and in the number of courts, and neces-
sitates several administrative arrangements. Secondly,
separation entails the amendments of Central Acts (besides
the Code of Criminal Procedure, 1898), and some State Acts,
and it would not be possible to carry out those amendments
by Parliamentary legislation, particularly because some of
those Central Acts and most of the State Acts fall within
the State List. Thirdly, a decision was taken at the Law
Minister's Conference' in 1960 that whatever measures are
suitable to local conditions be adopted, and Parliamentary
legislation is not needed.

49. We gave our anxious consideration to these aspects."
It appeared to us, that though the actual implementation of
separation may involve many administrative arrangements,
yet it would be desirable to have a uniform pattern of
magistracy and control over them, for all the areas to which
the Code applies Amendment of other Central Acts and
State Acts will, of course, have to be undertaken by the
States? Further, in the States where separation has been
already introduced but on lines different from those which
we are recommending, the process described will have to be
undergone again. The demands of uniformity are, in our
opinion, paramount to these difficulties, and it should be
possible, by ﬁxing a sufficiently late date for commencement
of the Bill which may be introduced on the subject, to give
the States sufficient time to plan the administrative arrange-
ments as well as the legislative amendments referred to
above.

50. As regards the third question--that is, the authority
that will exercise control over the Magistracy--there are
several patterns,' from which we have to choose.

1. Proceedings ofthe Law Ministers' Conference, held at Srinagar on 23th June
1960.

2. Paragraphs 47-48, supra-
3. Paragraph 48, supra.
4. See discussion relating to section 17(1)-

Allocation
of functions
between
Judicial and
Executive
Magistrates

Patterns of
separation

Allocation
of powers
in each
pattern

51. As regards the fourth question--powers of each
category of Magistrates and the pattern of the Magistracy----
the Law Commission had, in an earlier Report,' recom-
mended adoption of the Bombay pattern (subject to certain
modiﬁcations). After that Report was submitted, the Punjab
Act has been passed? While the Punjab Act follows certain
pI'OVlSlOnS of the Bombay Act, it differs from the Bombay
Act in certain other respects, both as regards the nomen-
clature of and control over the magistracy, and as regards
the allocation of functions between Executive and Judicial
Magistrates.

52. Thus, at present there are three main patterns of
separation .(introduced by statute, or otherwise), namely,--

(1) The Bombay pattern;
(2) The Madras pattern;
(3) The Punjab pattern.

;(The Bombay and Madras patterns have been described
in the earlier Report." The broad features of the Punjab
pattern will be indicated wherever necessary),

53. The allocation of powers between the Executive
Magistrates and Judicial Magistrates is a matter which has
been tackled in different ways in different States. To give
one example, the powers of ordering the furnishing of secu-
rity under sections 108 to 110 of the Code have been assigned
in Bombay and Punjab to Executive Magistrates. In Mad-
ras.' they have been assigned primarily to Judicial Magis-
trates, but Executive Magistrates have been given a concur-
rent power, only to provide for all contingencies}

To take another example, powers under section 164 of
the Code are assigned, in Bombay, to both classes of Magis-
trates, and, in Punjab, to Executive Magistrates only, while
in Madras they are assigned to Judicial Magistrates only.

54. These divergencies are understandable; it is not
always easy to classify a function as judicial or executive,
even theoretically. Moreover, even where a classiﬁcation
is in theory possible, practical considerations (such as the
need for urgent action in emergency), might make it advis-
able to give concurrent jurisdiction to both classes of
Magistrates.

1. 14th Report,Vol. 2, pages 859-869, para.2Z-

2. The Punjab Separation etc. Act., 1964 (Punjab Act 25 of 1964).

3. 14th Report, Vol. 2, pages 851-852, paras.6and 7, and Annexure at pages
861-863, showing allocation of functions.

4. Cf. the views expressed in 14th Report, Vol. 2, page 859, para 22.

5, See Government of Madras, G.O. Ms. No. 2304 dated 24th September, 1952.
paragraph 19(3) and Schedule, Item 18.

55. The broad considerations which weighed with the A"°C'="i°"

framers of the Bombay Act seem to be, that powers other
than those of trial of offences should be left to Executive

un
Bombay and
Punjab

61'

Magistrates, even where the recording and sifting of evid- schemes

ence and a decision thereon are required.' The Punjab Act
also seems to proceed on the same pattern? as is illustrated
by the amendments made in the Punjab in sections 107 to
110, 127 to 132, 133, 143, 144, 145, 147, 155, 190 etc. It is
true that both in Bombay and in the Punjab, certain powers
are kept with both categories of Magistrates, such as powers
under sections 94, 95, and 96(2). But the principal reason
for adopting this course seems to be, that most of these
powers are in the nature of "ancillary" powers, which may
be needed by any Magistrate, Whatever be the function he
is performing? ' That is because Magistrates who are
"Executive" Magistrates, nevertheless, continue to be
"Courts"5 for several purposes. The distinction between such
concurrent powers under the Bombay and Punjab Acts (on
the one hand), and the concurrent jurisdiction under the
Madras pattern '(on the other hand), is this :--in Bombay
and Punjab, the concurrent powers would not be exercised
in the same case, so that there is no conﬂict of jurisdiction?
The Madras pattern is somewhat different.

56. The Madras scheme has been designed as to operate Allocation
within the frame work of the Code without statutory Under
amendment, and without much change in the nomenclature M"d'°°

of Magistrates. The broad principle' on which the Madrass
scheme is based. is that matters which involve the recording
and sifting of evidence are strictly within the purview of
Judicial Magistrates, But concurrent jurisdiction is provid-
ed in for some cases. Thus, powers under Chapter 9, (sec-
tions 127 to 132A) and Chapter 11 (section 144) are kept
with both Judicial and Executive Magistrates but judicial
Magistrates shall exercise them only in emergency and
only until an Executive Magistrate is available. Conversely,
powers under sections 108 to 110 are assigned to Judicial
Magistrates, but Executive Magistrates are given concurrent
jurisdiction to provide for all contingencies. Again, in cases
under section 145, the initiation of proceedings will be before
an Executive Magistrate, but, if it is necessary to hold an
inquiry, proceedings will be transferred to Judicial Magis-
tratesf'-9

cheme

. Section 164 as amended in Bombay is an exception to this.

. Section 88 (6c) as amended in the Punjab is an exception to this.

. Sections 98 and 100 are possible exceptions to this.

. Sections 60 and 61 are also left undisturbed for the same reason.

. Sections 6, 6A and 17B, Bombay and Punjab-

6. Section 10 as retained in Bombay and Punjab and section 98 as

Bombay and as amended in Punjab are exceptions to this.

7. Government ofMadras G.O. Ms.No. Z304 dated 24th September
graphs 3 and 17, and Notes thereto, para . 2(1).

Ln-hLoJl\)r---

retained in

1952 , para-

8---9. Government of Madras, G.O.Ms. No. 2304 dated 24th Septemoer, 1952

para 20 as amended by G.O. Ms. No. 2993 dated 30 August 1961.

. 57. Another special aspect of the Madras scheme is that,
with reference to section 155, in non-cognizable cases, both
Executive and Judicial Magistrates can order an investi--
gation, and the ﬁnal Report is sent to the Magistrate----
(Executive or Judicial); who ordered the investigation.' The
"charge-sheet", however, can be sent only to the Judicial
Magistrate, who alone can take cognizanc-e2 on the report
of the police officer ('or on complaint). Lastly, Executive
(as well as Judicial) Magistrates can take cognizance under
section 190(1)(c),3 though the former are not competent to
hold trial of oﬂences.

Essence of 58. Notwithstanding these points of difference, it must

separatiqn be stated, that the essence of separation is present in all

gifffnt "' the patterns. The primary object with which a Magistrate

pattern 1S constituted, is the trial of offences' (under section 28).
That power has been assigned in all the patterns to indepen-
dent Magistrates.

It is unnecessary at this stage to discuss the position
in detail as to how far se aration has been implemented
by statute in each State or nion Territory.-"

West Bengal 59. While this report was under preparation, a Bill was

Scheme introduced in the West Bengal Legislative Assembly. for
carrying out separation.' The broad principle on which
separation is proposed in that Bill' seems to be this; that
only those powers which relate to inquiry into or trial of
offences should be assigned to the Judicial Magistrates, and
other powers be left to the Executive Magistrates.

60. The West Bengal Bill also gives a list of concurrent
powers? Some of these powers are incidental to the main
powers respectively allocated to each category of Magis-
trates. But some-----such as those under sections' 164 and
167--are "concurrent" in the real sense. 3

1. Government of Madras, G.O. Ms. No. 2304 dated 24th September 3952»-
para. 21(2) and Schedule, Item 24-

2. Government of Madras G.O. Ms. No. 2304 dated 24th September, l952,
paragraph 21(1), and Schedule, Item 24-

3. Government of Madras, G.O. Ma. No. 2304 dated 24th September, Schedule
Item 29.

4. Cf.Emp.v. Noor Mohmed,A.I.R- 1928 Sind 1,4-

5. Separation has been introduced in Mysore by the Code of Criminal Procedure
(Mysore Amendment) Act, 1965 (Mysore Act 13 of 1965). '

6. The West Bengal Separation of Judicial and Executive Function Bill, 'I967
(Calcutta Gazette Extraordinary, dated August 23, 1967). I

7. See the Statement of Objects and Reseaons, to the West Bengal Bill, para

8. The First Schedule, as proposed tobc inserted by the West Bengal Bill shows
ataglance the powers of each category of Magistrale.

61. The scheme of allocation of functions proposed in
West Bengal has been thus described :--'

"The Judicial Magistrates will primarily deal with
cognisance, investigation, inquiry into and trial of any
offence under the Indian Penal Code or under any other
local or special law, while the Executive Magistrates
will be mainly concerned with prevention of offences
and other executive and administrative functions."

62. Another interesting legislative device adopted in
the West Bengal is, that while certain sections of the Code
have been speciﬁcally amended by preﬁxing the word
"Judicial" or by proposing similar verbal amendments, at
the same time the First Schedule (as proposed to be added
to the Code by the Bill) contains a list of sections, powers
whereunder are given to each category of Magistrates or to
both categories.

The third feature is the provision' for Sub-divisional
Magistrates, both Executive and Judicial.

63. Another major change to be considered is the aboli-
tion of jury trial. This question has been considered by
the Law Commission in an earlier Report," wherein a recom-
mendation has been made for abolition of the system. The
principal reasons for recommending abolition were-----

(a) The verdicts of the jury were often inﬂuenced
by extraneous considerations. They did not satisfy the
test of fairness, and did not ensure justice in its true
sense.

.(b) It was difficult to get jurors who could objec-
tively evaluate the evidence for arriving at a fair and
unbiased verdict.

(d) An accused convicted on a trial by jury had
only a limited right of appeal.

(e) Trial by jury took longer time than trial by a
Judge. Being untrained persons, jury-men were natu-
rally slow in appreciating the evidence and in following
arguments.

(f) Practical experience of the system was not
favourable.

It is unnecessary to discuss this matter further at this
stage. The changes to be made can be considered when
the relevant sections' are considered.

1. Statement of Objects and Reasons to the West Bengal Bill, para 3.

2. Sections 13 and 13A, as amended or inserted by the West Bengal Bill.

3. 14th Report, Vol. 2, page 873.
4-. Sections 267 et seq, which are outside the scope of this Report.

Modes of
trials and
inquiries

'apparent than real.'

64. At ﬁrst sight, the modes of trial as provided in the
Code may appear to be numerous. Proceedings by way of,

or preliminary to, the trial of offences could be enumerated
as follows :-

A. Magistrates' Courts-
Preliminary inquirieb'----
(1) Committal proceedings instituted on a police
report (Chapter 18).
(2) Committal proceedings instituted otherwise
than on a police report ('Chapter 18).

B. Magistrates' Court--Tria1s in the Mofussil
(1) Trial of summons cases (Chapter 20).

(2) Trial of warrant cases instituted on a police
report (Chapter 21).

(3) Trial of warrant cases instituted otherwise than
on police report (Chapter 21).

(4) Summary trial, with some variations in appeal-
able and non-appealable cases1(Chapter 22).

[Note:-----Magistrates empowered under section 30 have
higher powers, but there is no special procedure prescribed
for them. They follow the same procedure as would be
followed by ordinary Magistrates of the ﬁrst class in the
trial, except that by virtue of their higher powers, they
can themselves dispose of many cases which otherwise
would require to be committed.]

C. Magistrates' Courts--~Presidency Towns

Trials in the Courts of Presidency Magistrates,' with
variations in appealable and non-appealable cases.
(Chapter 25).

D. Courts of Session .
(1) Trial in the Court of Session by jury (Chap-
ter 23). =

(2) Trial in the court of Session by the Judge alone
(Chapter 23). -

E. High Courts

(1) Trials before the High Court with the aid of
jury (Chapter 23), and

(2) Trials before the High Court of cases trans-
ferred to it, which may be tried without jury
(Chapter 23).

65. The multiplicity of modes of trial is, however, more
Commitment proceedings for an
offence and trials of that offence are really two different

1, See also 14-th Report, Vol. 2, page 719, para 16.

stages of the same case. Most High Courts do not exer-
cise ordinary original criminal jurisdiction. And the distinc-
tion between cases instituted on police report and cases
instituted otherwise is a recent innovation, introduced by
the Amendment Act of 1955. In practice the kinds of trials
usually met with in the Mofussil are trial of warrant cases
instituted on police report, trials before courts of Session,
and trial of summons cases, The difference in procedure
(in these three cases) is attributable mainly to the gravity
or nature of the offence to be tried.

66. The question of Magistrates in Presidency towns
requires some discussion. It is sometimes argued, that the
institution of Presidency Magistrates should be abolished.
In earlier Report of the Law Commission,' the View had
been expressed, however, that the institution of Presidency
Magistrates had been a useful one.

67. The question of abolishing the distinction between
Presidency Magistrates and other Magistrates was raised
by non-official members before the Joint Committee2 which
considered the 1922 Bill. The Committee did not think it
proper to alter the provisions. It, however, expressed a
hope, that at a later date a special Committee might under-
take a full inquiry into the status, powers and procedure
of Presidency Magistrates?

68. It should also be noted, that all the Judges of the
Calcutta High Court and the majority of the Judges of the
High Court of Madras had expressed their view when the
Bill which led to the Act of 1923 was on the anvil, (and
this was noted by the Joint Committee of 1922 also) that
the system should be maintained,' though some of them
did say that recruitment should be improved.

69. It may be noted, that the Constitution' makes special
provisions regarding appointment of the Chief Presidency
Magistrates and Additional Chief Presidency Magistrates.
As regards other Presidency Magistrates, it is only a ques-
tion of time before the power ultimately pass to the High
Courts." Only persons of special merit would be appointed
as Presidency Magistrates. For these reasons, we do not
recommend abolition of this special category of Magistrates.

1. 14th Report, Vol. 2, page 801, para. 11-

2. Report ofthe Joint Committee dated 26th June, 1922, under clause 94 (sec-
tion 364)-

3. No such Committee seems to have been appointed.

4. Legislative Department, Assembly & Council-A, Proceedings, October, 1923,
No. 1-54, Opinions dated 5-3-1918 and 14-12-1917, Paper No. IV, Opinion No. 13
(Clause 89), and Paper No. IV, Opinion No. 16.

5. Article 233(1) read with Article 236(a), Constitution of India.

6. Cf. section 18(5) of the Code as amended in Bombay, and also article 237
of the Constitution of India.

Section-wise
discussion

Section 1

Sections 2
and 3

Section 4(1)

(Certain changes regarding recording of evidence etc. by
Presidency Magistrates were recommended, in an earlier
Report.' But these are matters of detail)?

70.. In fact, there may be certain advantages in having
a special class of Magistrates even in places other than
Presidency towns--a matter to which we shall advert later.'

_ 71. Another matter of im ortance is the ordinary ori-
ginal criminal jurisdiction of igh Courts. The subject was
discussed in an earlier Report of the Commission,' and, for
the reasons set out in that Report' at another place, it was
suggested that the ordinary original criminal jurisdicion of
the Calcutta High Court be abolished. (The High Courts of
Bombay and Madras no longer exercise this jurisdiction).
The matter requires careful consideration, and will be dealt
with under the appropriate section.'

72. We shall now proceed to an examination of the Act
section by section.

73. Under section 1 of the Code, the main question to
be considered is the territorial application of the Code in
relation to excepted persons. We do not recommend any
changes in this respect although we examined the matter
in some detail.'

74. Section 2 is already repealed.

Section 3 has two sub-sections, containing rules for the
construction of certain expressions which are used in old
enactments and which refer to Magistrates or Judges under
the phraseology used in the pre-1898 Codes.

Since the nomenclature of Magistrates is proposed to
be altered," it will be desirable to add a similar provision
for the construction of expressions used in the existing
enactments, where those expressions refer to Magistrates
by their existing nomenclature." 9

75. In view of the conflicting decisions and uncertainty

'Complaint"pI'eVaillngm in respect of certain matters relating to? the

deﬁnition of "complaint" and the connected provisions in
sections 173, 190(1) (b), 207-A, 251-A, it is desirable to clarify

. 14th

(D~lO\UI-'h£»t~3'-'

Report, Vol. 2, pages 8Z7--828-

. See section 362.

. See paragraphs 101-103, infra.

14th Report, Vol. 2, page 714, para,2.

. 14th Report, Vol. 2, page 1201, para. 7, last sub-para.

. See discussion regarding section 28.

.For detailed discussion, see Appendix 2.

. See section 6, as proposed and section 6A, as proposed.

9. See section 3, as proposed.
10. For detailed discussion, see Appendix 3.

the position as far as possible. (Some parts of the contro-
versy are due to a misreading of the sections, and cannot
be cured by amendment). The solution which we recom-
mend is---

(i) to clarify in section 4 (in the deﬁnition of "com-
plaint") that reports made by the police on an authorised
investigation of non-cognizable cases are complaints, thus
solving the points' relating to the deﬁnition of "complaint"
and section 200, and the points relating to section 190 in
respect of non--cognizable offences;

l(ii) to keep sections 251-A and 207-A as they are, as
the observations in Pravin Chandra's case" must be read
along with the facts of that case; and

(iii) to amend section 190(1) (b) (if necessary) to cover
speciﬁcally reports under other sections of the Code or
under other laws.'

76. With reference to deﬁnition, the following sugges- S°:--l'ic<l>t;.14§1)
tion' has been made by the Bar Council, Madras :-- 3" ° ""

tion of
"The Indian Penal Code deﬁnes 'Court of Justice' C°'"'

and the Evidence Act deﬁnes 'Court'. The word Court
occurs in section 1954(1) (b) and (c). The question

as to how far a tribunal created under various statutes

is a court Within the meaning of section 195 crops up
quite often. In 1956 S.C.J. 155, the Supreme Court

has given a judicial meaning of Court as a body which
gives a deﬁnitive judgment. An oﬂence of perjury or
forgery of a document produced before a Tribunal in
relation to a proceeding before it cannot be 'proceeded
against by the Tribunal, but can be done only by the
individual constituting the Tribunal.

"This anomalous position may be rectiﬁed by deﬁn-
ing the word 'Court' in conformity with the deﬁnition
in the Evidence Act."

77. We -examined the case-law on the subject. The deci-
sions of the Supreme Court on the point are noted
below:---"'

Certain decisions of High Court also review the case-
law."

1. For the various points, see Appendix 3.

2. Pravin Chandra v. State, A.I.R. 1965 S.C. 1185.

3. To be considered under section l90(1)(b).

4. F. No.F. 3(2)/55-L.C. Pt. III, S. No. 52.

5. Brajnandan, (1955)2S.C.R. 1955; A.I.R. 1956 s.c. es.

6. Jagan Nath, (1963) S.C.R. 416.

7. Virinder v. State of Punjab, (l955)2 S.C.R. 1013; A.I.R. 1956 SC. 153.
8. Haricharan, 44 C.W.N. 536.

9. Emp. v. Hayat Fatah Din, A.I.R. 1948 Lah. 184, 189, para. 18.

Recently, the cases as to the expression 'Court' have
been reviewed by the Supreme Court in the context of the
Contempt of Courts Act.'

We think, that the deﬁnition in the Evidence Act may
not be appropriate for the Code of Criminal Procedure.
Case-law shovvs the elasticity of the expression 'Court'. A
neat and precise deﬁnition may not be possible. No change
is, therefore, recommended.

f,;c5§,9,§g,f<1) 78. In section 4(1)'.(i) the deﬁnition of "High Court" ex-
Court" pressly mentions the Calcutta High Court in relation to the
Union Territory of Andaman and Nicobar islands. There
are now, apart from those islands, many Union territories
to which the jurisdiction of the High Courts of neighbouring
states has been extended.' It does not appear to be correct
to mention only one Union territory, without mentioning
the others. The portion referring to the Andamans should
be omitted.'

The deﬁnition also includes such an "officer" as the State
Government may appoint in this behalf, in areas in respect
of which under law the highest court of criminal appeal has
not been established. This part of the deﬁnition was added
in 1882 to empower the Governor-General in Council to ap-
point such officers in outlying territories where no such court
had been established by law.' It does not appear necessary
to disturb it.

Section 4(1) 79. In section 4(1) (k) the definition of "inquiry" is

(k); "},n' slightly ambiguous. It is the word "inquiry" which should be

q""V linked with the words "conducted under this Code". The
inter-position of the words "other than a trial" creates an
ambiguity; these words require to be segregated, from the
word "conducted", by a suitable amendment.'

Section 4(1) 80. Section 4(1) (2) deﬁnes "investigation". It appears
(I)t'."1'§',"°"'"' unnecessary to add the word "Judicial" before the word
ga 1°" "Magistrate", in this deﬁnition,

Section 4_(1) 81. Section 4(1) (m) deﬁnes a "judicial proceeding". The
importance of this deﬁnition decreased after the deletion of

ding» the word "judicial" in section 476(1). (In the Code of 1872,
section 297, it was used in relation to revision also.)

82. The expression "judicial proceeding" has again been
used in section 479-A(1). No change is necessary in this
deﬁnition.

1. Jugal Kishore v. Sitamarhi Central Coop. Banlc,A.I.R. 1967 S.C. 1494 (October
issue) .

2. Cf. 32nd Report of the Law Commission, paragraph 35, for details.
3. See section 4(1), deﬁnition of "High Court", as proposed.

4. Stokes, Anglo--Indian Codes, (1888), Vol. 2, page 5.

5. See section 4(1) deﬁnition of "inquiry", as proposed.

83. Section 4(1) (p) deﬁnes an "oﬁicer in charge of a 5eCti°n 4_(1)
police station". It has been suggested by the Inspector- "1?'ﬁ°'""",,
General of Police of a State,' that a proviso should be added C me etc'
to the effect that a Sub-Inspector on duty in the interior
(i.e. while he is away on tour from the police station) is
an officer in charge. It appears to us, that such a change
is not practicable, as it would mean duplication of "Officer
in charge of police station". The scheme of the Code is,
that there is only one oiﬁcer in charge of the police sta-
tion. As the scheme stands, when the officer in charge is
out, some person must be in charge of the police station.

He has to maintain a record of the First Information Re-
port' and other records. Declaring some other officer as
"officer in charge" might create complications.

We may also note, that the question of police strength
was discussed in an earlier Report? But no legislative
amendment is necessary.

84. Section 4(1) (q) deﬁnes a "place" as including aSeCti0n4 9)
house. building, tent and vessel.' It does not include a vehi- (q)'"p1"°°
cle. It has been held by the Supreme Courtf' that a motor
vehicle is not a "place" within the meaning of sections
102 and 103 of the Code, so that the formalities laid

down by those sections need not be observed when a motor
vehicle is to be searched.

The decision has revealed a lacuna in the deﬁnition of
"place", because, as a motor vehicle is not a place, the
power of search under various other sections which autho-
rise searches of a "place"? would not authorise searches of
motor vehicles. We, therefore, think that it is desirable
to include vehicles in the deﬁnition of "place"?

85. With reference to section 4(1) (r) which deﬁnes Section ;f(1)
"pleader", a suggestion to prohibit unlicensed persons from "P1°°d°'
"pleading" was considered by us. This does not require a
change in the law. It is a question of enforcing the law
as to Advocates and the law prohibiting touts.'

86. The deﬁnition of "pleader" can, however, be sim-

pliﬁed;'° it is unnecessary to enumerate the various classes
of practitioners.

1. F. 27/3/55-Judl. II, (Home Ministry), Appendixl, Item No. 1.

. Section 154.

. 14th Report, Vol. 2, Page 737, Paragraph 14.

. As to "vessel", see section 48, Indian Penal Code.

. Bhagwanbhai v. State, (1963) 3 S.C.R. 386, 392.

. For example, sections 98(1) and 165(1).

. See section 4(l)(q), as proposed.

F. 27/3/55--)'udl.II(Home Ministry File) Appendix 1, Item No. 2.
. As to how far the deﬁnition of "pleader" in the Code applies to section 126

Evidepce Act, see note in (1898) 2 CW. N. (Journal) 245, 246, discussing history of section
126 a so.

gofxxloxkn-RUJN

l0. See section 4(l)(r), as proposed.

Section 4(1)

W »
' 'warrant
case! I

87. Section 4(1) (w) deﬁnes a "warrant case" as a case
relating to an offence punishable with death, imprisonment
for life or imprisonment for a term exceeding one year.
Cases relating to other offences are summons cases. In an
earlier Report,' a recommendation was made for the subs-
titution of 'three years" for "one year" in this definition,
that is to say, as a general rule, all offences which do not
carry punishment of imprisonment for more than three
years should (according to that recommendation) be triable
under the summons case procedure.

88. The reasons for which this recommendation was
made (as stated in that Report) can be thus summarised-

(i) The procedure of summons cases leads to ex-
peditious disposal of cases.

(ii) The creation of numerous statutory offences
during recent times which are, for the most part tech-
nical in nature and involve nothing more than a viola-
tion of or a non-compliance with a rule or regulation,
calls for a speedier determination of those cases.

(iii) Even under the Indian Penal Code there are
several offences of the same kind, but differing in
degree, which at present have different modes of trial.

(iv) The distinction between summons cases and
warrant cases is arbitrary. An example of this arbi-
trary distinction is the position regarding offences under
sections 168 and 169, Indian Penal Code. Another
example is furnished by section 342 on the one hand,
and sections 343 and 344, Indian Penal Code, on the
other. The essential ingredients of wrongful conﬁne-
ment are the same in all these cases; only the duration
varies. Yet, the offence under section 342 is a summons
case, while the offences under sections 343 and 344 are

warrant cases.

(V) There is no prejudice to the accused by the
expansion of the category of summons cases as recom-

mended.

89. We have, however, reached a different conclusion.
In the ﬁrst place, expansion of category of summons cases,
as recommended in the earlier Report, would bring in
numerous offences, of which some are really serious,-for
example, offences under sections 136, 153A, 295A, 419, 465
etc., Indian Penal Code---and we are not convinced that
there will be no prejudice to the accused in such cases.
Secondly, the objection that the division is at present
arbitrary would survive even if the limit is raised to' three
years, because the dividing line will still be depenent on
an arbitrary period (period of maximum imprisonment).
Thirdly, some of the offences----such as those under sections

1. 14th Report, Vol. 2, Pages 723-724, paragraphs 30 to 32.

1_53A, 295A and 465, Indian Penal Code--involve nice ques-
tions of intention or interpretation of facts, and the war-
rant case procedure, whereunder a precise charge is to
be formulated, is, in our view, preferable for such offences.

We are not, therefore, carrying out the recommendations
made in the earlier Report.

90. With reference to "warrant cases" following sug- section 4(1
gestion' has been made by a High Court-- (v_v)_Deﬁ-
"The deﬁnitions of summons cases and warrant f1'1\7':'1a1':'trlant
cases should be re-classiﬁed, bearing in mind the g1'a-- C85?" Suﬁ'
vity of the offences in terms of punishment, and the §_I°is;}"°3°::,
extent to which the mens Tea or moral turpitude is in-
volved. (See the recommendations of the Law Com-
mission)."

This point has already been considered.'

91. In section 4(2), the portion referring to deﬁnitions Section 4(2)
in the Indian Penal Code is not in line with recent usage.
But, as the Whole Code is not being re-cast and only an
amending Bill is being proposed, We would not disturb it.

92. Section 6 is proposed to be shortened," so as to deal Section 6
with Magistrates separately.

93. It has been suggested,' that Third Class Magistrates Section_6
should be abolished. We are unable to accept it. The insti- aiSTh"d

tution may be necessary for purposes of training. Magistrates

94. At this stage, the question of the pattern of the S§cti0n5§
Magistracy falls to be considered? Ehfggtigrn
ofMagi-
stracy
95 In an earlier Report" the Bombay pattern of separa-
tion was recommended to be adopted in general. But, so
far as the speciﬁc topic of structure of the Magistracy is
concerned, we have to take into account several matters.
We discuss below the position with reference to the Mo-
fussil and Presidencey towns.

96. In Bombay, (section 6A), the Judicial Magistrates Judi§ia1
of the three classes, as in the Code, are retained Without §'r'1";i':""'°S
a change of nomenclature. Judicial Magistrates appointed Ivtofussﬂ
under section 14 are designated in Bombay as Special
Judicial Magistrates. The District Magistrate is no longer

a Judicial Magistrate, in Bombay.

1. F. 3(2)/55-L.C. Pt. Ill, 3. No. 31.
2. See discussion relating to section 4(1)(W) "Warrant Cases"-
3. See sections 6 and 6A (as proposed)-

4. F. 3(2)/55-L.C. Part I, S. No. 49, and F. 27/3/55 Judi. II (Home Ministry File).
Appendix 1, Item No. 3.

5. See section 6A, as proposed.
6. Cf. 14th Report, Vol. 2, Pages 859-860, Para. 22.

Executive
Magistrates
in the
Mofussil

Magistrates
in Presi-
dency
towns

_ In the Punjab scheme (section 6A), the Chief Judi-
cial Magistrate (who takes the place of the District Magis-
trate in this respect) 1S added. Magistrates of the ﬁrst class
and second class are retained, but the word "Judicial" is
preﬁxed to them. There are no Magistrates of the third
class in the Punjab scheme. Special Judicial Magistrates
are mentioned in Punjab, as in Bombay.

In the Madras scheme, the District Magistrate is re-
tained as a Judicial Magistrate. The Sub-divisional Magis-
trate is also retained as a Judicial Magistrate of the ﬁrst
class. Besides, there are the three classes of Magistrates in
the Judicial category. Where necessary, "Additional, First
class Magistrates" can be appointed under the Madras
sc eme.

97. In Bombay (section 6A), the District Magistrate,
the Sub-divisional Magistrate and the Taluka Magistrate
are the Executive Magistrates. But there are no "classes"
amongst them. There are no Executive Magistrates of the
ﬁrst and second classes. The Bombay scheme also provides
for "Special Executive Magistrates".

In the Punjab scheme (section 6A), the District Magis-
trate and the Sub-divisional Magistrate are retained as
Executive Magistrates of the ﬁrst class and second class
respectively. But, besides them, there can be appointed
other Executive Magistrates of the ﬁrst or second class.
Two "classes" of Executive Magistrate are, thus, contem-
plated in the Punjab. There are no "Special Executive
Magistrates" in the Punjab.

In the Madras scheme, the Collector, the revenue offi-
cers and many of the Tashildars are also designated as
Executive Magistrates of the appropriate class. (The Col-
lector retains some of the powers of the District Magis-
trate, but is called the Additional District Magistrate). Thus,
under the Madras scheme, the present nomenclature of the
Code has been retained, and the dichotomy of Executive
and Judicial Magistrates has been introduced without alter-
ing that nomenclature.' (It is unnecessary to discuss, at
this place, the provisions regarding subordination of Magis-
trates in each scheme).

98. In the Presidency towns, there are no District
Magistrates, even now. Moreover, the Collector was never
a Magistrate in the Presidency towns. Therefore, se ara-
tion does not present the same problems in the Presi ency
towns as elsewhere.

In Bombay (section 6A), Presidency Magistrates have
been retained under "Judicial Magistrates", without, how-
ever, preﬁxing the word "Judicial", and such Presidency
Magistrates as are "specially empowered by the State Gov-
ernment" fall under the category "Executive Magistrates".

1. Control over and subordination of Magistrates is a topic falling under section 17.

The Madras scheme contains no special provisions for
Presidency towns (as regards separation).

99. Having considered the various patterns, we have Scheme?
come to the conclusion that a combination of the Bombay '°°°'""'°"'1'
and Punjab Scheme is the best for being adopted as a§§'§§f§§;,;,;
model. The "District Magistrate", in practice, does not '
perform judicial functions himself at present, and there-
fore, it would not be necessary to retain him as a Judicial
Magistrate. His place as a controlling officer should be
taken by the Chief Judicial Magistrate, as in the Punjab.'

As far as possible, it is better to keep separate nomen-
clature for the two categories of Magistrates, in the Mufas--
sil, as has been done in Bombay and Punjab.

Regarding Executive Magistrates, the Bombay scheme'
abolishes classes. But, here again, a division into two classes
may be Worth preserving (as in the Punjab), particularly
when there are executive officers of varying status in the
same district. Bombay has provided for Special Executive-
Magistrates, and we think that this may be adopted as a-
provision useful for emergencies, when it is necessary to-
appoint Executive Magistrates for a particular class of
cases or for areas which are not co-extensive with the
limits of a district,--an arrangement which is outside sec-
tion 12 and is not covered by section 14 as amended in the
Punjab.

100. In the Presidency towns, the Bombay scheme fur- Scheme
nishes a good example of a scheme which has worked recommenr
well, and may be adopted. No doubt, that scheme uses El°dP'r:§';§'::
the same expression, "Presidency Magistrate" for both the 1:; towns}
categories (with the addition of the words "specially em-
powered by the State Government" to describe Executive
Magistrates), and this might be open to objection. But, in
practice, it has not led to any confusion.

101. Besides the Presidency towns, there are other Other cities
cities which have assumed special importance now, in view of Speciﬁ-
of their population, commercial importance etc. It is our I"'P°"""'°°
view, that the institution of Presidenc Magistrates has
proved to be a useful one, and that t e system can be
extended to other cities which may be comparable to Pre-
sidency towns. To achieve that object, it is desirable that

. provisions of the Code of Criminal Procedure applicable

to Presidency towns be extended to such cities, after con-
siderati-on of their importance, population, degree of urba-
nisation, level of the bar, feasibility of attracting good
judicial talent etc. We may, in this connection, state here,
that in respect of the city of Ahmedabad, by a Gujarat
Act,2 the system of Magistracy has been equated to that

1. As to control over Magistrates, see discussion regarding section 17.
2. The Ahmedabad City Courts Act, 1961 (Gujarat Act l9:of 1961), sections 13 to 16-
4-29 M of Law/68

in force in the Presidency towns, and the city of Ahmeda-
load has (for the purposes of the Code of Criminal Pro-
cedure) attained the status of a Presidency town' by vir-
tue of the hmendment made in the Code by that Act.

102. There is, however, one very important aspect
which has to be taken care of, before any city is brought
within the above scheme.

In the Presidency towns, there is no District Magistrate.
There is a Commissioner of Police appointed under the
Police Act in force in the particular presidency town, and
"he has certain special powers. There are also certain
special powers conferred on the Chief Presidency Magis-
trate by the Police Acts in force in the Presidency towns.
The Police Acts, thus, contain provisions supplementing
(and, sometimes modifying) the Code. The biatus that
would be caused in Presidency towns by the absence of
a District Magistrate (and other relevant provisions) is,
thus, met by suitable provisions in the local le 'slation.
An example of such local legislation is furnish by the
provisions in the Bombay Police Act." Thus. suitable legis-
lative and other action has to precede or accompany the
application of provisions applicable to Presidency towns to
a particular area. It is for this reason, that we ourselves
are not proposing the amendment in each section of the
Code in this respect."

103. Certain powers will, even after the scheme of
-separation, continue to vest in both categories of Ma is-
trates. It is, therefore, expedient to have a provision' t at
will ensure that the word "Magistrate", used without quali-
fying words, includes both.

This ﬁnishes our consideration' of section 6.

Section 7 104. We now come to section 7. The power under sec-
tion 7(2), to alter the limits etc. of sessions divisions,. should
be exercised in consultation with the High Court. We re-
commend that section 7(2), be amended' accordingly.

Section'l7(~1) 105. We discussed at length a suggestion' to abolish the
and Pr€Si- instituton of Presidency Magistrates. Though one 'State
§:;'°§;mtes Government has no strong views in the matter, another
gl State Government has stated that the abolition of Presi-
dency Magistrates would increase appeals to the High

Court.' We are not in favour of recommending the 'aboli-

I. For a detailed discussion of the 'differences between Presidency towns and other
Places, see Appendix 5.

2. The Bombay Police Act, 1951 (Bombay Act 22 of 1951), section 96, and also
sections 2(5), 2(6), 7(8). 35, 37(1). 33(1)» 39, 55 and 95- '

3. At one stage of our consideration of the subject such amendments had been thought
of, but later, they were abandoned.

4. Cf. section 6A(2). as proposed-

5. See section 7, as proposed.

6. F. 2?/3/55-Judl. II (Home Ministry) Appendix I, Item No. 4.

7- The views of State Governments on certain suggestions were obtained by the
Ministry of Home Affairs, which had forwarded to us the suggestions as well as the views.

tion of Presidency Magistrates. In fact, we regard the
institution as a useful one,' and are inclined to recommend
the extension of the institution to other big cities?

106. No changes are needed in section 8. 56°50" 3

107. Section 9 deals with the Court of Session, ap- Section?
pointment of Sessions Judges etc. We have already sub- "d °"'1'°'
mitted a report' on this section, recommending the changes
that appeared to be necessary in View of the constitutional
provisions as to "control", as interpreted by the Supreme
Court.' The section may be amended' accordingly.

108. With respect to section 9(3), some points regard- Section 9(3)
ing Assistant Sessions Judges are discussed below.'

109. With reference to section 9(4), it has been sug- Section 9(4)

ested' that the Sessions Judge appointed as the Additional

essions Judge of another Sessions Division should sit at
the headquarters of the Sessions Division of which he is
the Additional Sessions Judge. This would mean abolition
of the discretion which the Sessions Judge has at present
regarding venue. No such change is, in our view, required.

110. Section 10 deals with the District Magistrate and Section 10
Additional District Magistrate. Following changes are need-
ed in this section---

(i) An Executive Magistrate of the ﬁrst class should
be appointed as a District Magistrate? Compare the
Punjab amendment, section 10(1).

(ii) Further, an Executive Magistrate of the ﬁrst
class should be appointed as an Additional District
Magistrate. Compare the Punjab amendment, section
10 ).

(iii) Provision for appointment of a Chief Judicial
Magistrate" should be made. Compare section 10(1A),
Punjab.

Necessary changes" are recommended.

I. Paragraphs 66 to 70, supra-
Z. Paragraph 70, supra.

J d 3. 32nd Report of the Law Commission (Appointment, Transfer etc. of Sessions
u ges).

4. See State ofAssam v. Runga Muhammad, A.I.R. 1967 SC. 903.
5. See section 9, as proposed.

6. See discussion regarding section 30, infra.

7. F. 27(5)/54-Judl. II (Home Ministry), Appendix II, Item 3.

8. See discussion under section 6A.

9. See also discussion relating to section 6A and section 12.

10. See section 10, as proposed.

Section 10
and Mobile
Courts

Section 11

Section 12

111. The following suggestion' has been made by a State
Government : --

"A provision should be made for the creation of
Mobile Courts in large cities, with a view to punishing
persons committing breach of traffic regulations and
offences pertaining to the Motor Vehicles Act and
Municipal Laws" (The suggestion states that such courts
are in existence in big cities like Calcutta and Madras).

We may note, that the matter was referred to in an
earlier Report' also. In our view, however, an amendment
of the Code is not appropriate for the purpose. It may be
left to the particular laws.

We may, incidentally, note that, the matter seems to
pertain to section 352 also. Further, questions of right to
counsel under section 340 are also involved.'

112. No changes are needed in section 11.

113. Section 12 deals with the "appointment" of "sub-
ordinate Magistrates", and needs the following changes:--

(a) In view of separation, it becomes necessaty to
deal separately With Judicial and Executive Magis-
trates;

(b) Executive Magistrates will continue _to be ap-
pointed by the State Government, and their area will
be deﬁned by the State Government, or by the District

Magistrate, subject to the control of the State Govern-
ment; r

(c) Judicial Magistrates should be "appointed" by
the High Court. Ii separation is to be introduced ﬂec-
tively, the conferment of Ma 'sterial powers--wh, h is
the matter to which sectionl mainly pertains---must be-
longlto the High Court. Compare section 12 as amended
in t e Punjab.

(d) The deﬁnition of the local area of Ju icial
Magistrates should be made by the High Court, 0 sub-
ject to its control, by the Chief Judicial Magistrate, as
in the Punjab. The Bombay amendment gives this power
to the Sessions Judge, but, as our scheme' co tem-
plates the appointment of a Chief Judicial Magis rate,
he should have this power.

(e) Both under the Punjab and under the Bombay
amendments, section 12 contains a provision to the
effect that the power of "appointment" of (Judicial)
Magistrates shall, on the issue of a public notiﬁdation

1. 1:. 3(2)/55-L.C. Pt. 111, s. No. 49.

2. Cf. 14th Report, Vol. 2, Page 787, Paras. 27-28.

3. Cf. Rem Dayal v. Corporation of Calcutta, A.I.R- 1953 Cal. 76, 78-
4. See discussion relating to sections 10 and 1.7.

under article 237 of the Constitution, be exercised sub-
Ject to the terms of the said notiﬁcation. The "appoint-
ment" to which article 237 relates is recruitment
and we do not think it necesary to insert such a
provision in section 12,. which can be taken as conﬁned
to the conferment of Magisterial powers on persons
appointed to the appropriate cadre in conformity with
the constitutional provisions that may be applicable."

(f) A provision regarding the transitional period
may be made (Compare the Punjab Amendment).

Necessary changes are recommended."

114. With reference to section 12, the following sugges-5 - 12
tion' has been made by a High Court Judge :-- .§§"§,';g,..

"Section 12 may be amended to provide that the §i°"a'°3:i':lt'_
power. of appointing Magistrates may be conferred upon gimp"
the High Court instead of State Government."

This has already been covered, in substance.'

115. Section 13 relates to Sub-divisional Magistrates. Section 13
It will be necessary to add the word" "Executive" here.
Compare section 13, as amended in the Punjab.

The Bombay scheme is different. Under section 13 (as
amended in Bombay), there are no "classes" of Executive
Magistrates, and the Sub-divisional Magistrate appointed
under section 13 is a sui generis. Further, section 13 (as
amended in Bombay), speaks of "Taluka Magistrates" also,--
a provision which may not be needed in the whole of India.

116. We have accepted the suggestion of a State Gov- section 13
ernrnent' to provide for the appointment of an Additional (2A) (To be
Sub-divisional Magistrate. added)

Necessary provision be added.

We may note, that a similar suggestion has been made
in the Report of the U.P. Committee for Investigation into
corruption in subordinate courts." As it has been held9 that
the present section does not contemplate an Additional
Sub-divisional Magistrate, an amendment would be re-
quired."

1. See also the 32nd Report (Szction 9 of the Code----Appointment etc. of Sessions
Judges).

2. See also discussion relating to section 9.

3. See section 12, as proposed. '

4. F. 3(2)/55-L.C. Pt. III, S. No. 49(a).

5. See paragraph 113, supra.

6. See section 13, as'proposed.

7. F. 3(2)/55-L.C. Part II, S. No. 33.

8. F. 3(2)/55-L.C. Part VII, S. No. 449 (Suggestion ofthe U.P. Committee for Inves-

tigation of Causes of Corruption in subordinate Courts in Uttar Pradesh) (1963),

Report, Pages 37-38 (Bill at Page 223).
9. See Lakshmi v. State, A.I.R. 1962 All. 165, Para. 5.
10. Compare section 10(2).

Section 14

Section 14 A
(New)

Section 15

Seccicn 16

Section 17(1)

117. Section 14 deals with Special Magistrates. In View
of separation, special Magistrates can be of two categories-
(i) Special Judidical Magistrates, and (ii) Special Executive
Magistrates. The latter are dealt with separately.' Section
14 can deal with Special Judicial Magistrates.

So far as Judicial Magistrates are concerned, the con-
ferment of powers under section 14 should be by the High
Court.' And, if the High Court takes this action, then the
provisions contained in section 14(3) and section 14(4) be-
comes unnecessary, and can be omitted.

Necessary changes are recommended?

118. A new section should be inserted' to deal with
special Executive Magistrates.'

119. Section 15 deals with the constitution of Benches
of Magistrates. The following points may be noted : ----

(i) The word "Judicial" has to be added before the
word "Magistrate":

(ii) For the "State Government", the High Court
should be substituted, as it is the latter that should deal
with the matter, in view of separation. Compare the
Bombay and Punjab amendments.

Necessary amendment is recommended."

120. In section 16, the following changes are neces-
sary:--

(i) In place of the State Government, the High
Court with the approval of the State Government should
be given the power to make rules, in View of separa-
tion.

(ii) The word "Judicial" may be added before the
word "Magistrate". Compare the Punjab amendment.

Necessary changes are recommended.'

121. Section 17(1) is an important provision from the
point of view of separation. It provides, that the Magistrates
appointed under sections 12, 13 and 14 and the Benches
constituted under section 15 shall be "subordinate" to the
District Magistrate, and the latter may give orders as to the
distribution of business amongst them. This "subordination"
is both judicial and executive.'

Q-)O\Ll|-hLn'_"'-'

. See section 14A (proposed), regarding special Executive Magistrates.
See discussion regarding section 12.

. See section 14, as proposed-

. See section 14A, 85 pr0P0S9d-

. See discussion relating to section 6A and section 14-

. See section 15, as proposed.

. Cf. existing section 554-

. See section 16, as proposed.

9. -Cf. Cur Dayal, (1879) I.L.R. 2 All. 205, 207 (F.B.).

. So far as Judicial Magistrates are concerned, it is ob-
VIOLIS that they cannot (after separation) be made subordi-
nate to_the District Magistrate, unless the District Magis-
trate himself is a Judicial Magistrate. It becomes neces-

sary to consider the principal patterns of separation, in this
context.

According to the Madras pattern the District Magis-
trate, who is a Judicial Magistrate is the Principal Magis-
terial oﬂicer in the district and, as such, has general admi--
nistrative superintendence and control over the other Judi-
cial Magistrates in his district. He himself is subordinate
to the High Court.

According to the Bombay pattern, control over Judicial
Magistrates is exercised by the Sessions Judge. The District
Magistrate (in the Bombay scheme) is not a Judicial Magis-
trate, but an Executive Magistrate.

The Punjab scheme contemplates the appointment of
a Chief Judicial Magistrate, to whom all Judicial Magis-
trates are subordinate. The Chief Judicial Magistrate him-
self is subordinate to the Sessions Judge. In the Punjab, the
District Magistrate is an Executive Magistrate.

122. In our opinion, if administrative control over J udi- chiefJudi-

cial Magistrates is to be effectively exercised, it can best cial Magi--
be done by the creation of a post of Chief Judicial Magis- :§'1°:1;:'('l¥i'°'
trate as in the Punjab. In an earlier Report,' the Law Com- 3 ng
mission had recommended adoption of the Madras pattern.
The Punjab pattern, in this respect, follows the Madras
pattern, though in Punjab the nomenclature is different and
the change has been effected by statute We recommend that
section 17(1) be amended accordingly."

123. Section 17(2) deals with the subordination of section 17
Magistrates to the Sub-divisional Magistrates and has to be (2)
omitted, as the Sub-divisional Magistrate in our scheme is
an Executive Magistrate? In lace of the existing sub-sec-
tion, a provision dealing with t e subordination of the Chief
Judicial Magistrate to the Sessions Judge may be inserted.'
Compare section 17 (2) as amended in Punjab.

124. Section 17(3) needs no change. ?3e)ction 17

125. In section 17(4), instead of "District Magistrate", Section 17
we have to substitute "Chief Judicial Magistrate", in view (4)
of separation. Compare the Punjab amendment.

1. 14th Report, Vol. 2, page 858, para. 21, and page 860, Item (5).
2. See section 17(1), as proposed.

3. See section 13 as proposed.

4. See Section 17(2), as proposed.

40
126. With reference to section 17(4), it has been sug-

tion ,ega,d, gested' that the limitation expressed by the words "un-

ing avoidably absent or_ incapable of acting should be removed.
After som_e discussion, we have decided to retain these
Words, which have caused no serious diﬂiculty.

%5°)°"°" 17 _ 127. Section_17(_5) is a negative provision, which pro-

vides that the District Magistrate, and the Magistrates and
the Benches appointed under section 12 to 15, shall not be
subordinate to the Session Judge, except as expressly pro-
vided.' This provision has to be omitted, in view of separa-

tion. (Compare the Bombay and Punjab Amendments).

One effect of the deletion of section 17 (5) would be,
that the provision that the District Magistrate is not sub-
ordinate to the Sessions Judge, also disappears. Since the
District Magistrate, in our scheme,' is not a Judicial Magis-
trate, this provision is not needed. The District Magistrate
will, of course, continue to be an "inferior criminal Court",
in relation to the Court of Session and the High Court.'

Section 17A

(New) 128. A new provision regarding subordination of Exe-

cutive Magistrates may be inserted, on the lines of section
17A as inserted in the Bombay and Punjab Amendments?

3°°ti°n 133 129. In view of separation, it is desirable to insert a

'New' provision as to the courts which shall be inferior ' the
High Court and the Court of Sessions. Such a provisiﬁ; has
been inserted by section 17B under the Punjab and B . bay
Amendments. In fact, the Explanation to section 435(1)
already provides that all Magistrates, whether exercising
original or appellate urisdiction, shall be deemed to be in-
ferior to the Sessions udge for the purpose of section 535(1)
and section 437. The provision which we recommend em-
bodies the following propositions :'-- I

(a) Courts of Magistrates in Presidency towns will
ge inferior to the High Court, but not to the Court of
ession; ' V

(b) Courts of Magistrates elsewhere will be inferior
to the High Court as well as to the Court of Session,'

1. F. 27/3/55--]udl. II(l-Iome Ministry File), Appendix 1, Item No.5.

' 2. An excellent discussion of the question how far Magistrates are subordinate to the
Sszsi oars Judge is found in the Judgement of Spankie J. in Gur Dayal, (1879) I.L.R,. 2 All.
2 , 10, 211-

. See section 10, as proposed.

. See section 17B, as propos .1.

. See section 17A, as propr s .1.

. See section 17B (propo 2.') V
. See also para. 127, sup u. . ' _'

-doxui-kw

41
130. Section 18, which deals with Magistrates in Pre- S°°'i°ﬁ 13

sidency towns, requires amendment in so far as it deals
*with appointment to a particular court. Both in relation to

the Chief Presidency Magistrates and in relation to Presi-
dency Magistrates, appointment to the particular court

--should be made by the High Court. In view of the provi-
sions of articles 233 to 235 and 236(3) of the 'Constitution as

interpreted by the Supreme Court,' the appointment to the
particular court of the Chief Presidency Magistrate, being
a part of "control" under article 235, can only be made by
the High Court.

If that is the position regarding Chief Presidency Magis-

trates, it should not be different for other Presidency Magis-

trates, even though the constitutional provisions do not
apply to them until a notiﬁcation under article 237 is issued.

131. Section 18(5), as amended in ﬁombay, contains a5°°'i°" 13
provision that when a notiﬁcation under article 237 of the'
Constitution is issued, the appointment of Presidency
Magistrates shall be made according to the terms of the
notiﬁcation. The "appointment" to which article 237 relates

is recruitment, and we do not think it necessary to insert'

such a provision in section 18, whereunder the emphasis is
on the conferment of magisterial powers in relation to a
particular locality."

The designation "Presidency Magistrate" may be re-
tained, in respect of Presidency towns.

132. With reference to section 18, the following Sug--Section 18

gestion' has been made by a High Court : - ggiicind

"A proviso should be added to sub-section (1) of 05°"
section 1 to the effect that no police oﬂicer of any rank

:shall be appointed as Presidency Magistrate. The ano-

malous position of the Commissioner functioning as a Magis-
trate and performing judicial duties like remanding has
been adversely commented upon in judicial decisions. It is
not in consonance with the scheme of the separation of
judiciary from the Executive. Hence a proviso is recom-
mended".

We considered this suggestion in detail.' The matter, it

'appears to us, falls within the State List as provisions con-

ferring Magisterial powers on Commissioners of Police are
usually contained in enactments relating to the police. The
States can take action to delete the provision in the Police

.Act concerned. Thus, for example, section 13, Bombay Police

Act, 1951 was deleted by Bombay Act 21 of 1954.

1. See 32nd Report of the Law Commission (Section 9 of the Code--Appointment etc.

«of Sessions Judges). .

2. Cf. discussion relating to section 12.

3. See also paragraph 130, supra.

4. F.3(2)/55-L.C.Pt.lII,S.No.52.

5. Compare section 5, Police Act, 1861 (5 of 1861).

5°Cti0n 19 133. No changes are needed in section 19.

Section 20 134. No changes are needed in section 20.

Section 21 135. In section 21 (1), in the part relating to the powers
£3;-gggrgo of the Chief Presidency Magistrates, we are recommending
powers of certain verbal changes.

Chief Presi-

dency

Magistrates

Section 21 136. In section 21(1), in the part relating to rules, verbal
g3)1vaE§"'t'o changes, in order to bring the provision in section 21 in
mes g line with section 16, are recommended.

_ Rules under section 21(1) must be made with the sanc-
tion of the High Court (instead of the sanction of the States
Government, as at present).

Necessary change is recommended.
Section 21 137. Section 21(2) leaves it to the State Government to
(2)&_--s1t1_b-- deﬁne the extent of subordination of Presidency Magistrates: '
0!' ma 101.1.

Magistrates

Section 22

deﬁne their subordination should be given to the
Court, and not to the State Government.'

(b) So far as Presidency Magistrates generally are
concerned (including their Benches), they should be sub-
ordinate to the Chief Presidency Magistrate. For the
sake of uniformity, a provision to that effect should be

substituted.

Necessary changes are recommended.'

tion 22 :-

(i) The appointment of Justice of the Peace should

be made in consultation with the High Court;
(ii) They should be citizens of India.'

With reference to section 22, a suggestion to deﬁne the.
powers and duties of Justices of the Peace has been re-

ceived.' We have dealt with the matter separately.'

1. Cf. discussion relating to section 18-

2. Cf. section 21, as proposed.

3. See section 22, as proposed.

4- F. 3(2)-55-L-C-, Notes, pages 30-34.

5. See discussion regarding powers oflustices of Peace (New section 22A efc.).

to the Chief Presidency Magistrates. Our views in this res-
Presidency pect are as fol1ows:-

(a) In so far as the subordination of the Additional'
Chief Presidency Magistrate to the Chief Presidency
Magistrates is concerned, we think that the power to

138. Section 22 deals with the appointment of Justices'
of the Peace. Following changes are recommended in sec--

139. After section 22, we recommend the insertion of SW30" 22A

a new section, to deal with the powers of the Justices of New)

the Peace, which are not deﬁned under the present law.

The provision which we propose' has been framed after

studying section 22A of the West Bengal Amendment and

section 539D of the Bombay Amendment.

140. Another section may be inserted3 regarding the Section 223
power of the Justice of the Peace to record a dying declara- (New)
tion. Section 22B as inserted by the West Bengal Amend-
ment lays down a number of "duties" to be performed by
the Justice of the Peace, but we think that it would not
be desirable in an All India Code, to impose all these duties
on a Justice of the Peace, and it will suﬂice to give them
the power to record a dying declaration. We also think,
that the function should be described as a "power", and not
as a "duty".

The expression "dying declaration" is really a loose
word for a statement which, on death, becomes relevant
under section 32(1) of the Indian Evidence Act. Hence the
description of the statement to be recorded should conform",
as far as possible, to the language of secti-on 32 of the Indian
Evidence Act, 1872.

141. Sections 23 and 24 are already omitted. ggccions 23.

142. Section 25 may be retained, (though it has been Section 25
omitted in West Bengal) as "duties" are not being imposed
on Justices of the Peace in our Scheme.' But we recom-
mend' that Judges of the Supreme Court may be included
in the section.

143. Sections 26 and 27 are already omitted. ggctions 26-

144. In connection with section 28, the question of re- Section 28
tention of ordinary original criminal jurisdiction of the arid 9ﬁEil'|31"
High Court (wherever it exists) was considered at great
length by us. The matter was discussed in an earlier Re- of High
port,' the view expressed there being that the ordinary Court
original jurisdiction of the Calcutta High Court in respect
of murder should be abolished. We have, however, come to
a different conclusion. In our opinion, it is better to have
justice from a court of superior jurisdiction than from a
court of inferior jurisdiction, and where justice from a
superior court is available under the existing law (as in
Calcutta), strong reasons should be needed to disturb the
law.

1. See section 22A, as proposed.
2. See section 22B, as proposed.
3. See discussion relating to sections 22A and 22B (proposed).
4. See section 25, as proposed.
5. See 14th Report, Vol.2, page 1201. para. 7, and page 714, para-2-

Section 29

'Section 30

. 145. We may point _out, that it is the judgments of the
High Courts on the original side that have enriched not only
our Civil law, but also our criminal law. To illustrate this,
it will sufﬁce to_refer to only one judgment' dealing with
section 302, Indian Penal Code. No better or more lucid
exposition of the distinction between culpable homicide and
murder can be found than in this judgment. We are aware,
that the recommendation in the earlier Report was made
after recording evidence. Nevertheless, we think that there
are cogent reasons for not disturbing the existing position.
'That will be too big a price to pay for uniformity.

146. Regarding the original Criminal jurisdiction of
High Courts, We would like to refer to the remarks which
Mr. Justice Mathew made in England while addressing the
Lord Mayor, in connection with a suggestion that the crimi-
nal business of the country should be handed over to the
Court of Quarter Sessions 2 '

"I think you will agree with me that the respect
and the conﬁdence which attaches to the administra-
tion of the criminal law is largely due to the fact that the
judges attend the assizes. It is an old constitutional; prin-
ciple and rule that when the liberty of the humblest sub-
ject of the Queen is imperilled, his trial should be presided
over by one of the high officials of the law. The traditions
of the Bench and their obligations are well understood by
the country; and it is expected that the accused man should
have one protector in Court, and that is the Judge. It is
expected that every precaution that experience can sug-
gest should be taken to prevent the greatest of all tragedies----
the conviction of an innocent man."

147. Section 29 has been amended in Madras." In subs-
tance, the Madras amendment assimilates the procedure in
the High Court to that in the Court of Session. The matter
really pertains to Chapter 23 (section 266 et sec.)'

148. Under section 30, the following points require to
be considered-

(a) In view of separation, mention of the District
Magistrate may be omitted, and the Chief Judicial
Magistrate may be added.-Compare the Punjab Amend-
ment. . '

(b) In earlier Report,' a recommendation was 'made
for amending section 30,, sin that all ﬁrst class agis-
trates with ﬁve years' experience may be giv the
power to impose sentendes of imprisonment u to 4
years, after separation of the Judiciary.

1. Reg. v. Got/inda, (1876), I.L.R. 1 Bom. 342, 344-346-

2. See (1897) Z C.W.N. (Journal) 33.

3. Madras Act: 34 of 1955. .
4. To be considered under section 26§. (Madras Amendment to section 29).
'S. 14th Report, Vol. 2, page 721, para. 23.

On this change being made, the list of offences triable
concurrently by the Court of Session and the Court of such
Magi_strates would have been enlarged, and the need for a
provision for specially empowering speciﬁed ﬁrst-class

Magistrates under section 30 would (it was contemplated).
have disappeared.

149. We have given our anxious consideration to this
matter. But we are compelled to differ with the recommen-
dation of the 14th Report on this point. The recommenda-
tion was based on the assumption that any Magistrate of
ﬁve years' standing would be ﬁt to impose the heavier
sentence. We are not sure if the general standard of Magis-
trates justiﬁes this assumption. Instead, the existing provi-
sion in section 30, which provides for a selection of the
m-ore capable amongst the senior Magistrates, seems to be
preferable. We, therefore, think that section 30 should be
allowed to continue at least for the present.

150. With reference to section 30, it has been suggested' Section 30
that enhanced powers under section 30 of the Code of Cri- 'mg f°'}f°"
minal Procedure should be conferred on Magistrates with m " °

the concurrence of and not merely in consultation with the powers
High Court.

The changes which we are recommending in the sec-

tions relating to appointment of, and conferrnent of powers
on Magistrates, achieve the object in view.'

151. Regarding the respective utility of Assistant Section _3o
Sessions Judges appointed under section 9 and Magistrates a1t}<;&1'1_11:1¥_' '
appointed under section 30, conﬂicting views have been ex-° 35"' 3

. . . . t ' '
pressed in the various suggestions received by us. .231: '.',f;."

Thus, the suggestion' of two High Court Judges is that under
section 30 should be deleted, and Assistant Sessions Judges
should be appointed. There should (according to them) be a
separate cadre for Assistant Sessions Judges, as the entrust-

ment of work of Assistant 'Sessions Judges to Civil and
Sessions Judges only leads to delay.

The suggestion' of the Administration of a Union Terri-
tory is, that until separation it is not desirable to enlarge
the powers of Magistrates to dispose of cases at present
tried by Assistant Sessions Judges.

The view of a Public Prosecutor is,' that there is little
difference between a Magistrate empowered under section
0 and an Assistant Sessions Judge, that Assistant Sessions
Judges do not usually pass sentences for more than two

1. F. 3(2)/55-LC. Part VII, S. No. 449 (Suggestion of the U.P. Committee for Investi-
gation of Causes of Corruption in Subordinate Courts in Uttar Pradesh (1963), Report
page 39, (Bill at page 224).

2. See section 12, 36 and 37 as proposed.
3. F. 3(2)/55-L.C. Pt. II, S. No. 33(b).

4. F. 3(2)/55-L.C. Pt. II, S. No. 34.

5. F. 3(2)/S5-L.C. Pt. II, s. No. 34(b).

§ear_s, and that the cases now committed to Assistant
essi-on_s Judges can be adequately dealt with by a Magis-
trate with enhanced powers.

No change need, we think, be made in the statutory
provisions. The Code leaves the matter elastic, because it is
open to the State Government to provide for the required
number of posts of Assistant Sessions Judges, or to resort
to section 30.

E33550" 3:'; 152. The following suggestion' has been made by a High
ti?" gfg Court Judge:-
ﬁ'g§eC°"" "There are hardly any Magistrates exercising

powers under section 30. Section 30 may, therefore, be
suitably amended to confer on experienced ﬁrst class
Magistrates power to punish offences with impri-
sonment which may extend to 3 years and to bring with-
in their jurisdiction oﬁences punishable with rigorous
iiriprisonment of 5 years."

We think, that it is better to keep the matter elastic,
by retaining section 30.

Section 30 153. Regarding section 30, it has been stated' that there
andserious is an anomaly regarding powers of a "S.30 Magistrate" to
ff°]'D']°:sb try offences under section 326, 382,. 392, Indian Pena1;Code,
pi?" C18; as these offences are punishable. with imprisonment for
Magistrates more than 7 years. We do not -think that such an anomaly
exists. A Magistrate invested with poWers_ under section
30 does not, in our opinion, ﬁllereby lose his powers as_ a
First Class Magistrate to try e offences that are otherwise
triable by a ﬁrst Class Magistrate. The anomaly is more
ap-parent than real. Whether, in such cases, his enhanced
"°"i'f." °*
ano er ma er. ur V1eW , ii , .
as to sentencing are only those conferred by_ section In
such cases, if the Magistrate thinksthat a punishment higher
than imprisonigent agar 'Ewe ryeafr% is needeiit, heﬂlliats to 913m-
it th accuse to e ou o ession. 'L8 a post ton
which (is, in our view, anomalous. To remove that an-dmaly,
it is better to substitute the words "ten years" for "seven
years", in section 30, so that the provisions Of Section 34
will be attracted. The 7 year's limit in section 34 should not,
however, be increased. .

Section 30 154. The following suggestion' has been made by a Dis-
and S"88°5' trict Judge.

tion for ,
'°St°'i"8 "Section 30 be amended so as to restore it to the
g:;,1£?gn positibn it had before the amendment made by Act

XXVI of 1955. Several cases which are committed_ to
the Court of Sessions are petty, and can as well be tried
by experienced Magistrates."

1. F. 3(2)/55-L.C. Pt. III, S. No. 49(a).
2. F. 3(2)/55-L.C. Part I, S. No. 83.
3. 1:. 3(2)/55-LC. Pt. III, s. No. 4903).

A suggestion made by another District J udge' may also
be noted.

"Section 30 has to be suitably amended by em-
powering the experienced magistrates to try all offences
not punishable with death as was under the old pro-
vision. The amendment made by Act XXVI of 1955
lcilas tended to increase the work considerably in Sessions
1 ou ."

We are not, however, inclined to accept the sug-

gestion in toto, though we are recommending certain
other modiﬁcations.'

155. No change is necessary in section 31. Section 31

156. In section 32(1), opening line, the word "Judicial" section 32
need not be added before the word "Magistrate".

157. The following suggestion3 has been made by a High Section 32
Court. (1)(**)

"The Judges of the High Court feel, that as a result
of the separation of the judiciary from the executive,
and with the experience gained by the Magistracy,
first-class Magistrates with 5 years experience may be
given the power to impose a sentence of imprisonment
upto 4 years. See the Law Comm'.ission's recommenda-
tions, in this respect.'

This question has been already considered?

158. With reference to section 32, it has been suggested Section 32
by the U.P. Committee that Magistrates who have exercised and su 68-
ﬁrst class Magisterial powers for more than ﬁve years may g°"° P'
be invested with power to impose sentence of imprison- °m"" °°
ment up to four years.

We have already considered a similar suggestion made
in the earlier Report of the Law Commission.' 7

159. We have considered suggestions""' to increase the Section 3_2
powers of a ﬁrst class Magistrate to punishment of im-pri- "id ""Pt"'
sonment up to 3 years, but we are not inclined to accept $'$'°3"yea,5
them. It is true, that in many recent special laws, the maxi-
mum punishment of imprisonment laid down is three years,

. F. No. F. 3(1)/55-LC. Pt. III, S. No. 4-9(.e).

. See section 30 (as proposed).

. F. No. F. 3(2)/55-L.C. Part III, S. No. 32.

. The reference seems to be to the 14th Report, Vol. 2, page 721, para. 23.
. See discussion relating to Section 30.

. F. 3(2)/55»L.C. Part VII, S. No. 449, suggestion of the U. P. Committee for Investi'
gation of Causes of Corruption in Subrodinate Courts in Uttar Pradesh (1963,
Report pages 39-40.

. See discussion relating to section 30.

. F. 3(2)/'55-L.C. Part I, S. No. 36 and 49.

. F. 3(2)/55-L.C. Part II, S. No. 33 (Suggestion ofa State Government).
. F. Z7/3/55-Jud]. II (Home Ministry's ﬁle), Appendix I, Item No. 6.

Oxooo-~l a\un.b.z.uN--

and, in Such Cases, as the position now stands, a First class,

Magistrate (if he thinks that a sentence of two years is
not enough), was to commit the case to Sessions. But we
do not see anything seriously unsatisfactory in that position.

Section 33 _ 160. In section 33, the following points have been con-
s1dered-----

' (a) Before the word "Magistrate", the word "Judi-
cial" need not be added.

_ (b) It is unnecessary to increase the limit of im-
prisonment in default from one fourth to one half. The
increase in the Magistrate's powers regarding the
maximum amount of ﬁne was due to rise in prices, and
was not the result of any decision to increase the
powers of Magistrates as such.

Section 33 161. With reference to section 33, the .following sugges-
and sugses- tion' has been made by a High Court Judge. '

tion to make

the sectiqn "Section 33 relating to imprisonment on default of'
:°e1§'°°"'a" ﬁne, may be amended so as to make it self-contained,
by including the provisions in sections 64 to 68, Indian

Penal Code". We studied the statutory provisions re-
ferred to. With great respect, we are unable to accept
the suggestion. ~

The attempt to combine section 33 of the Code of
Criminal Procedure with "sections 64 to 68 of the Indian
Penal Code is, it seems to us, likely to make section
33 cumbersome. Moreover, the topics dealt with in the
two sets of provisions, thdugh connected, are different.

The Code of Crirninal Procedure focusses att ntion
on the powers of particular classes of Courts, whﬁe the
Indian Penal Code deals generally with the liabi 'ty of
Ehe offender to the punishment of imprisonment in der

ault.

Provision for Go 162. With lrefererrlitce tctr ligi imp'1c'isonnf1eic'1l11;, cértain; Statec
consi em. vemmen s roug it o e no ice 0 e ove men
tion aifter of India," that owing to the repeal of section 58 of the ndian
°°°"°" 33», Penal Code by the Code of Criminal Procedure (Amend-
:'(f,€':ne','l't'P"' ment) Act, 1955, there is a lacuna as to how the persons
sentenced to imprisomnent for life should be treated *'while
in jail. Attention has 'also been drawn to the followi g ob-
servations' in criminal appeal No. 120 of 1956 (Keralaf High

Court).

"Section 302 as amendedby the schedule to the-, C-ode
of Criminal procedure (Amendment) Act, 1955 (Central Act
26 of 1955) only states that alternative punishment for
murder shall be 'imprisonment for life' and not rigorous

1. F. 3(2)/55-L.C. Pt. III, S. No. 49(3).
2. F. No. F. 3(2)/S5--I..C. Pt. VII, S. No. 272.
3. The decision is reported in A.I.R. 1957 Kerala 102, 103.

imprisonment for life or simple imprisonment for life .... ..
The court passing sentences have however to keep in view
the provisions of section 60 of the Penal Code and choose
one or the other from in view of all circumstances. Recent-
ly we had another instance where the Sessions Judge had
failed to specify whether imprisonment for life awarded by
him was rigorous or simple. In that case the Inspector-
General of Prison has sought our direction as to what des-
cription of imprisonment the prisoner should be "made to
undergo. Here we clarify the position by stating that the

imprisonment for life in this case shall be simple imprison-
ment and not rigorous".

Now, it has been suggested, that considering the nature
of offences for which imprisonment for life is awarded, it
is desirable that the imprisonment for life should be rigor-
ous, and should only be amenable to such concessions in
special case of illness, old age, etc., as the Prisoners Act and
the Prison Rules may permit. We have examined the sug-
gestion. We think that the matter pertains to the Indian

Penal Code,' and can be more conveniently considered under
that Code.'

163. It is unnecessary to add the word "Judicial" before Section 34

the word "Magistrate" in section 34, having regard to the
context.

164. Section 35, inter alia, contains a provision as to 5*'-¢*i°" 35
sentences of imprisonment, to the effect that such sentences
(when passed on conviction for several offences at the same

trial) shall run consecutively, unless the Court directs that
they shall run concurrently.

Now, a High Court Judge3 has suggested the insertion
of a provision to the effect that the normal rule should be
that the punishment of imprisonment is cumulative and not
consecutive. We have given anxious thought to this sug-
gestion. The matter, we are afraid, cannot be made so rigid.
History of the section and the case law on the subject were
gone into by us. We are of the view that, on principle,
the matter should be elastic, and that is the true import
of the existing provision. If the court does not direct that
the sentence shall run concurrently, then it is to be regard-
ed as consecutive, under the existing provision. But. the
main question--t.e. in what cases the Court can give a direc-
tion is left----and rightly so---to the discretion of the Court.

165. In section 35(1), the words "unless the court directs Section 35
that such punishment run concurrently" were added at the
Select Committee stage in 1898, for these reasons.'

1. See also Urlikia v. State A.l.R. 1964 Orissa 149 in this connection.
2. To be considered under the Indian Penal Code. . . . . '

3. F. No. 3(2)/55-L.C. Part II, S. No. 33(a). '

4. Report of the Select Committee, dated 16th February, 1898,. .
5--29 Law/63

"15. Clause 35.-----On the recommendation of the High
Court,_North_-Westem Provinces, we have empowered Courts
in India, as in England, to pass concurrent, as well as con-
secutive, sentences of transportation and imprisonment. The
effect of this change will probably be to mitigate sentences
andl at the same time also to discourage frivolous ap-
pea s .... ..

166. The High Court of North-Western Provinces made
the following suggestion when the Bill of 1897 was under
consideration :1

"28. Section 35. Under this section concurrent sen-
tences eannot be passed This Court is strongly of opi-
nion that a court should have the power, when a per-
son is convicted at one trial of two or more distinct offences
in respect of each of. which a sentence of imprisonment or
transportation is passed, to order that the sentences shall
be concurrent or consecutive, as to the court may seem right.
This could be effected by the addition to sub--section; (1) of
section 35 of the words "unlessthe court directs that such
punishment shall run concurrently". The power to pass co-n-
current sentences is frequently used by the courts in Eng-
land, and it is a useful power. Section 240 provides a cum-
brous and dilatory procedure in the case of two charges."

167. As the Code stood before 1882, concurrent sentences
could not be passed.'

In the Code as it stood before 1898, the power to pass
concurrent sentences was absent, and the Allahabad High
Court, in a very early case} regretted this omission. Hence,
in the 1898 Code, this provision was inserted.

168. The point now to be considered has been elaborated
by Desai J. thus'-

"Then the learned Magistrate has passed eoncur-
rent sentences without giving any reason and apparent-
ly without even applying his mind to the question. I
ﬁnd that Magistrates invariably make the several sen-
tences concurrent withouteacercising any discretion in
the matter. It is laid down in section 35 of the Code that
one "sentence of imprisonment will commence after the
expiration of the other sentence of impris'onment,gunless
the Court directs that such sentences shall run concur-
rently. Obviously the normal rule is that the sentences
should be consecutive, and they may be made to run
concurrently only if there is some reason. Whether the
sentences should run consecutively or concurrently is

1. Letter dated 13th_1December, 1897 of the High Court of North-VVestem Provinces
to the Secretary to Government, Northwestern Provinces and Oudh, Part II, para. 28
(Legislative proceedings, April, 1898, Nos. 24-128, in the National Archives, rehting to
the Code of Criminal Procedure, 1898).

2. Emp. v. Vazir Jan. I.L.'Ra 10 All. 58.

3. Ishﬁ, (1897) I.L.R. 20 All. 1'(F.B.).

4. Khuda Buat V. The State, A.I.R. 1951 Al}. 63", 649.

left to the discretion of the Court, but the court must
exercise its discretion judicially. It must not exercise it
arbitrarily, and must not on every occasion blindly
order the sentences to run concurrently as if there were
no alternative; but this is done by nearly every Magis-
trate. I scarcely remember even one instance in which
a Magistrate ordered two sentences to run consecutive-
ly. In the present case there was no justiﬁcation for
ordering the sentences, which themselves were inade-
quate, to run concurrently; the applicants should have
been punished cumulatively for the "different offences
committed by them. I would have very much liked to
make the sentences consecutive, but I am not sure if I
can do so without a notice of enhancement having been
given to the applicants. I am inclined to the view that
making the sentence run consecutively instead of con-
currently does not amount to enhancement. But this
question was not argued at the Bar, and as I am not
quite certain that it does not amount to enhancement.
I would refrain from making the alteration."

Sentences are usually ordered to run concurrently
when the two offences are akin or intimately connected
with each other.' Sentences passed in separate trials
cannot, of course, be ordered to run concurrently."

169. It has been suggested by the U.P. Committee,"
that sentences should normally run consecutively, and they

t' f U.P.
should be made to run concurrently only for good reasons Cglhgittee

to be recorded by the Court.

We have already expressed our view while considering
a similar suggestion made by a High Court Judge.'

170. In sections 36 to 38, which deal with the conferment Sections 35
of Magisterial powers, the following changes are necessary:- 'O 33

(a) Mention of the Chief Judicial Magistrate should
be added, after 'District Magistrate'.

(b) Further, in view of separation, the conferment
of powers should be by the High Court, which should be
substituted in place of the State Government.

(c) For abundant caution, and for covering confer-
ment of powers under other laws. it would be desirable
to adopt section 38A, Punjab Amendment which has fol-
lowed section 38A, Bombay Amendrnent, with suitable
modiﬁcations.

l. N. N. Burjoriji v. Emp., A.I.R. 1935 Rangoon 456, 458.
2. King Emp. v. Nag sein, A.I.R. 1923 Rangoon 198.

3. F. 3(2)/55-L.C. Part VII, S. No. 449, Suggestion of the U.P. Committee for Investi-

gation ofthe Causes of Corruption in Subordinate Courts in Uttar Prarlesh (1963), Report
page 40, Bill at page 224-

4. See discussion relating to section 35.

Section 39

Section 40

Section 41

Section 42
Section 43

Section 44

171. In section 39(1), mention of the High Court may
also be added.' Compare the Punjab amendment.

172. In section 40, after the words "State Government"
occuring for the second time, the words "or the High Court
as the case may be" should be added, in view of separation.
Compare the Punjab amendment.

173. In section 41(1), the High Court has to be added.
Compare the Punjab amendment.

In section 41(2), the mention of the Chief Judicial
Magistrate subject to the control of the High Court should
be added. Compare the Punjab amendment

174. No change is needed in section 42.
175. No change is needed in section 43.

176. Section 44 imposes an obligation to report certain
offences, Following points require to be noted in connec-
tion with this section :-

(i) Regarding a proposal to insert a provision re-
quiring reporting of offences relating to bribery, we
have submitted a separate Report?

(ii) The scope of the corresponding offence in
Eng1and----misprison of fe1ony--has been narrowed down
by a recent Act.'-'.

(iii) Section 44 does not apply to the offender. The
Madras decision' apparentl expressing a View to the
contrary, can, in our view,. e taken as conﬁned to sec-
tion 203, Indian Penal Code, though it refers to section
44, Code of Criminal Procedure, and section 202, Indian

Penal Code.

(iv) It is unnecessary to accept the suggestion' for
extending section 44 so as to impose an obligation to
report ''loss of public property".

(v) Whether sections 431 to 433 and 437 to 439,
Indian Penal Code should be added (in section 44) was
considered by us. An objection was raised before us that
sections 435-436, Indian Penal Code are mentioned in
section 44 because they relate to mischief by fire where
urgent action is required, while the other sections (now
considered for inclusion) do not possess that feature.

1. Cf. sections 36 to 38 (as proposed).

2. See the Report °" 5

ection 44 of the Code of Criminal Procedure, 1898 (33rd Re»

3. The Criminal Law Act, 1967-

4. See the 33rd Report and Appendix 1 thereto.
5, In re China Ga/ngappa, A.I.R. 1930 Mad. 870.

in the resolution of Shri Dwivedi, removed in the Lok Sabha in

' d
1961?. ti:g§::co$a:n:ef::rred for Law Commiss-ion.'s. consideration. See F. 3(2)/55 Part IV,

S.L. No. 69-

We have, however, decided to add the above mentioned
sections. (sections 431 to 434 and 437 to 439, Indian Penal
Code), primarily with object hf encouraging detection of
offences of mischief in respect of embankments etc.

177. It has been suggested' that the burden of proof Section 44
under section 44 should be removed. We are not inclined and burden
to accept the suggestion. Ordinarily, only the accused will °f P'°°f
be aware of the existence of an excuse. and therefore the
present provision is justiﬁable.

178. With reference to section 44, the following sugges- 5°¢*i°nF44
tion has been made by a Public Prosecutor? in Andhra Pra-
deSh- under the

"In section 44(1), after the ﬁgures "400", the words Rai1"'aV|A°t

"or any section of the Indian Railways Act", should be

inserted.

The (proposed) amendment 1S intended to include per-
sons who have knowledge of sabotage of railway tracks and
other oﬁences.

Sabotage of the railway tracks and other offences under
the Indian Railways Act are on the increase."

We think, however, that this is a matter which pan be
more conveniently dealt with in the enactments rela-
ting to Railways.'

179. It has been suggested,' that the words "non-bail- Section 45
able" in section 45(1) should be removed. We cannot accept
this. That would unduly widen the scope of the section.

180. Under section 45, a number of other points were
considered by us.

(i) In section 45(a), the words "or is a member of such
village Panchayat" should be added, in View of the amend-
ment already made in section 45(1), main part, in 1955.

(ii) The question whether the delegation of powers con-
templated by section 45(1) (f)--particularly the words "pre-
vention of crime"-- confers (on the District Magistrate) too
wide a power, was raised before us. Our view is, that the
delegation is valid. No change is needed on this point.

181. No change is needed in existing sections 46 to 50. section 46
to 50
182. Section 51 is an important section, and has been Section 51
considered by us at length. We may ﬁrst note a small

1. F. 27(5) 54-Judl. (Home Ministry ﬁle), Appendix III, Item (5).
2. F. No. F. 3(2)/55-L.C. Part. III. S- No. 50(v),

3. Cf. Law Commission's Report on section 44 of the Code of Criminal Procedure
1898---Proposal to insert provision requiring reporting of bribery (33rd Report) and Appen-
dices 2-3, thereto. '

4. F. 3(2)/55-L.C. Part I, S. No. 72.

P0in_'f, namely, whether it is necessary to replace the ex.
ception by a provision that the wearing apparel shall not
be removed unless a substitute is provided. We think that
no such change is needed.

Esgtitéxdgclal 183'. The guestibn whether a provision authorising

examination med3.cal'exam1.'nat1.on of the accused at the stage of in-

of ¥:.S:1§::':.*;..V.::s~."::de'%a W:-it °2W;e% by "S ta: 'M636

accuse 1 e en 1 ca ion 0 risoners ct. 1
and the Prisoners Act, were examined, and the scope of
article 201(3) of the Constitution also discussed.

Our conclusions on the subject are as foI1ows':--

(_i) The existing law does not authorise medical or-
physical examination of the accused in aid of investi-
gation (except to the limited extent provided for in the
Identiﬁcation of Prisoners Act or other special law).

_The provision in the Prisoners Act is intended for
a different purpose, namely, check-up of a prisoner
for contagious diseases etc.

(ii) It is desirable to amend the Code of Criminal
Procedure by inserting a provision on the subjectf

(iii) The second part of section 259, Queensland
Criminal Code, which appeared to be a useful prece-
dent, should be incorporated in our Code, with suitable
adaptation,

(iv) The provision proposed to be added would not
violate article 20(3) of the Constitution.

(v) It is unnecessary to provide for matters not
provided for in the Queensland section.

Section 51

and afticles that articles of daily personal use and books etc. should be

°fd'°"1Y"5° added in the Exception to section 51. We think, however,
that it is unnecessary so to widen the section.

184. With reference to section 51, it has been suggested'

185. No change is needed in existing section 52.

Section 52A 186. As to section 52A (New), the matter has been dis-
(New) cussed already.'

Section 52

Section 53 187. No change is needed in section 53.

188. Section 54 is a very im rtant section, dealing as
it does with the law of arrest. e most important part of
the section is that which gives power of arrest in r pect
of cognizable ojfences. Whether an offence is cogniza, 1e or
not depends on the relevant entry in the Second Schedule.

Section 54

1. For detailed discussion, see Appendix 6.

2. See section 52A (as proposed).

3. 17- 27(5)/54-Judl. (Home Ministry File), Appendix II, Item (4)-
4. See discussion relating to section 51 and medical examination.

Here we shall note only the points whereon a change in the
section itself is required or has been urged in the sugges-
tions.

189. Section 54, clause Ninthly, needs to be amended by
adding the Words "whether such requisition is in writing or
not", as there is a controversy on the point.'

190. We are not inclined to accept the suggestion? to Section 54

limit the various clauses of section 54, or to provide for S"88_°SFi°n
investigation of the (grounds of) arrest by a judicial oﬂicer.

191. With reference to section 54, the suggestion of a Section 54

State Government" to give to the arrested person full parti- and "°"'"'"'

nication of

culars of the offence for which the arrest is made)" has grounds

appealed to us. But we do not think that a writing is neces-
sary. A suitable provision on the subject is recommended.'

There is a somewhat similar provision in section 80,
which is conﬁned to arrest under warrant."

192. The law of arrest without warrant was considered
at length in England in a judgment of the House of Lords.
The propositions relevant for the present purpose may be
quoted from that judgment :--"

"(1) If a policeman arrests without warrant on
reasonable suspicion of felony, or of other crime of a
sort which does not require a warrant, he must in ordi-
nary circumstances inform the person arrested of the
true ground of arrest. He is not entitled to keep the rea-
sons to himself or to give a reason which is not the
true reason. In other words, a citizen is entitled to know
on what charge or on suspicion of what crime he is
seized." (2) If the citizen is not so informed, but is never-
theless seized, the constable, apart from certain excep-
tions, is liable for false imprisonment."

193. With reference to section 54, a question regarding Section 54
a police oﬁ'icer's power to eﬁect an arrest beyond his and arrest
jurisdiction, has been raised by the Inspector General of }'lfr"i'S'('1'i'('_xi°n
Police, Orissa in his suggestion on the Code."

1. S2e(i) State v. Ramchandra, A.I.R. 1955 All. 438, 440.
(ii) Roshan Lal, A.I.R. 1950 M.B. 83.

. F. 27(5) 54-]udl. (Home Ministry File), Appendix II, Item 5.
. F. 3(2)/55-L.C. Part II, s. No. 33.

. Cf. article 22(1), of the Constitution.

. See also Madhu Limaye v. State, A.I.R. 1959 Punj- 506.

. As to English Law, see (i) Archbold, Criminal Pleading etc. (1966) paragraph 2809.
(ii) Cwristie v. Lycainsky, (1947)-

7. A.C. 573; (1947) 1 Al1E.R. 567 (I-I.I..).

8. As to section 46, see Q.E. v. Basa-nta Lal, 4 CW. N. 311 and comment thereon in
8 C.W.N. (Journal) 298-

9 and 10. Christie v. Leachinsky, (1947) AC. 573, 586,587; (1947)1 A11- E-R- 567'
572, 573 (H.L.).

11- F. 27(3)/55-Iudl. II (Home Ministry File), Appendix I, Item 9.

O\Ul-I-'ALNIQ

Section 54
and recom-
ing reasons
for arrest

Section 55

Section 55
(1) (5)

The assumption that a police oﬂicer can, under the
present law, effect an arrest beyond his jurisdiction in ano-
ther State, (which is made in the suggestion), may not be
correct. A police of_'licer's powers are ordinarily limited to
the general police district, under the Police Act.' Apart from
special provisions (such as section 58 of the Code of Crimi-
nal Procedure), he cannot exercise powers beyond the gene-
ral police district. This is the position, and no amendment
thereof is necessary. We do not think that it is neces-
sary (as has been suggested by the Inspector General of
Police, Orissa) to insert a provision as follows:

_"A Police Officer authorised to arrest under this
section may effect the arrest at places beyond the juris-
diction of the Police Station to which he is attached, but
shiiuld generally do so with the knowledge of the local
po ice."

194. It has been suggested," that the reasons for arrest
by a police officer, should be recorded. This would not be
practicable, in our opinion, and the suggestion cannot,
therefore, be accepted.

195. Under section 55, the following points have been
considered :-

(i) It is unnecessary to replace the words "in the
like manner" by the words "without an order from a
Magistrate and without a warrant". That, no doubt, is
the meaning," but it is unnecessary to disturb the
language.

(ii) In clause (c), it is unnecessary to add the words
"within the limits of such station" which appear in sec-
tion 55(a) and in section 55(b). The omission of these
words in clause (c) may not necessarily be inadvertent.

(iii) For the words "fear for injury", the words "fear
of injury" may be substituted.

In section 55, certain other changes are desirable. in
view of the changes proposed in section 109(a).'

196. It has been suggested' " that section 55(1) (b) should
be deleted. We are unable to accept the suggestion. Pro er-
ly construed, section 55(1) (b) is not meant to deal wit a
mere case of poverty. It is a power vested in high police
officers for purposes of arresting and sending up persons sus-
pected of living by unlawful means.

1. See section 22, Police Act, 1861.

2. F.3(2)/55-I..C.II,S.No.20. .

3. Nepal I.L.R. 35 All. 407.

4. See discussion relating to section 109(a).

5. F.17(5){54-]udl.(HomeMinistry Pi1e),Appendg'x. II, Item 5-

6. F. 27(5)I54-]'udl. (Home Ministry File), Appendix III, Item 6.

197. There is an apparent conﬂict of decisions on the Section 55
relationship between sections 54 and 56.

The correct position appears to be this. Where a police
olﬁcer acts on a requisition sent to him under section 56,
his powers are naturally conﬁned by section 56. But, where
the police officer IS in independent possession of information,
and purports to act under section 54, his action is legal'

_ The matter was explained at great length by the Madras
High Court also.'

The amendment which we are recommending3 only re-
states the law laid down in the judicial decisions as pro-
perly understood, and is intended to obviate unnecessary
controversy.

198. In section 57, the following points have been con- Section 57
sidered:-

(i) In sub-section (2), the words "having jurisdic-
tion" may be added after the word "Magistrate". Com-
pare the Bombay amendment.

(ii) In section 57(2) and in section 57(3), the word
"Judicial" need not be added, as in Presidency towns
the Magistrates performing judicial functions are not
proposed to be described as "Judicial" Magistrates.

199. No change is needed in existing section 58. Section 58

200. Regarding section 59, a number of points have Section 59
arisen:-

(i) The question whether it is necessary to replace
the words "in his view" by "in his sight or presence"
was considered.' Observations of Page J. in one case,'
that the section is not happily worded, have been noted;
and the other decisions relative to these words in the
section have been considered by us. We think, that no
change is necessary to disturb the language.

(ii) The question whether the words "cause him to
be arrested" should be added in section 59 has also been
considered: In View of the case-law" which shows an
obscurity on the subject, we think that it is desirable
to add these words.

- See Sulaiman v. State ofKerala, A.I.R. 1964 Kerala 185 (Reviews case law).

. Gurcharan Kaur v. Province ofMadras, A.I.R. 1942 Mad. 539, 546.

. See section 56 (as proposed)-

. Cf. Nazir v. Rex. A.I.R. 1951 All. 3 (F.B.).

. Gouri Prasad v. Chartered Bank, I.L.R. 52 Ca]. 615 ; A.I-R. 1925 Cal. 884, 885 (Page J.)
. See---

(i) Nazir v. Rex, A.I.R. 1951 All. 3, 7 para. 15(F.B.).

(ii) Fakiro v. Emp., AIR. 1947 Sind 107, 109, para 7.

(iii) Graham v. Henry Gidney, AIR. 1933 Cal. 708, 714 (Ameer Ali].).

o\\.n-h.k»N----

Section 59A

(New) 201. A new section is proposed regarding giving to the

arrested person full particulars of the offence.'

s ' 59B 202. Th f 11 ' ' 2 '
(§'<:et;;n Court. e 0 owing suggestion has been made by a High

"Arrests of.respectable Agriculturists and men in
other walks of life are made in connection with prohibi-
tion offences etc. It has been found that the people have
been practically condemned to remain in police custody
W1thOU.t' getting themselves released on bail promptly.
Also, this is done very often to degrade these persons
in the eyes of the public and for other unlawful reasons
which need no speciﬁcation but can readily be guessed.
The abuse can be prevented only if it is made obliga-
tory on the part hf the police officer to give reasonable
time for arrangements to be made for bail before the
arrested person is removed etc. Much of the discoun-
tentment against the lower ranks of police will be re
moved if this provision is enacted." Accordingly, the
High Court has suggested the insertion of the following
sections:-

"54A(1): Where a police officer effects an arrest
without a warrant of any person accused of a bailable
ojfence, it shall be obligatory on the part of the Officer
to inform the person arrested that the offence with which
he or she is charged is bailable and that the accused may
arrange for sureties to oﬁer bail on his or her behalf.

(2) The police-ofﬁcer shall wait for a reasonable
time for such arrangement to be made, before removing
the concerned person to the station."

The State Government concerned found the reasons con-
vincing, and supported the amendment.

We discussed the suggestion at length. In our view, only
the ﬁrst part <)f the suggestion may be accepted. A provi-
sion requiring the police to wait may create complications.
We also think. that the proposed provision should be placed
after section 59.

Necessary amendment is recommended."

section 60 203. As to section 60. the "Magistrate" referred to in
the section will be-

(a) the Judicial Magistrate, in the case of arrest for
an offence;

(b) Executive Magistrate, in other cases. It is not,
therefore, necessary to qualify the expression "Magis-
trate".

1. See discussion under section 54. supra.
2- F. No. 3(Z)I55-L.C. Pt. III, S. No. 252.
3. See section 59B (Proposed).

204. In section 61, the following points have been con- 5°¢ti°n 51
sidered'-

(i) The opening part of the section should be
changed so as to begin--"No person who has been arrest-
ed without warrant shall be detained." This change
appears to be desirable, in order to bring the section
into conformity with article 22(1) of the Constitution.

(ii) It is unnecessary to add the word "Judicial" be-
fore the word "Magistrate" in the middle part of sec-
tion 61. Whoever is the Magistrate competent under
section 167 will be the "Magistrate" referred to in this
section.

205. Section 62 requires the police to send certain re-3*'ilC*ii>1"52
ports. The section need not be extended to Presidency towns. :']'na';'ge:'
In these places, the matter would be taken care of by the necessary
local Act relating to police.' got pref-

ency owns

206. In other places (i.e. outside Presidency towns), the Section 62
reports under section 62 should be sent to the District Magis- C°m.P°'°n'
trate etc. The object of the report is to keep the District (';':"t§;ff;"'°
Magistrate etc. informed of the situation regarding gravepresidency
offences. It is, therefore, unnecessary to substitute "Chief towns
Judicial Magistrate". (We ﬁnd, that no such changes have

been made in Bombay and Punjab).

A suggestion to keep the power under section 62 with
J udical Magistratesf has been considered by us, but we are
unable to accept it.

207. In section 63, after the word "Magistrate", the words Section 53
"having jurisdiction" should be added, as in the Bombay
and Punjab amendments.

208. No changes are needed in sections 64 to 67. Section 64
to 67
209. Regarding section 65, certain changes have been Section 65

suggested by two Judges of a High Court?-3 which, in effect, and issue of
would empower a Magistrate to issue a warrant without"'°"'""
taking cognizance of the offence. This, we are afraid, would

conﬂict with section 204(1). Taking cognizance of an offence

must precede the issue of a warrant. There may be provi-

sions to the contrary which usually appear in special laws.'

But, in the absence of such special provisions, the scheme

of the Code seems to contemplate cognizance as a step prior

to the issue of a warrant by a Magistrate.

We are aware, that there is a decision to the contrary,'
but we regret that we are, with great respect, unable to

1. Cf. section 96, Bombay Police Act, 1951.

2. F. 3(2)/55-L.C. Part I, S. No. 49.

. F. 3(2)/55-L.C. Part II, S. No. 33(1)).

. Cf. R. R. Chari v. State of U. P. (1951) S.C.R. 312, A.I.R. 1951 S. C. 207.
. L. Ram Narain Singh v. A. Sen A.I.R. 1958 All. 758, 760.

kn-I?-kn

'Sections 66-
67

Section 68
and service
by post and
service by
party

Section 62
and Corpo-
ration

agree with the view that a Magistrate can issue a warrant
(for the arrest of the person who could be arrested with-

out warrant under sections 54 and 55) without taking cog-
mzance.

210. Sections 66-67 need no change.

211. The suggestion of a State Government (which has
endorsed the suggestion of the High Court for State) is to
permit service by a party, with leave of the Court.' Accord-
ing to the suggestion, a prov-iso should be inserted in sec-
tion 68(2) as follows :-

"Provided that a summons under this section may,
by leave of the Court, be served by the party or his
agent applying for the same on the witness by personal
service. If such service is not effected and the Court is
satisﬁed that reasonable diligence has been used by the
party or his agent to effect such service, then the sum-
mons shall be served in the usual manner."

We regret, that we are not able to accept the sug-
gestion, as We are not certain if a provision suggested,
may not be abused.

212. Another State Government" has suggested that a
provision authorising the service of summons by -registered
post be inserted. The suggestion is as follows :--

"In addition to the existing provision in section 68,
Cr. P. C. a sub-clause be added providing that the sum-
mons may, in addition, be also sent though registered
post and acknowledgement of the same deemed as suffi-
cient service."

213. There is also a suggestion by the Delhi Administra-
tion3 for authorising service of summons by post, in order
to curtail unnecessary delay.

As the law stands now, service by post is not valid.' We
considered these suggestions at length.

214. We are recommending a suitable provision, for
witnesses only.'' We do not think that postal service should
be adopted, as a general rule, for summoning the accused.

215. A State Government' has raised the question about
the procedure to be followed where, after service on a
Corporation, its representative does not appear. The matter
seems to pertain to the Chapter on General provisions in
Inquiries and Trials.'

-qoxuv-D-u:N'-'

. F. 3(2)/55-L.C. Pan 1, s. No. 80.

. F. 3(2)/55-LC. Part 11, s. No. 33.

. F. 3(2)/55.L.c. Part VII, s. No. 386.

. Cf. A.I.R. 1950 E.P. 20.

. See section 74A (proposed)-

. F. 27(3)/55-Judl. II (Home Ministry File) Appendix I, Item No. 14-
. To be considered after section 340-

216. In section 68, regarding Benches, a provision may Section 53

be added on the lines of section 75. and Bemhes
217. No change is needed in section 69. s°°"°" 59
218. In section 70----- Section 70

(a) provisions regarding service on the servant in
Presidency towns should be omitted. There is no such
provision in the Code of Civil Procedure,' and, in our
opinion, having regard to changed social conditions, this
provision should not continue.

(b) Consequently, it will be desirable to add a pro-
vision that a servant is not "a member of the family"
within the meaning of this section.'

219. Section 71 may be amended on the lines ofkthe cor- Section 71
responding provision in the Code of Civil Procedure.'

220. No change is required in section 72. Section 72

221. With reference to section 73, the suggestion of a Section 73
State Government' to require the complainant to deposit
reasonable expenses of the accused residing in another dis-
trict, has not found favour with us.

222. No change is required in section 74. S°°"°" 74

223. A new section---section 74--is proposed, for the 74A
W

' 5
service of summons by post. service of

summons by
post

224. No change is needed in sections 75 to 77. Sec7c§ons 75
to

225. In section 77(1), the following amendments are Section 78
necessary :--

(i) Instead of "Magistrate of the ﬁrst class", we
have to substitute "Judicial Magistrate of the ﬁrst class".
(Compare the Punjab amendment).

(ii) "Chief Judicial Magistrate" may be added,
Compare the Punjab Amendment.

(iii) Instead of the words "district or sub-division",
the words "area of jurisdiction" may be substituted, in
view of the above changes.

226. No change is needed in existing sections 79 and 80. Sefitigsrs 79
an

. Cf. Order 5, Rule 15, Code ofCivil procedure, 1908.

. Cf. Order 5, Rule 15, Explanation, Code of Civil Procedure, 1908.
. Cf. Order 5, Rule 19, Code of Civil Procedure, 1908.

. F. No. 3(2)/55-L.C. Part II, S. No. 33.

. See discussion under section 68, supra.

LlI--§.UJl\J'*

Section 81

Sections 82
to 86

Section 87

(2)

Section 88
(2)

Section 88

(5)

Section 88
(63)

' 227. With reference to section 81, the provisions of
article 22 of the Constitution have been considered. As sec-
tion 81 1S conﬁned to arrest under warrant, it is unnecessary
to disturb the language of the section.

228. No change is needed in sections 82 to 86.

229. With reference to section 87, the question whether
section 87 applies to attachment for contempt has been
examined. The Supreme Court judgment' holding that sec-
tion 87 does not apply to such attachment has been consi-
dered by us. It was felt, that as the matter relates to the
law of contempt of court, it could be dealt with better in
the rules to be made by the High Courts.

It is unnecessary to add that reasons should be re-
corded before action is taken under section 87. A manda-
tory provision, however, to that effect may render a procla-
mation issued without recording the reason void.' This
would be particularly so, as courts construe sections 87-88

strictly.'

230. With reference to section 871(2), the following sug-
gestion' has been made by the Chief Presidency Magistrate,

Madras.

"Section 87(2) prescribes the procedure for the
publication of the proclamation to serve on an accused
person. The suitability of making a provision for the
publication in a daily (that a particular person is
wanted in a particular case in a particular court)
either as an additional or an alternative mode of secur-
ing the accused, could be usefully considered."

We think that publication in the daily newspapers, in
addition to existing modes under section 87(2), as an
optional mode where the court thinks ﬁt, should be added.

(Question of expense of publication can be dealt with
by a suitable provision in the rules).

231. In section 88(2), after the words "District Magis-
trate", the words "Chief Judicial Magistrate" should be
added. Compare the Punjab Amendment.

232. In section 88(6), reference to the 1908 Code of
Civil Procedure may be substituted.

233. In section 88(6B), after the words "District Magis-
trate" the words "Chief

, Judicial Magistrate" should be
added. C)'. the Punjab Amendment.

1. Mrs. Peterson v. Forbes, (1963) Suppl. 1 S.C.R. 40; A.I.R. 1', 63 S.C. 692.
2. Cf. the case-law as to section 90.

3. Cf. Pal Singh V. State, A.I.R. 1955 Puni- 13-

4. F. 3(7.)I55-LC. Part III, S. No. 52.

234. In section 88(6C), proviso, after the words "Dis- Section 83
trict Magistrate", the words "Chief Judicial Magistrate", (50)
should be added, though the Punjab amendment does not
make this change. It is unnecessary to provide--as has
been done in the Punjab amendment to section 88(6C),------
that a claim or objection made before a District Magistrate
or other Executive Magistrate should be referred to the
Chief Judicial Magistrate :(who may then refer it to a
Judicial Magistrate subordinate to him). There is no harm
if claims or objections made before an Executive Magistrate
'in respect of property attached under his orders) are
fnvestigated by him, as the rights of aggrieved parties are
suﬁiciently protected by the right of suit which is pre-
served by the section.'

235. A suggestion2 to exempt subsistence allowance from Section 81
attachment under section 88 has not been found acceptable
by us.

236, Under section 89, the following suggestion" has Section 89
been made by a High Court Judge:

"It should be provided that if the absconding person
does not appear within 2 years or so, the attached pro-

perty may be sold and the proceeds credited to the
State Government."

In our view, existing section 88(7) gives this power
by implication.

We are not, therefore, recommending any amendment
in this respect.

237. As to section 90, there is a conﬂict of decisions on Section 90
the question whether the provision for recording of reasons
is directory or mandatoryf". It would not, however be
convenient to resolve the conﬂict by an amendment of sec-
tion 90, as the matter really relates to application of the
provisions saving irregularities, We may, however, state
here, that the object of this requirement is to draw atten-
tion to the consideration that a warrant ought not to be
issued where a summons can serve the purpose, and that
care should be exercised by the court to satisfy itself that

upon the materials before it, it was necessary to issue a
warrant.'

p--A

. See Section 88(6D).

. F. 3(2)/55-L.C. Part II, S. No. 48.

. F. No. 3(2)/55-L.C. Part III, S. No. 49(a).
. I.L.R. 38 Madtas1088.

. Sahebulla, I.I..R. 51 Cal. 1 (F.B.).

. Indra, A.I.R. 1955 Punjab 81.

. Cf. SahebuIla,I.L.R. 51 Cal. 1 (F.B.).

_qo\UI-Ab)!'-|

Section 91

Section 94
and the

accused

Section 94
(1) and right
of the
defence to
summon
documents

1. F. 3(2)/55-L.C. Pm vii, s. No. 449, Suggestion of

Investigation

238. With reference to section 91, it has been suggested'
that the section may be amended so as to give power to
a court to require execution of a bond in such terms as
could make it obligatory for the person to either appear
in the court which took the bond or in any other court to
which the case 'may be transferred. We have studied the
law _on the subject. The point is also of interest' in con-
nection with section 514(1), and Fifth Schedule, Form No.
42 (Generally as to section 91, the under-mentioned case'
may be seen)?

We see no objection to the su gested amendment being
made, and we recommend accor ingly.

239. It has been held by the Supreme Court,' that sec-
tion 94 does not apply to the accused. Where it is intended
to require an accused person to produce a document etc.,
a summons cannot, therefore, be issued under section 94;
nor can a warrant for search be issued under the ﬁrst two
paragraphs of section 96. But section 96, last paragraph,
can be used. We considered the question whether any
change in the language of section 94 is needed to codify the
proposition that it does not apply to the accused. We came
to the conclusion that it was not necessary.'

240. With reference to section 94(1), a suggestion has
been made by the Markapur Bar Association, Andhra
Pradesh.'' to amend the section so as to provide for sum-
moning documents in the possession of the prosecution at
the instance of the accused even before he has entered into
defence (being documents useful for cross-examination).
The suggestion refers to a decision in Yusuf Sahib v. Havo-
givenderf holding that this right is restricted to a stage
after the accused has entered on defence. The suggestion
says, "If this view is correct, proceedings are unnecessarily
prolonged even in cases where there could have been a
discharge." Hence, before the words "such Court may issue
a summons", the words "at any stage of the proceedings"
should be inserted.

241. We have examined the entire case-law in this
respect.

the U.P. Committee for
of Causes of Corruption in Subordinate Courts in Uttat Pradesh (1963),

Report, pages 40-41, Bill at P385 225-
2. To be noted under section 514(1)-
3, Vasu Dec,
4. State ofQujarat v. Shyam Lal, A.I.R. 1965 S.C. 1257, 1259, paragraphs 29 to 32.

5. For a

detailed discussion, see Appendix 7.

6. F. 3(2)/5s.L.c. Pt. iii, s. No. 50(0).
7. Yusuf Sahib v. Hayogi Vendor, (1955), 1 Andhra Pradesh W.R- 409 (Subha Rao

C.]. ).

As has been pointed out, "the words of section 94 are
Very large, and, it seems, advisedly so."'

The section is wide enough to empower the court to
exercise this power at the instance of the accused even
before he enters on his defence?-3-' This is clear from the
word "whenever" used in the section.

No change is now necessary.

242. The position regarding applicability of the Ban- 53°°'i°" 94
kers' Books etc. Act' to a summons issued under section 94

of the Code was examined by us in some detail. Our views Books.
are as follows :--

(a) as regards inquiries or trials, there is uncer-
tainty as to whether the Bankers' Books Evidence Act
overrides the general provisions of section 94. This
uncertainty should be removed.

(b) as regards investigations, the Bankers' Books
etc. Act does not, at present, apply at all. There is no
reason why it should not extend to investigations.

243. We, therefore, recommend that-

(i) Section 94(3) be amended so as to provide that
nothing in the section shall affect the Bankers' Books
etc. Act.

(ii) In the Bankers' Books etc. Act, a new sec-

tion--section 6A should be inserted to extend that Act
to investigations.'

244. With reference to section 96, it has been suggested' Section 95.

that powers be given to the Superintendent or Commissioner
of Police to require delivery of postal articles, and that
power be given to the Deputy Superintendent of Police to
order detention, of such articles. We are not able to accept
the suggestion. The District Magistrate,.being the head of
the administration, should have this power, but it is not
desirable to give the power to police officers.

245. In section 95, it will be necessary to add "the Chief
Judicial Magistrate."

246. Under section 96, the question of its applicability Section 95-
to the accused has been already discussed."

. Nizam ofl-Iyderabad v.A. M. Jacob, (l892),I.L.R. 19 Cal. 52, 64 (Ameer Ali 1.).
. In re Dr. Raghotham, A.I.R. 1963 A.P. 362, 363, para. 4 (D.B.).

Han' Charan v. St:1te,A.I.R. 1955 Pun. I7, 18, para. 4.

. Armugam v. State, A.I.R. 1961.

. The Bankers' Books Evidence Act, 1891 (18 of 1891).

. To be carried out under the Bankers' Books etc. Evidence Act, 1891.'

. F. 27(3)/55-]udl.II (Home Ministry File), Appendix I, Item No. 15.

8. See discussion under section 94, supra.

6-29 Law/68

In section 96(2), it is necessary to add the Chief Judi-
cial Magistrate.

516*"-tio'Ii19<'> The following suggestion' has been made by the
gt%C";'rs to Administration of a Union Territory.

?7:';'r';'nst°°'°h' "Section 96(1) may be amended to specify the
should be status or the rank of the ofﬁcers to whom search-warrant
directed. is to be directed, and that officer should not be below

the rank of Inspector of police."
We have considered the suggestion.

From the Fifth Schedule, Form No. 8 (Form prescribed
for seach-warrant under section 96), it would appear, that
the warrant under section 96 can be given to any "police
officer or other person or persons." Section 98(1), and Fifth
Schedule, Form No. 9 may be contrasted, under which the
search warrant can be issued only to a police officer above
the rank of constable.

We, however, think that no such rigid provision is
called for, in relation to warrants under section 96.

Section 97- 248. No change is needed in section 97,
section 93, 249. In section 98, the following points have been
considered:

(i) After "District Magistrate", "Chief Judicial
Magistrate" be added.

(ii) Amendment of section 523 is necessary," to
provide for the action to be taken on articles seized
under section 98.

(iii) The question whether, in section 98(1) (d)
and (e), it is necessary to add, after the word "Magis-
trate", the Words "issuing the warrant", was considered,
with reference to the form in the Fifth Schedule (Form
of "Warrant of search of suspected place of deposit").
That is the intention of the section. But there may be
cases where it may be necessary to take the property
to a Magistrate other than the Magistrate issuing the
warrant, where the circumstances so require. In such
cases, it would be possible to adapt the warrant. The
section need not be made rigid in this respect.

Section 93' 250. In section 98(2) (a), reference to the new Customs
(2). Act, 1962, may be substituted.

Section 98 251. The power under section 98 should be given to
(2) and both Judicial and Executive Magistrates, because section 98
Judicial does not necessarily contemplate a pending judicial pro-

Magistrate. ceeding} 4'

1. F. No. 3(2)/55vL.C. Part III, S. No. 21.

2. To be considered under section 523.

3. See s. K". Sriiiastava v. Ciajanand, A.I.R. 1956 Cal. 609, 612.

1. See also Mohammad Serajuddin, A.I.R. 1962 SC. 759, 762, para. 12.

67
252. No change is needed in existing section 99. section 99-

253. Certain points relating to section 99A have been Section 99A-
considered. The conclusions arrived at by us are as
follows :--

(i) It is unnecessary to require that an order of
forfeiture should be issued only on the certiﬁcate of
the Advocate General, or other principal law oﬂicer.'
The existing safeguai-d--review by the High Court--is
enough.

(ii) Section 99A refers to certain sections of the
Indian Penal Code. In this respect, the constitutional
validity of section 99A will depend on the validity of
those sections.

254. We recommend that section 292, Indian Penal Code Section 99A
(obscene matter) should be added in section 99A. This re- and °b5°°"°
commendation is independent of the suggestion" made by matter'
the Ministry of Home Affairs, asking us to consider the
question of making certain amendments to section 292,

Indian Penal Code, and other connected amendments in the
Code of Criminal Procedure.

In the course of our discussions on the subject, it was
urged that section 292, Indian Penal Code l(obscene matter)
does not stand on the same footing as seditious or other
matters mentioned in section 99A. Seditious or other mat-
ters (it was stated) might require urgent action from the
point of view of maintenance of law and order, while
obscene matter would not ordinarily affect law and order.
Further, it was stated, it is not fair to throw on the author
the burden to move the High Court, as would be the posi-
tion if section 99A is applied to obscene matter.

The view taken by us, however, is that, in order to
check the growing evil of obscenity, it is necessary to amend
section 99A, to add obscene matter.

But, it is not, in our view, necessary to mention speci-
ﬁcally indecent or obscene matter contained in reports of

judicial proceedings (as has been done in the Bombay
Amendment).

255. It is not necessary to omit the descriptive portion in -
section 99A, even though it amounts to a repetition of the

description of the offending matter as given in section 124A portion.
etc. of -the Indian Penal Code,

'256. No change is required in section 99B. section 9913.
1. Contrast The Young persons (Harmful Publications) Act, 1956. l l
2. F. 3(9)/S6-L.C. Pt. I, S. No. 31 (suggestion ofthe Ministry of Home

Aﬂairs).
3. F. 3(2)I55-LC. Part IV, S. No. 97. « ' I

Sections. 99C
to 99F.

Section 99G;

Section 100;

Section 100.
Notice and
procedure
for inquiry.

257. Section 99C requires decision by a Bench of three
Judges of the High Court. In relation to Courts of Judicial
Commissioners composed of less than three members, this
requirement cannot be fulﬁlled. But, as difficulty has not
arisen in practice, and, as the problem may not occur often
in practice, no change is required for the present.

It has been suggested by two High Court Judges,' that
the hearing under section 99C should be allowed by two
Judges. We regret that we are unable to accept the sug-
gestion, as the proceedings under section 99-C are important
enough to justify the present provision, which requires that
the application should be heard by a Bench of three Judges.

258. No change is needed in sections 99-D to 99-F.

259. Under section 99-G, we have considered the ques-
tion whether an amendment is needed with reference to
the words "otherwise than in accordance with section 99-B".
These words may or may not have the effect of barring an
application under article 226.015 the Constitution, in a ﬁt
case. It is, however, unnecessary to disturb the language
to provide for that.

260. In section 100, the following points have been con-
sidered :--

(i) No changes have been made by the Punjab or
Bombay Amendments to conﬁne the power under sec-
tion 100 either to Judicial or to Executive Magistrates.
Having regard to the fact that concurrent jurisdiction
may be convenient for emergent action, no change is
required in this respect.

1(ii) It is unnecessary to replace, in section 100, the
word "conﬁned" by the words "believed to be so con-
ﬁned", though that is the meaning."

261. An important point which was brought to our
notice in the course of our discussions in connection with
section 100 was, that the section does not provide f r the
issue of a notice to the opposite party, and injustice, (it was
stated, resulted from this position. The facts in a Calcutta
case illustrate the possible hardship?

In that case, an application under section 491 of the
Code was made by one J ogendra Nath Shaw Chowdhury on
the allegation that he had been duly married to the infant
girl, but that the girl's father had lodged a false complaint
before the Presidency Magistrate of the Northern Division
that the girl was being wrongfully detained by the Appli-

1. F- No. 3(2)/55-LC. Part II, S. No. 33('b).

2. Kallan Beg v. Emp., A.I.R. 1936 All. 306, 308.

3. In the matter of section 491, Criminal Procedure Code and in the matter of Shoibalini
Dassee, (1898), 2 C.W.N. 333 (Notes of cases) Getlcins 1.).

cant and obtained a search-warrant from the said Magis-
trate under section 100 and that, subsequently, the said
Magistrate had made over possession of the girl to her said
father. He also alleged, that the father's application to the
Magistrate was without notice to him, and that he got no
opportunity of showing cause against the orders made as
above stated. The search-warrant had been issued on the
30th August, 1898, the order for possession also having been
made on the same day.

262. The observations which Jerkins J. made while
granting a rule on behalf of the alleged husband are
interesting.

"JERKINS J .: How is it that the Magistrate came
to make that order without notice to the Applicant?
He undoubtedly had a right to appear and show cause
and in fact it seems strange that an order of this kind
under section 100, Cr. P. C., should have been made
without notice, or even a search-warrant issued without
such notice."

(Ultimately, the rule was discharged, as the High Court
was not satisﬁed on the affidavits that there had been a
marriage. This was, however, without prejudice to any suit
which the applicant might bring).

263. Our attention was also drawn to other cases which
show how Magistrates sometimes' misuse sections 100 and
552, or which stress the need for a proper inquiry."

We are not, however, inclined to recommend an amend-
ment of the section.

264. It has also been suggested} that an elaborate proce-
dure for the inquiry under section 100, be provided for.

Some of the points made in the suggestion are :--

(a) to require that a statement on oath of the
informant, and of at least one witness, should be put
in before issuing a search-Warrant;

,(b) to provide for temporary custody pending
hearing;

We are not, however, inclined to recommend any such
elaborate procedure.

1. Lalmani Devi v. State, A.I.R. 1958 Pat. 689, 691, para. 5.
Z. Lilabai, A. I. R. 1958 MB. Z4, 25, para. 8-

3. See, however, Chepa Mohton, A.I.R. 1928 Pat. 550 (Warrant could be issued on a
mere petition).

4- F- No. 3(2)/55--L.C. Part I, S. No. 70.

Sections 101
and 102.

Section 103 _'.

Section 103.
Various
other
suggestions.

102 265. No change is needed in existing sections 101 and

266. The recommendation in the 14th Report1
to delete the words "(inhabitants) of the locality" in sec-
tion 103 was considered. We think that it is not safe to
make such a change. Practical difﬁculties notwithstanding
the principle on which this requirement rests is a salutary
one. Its deletion will mean that in practically every case
witnesses from any locality will be brought to be present
as a search.

267. Various other suggestionsz relating to section 103
were considered by us.

Thus, a Deputy Inspector General of Police" has stated,
that respectable inhabitants do not like to associate them-
selves with searches against their neighbours. This require-
ment of the law should (according to his suggestion), there-
fore, be dispensed with, when a raiding party is headed by
a Police Officer of the rank of Inspector of Police or above.
We are not in a position to accept the suggestion.

The condition of "respectability" ought not to be dis-
pensed with, even where the search is carried out by any
Inspector or higher oﬂicer etc. Section 103 is intended to
safeguard the rights of a house-holder, and also to ensure
that the search conducted by the police should be honest
and genuine.' Its object is to ensure that it may not be
possible to bolster up a false case5-".

268. The legislature has made this provision to ensure
fair dealing and a feeling of conﬁdence and security amongst
the people, and in order to give effect to this object, it is
necessary that the witnesses to search should be absolutely
unprejudiced and uninterested in the result'. "It is only
when Panch witnesses are independent that the liberty of
the subject can be safeguarded, as far as searches are
concerned."

269. It has been suggested by a State Government,9 that
in section 103(1) after the words "in which the place to
be searched is situated" the words "or if no inhabitant of

. 14th

O\Ln-KUJNH

. Emp.
7

Report, Vol. 2, pages 755-756.

. F. No. 3(2)/55-L.C. Part II, S. No. 33 and 34(d).

. F. No. 3(2)/55-L.C. Part 11, s. No. 34(d).

. Nirmal Singh V. Emp., A.I.R. 1919 A11. 41, 42.

. Lachmi Narain v. Emp., A.I.R. 1919 Pat. 452, 453.

v. BalaiGl1osh,A.l.R. 1930 Cal. 141, 143.

. In re Rajabather, A.I.R. 1959 Mad. 450, 452, 6, 7, where Ramaswami]. has summarised

the law and reviewed the case-law.

8. S. K.

Fernandez v. The State, A.I.R. 1951 Born. 468, 469, para. 3 (Chagla C. J. and

Gajendragadkar J.).
9. F. 3(2)/55-L.C. Part II, S. No. 33.

the locality can be procured, any other two or more wit-
nesses" should be added.'

. We cannot accept the suggestion. The proposed relaxa-
tion, if enacted, is likely to be resorted to in all cases, thus
robbing the section of its utility.

270. A High Court Judge has suggested? the insertion,
of a provision that a ﬁnding or sentence shall not be altered
on account of non--compliance with section 103. We regret
that we are unable to accept this suggestion. It is the law
(speaking broadly),3 that such non-compliance by itself
does not justify the reversal of a conviction or sentence-
But a pointed provision to that effect would be unwise.

271. In this connection, we would like to state below,
in brief, some of the main points that emerge from the
case-law.

(a) Where the witnesses are not respectable inhabi-
tants of the locality, that circumstance would not
invalidate the trial, but would only affect the weight of
the evidence in support of the search and recovery ;'-5

(b) At the same time, the necessity of due compli-
ance with the provisions regarding searches should be
emphasized. See the object of the section as explained
in the under-mentioned case" holding that the object
is to ensure fair dealing and a feeling of confidence
and security amongst the public, in regard to a some-
what necessary invasion of a private right.

The provisions of the section designed are for
greater certainty and security," and its object is pre-
sumably to obtain as reliable evidence as possible of

the search and to exclude the possibility of any mal- »

practice of any kind.

.(c) There may be cases where the accused would
be prejudiced by non-compliance. In one case,9 the
High Court had to make these observations-

"It appears to me that it is high time that steps
should be taken to stop this wanton disregard of
statutory provisions by the police of these
provinces".'°

. Compare 14th Report, Vol. 2, pages 755-756, para- 48-
. F. 3(2)/55-L.C. Part 11, s. No. 33(a).

. See paragraph 240, infra.

. Sunder Singh v. The State, A.I.R. 1956 SC. 411, 415.

. In re Qovindan, A.I.R. 1959 Mad. 544, 547-
. Emp. v. Ma Thein, A.I.R. 1936 Rang. 15, 17.
. Emp. v. Bylai Cjhose, A.I.R. 1930 Cal. 141, 143.

5. Radhakishen v. State of U.P. (1963) Supp. 1 S.C.R. 408; A.I.R. 1963 SC. 822-
6

. Bishnath Rai v. Rex, A-LR. 1950 All. 147, 148, para. 3 (S. No. Seth}.)-
10. See also Dr. Jai Nand v. Rex, A.I.R. 1949 A11. 291, 299.

Section 103
and search
of the
person.

Section 103
and list of
respectable
persons.

Section 103
and suggs-
tion of U.P.

Committee.

Section 103
(3).

Section 104.

Section 105.

. (_d) It is not, therefore, advisable to put a provi-
sion in. a pointed form, saving such irregularities, Since
the trial is not vitiated even now,' no provision is
needed.

272. A suggestion3 to extend section 103 to search of
the person was considered by us. But we could not accept
it. Search of the person had usually to be made imme-

diately on arrest, and ordinarily there would be no time to
call witnesses.

273. The following suggestioni

has been made by a Bar
Council.

"The Bar Council .......... ..feels that for every vil-
lage a list of respectable persons, known as Justices of
the Peace or some other suitable and digniﬁed name,
may be prepared, Such an honorary office may attract
respectable men. The power to search may be vested
in the Justice of the Peace and the right of drafting
the panchnama should be invested in him."

The comment of the State Government concerned on
this suggestion is, that creating a sort of "cadre of search
witnesses" etc. will create more problems than it will solve.
The State Government was not in favour of this proposal,
as it would lead to abuses and bring the entire system into
disrepute.

We agree with the State Government's comment.
change is required.

274. We may note the suggestion' that search witnesses
should be respectable persons but not necessarily the
inhabitants of the locality in which the place to be searched
is situated.

We have already stated,' that we are not in favour of
any amendment of section 103 to that effect.

275. A suggestion' to allow the search list under sec-
tion 103(3) to be given afterwards, was considered, but
rejected by us, The present provision is intended to safe-
guard the right of the occupant, and' is a salutary one.

276. No change is required in section 104.

277. No change is required in section 105.

1. Kochan Vilay, I.L.R. 1960 Ker. 916, A.I.R. 1961 Ker. 8 (F,B.)
2. F. 3(2)/55-LC. Part I, S. No. 28.
3. F. No. 3(2)/55-I..C.Pt.III, S.No. 52.

4. F. 3(2)/55»I..C. Part VII, S. No. 449, Suggestion of the U.P. Committee for Investi-
gation of causes of Corruption in Subordinate Courts in Uttar Pradesh (1963), Report
page 41, Bill, page 225 middle.

5. See discussion regarding section 103.

6. F. 3(2)l55-L.C.Part I, S. No. 17.

73
278. No change is required in section 105-A. ?°"°" 105

279. In section 106, the following points have been con- S°°"°" 1°6-
sidered in relation to separation.

(a) Mention of the following Magistrates may be
added----Chief Judicial Magistrates.

;(b) Before the word "Magistrate", the word "Judi-
cial" need not be added, as in Presidency towns, the
preﬁx "Judicial" is not used.

280. Case-lawl as to the applicability of section 106 to Section 105
cases of conviction under section 149, Indian Penal Code :'f'f'§r:£'e:
has been considered by us, and the history of the 1923 cove,ed_
Amendment (as a consequence of which a controversy has
arisen) also gone into. An amendment is proposed to settle

the law on this p-oint.

As section 106 stands at present, security cannot be
required on conviction for abetment of criminal intimida-
tion. An amendment is proposed to set this right.

281. The words "or other offence involving a breach of SW-iﬁn 105
the same" in section 106 have given rise to conﬂicting iﬁﬁése
interpretations? The views expressed in the decisions on uoﬁence

the subjectcan be broadly grouped as follows :--3 tnvolﬁing
reac
f the

(a) The word "involve" connotes the inclusion, not °eace,,

only of a necessary, but also of a probable feature, cir-
cumstance, antecedent condition or consequence.' If the
offence is such an offence that it is, as a matter of
experience, often followed by breaches of the peace,
and if the evidence shows that the accused would have
accomplished their object by breach of the peace, it is
enough, Thus, an offence such as the removal of a
landmark under section 434, Indian Penal Code is often
followed by serious riots. and, therefore, where the evid-
ence shows that the accused were prepared to commit
the act of removal by breach of peace (and was pre-
vented from doing so only because the other side ran
away), the offence falls within the Words "involving a
breach of the peace.''5

1. Contrast---

Ramjan v. Jawaluddin, A.l.R. 1944 All. 272.

with

In re Mekrai, A.I-R. 1939 Mad. 787-

2. The various views are criticised in The King v. Maung Kyi Nyo, A.I.R. 1940 Rang.

50.

3. The earlier cases are collected in Note "Criminal Cases of 1903" (1904) 8 C.W.N.

Warrants, at pages 141, 143, 153 and in the Editorial note 8 C.W.N. (Journal, 210).
4 & 5. Emp. v. Manik Rai, (191 1)I.L.R. 33 All. 771, 772 (Knox _I.).

Same is_the position regarding criminal trespass,' where
there 1S an intention to commit a breach of the peace.

i(b)_ Not only are offences in which breach of the
peace IS _an essential ingredient included, but also
offences in which an evident intention to commit a
breach of the peace is expressly found."

Thus, acts of immorality in seducing married women may
provoke or lead to a breach of the peace, but they do not
"involve" a breach of peace.'

In an earlier Madras case," White C. J. had raised query
as to whether, where a breach of the peace had been in
fact committed, an order could be passed though the offence
did not "involve a breach of peace".

(Compare the language of section 522--an offence at-
tended by criminal force).

For a slightly wider view, the under-mentioned case"
may be seen. In that case, the High Court observed" that
the Words "breach of the peace" are the anti-thesis of the
other set of words "keeping the peace". The words "keeping
the peace" connote preservation of the public peace, and
are the direct opposite of the words "breaking the peace".
Therefore, the court has to examine whether the offence
brought home to the individual necessarily includes or im-
plies breach of the peace or constitutes or amounts to a
breach of the peace. If it does, the section applies. Then
followed an elaboration of the section, in these words.

"Is it intended by the section that each of the
oﬁences described in the Indian Penal Code should fall
under the category of either "offences involving a
breach of the peace" or offences of the opposite descrip-
tion. I do not think either is desirable or possible. The
facts constituting an offence must be looked at for
determining whether the offence comes Within the sec-
tion or not, The present case is in point and strikingly
illustrates what I mean. Wrongful conﬁnement per se
is not an offence involving a breach of the peace. If,

1. Dharam R35: (1920) I.L.R. 2 A11. 345.

2 .
cases).

O\U1-ls

7. Amn
section 110)-

Abdul Gaful v. Mad. Mirza, l.L.R. 59 Cal. 659; A.I.R. 1931 Cal. 645 (D.B.) (Reviews

Asoka v. Emp., A.I.R. 1930 Cal. 802.

. Anukul Saha, A.I.R. 1939 Cal. 484 (D.B.).

. Abdulla v. Crown, I.L.R. 2 Lab. 279; A.I.R- 1921 Lab. 98.

- Mithiah Chetty, (1905) l.I..R. 29 Mad. 190 (Section 143, Indian Penal Code).

Samanta, (1903) I.L.R. 30 Cal. 366, 368 (Prinsep and Mitra JJ) (Case under

8. Kannokaran v. Emp., (1902) I.L.R. 26 Mad. 469.
9. In re Kuppa Reddiar, (1924) I.L.R. 47 Mad. 846; A.I.R. 1924 Mad. 808.
10. Kuppa Reddiar, In re, A.l.R. 1924 Mad. 808; 809 (Venkatasubha Rao J.).

for example, a person happens to be in a room in his own
house and another by locking the room on the outside,
conﬁnes the person within the room and makes egress
impossible, all the elem-ents necessary for constituting
the offence of wrongful conﬁnement are present. But
this involves no breach of the peace but on the con-
trary if, as has happened in the present case, the offen-
ders in a coconut garden using violence seize another
and tie his hand, I am clearly of the opinion that the
offence as proved does involve a breach of the peace."

(e) The expression "offences involving a breach
of the peace" covers two classes of cases----The ﬁrst class
is where a breach of the peace in fact has occurred.
The other case is where the deﬁnition of the defence
involves a breach of the peace, as in one of the two
classes of cases under section 504, Indian Penal Code.' _

282. An amendment of section 106 is proposed to settle
the law on the point, so as to replace the words "involving
a breach of peace" by a different phraseology,

283. The question whether the Sessions Judge should Section 106
also be added in section 106(3)----which refers to the High (S3) 'End
Court exercising the "powers of revision", can be consi- Jjjggins
dered after the question of revisional powers of the Sessions '

Judge is considered."

284. It has been suggested,''' that the power under sec- S<=<=ti0n106
and Magis-

tion 106 should be given to Second Class Magistrates (parti- tr t
cularly for riot cases). We are unable to agree. The e,§,f§w,,,ed
maximum period of security under section 106 is 3 years, '
and, for that reason, it is better that the power is con-

ﬁned to Magistrates of the highest class.

285. With reference to sections 106 and 110, it has been Sections 106
suggested' that the maximum period for binding down andllo
persons to be of good behaviour under sections 106 and 110 1'::'f;'§'"m

should be reduced from three to two years.

The reason given in support of this suggestion is, that
the period of three years was "too long and often caused
harassment to citizens who may have, had the misfortune
of having incurred the displeasure of the police". If a per-
son does not change his ways within two years, there are
(it is stated), other methods of dealing with him.

I ) 1. Emp. v. Yacoob Sayed, (1918) I.L.R. 43 Born. 554; A.l.R. 1919 Born. 150 (Heaton,
2. Amendment ofsection 106(3) to be considered when section 435 is considered.
3. F. 27(3)/55-Judl. ll (Ministry of Home Aﬂairs File) Appendix I, Item No. 18.

, 4. F. 3(2)/55-L.C. Pm vu, s. No. 449, Suggestion of the up. Committee for Investi-
gation of Causes of Corruption in Subordinate Courts in U.P. (1963), Report page 42,.

Bill at pages 225-226. .

Sections 107
to 110.
Retention
of (general
question).

Section 107.

Section 107
(1) and
suggestion
of a High
Court Judge.

We have considered the suggestion carefully. But we
may point out, that security for the period of three years
can be demanded only after conﬁrmation by the Sessions
Judge, who has to go into the case on the merits.' This
safeguard being there, we do not regard the suggested
change as necessary.

286. Sections 107 to 110 deal with preventive action.
They are vitally connected With the preservation of the
public peace and the maintenance of law and order. This
is the ﬁrst duty of every State. The duty cannot be effec-
tively carried out without some provisions designed to give
sufficient powers. Some safeguards are needed no doubt,
and the law provides for them. However, omission of these
sections appears to be out of question,

287. The power under section 107 should be given to
Executive Magistrates, being concerned with the mainten-
ance of law and order." The power may be assigned to-

(i) Presidency Magistrates specially empowered by
the State Government in this behalf (Cf. the Bombay
amendment) ;

(ii) District Magistrates and Sub-divisional Magis-
trates (see the existing section) ;

(iii) Executive Magistrates of the ﬁrst class (Cf. the
Punjab amendment).

288. With reference to section 107(1), the following sug-
gestion" has been made by a High Court Judge.

"Sections 107-110 relate to security for keeping peace.
The words "is informed" occurring in section 107(1) lead
to the presumption that the information may be lodged by
private persons. It may be made clear by necessary amend-
ment, that these sections should be conﬁned to cases. where
information is lodged by the police (and not by private
persons) that a breach of peace is apprehended."

289. We examined the existing law on the subject.
As the law stands at present, the Magistrate can draw
up proceedings-
(a) on a police report,'
(b) on a report of a subordinate Magistratef
(c) information given by a private individual.'

. As to

un-3suaNv-

. Sections 123(2) and 123(3).

subsequent proceedings, see discussion relating to section 117-

. F. 3(2)/55-I..C. Part 111, s. No. 49(q).
. Laxmi Narain v. Emp., A.I.R. 1932 All. 670.
. R. v. Jarappa, (1871) 8 B.H.C.R. Ct. 162, 163.

(d) on private petition ;'
t(e) information gathered from a previous trial.'

It may be noted, that under section 106, even the orders
of the High Court in revision are sufficient?

290. The sine qua non for the institution of a proceed-
ing under section 107 is, that the Magistrate shall be of
opinion that there is sufficient ground for proceeding.'

We are, with great respect, unable to recommend an
amendment on the lines suggested. There may be cases

where the Magistrate may have to act on information from
sources other than the police.

291. It has been suggested} that section 108 should be 5e°'i°'} 103'-_.
omitted. We are not in favour of deletion of the section.
n 61'.
We would, however, like to draw attention to the fact U d
that the jurisdiction under section 108 is preventive, and
not punitive. The test is, whether there is (i) dissemination
of seditious matter; and (ii) fear of repetition.' "To take
proceedings under section 108, there ought to be evidence
that, if not prevented, the person accused would continue

to act in the way in which he had done."' We may quote'?
the observations of Rankin J.:

"The most important thing in the end is the ques-
tion under section 108, Cr. P. C., whether it is

necessary to order the person summoned to enter into
a bond.

It may sometimes happen that the contention on
the part of the editor in such circumstances is so extra-
vagant that the Magistrate may be justiﬁed in thinking
that unless effective steps are taken, the editor intends,
notwithstanding the decision of the Court, to go on as
before. Merely because a person has insisted upon
putting his case before the Court and taking its deci-
sion, to infer that it is necessary after the decision has
been given to bind him down in or to prevent him from
doing the same thing again is, I think, unwarranted,

l. Sanjiui v. Koneri, A.I.R. 1926 Mad. 521, 524.

2. K. E. v. Qobardhan, A.I.R. 1922 Oudh 273.

3. Emp. v. Muhammad (1881) I.L.R. 3 All. 545, 548, 553.

4- Deoballam v. Gorakhanath, 48 Cr. LJ. 703, 704 (Patna) (Agarwala _I.).

5. F. 27(5)/54--]udl. (Home Ministry File), Appendix II, Item No. 10 (suggestion of a
Member of Parliament).

6. Emp. v. Vaman, 11 Born. L.R. 743.

7. Chiranji Lal, v. K. E. I.L.R. so Al1.854;A.I.R. 1928 A11. 344, 345 (133131 1.).
8. Chakravarty, v. K. E. I.L.R- 54 Cal. 59; A.I.R. 1926 Cal. 1133, 1137 (Rankin

The following observations show the scope and object
of section 108 :--'

"The provisions of Chapter VIII of the Code are
no doubt preventive in their scope and object; and are
obviously aimed at persons who are a danger
to the public by reason of the commission by them of
certain offences. The test under section 108 is whether
the person proceeded against has been disseminating
seditious matter and whether there is any fear of a
repetition of the offence. In each case that is a question
of fact which must be determined with reference to the
antecedents of the person and other surrounding cir-
cumstances."

292. The circumstances inwhich section 108 was inserted
in the 1896 Code are interesting Alongwith the Bill of
1898, amending the Indian Penal Code, for the purpose of
dealing with the law of sedition, Government decided to
insert section 103. The reasons were thus explained :--2

"For the present, at any rate, we have no further
amendments to suggest in the substantive law, and I
now wish to refer to two amendments which the Gov-
ernment propose to move in the Select Committee on
the Code of Criminal Procedure Bill. Section 109 of
that Code provides that in certain cases people who
misbehave themselves may be bound over and required
to ﬁnd sureties to be of good behaviour for a term not
exceeding twelve months. We propose to apply a simi-
lar procedure to the case of people who either orally or
in writing disseminate, or attempt to disseminate,
obscene, seditious or defamatory matter, A man who
disseminates, that is to say, who sows broadcasts or
scatters abroad, such matter is obviously a dangerous
public nuisance. It is immaterial whether he chooses,
as his means of dissemination, an oral address, or a
book or a pamphlet, or a newspaper. We are bound to
check such obnoxious conduct. But as a rule the per-
sons who are guilty of. it are small and insigniﬁcant
individuals. They may do enormous mischief among
uneducated, foolish and ignorant people, but in them-
selves they are deserving of very little notice. It is
absurd to deal with them by an elaborate State
prosecution. We think that in most cases no prosecu-
tion at all will be required, It will be sufficient to
give them an effectivewarning to discontinue their
evil practices, and we think that the machinery we have
devised will operate as aneffective warning. The gene-
ral power of revision possessed by the High Courts will
secure that that machinerywill not be usedin any way

1. Emp. v. Vaman, (1909) 11 Born. L-R. 743, 744 (Chandavarkar, Ag. C.]. and _l-leaton

1-)-
2. Proceedings of the Governor-General-in-Council, Dec. 12, 1897; speech of
Mr. Chalmers Law Member. _ _

oppresively; and we further propose that this new
power should only be exercised by Presidency or Dis-

trict Magistrates, or specially empowered Magistrates
of the ﬁrst class."

293. The necessary clause was approved in substance
by the Select Committee.' The Committee stated, that it
had conﬁned jurisdiction to certain Magistrates, and pro-
vided that the bond may be with or without surety, and
removed reference to obscene matter and made certain

other changes. It had also provided that the order shall
be subject to revision.

The amendment, however, evoked serious protests?

294. In the proceedings of the Select Committee on
the 1898 Code," one of the members, Shri Bishambar Nath,
stated, that insertion of the new clause would virtually
mean the revival of that "retrogressive and noxious legis-
lation in the Vernacular Press Act." Answering the criti-

cism, Sir John Woodburn explained the real object of sec-
tion 108 thus :--

"In the interests of good government it is always
better that crime should be prevented than that it
should be allowed to come to a head, however, exem-
plary and effective the subsequent punishment may be.
The lamentable riots, which were yesterday reported
from Bombay, furnish fresh proofof the suddenness and
ﬁerceness with which passions may be roused in this
country in an ignorant 'mob and of the imperative
necessity of arming the executive with all the powers

of prevention which possible forewarning may render
it expedient to use.

"I am myself perfectly willing that even this
preventive jurisdiction shall be exercised only
under the express authority and sanction of Govern-
ment. This will give assurance that it will be
exercised with moderation and prudence; but that
provision should exist for the use of preventive
measures, when occasion requires, is the opinion
of every responsible Government in India and of
every High Court without exception, The only
dissentients in the High Courts were Justices Ghose
and Banerjee, Judges of a soberness and soundness
of judgment which must always carry weight and
even they accepted the measure now before
Council with the proviso which will be agreed to

1. Report of the Select Committee on 1898 Code, 16-2-I898, Legislative Proceedings,
April, 1898, No. 24 to 128, Appendix A-50 (National Archievea).

2. See the various articles and notes in (1898) 2 Calcutta Weekly Notes (Journal sec.
tion). pages 51, 73, 75, 85, 87, 88 (representation of the Calcutta Bar) and 95 (Report of
the Select Committee on the amendment to the I.P.C.) and page 111.

3. Proceedings of the Governor General "in Council, 11th March, 1898, Legislative
Pro ceedings, April, 1898, No. 24-128, Appendix A--6O (National Archieves).

today. I can add nothing to this unanimous opinion
of all that IS responsible for the peace and order

of India."

295. One of the amendments moved by Sir Griffith
Evans was accepted in the Council. He moved this amend-

ment :-

"No proceedings shall be taken under this section
against the editor, proprietor, printer or publisher of
any publication registered under or printed or publish-
ed in conformity with the rules laid down in the Press
and Registration of Books Act, 1867, except by the
order or under the authority of the Governor-General
in Council or the Local Government or some officer
empowered by the Governor-General in Council in this

behalf."

He thus explained the amendment "The last words
of the amendment are taken from section 196. The
effect, roughly speaking, is to require the same sanc-
tion of Government when proceedings are instituted
under section 108 against the Press as is required in all
cases of a prosecution under section 124A. The result
will be that Magistrates will be able to take proceed-
ings without Government. sanction in all other cases,
but will require Government. sanction before taking
proceedings in respect of a newspaper article. It may
be asked why this distinction should be made between
oral and written sedition. One reason is that oral
incitements to a mob of ignorant. people are apt to lead
to immediate disturbances and may require immediate
action without waiting for sanction, Another is that
many seditious preachers are migratory and must be
caught at onc-e if they are to be stopped, whereas news-
paper editors and publishers have a ﬁxed address and
a ﬁxed occupation and can be found at any time. But
the main reason is a different one. A portion of the
Vernacular Press has been allowed to drift into a very
lamentable condition ﬂor many years, and the curb
which it is proposed to put upon them by this section
will have to be ap lied with great discretion and judg-
ment. I mean no isrespect to the Magistrates in India
when I say that I do not think this power can be
safely entrusted to them. Able and conscientious as
they are, the comparatively isolated lives that
they lead in the several districts are not favourable to
the wide outlook and sense of proportion which are
necessary to deal effectively with this evil. Many of
them are also too young. It is, I think, essential that
this power should be exercised by persons of the ripest
judgment, living in a serener atmosphere, away from
local feeling and excitement In fact, I do not think
that any one but the Government ought to use this
power with any prospect of the good results which are

intended."

296. Power under section 108 should be assigned to Section 103
Executive Magistrates, the power being of a preventive fh";'i'r':i
nature. It may be given to -- °q '

(a) Chief Presidency Magistrates (See existing
section);

(b) District Magistrates, (see existing section);

(d) Executive Magistrates of the first class (see the
Punjab amendment).

Mention of section 295A, Indian Penal Code, should be
added in section 108, as the offence under that section is
similar to the offences already mentioned in section 108.

297. A suggestion' to extend section 109 to cases of Sectionl109

intention to commit a crime was considered, but rejected 5"93°sFi°"
by us .'°g""d.'"g
' 1l'lt€nClOn 110

A suggestion' to omit section 109 totally was also

considered, but we are unable to accept it."

298. The power under section 109 should be given to s°°'i°n 109

Executive Magistrates, the power being of a preventive "°'"°'""d°"

nature. These will be---

(i) Presidency Magistrates specially empowered by
the State Government in this behalf (see the Bombay
amendment);

(ii) District Magistrates (see the existing section);

(iii) Executive Magistrates of the ﬁrst class (see the
Punjab amendment);

299. Under section 109(a), there is a conﬂict of decisions Section 109
as to the interpretation of the words "to conceal his presence (3) 31°', fth°
within the local limits of the Magistrate's jurisdiction. We :,':,c:,1 138
considered the controversy at some length.' We recom- presence".
mend, that the wider interpretation be adopted, that is to
say, it is not necessary that the person against whom action
is to be taken should have come from outside the Magis-
trate's jurisdiction. To achieve this object, section 109(a)

should be amended so as to read-----

(a) that any person within the local limits of such
Magistrate's jurisdiction is. ...... .."

It will also be desirable to amend section 55, as it is
couched in similar phraseology.'

1. F. 27(3 )/55-Judl. II (Home Ministry File) Appendix I, Item No. 20.
2. F. 27(5)I54-Jud}. (Home Ministry File), Appendix II, Item No. 11.
3. See also discussion relating to sections 107-110, supra-

4. For detailed discussion, see Appendix 8.

5. To be carried out under section 55-

7-29 M. of Law/68

82"
300. With reference to section l09(b), the following

mtionaliw "suggestion has been made, by the Minister for Justice of
of_ 'a State Government.' \

"For a correct understanding of the changes which
have taken place in consequence of the promulgation
of the Constitution of India, it is necessary to look to
the background----the context of bureaucratic rule. It
cannot be denied that the position of a citizen in law
before independence has drastically changed in the
wake of freedom on the promulgation of the Constitu-
tion of India. Consequently, there has been a corres-
ponding change in the rights of citizenship. The relevant
question is what were the lights of a citizen Of Indla
before the Constitution of India came into force and
how these rights stand now after its promulgation ..... ..
The old rights of citizenship created under foreign rule
were of such a character and extent the exercise of
which would not in any way interfere with the
strengthening of the position of British rule in India
and the foreign Government was too vigilant to protect
its interests. Thus, the interests of the people were
sacriﬁced for the beneﬁt and welfare of British admi-
nistration in this country. It will be appreciated that
the old conception is now entirely changed. Whatever
rights of citizenship are provided under the Constitution
they have been created for building up and consolida-
tion of the freedom of the country in_ the ﬁrst instance
and secondly for providing opportunities of free natural
development to citizens 'of this country_ with an intense
irresistible urge to vivify and resuscitate thedead--_--
stagnant life of its people. To examine the position in
law of section 109(b), Cr. P. C. We should look at it from
the angle of vision of the new conception ofcitizenship
as adopted and enshrined in the Constitution. Under
section 109(b), Cr. _P.C. the question of public peace is
also involved. Public pea_ce under the old British regime
was undoubtedly a publicupeace of a graveyard, but an
attainment of freedom this conception of public peace
has undergone a drastic change. _Now'the conception of
public peace is pregnant. with its_ significance of the
public peace of free citizens _which will lead _to the
strengthening and consolidation of freedom in the
country and to the awakening of a growing dynamic
life of its citizens. From the above, it is crystal clear
that under the new 'set-up of 'democratic Government
we have to examine it_in the light of the prov1sions_of
the rights of citizenship contained in the Constitution
of India and that of public peace in its new _context of
the free sovereign state. _If for interpretation _of the
provision of the Constitution we _base out examination
on the same old out_date conceptions of the rights of
citizenship and public peace, which we can honestly say
are left behind as most disgraceful, insulting and

1_ 1:, 3(2)]55-I..C. Part vii, s. No. 152.

degrading remnants of the slavery of British rule in
India, we will only misguide our endeavour and chase
the wild goose in so far as the correct understanding of
the above subject is concerned. Naturally as follows :-

(1) Whether the conceptions of the rights of
citizenship and that of public peace have under-
gone a change in consequence of the promulgation
of the Constitution of India ? If so, how the above
conceptions as they stand now after attainment of
freedom, are materially different from the old ones ?
In case a material change is found, how does section
109(b), Criminal Procedure Code affect the provi-
sions of Constitution of India ?

(2) Whether the responsibilities of the Free
Sovereign State of India for moral and material
progress and peace and prosperity of the citizens
of this country are the same as that of old regime
of Britishers in this country, or this responsibility
has further fully developed into a complete
responsibility of a Sovereign State? If so, is an
action under section 109(b), Criminal Procedure
Code justiﬁed and maintainable ?

(3) Whether any classiﬁcation of the people of
this country based on the ground of their fortunes
is countenanced by the provision under the Consti-
tution of India.

(4) Whether in view of the great changes
mentioned above section 109(b), Criminal Procedure
Code stands repugnant to the provision of article
14 of the Constitution ?

'(5) Whether section 109(b), Criminal Procedure
Code is void by reasons of its inconsistency as
provided under article 13 of the Constitution?
So far as the provision of section 109(b), Cr. P. C.
is concerned, it apprehends breach of public peace
from a class of people who have no ostensible means
of subsistence--have nots. This is obiously creating
a class by itself to be dealt with differently by the
law of the land from the class of the people ugho
are the haves. Is such a position tenable according
to the Constitution of India ?"

We considered the suggestion. Our view is
this---Section 109(b), cannot be employed
against a person merely because he is a pauper
or he is unemployed. It is requisite that the
demanding of security must be necessary to
ensure good behaviour. There must, ordinarily,
be a suspicion that dishonest means are resort-
ed to.' That being the position, we do not think
that the section needs alteration because of the
constitutional provisions.

1. See Victor,I.L.R. 53 Cal. 345.

84'.

Section 110 301. We have been unable to accept a suggestion' to:
:8 "d "0 omit section 110, clauses '(e) and'('£).

3°¢t_i°t} 110 _302. The suggestion 01 a Senate Government' to add, in.
section 110, persons who habitually commit illicit distilla-
' ' '°"' tion etc. was considered_ by us at. some length; but we are-
not in a position to accept it. These are offences by virtue-
of local laws, and it would not be correct to put them in.

a provision applicable to the whole of India.

Section 110 303. Power under section 110 may be given to Executive
Maslstrates Magistrates, as it is vitally concerned with the maintenance

:','ng';wmd_ of law an order. These will be-
(a) Presidency Magistrates specially empowered
(See the Bombay Amendment);
(b) District Magistrates (See existing section 110);.
(c) Sub-divisional Magistrates (See existing section
110); and
(d) Executive Magistrates of the ﬁrst class (See the
Punjab amendment).
Section 110 304, We have considered a suggestion" to put various

'"181 "he" restrictions on the power under section 110 and to provide

p°"'ts' for compensation for false information leading to proceed-
ings under section 110 etc. In our opinion, these changes
would not be practicable.

Sections 111 305. Section 111 is already omitted, no changes are
to 116. needed in sections 112 to 116.

Seccionsllz 306. With reference to sections 112 and 11~7(1'), it has
'I134 113(1) been suggested,' that the courts should have power to
°"'°" ' remand to custody persons arrested under section 55 of
Code for being proceeded against under Chaptel'-VIII of the

Code of Criminal Procedure.

We would, however, point out, that section 55 is meant
for urgent cases. A remand should not be necessary in such
arrests. Arrest under section 55 should be followed pr tly
by proceedin for obtaining orders under section I09, i' the
case so justi es. '

As to remand in cases' under section 107(3)', section
107(4) may be seen. A}; to rﬁand pending inquiry under
Chapter 8, section 117(3), also the underznentioned
cases," may be seen.

1. 1:. No. 27(5)/54-Judl. (Home Ministry File); Appendix 11, Item 12.
2. 12. No. 3(2)/55-I...C. s. No. 25.
3. F. 27(5)/54--]ud1. (Home Ministry File), Appendix IV, Items 2, 3, 4.

4-. F. 3(2)I55--I..C. Part VII, S. No. 44-9) Suggestion of the (LP. Committee for Investi-
gation of Causes of Corruption in Subordinate Courtsin Uttar Pradesh, (1963), Report,
pages 42-43 Bill at page 226.

5. See Shrcwcm Kumar AIR. 1957 A1]. 189, 192 (V .gBhargava and Sahi H.) (Case under
section 107)-

6. I.L.R. (1960) 2 All. 792.
7. C. Kabui v. Union Territory of Manipur, A.I.R- 1963 Manipur 12, 14: Para. 9.,

85
We do not think, that any change is-necessary.

307. The detailed inquiry under sections 11.7-to 119 Section 117

tshould be left t E t' M ist 1 P°W°""'d"-
.issued the initial (<)>rd'¢7ecie;.(':u we ag rates' who would have

In an earlier Report,' a recommendation was made for

leaving the actual inquiry under sections 117 et seq. to
«Juclzc1al~Mogistrate_s. Under the Madras pattern jurisdiction
'under section 107 is exclusively with the Executive Magis-
trate. But, in regard to proceedings under sections 108 to

1110. Where the proceedings are initiated (as almost in-

variably they are) on information from the police the

information can be laid directly before the Judicial

.Magistrate, and if a private person seeks to initiate proceed-

ings,' he can be referred to the Judicial Magistrate. Thus,
it is the Judicial Magistrate who conducts the proceedings,
under the Madras pattern. No question of emergency (it is
stated)5 can arise under sections 108 to 110; but, to provide
for all contingenies, concurrent jurisdiction is given to both
classes of Magistrates

308. We have considered the Madras pattern" and also
'the recommendation in the 14th Report for leaving the

actual proceedings to Judicial Magistrates .(conﬁning the

powers of Executive Magistrates to such immediate action
as is necessary). In our opinion, such a procedure would
not be convenient for adoption for the whole of India,

V articularly when separation is to be introduced by law.

he sections are preventive, and, though recording and
sifting of evidence are required, yet_the proceedings are

'vitally concerned with the maintenance of law and order.

1309. Sections 118 to 122 need no change. 115

310. The suggestion of a High Court Judge,' with5e¢ti°n122-
reference to section 122, is as follows :-

In practice, many Magistrates refuse to accept any

'surety offered without ﬁrst getting it veriﬁed. This is not

strictly in accordance with the provisions of section 122.
The principle that whatever surety is offered must be
accepted by the Magistrate though he can, after an inquiry,
reject him, is unsound, and the section needs to be suitably
amended.

71. This, however, involves no verbal amendment in section 117.

2. See discussion regarding sections 107 to 110.

3. 14th Report,Vol. 2, page 859, para- 22-

4. Government of Madras, Order No. G-O. Ms- 2304, dated 24th September, 1952;

paragraph 19(3), and Schedule, entry 18.

5. Government of Madras, Order No. G.O.Ms. 2304, dated 24th September, 1952;
paragraph 19(3), and Schedule, entry 18.

6. The West Bengal Bill also assigns these powers to Executive Magistrate. See the
ﬁrst Schedule to the Code, as proposed to be inserted by the West Bengal Separation etc.
Bill, 1967.

7. F. 3(2)/55-I..C. Part II, S. No. 33(a).

(i) The Magistrate should be empowered to refuse to
accept a surety if he has reason to believe that he is not
ﬁt to be accepted; .

_ (ii) _In such a case, he should be 'required to hold an
inquiry into the ﬁtness and then decide Whether to accept
him or not; .

_(iii) It may be advisable to prescribe a limit within
which the Magistrate should complete the inquiry;

(iv) If he cannot complete the inquiry within the time
prescribed, he can be compelled to accept the surety, with
liberty to reject him later on his being found to be unﬁt
after the completion of inquiry. This would be an adequate
safeguard against bogus sureties.

311. Of the four points made in the suggestion,' the ﬁrst
two are, in substance, covered by section 122(1), main
paragraph, and the proviso. The Magistrate, no doubt, can
exercise the discretion to refuse to accept a surety only
after a satisfactory enquiry." Reasons must be recorded
for rejecting a surety.' Rejection of a surety cannot be
perfunctory. It has been recognised for long, that the
"ground on which a Magistrate has power to refuse to
accept any surety must be a valid and reasonable ground."

312. The third and fourth points contemplate a time
limit, for completing the inquiry. But it is doubtful if it
would be workable. To insert a rigid rule, that if the in---
quiry is not finished within the prescribed time--limit, the
surety must be accepted, may not be advisable. It may even
induce some Magistrate to hold a very perfunctory inquiry
in order to comply with the time-limit, thereby substituting
another evil in place of any evil in the form of delay that
may be existing. It is true, that it is desirable that the order
rejecting etc. the surety should be passed within a reason-
able time." This would enable the accused to furnish fresh
sureties.

The matter, however, seems to require administrative
action rather than legal amendment.

Having regard to the fact that attempts are sometimes
made to sue Magistrates for detaining a person in alleged
violation of the procedure provided by the section,' it ap--
pears to be desirable to avoid a categorical provision.

1. Paragraph 310, supra.
2. In re Abdul Khan, (1906), 10 C.W.N. 1027, 1028 (Ormond and Gupta]]).
3. Akbar Ali v. Emp., (1914) I.L.R. 42 Cal. 706.

4. Rayan, (1916) I.L.R. 43 Cal. 1024, 1026, 1027 (Mookerjee and Sheepshanks ]].).
(Reviews case-law).

5- Narain Sooboddhee, (1874) 22 W.R. Cr. 37-
6. Maung Tun v. K. E., A.I.R. 1925 Rang. 353.
7. Cf- Lakshmi Narain Singal, A.I.R. 1962 All. 137-

313. No changes appear to be. necessary regarding the Sect M133

Magistrates empowered under section 123(2). ﬁlagifrates

empowered.

314. It has been suggested that sub-sections (2), (3), (3A) Section 123
and (3B) of section 123 of the Code may be deleted. The "'.".d Sugges"
suggestion has been made by the U.P. Committee for In- 3:12:60
vestigation into corruption in subordinate Courts.' conﬁrmation

The Co1nmittee's reasoning was, that the hands of 1_he}'Yd§°ss'°"S
Sessions Judges were too full. u °e'

315. We have considered the suggestion carefully. But
we venture to think, that the suggested change is too radical,
and the reason given does not, with great respect, justify it.

Section 123(2) contemplates that the Sessions Judge
must form his independent opinion" as to the propriety of
the order, the period and amount. He has to deal with the
case on merits." This provision has been there, at least
since 1882. In fact, the Code of 1898 substituted "Sessions
Judge" for "Court of Session". The order passed by the
Sessions Judges become the order i.z the case.' These points
show the importance attached by the legislature to con-
ﬁrmation by the Sessions Judge. We would not be prepared
to alter, these salutary provisions, without strong and com-
pelling reasons.

316. With reference to sections 124 and 125, certain Sections 124

points arise in view of separation. These are considered '"'d 125 and
below separation.

317. In section 124, the following points require consi- S°"i°" 124'
deration.

(a) Wherever the District Magistrate occurs, the Chief
Judicial Magistrate has been added in Punjab. This is to be
adopted, as section 124 is to continue to apply to orders under
section 106--see under (b) below. But, the respective powers
of the District Magistrate and the Chief Magistrate should
be deﬁned.

(la) The cases of security under section 106 will also
continue to be governed by section 124, as at present. The
jurisdiction, however, will be that -of the Chief Judicial
Magistrate, so far as action under section 124 in respect of
an order under section 106 is concerned.

(c) In section 124(2), the words in brackets "unless the
order has been made by some court superior to his own"
need not be omitted. The omission of these words will be

1. F. 3(2)/55-L.C. Part VII, S. No. 449, Suggestion of the U.P. Committee for Investi-
gation of Causes of Corruption in Subordinate Courts in Uttar Pradesh (1963), Report,
page 43, middle, Draft at page 227.

2. Mangal Singh v. Crown, A.I.R. 1928 Lah. 189, 191 (Tek Chandj.) (Reviews cases).
3. Emp. v. Amir Bala, (1911) I.L.R. 35 Born. 271, 274-
4. Emp. v. Amir Bald, (19ll)l-LR. 35 Born. 271, 274-

History of
Section 124.

Power to
release
persons
imprisoned
for failing to
give security.

m_isconstrued_. They have this effect, that only orders of the
District 'Magistrate himself or of his subordinate Magistrate
can be interferred with.

318. As to section 124(1), the reason why certain words
were omitted in 1923 can be athered from the Statement
of Objects and Reasons to the ill which led to the Amend-
ment Act of 1923.'

"T_'his amendment is mainly intended to enable persons
committed to prison under Chapter VII of the Code to be
sent to Industrial Homes and Settlement of the Salvation
Army, or to other similar Homes or Settlements, where it
may be possible to reform them and make them accustom-
ed to regular work of a kind which may be useful to them
after the expiry of their period of detention. It is proposed
to give a District Magistrate or a 'Chief Presidency Magis-
trate absolute power to release with or without conditions
a person imprisoned for failure to give security. without
the intervention of the Court of Session or High Court."

319. Before the 1923 Amendment, section 124 read as
follows :-

"124. (1) Whenever the District Magistrate or a
Chief Presidency Magistrate is of opinion that any per-
son imprisoned for failing to give security under this
Chapter, whether by the order of such Magistrate or
that of his predecessor in office, or of some subordinate
Magistrate, may be released without hazard to the com-
munity or to any other person, he may order such per-
son to be discharged.

(2) Whenever any person has been imprisoned for
failing to give security under this Chapter, the Chief
Presidency or District Magistrate may (unless the order
has been made by some Court, superior to his own)
make an order reducing the amount of the security or
the number of sureties or the time for which security
has been required.

(3) Whenever the District Magistrate or a Chief
Presidency Magistrate is of opinion that any person
imprisoned for failing to give security under this Chap-
ter as ordered by the Court of Session or High Court
may be released without hazard to the community, such
Magistrate shall make an immediate report of the case
for the orders of the Court of Session or High Court, as
the case may be, and such Court may, if it thinks ﬁt,
order such person to be discharged."

1. Statement of Objezts and Reisons to the 1921 Bill, under clause 23.

320. In section 125, the following points have been con- Se¢ti0n125.
sidered :--

(a) The Chief Judicial Magistrate may be added;
and the respective powers of the District Magistrate and
the Chief Judicial Magistrate may be deﬁned.'

(b) For the words "under this Chapter", it is not
necessary to substitute the words "under section 118"?

b (c) The words "not superior to his court" need not
e omitted.'

321. Section 126 may be amended so as to conﬁne the Section 125-
power of discharge to the court by which security was order-
ed. Compare the Bombay and Punjab amendments.

322. In section 126A, after the word "Magistrate", the Section
words "or court" should be inserted.' 125 A.

323. Sections 127 to 132A deal with the dispersal of un- Sections 127
'lawful assemblies. These powers have been kept only with '° I325-
Eacecutive Magistrate, in the Punjab. In Bombay, the sec-
tions have not been amended, which means that both classes
of Magistrates can exercise the powers. In Madras, the
scheme is as follows. Primarily and normally, these func-
tions devolve on Executive Magistrates. But, when for some
reason or other, the Executive Magistrate is not available
on the spot, the officer for the time being in charge of a
police station, or any higher police officer, may seek the
assistance of the Judicial Magistrates. The Judicial Magis-

'-'trate should act as though he were the Executive Magis-
trate, pending the arrival of the latter. "The moment the
Executive Magistrate comes on the scene and is able to take
-charge of the situation the Judicial Magistrate will efface
ihimself. But, before withdrawing from the picture, the
Judicial Magistrate will, if so requested by the Executive
Magistrate having territorial jurisdiction, modify or cancel
"whatever directions he may have issued, so that the Exe-
cutive Magistrate will be able to act unhampered by orders

:not of his own making!"

324. While we recognise the utility of a scheme (as in
Madras) giving concurrent powers to deal with emergencies,
we felt, that, to avoid confusion and also in View of the
-fact that separation is now to be introduced by legislation,
it would be better to conﬁne the power to only one set of
Magistrates, namely Executive Magistrates. Any practical

1. Cf. discussion regarding section 124.
2. This is consequential on the changes proposed to section 126.

3. Government of Madras, G.O.Ms- No. 2304, dated the 24th September, 1952,
para. 18.

diiﬁculty could b

. e solved by appointing more Executive-
Magistrates. r

Section 127 325. The following suggestion'

and S"E3°3' Madras Bar Council --
tion of '

Madras Bar

has been made by the-

Councm "Chapter IX--Unlawful Assemblies---may be omit-«

ted. Appropriate legislation for the dispersal of an un-
lawful assembly by police and military authorities
should be made. Courts and Magistrates should not be
invested with any powers to disperse unlawful assem-
blies, as such power is purely executive in character.
It IS necessary that Magistrates should not be made to
feel that they are part of the executive. If this Chapter
is to be retained, the Magistrates may be divested of the
power given to them under this Chapter by appropriate.
deletion and amendments."

We think, however, that this power must be retained,

for dealing with emergencies. We do not see any need to
disturb the structure of the Code, by putting these provisions:
in separate legislation.

Se<=ti0n127 326. With reference to section 127(1), the following'

§t1l)g;'e"s't1ion suggestion" has been made by a High Cort Judge :--

golliltftggludge. "The power to command any unlawful assembly to-
disperse is rather wide. The real object would be served'
only by retaining the power to disperse an unlawful'
assembly of ﬁve or more persons likely to cause breach

of peace. The words "any unlawful assembly" may be
omitted."

327. We are, with great respect, unable to accept the
suggestionf for the reasons given below. Primarily, the
power is to disperse an "unlawful assembly", The power to
disperse other assemblies likely to cause a disturbance of
the peace etc.' is only an extension of the ﬁrst power. The
extension is considered necessary, because such assemblies:
are potentially unlawful assemblies.

Section 127(1) of the Code runs thus----

"127. (1) Any Magistrate or officer in charge of a
police station may command any unlawful assembly or
any assembly of ﬁve or more persons likely to cause a
disturbance of the public place, to disperse ....... .."

The omission of the words "unlawful assembly" (as:
suggested)" would give a wrong colour to the section.

1. F. No. F. 3(2)/55-L.C. Part III, S. No. 52 (Page 281, correspondence).
2. F. 3(2)/55-L.C. Part III, S. No. 49(a). (Page 188, correspondence).
3. Paragraph 326, supra.

4. See also section 151, Indian Penal Code.

328. If section 127 is altered so as to conﬁne it to an
unlawful assembly of ﬁve or more persons likely to cause
breach of the peace, it will be much narrower than the
existing section but. then it will become vague, because
"breach of the peace" is a test difficult to apply.

It may be added, that armed forces can be employed
only when public security so requires.'

The section (section 127) now covers----

(i) unlawful assemblies-
section 141, Indian Penal Code;

(ii) other assemblies which are potentially unlaw-
ful--section 151, Indian Penal Code.

It cannot be conﬁned to only one category--l.e. (i)
above.

329. Generally, as to the Crown's right, undermentioned
case may be seen."

330. Under section 133, the following points have been Section 133.
considered :-

(i) Powers under section 133 may be assigned to
Executive Magistrates, the section being designed to
afford a rough and ready procedure for removing public
nuisances. Further, primarily the section is intended to
be used in urgent cases,"" though of course, long user
cannot legalise a public nuisance.'

(ii) Under section 133(1), opening paragraph, the
Executive Magistrates empowered will be-

(a) Presidency Magistrates specially empower-
ed; (Compare the Bombay Amendment);

(b) District Magistrates and Sub-divisional
Magistrates (as in the existing section);

(iii) In section 133(1), concluding paragraph, for the
words "Magistrate of the first or second class", it is
necessary to substitute the words "Executive Magistrate
of the first or second class" (compare the Punjab amend-
ment). (It is unnecessary to add some other Presidency
Magistrate specially empowered etc., in the concluding
paragraph).

. See sections 129 and 131, Code of Criminal Procedure, 1898.

. Chanappa v. Emp., I.L-R- 55 Born. 263; A.I.R. 1931 Born. 57 (F.B.).
. Mir Imam Abdul Aziz v. Emp- (1897) 4 RR. Ct.

. Basanti Devi v. Rex., A.I.R. 1949 A11. 650.

. Rameshwar Prasad v. State A.1.R. 1958 Pat. 270.

. Kedar Nath v. Satish Chandra A.I.R. 1940 Oudh 75, 77-

. State v. Manji Raghu, (1964) 2 Cr. L.]. 94.

-\lO'\U'|--¥LbJl\)"'

(iv) In section 133(1), concluding paragraph, in
place of the words "move to have the order" set aside
or modiﬁed" the words "show cause why the order
should not be made absolute" should be substituted.
The existing language is not in harmony with the
langauge of section 135(b) and sections 136, 137 etc.

331. With reference to section 133, the Committee'
_Commme-es has suggested that, to remove changes of misunderstanding,

suggestio,,_ sections 133 and 134 of the Code may be amended suitably.
We are already recommending certain verbal changes.'

ﬁctairclnéi 133 332. With reference to section 133(1), it is the suggestion

. of a High Court Judge" that powers under the section be
limited to the District Magistrate and to Sub--divisional
Magistrates specially selected. We have given our anxious
consideration to this suggestion. But, since the Legislature
has, in 1923, delibemtel expanded the category of Magis-
trates who could act un er section 133, we hesitate to make

a recommendation for reverting to the old position.

[The reason given in the Bill of 1914 which ultimately
led to the Amenment Act of 1923 was that instead of Magis-
trates specially empowered, all First class Magistrates were
empowered to act under the section whenever necessa/ry.']

[Section 133(1), as enacted in 1898, was conﬁned to the
District Magistrate, Sub-divisional Magistrate, and First
Class Magistrates specially empowered. In 1923, it was ex-
tended to all First Class Magistrates. Second Class Magis-

trates (unless they are also Sub--divisional Magistrates) are
not mentioned.]

"Section 133 333. A suggestion to abolish jury in proceedings under

and Jury. section 133 has been made by a State Government.' But we
are unable to agree with it. Orders under section 133 are of
a far-reaching nature. Jury is a good safeguard for such
orders, as affording an indication of what is considered
reasonable and proper."

'Section 133 334. A suggestion to insert a provision that the summons
iggmons procedure be followed in cases under section 133 et seq was

pmcaduteg considered. No such change is necessary.'

1. F. 3(2)I55-LC. Part VII, S. No. H9, Suggestion. of the U1'. Committee for Investi-
gation of Causes of Corruption in Subordinate Courts in U.P. (1963), Report, pages 4344
(Draft at pages 227 to 230).

2. See section 133, as proposed.
3. P. 3(2)l55-LC. Part II, S. No. 33(-.1).

4. Sec Gazette of India, Part V, ism March 1914, Statement of Objects and Reasons to
«the Amendment Bill, under clause l9.

5. 1:. 3(7.)l55-I..C. s1. No. 28.
6. See also para 341, Infra-

7. See section 137(1), which already provides that evidence shall be taken as in a sum-
mons case-

93
335. N 0 change is needed in section 134. Section 134»

336. As regards section 135, certain points have been Section I35-.
considered' under section 139A.

337. The following suggestion has been made by the Sections 135-»
U.P. Committee,' with reference to section 135 and 136. £5 am.' U39'
ornlmttees
Trial by jury having been abolished, sections 135 and S"8S°5"°"~
136 of the Code (which still retain the provision for ap-
pointment of jury) should aslo be amended suitably.

We have already expressed our views in the matter.'
338. No change is needed in section 136. Section 135-

339. Section 137, may be amended as fo11ows:--' Section 137.

(i) for the word "he" in section 137(1), the words
"such person" should be substituted. A section should

not, ordinarily, use a pronoun referring to a noun used
in a previous section;

(ii) in section 137(2), the Magistrate should have
power to modify the order.'

340. The suggestion of the U.P. Committee for investi- Section 137'
gation into Corruption etc.' to the effect that in proceedings A (New)-
under section 133 et seq. the court should have a power to
direct a local inquiry or to summon and examine an expert.

has been found acceptable to us. A section to that effect
may be inserted.'

341. The following suggestion' has been made by a High Section I33 _
Court Judge :_ and 139. and

suggestion
"The procedure regarding appointment of a jury in °f" High
public nuisance cases is cumbrous. The matter should Cw" J"dg°"

e left for determination by the Magistrate. An appeal
may be provided."

We would, however, emphasise, that the function of
the jury is to decide whether the measures directed by

1. See discussion under section 139A-

2. P. 3(2)/55-L.C. Part VII, S. No. 4-49, Suggestion of the U.P. Committee for Investi-.
gation of Causes of Corruption in Subordinate Courts in U.P. (1963), Report, pages 43-44
(Draft at pages 227 to 230).

3. See discussion regarding section 133 and jury (Paragraph 333. supra).
4. As to existing law, see-

(i) Sadanand. A.I.R. 1958 A11. 174'.

(ii) Juje D Silva, A.I.R. 1943 Mad. 335.
(iii) Secretary, Rate Payer's Committee A.l.R. 1952 Cal. 127.

5. F. 3(2)/55--L.C. Part VII, S. No. 449, Report of the Committee, (1963), page 44,_
and draft at page 230.

6. See section 157A (as proposed).
7. F. 3(2)[55-L.C. Part III, S. No. 49(a).

Sections

l38-I39 and

the Magistrate are reasonable and proper.' As the
powers given are of an exceptional nature," we think
that the jury may be retained. These provisions are in-
tended to operate as a check on the exercise of the
"summary and arbitrary dealing with right of pro-
perty."

342. The following suggestion has been made by the

U.P. Committee" for the Investigation of causes of Corrup-

Cornmittee's ti0n--

suggestion.

Provision

for appoint-

ment of a
jury should
be deleted
from these
sections.

Section
139A.

The reasons given by the U.P. Committee are as fol-

lows : --

"The provision relating to the appointment of a
jury appears to be unnecessary. Experience over years
has shown that very rarely did a party ask for the ap-
pointment of a jury; further, whenever a party did ask
for the appointment of a jury the request was not made
in order to have a proper decision of the cause but was
made mainly for the purpose of delaying the proceed-
ings. '

"Trial by juries having been abolished in the State,
it appears that the retention of a jury under this Chap-
ter was not justiﬁed. The Committee, therefore, recom-
mends the deletion of that provision which entitled a
party to ask for the appointment of a jury.

"Sections 138 and 139 of the Code may be deleted."

We are unable to accept the suggestion, as we think

that the system of jury ought to be retained for these pro-
ceedings.' -

343. With reference to section 139A, diﬁiculty is caused

because the language of section 135(b) is not clear enough
to indicate that the provisions of section 139A are saved.
It is, therefore, desirable to amend section 135(b), so as to
make it clear," that the provisions of section 139A are not

affected by section 135(b).

1. See section 139(1).

2. Gokal Chand v. Crown, (1919)I.I..R. 1 Lab. 163, 168.

3. Basanti Devi v. Laxmi Chand, A.I.R. 1949 All. 650, 651.

4. Reg. v. Dajsukh Ram, (1864-68) 2 B-H.C.R. Cr. 384, 386, 407, 412 (Sausse C.].).
5. See also para. 333, supra.

6. F. 3(2)/55-LC. Part VII, S. No. 440, Suggestion of the U.P. Committee for Investi-
gation of Causes of Corruption in Subordinate Courts' in U.P. (1963), Report, pages 43-44,

(Draft at pages 227 to 230)-
7. See para 333, supra-
8. To be carried out under section 135(17)-

344. With reference to section 139A, the U.P. Committee' 59310" 139
has suggested that a new section containing the same pro- 'g'°mmmeg.;
vision as is contained in section 139A should be added as suggestion.
segtion 136A, and the existing section 139A should be dele-
te .

The reason given is that section 139A is not at its ap-
propriate place, and should come after section 136.

The changes which we are recommending" will remove
the misunderstanding caused at present.

345. No changes are needed in sections 140 to 142. Sections 140

to 147..
The question was raised in the course of discussion

before us whether, the jurisdiction of Civil courts to set
aside the order under section 133 et seq was ousted by rea-
son of the provisions of section 133(2) and section 140(3),
and (if so), whether the position was satisfactory. It ap-

pears, that such jurisdiction is not taken away, at least so
far as the final order is concerned?

As has been observed, the procedure of the Magistrate
is more or less summary, and "his decision goes so far as

to ﬁx upon the party who must go to the civil court to get
a civil dispute decided".'

Nor does claim for the appointment of a jury estop a
person from asserting his rights} No change is necessary
on this point. What section 140 means is, that if a Magis-
trate causes the act ordered to be performed, that order can-
not be questioned in the Civil court, and no suit can be
nfigintgained to prevent the Magistrate from carrying it into
e ect.

23146. In section 143, the following points require to be Section 143.1
note :--

(i) Presidency Magistrates especially empowered
should be added in section 143. Cﬁthe Bombay Amend-

ment. (There is also a suggestion of a S'tate Govern-
ment to that eiTect).7

(ii) Before "other Magistrate", the word "Execu-
tive" be added. C3'. the Bombay Amendment.

1. F. 3(2)/55--L.C. Part VII, S. No. 449, Suggestion of the U.P. Committee for Investi-
gation of Causes of Corruption in Subordinate Courts in U.P. (1963), Report, pages 43-44
(Draft at pages 227-230)-

2. See paragraph 343, supra.

3. Secretary of State v. Jethabhai, (1892), I.I..R. 17, Born. 293, 299. agreeing with
Chuni Lal, 1.L.R. 15 Ca]. 460, 467. 470 (KB).

4-. Dulichand v. Emp., I.L.R. 51 All. 1025 A.I.R. 1929 All. 833 (Dalal J.).
5. Mutty Ram v. Mohi Lall, (1880) I.L.R. 6 Cal. 291, 301 (Field J.).

6. Cf. Ram Narain, AIR. 1940 Oudh 75, 76.

7. F. No. 3(Z)I55-L.C. Part I, S. No. 18.

Section 143
and need for
previous
adjudication.

Section 143
and penalty
and
procedure.

Section 144
validity of.

Section 144
d

an
Members of
Parliament.

Section 144
and news-

paper.

347. With reference to section 143, it is the suggestion:
er sec»

of a High Court Judge' to clarify that an order un
tion 143 may be passed only in respect of a public nuisance

held to be so by a competent court. That is the legal posi---

tion under the case--law, as the order under section 143 can

be passed only if the matter has been adjudicated by a.

competent court?" But, in our opinion, it is unnecessary
to codify that proposition. .

348. It has been suggested5 that a penalty should be'

prescribed for disobedience of an order under section 143.

We think that the provisions of section 291, Indian.

Penal Code are eonugh."

It is also stated in the same suggestion, that in section
143 there should be a provision similar to that contained
in section 140(2)(3). The object of the suggested change is,

perhaps, to empower Magistrate to deal speedily with re---

petition of the nuisance, that is to say i.e. without under-

going the formalities of section 133. We would not, however,

like to go that length.

349. The question of the validity of section 144 general-

ly, was considered by us with reference to the discussion
in the Allahabad case of Raj Narain' and the Supreme-

Court's judgment in Babulalf The View taken by us was,.

that the section as a whole is valid. In any case, it is not
possible to split up the section without creating confusion.'-'

350. A suggestion" not to prosecute a Member of Parlia--
ment etc. for offences under section 188, Indian Penal Code-
for the violation of an order under section 144 of the Code»

of Criminal Procedure has been considered by us. But we-
are not inclined to recommend a general exception by

statute, on this point.

351. A suggestion" not to pass orders under section 144-

in respect of newspapers has been made, but the Ihatter
cannot be governed by a general and imperative provision.

It has also been suggested" that newspapers be ex1empt~
ed from orders under section 144 prohibiting the assembly
of ﬁve persons. This concerns the actual orders passed, and
does not need an amendment of the law.

. F. 3(2)/55-L.C. Part II, S. No. 33(8).

- Jogendra Lal v. Sheikh, A.l.R. 1935 (Cal. 108(2).

. Ram Sahai v. Uttama Debi, A.l.R. 1935 All. 79, 80.
- Jagdish v. Dhanushdhari, A.I.R. 1940 Pat. 305-

. As to section 291, see Q.E. v. Jokhu, I.L.R. 8 All. 99.
. Raj Narain v. District Magistrate, A.I.R. 1956 All. 481-

l
2
3
4
5. F. 3(2)/55-L.C. Part II. S]. No. 33(3).
6
7
8

- Babulal Parate v. State, A.I.R. 1961 S.C. 884.

. As to section 144(6), see paragraph 355, supra-

l0. F. 3(2)/55-LC. S. No. 15.
11. F. 3(2)/55-L.C. S. No. 7.
12. F. 3(2)I55-L.C. S. No. 7.

352. It has been suggested by a High Court Judge,' that Section 144
some parts of section 144 are unconstitutional. The point 1)-
has been already dealt with."

353. In section 144(1), before the word "other Magis- Section 144

trate". the word "Executive" may be added. (1) and
COInp€tCl'l.C_ ,
Magistrates.

354. The suggestion, made in the Report of the U.P. Section 144
Committee to investigate into causes of corruption in Sub- (3) and
ordinate Courts3 to add the words "or area" after the word 3';:"'§'"gre°f
"place" in section 144(3) was considered by us in detail. Sim, figlaig»
The case-law on the subject was examined, and the exami- and "fre-
nation revealed that there was a conﬂict not only on the quenting"-
question whether the word "place" covered an area--a mat-
ter referred to by the U.P. Committee--, but also on the
question whether the expression "frequenting" included the
act of residing.' We recommend that a clariﬁcation may be
made on both the points, and that the wider views should
be adopted by an amendment of section 144(3).

355. Regarding secion 144(6), the case-law as to its vali- Section 144
dity was considered in detail by us.' Our View is, that since (5)-
the State Government's power to extend the duration of the
order of the Magistrate is limited by the consideration
that the extension should be "in cases of danger to human
life, health or safety, or a likelihood of a riot or an affray",
it is a valid provision. It is not necessary to lay down any'
maximum duration--for example 6 months, in this respect.
But, in our opinion, it is necessary to give a right of repre-
sengatitm to the person affected, after the duration is ex-
ten ed.

356. Various suggestions' under section 144(6) are noted Section 144
below 1 ---- (§) Suszes:
tion:regard-
(a) Suggestions to increase the initial period to 3 or ing-
6 months were considered, but not accepted by us.

(b) A suggestion to empower the District Magis-
trate to extend the initial period, was considered, but
did not ﬁnd favour with us, as such a power would
turn out to be risky.

(c) A suggestion to give power to the State Gov-
ernment to revoke the order was considered; but we
felt that the present position, under which only the

1. F. 3(2)/55-L.C. Partll, No'. 33(a). v._ .- _ A _' W p
2. See discussion regarding validity of section 144, supra.

3. 1:. 3(2)/55-L.C. Pt. VII, s. No. 449, Report of the U.P. Committee, (1963), page 431.
and draft at page 230- _

4. For detailed discussion, see Appendix 9.
5. For detailed discussion, see Appendix 10. ~.

6. F. 27(3)/55-Judi. II (Home Ministry File). Appendix I, Items 23-24, and F. 3(2)/55¢
I..C. Part I, S. No. 69. ' ,

8--29 M of Law[68

District Magistrate could revoke the order, is proper.
Primarily, it is the District Magistrate who is respon-
sible for maintaining law and order in the district
under his charge, and the power should vest in him.

Section 145 357. The power under section 145(1) should be assigned
(1). to the following Executive Magistrates :--

(a) Presidency towns-

Chief Presidency Magistrates (Compare the Bombay
Amendment).

[It is unnecessary to empower other Presidency Magis-
trates.]

(b) Outside the Presidency towns etc. the power
may be given to-----

(i) District Magistrates (see existing section);

(ii) Sub-divisional Magistrates (see existing sec-
tion);

(iii) any other Executive Magistrate of the ﬁrst
class (compare the Punjab amendment);

Date of receipt of the police report etc. should be
mentioned in the order issued, under section 145(1).

s,c,i°,,145 358. Section 145(4), second proviso, creates a legal ﬁc-
(1):and date. tion by providing that if it appears to the Magistrate that
any party within two months next before the date of "such
order"--that is to say, the preliminary order under sub-
section (1)--has been forcibly and wrongfully dispossessed,

he may treat the party so dispossessed as if he had been in
possession from such date.

This proviso was introduced in 1898 by the Select Com-
mittee' for the following reasons :-

"As the law stands at present, the date of the order
under sub-section (1) of this clause is taken as the ori-
tical date for the purpose of determining actual posses-
sion. This appears to give an unfair advantage to a per-
son who has forcibly dispossessed another. But diﬁi-
culties arise when the test of actual possessioni at the
time of the institution of the proceedings is departed
from. We think that the proviso we have added .to sub-
section (4) goes as far as is possible to meet the' evil in
question without involving the Magistrate in an inquiry

into title or right to possession, which is the function
of a Civil Court."-'

1. Report of the Select Committee dated 16-Z-1898, Legislative Proceedings, April
1898, No. 24 to 128, Appendix A-50 (National Archives).

2. For the law before 1898, see Katras Jherriah Coal Co. v. Subkrishta Daw and Co.,
(1394) I.L.R. 22 Ca]. 297, 303.

3. For history of section 145, see the cases cite Athippa Gounder, A.I.R. 1967 Mad.
445 para 5(F)o

359. Now, a difficulty has arisen as to the computation
of the period of two months, i.e. as regards the starting
point for counting the period. The period of two months has
to be counted backward. But the question is, whether the
period is to be counted from the date of the actual passing
of the order by the Magistrate, or whether it can be count-
ed from the date of the receipt of the police report or other
information by the Magistrates. The need for an amend-
ment in this respect has been emphasised judicially.' What
may be described as the "narrower interpretation" has been
put in several decisions.'-3-'-5

On principle, however, the wider view should be pre-
ferred, because no litigant ought to suffer for the delay
that takes place in court.'

360. We made an attempt to ﬁnd out if the legislative
materials threw any light as to why the starting point was
so framed as it now stands.

The proviso was inserted in 1898 at the Committee
stage.' In the discussions on the 1898 Bill' and in the pro-
ceedings of the Council of the Governor General of India
dated 11th March, 1898, several. points (including the history
of the law and the provisions of Act 4 of 1840, section 2 of
which corresponded to section 145), were considered. But
this particular point was not adverted to at that time. There
is a long speech by Sir Henry Prinsep in the discussions
'(after the Select Committee Report of 1898), in the proceed-
ings of the Governor General-in-Council, objecting to the
proviso. But he also does not seem to have discussed this
aspect.

361. In his speech, the Law Member' thus explained
the object of inserting the proviso :-

"The Magistrate under this clause is not to decide
questions of title but is to conﬁrm existing actual
possession. But then when we came to consider the mat-
ter in Select Committee, this objection was pointed out
to us. The Magistrate will probably not be put in motion
and will not hear the case until the ordinary possession

1. Gangadhar v. Shyam Sunder, A.I.R. 1958 Orissa 150, 157-
2. Ganga Bux, A.l.R. 1959 All. 141 (F.B.).

3. Tolan v. Duben, A.I.R. 1951 Assam 161-

4- State v. Ram Jiwan, A.I.R. 1962 Bom- 8-

5. Kampati, A.I.R. 1961 Andhra Pradesh 208.

6. Cf. the reasoning in C. Narayam v. Kesappa, AJR. 1951 Mad. 500, overruled
recently in Athiappa Gounder, A.I.R. 1967 Mad. 445 07-3»)-

7- See paragraph 358, supra.

8. See, particularly,the Minute of dissent of Sir Henry Prinsep in the Select committee
Report dated 16-2-1898; Legislative proceedings (April 1898), No. 24 to 128, Appendix
A-50 (National Archives).

9. See the speech of Mr. Chalmers, Law Member, in Proceedings of the Governor
General»in-Council, dated 11th March, 1898, Legislative Proceedings April, 1898, Nos

4 to 128, A-60 (National Archives).

Section 145

(1)--sugges-

tion of a

High Court

Judge.

100

has been disturbed. When a man has been evicted that
is the time when he runs off to the Magistrate for pro-.
tection, and if the section remains as it was originally
drafted the Magistrate would be obliged to conﬁrm him
in possession. In Committee we saw the difficulties, of'
both views and we came to the conclusion that
facie the duty of the Magistrate was not to go into ques--.
tions of title, but to conﬁrm the party in possession. If,
however, it turned out that any part had been wrong-
fully and forcibly dispossessed, it was thought that the-
Magistrate "ought to take cognizance of such a case,
and give back the actual possession to the party who
had been so ousted, but it was thought undesirable that
the Magistrate should go into a long roving inquiry and
we, therefore, ﬁxed the period at which we might re-
place the party forcibly dispossessed in possession at;
two months."

The proviso was then adopted.

362. In view of the controversy' on the subject it is

desirable to make the law clear by substituting the start-
ting point as the date of the receipt Of the police informa-
tion etc. in section 145, sub-section (4), second proviso. In
consequence, to ensure that the date is recorded, the order-
under sub-section (1) should also record the date of receipt
of the information etc.

363. The anomaly caused by the present provision in

section 145(4), second proviso, is illustrated by the view ex-
pressed by a High Court Judge in his suggestion : 2

"Sometimes on account of a serious defect in the
preliminary order the High Court may quash all the.
proceedings and direct the Magistrate to issue a fresh
order under sub-section (1); in such a case not only the
provision would be rendered useless, but also it would
do injustice to a party. A party might have been put
in the possession of the 'property by the Magistrate on
passing of the ﬁnal order under sub-section (6), with
the result that he would be in possession on the date on
which the Magistrate passes a fresh order under sub-
section (1) in accordance with a remand order of a
High Court, and the beneﬁt of the proviso would be
lost.'' .

364. With reference to section 145(1), the suggestion" of

a High Court Judge raises three points, namely:-

(i) The section should be restricted to ,DiS.triCt
Magistrates and Sub-divisional Magistrates specially
selected.

(ii) the aﬂidavit procedure (inserted in 1955) should
be removed;

u>t\)>-'

. -See paragraph 359, supra.
. Suggestion in F. 3(2)/55-L.C. Part II, S. No. 33(2).
. F. 3(2)/55-L.C. Part II, S. No. 33(3).

101

_(iii) the mode of calculating the time limit under
section 145(4), second proviso, should be altered.

The third point is separately dealt with.'

As regards the ﬁrst point, our view is, that it is not
desirable to restrict section 145 to the speciﬁed Magistrates
as proposed. It may be, that the object of section 145 is
sometimes defeated by a resort thereto in cases not within
its intendment. From this point of view, the power should
be conﬁned to the higher Magistracy. Nevertheless, having
regard 'to the need to preserve the public peace--which is
the main justiﬁcation for section 145--we would not recom-
mend any change that would render its use in emergency
more difficult than at present.

As regards the second point, without further experience
of the provision regarding aﬁidavits (introduced in 1955),
we would not recommend a change.

365. Date and time of attendance should also be men-- sectio,.145
tioned in the order under section 145(1). (1) and date.

366. There appears to be a controversy" on the question Section 145
whether the omission to record grounds under section 145(1) (1) fmgi
vitiates the order. The matter, however, really pertains to °'"'5:d'°" '°
section 537. and he provision on the question can be con- '°°°

veniently made in section 145. grounds'
367. No chage is needed in section 145(2). Szection 1/45
( ).
368. The U.P. Committee' has made several sugges- Section 145
tions with reference to section 145 : - 532,5
1 X1 . .

(1) Evidence by putting in aﬁidavits in proceed- Committee,
ings under section 145 of the Code should be replaced
by the oral examination of witnesses and their being
cross-examined by the other.

(2) If, after an attachment has been made, the pro-
ceedings under section 145 are dropped, then, the court
should be empowered to restore the attached property
to the person from whose possession it was taken at
the time of attachment.

(3) The period of two months contemplated by the
second proviso to sub--section (4) of A ction 1450f the
Code should be reckoned back from t e date on which

1. See paragraphs 358 to 362, supra.
2. See case-law discussion in---- V
(i) Khudi Ram v. Jitendm Nath, A.I.R. 1952 Cal. 713. 715 to 717. '
(ii) Sri Ram v. State, A.I.R. 1958 Punj. 47-
(iii) KapoorChant1,I.L.R. 55 All. 301 ; A.I.R. 1933 A1_l.264 (1=.s.).

3. Some of the earlier cases are reviewed in Note "Criminal cases of1903", 8 C.W.N.
(Journal) 139, 154- '

4. F. 3(Z),'55-L.C. Part VII. S. No. 449, Suggestion of the UP. Committee for Investi-
gation of Causes of Corruption in Subordinate Courts in Uttar Pradesh (1963), Report,
pages 45 to 47, (Draft at pages 230-232).

102

Magistrate got the information about wrongful dis-
possession and apprehension of breach of peace, (and not
from the date on which the Magistrate passed the pre-
liminary order).

(4) A Magistrate exercising jurisdiction under sec-
tion 145 of the Code should have a discretion to take
the disputed property under his management, by ap-
pointing a Receiver.

Our views as to these suggestions are as folIows:-

Point (1)--No change is necessary, for the present,
as it is rather early to restore the pre-1955 position.

Points (2), (3), (4)---These points are covered by the
discuszion at other places in this Report,' relating to sec-
tion 1 5.

Section 145 369. It has been suggested' that sub--section (6) of sec-
(5) and tion 145 of the Code should be amended so as to confer a
punishment power on the Magistrate to punish a party who disobeys an
by order made thereunder.

Magistrate.
We regret that we do not ﬁnd this to be acceptable.
The very Magistrate who issued the order should not punish
the person violating it.
section 145 370. The following suggestion" has been made by a High
(1) and Court Judge :-
suggestion . _ .
to exclude "It should be specified in sections 145-147 that cases
priVa'5°_ should be started only on the report by the police re-
°°'"P1""""' garding breach of peace. Private complaints should be

excluded completely."

We have considered this suggestion in detail. Its ac-
ceptance would mean omission of the words "other infor-
mation" in section 145(1). At present, there is nolimitation
as to the source of information, on which the Magistrate
can act under section 145. The Magistrate may even act on
information gathered at a local inspection, if he records his
grounds" for acting.

We are not inclined to limit the section in the manner
suggested.'

Of course, prudence may require care before acting on

a private report.' But there should be no restriction so far '

as law is concerned.

1. See various points discussed under section 145.

2. F. 3(2)/55-L.C. Part VII, S. No. 449, Suggestion of the UP. Committee for Investi- '
gation of Causes of Corruption in Subordinate Courts in Uttar Pradesh (1963), Report
page 48, top, and draft at page 233. '

. F. No. F. 3(2)/55-LC. Part III, S. No. 49(3).

. Nityanand, v. Paresh Nath, (1905), I.L.R. 32 Cal. 771.

- Moher Kunbi v. Tilak Singh, A.I.R. 1934 Nag. 194, 195 (Vivian Bosc-]..

. See also discussion relating to section 107(1).)

See Obhoy v. Mohammad, I.L.R. 10 Cal. 78 and 11 C.W.N. (Journal) 223.

'.\lO\U|-Bi»

103

371: With reference to section 145(1), the following Section 145
suggestion' has been made by a Bar Council. gggzélgltion

"Provision should be made for service of aiﬁdavits £2' s°"'i°.°
and copies of documents on the opposite side, so that ° aﬂidama
if any counter affidavits are necessary or production of
further documents is essential, they may be permitted
to be ﬁled; the Magistrate will thereby have a com-
plete"picture of the case to enable him to give just deci-
sion.

The State Government concerned has opposed the sug-
gestion, as in its view, in the normal course, written state-
ments of the parties are enough, and there is no need for
counter aﬂidavits. We agree, in substance, with the State
Government's view. No change is therefore necessary.

372. The resolution of a Conference of lawyers? is as Section' 145

follows . __ and resolu-
' tion of

"This Conference reiterates its opinion that the Iégwlfn
party aﬁected by any affidavit presented to the Court " °'°"°°'
for consideration in a roceeding under section 145 of
the Code of Criminal lgrocedure should have the right
to subject the person swearing the aﬂidavit to cross-
examination, and in that view of the matter this Con-
ference recommends that two provisos be added to
sub-section (4) of section 145 of the Code of Criminal
Procedure.

"Provided that if the party adversely affected by an
aﬁidavit so desires the Court shall summon the person
swearing the affidavit for cross-examination", and

"Provided further that in case the person so sum-
moned fails to appear for cross-examination, the aﬁidavit
sworn by him shall be excluded from consideration".

This Conference further reiterates the opinion that
orders passed under section 145, 'Criminal Procedure Code
should be subject to appeal, and in that view of the matter
sub-section (ll) be added to section 145, Criminal Procedure
Code worded as follows:--

"An a peal shall lie against the order passed by the
Court u er this section which shall be heard and dis-
posed of in the same manner as is provided in this Act
for appeals from order of convic . -

We have considered the matter. We feel, that a right of
appeal, as suggested, would unnecessarily prolong the pro-
ceedings, and may defeat the object of the law, which is to
prevent an imminent breach of the peace. The inquiry into
possession is incidental to the proceedings, and should not be

1. F. No. F. 3(2)/55-L.C. Part III, S. No. 52. (pages 281-282. correspondence).
2. F. 3(2)I55-LC. Part VI. S. No. 271.

Proviso.

104

prolonged beyond reasonable limits. Nor do we think that an
absolute right to cross-examine is desirable, so far as pro-
ceedings under section 145 are concerned, so long as the
present scheme is maintained.

ge)ction 145 373. No change is needed in section 145-(3).

Section 145 374. In section 145(4), main paragraph and second pro-
(4)- viso, the date of receipt of the police report or other infor-
mation should be substittued.'

Section 145

375. In section 145(4), third proviso, it should be made
(4) Third

clear that the attachment can be ordered at any time after
the order under section 145(1) is passed.

Section 145 376. We have accepted the suggestion? of a High Court

(4A)(NeW)- Judge, to make some provision for looking after the pro-
perty attached under section 145 in emergencies. Necessary
amendment is recommended."

Ssectioctll 145 377. A High Court J udge' has suggested, that it may be
§egt:'r'ation_ provided that where the Magistrate stays further proceed-

ings under section 145(5), he should release the property
without restoring any one to possession over it. We are,
however, inclined to take a different view. We feel, that
in an appropriate case, the Magistrate should have the
power to restore possession. It is desirable to amend the
section,' so as to make a speciﬁc provision to that effect.

Section 145 378. The provision in section 145(5) that the order shall
(5)- be "ﬁnal", need not be disturbed.

Section 145 379. Where the proceedings are cancelled under section
Eli": from 145(5). the attachment should. in our view be withdrawn.
aftacf,ment_ An amendment to that effect is recommended."

Section 145

(M) (New). to 380. In section 145, a new sub-section (5A) is proposed,

provide for withdrawal of attachment.'

Section 145
(6) and
Penalty for
disobedience

381. The suggestion of a High Court Judge" makes the
point that section 188, Indian Penal Code is attracted to an
order under section 145(6). We are in agreement with the
view. That is the view of most High Court also.

The controversy on the subject is only within the

Allahabad High Court. A view was expressed by Melirotra
J. in one case' that an order under section 145(6) was not

1- Cf. discussion regarding section 145(1).

2. F. 3(2)/55-LC. Part II, S. No. 33(a).

3. See section l45(4A) (proposed).

'r. F. 3(2)/55-LC. Part II, S. No. 33(a). _

5. See section l45(5A), as proposed-

6. See under section 146(5A), infra.

7. See discussion under section l45(5),,supra.

s. F.3_(2)/55-I..C, pm 11, s. No. 33(a).V . - '
9. State v. Smt. Tugla, A.l.R. 1955 All. 423, 427, 428, para 24-

105

one which the Magistrate "promulgated" within the mean-
ing of section 188, Indian Penal Code. It was only a declara-
tory order, coupled with an order forbidding disturbance
-of possession and served upon the party concerned alone.
According to him, section 188 was conﬁned to orders pro-
mulgated to the whole public. The other Judge--Desai J.
did not agree with this view, and pointed out,' that an
interpretation (that it was not covered by section 188) would
emasculate section 145(6) completely.

On a difference of opinion between the two Judges, the
matter was referred" to Agarwala J. who held' that, qua
the parties to the litigation in the criminal court, the order,
having been passed in their presence. must be deemed to
have been duly "promulgated". He also pointed out, that
under Form No. 22 in the Fifth Schedule, an order under

- section 145 was intended for the public at large also. (On the

fact, however, he held that there was no such disobedience

. as was punishable under section 188).

382. An earlier decision3 of Desai J. had pointed out,
-that under section 188 of the Indian 'Penal Code, it is not
necessary that annoyance must be actually caused; infringe-
ment with a tendency to cause annoyance etc. is enough.'

383. The Assam High Court in a case"' decided that inter-
ference with an attachment under section 145(4), third pro-
viso, did not fall under section 188, Indian Penal Code, be-
cause the attachment did not forbid any person to do any
act. But it also observed, that under section 145(8) the
Magistrate was competent to pass such an order.

Other High Courts" have held that an order under
section 145(6) falls within section 188.

The Assam decision to the contrary' is under section
145(4)--(attachment).

384. The controversy being a limited one as above, we

do not consider an express provision to be necessary.

385. It has been suggested by two High Court Judges" Section 145

that the power of the court to restore possession to the party (f?)r:';El n't°'
who is deemed to be in possession under the ﬁction of two ;my'°p,§

-months' revious ossession should be rovided for. viousl in
9 Y

pc session.

1. Paragraph 12 in the A.l.R-
2. Paragraph 45 in the A.l.R.
3- Jaswant v. State, A.I.R. 1951 All. 828, 829, para 2.

4. As to section 188, Indian Penal Code in'this connection, see also Ejaz Ahmad v.
Maheshwar, A.I.R. 1953 All. 257, 259 (Misra &Beg _l]-)- '

5. Dibakar v. State, A.I.R. 1961 Assam 94, 95, paragraph 4.
6. Ambika Thahur v. Emperor, A,l.R. 1939Pat. 611, 618, right-hand.

7- Dulal Chandra v. Shea Kumar, A.I.R. 1948 Cal: 474, .482, para 19 (RB. Chakravarty
xC.]. and S.C. Lahiri ].). .

3. Am Khan V. State, A.I.R. 1960 Ass-am'1o9,'111, 7.
9. F. 3(2)/55.r.c. Part 11, s. No. 33(b).

Section 145
(6A) (New).

Section 145
(7) and (8).

106

386. This raises an important point, namely, whether the
Magistrate can simply "declare" who is entitled to posses--
sion, or whether he can pass an operative order restoring
possession. The answer seems to be clear in view of the
last portion of section 145(6). Case-law on the subject be---
fore the 1923 Amendment' is no longer good law. Pre-»
sumably, every case under the second proviso to section
145(4) would attract the jurisdiction to restore possession
under section 145(6). Of course, if the forcible and wrong-
ful possession has continued for more than two months, the
partysdispossessed cannot get the beneﬁt of the second pro--
VISO.

In fact, it has been held,' that the order of restoration
can be made even subsequent to the order of declaration.

We think, therefore, that no change in the language of'
the section is required, on this point.

387. A new provision for publication of the ﬁnal order
under section 145(6) in the same manner as the order under-
section 145(3), may be added.' Incidentally, this will have
the effect of emphasising that a prosecution under section
1881 In§li'an Penal Code, can be instituted if such order is:
vio ate .

388. No changes are needed in section 145(7) or in sec--~
tion 145(8).

389. With reference to section 145(9), there appears to-
be a conﬂict of decisions' on the question whether the ﬁrst
proviso to section 145(4) bars the powers of the Magistrate
to summon a person who has not put in an afﬁdavit.' An
amendment, to make it clear, that the ﬁrst provisoto sec-~
tion 145(4) does not aﬁect that power, is recommended.'

390. It is, of course, expected that the Magistratewill
exercise his power to summon a witness for examination
only when there was a satisfactory reason for not putting:
in the afﬁdavit of the person sought to be summoned.

1. Emp. v. Rameswar, (1904) I.L.R. 27 All. 300, 301-

2. Shri Ram v. The State, AJR. 1958 Pun. 47, 52, para 23.

3. Ram Naresh, A.I.R. 1949 All. 97, 98, para 5.

4- Khudiram v. Jitendra Nath, A.I.R. 1952 Cal. 713, 718,719,725 (paragraphs 22 to 24'-

27, 61 and 62

5. See section 145(6A), as proposed.

6. As to section 188, Indian Penal Code, see these cases---
(i) State v. Shreemai Tuglati, A.I.R. 1955 All. 423.
(ii) Emp. v. Zahirus Saved, A.I.R. 1934 Nag. 114-

(iii) Rasi
7. See-

Gounder v. Muthu Gounder, (1964), I.M.L-]- 440.

(i) Bhagwat Singh v. State, AIR. 1959 All. 763, para 3 (Desai ].).
(ii) Challamulhu v. Rajauel, A.I.R. 1964 Mad. 263, 265. para 7.

(iii) Jodh

Singh v. Bhagambar Dass, A.I.R. 1961 Punj. 187. 139. 190. para 3-

8. For previous law, see Tarapada, (1906) I.I..R. 32 Cal. 1093.
9. As to section 540, see Bahori v. Ghure, A.1.R. 1960 Raj. 15-

107

The matter is in the Magistrate's discretion. And, in
exercising that discretion he should certainly have regard
to the object of proceedings under section 145,--an object'
which has been lucidly dealt with by Rampini and Moker-
Jee J J . in Tarapadas' case as follows:---

"Section 145 was intended to provide a speedy
remedy for the prevention of breaches of the peace
arising out of disputes relating to immoveable property.
The code contemplates a determination of this question
without any reference to the merits of the respective
claims of the disputing parties to a right to possess the
subject of dispute. The question of possession, moreover,
has to be determined with reference to a speciﬁed point
of time, namely, the date of the initial order or, in the
case of forcible dispossession, a date within two months
next preceding such order. The Legislature could hardly
have contemplated an elaborate and protracted investi-
gation, the result of which might, in man instances,
be to defeat the very object in view, namely, an effec-
tive prevention of a breach of the peace. The whole
object might obviously be defeated, if the Court could
be compelled to summon and resummon witnesses at
the choice of the parties.".

391. No change is needed in section 145, sub-section (10). %e8)cion 145

392. We think that the amendments made in 1955 in Section 146.

section 146 (reference to a civil court), instead of shorten-
ing the proceedings, tend to lengthen them. Further, the
main object of proceedings under section 146 should be to
take steps for immediately preventing breach of the peace.
Once these steps are taken, proceedings under the Code
should come to an end.

Reference to a Civil Court, as a part of the proceedings
under the Code, is an anomalous procedure. The aggrieved
party can take proceedings -of his own in a civil court. But
a criminal court should not be required to make such a
reference. The position before 1955 should be restored, so
far as section 146 is concerned.

393. With reference to section 146, a lligh Court Judge' Section 146
has also expressed dissatisfaction with the existing posi- ;_iI;:h"6'Vu;f
tion. For the present, our recommendation" to restore the]ud'e_°
pre-1955 position is enough.

I. Tarapada v. Nurul Huq (1906) I.L.R. 32 Cal. 1093, 1099, 1100.
2. F. 3(2)/55-L.C. Part II, S. No. 33(3).
3. See discussion as to section 146.

108

Section 146 394 It has been Su . 1
d _ _ - ggested by the U.P. Committee, that
firgnsgfgéfp' section 146 of the Code of Criminal Procedure may be

Committee. amended so as to restore the position as it obtained before
the amendment of 1955.

We have already dealt with the matter.'

sec5ion_1f16 395._ With reference to section 146, we may refer to
and,1'eVl510niReSOWlLlt101'1, N0. 22_ passed at_ the Bihar Lawyer's Confer-
ence" (12-13-14 April, 1963), which is as follows :--

"This. Conference reiterates its opinion that review
and revision should lie against orders passed under sec-
tion 146. Criminal Procedure Code and in that View of
the matter this Conference recommends that the words

"nor shall any review or revision of any such ﬁnding
be allowed" be deleted."

[The words in question appear in section 146(1D)].

We are recommending reverting' to section 146 as it
stood before 1955. Hence, this suggestion need not be con-

sidered.
Section 147 396. Under section 147(1), the following points were
(1)- considered :-

(a) The power may be given to----- _

(1) Chief Presidency Magistrate (To be added).

(ii) District Magistrate and S.D.M. (as in exist-
ing section).

(iii) Executive Magistrates, first class. (Cf. the
Punjab Amendment).

(b) The order must mention the date of receipt of
police report etc., and that should be crucial date.'

(d) Affidavit procedure need not be inserted, under
this section. Necessary amendment is recommended.

-smi0,,147 397. With reference to section 147(1A), certain points

-(IA). arise' by reason of its wording, in relation to the power
to order interim attachment in cases to which section 147
applies. But no change appears to be practicable without
making the section extremely cumbersome.

1_ F, 3(2)'/55.L.C. Pan; VII, S. No. 449, Suggestion of the U.P. Committee for Investi»
gation of Causes of Corruption in Subordinate Courts in Uttar Pradesh, (1963), Report,

'page 43, draft Bill, pages 233-234.

ls!

. See discussion under section 146.

3. ;F. 3(2)/55-LC. Part VI, S. No. 271.

4. See recommendation regarding section 146.

5. Cf. discussion relating to section 145(1).

6. Cf. discussion relating to section 147(1).

7. Cf. suggestion of a High Courtjudge, F. No. 3(2)/55-LC. Part II. Sl. No. 4-5.

109

398. The conflict of decisions' as to the scope of the Section 147

words "prc_>hibiting an interference with the exercise 97'

of such right" in section 147(2) has been considered

by us. The history of the amendment made in 1923 (with
reference to the 1914 Bill and the Lowndes Report etc.) has

also been gone through. It is desirable that the position in

this respect should be clariﬁed, so as to empower the court

to order removal of an obstruction, in a proper case.

399. Section 147(2), proviso, should now mention the S°°'59" 157
date of receipt of the police report etc? 0)' P'°'"5°'

400. No change is needed in section 147(3). Section 141

(3).
401. A new provision, allowing the conversion of pro~ Section 147.
ceedings under section 147 into those under section 145 and A (New)-
vice verse, is required for the following reasons.

It might happen, that a party makes an application
under section 145, but it turns out in the proceedings that
what is in question is not a right to possession to a land
or water, but a right to its user--in which case the party
should have resorted to section 147 instead of section 145. The
converse situation may arise, where a party resorts to sec-
tion 147 in a case where section 145 was applicable. There,
has been a controversy"' Whether, in such situations, it is j
competent for the Magistrate to convert the proceedings,
brought under one of these sections into a proceeding under _
the other relevant section. It is desirable to empower the

Magistrate to proceed under the provision which is found to _
be really applicable. '

Necessary amendment is recommended."

402. In section 148, the words "Chief Presidency Magis- Section 143_
trate" be added. (Cf. the Bombay amendment).

403. It has been suggested' that in section 149 "breach Sections 149
of peace" should be added. We do not favour it. It may and 15°-

1. Contrast---
(i) Hem Chandra, A.I-R- 1942 Cal. 244 (F-B-)-
(ii) Shantilal, A.I.R. 1954 Bom. 368.
(iii) Ram Ishwar, A.I.R. 1965 Pat. 17-
with

(a) Abdul \Vahab, A.I.R. 1951 All-238 (F.B.).

(b) Angappa, A.I.R. 1959 Mad. 23.

2. See discussion relating to section 147(1).

. K. E. v.Abdullah, A.I.R. 1949 Nag» 275, para 4 (Reviews cases)-
. Turab Ali, A.I.R. 1933 Lab. 145. V
. Anath V. Wahid Ali, A.I.R. 1925 Cal. I022.

ection 14'/A (proposed)-

. F. 27(3)[55~]udl. II (Home Member), Appendix I, Item No. 25.

-.1o'u\-At»

Section 151

and seizure

of subject 0
dispute,

Section 151
and breach
of peace.

Section 152.

Section 153.

Section 154
and First

Information

Report by
accused.

110

prove t-0 be vague. Most of the offences affecting peace are
even now cognizable, and therefore fall under the general
power of arrest.'

No change is needed in section 150.

404. _Under section 151, a suggestion' has been made to
fallow seizure of the animate or inanimate matter which is
the subject-matter _of dispute, leading to a breach of peace.
But the suggestion has not found favour with us. The pro-
posed power may turn out to be Very wide and sometimes
embarrassing.

405. A suggestion" to add in section 151 a design to com-
mit a breach of peace has been made, but has not found
favour with us.'

406. No change is needed in section 152.

407. The power under section 153 may be allocated to
both kinds of Magistrates. Hence no change in the language
is necessary.

408. The following suggestion' has been made by a High
Court Judges:-----

"It may be provided that a ﬁrst information report
made by an accused is admissible in evidence.

"There are already conﬂicting decisions under this
section, and much valuable evidence is shut out, on
account of legal difficulties in admitting such report."

The suggestion has been made under section 162, but
seems to pertain to section 154.

409. We studied the case-law on the subject. Decisions
during the last few years show, that there is no conﬂict
or uncertainty so far as section 154 is concerned. The un-
certainty arises by reason of the difficulty of determining
whether a particular statement is a "confession" and there-
Eggs excluded by section 25 of the Indian Evidence Act,

We do not, therefore, recommend any change in section
154 in this respect.

1. Section 54-

2. F. 3(
3. F. 27

2)I55--I..C. Part I, S. No. 72.
(3)[55.]udl. II (Home Ministry File), Appendixl, Item No. 26.

4. Cf. discussion regarding section 149.
5. F. 3(2)I55-LC. Partlll, S. No. 49(a).

- stated'

111

410. With reference to sections 154 and 155, it has been 5°°"°';5 154
that a large number of complaints regarding the and 15 '
malpractices by police in recording the First Information
Report were brought to the notice of the U.P. Police Com-
mission, 1960-61, some of which are as under :--

(i) Non-recording of the First Information Report,
i.e. "concealment".

(ii) Distorting of facts with a View to lessening the
gravity of offence, i.e. "minimization".

(iii) Introduction of new facts and distortion of
facts, in order to create evidence against the accused or
for implicating innocent persons.

(iv) Demand of money or other consideration for
recording or prompt recording of report.

The Police Commission appointed by the Government of
U.P. recommended, that a new Reporting Centre under
the direct supervision of the Superintendent of Police should
be set up at district headquarters, in order to decrease
"concea1ment", or "minimisation" or other defects. The
iU.P. Police Commission felt, that these defects could be

reduced by the exercise of more intimate and closer super-
vision by Circle Oﬂicers.

The Superintendent of Police (it is stated) should per-
sonally see that complaints concerning the First Informa-
'tion Report are properly enquired into, and exemplary

punishment given to wrong doers. The First Information
Report should contain:---

(1) the name of the complainant;
(2) the nature of crime;

(3) approximate time of occurrence, and
(4) place of occurrence.

Immediately after the First Information Report has
been recorded, the Investigating Officer should interogate the
complainant with regard to the motive of crime, names of
witnesses etc. and the record of this information should
be entered in the Case Diary. This change would, (in the
'opinion of the U.P. Police Commission) ensure a more im-
partial and better type of investigation.

411. The Government of U.P., while forwarding these
recommendations, has suggested that the amendment of sec-
tions 154 and 155 of the Code may be considered on an All
India basis. The proposal of the State Government was

brought to the notice of the Law Commission, for its con-
sideration.

412. We have examined the proposed scheme, in the
light of existing provisions. It appears to us, that it is
possible to work the suggested scheme--at least the subs-
tance thereof--w.ithout amending section 154. The proposed

1. F. 3(2)/55-L.C. Part VII, S. No. 464, Suggestion of the Government of Uttar Pm.
h

CS-

112

"Reporting Centre" can be declared to be a "police -station"',',.
and the Superintendent in charge therebf could be declared.
the "officer in charge" thereof.

Section 155 413. In section 155(1), after the word "Magistrate", the
(1). words "having power to try such case etc." should be add-«
ed, as in the Punjab amendment.

414. In section 155(2), no changes regarding the Magis-

Section 155
(2). trates empowered are necessary.
Section 155 415. Under section 155, a question' has arisen occasional-

2E1'§'e'Lf')"""°" ly as to what should be the procedure followed by a police-
' officer when a. case involves not only a non-cognizable
offence but one or more of cognizable offences as well. Sub-
section (2) lays down an absolute prohibition against the
police ofﬁcer proceeding to investigate a non-cognizable
'case' without the order of a Magistrate. But the deﬁnition
of a 'non-cognizable case' in section 4(1)(a) is co-extensive'
with the deﬁnition of a 'non-cognizable offence'. Hence, the
problem remains, notwithstanding the deﬁnition, as to what
to do where the case is a composite one. It is somewhat
anomalous that where a police ofﬁcer starts investigation
into a cognizable offence without a Magistrate's order he
will have to run to the Magistrate for his order, in the
course of the same investigation, if another minor offence
which is not cognizable also appears to have been committed.

We, therefore, think that where the case is of this'
nature and involves also one cognizable offence, it should'
not be treated as a non-cognizable case for the pur--
pose of sub-section (2) of section 155.

While the Code was under our consideration, the posi-
tion in this respect was clariﬁed by a judgment of the
Supreme Court. The amendment which we are recommend-~
ingf will codify the law now settled by the Supreme-

Court?
Section 155 416. With reference to section 155, the following sug--
gggzgible gestion' has been made by the Government of 'UP. :---
°E°"°°5- "The Uttar Pradesh Police Commission 1960-61 in

para 138 of their Report inter alia suggested' that the-
State Government should have the power to declare
certain types of non-cognizable offences as cognizable,
when in any area the law and order situation exhibits
a tendency to deteriorate. The State Government has
accordingly suggested the amendment of section 155(2)
of the Code of Criminal Procedure, on the following

lines :--
1. Vadlamudi, v. State, A.l.R. 1961 A.P. 448; Ram v. State, A.l.R. 1958 Punj- 172-

2. Section 155, Explanation (as proposed)-
3. Pravin Chandra v. State, A.l.R. 1965 S.C. 1185.
4. F. 3(2)/55-LC. Part VII, S. No. 377.

113

"At the end of sub-section (2), the following
proviso shall be added, viz.---

"Provided that the State Government may
by notiﬁcation in the Gazette direct in relation
to any local area that any class of non-cogni-
zable cases may during such period as may be
speciﬁed in the notiﬁcation be investigated
without the order of a Magistrate.

As a consequential change, it was suggested that in
sub-section (3) of section 155, for the words "any police
oiﬁcer receiving such order" the words "any police oﬂicer
acting under sub-section (2)" should be substituted.

417. The relevant portion of the Report of the U.P.5°C'i°n155-

Police Commission (1960-1961), paragraph 138, is as fol-
lows :-

"We are of the opinion that the Station Officer is
vested with too much of discretion. There are also com-
plaints of abuse of the powers of the S-tation Officers
with a view to earning illegal gratiﬁcation. Besides,
of late goondaism and rioting has been on the increase.
The bullies beat up people, who do not carry out their
wishes. We have reason to believe that the law and
order position in some parts of the State, especially in
the country-side, has reached a perilous state. It has
been common experience that multiplication of minor
offences reduces respect for law and order and ultimate-
ly leads to bigger disturbances. He would, therefore,
recommend that whole the question of the discretion
vested in the Station Ofﬁcer should be carefully exa-
mined and that cases which are now not normally in-
vestigated, should be investigated. Thus, cases under
sections 324, 325, 341, 344, 357, 457, cases of theft unless
the value of property is less than Rs. 15/ - and of cheat-

ing unless it is a dispute of Civil nature, should be
investigated.

"A proposal was made by Shri Shanti Prasad, now
Inspector General of Police, that Government should
have the power to declane certain strgpe of non-.cogni-
zable offences as eognizable oﬁences, when m any case
the law and order situation exhibits 'a tendency to de-
teriorate. The Magistrates are already -empowered to
direct the police to take cognizance bf any particular
non-cognizable case. We ~1[h_i~nk that this power is not
enough, and there should be a general power with the
State Government to declare certain kinds of non-co_q-
nizable oﬁences as vcognizaible offences. We recommend
that this matter may be fully examined."

418. We examined the suggestion. We vfelt, that it would
be convienient to deal with the matter in a separate study,
where the scheme of the Code as to cognisable offences can
be examined.'

1. To be taken up for separate study.
9--Z9 Law/68

114
3°°'i°" 155 419. With reference to section 156, the power to order
investigation in non--cognizab1e cases will be with Judicial
Magistrates.' But, since section 156 is to be read with sec-

tion 155, no verbal change in section 156 is necessary on this
point.

53°°'i°§ 155 420. It has been stated by the Markapur Bar Associa-

glzgggsrion tion, Andhra Pradesh' that section 157(3) is ambiguous. The

as to parti- suggestion, further, says :--

Z'Eii2§'°1'°° "In cases where a particular police officer investi-
gates and refers to the case and thereupon a complaint
is (preferred to any Magistrate, such magistrate may
or er investigation by the same police officer; or if
a different police officer higher in rank is entrusted with
the investigation, he may direct the very' same police
oﬂicial to reinvestigate. Such instances having arisen,
it is proposed that sub-section (3) of section 156 be suit-
ably amended, to say---- .

"(3) Any Magistrate empowered under section
190 may order such investigation as above mention-
ed and may also order such investigation by such
other police oﬂicial, higher in rank."

Our view is, that since the suggestion refers to "com-
plaints", the proper section for the purpose is section» 202(1),
which is elastic enough" to empower the Magistrate to
specify a police oﬁ'icer of higher rank.

Section 157 421. In section 157, it is desirable to substitute, for the
words "police report", thewords "reportin writing made
by a police oﬁicer"' -

Section157 422. With reference to section 157, a suggestion nas
a"d,""f°S'i' been made for inserting a provisi-on regarding investigation
§f:;°2f':the, by a police oﬂicer in the area of other police stations.' We
police think, however, that the provisions of sections 160, 161 and

Stations 166 are adequate, and no further addition is required.

Section 158 423. It has been suggested' that a provision should be
(2) inserted in section 158(2) to the eﬁect that "instr1'1ctions"
under the section include instructions to investigate. No
such verbal change is necessary, as the language of section

158(2) is wide enough.
Section 159 424. No change is needed in section 159.

Section 160 425. In section 160, a provision for the payment of ex-
and expenses penses of witnesses ought, in our view, to be made. I

1. See discussion regarding 155.

2. F. 3(2)/55-L.C. PartIII, S. No. 50(0). (Page 218, correspondence).

3. To be noted under section 202.

4. Cf. discussion regarding section 4(l)--deﬂnition of"complaint".

5. F. 27(3)/55-]uId. II (Home Ministry File), Appendix I, Item No. 27.
6. F. 27(3)/55-Judl. II (Home Ministry File), Appendix I, Item No. 28.

115

On principle, it is diﬁicult to understand why witnesses
who are asked by the State to help the administration of
justice by attendance in a Court should be compensated
by cost,' while those who are obliged, under penal sanction,
to attend an investigation before the police for the same
purpose should be treated differently.

We recommend, that a suitable amendment be made in
this respect.

426. It has been suggested2 that the proviso regarding
women should be removed from section 160. We are un-
able to accept the suggestion, having regard to the fact
that the proviso contains a salutary provision.

We would, in this connection, refer to the observations
made by the Calcutta High Court" while reversing the dis-
missal of a complaint against certain police ofﬁcers to the
effect that they had mal-treated a number of women. "We
would wish to point out that it seems to us an unusual
course that the police should take a number of women away
from their village to the police station on the pretext that
they wished to examine them. It seems to us the examina-
tion might have been as well conducted at the women's
own houses as at the police station, and have at the same
time prevented the possibility of any such charges as have
been now preferred against the Police."

427. It has been stated,' that under section 160 a police
officer can require the attendance before himself of wit-
nesses acquainted with the circumstances of the case under
his investigation. The proviso to this section, however, states
that no male person under the age of 15 years or woman
shall be required to attend at any place other than the
place in which such male person or woman resides. The
investigating ofﬁcers in U.P., it is stated, were expressing
diﬁiculties, particularly in identiﬁcation proceedings. The
Inspector General of Police, Uttar Pradesh, appointed a De-
partmental -Committee to go into the whole matter. The
Com*mittee suggested to the U.P_ Government amendment
of section 160. The U.P. Government has, accordingly re-
commended, that the existing section 160 should be re-num-
bered as sub-section (1), and the following sub-section (2)
should be inserted in section 160.

"(2) Any police oﬂicer making arrinvestigation under
this Chapter may also, by order in writing, require the
attendance of any person before a Magistrate conducting
identiﬁcation proceeding of any property or person in con-
nection with the investigation of the case, on the date, time
and place mentioned in the order."

Section 160
and atten-
dance of
women

Section 160
and requir-
ing atten-
dance for
identiﬁcation

l. Section 544-
2. F. 3(2)/55--L.C. Pt. I, S. No. 17.

3. Haladhar v. Sub-Ins-pector of Police, (1904) 9. C.W.N- 199, 201 (Harington & Pargi-

-her 1].).

4. F. 3(2)/55-L.C. PartVII, S. No. 429, Suggestion ofthe Government of U.P. .

Section 160
and applica-
bility of s.
160 to the
accused

1 16
We have considered the suggestion.

We may state here, that the proviso to section 160 was
inserted in 1955. But, even under the section as it stood
before 1955, a witness could not .be forced by the police to
appear before a Magistrate.'

. The amendment of 1955 has not made any change in
this respect. Nor are we inclined to amend the section as
suggested.

428. With reference to section 160, it has been suggest-
ed' that in the marginal note, the word "person" be subs-
tituted for the word "witness". The suggestion really raises
a large question, namely, whether sections 160 -and 161
apply to the accused.

429. The question (whether sections 160 and 161 apply
to the accused) is an interesting one. Before answeriiig
it will be desirable to point out three meanings of the word
"accused", in this context. The word "accused" may mean-

(i) a person who is suspected, but not yet arrested;

(ii) a person who is suspected, and about whom the
police have reasonable gr ds to believe that he has
committed the oﬂence but w o is not _y.et arrested: and

(iii) a person who has been arrested.

430. It has been held by the Privy -Council," that section
162 applies to the accused. In the course of the discussion,
the Privy Council referred to "group of sections" beginning
with sections 160, 161.

But the question whether sections 160 and 161 apply to
the accused, was not directly in issue before the Privy
Council.

In a Nagpur case,' it was held, that section 161 applies
to a person who may subsequently become the accused, and
also that police officers were fully authorised to require the
personal attendance of the suspects during the investiga-
tion and that absence of an order under section 160 was an
irregularity, which would have justiﬁed the failure or re-
fusal of the suspects to obey the order, but which could
be waived by them. '

l. Emp. v. Neni Sheikh, I.I..R. 29 Cal. 483.
2. 3(2)/S5-I..C. Part I. S. No. 83 and F. 3(2)/55-I..C. Part II S. No. 34(d) (Suggestion
of a D.I.G. Police).
3. Narsinaswami v. Emperor.

4: line Dina Natl-ta, A.I.-R. 1940 Nag. 186, 189 (Niyogi ].).

11'?

431. There are, however, certain questions to be con-
sidered before assuming that section 160 applies to person
suspected but not arrested. Can they be described as persons
"acquainted with the circumstances of the case ?" The dis-
cussion in a Madras case' shows the difficulty of the subject-
matter, because, so far as accused persons are concerned,
the police can secure the presence of such person in other
ways?" It was also pointed out by Waller J .5 that the
language of section 161 seemed to be quite irreconcilable
with the idea that it could be concerned with accused per-
sons. Persons examined under section 1:61 were bound to
answer all questions other than questions which would ex-
pose them to a criminal charge. "How can all this refer to an
accused person ? He is already the subject of a criminal
charge, in respect of which the queaions would be put to
him." In fact, he pointed out, previousl the law went so
far as to require that the questions shou d be truly answer-
ed--which showed that section 161 did not apply to the
accused. While the actual decision in this Madras case has
(so far as section 1623 is concerned) lost its value after the
Privy Council decision,' the other points have not been
settled by the Privy Council'.

432. On the other hand, however, a narrow construction
of sections 160 and 161 leads to one practical difficulty,
as there is no other section under which the police can exa-
mine the accused.

433. The true position seems to be this------

(a) Section 160 cannot, obviously, cover the third
category, namely, the accused in custody, nor perhaps
a person in the second category, as he is about to be
arrested. But it can cover the ﬁrst category.

(b) As regards section 161, it is, in our view, to
be regarded as embracing all the three categories, (sub-
ject, of course, to the limitation regarding incriminating
questions). In a Bombay case,' it Was held that section
161 does not apply to the' accused. We regret that, with
great respect we are unable to agree with the view.

In view of the above position, itgis unnecessary to dis-
turb the language of sections 160-161 on this point.

1. Syamo Maha Patro v. Emp., A.I.R. 1932 Mad. 391, 393, 394', 398, 400. 402.

2. See the judgment of Reilly]. in Syamo? Malta; Patro, A.I.R. 1932 Mad. 391, 394
right-hand, and judgment of? Sundaram Chetty 1-. at page #00.

3. Sec (2.3. v. Saminada Chetti, (1883) I.L.R. 7 Mad. 274 (PB).

4. See also Emp. v. Ratan, (1902) 4 Bom. LR. 644 (Crown and Ashton ]].), agreeing
with Saminada Chem' I.L.R. 7 Mad. 274.

5. A.l.R. l932 Mad. 391, 403.
6. Narainaswami, A.I.R. 1939 P.C. 47.
7. Amrit v. State, A.l.R. 1960 Bom. 488 (Raju ].).

Section 161
and obliga-
tion to speak
the truth

Section 161
and points
in 14th
Report

118

_ 434. Our view is, that the words "acquainted with the
circumstances of the case" in sections 160 and 161 =1 ply
to suspected persons, though those words in section 17 do
not cover the accused, because in section 170 the accused
is separately mentioned. The View of Reilly, Sundaram
Chetty and Waller JJ. in the Madras case' were considered
by us. But, with great respect, We are not able to agree with
the observations in that case that section 160 does not armly
to the accused, since it excludes incriminating statements.
No change in language in the text of the sections is neces-
sary. Nor need the marginal notes be disturbed, as they
cannot control the section. '

435. We have considered the question whether the word
"truly" should be inserted in section 161. We are of the
opinion that it should not be added, in view of the history
of the section, and certain risks involved in it."

436. The connected point, namely, that a refusal to
answer questions under section 161 of the Code of Crimi-
nal Procedure is, as the law stands now not punishable in
View of the narrow language of section 179. Indian Renal
Code, is more important. We recommend that the relevant
sections of the Indian Penal Code," should be amended to
cover such refusal, as there can be no two opinions about
the need for penal sanctions for refusal to answer these
questions.

437. In an earlier Report,' several suggestions were made
regarding the manner of recording statements by the police
and also regarding the need for recording the statement of
every person whom the prosecution wishes to examine at
the trial. With certain modiﬁcations, we are giving effect
to them. Necessary amendment is recommended. The re-
commendations made earlier and the modifications which We
are suggesting, are detailed below.

(a) The ﬁrst suggestion was, that, instead of leaving
it to the discretion of the policeioﬁicer to record the state-
ment into writing, it should be made obligatory upon him
to record in writing the statement of every person who has
been examined by him, under section 161(1).

This recommendation is based on sound logic, inasmuch
as the purpose and utility of a statement before the police
oﬂicer have been changed after the amendment of 1955.
Prior to the amendment, the statement could be used for
the limited purpose of contradiction under section 162. But
now, it can (alongwith other materials) form the basis of a
charge,' and the accused, is as of right, entitled to a copy

1. A.I.R. 1932 Med. 391.

2. For detailed discussion, see Appendix 11.

3. To be considered when the Indian Panel Code is revised.
4. 14th Report, Vol. 2, pages 752 to 755, paras. 45 to 47.
5. Sections 207A(7).

119

of the statement made before a police oﬂicer.' The latter
ob3ect would be rendered nugatory if the police does not
record. the statement at all. It is, therefore, absolutely
essential in the interest of justice, that changes should be
made making it obligatory for the officer to reduce into
writing every statement made before him under section 161.

. _ (b) The next recommendation was, that "the law should
insist that the investigating ofﬁcer should record the state-
ment of the witnesses as far as possible in their own words".
There is no doubt that the recording of the mere substance

of a_ statement by a police oﬂicer may be useless or mis-
leading.

We would, therefore, implement this recommendation.

(c) The next recommendation in the earlier Report,
however, raises a highly controversial issue. It was stated,
that the statement so recorded should be signed by the
witness, where the witness is literate and can himself read
out the recorded statements. The case of illiterate persons
was left untouched, because the Commission felt helpless
regarding them. But the question goes to the root of the
matter. What are we going to do with the signed statement,
and what strength does it add to the recorded statement '?

It is patent, that with all the changes referred to, a
statement before the police oﬂicer is not yet admissible as
substantive evidence, and no court could ever sustain a
conviction based on the statement before the police as a
previous deposition record before a Court of law. Nor can
it be overlooked, that the statement is recorded before a
police officer, in whom the law has not so far placed the
same conﬁdence as in a judicial officer.

The signature of the witness can, in these circums-
tances, add very little to the strength of the statement
recorded by the police ofﬁcer. It is true, that the statement
can be used for contradicting the evidence in court of the
witness. to the extent permitted by section 162. But, then,
it can reasonably be envisaged that in every case where_ a
witness is confronted with the statement before the police
ofﬁcer by showing him the signature to it he_would in-
variably take the plea that his signature was given under
duress or without reading what was recorded. It is not a
statement made on oath. The strength given by the signa-
ture of the witness below such a statement would be very
little.

It has been said, that a literate person can read the
signed statement himself, and see whether it is correct,
whereas an illiterate person cannot read his statement and
could be duped by the police ofﬁcer. But' there is no
assurance that the literate persons will not be threatened
by him. If a witness challenges a police officer that the

1. Section 7173(4)-

120

statement which has been. recorded is not correct according
to h1S version, he cannot urge that an amendment should
be made, by ﬁling an affidavit.

Upon a reconsideration. of the question, thus, we are
unable to accept this recommendation of the 14th Report.
Our reasons in this respect may be brieﬂy re-stated-

(i) the calibre of persons who are in the Police has
not improved, and mal-practices in police investigation
still continue to exist;

(ii) the requirement that witnesses making state-
ments before the police should sign the statements, will
not serve any useful purpose;

(iii) such requirementtmay even deter the witnesses
from making such statement.

438. The recommendation in the 14th Report' regarding

Sims admitting in evidence confessions made by the accused to
senior police officers concerns the Evidence Act. and involves
no change in the Code of Criminal Procedure.

Section 1_6l 439. With reference to section 161, it has been suggested
gggicgggglns that tor sub-section (3), the following shall be substituted,
name y :--

"(3) The police officer shall reduce into writing any
statement made to him in the course of an examina-
tion under this section and he shall make a separate
record of the statement, of each such person whose
statement he records and shall forthwith send the
copies of the statements so recorded to the Magistrate
having jurisdiction to enquire into the case."

The suggestion is contained in an Amendment Bill
which was introduced in the Rajya Sabha."

440. The amendments proposed in the Bill were
considered by us in detail." The proposed amendment seeks
to put in section 161(3) three pxiopositions~

(a) Every statement made to the police in the course
of an examination under this section shall be reduced
into writing;

(b) Separate record shall be made of the statement
of each such person whose statement is recorded;

(c) The police ofﬁcer shall forthwith send copies of
the statements so recorded to the Magistrate having
jurisdiction to inquire into the case.

1. 14th Report, Vol. 2, page 749, para'. 39-

2. F. 3(2)/55.L.C. Pt. VII, S. No. 407 (Shri K. V. Raghunafh Reddy's Amendment
Bill, 1963) (Rajya Sabha Bill 11 of 1963).

3-. On an assurance being given by the Government. that the matter would be referred
to the Law Commission, the Bill had been withdrawn. See Rajya Sabha Debates, Seplzmber,
1965, columns 207 to 211.

121

The ﬁrst proposition would be covered by the amend-
ment of section 161 which we have recommended.' The
second proposition re-states the existing law, in substance.

The third proposition evolced lengthy discussion before
us. The main object of the amendment' proposed on this
point" appears to have been to prevent tampering by the
investigating ofﬁcer, particularly in respect of those criminal
cases where factions are arrayed on either side. Various
points were raised in the course of the discussion before us
on this suggestion. First, it was urged that the Magistrate
to whom the copies of statements are to be sent would
not have the time and machinery to preserve, arrange and
index them. Secondly, a doubt was raised whether tamper-
ing was prevalent on a noticeable scale, and also, whether
tampering would give any advantage to the police, as the
statement cannot be used by the prosecution (-except to the
very limited extent provided for in section 162 as amended
in 1955).

As against these points, it was noted that in cases of
factions, one group may have the desire to get the state-
ments altered to its advantage, so as to face the witnesses
of the opposite group with contradictions. It was also
considered, that the difficulties of preserving and indexing
may not be serious, as even now occurrence reports" are
sent to the Magistrate empowered to take cognizance." In
the course of our discussion, we were also asked to consider
whether the proposed provision, (if at all it is to be insert-
ed), should not be limited to offences ffecting the human
body, and offences of rioting, and the l'?ke--these being the
usual cases where the aspect of "factions" was most pro-
minent. We were not, however, inclined to limit i-t like that.
We found the amendment to be desirable and practicable.
We recommend, that the proposed amendment may be
accepted. The copies of the statements should be sent
through. the sperior police officer' ('if any)-, appointed under
section 158.

441. The following suggestion" has been made by the Section 161
Bar Council, Madras with reference to statements recorded and 5°"d'"8

- of copies to
under section 161---- Magistmes_

"In view of the 1955 amendments to section 162
whereunder these statements rank on par with evidence, Ba.» councu
there is likely to be a tendency for the police to delay
the recording of such statements till a complete picture
emerges out, or to ante--dafe the statements so as to
avoid any criticism that they were recorded in a belated'
manner. Moreover, if the high status given to these
statements is to be maintained, it is suggested, that

1. Recommendation as to section 161.

2. See Rajya Sabha Debates, 3rd September, 1965,, Columns 172-173, speech of Shri
K. V. Raghunatha Reddy, mover of the Amendment Bill.

3. See section 157(1).
4. Compare section 173(2).
5. F. 3(2)/55-LC. Pt. III, S. No. 52.

Section 161
and identifi--
cation
parades

Section 161

122

copies of such statements should be forwarded to the
Magistrate ha_ving jurisdiction. within 24 to 48 hours
of the recording thereof. This procedure ensures the

reliability to the statements as well as their fullness
and accuracy".

We have considered the suggestion carefully. We have
already recommended' some changes as to sending of copies,
and we think that those changes would be enough.

442. With reference to section 161, the following

suggestion" has been made by the Inspector General of
Police, Madras:- 1

"At present there is no provision in the Investiga-
tion Chapter for holding identiﬁcation parades. It is
better to have some speciﬁc provisions regarding the
holding -of such parades during investigation.".

We think that the existing law is adequate. As the
holding of identiﬁcation parades is a matter of daily occur-
rence, we tried to study some aspects of the matter, and we
record below some of the broad propositions which can be
gathered from the case-law.

443. When identiﬁcation parades are held before
Magistrates, they record the statements under section 164.
Whether section 164 applies to them was a matter left open
by the Supreme Court.'

As the matter stands now,'-'-'

we do not regard any
provision as necessary.

The relevancy of evidence about such identiﬁcations is.
of course, outside the scope of the Code. "An identiﬁcation
parade belongs to the stage of investigation by the police.
The question whether a witness has or has not identiﬁed
the accused during investigation is not one which is in
itself relevant after trial.' It is governed by various
decisions'' under section 9 of the Indian Evidence Act, 1872.

444. There are rules and instructions on the subject.'
In theory, the police can also hold identiﬁcation parades.
But since that would attract section 162, they have to be
held before Magistrate.

It is unnecessary to consider whether section 80,
Evidence Act, applies to such statements."

|--I

O\OQ)-\lO\UI-Ak»\|\""

. See discussion under section 161 and sending of copies.

. No. F. 3(2)/55-L.C. Pt. 111, S. No. 52.

. State v. Shingara Singh, A.I.R. 1964 S.C. 358, 363, para. 16.

. Samiuddin v. Emp. A.I.R. 1928 Cal. 500, 502.

. Peare Lal v. State, A.I.R. 1961 Cal. 531 (Article 20, considered)-
. In re Kamraj, A.I.R. 1960 Mad. 125, 129-130 (Somasundaram and Ramaswami H.)-
. In re Sangiah, A.I.R. 1948 Mad. 113, para. 4 (R8jm3ﬂI1aTJ-)-

. Ashariﬁ, I.L.R. (1960) 2 All. 488; A.I.R. 1961 All. 153 (Reviews case-law).
. SeeAsharf'_y v. State, A.I.R. 1961 All. 153, 159, Para. 2.

. Cf: Shea Raj, A.I.R. 1964 All. 290.

123

445. As to the law in England, the discussion by Lord
Denning in a recent case' relating to false imprisonment
may be quoted :-

"When a constable has taken into custody a person
reasonably suspected of felony, he can do what is reason-
able to investigate the matter, and to see whether the
suspicions are supported or not by further evidence.
He can, for instance, take the person suspected to the
place where he says he was working, for there he may
ﬁnd persons to conﬁrm or refute his alibi. The constable
can_put him up on an identiﬁcation parade to see if he
1S picked out by the witnesses. So long as such measures
are taken reasonably, they are an important adjunct to
the administration of justice. By which I mean, of
course, justice not only to the man himself but also to
the commmunity at large. The measures must, how-
ever, be reasonable."

446. The Supreme Court had, in one case," occasion to Swion 151

deal with the admissibility of statements made by persons Q? Judges
in custody with reference to section 27 of the Evidence Act. u es'
In the judgment of Mr. Justice Hidayatullah, in that case,
attention has been drawn to the following recommendation
of the Royal Commission on Police Powers and
Procedure" :--

"(48). A rigid instruction should be issued t-o the
police that no questioning of a prisoner or a person in
custody about any crime or offence with which he is
or may be charged, should be permitted. This does not
exclude questions to remove elementary and obvious
ambiguities in voluntary statements under N0. 7 of the
Judges Rules, but the prohibition should cover all per-
sons who, although not in custody, have been charged
and are out on bail while awaiting trial. "

Mr. Justice Hidayatullah also observed, that this was
a matter for the legislature to consider.

447. It may be noted that in England the Revised
Judges' Rules framed in 1964 contain elaborate provisions
as to questioning by police. Rules I and III (a) and (b) of
these rules are quoted below :-

"I. When a police oﬂicer is trying to discover whe-
ther, or by whom, an offence has een commmitted.
he is entitled to question any person, whether suspected
or not, from whom he thinks that useful information
may be obtained. This is so whether or not the person
in question has been taken into custody so long as he
has not been charged with the offence or informed that
he may be prosecuted for it."

1. Dallison v. Caffery, (1965) 1 K.B. 348; (1964) 3 W.L.R. 385; (1964) 2 All. ER. 610
(C.A.).

2,. State of U.P. v. Deoman Upadhya (1961) 1 S.C.R. 4062, 4063; A.I.R. 1960 S.C. 1125.
1147, para. 73.

3. Royal Commission on Police powers and procedure, (1928-29), Cmd. 3297.
4. See (1964) 1 Weekly Law Reports, 152, under "Practice Note".

124

"III. (a-) Where a person is charged with or informed
thathe may be prosecuted for an offence he shall be
cautioned in the following terms 2--

_"Do' you wish to say anything? You are not
obliged to say anythin unless you wish to do so but
whatever you say wil be taken down in writing
and may be given in evidence."

"(b) It is onl in exceptional cases that questions
relating to the ence should be put to the a cused
person after he has been' charged or informed t at he
may be prosecuted; Suchquestions may be put where
they are necessary for the purpose of preventing or
minimising lia'rm'~ or loss to some other person or to the
public or for clearing up an ambiguity in a previous
answer or statement.

"Before any such questions are put. the accused
should be cautioned in these terms :--

"I wish to put some questions to you about the
offence with which you have been charged (-or about
the offence for which you may be prosecuted). You
are not obliged to answer any of these questions
and answers will be taken down in writing and
may be given in evidence."

"Any questions put and answers given relating to
the offence must be contem raneously recorded in full
and the record signed by at person or if he refuses
by interrogating officer".

448. We have considered the question whether any
provision in the Code on the subject should be inserted.
We also studied the Revised Judges Rules (1964), and the
extensive' literature thereon. We come to the conclusion that
it may not be convenient to make these elaborate provisions
in our Code. We also found that even in En land,. there
is controversy as to the working and object o the Judges
Rules, and also as to the precise object sought to be achieved
by these Rules.' Further, in India. the answers of the
accused to the questions put by the police are not admissible
in evidence except to the limited extent provided for by
section 162. Hence the absence' of statutory provisions as to
warning would not harm the' accused at the stage of trial.

1. Literature on the subject is abundant. Byuwayi of examples, the following may be
re ferred to---

(a) Hoifman, "The Judges Rules", (1964), Lawyer 23, 25.
(b) Cowen and Carter, "Essays on Evidence" (1956), page 46.
'(c) Lord Porter, "English Practice and Proced (1949) 2 Current Legal Problems 13, 23.

(d) Proceeding of the Commonwealth Law Conference (1965), Topic 2, Papers by
' Norman Skelhorn and Professor K. O. Shitwel.

125

449. In section 162(1), the words "if reduced into Section 152
writing" have to be omitted, as it is now proposed,' that the (1)'
statement of every witness who is examined by the police
shall be reduced to writing.

450. The question whether the prosecution should be 5*'-°'i°" 152
allowed to cross-examine a defence witness by bringing out iﬁfmgggffon
contradictions with his statement recorded in police investi- by .1,ep,ose_
gation, has been discussed before us at length, in view of cution of
the suggestion to that effect made by a State Government? d'?f°n°°
The history and object of section 162, and the case-law on '"'"'°ss'
the subject, were gone into by us.' '

The suggestion is, that in section 162(1), in the proviso.
for the portion beginning with, the words "Provided that"
and ending with the words "by the prosecution", the follow-
ing be substituted :-

"Provided that, when any person is examined as a
witness in such inquiry or trial whose statement has
been reduced in writing as aforesaid, any part of his

statement, if duly proved, may be used by the accused
or the prosecution.'

It has been suggested' -that section 162. of the Code be
amended so as to put on par the accused and the prosecu-
tion in the matter of contradiction or cross-examination of
the witness on the basis of the statement made by before
the police. At present, the accused can do so whereas the
prosecution has to obtain the permission of the court before
acting accordingly. A copy of -the Bill forwarded by the
State Government (for the administrative approval of the
Government of India before its introduction in the State

Legislature) was sent to the Law Commission for considera-
tion.

The following proviso to sub-section (1) of section 162
has been suggested' in the Bill :-

"Provided that, when any person is examined as a
witness in such enquiry or trial whose statement has
been reduced in writing as aforesaid, any part of his
statement, if duly proved, may be used by the accused
or the prosecution."

The Statement of Objects and Reasons to the Bill is
as follows :-

"In view of sub-section (1) of section 162 of the
Code of Criminal Procedure, 1898, no statement made
by a person to a police officer in the course of an in-
vestigation under Chapter 14 and reduced in writing

1. See section 161, as proposed to be amended.

2. F. 3(2)/55-L.C. Part VII, S. No. 459.

3. For detailed discussion, see Appendix 12.

4. F. 3(2)/55-L.C. Pt. VII, S. No. 459 (Suggestion of a State Governmenc.).

Section 162
and sugges-
tion to :
substitute
"cross-exa:
mination"

for ' 'contra-

diction" ,

126

can be used at any inquiry or trial in respect of the
offence under investigation. But, under the proviso, if
such person IS called as witness for the prosecution the
accused has been given a right to use such person's
statement to contradict him, but the prosecution can
use it for similar purpose only with the permission of
the Court, which is generally given when the witness
turns hostile. However, if the same person is examined
as a defence witness, the statement cannot be used at
all. When such persons come as defence witnesses,
diﬁiculty is experienced by the prosecution, particularly
in identiﬁcation parade cases.

"As there are other safeguards, it is proposed to
allow the use of a police statement to- contradict a wit-
ness even when he is called by the defence. The High
Court, which was consulted, is in favour of such amend-
ment."

We have considered the matter separately.'

451. We are opposed to any such change, as it would
practically take away the sub-stratum of section 162, which
is based on the principle that these statements ought not
to be admissible. That only the accused should have the
right to use these statements, is a special and exceptional
provision, which should not be extended.

452. It has been suggested' in one Bill, that in section
162 of the principal Act, in the proviso to sub-section (1),
after the words "may be used by the accused", the Words
"to cross-examine such a witness" shall be inserted.

This suggestion seeks to widen the scope from "con-
tradiction" (which is at present mentioned) to "cross-
examination" (which is wider). The main object of the
amendment is to cover omissions."

We considered the matter at length. In our view, no
such change is necessary.

The discussion in Tahsildar Singh's case' 5 itself shows,
that it is not possible to boil down the question (how far
"omissions" are contradictions) to a short and neat formula.
Nor do we consider it necessary to make the scope of the
section wider than has been interpreted by the Supreme
Court in that case.

1. See discussion relating to section 162.

2. 1:. 3(2)/55.L.c. Pt. VII, s. No. 407 (Shri K. V. Raghunath Reddy's Amendment

Bill) (Rajya Sabha Bill 11 of 1963).

3. See Rajya Sabha Debates, 3rd September, 1965, cols. 207-2.11 (Speech of Shri K. V.
Raghunatha Reddy).

4. Tahsildar Singh, (1959) Suppl. 2 S.C.R. 875; 1959 S.C. 1012.
5. See also Dahybhai, A.I.R. 1964 SC. 1563, 1569-

127

453. With reference to section 162, the following sugges- Section 162
tion' has been made by th

e Public Prosecutor, West Goda-- (1)dpé°"is°'
vari, Andhra Pradesh. an

Ollft
witnesses.
"In the proviso to sub-section (1) of section 162,
for the Words "called for the prosecution", the words
"examined in the Court" should be substituted."

The reason given in support of the suggestion is this:
A witness becomes hostile to the prosecution. If the prose-
cution gives up the witness and if he is examined as a
Court witness, his statement cannot be put to him and con-
tradicted. This amendment is intended to remove the

anomaly. (The suggestion also says, that the decision of the
Andhra Pradesh High Court may be seen).

We have examined the suggestion.

The Andhra Pradesh decision is noted below? The mat-
ter was discussed in recent Bombay case," where also the
same View was expressed, namely, that a court witness
cannot be cross-examined under section 162(1), proviso. We
do not, however see any need for extending the proviso as
suggested. The suggested draft, moreover, goes much
beyond the object in view, as it would cover defence wit-
nesses also.

No change is, in our opinion, necessary.

454. With reference to the proviso to section 162(1), we Section _162
have carefully considered the suggestion' of a High Court (1) P1"0V15,°
Judge to clarify the question whether the expression ';':fn:'"'""5'
"contradiction" includes omissions. The answer to the '
question, we believe, depends on facts. It appears to us that
it is not possible to lay down a rule one Way or the other.

455. An 'omission" can be regarded as a contradiction
only where the omission, by necessary implication, can be
deemed to be a part of the statement. The matter is dis-
cussed at length in a Supreme Court Judgement,' which,
while laying down the law to that effect, made it clear that

the examples which it gave were not intended to be
exhaustive.

456. A High Court" has suggested the addition of a Section 162
second proviso to section 162(1) as follows :-- gl)g;';'s'%ions
"Provided further that when it is necessary for a'°r§:;':'c';3of
police oﬁicer to examine an accused person during the §°unse1_
course of investigation and he is oceeding to do so,
he shall inform the accused that ifptrhe accused desires,
the examination will be conducted and any record made
in the presence of the advocate of the accused; he shall

. F. 3(2)/55-I..C. Pt. III, S. No. 50(v).

. In re Kotti Reddy, A.I.R. 1960 A.P. 76.

. State v. Bhanuprasad, A.I.R. 1966 Born. 378, 379, para. 8 (October issue).

. F. 3(2)/55-L.C. Part II, S. No. 33(a).

. Tahsildar Singh v. State of U.P., A.I.R. 1959, S.C. 1012, 1026. __
. F. 3(1)/55-L.C. Pt. III, S. No. 52 (Page 301, Corresponding). ' .

g\U1.p.Lnl~Ju---

128

be further bound to afford ;a reasonable opportunity to
the accused to send for his advocate and to have his
presence."

The reasons given by the High Court for the proposed
provision are stated below-

(1) The above provision will put an end to the
abuses connected with section 27 of the élndian Evidence
Act, and to the unlawful detention of the accused person
111 police custody. In England, such reasonable oppor-
tunity is given. "There is no reason why in India the
members of the Bar should be credited with a double
dose of the original sin and their presence be considered
as polluting the investigation or hampering the investi-
gation."

(2) Many of the criticisms that have become the
staple food of the Bar, will disappear. The accused
persons will be able to set up proper defence, which if,
investigated, might exculpa-te them. The investigation
will become purer. and public cooperation will be in-
creasing.

457. A somewhat similar suggestion' has been made by
a Bar Council. The suggestion has been made under ction
167, but really pertains to section 162. The Bar Council has
suggested, that section 167 -should contain a provision
enalzéltijng the accused to have legal aid when he is in police
cust y.

Comments of the State Government concerned. (on this
suggestion) are as follows :----,

"In view of the pspegiﬁc provision in article 22(1)
of the Constitution, it may not 'be in order to make
speciﬁc provision refusing lawyers -to appear on behalf of
arrested persons. There is, however, no need either -to
speciﬁcally provide in the Code that the accused should
be entitled to legal aid while in police custod-y,_ as
even otherwise such legal ﬁld cannot be shut out H1 view
of the speciﬁc -provision -ingarticsle 22(1)".

458. We considered carefully the above suggestion. and
the comment of the State Goyemment -thereon.
The following points wereurged 'before us---

(a) Article 22(1) of the Constitution, no doubt,
provides for the situation, in substance, but it appears
desirable to put the matter emphatically in the Code.
The proposed provision, if inserted, will supplement
section 340 of the Code, which applies to a person
accused of an oﬁence before a criminal court;

--(--b.) Relevant .portion .of Article 22(1) is as
follows :--

"No person who is arrested, shall be denied
the right to consult a legal -practitioner of his choice
and to be defended by a legal practitioner of his choice".

1. P. 3(2)I55-L.C. Pt. III, S. No. 52 (page 284, correspondence portion).

129

It was urged before us, that the right to consult a legal
practitioner would be ineffective if consultation is not
available when the most important steps in investigation
are being taken. It was stated, that the very fact that the
Constitution gives the person arrested a right to legal advice
before the trial and as soon as he is arrested, implies, or
at least renders it desirable, that the assistance of counsel
must be available at the stage in question.

We are, however, in doubt if article 22 necessitates such
a change. It is also our view, that it is against the principle
of investigation to bring in counsel at this stage. We do not.
therefore, recommended any change in this respect.

459. Various other suggestions' " to amend section 162 Section 162
were considered by us, but have not been found acceptable Vm'°uS
to us. It is unwise to make these statements corroborative ;'"'°:sti no
or contradictory evidence as has been suggested. If (as is "gg ° °'
stated) cases fail because of witnesses retracting from their
statement under section 162, that is nojground for changing
a very salutary provision.

460. Regarding section 163(2), the case-law reveals' a Section 163
discrepancy between section 163(2) and section 164. It (3%
should, therefore, be made clear that section 163(2) is subject
to the provisions of section 164(3).

461. The power to record statements as vvell as Section 264
confession under section 164(1) should in our opinion be (1)-
gwen to Judicial Magistrates only.

In Punjab? the power is vested exclusively in Judicial
Magistrates. So also in Madras." In 'Bombay' (and in the
Bengal Bill),' the power is concurrent.

462. In our view, the act of recording a confession
under this section is a solemn act with high responsibility,
and it cannot be vested in an Executive Magistrate without
prejudice to the principle of separation enjoined by Article
50 of the Constitution. A confession is a weighty piece of
evidence, and its utility depends very much upon the
question whether adequate safeguards to ensure that the
confession was voluntary and properly recorded had been
taken at the time when the confession was recorded. All
this may be expected only from person; Who haV€ 30$ n0t
only the experience but also the frame of mind of a Judge.

. P. 27(3)/55--Jud1. II (Home Ministry' File), Appendix I, Item No. 31.
. F. 27(5)/54-Judi. (Home Ministry File), Appendix II, Item No. 16.
. F. 3(2)j55»I..C. Part I, s. Nos. 26,34. and 13.

. For detailed discussion, see Appendix '13.

i Section l6-1. as amended by the Punjab Amendment.

. Government of Madras, G.O.Ms. No. 2304 dated the 24th September, 1952, para
graph 21(3) and Schedule item 25-

7. Section [64, as amended by the Bombay Amendment-

8. First Schedule to the Code, as inserted by the West Bengal Separation of Judicial
and Executive Functions Bill, 1967 (August. 1957).

10-29 Law,F68

O\\.n-sxwN--

Section 164
and exclu-
sion of
policc_

Section 164
(2) and
administra-
tion of oath.

130

463. It may be said, that so far as non-confessional.
statements are concerned, it matters not much whether it
is recorded by a Judicial officer or an executive officer. But.
whether a statement amounts to a confession or not is it-
self a legal question, which cannot always be determined
before the statement is actually recorded so that it is not
possible to send the person to an Executive or judicial
Magistrate having regard to the nature of the statement
proposed to be made. Moreover, in our opinion, it would
be an impracticable proposal to divide the power under
section 164 into two categ0ries,---confessions and other
statements, and to divide the function between the two
classes of Magistrates.

We, therefore, recommend, that the power should be
conﬁned to J udictal Magistrates alone.

464. The power under section 164 may be given to----
(i) Presidency Magistrates;
(ii) Judicial First Class Magistrates;

(iii) Judicial Second Class Magistrates specially
empowered.

Since the power is to be confined to Judicial Magistrates,
it is not necessary to retain the words "not being a dpolice
ofﬁcer" in section 164(1). These words may be omitte .

465. It has been suggested,' that the police should be
excluded while recording the statements of witnesses under
section 164. In our opinion, a statutory provision on the
subject is not necessary.

466. The position regarding administration of oath to
a witness whose statement is recorded under section 164
has been considered by us. The conﬂict of decisions on the
subject has been discussed in detail in our Report on the
Oaths Act? The question that now arises is, what ought to
be the law. On the one hand, if a witness whose statement
is recorded is to be encouraged to speak the truth, an oath
is desirable. On the other hand, our attention was drawn
to the view expressed by Mr. L. C. Crump3 (while the Bill
which led to the 1923 Amendment was under consideration).
Mr. Crump had pointed out, that, in favour of the view
that the witness who is examined under section 164 should
not be liable for perjury, was the consideration that the
policewould (if he is to be made so liable) be able to com-
pel a person to adhere to a statement which he may have
made at their instance under compulsion, on pain of prose-
cution for perjury. We however think, that on principle there

:. F 27,3);'5s.]ud1.11 (Home Ministry File), Appendixl, Item No. so (Comment cutie
Administration of a Union Territory on the suggestion of the I.G.P. of a State

Additional

point made in the comment).
2. 28th Report (Oaths Act), pages 29-30.

3. Mr. Crump was a District & Sessions Judge at that time. He later became a Iudge
of the Bombay}-Iigh Court.

131

is something to be said for recording the statement on oath,
to lend it some sanctity. We recommend an amendment of

section 164 to provide that the statements of witnesses
should be on oath.

467. We have received a suggestion from a High Court
(received through the State Government)' to amend section
164 so as to empower a Magistrate to record a confession
made before commencement of the investigation. The sug-
gestion is that the words "made to him in the course of
an investigation under this Chapter" and the words "or at
any time afterwards" be omitted. The object is to empower
a Magistrate to record a confession made before the in-
vestigation has started. The suggestion has been made in
View of the fact that very often the accused, after com-
mitting the offence, runs straight to the Magistrate and
surrenders with the blood stained weapon etc. and tells him
what he has done. A cleaner kind of evidence than this
cannot (it is stated) be conceived. Yet the testimony of the
Magistrate is inadmissible by reason of the words occurring
in the section. We felt, that such a provision would throw
on the Magistrates an unnecessary burden, and would also
not ﬁt in with the scheme of Chapter 14, which is conﬁned
to steps taken during investigation. No change is, therefore,
recommended on this point.

468. With reference to section 164(3), we should note
the view expressed by a High Court Judge, in his sugges-
tion,' which is as follows 2'

"Section 164. The provisions in section 164 regard-
ing the magistrate's being satisﬁed, before recording the
confession, that it is being made voluntarily and about
his certifying that the confession was made voluntarily
are useless and do not serve an purpose in practice.
If an accused is prepared to m e a confession, there
is hardly any magistrate who makes an honest effort
to ﬁnd out whether he is making the confession volun-
tarily or not. There is hardly any magistrate who might
have refused to record the confession of an accused per-
son if he was prepared to make one, on the ground that
he was not satisﬁed that it was being made voluntarily.
Ordinarily, a magistrate puts certain stereotyped ques-
tions without realising that the accused might have
been tutored by the police to give particular answers
to those questions and has no compunction in proceed-
ing to record the confession, in certifying at the end of
the confession that he satisﬁed himself "that it was
made voluntarily and in deposing on oath in court that
he had satisﬁed himself about its voluntary nature. The
law should be practical, and if a certain provision can-
not be enforced in practice it should not be allowed to
remain on the statute book."

Section 164
and confes-
sions made
before inves-

tigatiom

Section 164
(3) sugges-
tion of a
High Court
Judge.

1. F. 3(2)/SS-LC. Pt. III, s. No. 52.
2. F. 3(2)/55-LC. Part 11, s. No. 33(a).
3» The point relates to section 164(3).

Section 164-
and Identi-
ﬁcationa

Section 164-
and retracted
confession.

132

_ We have given our anxious consideration to this sugges-
tion. We are, however, afraid that the defect lies neither in
the law not in any inherent unenforceability of the law,
but in non--compliance therewith. The situation described in
the suggestion, wherever it exists, is due to the fact that
the law is complied with only in its letter, and not in its
sp1r1 .

If the provision is deleted, the question will again arise
whether the confession was voluntary. The provisions of
section 164(3), if administered in the proper spirit, are most
salutary. They should "not degenerate into idle formalities",
but that can be secured by vigilant supervision. The dele-
tion of the subsection, we Venture to state, would be far
more detrimental to the interests of justice than the existing
position. We have, before coming to this conclusion, exa-
mined sorne of the important judicial decisions relevant to
the subject of recording of confessions particularly i.e. the
safeguards to be observed.'

469. It has been suggested} that a provision should be
inserted to the effect that a Magistrate may, at the request
of the investigation ofﬁcer, hold an identiﬁcation of persons
or property and take ﬁnger prints etc. of the suspected
person, and that the record by the Magistrate of these
proceedings should be admissible in evidence.

We think, that, so far as identiﬁcation is concerned,
section 164 is enough.

470. With reference to section 164, the following sugges-
tion" has been made by a State Government.

"The rule of prudence requiring corroboration of re-
tracted confessions should be given statutory recognition..."

We studied in detail the position on the subject. The
following broad propositions can be gathered from the case
law----

(a) The rule in question is one of prudence. If
the retracted confession is voluntary, it can still be made-

the basis of a conviction.' 5

As has been observed by the Privy Council'------

Retraction of a confession by an accused is a common
phenomenon in India. The weight to be attached to it
must depend upon whether the Court thinks_that it was
induced by the consideration that the confession was un-.
true, or by realization that it had failed to secure the
beneﬁts the hope of which inspired it."

1. For detailed discussion, see Appendix 14.

2.No.F

. 3(2)/55-I..C. Part I, S. No. 72 (Suggestion of a District Prosecutor).

3. F. 3(2)/55-L.C. Pt. III, S. No. 49.

4. Emp. v. Kutub, I.L.R. 57 Cal. 488; A.I.R. 1930.

C.C., Ghose

Cal. 633, 635 (Rankin C. J. and
1-)-

5. R. v. Gharya, I.L.R. 19 Born. 728.
6. Bhuboni Sahu v. R., 76 LA. 147; A-I.R- 1949 RC. 257, 260. Data» 9-

133

(b) It cannot be laid down as an inﬂexible rule of
practice or prudence.'

(c) It may also_ be noted, that as to the burden of proof,
our 1aarw_d1_ifers slightly. As was observed in a Bombay
03595' It is true that in England when a doubt arises as
to the admissibility of a confession, the Court has to decide
whether it has been proved aiﬁrmatively to be free and
voluntary.' This is the law laid down in the Queen v.
Thompson _by Mr. Justice Cave with the concurrence of
Lord Coleridge, C.J., and Hawkins, Day, and Wills JJ.

In India the law on the subject is contained in section
24 of the Evidence Act.

The section must be fairly construed according to its
language, and if this is done it seems to us impossible to
contend that the law in India is identical with the law in
England as explained in The Queen v. Thompson'' and the
cases therein referred to. The question which a Court has
to decide when determining on the admissibility of a con-
fession is whether it appears to the Court to have been
induced by the means mentioned in the section. "It may
be that this section does not require positive proof, within
the meaning of section 3, of improper inducement to
justify rejection of the confession. The use of the words
"appears" indicates" it may be argued a lesser degree
of probability than would be necessary if proof" had been
required. A court might perhaps in a particular case fairly
hesitate to say that it was proved that the confession had
been unlawfully obtained, and yet might be in a position
to say that such appeared to it to have been the case. Still
although we think that very probably a confession may be
rejected on well-grounded conjecture, there must be some-
thing before the Court on which such conjecture can rest.
It does not seem possible to say that the mere subsequent
retraction of a confession which has been duly recorded and
certiﬁed by a Magistrate, is enough in all cases to make
it appear to have been unlawfully induced. Without
assuming the functions of the Legislature, we cannot lay
down any general rule to meet the varying circumstances
of different cases. To require, as the criterion of admissi-_
bility, afﬁrmative proof that a duly recorded and certiﬁed
confession was free and voluntary, would not, in our
opinion, be consistent with the terms of sections 21 and
24 of the Evidence Act, or with the interpretation given to
these sections by Mr. Justice Nanabhai in Reg v. Balvant"
which appears to us to have been correctly decided and to
be in harmony with the practice of the Courts.

See Pyarelal v. The State. A.l.R. 1963 S.C. 1094, 1096.

. R. v. Basauanti, I.L.R. 25 Bom. 168, 171,172,173-

See generally articles in (1900) Bom. L.R.(]ou1'nal.' I57, 217-
. Queen V. Thompson, (1893) 2 Q_.B. 12.

. Queen v. Thompson, (1893) 2 QB. 12.

. Reg. v. Bahvcmt, (1874) 11 Born. H.C.R- I37-

QUI-h.'uJr\2--*

134

"It may be thought that the law as it stands does not
afford adequate protection to prisoners against illegal
practices whereby confessions are extorted, but it is not
permissible to us to amend it. What the Legislature doubt-
less hoped and intended was that Magistrates would not
record confessions unless they really believed that they
were made Voluntarily.' In the case of Magistrates acting
under section 164 of the Criminal Procedure Code, there can
be no question that they must be aﬂirmatively satisﬁed of
the voluntariness of the confession, and that when in doubt
on this point they ought not to record or give the certiﬁcate.
The consideration which this question is at present receiving
will, we hope, lead to the issue of such instructions as may
help Magistrates in the difficult task of deciding what con-
fessions are "voluntary"."

In our view, there is no need for a rigid provision as
suggested.

471. With reference to section 164, the following sug-
mg State, gestion" has been made by the Bar Association, Adoni
ments at the (Andhra Pradesh). (The Judicial First Class Magistrate.

instance of Adoni, agrees with this).

the accused' "Provision should be made for recording statements
under section 164 for witnesses produced on behalf of
the accused."

We examined the law on the subject.

The accused seems to have no right at present, in this
respect. In fact, the police also, have no such right. But,
there is nothing to prevent the Magistrate from recording
the statement at the instance of the accused."

We do not, therefore, see the need for any amendment.

ﬁ°)°:i:§ 164 472. The following suggestion has been made by a Bar
suggestion C0unc1l'5
to make

. " 1 A discretion is iven to the olice while investi-
§f§§'§,'3,'e",§5°f gating )an offence to progluce witnesseg before the Magis-
by Magis-- trate for the purpose of recording their statements on oath.
"W 05"' A statutory obligation may be imposed on the investigating
g"'t°"" officer to produce eye-witness before the Magistrate for

recording their statements.

(2) The role of the Magistrate at the investigating stage
may be enlarged.

(3) The Magistrate may be empowered to take the
evidence of identifying witness on oath. when he presides
over the identiﬁcation parades.

- Cf. Queen v. Thompson (1893) 2 QB. 12.

. F. No. F. 3(2)/55-LC. Pt. III, S. No. 50(n).

. In re C. W. Casse, A.I.R. 1948 Mad, 489, 490.
. Muhammad Sarfraz Khan, 52 Cr. L. ]. 1425.

. F. No. F. 3(2)l5S-LC. Pm 111, s. No. 52. I

U'|-§LHI\)>-

135

(4) The right of taking advantage under section 27 of
the Evidence Act (admission of statements from an accused
person in police custody leading to the discovery of pro-
perty) is denied to the police. The investigating oﬂicer may
be empowered to resume his custody for the limited pur-
pose and with the permission of the Magistrate who had
remanded him to custody".

The View of the State Government concerned on this
suggestion is that Item 4 of the proposal of the Bar Council
will not be necessary in view of section 167.

We agree on this point with the State Government.

The State Government also felt that the other proposals
would not be practicable. We are of the same view as
regards items (1) and (2). But, as regards item (3), we are
already recommending a provision for recording the state-
ment on oath.'

473. 'Copies under section 165 should, we think, be given Section 55-
free of cost. The section may be amended accordingly.

474. A State Government' has suggested the removal Section 155
from section 165(5) and section 166 of the obligation to' )'
furnish copies of reasons recorded under section 165(3). We
are unable to accept the suggestion, having regard to the
fact that the matter is one of protection of privacy of
property.

Section 165(5) was inserted in 1923, by means of an
amendment in the Assembly. We may quote here the
reasons advanced by Rao Bahadur T. Rangachariar, who
moved the amendment.'

"As Honourable Members will see. the object of
this amendment is that, as soon as a search is made,
an immediate report should be made to the nearest

- Magistrate. That is one of the objects. The second object
is that the person whose house is searched should have
copies of the records made under sub-clauses (i) and
(iii). Sub-clause (4). as it stands. enables the provisions
of section 103 to apply, that is, the general rules re-
latin to searches are made applicable. Under section
103 tﬁe occupier of the place where the search was made
gets only a list of the articles taken, but what I want
him to get is the reason for the search which has to
be recorded in writing, which has to be sent to the
Magistrate, and he gets a copy thereof. That is the
object of this further sub-clause (5) which I move, Sir.
as it stands".

Government accepted the amendment, and no further
debate seems to have taken place.

. See section 164, as proposed.
. F. 3(2)/55-L.c. s1. No. 13.
. Legislative Assembly Debates. 31st]anuaty, 1923, Vol. III, No. 27-

V-JP~)"'

Section 165

and recovery

by police of
abducted

persons.

Section 166.

Section 167
and period
of remand.

136

475. An Inspector General of Police has suggested' that
power be given to the police to recover victims of abduc-
tion or kidnapping who are wrongfully conﬁned, We are
not inclined to accept the suggestion. Section 100, is, in
our view, enough for the purpose. As the matter involves
personal liberty, it is better to confine it to Magistrates
competent to act under section 100.

476. Copies under section 166 should be given free of
cost. The section should be amended accordingly.

477. In relation to section 167, a point of great practical
importance has to be considered. The remand under section
167 cannot be ordered for more than 15 days in the whole.
Where the investigation is not completed within 15 days.
the police (in some States) secure remand under section 344,
without submitting a charge-sheet. in the prescribed form."

Now, there is a conflict of decisions on the question
whether a remand can be ordered under section 344 without
taking cognizance? In this connection, we went at length
into the history of sections 167 and 344.

478. The view expressed on the subject in an earlier
Report,' and the recommendation made therein to the effect
that the maximum period under section 167 should be
extended to 60 days, were also considered at length by us.
Our conclusions are as follows 2--

(i) It is not proper to extend the maximum period
in section 167, as the extended period is apt to become
a routine, and is likely to be restored to in all cases.

(ii) Section 344 is not at all intended to be used
at a stage before the Court has taken cognizance. This
'.5 clear from its placing in the Chapter on Inquiries
and Trials, and from the history of section 167 and .also
fror(n the words "inquiry or trial" which occur in section
344 1).

(iii) The real misunderstanding is caused by; the
Explanation to section 344, as its wide language obscures
the object of the legislature that section 344, being a
provision occurring in the Chapter dealing with in-
quiries and trials. is intended to be used to only after
cognizance has been taken. The Explanation to section
344 should be conﬁned to the post cogniizance state, by
way of clariﬁcation.'

1. F. 3(2)/55-LC. Part II, s. No.32.

2. Cf. 14th Report, Vol. 2, page 758, paragraph 53.
3. For detailed discussion, see Appendix 15-

4- l-4th Report, Vol. 2, pages 857-860, para. 55-56.
5. To be carried out under section 344-

137

479. With reference to section 167, the following sug-Se¢t1'°n157

gestion' has been made by a High Court. §;'1§lt;°0';':"d
"Section 167 may be amended to provide for detention than 15 days

in judicial custody for more than 15 days at the stage cf
znvestigation. If necessary, subject to a maximum period
beyond which remand should not be granted. (This was
also the recommendation of the Law Commission)".

We have already expressed our views in the matter."

480. We had also to consider the question whether Section 167
powers under section 167 should be given to both classes and M38113'
of Magistrates (as in Punjab) or to Judicial Magistrates :r,:"1§§"t.§,e§
only (as in Bombay). In our view, these powers should be '
given only to Judicial Magistrates. The power is ancillary
to the trial of offences, its exercise requires an approach
different from that of mere maintenance of law and order.

It may require, particularly where detention in police
custody is to be ordered, a careful recording of reasons,'
for which Executive Magistrates may not have sufficient
time. As has been pointed out} a Magistrate aceting under
section 167 has to weigh the evidence with respect to the
offence and does not act in a purely executive capacity.

481. A suggestion" of the Ministry of Defence may be Section 167
noted regarding custody under section 167. Under sections (2) and
167(2) and 344, a Magistrate is empowered to remand an ""1"3d'V
accused to any custody, that is to say, he can remand him °""'° Y'
to other than police custody. It is considered, that accused
persons who are subject to military, naval or air force law
may be permitted to be remanded to military, naval or
air force custody. In fact, such custody has been ordered
in some cases. In order that there may be no doubt left
in the matter, the following additions should (it has been
suggested) be made in the aforesaid sections after the word
"custody" :--

"including military, naval or air force custody
where the accused belongs to any of these services."
We have considered the suggestion.
In section 167(2), the words used are "in such custody
as the Magistrate thinks ﬁt". These words are very side.

In fact, it has been held' even under section 344, that
the Magistrate can remand the accused to whatever custody

1. File No. "F. 3(2)/55-I..C. Pt. III, S. No. 28.
2. The reference is to 14th Report, Vol. 2, pages 759-760-
3. See discussion regarding section 167.
4. See-----

(i) Amir Khan V. Emp. (1902), 7 C.W.N. 457, 459.

(ii) Emp. V. Kampu Kulta (1906). ll C.W.N. 554, 551. >
5- Sunder Singh v. Emp. l.I..R. 12 Lah. 16; A.l.R. 1930 Lah. 945, 946 (Bhide}.).
6. F. 3(2)/55-L.C. Pt. VII, S. No. 457 (Suggestion of the Ministry of Defence).

7. In re M. R. Venkataraman, A.I.R. 1948 Mad. lO0 (Accused remanded to Central
Jail, Trichinopoly, instead of Madura Jail), by the Madura lwlagistrate.

138

he thinks ﬁt. We are therefore of the view, that no change
1S necessary.

Section 1§7 482. It has been suggested' that an accused person

aﬁgdggggsal should be physically produced before the Magistrate at the

EM": time when the police apply for remand, and that the

3ccuged_ grounds on which they ask for remand should also be put
up before the Magistrate in the presence of the accused,
so that if the accused wanted to controvert those grounds
he could do so.

We examined the position on the subject.

Even now, Magistrates are requested to insist on the
physical production of the accused. The position may,
perhaps, be diiferent for a subsequent remand?

In our view, production of the accused every time is
necessary whenever remand is desired. But no change is call-
ed for in the language.

Section 167 483. Section 167(4) will require re-drafting, in view of

(4% separation.

5¢'=ti0n153- 484. No change is needed in section 168.

Section 169. 485. In section 169, the words "report in writing" etc.
should be substituted for the words "police report"?

Section 170- 486. In section 170, the following amendments are need-
ed-

(a) The words "report of police pfficer" etc. should
be substituted for the words "police report."'

(b) In s. 170(3). the "Chief Judicial Magistrate" be
substituted for the words "District Magistrate."

Section 171- 487. A suggestion to delete the ﬁrst part of section 171
has been received,' but we do not accept it.

3e°ti0n173- 488. No change is needed in section 172.

Section 172. 489. With reference to section 172, the following sug-
g1)"':S'§_ gestion' has been made by the Markapur Bar Association,
reggfrditg' (Andhra Pradesh).

sending case

dimes") "Apart from section 172. the Police standing order in
the Magig. force in this State (vide P.S.O. 557) requires that the case
trate. diary be sent to the Superintendent of Police to ensure that

1. F. 3(2)/55»L.C. Part VII, S. No. 449, Suggestion of the U.P. Committee for Investi-
gation of Causes of Corruption in Subordinate Courts in Uttar Pradesh (1963), Report,
page 48, Bill at pages 234-235.

2. Cf. Niranjan v. Manipur Administration, A.l.R. 1958 Manipur 33, 34.
3. Cf. discussion as to s. 4(l)--deﬁnition of "complaint".

4. Cf. discussion regarding section 4(l)--"compIaint".

5. F. 27(3)/55r]udl. II (Home Minitry) Appendix I, Item No. 32.

6. F. 3(Z){55-L.C. Part III, S. No. 50(0), (Page 219, correspondence).

139

the case diary is not altered subsequently for any reason.
it is also mandatory that the case diary is sent to the
Magistrate along with the remand report. But if the accused
is not arrested, the case diary recorded even up to that time
is not sent to the Magistrate. The case diary recorded upto
the time of remand is never complete. In the interests of
justice, and to ensure a fair trial, it is not sufficient if the
case diary is sent to the Superintendent of Police. It is also
necessary that the case diary is sent to the Magistrate
having jurisdiction to try the case, day to day, and such
a course will be very much in the interest of justice."

It has therefore been suggested, that after sub-section
(1). sub--secti0n (IA) may be inserted as follows :--

"(1A) The proceedings so entered in the case diary
shall day to day be communicated to the court having
jurisdiction to try the case."

490. We are unable to accept the suggestion. As regards
statements under section 161, we have considered the mat-
ter' separately. But statements in a police diary stand on a
special footing. We do not see any need for the provision in
question.

491. The following suggestion' has been made by asm;on17;
District Munsif Cum Judicial First Class Magistrate, in (2) and

Andhra Pradesh. 5'-1Q°3?i°n
regarding
"Experience would have shown, specially in case '°"d"'8

involving a sentence of life imprisonment or death, that the C':;;::1"'
diary of police proceedings during the investigation is not me,'
made available for sutﬁciently long time. Innumerable
judicial decisions have pointed out that the case diaries

in those cases were neither prepared on the date they are
purported to have been prepared, or, if prepared, they were

not in such condition as they appear to be. The section
may be amended to provide the case diaries, at least in
cases of serious nature involving capital punishment should

be submitted to the nearest magistrate forthwith within 24
hours of making such diary. The amendment is essential or
least in regard to capital o_ﬂ'ences."

We do not think, that such a change should be made,
even for capital offences.

492. The following suggestion' has been made by aseccion 172
High Court. and dism-

. . . ' b
"Experience shows that the accused 1S often handi-- ;';'3';,f'2o°

capped in his defence by the restrictions now placed under Court to
section 172. An amendment is suggested to enable him to i'"°"' ,.
have a complete picture of the case against him, as revealed "'°p°"'°"'
by the investigation. This will help the accused to put up

a proper defence."

1. See discussion regarding section 161.
2. F. 3(2)'/55-LC. Part Ill, S. No. _50(q).
3. F. 3(l);'55-LC. Pt. III, S. No. 52.

I40

flfhe amendment proposed by the High Court is the
addition of a new sub-section, as sub-section (3), to section
172. as fol1ows:----

"(3)_Notwtths'ta,n-ding what is contained in the above
sub--sectton, the accused or his counsel may apply
to the Court for inspection or scrutiny of any relevant
poi-tron or portions of the case diaries, in order to and
him in his defence, and the court may, in its discretion.
grant such scrutiny of any portion or portions of the
case diary if it is satisﬁed' that it will be in the interests
of the accused to do so, and will not be prejudicial to
the public interest".

The State Government concerned has however, ex-
pressed the view that section 172 has not caused any special
diﬁiculty. In its view the amendment suggested by the
High Court may lead to complications and the question
may be raised whether refusal by the Judge or Ma istrate
to permit inspection was justified or not. The State overn-
ment, therefore, does not support the suggestion of the
High Court.

493. It was urged before us, that the objection of the
State Government is not convincing, and that even if no
special difﬁculty has been caused, the suggested change has
other merits.

It was stated that the merit of the suggestion is, that
it will inspire conﬁdence in police investigation, without at
the same time impairing the public interest, No right is
proposed to be conferred which would do damage to the
general secrecy of police necords. A discretion it was
emphasised is to be conferred on the Court.

494. As to the existing law, the undermentioned cases
may be seen."" The diary is to be used by the court
alone? It cannot be used for contradicting defence wit-
nesses.' For the previous law, the undermentioned case'
may be consulted.

As has been observed by Field J.,' "the grounds upon
which the opposite party is permitted to inspect a writing
and to refresh the memory of a witness are threefold: (i)
to secure the full beneﬁt of the witness's recollection as
to the whole of the facts; (ii) to check the use of improper
documents; and (iii) to compare his oral testimony with his
written statement. The opposite party may look at the

1. In re Molagan, A.I.R. 1953 Mad. 179. 182, para. l7.
2. Habeeh Mohamed v. State, A.I.R. 1954 S. C. 60, para 13.

3. Emp. v. Ihubbu Mahton, (1882) I.I..R. 8 Cal. 739. 7-H, 7'55 (Field J.) (discussed the
'reasons why opposite party is allowed inspection where a witness refreshes his memory).

4. Kali Charan, (1881) l.l..R. 8 Cal. 154-, 157 {Prinsep and Wilson )1).

5. Emp. v. Dharam Vir. A.I.R. 1933 Lab. 498, 500 (Dalip Singh & Monreo IL).
6. Dal Singh, l.L.R. 44 Cal. 876, 838, A.l.R. 1917 BC. 75.

7. 12.13. V. Manna, (1397) I.I..R. 19 All. 390 03.13.).

3 - Emp. V- Jhubbao Mahton. (1882) I-L-IL 8 Cal. 739,744, 745-

141

writing to see what kind of writing it is in order to check
the_ use of improper documents; but I doubt whether he is.
entitled, except for this particular purpose, to question the
witness as to other and independent matters contained in
the same series of writings."

495. It was also urged before us, that on the one hand,
every material in the diary is not of a secret nature.' On
the other hand, a wholesale inspection of the diary may be
against public policy.' The suggestion (it was stated) strikes
a mean between these two extremes.

496. Perhaps the reason why the proposed change is
suggested, is similar to that stated in the observations in
a Madras case :3

"It is of comparatively little use for defending
Counsel being permitted by the Sessions Judge to look
into the case diary at the belated stage of the trial
only when the learned Judge himself on a perusal of
it ﬁnds something of great use to the accused. It is
necessary for responsible defence from the start that in
cases such as the present, defending counsel should
know what the accused uold Police in the first instance.
We have not come across any more appropriate concrete
case than the present in which this course should have
been "abinit1'a" adopted".

497. We have carefully considered the various aspects of
the case as put forth above. We regret, however, that we
are unable to accept the suggestion. We have an apprehen-
sion that it might hamper free disclosure in investigation.

498. In section 173(1), for the words "police report", the Section 173
words "report of a police Officer in writing" may be (1) 09'
substituted.'

499. Section 173(1)(a) is the provision under which the Section 173
"charge-sheet" or the "chalan" or final report is sent by ,(1) (I),=m<_1
the police to the Magistrate empowered to take cognizance.
The question has arisen whether, a;fta' 'the submission of
the report, the police can submit a "supplementary" chalan.
Ordinarily, chalans should not be submitted after comple-
tion of the investigation piecemeal.' Therefore, an incom-
plete chalan is not contemplated.'

500. But, if the police ofﬁcer, after he submits the
chalan, gets further information, 'he can still investigate
and submit a further chalan." As has been pointed out.'

. See Fatnaya Lal v. Emp. AIR. 1942 Lah. 89,91.

. Emp. v. Dharam Vira. A.l.R. I933 Lah. 498.

. In re Molagan, A.I.R- 1953 Mad. 179. 182 paragraph 17-

. Cf. discussion relating to section 4(l)--deﬁhition of "complaint".

. Ranjit Singh v. State, A.I.R. 1952 Himachal Pradesh 81, 87, bottom, para. 15.
. Kirpa v. State, A.I.R. 1952 HP. 68, 71, para. 6.

. A.I.R. 1952 (Orissa) 350.

. Mangal Singh v. Ret, A.I.R. 1949 All. 599, 601, 602, para. 7 (Desai].).

. In re Palaniswami, A.I.R. 1946 Mad. 502. 503.

\Dcp-qgxun-thkulxlv-'

Section 173
(1) and
suggestion
for barring
re-investi-
gations

142

there is no "finality" to the investigation or to laying a
charge-sheet.

The apparently contrary view taken in a Rajasthan'
case may be distinguished, as, in that case, after the
investigation was over, the police resumed investigation
without sufficient reason.

501. It should be noted, that the "police report" has to
state-
(i) the names of the parties;
(ii) the nature of the information;

(iii) the names of the persons who appear to "be
acquainted with the circumstances of the case."

502. In view of the fact that the matter is of practical
importance, it appears to be desirable to make suitable
amendment to make the matter explicit. It may be useful
to embody these prepositions, namely :--

(1) If after forwarding the report to the Magistrate.
the police-officer obtains further evidence, oral or
documentary, he shall forward to the Magistrate (1,
further report or reports regarding such evidence, in the
form prescribed.' /

(2) Copies of the documents not in the custody of
the said ofﬁcer at the time of the ﬁling of the charge-
sheet, and obtained after such ﬁling or after commence-
ment of the inquiry or trial, shall be furnished to the
accused as and when they are obtained and before
marking them as exhibits in the court.' 1

We may add, that a suggestion' to insert a proviso to
section 173(1), for requiring the police officer' to forward to
the Magistrate a further Report when he obtains further
evidence, was made by a Conference of Special Police
Establishment, and State Anti-Corruption Officers also.

503. The following suggestion' has been made by the
Bar Council, Madras.

"Provision should be made preventing the police from
rc-opening an investigation which has terminated on the
submission of a report to the Magistrate, under section 173."

1. Hanuman v. Raj, A.I.R. 1951 Rajasthan 131, 133.
2. Mehrab V. Crown, A.I.R. 1924 Sind 71 (F.B.).
3. In re Shivalingappa, A.I.R. 1930 Born. 372.

4- Cf. the suggestion of Mr. Justice P. N. Ramaswami (Madras), in the Madras Police
Gazette, dated 10th May 1958, referred to by the Public Prosecutor, Madras in his suggestion
sent to the Law Commission F. 3(2)/55-LC. Part III, S. No. 52 (page 244 of the cones.
pondence portion).

5. F. 3(2)/55-LC. Part III S. No. 53.

6. P. 3(2)/55-I..C. Pt.1II S. No. 52 (Page 211 correspondence).

143

"Once a Magistrate has taken cognizance of an offence
under section 190, the power of the police to ﬁle an addi-
tional or supplemental chalan or charge-sheet should be
withheld. They may, however be permitted to ﬁle an addi-
tional list of witnesses who are not acquainted with the
circumstances of the cases. They must be debarred from
implicating new accused in a supplementary chalan. But,
if necessary, power may be given to a Magistrate who has
taken cognizance of the offence to direct re-investigation
by a superior police officer."

504. We do not, however, think that any such restrictive
provision is called for.

Investigation is the process of collection of evidence.
That process, temporarily closed for want of material, should
yet be capable of being supplemented or re-stated, if the
circumstances of the case so justify.

505. With reference to section 173, the suggestion of a
State Government' is as fo1lows:----~

"Section 173: In complaint cases copies of all rele-
vant documents on which the prosecution proposes to
rely should be furnished to the accused by the date
when the accused ﬁrst appears before the court after
the police report under section 173(1) (a) has been
received in the Court."

We are not, however, inclined to extend the provisions
of section 173(4) to complaint cases--which would be the
effect, in substance, of the suggested change.

_ 506. With reference to section 173(4), certain points
arise.

(a) The recommendations made in an earlier
Report,' to transfer to the Court the obligation of the
police to supply copies, was considered in detail by us.
In practice, courts will, it is apprehended, ﬁnd it
difficult to supply the copies. The police officer can,
while investigating the case and recording the state-
ments, prepare extra copies for being furnished to the
accused, and that is more convenient. No change is,
therefore, needed on this point.

(b) The recommendation in the 14th Report" about
substituting (in place of "copies") inspection in case of
voluminous documents may be carried out, with this

» modiﬁcation that the police officer need not give copies,
if the court dispenses with them, but the accused should
be allowed to inspect them in Court, in such cases.

507. With reference to section 173(4), a suggestion made
by a State Government' makes these points.

(i) The court (and not the police) should be required to
supply copies of statements of witnesses, documents etc.

1. F. 3(2)/55-LC. Part I' S. No. 33.

2. 14th Report Vol. 2' page 760-762' para. 57-

3. 14th Report' Vol. 2 page 762, para. 58.

4. F: No. F. 3(2)/55-I..C. Pt. III, S. No. 49_ (page 185, correspondence).

Section 1 7 3

and
compaint
cases.

Section 173

Section 173
(4-) and
sugestion of
aState Gov-
ernment.

Section 173
(4) and
suggestion
of a High
Court Judge

Section 173
(4) and
suggestion
of Special
Police Esra-
blishment
Ofﬁcers.

Section 173
(4) and
suggestion 0
Public Prose
cutor
Madras.

144-

(ii) The court should have the discretion in regard to
supply of copies in voluminous cases, and may permit the
accused or_ h1S counsel to inspect them in court' instead of
being required to supply copies.

We have already considered the question."

508. The following suggestion3 relevant to section 173(4)
has been made by a High Court Judge, while stating that
the pre-1955 procedure should be restored.

"The supply of copies to the accused at the beginning
of the trial has not helped to reduce the duration of the
trial, but has led to complications. The accused try to
delay proceedings to gain time to win over the witnesses
and cleverly plan their statements to keep them within the
police statements and yet nullify the prosecution case. This
has led to increase of perjury."

We have given deep thought to the suggestion.

In our view, it is too early to reverse the scheme
introduced in 1955 and to restore the pre-1955 position.»

509. At the Special Police Establishment and State Anti-
Corruption Oﬂicer's Conference,' held in November, 1960, it
was decided that the following suggestion made in the
earlier Report of the «Law Commission be implemented.
namely'-

Section 173(4) should be amended suitably by vesting
discretion in the court that in the case of documents con-
sidered voluminous, the supply of copies might be enlis-
pensed with, the originals themselves being made available
to the accused or his counsel for perusal/examination and
taking notes in the court-house.

We have already considered the matter.'

510, Following su gestion' has been made under section
f 207A(4) by the Public tor, Madras.

"There should be an amendment or clariﬁcation in the
Code so that the prosecutor may examine witnesses who
are discovered or whose evidence is found essential and
whose statements under section 162 have not been taken
before the ﬁling of the report. ~

The following may therefore be added as a proviso to
section 207-A (4), namely : --

. F.3(

-lO\U'|-lLbJt\l>--<

. Cf. 14th Report, Vol. 2, pages 760-762, paras 57-58-
. See discussion regarding section 173(4)-
. F. No. 3(2)/55-LC. Pt. III, S. No. 49(a). (Page 189, correspondence).

2)/55.L.C. Pt.III, S. No. 53 (Page 307. correspondence).

. See 14th Report, Vol. 2, page 760-62, paragraphs 57-58-
. See section 173 as proposed.

. F. No. P. 3(2)/55-LC. Pt. III, S. No. 52.

145

"Provided that any witness whose name was not
included in the list of witnesses at the time of the
report shall be examined subject to the compliance with
the provisions of section 173(4)".

This suggestion' though made under section 207A(4)
seems to pertain to section 173(4).

We have already considered the point?-3

511. The following suggestion has been made by the Section 173
Commissioner of Police, Madras,' with reference to section (4) and_
251_A(7)_ suggestion of

. Commissio-
Under section 251A(7), on the ﬁling of a report under "er °f P°1i°°

section 173, the Magistrate shall proceed to take such Madras'
evidence as may be produced in support of the prosecution.

It very often happens in cases of importance and compli-

cated nature, like gang cases and criminal conspiracy, that

the investigation cannot be completed within 15 days or

within the period of expiry of the remand of the accused.

The defence counsel press for the ﬁling of the report under

section 173 to know the nature of the offence made out

against the accused. But, as important witnesses are not
available, the prosecution is not able to present the full case

against the accused.

Section 251A(7) may therefore (it has been suggested)
be suitably amended so as to provide that, in exceptional
cases where the police officer is unable to examine some
important witnesses by reason of non-availability, he may
examine them subsequent to the ﬁling of the report under
section 173 and supplement the ﬁnal chargesheet, of course,
after giving copies of the relevant documents to the accused
person".

The suggestion has been made under section 251A, but
pertains to section 173.

We have already considered the matter} 6

512. The following suggestion' has been made by the 54eCti051173
Chief Presidency Magistrate, Madras. golpﬁslem '

"The object of furnishing the accused with copies '1'(';°"gh
of documents in warrant cases is to give the accused 3 '
person an opportunity to know in advance what exactly
are the statements and documents against him. There
should be a provision in the Code to furnish, at any

1. To be noted under section 207A(4).
2. See discussion regarding section 173, and investigation after challan.

3. A somewhat similar suggestion was made by the I.G.Ps' Conference held in 1960
See F. 3(2)/55--I..C. PartIII, S. No. 53 (page 307, correspondence).

4. F. 3(2)/55-LC. Pt. III, S. No. 52 (Pages 249 to 250, correspondence).
5. See discussion regarding section 173 and investigation after challan.
6; The suggestion states that the police cﬁcer should ﬁle an aﬂidavit.
7. F. 3(2)/55-LC. Part III, S. No. 52.

l1--29 Law/68

Section 173
(4) and
immediate
supply of
copies.

Section 173
(4) Various
suggestions.

146

stage before the prosecution is over, copies of documents
left out by mistake or on account of any other satisfac-
tory reason. Suitable safeguards may be made to protect
the accused from being taken by surprise. The accused
cannot complain of any prejudice if a provision is made
in the Code making it obligatory to give an adjourn-
ment to the accused in such cases to meet the case
in the light of the documents furnished to him during
the course of the trial.

"It may not be possible to furnish copies of docu-
ments in all cases. It is impossible to give a copy of
negative of a photo which is ﬁled as a document and not
as a material object. In cases of breach of trust and similar
offences, the prosecution may rely on several day books
and ledgers merely to show the absence of any entry. A
provision should be made in such cases enabling an ac-
cused to have an inspection of the ﬁle instead of getting
3. copy of the entire ﬁle."

In our view, on the ﬁrst point, no change is required.
The existing law does not come in the way of copies being
given subsequently, in cases of bona ﬁde mistake or
suﬁicient reason. Sections 173(4), 207A(1) and 251A(1) do
not go to that length.

513. The following suggestion' has been made by the
Markapur Bar Association, (Andhra Pradesh).

"Section 173 provides for the supply of the report after
the same is forwarded to the court besides F.I.R. and such
other documents which the prosecution proposes to rely
upon. This latitude tends to cause delay in the further
proceedings of the case as too many adjoumments are
taken for supplying the same with the result that disposal
of cases is delayed, and the accused are inconvenienced.

"Section 173(1) may be amended to say-

"The officer in-charge of a police Station while
forwarding a report under this section to court shall
furnish or cause to be furnished to the accused..."

We have considered the suggestion. but in our view
no such change is necessary.

514. Various other suggestions' to amend section 173
were considered by us.

Amongst these are views of several Inspectors General
of Police to the effect that the provision for supply of
copies has thrown immense labour on the police under
section 173(4), they have suggested that the provision for
supply of copies be removed. ' '

1. F.
2. F.

No, 3(2)/55»L.C. Partlll, s. No. 50(0). .
3(2);55.1,.c. Part 1, s. No. 83, and 17 and 71A, and F. 3(2)/55-L.C. s.« No. 2.

147

But the provision for supply of copies seems to be
an essential part of the scheme of the Code as embodied
in sections 207A and 251A et seq (as inserted in 1955) and

if the obligation is removed, great injustice will result to
the accused.

515. In respect of cases relating to corruption it has 5''°"°" 173
been su gested' that the provisions of section 173(4) regard- :2:l,§;:,eZn°f
mg sup ly of copies should be deleted as they cause delay. '
We are unable to accept the suggestion as section 173(4)
is a part of the whole scheme introduced in 1955.

516. We have considered the question whether it is 5eC'~'i°n 173
necessary to insert a provision as the supply of copies in ('*)'"'d 5102-
cases investigated under section 202. We think, that no
change in the law is required.

517. The following suggestion? has been made by a 56Cti0n174

Bar Council, with reference to section 174. "Pd 5"33°S'
tron regard-

(i) Section 176 should be amended" to eliminate police inlgldeath i"
investigation and to empower solely the Magistrate to hold fsslgfiy
the inquiry in the case of death of any person in police '
custody.

(ii) Consequential amendment to section 174 is sug-
gested, to give an optional power to a Magistrate to hold
an inquest on receipt of information from the officer in
charge regarding the death of a person under circums-
tances mentioned in section 174(a), (b) or (c).

The State Government concerned is in favour of this
amendment.

This point is connected with section 176, and will be
dealt with under that section.'

518. In section 174(5), the Word "Executive" should be 35"'i°n 174
added before the words "Magistrate of the ﬁrst class" and,' )'
for the words "any Magistrate" the Words "any other
Executive Magistrate" should be substituted.

519. In section 175(1), the word "truly" should be Section 175
omitted, to bring the section in line' with section 161. The (1)-
person making the statement before a police ofﬁcer should
not be liable for nerjurv. It will, in consequence, be neces-
sary to amend the connected sections of the Indian Penal
Code so as to ensure" that refusal to answer the questions
under section 175 is made punishable.'

1. F. 3(2),/55»L.C. Part VIII S. No. 549 (Special study procedure in corruption cases
made by an expert and forwarded by the Ministry of Home Affairs).

2. No. F. 3(2)/55-LC. Pt. III, S]. No. 52 (Pages 264-265, correspondence):
. See discussion regarding section 176.

. See discussion regarding section 176.

. See discussion relating to section 161.

. Compare discussion relating to section 161.

. To be summarised in Appendix for other Acts.

-\10\U'|-C-bl

148
fffgigg 175 _52o. It has been suggested' that in section 175, in sub-
suggemon section (1), after the word "forfeiture" the words "and the
regarding police ofﬁcer shall reduce into writing the statements of the
copies. witness so examined by him and shall send the copies of

the 'statements forthwith to the Magistrate having juris-
diction to enquire into the case" should be inserted.

Having regard to the scope and nature of the pro-
ceedings under section 175, we are not inclined to
recommend such change.

i°gé<;2e;t7e5d) 521. _It has been suggested that after section 175 of
regarding the principal Act, the following section may be inserted,----
"175A. If the police oﬂicer fails to send the state-
send copies. ments; recorded under sub-section
Failure to send written (3) of section 161, 01' sub-section

Statmenm (1) of section 175, the Court shall

presume that the statements were
not in existence at the time when the statements were
said to have been recorded, or, even if they were in
existence they were not in the same forms as"might
have been found later."

In our view, the matter goes to the weight of the
evidence. No change is required.

S°§'i,°:.' 176 522. A suggestion to inform the relatives of the person
fi';n't';°rm°' whose dead body is the subject matter of the inquest"
remgves, under section 176 has beenifound worth accepting, and we
recommend a provision to that effect." "Relatives" in this
context would mean father, mother, son, daughter, wife,
or husband as far as can be ascertained. The obligation

will be to inform them, as far as practicable.

Section 176
§I1l);;11<§cC;°ath 523. The following suggestion' has been made by a
cusmdw Bar Council.

"In case of death of any person in the custody, of the
police, the power of holding inquest should be vested sole-
ly with a Magistrate armed with the same powers as he
has in holding an inquiry into an offence.

Sub-section (1) of section 176 may therefore be substi-
tuted as follows:---

"When any person dies while in the custodg of the
police, the nearest Magistrate empowered to old in-
quest should hold an inquiry into the cause df death.
The Magistrate holding such an inquiry shall have all

1. F. 3(2)/55-I..C. Part VII, S. No. 407, (Shri K. V. Raghunath Reddy's Amendment
Bi1lRajya Sabha 11 of 1963).
2. F. No. 27(5)/54-Iudl. (Home Ministry File), Appendix III, Item 11.
3. See section 176 as proposed.
4. F. 3(2)/55--L.C. Pt. III, S. No. 52 page 264 of the correspondence.

149

the powers which he would have in holding an inquiry
into an offence and shall record the evidence taken by

him in a manner prescribed for taking evidence in a
warrant case."

The State Government concerned is in favour of this

proposal, since the idea is to eliminate police investigation
or even inquest by police in cases of death in police custody.

(If this suggestion is accepted, then as a consequential

change, section 174 would also require amendment)'

524. Our view on this suggestion is as fol1ows:--

(a) Sections 174 to 176 do not contemplate investi-
gation by the police at all, where the death is in police
custody, even where the case falls under s. 174(1)(A)
(b) (c). In our view, this is already clear from the
language of section 176, and needs no change. (b) As
regards excluding even regular investigations (under
s. 154 to s. 173) in such cases, that would not be
practicable.

525. The sections of the Code after section 176 are

proposed to be dealt with in later Reports.

526. In order to give a concrete picture of our recom-

mendations, we have shown them in the form of draft
amendments to the existing Code, in an Appendix The
other Appendices contain detailed discussion of several
points arising under some of the sections. We have thought
it proper to put them in Appendices, to avoid interruption
of the main thread of discussion.

One of the Appendices summarises our recommenda-

tions in respect of other Acts.

1. (J. L. Kapur) Chairman.

2. (K. G. Datar)

3. (S. S. Dulat)

4. (T. K. Tope) ? Members-
5. (Rama Prasad Mookerjee)" J

P. M. Bakshi,
Joint Secretary and
Legislative Counsel.

New Delhi
the 16th December, 1967.

Section 177
to 565.

1. See discussion regarding section 174-
2. Shri Mookerjee has signed the Report subject to the note appended.

APPENDIX 1

Recommendations as shown in the form of draft
amendments to the existing Code.

(This is a tentative draft only).

Section 3

5 of 1898; In section 3 of the Code of 'Criminal Procedure, 1898,
(hereinafter referred to as the "prindipal Act"), the
following sub-section shall be inserted at the end namely:----

"(3) In every enactment passed on or after the
first day of July, 1898 and before the Code of Criminal
Procedure (Amendment) Act 196...comes into force:--

(a) references to a Magistrate of the first, second
or third class shall be construed as references to a
Judicial Magistrate of the first, second or third class
respectively;

(b) references to any other Magistrate, not being
references to a Presidency Magistrate shall be con-
strued as references to the corresponding Judicial or
Executive Magistrate as the nature of the case may
require.

Section 4(1)

In section 4 of the principal Act, in sub-section (1),---

(i) in clause (h), insert the following Explanation
at the end, namely:----

"Explanation--A report made by a police
oﬁicer in a non-cognizable case investigated with-
out conforming to the provisions of sub-section (2)
of section 155 shall be deemed to be a complaint."
(ii) for clause (i), substitute the following,

namely:--

"(1) "High Court" ................ ..in relation to
any .... ..local area, means the highest court of
criminal appeal for that area (other than the
Supreme Court) or, where no such court is esta-
blished under any law for time being in force,
such officer as the State Government may appoint
in this beha1f;"

(iii) for clause (k), substittue the following,
namely:---
"(k) inquiry means every inquiry (other
than a trial) conducted under this Code by a
Magistrate or Court;

(V) for clause (q), substitute the following,
namely:--

"(q) "place" includes also a house, build-
ing, tent, vehicle and vessel;"

150

151

(vi) for clause (r), substitute the following,
namely:-

"(r) "pleader", used with reference to any
proceeding in any court, means a person
authorised under any law for the time being
in force to practise in such Court ....... .., and
includes any other person appointed with the
permission of the Court to act in such pro-
ceeding."

Section 6

For section 6 of the principal Act, substitute the
following section, namely 2--

"6. Besides the High Courts and the Courts cons- Classes of
tituted under any law other than this Code for the Crlmrtml
time being in force, there shall be two classes of °°" 5'

Criminal Courts in India, namelv:-- Cf- S"'°"°"6
_ _ ~ Bombay and
1. Courts of Sessions; Punjab.

ll. Courts of Magistrates;

Section 6A (New)

After section 6 of the principal Act, insert the follow-
ing new section, namely:---

"6A. (1) There shall be the following classes of class" °f

Magistrates, namely:-- Magistrates'
1. Judicial Magistrates Cf_ 5_ 5A
(1) Presidency Magistrates; B°mbaY and

(2) Chief Judicial Magistrates; Punjab.

(3) Judicial Magistrates of the first class:
(4) Judicial Magistrates of the second class;
(5) Judicial Magistrates of the third class.
(6) Special Judicial Magistrates.
II. Executive Magistrates

(1) District Magistrates;

(2) Sub-divisional Magistrates;

(3) Executive Magistrates of the first class;

(4) Executive Magistrates of the second class;

(5) Presidency Magistrate specially empowered by
the State Government:

(6) Special Executive Magistrates.

(2) The expression "a Magistrate" or "any_ Magistrate", Cf~3S3e§ als
when occurring in this Code _without any qualifying words, Eeéergi
shall be construed as including Judicial as well as Execu- clauses Ac.

tive Magistrates. 1897.
Section 7

In section 7 of the principal Act, for sub-section (2),

substitute the following sub-section, namely:-
"(2) The State Government. in consultation with the Sf' ?h°

High Court, may alter the limits or the number of such

amendment.
divisions and districts."

152

Section 9

For section 9 of the principal Act, substitute the
following section, namely:--

gfnnjpffgpoﬂ "9. (1) The State Government shall establish a
ofthe Law Court of Session for every sessions division .......... ..
Commission (1A) The High Court shall appoint1 'ud of uch
gecélslircinclf Court' a J ge S

_ (2) The High Court may, by general or special order
in the Official Gazette, direct at what place or places
the Court of Session shall ordinarily hold its sitting
but if, in any particular case, the Court of Session is
of opinion that it will tend to the general convenience
of the parties and witnesses to hold its sitting at any
other place in the sessions division, it may, with the
consent of the prosecution and the accused, sit at that
place for the disposal of the case or the examination
of any witness or witnesses therein.

(3) The High Court may also appoint Additional
Sessions Judges and Assistant Sessions Judges to exer-
cise jurisdiction in one or more such courts.

(4) A Sessions Judge of one Sessions division may
be appointed by the High Court to be also an Additional
Sessions Judge of another division, and in such case,
he may sit for the disposal of cases at such place or
places in either division as the High Court may direct.

(5) All Courts of Session existing when this Code
comes into force shall be deemed to have been estab-
lished under this Act.

Section 10

In section 10 of the principal Act, for sub-sections (1)
and (2), substitute the following sub-sections, name1y:----

"10. (1) In every district outside the presidency-

District _
Magistrate towns the State Government shall appoint an
and_(;hief Executive Magistrate of the first class, who shall be
]];'1':'g';';late called the District Magistrate.

Of. 5. 10(1) (A) In every district outside the presidency-towns the

Puﬂiah High Court shall invest a Judicial Magistrate of th-e ﬁrst
class with the powers of a Chief Judicial Magistrate under
this Code or any other law for the time being in force

Cf. s. 10(2) (2) The State Government may appoint any Executive

Punjab Magistrate of the ﬁrst class to be an Additional District
Magistrate, and such Additional District Magistrate shall
have all or any of the powers of a District Magistrate
under this Code or under any other law for_ the time being
in force, as the State Government may direct'

1. The draft proceeds on the assumption that "appointment" and "posting" and
"promotion" in article 233 of the Constitution are conﬁned to appointment to thecadrer
and do not cover what may be called allotment or assignment to a particular Court or area.

7.. it may be necessary to make certain further amendments in section 10 (Compare
section 10(2A) and section 10(3), Bombay amendment), after amendments in sections 192,
406A, 528 etc. are decided upon on the lines of the Bomnay amendment to those sections.

153

Section 12

For section 12 of the principal Act, substitute the
following section, namely 2 -

"12. (1) The State Government may appoint as Executive
many persons as it thinks ﬁt, besides the District andiudidai
Magistrate, to be Executive Magistrates of the ﬁrst, or Mag'5"a'°'

second...class in any district outside the presidency- Cf' 9- 12
towns and the State Government, or the District Pu"'ab'
Magistrate, subject to the control of the State Govern-
ment, may from time to time deﬁne local areas within
which such persons may exercise all or any of the
powers with which they may respectively be invested
under this Code.
(2) The High Court may appoint any person to be a
Judicial Magistrate of the ﬁrst, second or third class in
any district outside the presidency-towns, and the High
Court or the Chief Judicial Magistrate subject to the con-
trol of the High Court may, from time to time, define the
local areas within which he may exercise all or any of
the powers with which he may be invested under this Code.

(3) The State Government, in consultation with the
High Court, may for such period not exceeding six months
from the commencement of the Code of Criminal Proce-
dure (Amendment) Act, 196 .... ..as it may think ﬁt, appoin

t Note Refe-
rence is to

as many persons as may be considered necessary to be the present
Judicial Magistrates of the ﬁrst or second or third class in Amendment

any district outside the presidency-towns, and the State Bi"-
Government, in consultation with the High Court, may
define local areas within which such persons may exercise

all or any of the powers with which they may respectively

be invested under this Code.

(4) Except as otherwise provided by such deﬁnition
the jurisdiction and powers of such persons shall extend
throughout such district"-

Section 13(1)

In section 13 of the principal Act, for sub-section (1),
substitute the following sub-section, name1y:----

"(1) The State Government may place any Execu-
tive Magistrate of the ﬁrst or second class in charge
of a sub--division and relieve him of the charge as
occasion requires.

Section 13(2A) and (2B) (New)

In section 13 of the principal Act, after sub-section
(2), insert the following sub-section, namely:-

(2A) The State Government may appoint any section 13

Executive Magistrate of the first or second class to be (M) and
an Additional Sub-divisional Magistrate, and such (23)-
Additional Sub-divisional Magistrate shall have all or

any of the powers of a Sub-divisional Magstrate under

this Oode or under any other law for the time being

in force, as the State Government may direct;

No'1'E.--Section l2(lA), Bombay and section 12(5), Punjab, relate to "appointment"

in the sense of recruitment. '

Special Judi-
cial Magistta--
te. Cf. Sec-
tion 14 Bom-

Jab.

Special
Executive
Magistrate.
Compare
Section 14
(2), Bombay
and existing
Section 14.
(1)

Cf. s. 14(4).

154

(2B) For the purposes of sub-section (1) of section
192 and sub-section (2) of section 528, such Additional

Sub-Divisional Magistrates shall be deemed to be sub-

ordinate to the Sub-Divisional Magistrate"

Section 14
For section 14 of the principal Act, substitute the

following section, namely :-

"14. (1) The High Court may confer upon any

person who holds or has held any judicial post under the
Union or a State or possesses such other qualiﬁcations as
bay and pun. may ............................ ..be speciﬁed in this behalf by the
' High Court .... ..all or any of the powers conferred or con-
ferrable by or under this Code on a Judicial Magistrate...
in respect to particular cases or to a particular class or
particular classes of cases, or in regard to cases generally,
in any local area outside the presidency-towns.

(2) Such Magistrates shall be called Special Judicial

Magistrates, and shall be appointed for such term as the
High Court may by general or special order direct.

ing

Section 14A (New)

After section 14 of the principal Act, insert the follow-
section, namely:-----

"14A. (1) The State Government may also appoint
Executive Magistrates for particular areas or for the
performance of particular functions and confer upon
them such powers conferred or conferrable by or under
this Code on an Executive Magistrate of the first or
second class as it deems fit.

(2) Such Magistrates shall be called Special Exe-
cutive Magistrates, and shall be appointed for such
term as the State Government may by general or
special order direct:

Provided that no powers shall be conferred under
this section on any police officer below the grade of
Assistant or Deputy Superintendent, and no power
shall be conferred on a police oﬂicer except so far as
may be necessary for preserving the peace, preventing
crime and detecting apprehending and detaining
«offenders in order to their being brought before a
Magistrate and for the performance by the officer of
any other duties imposed upon him by any law for
the time being in force.

(3) The State Government may delegate, with such
limitations as it thinks fit, to any oﬁicer under its
control the powers conferred by sub-sectwn. (1) or (2).

155

Section 15

In section15 of the principal Act, for sub-section (1),
substitute the following section, namely :------

"(1) The High Court may direct any two or more Cf. Section
Judicial Magistrates in any place outside the presi--15.Puniab.
dency-towns to sit together as a Bench, and may by
order invest such Bench with any of the powers con-
ferred or conferrable by or under this Code on 0.
Judicial Magistrate of the first, second or third class,
and direct it to exercise such powers in such cases, or
such classes of cases only and within such limits. as the
High court thinks ﬁt."

Section 16

In section 16 of the principal Act, for the words "The Cf- §. 16
State Government may, or, subject to the control of the P"'""b-
State Government the District Magistrate may make rules _
consistent with this Code for the guidance of Magistrates' Cf-5°°"°"
Benches in any district" substitute the words "The High5 4'
Court, with the previous sanction of the State Government
may, from time to time, make rules consistent with this
Code for the guidance of Judicial Magistrates' Benches in
any district outside the Presidency-towns."

Section 17

For section 17 of the principal Act, substitute the
following, namely:--

"17(1). All Judicial Magistrates appointed under Subordina-
sub-section (2) and (3) of section 12 and section 14 5011,01"
and all Benches constituted under section 15, shall,
subject to the control of the Sessions Judge be sub- Judge and
ordinate to the Chief Judicial Magistrate, and the Judicial
Chief Judicial Magistrate may, from time to time, Maeistratw
make rules or give special orders consistent with this Cf. §. 17
Code as to the distribution of business among such Pﬁlgb "£5
Magistrates and Benches. 5' °"' 'W'

(2) All Chief Judicial Magistrates shall be sub-

ordinate to the Sessions Judge.
"'1 NoI:e--Exist-

ing s. 17(2)
relating to
subordina-
tion to S.D.
M. omitted
here.

(3) All Assistant Sessions Judges shall be subordi-
nate to the Sessions Judge in whose court they exercise
jurisdiction, and he may, from time to time, make
rules consistent with this Code as to the distribution
of business among such Assistant Sessions Judges.

1. Existing section 17(2) relating to subordination to Sub-divison Magistrates is
omitted here. See section 17A (proposed)-

156

_ (4) The Sessions Judge may also, when he himself
is unavoidably absent or incapable of acting, make
provisionfor the disposal of any urgent application by
an Additional or Assistant Sessions Judge, or, if there
be _no Additional or_Ass1stant Sessions Judges, by the
Chief Judicial Magistrate, and such Judge or Magis-
trate shall have Jurisdiction to deal with any such

application.
Existing
section 17(5)
is omitted.
Section 17A (New)
After section 17 of the principal Act, insert the follow-
ing new sections, namely:--
t5}Ib°r<;ina- "17A(1). All Executive Magistrates axppointed
E';';'c:tive under subl-'section (1) of section 12 and section 13 shall
Magistrates be subor mate _to the District Magistrate, an_d_e_very
Cf. s. 17A. Executive Magistrate (-other than a Sub-divisional
Bombay and Magistrate) exercising powers in a Sub-division shall
P""5"b' also be subordinate to the Sub-divisional Magistrate,
subject, however, to the general control of the District
Magistrate.
(2) The District Magistrate may, from time to time,
make rules or give special orders consistent with this
Code as to the distribution of business among the
Executive Magistrates subordinate to him and as to
allocation of business to an Additional District Magis-
trate.
Section 17B (New)
Courtsinfe- "17B. (1) Courts of Session shall be criminal courts
rior to the inferior to the High Court.
High Court _ . _ .
and the (2) Courts of Presidency Magistrates shall be criminal
CW" °f courts inferior to the High Court
Session '
:3-o1n7}Eg,)'and (3) Courts of Judicial and Executive Magistrates out-

p Nab side the presidency-towns shall be criminal courts inferior

C1il'.s.435(1). to the Court of Session andto the High Court."
Explanation

Cf. s. 17B
Bombay.
Cf. section
17B,Punjab.
Section 18
For section 18 of the principal Act, substitute the
following section, namely:--
Appoinv "18(1) The High Court shall, from time to time,
£,"°.':i' °f appoint a sufﬁcient number of persons (hereinafter
1'51 ency

Magistrates.

157

called Presidency Magistrates) to be Magistrates for
each of the Presidency-towns, and shall appoint one of

such persons to be Chief Presidency Magistrate for
each town.

(2) The powers of a Presidency Magistrate under
this Code shall be exercised by the Chief Presidency
Magistrate, or by a salaried Presidency Magistrate or

by any other Presidency Magistrate empowered by the
High Court to sit singly, or by any Bench of Pre-
sidency Magistrates.

(3) A Presidency Magistrate may be appointed
under this section for such term as the High Court
may, by general or special order, direct.

(4) The High Court may appoint any person to be Note section
an Additional Chief Presidency Magistrate, and such 18(5),Bom-
Additional Chief Presidency Magistrate shall have all b°Yvd°"15
or any of the powers of a Chief Pr ﬁtment" in
as the High Court may direct." the sense 01
recruitment,
It has not';
been
adopted,

Section 21

For section 21 of the principal Act, substitute the
following section, namely : --

"21. (1) Every Chief Presidency Magistrate shall
ower of ChiefPresi- exercise within the local limits of his
dencv Magistrate jurisdiction all the powers---

(a) when are conferred on him by this Code, Cf_ s_ 21(1)'
part.
(b) which by any law or rule in force imme-

diately before the first day of July, 1898, are re-

auired to be exercised by any Senior or Chief
Presidency Magistrate

O1'

(2) The Chief Presidency Magistrate, with the pre- . V
vious sanction of the High Court may, from time to c:,l:::__
time make rules consistent with the Code'-

(a) to regulate the conduct and distribution of Cr; 55 15,
business and the practice in the courts of Presi-
dency Magistrates.

(b) for the guidance of Benches of such Magis-
trates respecting the following subjects, namely :--

(i) the classes of cases to be tried;
(ii) the times and places of sitting:

. (iii) the constitution of the Benches for con-.
ducting trials; and

esidency Magistrate with "ap"°"

Cf, s. 21(2),
Part.

Contrast
s. 21(2), part
and compare

s. 17(1).

5
Justice of the
Peace.

Powers of
Justices of
the Peace,

158

_(iv) the mode of settling differences of opinion
may arise between the Magistrates in
n

(3) The High Court may, for the purposes of this
Code, declare w_hat ......................... ..Additiona1 Chief
Presidency Magistrates are subordinate to the Chief
Presidency Magistrate and may deﬁne the extent of
their subordination.

_(4) Every Presidency Magistrate appointed under
section 18, and all Benches constituted under section
19, shall be subordinate to the Chief Presidency Magis-
trate and the Chief Presidency Magistrate from time
to time, make rules or give special orders consistent
with this Code as to the Distribution of business among
such Magistrate and benches."

Section 22
For section 22 of the principal Act, substitute the

following section, namely:----

"22. Every State Government .... ..may, by notiﬁcation

is the Oﬂﬁcial Gazette, in consultation with the High Court,
appoint such persons, being citizens of India, as it thinks ﬁt,
to be Justices of the Peace within and for the local area
mentioned in such notiﬁcation.

Section 22A (New)
After section 22 of the principal Act, insert the follow-

in sections,. namely :--

"22A. A Justice of the Peace for any local area
shall, for the purpose of making arrest, have within such
area all the powers of a police--0ﬁ'icer referred to in
section 54 and of an oﬂicer-in-charge of a police station
referred to in section 55.

(2) A Justice of the Peace making _an arrest in
exercise of any powers under sub-section (1) shall
forthwith take or cause to be taken the person arrested
before the oﬂicer in-charge of the nearest police-station
and furnish such oﬂicer with a report as to the cir-
cumstances of the arrest. C

(3) Such oﬁicer shall, thereupon, re--arrest the
person.
(4) A Justice of the Peace for any local area shall

have power, within such area, to call upon any mem-
ber of the police force on duty or any volunteer to aid

him-
(a) in taking or preventing the escape of any
person who has participated in the commission of

159

any cognizable offence or against whom a reason-
able complaint has been made or credible infor-
mation has been received or a reasonable suspicion
exists of his having so participated;

(b) in the prevention of crime in general and,
in particular, in the prevention of a breach of the
peace or a disturbance of the public tranquility.

(5) Where a member of the police force on duty or
volunteer has been called upon to render aid under
sub-section (3), such call shall be deemed to have been
made by an authority competent to make the call.

(6) A Justice of the Peace for any local area, not
being a legal practitioner, may, in accordance with
suh rules as may be made by the State Government_.---

(a) issue certiﬁcate as to the identity of any
person residing within such area, or

(b) verify any document brought before him by
any such person, or

and until the contrary is proved, any certiﬁcate so
issued shall be presumed to be correct and an docu-
ment so veriﬁed shall be deemed to be duy veri-
ﬁed and any document so attested shall be deemed to

have been as fully attested as if he had been a Magis-
trate.

Explanation:---In this section, the expression
"volunteer" means a volunteer a pointed under the
West Bengal National Volunteer orce Act, 1949, as
in force in the State of West Bengal or a person with
similar duties appointed under a similar law in force
in any other State.

Section 22B

"22B(1) Subject to such rules as -may be made by the Re-cordips
State Government, every Justice of the Peace for any local "tf t':"':"t's
area may, when so requested in writing by a police-oﬂicer ;;',u';,;s of
making an investigation under this Code in respect of any peace,
oﬁence committed within such local area, record any state-
ment made by a person in respect of whom an ojfence
affecting the human body is believed to have been com-
mitted, being a statement relating to the circumstances of

the oﬁence or of the transaction which resulted in the
oﬁence.

(2) The provisions of sub-section (2) of section 164
relating to the manner of recording statements shall, as
far as may be, apply to the recording of a statement under
sub-section (1) as if the statements were recorded by a

Presidency Magistrate or a Magistrate of the first class.

160

Section 25

For section 25 of the principal Act, substitute the
following section, namely :--

EX. oﬂic' - . .
Justices'; "25. In virtue of their respective offices,-

the Peace. (a_) the Judges of the_ Supreme Court and of
the High Courts are Justices of the Peace within
and for the whole of India;

(b) Sessions Judges, Chief Judical Magistrates
and District Magistrates are Justices of the Peace
Within and for the whole of the territories, ad-
ministered by the State Government under which
they are serving;nand ~

(c) Presidency Magistrates are Justices of the
Peace within and for the towns of which they are
respectively Magistrates.

Section 29B
For section 29B of the Principal Act, substitute the
following section, namely :--

g:'§:'Sl;°;if°" "29B. Any offence, other than one punishable with
}uVenﬂeS_ death or imprisonment for life, committed by any per-

son who at the date when he appears or is brought
before the Court is under the age of ﬁfteen years may
be tried-
(a) by a Chief Presidency Magistrate,
(b) by a Chief Judicial Magistrate, or A
(c) by any other Judical Magistrate specially
empowered by the High Court,' to exercise the
powers conferred by sub-section (1) of section 8 of
2 of 1897 the Reformatory Schools Act, 1897, or
(d) in any area in which the said Act has been
wholly or in part repealed by any other law pro-
viding for the custody, trial or punishment or
youthful offenders, or in which the said Act does
not extend and there is in force any other law
providing for the custody, trial or punishment of
youthful oﬁenders, by any Magistrate empowered
by or under such law to exercise all or any of the
powers conferred thereby.

Section 30

For section 30 of the principal Act. substitute the

following section name1y:---- .
Offence "30. Notwithstanding anything contained in section 28
punishable or section 29, the High Court may invest any Presidency
with impriv Maistrate, Chief Judicial Magistrate or Judicial Magistrate

§;'§§e°§'fng"°t of the ﬁrst class with power to try as a Magistrate all
seven years.

1, The mention of "High Court" is on the assumption that section 8(1) of the Refor-
matory Schools Act, 1897, will also be amended.

16:1

offences not punishable .with death or with imprisonment
for life or with imprisonment for a term exceeding ten years.

(Proviso omitted.)

Section 36

For section 36 of the principal Act, substitute the
following section, namely:--~

"36. All District Magistrates, Chief Judicial Magis-
trates, Sub-divisional Magistrates and Judicial and
Ordinary powers Executive Magistrates other than
of Magistrates. Special Judicial Magistrates and Special _
Executive Magistrates have the powers hereinafter l§°°'i'%"
respectively conferred upon them and speciﬁed in the ' "ma '
third schedule. Such powers are called their 'ordinary
powers'.

Section 37

For section 37 of the principal Act. substitute the
following section, namely 2 --

"37. In addition to his ordinary powers,--~(i) the cf_s_ 37'
Additional powers High Court may invest any Judicial Punjab_
conferable on Ma-- Magistrate with any of the powers as
gi5"""°5- speciﬁed in Part I of the Fourth

Schedule;

(ii) a Chief Judicial Magistrate may invest any
other Judicial Magistrate within his local jurisdiction
with the powers speciﬁed in Part I of the Fourth
Schedule;

(iii) the State Government may invest any Exe-
cutive Magistrate with any of the powers as speciﬁed
in Part II of the Fourth Schedule; and

(iv) a District Magistrate may invest any Execu-
tive Magistrate within his local jurisdiction with the
powers speciﬁed in Part II of the Fourth Schedule."

Section 38

For section 38 of the principal Act, substitute the
following section, namely :--

"38. The power conferred by clause (ii) of section Cf-$.38,
Contmlof invest' 37 shall be exercised subject to the P""J"b-
mg power. control of the High Court, and the

power under clause (iv) of that sec-
tion shall be exercised subject to the control of the
State Government."
12--29 Law/68

162

Section 38A (New)

_ After section 38 of the principal Act, insert the follow-
ing section, namely:--

"38A. Whenever, under any provisions of this
powers 0,, Judicial Code or of any law for the time being
Magistrates to be in force relating to any of the matters
coflferred by the speciﬁed in lists II and III of the
H'gh C°'"" Seventh Schedule to the Constitution,

any judicial powers are to be conferred on a Sessions
Judge, an Additional or Assistant Sessions Judge, Chief
Judicial Magistrate or any other Judicial Magistrate or
any such Magistrate is to be specially empowered to
exercise such powers, the orders conferring such crwers
shall be made by the High Court notwithstanding that
such provision may not expressly so provide.

E.rplanation.----For the purposes of this section, the
question whether any powers are judicial shall be
decilded by the High Court, and such decision shall be
ﬁna .7)

Section 39

In section 39 of the principal Act, for sub-section (1).
substitute the following sub-section, namely 1-

"(1) In conferring powers under this Code the State
Government or the High Court as the case may be
may by order empower persons specially by name or
in virtue of their office or classes of officials generally
by their official titles."

Section 40

In section 40 of the principal Act, for the words "the
'State Government", occurring for the second time, substi-
tute the words "the State Government or the High Court,
-as the case may be".

Section 41

For section 41 of the principal Act, substitute the
following section, namely:---4
"41 (1) The State Government or the High Court,
Withdrawal of as the case may be, may wit draw all
powers- or any of the powers conferred under
this Code on any person by it or by any officer sub-
ordinate to it.
(2) Any powers conferred by the Chief -Tfudicial
Magistrate or the District Magistrate may be with-
drawn by him."

Section 44

In section 44 of the principal Act, for the ﬁgures "435,
I436" substitute the words, brackets and ﬁgures "431 to 439

(both inclusive)".

163

Section 45

In section 45 of the principal Act, in sub-section (1),
for clause (a) substitute the following clause namely:----

(a) the permanent or temporary residence of any
notorious receiver or vendor of stolen property in any
village of which he is headman, accountant, watchman,
or police-officer or in any village in which he owns
or occupies land, or is agent of any such owner or
occupier, or is a member -of such village panchayat, or
collects revenue or rent ;

Section 52A (New)

After section 52 of the principal Act, insert the follow-
ing new section, namely :--

"52A. (a) When a person is in lawful custody upon

Examination (1 charge of committing any oﬁence of
of person such a nature and alleged to have
by medical been committed under such circums-
P"'°'"'°"°" tances that there are reasonable

grounds for believing that an e7caminati()n of his per-

son will aﬁord evidence as to the commission of the

offence, it shall be lawful for a legally qualiﬁed medi-

cal practioner, acting at the request of a police oﬂicer

not below the rank of Sub-Inspector, and for any per-

son acting in good faith in his aid and under his direc- compare s_
tion, to make such an examination of the person so in 259, Crimi-
custody as is reasonably necessary in order to ascertain H31 (E046
the facts which may afford such evidence and to use (A"S""1"')'

such force as is reasonably necessary for that purpose. Pam"

(2) Whenever the examination of the person of acf. s. 129A,
woman is to be carried out under this section, such B0ml;?8y_
examination shall be carried out only by, or under the ffgh*l'§'4';'"
supervision of, a female legally qualiﬁed medical ' '
practitioner."

Section 54

In section 54 of the principal Act, in sub-section (1),
in clause Ninthly, after the words "any person for whose
arrest a requisition has been received' from another police
officer", insert the words "whether such requisition is' in
writing or not".

Section 55(1) (a)

In section 55 of the principal Act, in sub-section (1),, Cf. amend-
in cluase (a), for the words "any person found taking pre- '"01" pro-
cautions to conceal his presence within the limits of such §:C't'l?gn 153
station" substitute the words "any person within the limits (3),
of such station found taking precautions to conceal his

presence ....... .."

Compare
sections 60,
496.499 of
the Code.

164:

Section 55(1) (c)

. In section 55 of the principal Act, in sub--section (1),
in clause (c), for the words "fear for injury" substitute the
words "fear of injury".

Section 56

In section 56 of the principal Act, insert the following
sub--section at the end, namely:--

"(3) Nothing in this section shall affect the powers
of a police-oﬂicer to arrest a person under section 54".

Section 57

In section 57 of the principal Act. in sub-section (2),
for the words "a Magistrate" substitute the words "a Magis-
trate having jurisdiction".

Section 59

In section 59 of the principal Act, for sub--section 5(1),
substitute the following sub--section, namely : --~ .'

"(1) Any private person may arrest or cause to be
arrested any person who in his view commits a non-
bailable and cognizable ojfence, or any proclaimed
offender, and, without unnecessary delay, shall make
over or cause to be made over any person so arrested
to a police-officer, or in the absence of a police olﬁcer
take such person or cause him to be taken in custody
to the nearest police--station."

Sections 59A and 59B (New)

After section 59 of the principal Act, insert the follow-
ing sections, namely:---

"59A. Every police oﬂicer or other person arresting
Person arr_°S- any person without warrant shall .com-
"ed '° 1"' "" municate to him full particulars of the

f d f . .
g';f,'f,'§dS 2; oﬂence for which he 13 arrested or other
arrest. grounds for such arrest.

Section 59B

"59B. Where a police-oﬂicer arrests without warrant
Police-Oﬂicer any person other than a person ac-
'°"'f°"" cused of a non-bailable offence, he
§:cis8;1r?;i:;S' shall inforrln dthe pgrsonl ar"re(:i'ted tbhati
to bail he is entite to e re ease on ai

and that. he may arrange for sureties
to offer bail on his behalf."

Section 61
In section 61 of the principal Act, for the words "No
police-officer shall detain in custody a person arrested with-

out warrant", substitute the words "No person who has
been arrested without warrant shall be detained, in

custody."

165

Section 63

In section 63 of the principal Act, for the words "a C5 bi» 53:
l_VIagistrate", substitute the words "a Magistrate having gﬁggiagl' md
jurisdiction".

Section 68

In section 68 of the principal Act, for sub-section (1).
substitute the following sub-section, namely:--

"(1) Every summons issued by a Court under this C5 5- 75-

Code shall be in writing, in duplicate, signed by
the presiding ofﬁcer of such Court (or, in the case of
a Bench of Magistrates, by any Member of such Bench),
or by such other officer as the High Court may, from
time to time, by rule, direct, and shall bear the seal
of the Court.

Section 68(4) (New)

In section 68 of the principal Act, insert the following
sub-section at the end, namely :--

"(4) Nothing in this section shall affect the provi-
sions of section 74A."

Section 70

For section 70 of the principal Act, substitute the
following section, name1y:--

"70. Where the person summoned cannot by the Service
exercise of the due diligence be tound, the summons may when person

be served by leaving one of the duplicates for him with ggxgfnedbe
some adult male member of his family; ....... ..the person found_

with whom the summons is so left, shall, if so required cf_ 0 5 R_
by the serving ofﬁcer, sign a receipt therefore on the 15, C55; of

back of the other duplicate. Civil Proce-
_ _ . dure 1908.
Explanation: A servant is not a member of the family

within the meaning of this section."

Section 71

For section 71 of the principal Act, substitute the
following section, namely :--

"71. If service in the manner mentioned in sections pmgedure
69 and 70 cannot by the exercise of due diligence be when service
effected, the serving ofﬁcer shall aﬂix one of the dupli- Cgnnotd be
cates of the summons to some conspicuous part of the Egg: pr:
house or homestead in which the person summoned vid¢d_
ordinarily resides; and the Court, after making such cf 0 5
inquiry as it thinks ﬁt, may either declare that the sum-- 19' cad'; R;
mons has been duly served, or order fresh service in C5,'; p,°c:_
such manner as it considers proper. dure 1908,

166

Section 744 (New) contd.

_ After section 74 of the principal Act, insert the follow-
ing section name1y:--

Issue of _ "74A. (1) In the case of witnesses the court may,
summons for in addition to and simultaneously with the issue of a
service by summons for service in the manner provided in sections
post. 68 to 74 (both inclusive) also direct the summons be

served by registered post addressed to the witness at
the place where the witness ordinarily resides or carries
on business or personally works for gain?

Cf. Order 5, (2) When an_ acknowledgement purporting to be
g'g§eZ°A(2g% signed by the witness or an endorsement purporting
CM] pro", to be made by postal employee that the witness refused
dure,1908_ to take delivery has been received, the Court issuing
the summons may declare that there has been valid
service."
Section 78

In section 78 of the principal Act, for sub-section (1),
substitute the following sub-section, name1y:--

"(1) A District Magistrate or a sub-divisional
Magistrate or a Chief Judicial Magistrate or a Judicial
Magistrate of the ﬁrst class may direct a warrant to
any landholder, farmer or manager of land within the
area of his jurisdiction for the arrest of any escaped
convict, proclaimed offender or person who has been ac-
cused of a non-bailable offence, and who has eluded
pursuit."

Cf. . 78 1 :
Punjsab_ ()

Section 87(2)

In section 87 of the principal Act, in sub-section (2),
insert the following clause at the end, namely :-

"(d) if the Court so directs, a copy thereof shall also
be published in a daily new Qper circulating in the
place in which such person or inarily resides."

Section 88

In section 88 of the principal Act, in sub-section

(a) in sub-section (2), for the words "District

19- ,5-b33(2)v Magistrate or Chief Presidency Magistrate", substitute

""'a ' the words "Chief Presidency Magistrate, District
Magistrate or Chief Judical Magistrate";

(b) in sub-section (6), for the words and figures

"Chapter XXXV I of the Code of Civil Procedure", subs-

5 °f19°8' titute the words and ﬁgures "Code of Civil Proce-
dure, 1908";

1. Cf. 27th Report (Code of Civil Procedure), pages 46-47, Order 5, Rule 19A, as
proposed in that Report.

167

(c) in sub-section (6B), for the words "District
Magistrate or Chief Presidency Magistrate", substitute Cf,s.88(6B),
the words "Chief Presidency Magistrate, District Punjab.
Magistrate or Chief Judicial Magistrate".

(d) in sub-section (6C). in the proviso, for the words contrast 5

"District Magistrate or Chief Presidency Magistrate", 85(6c),P,m_'

substitute the words "Chief Presidency Magistrate"-ab_
District Magistrate or Chief Judicial Magistrate."

Section 91

In section 91 of the Principal Act, after the words "for
his appearance in such court", insert the words "or in any
other court to which the case may be transferred for trial."

Section 94

In section 94 of the principal Act, after the words and 13 of 1391_
ﬁgures "the Indian Evidence Act, 1872, sections 123 and 124",
insert the words and ﬁgures "of the Banker's Books Evi-
dence Act, 1891".

Section 95

In section 95 of the principal Act, after the words Cf. _S- 95..
"District Magistrate". wherever they occur, insert the words P""Jab-
"Chief Judicial Magistrate".

Section 96

In section 96 of the principal Act, in sub-section (2), Cf- _S-95(2)»
for the words "District Magistrate or Chief Presidency "Wab-
Magistrate," substitute the words "Chief Presidency Magis-
trate. District Magistrate or Chief Judicial Magistrate."

Section 98
In section 98 of the principal Act,-

(a) in sub-section (1), after the words "District
Magistrate" wherever they occur, insert the words
"Chief Judicial Magistrate".

(b) in sub-section (2), for the words and ﬁgures
"section 19 of the Sea Customs Act, 1878" substitute the 52 of 195z_
words and ﬁgures "section 11 of the Customs Act, 1962".

Section 99A

In section 99A of the principal Act, in sub-section (1),--

(i) after the words "diﬁerent classes of the citizens
of India", insert the words "or which is obscene";

(ii) after the word and ﬁgures "section 143A", insert
the words and ﬁgures "or section 292".

168

Section 106

In section 106 of the principal Act, for sub-section (1),
substitute the following sub-section, name1y:--

"(1) Whenever any person accused of--

(a) any offence punishable under Chapter VIII
of the Indian Penal Code, other than an offence
punishable under section 143, section 153A or sec-
tion 154 thereof, or

45 of 1860.

(b) assault or any other offence which has
caused or is intended or likely to cause a breach of
the peace, or

(d) abetting any oﬁence speciﬁed in clause (a),
(b), (or) (c) of this sub-se-ction,

is convicted of such offence before a High Court, a

E:-Ijgigéggé 'Court of Session or the Court of a Presidency Magis-

Punl-ab} gate, a Chieff {Ludﬁcial %VIag,1;strate or any other Judicial
agistrate o t e rst c ass.

And such Court is of opinion that it is necessary to
require such person to execute a bond for keeping the
peace, such Court may, at the time of passing sentence
on such person, order him to execute a bond for a sum
proportionate to his means, with or without sureties,
for keeping the peace during such period, not exceed-
ing three years, as it thinks ﬁt to ﬁx.

Explanation.---Where any offence speciﬁed in this
sub-section--

(a) is committed by (1. member of an unlawful
assembly in prosecution of the common object of
the assembly, or

cf, section (b) is committed by a member of an unlawful
I1,49,l énciiian assembly and the oﬂence is one which the members
ena O C.

of the assembly knew to be likely to be committed
in prosecution of the common object of the assembly,
then an order under this section may be passed
against every person who is a member of the assem-
bly when the offence is committed, whether or not
he has himself committed the offence."

Section 107

In section 107 of the principal Act, for the words "Pre-
Cf S_1o7(1) sidency Magistrate, District Magistrate, Sub-divisional
13o'mbay_ 'Magistrate or Magistrate of the ﬁrst class", substitute the
Cf. existing words "Presidency Magistrate specially empowered by the
s. 107(1). State Government in this behalf. District Magistrate, Sub-
Cf_s_1o7(1), divisional Magistrate, or Executive Magistrate of the ﬁrst
Punjab. class."

169
Section 108

In section 108 of the principal Act, for the words Cf e . t.
"Chief Presidency or District Magistrate or a Presidency sec'tio,',u1sol3x?g
Magistrate or Magistrate of the ﬁrst class specially em- cf 5 108
powered by the State Government in this behalf", substi- Bdmblay. '
tute the words "Chief Presidency Magistrate, District cg S_ 108
Magistrate, Presidency Magistrate specially empowered by Punjab.
the State Government in this behalf or an Executive Magis-
trate of the ﬁrst class specially empowered by the State
Government in this behalf".

Section 109

In section 109 of the principal Act, (a) for the words CE 8- 109»
"a Presidency Magistrate, District Magistrate, Sub-divi-B°mbaV(P'°'

sional Magistrate, or Magistrate of the ﬁrst class", substi- ;$:,::Zs)l_wa'
tute the words "a Presidency Magistrate specially em- Cf existing

powered by the State Government in this behalf, or a Dis- s_ 109 (Dist.
trict Magistrate or Sub--divisional Magistrate or an E.7cecu- rict Magis-
tive Magistrate of the ﬁrst class"; Eiagedivisfozd
(b) in clause (a), for the words "that any person is iﬁm, Magls
taking precautions to conceal his presence within the local 109

limits of such Magistrate's jurisdiction" substitute the words pu',,J-3);; (axe:
"that any person within the local limits of such Magistrate's cutive Magis-
jurisdiction'. is taking precautions to conceal his presence... tratcs).

Section 110

In section 110 of the principal Act, for the words "a gf;m§;,y(lI,l,gj
Presidency Magistrate, District Magistrate or Sub--divi- sidency Ma.
sional Magistrate or a Magistrate of the ﬁrst class specia1- gistrates spe-
ly empowered in this behalf by the State Government," Ciallv em-
substitute the words "a Presidency Magistrate specially P°w°'fd)_'
emqoowered by the State Government in this behalf, a C5 lgmgﬁg
District Magistrate or Sub-divisional Magistrate or an :;K11S]§M)'
Executive Magistrate of the ﬁrst class specially empowered ' ' '

in this behalf by the State Government". 19,f;,j:,; 110'

amendment
read with
the existing
section, as
other ﬁrst
class Magi-
strate (only
ﬁrst class
Magistrates
specially em-
powered are
mentioned),

Section 124
'In section 124 of the principal Act--

(a) after the words "District Magistrate", wherever
they occur, insert the words "or Chief Judicial Magis-
ti-ate";

170

(b) insert the following sub-section at the end,
namely:---

"(_7) The Chief Judicial Magistrate shall not
exercise any power under this section except in
cases where the security was ordered under sec-
tion 106: and the District Magistrate shall not

exercise any power under this section except in
other cases. '

Section 125

For section 125 of the principal Act, substitute the
following section name1y:----

Poweilb 3° {I25 (1) The Chief Presidency Magistrate, the
°""''''' °" ' District Magistrate or the Chief Judicial Magistrate
may at any time, for suﬂicient reasons, to be recorded
in writing, cancel any bond for keeping the peace or
for good behaviour executed under this Chapter by
grder of any Court in his District not superior to his
ourt. i

(2) The Chief Judicial Magistrate shall not exercise
any power under this section except in cases where
the security was ordered under section 106; and. the
District Magistrate shall not exercise any power under
this section. except in other cases".

Section 126

For section 126 of the principal Act, substitute the
following section namely :--

Discharge of "'126(1) Any surety for the peaceable conduct or

sureties. good behaviour of another person may at any time
apply to the Court by which an order was made to
give security to cancel any bond executed under this
Chapter within the local limits of its jurisdiction

(2) On such application being made, the Court shall
issue a summons, or warrant as it may think ﬁt, re-
quiring the person for whom such surety is bound to
appear or to be bnought before it.

Section 12611

In section 126A of the principal Act, after the Words
"the Magistrate" insert the words "or Court".

Sections 127 to 132
In sections 127 to 132 of the principal Act (both in-

clusive), for the word "Magistrate" wherever it occurs
substitute the words "Executive Magistrate". 3

171
Section 133(1)
In section 133 of the principal Act, in sub-section (I)--

(a) for the words "a District Magistrate, a Sub-
divisional Magistrate or a Magistrate of the ﬁrst class", of 5 I330
substitute the words "a Presidency Magistrate special- Bo',,,i,ay_ )'
ly empowered by the State Government in this behalf
or a District Magistrate or a Sub-divisional Magistrate
or an Executive Magistrate of the ﬁrst class";

(b) for the words "to appear before himself or
some other Magistrate of the ﬁrst or second class at a 6
time and place to be ﬁxed by the order, and move to ma ss'1371(33)'
have the order set aside or modiﬁed in the manner ,,,ds_'139(1)_
hereinafter provided", substitute the words "to appear
before himself or some other Executive Magistrate of
the ﬁrst or second class at a time and place to be ﬁxed
by the order, and show cause why the order should
no; (tire, made absolute, i-nthe manner hereinafter pro-

V1 e ..

Section 135

In section 135 of the principal Act, in clause (b), after
the words "appear in accordance with such order and" insert
the words and ﬁgures "subject to the provisions of section
139A".

Section 137

For section 137 of the principal Act, substitute the
following section, name1y:----

"137. (1) If such person appears and shows cause 1'r°°"-dure
against the order, the Magistrate shall take evidencew °'° 5"

. . person
in the matter as in a summons-case. shows ca,,se_

(2) If the Magistrate is satisﬁed that the order is Cf-S-137(1)-
reasonable and proper as originally made, or as Cf-S-137(3)»
subject to such modiﬁcation as the Magistrate consi-
ders necessary, the Magistrate shall make the order
absolute. subject to such modiﬁcation (if any).

(3) In other cases, no further proceedings shall be Cf-S-137(2)~
taken in the case.

Section 137A (New)

After section 137 of the principal Act, insert the follow-
ing section namely:--- Compare 0,

. , R 1 9,
"137A. (1) The Magistrate may, for the purposes adeue of

of an inquiry under this Chapter--- Civil Proce-

Power of Magistrate to dm-e, 1903,
direct a local inquiry or and sections
summon and examine an 143 and 5393
expert. of the Code

. . . . f C ' ' I
(a) direct a local investigation to be made by such 1'§,°m§',',',':,','*'

person as it thinks ﬁt; or 1898.

Compare
section 148
1

Cf, section
148(2) 'of the
Code of Cri-
minal Proce-
dure, 1898.

Contrast
Order 26,
Rule 13(2),
Code of Ci--
vil Proce-
dure, 1908.

Power to
Prohibit re-
petition or
continuance
of public
nuisance.
Compare
section 143,
Bombay,

"172

(b) summon and examine an expert.

_(2) Where the Magistrate directs a local investi-
gation by any person under sub-section (1). the Magis-
trate may---

_ (a) furnish such person with such written
instructions as may seem necessary for his gui-
dance, and

(b) declare by whom the whole or any part of
the necessary expenses of the local investigation
shall be paid.

(3) The report of such person may be read as
evidence in the case.

(4) Where the Magistrate summons and examines
an expert under sub-section (1), the Magistrate may

direct by whom the cost of such summoning and '

examination shall be paid".

Section 143

For section 143 of the principal Act. substitute the
following section, namely:---

"143. A Presidency Magistrate specially empower-
ed by the State Government in this behalf or a Dis-
trict Magistrate or a Sub-divisional Magistrate or any
other Executive Magistrate empowered by the State
Government or the District Magistrate in this behalf
may order any person not to repeat or continue a
public nuisance, as deﬁned in the Indian Penal Code
or any special or local laW".

Section 144(1)

In section 144 of the principal Act, in sub-section (1).
for the words "a District Magistrate, a Chief Presidency
Magistrate, Sub-divisional Magistrate or of any other Magis-
trate (not being a Magistrate of the third class) specially
empowered by the State Government or the chief Presi-
dency Magistrate or the District Magistrate" substitute the
words "a Chief Presidency Magistrate, a District Magis-
trate, a Sub-divisional Magistrate or of any other Execu-
tive Magistrate specially empowered by the State Govern-
ment or the Chief Presidency Magistrate or the District
Magistrate".

Section 144(3)

In section 144 of the principal Act, for sub-section (3),
substitute the following sub-section, namely : --

to a particular individual or to the public generally
to a particular individual or to the public generally
when frequenting or visiting a particular place or
area or residing in a particular place or area.

173

Section 144(7) (New)

In section 144 of the principal Act, insert the following
sub-section at the end, namely :--

"(7) Where the State Government issues a direc~
tion under sub-section (6), any person aggrieved may
make a representation to the State Government against
such direction; and the State Government may, after
giving such person a reasonable Opportunity of being
heard, rescind or alter the direction."

Section 145(1)

In section 145 of the principal Act, for sub-section (1).
substitute the following sub-section, namely : -

"(1) Whenever a Chief Presidency Magistrate,
District Magistrate, Sub-divisional Magistrate, or any-
other Executive Magistrate of the first class specially
empowered by the State Government in this behalf, is
satisﬁed from a police-report or other information that
a dispute likely to cause a breach of the peace exists
concerning any land or water or the boundaries there-
of, within the local limits of his jurisdiction, he shall.
make an order in writing,--

(a) stating the grounds of his being so satisﬁed;

(b) mentioning the date of receipt of the
police-report or other information;

(c) requiring the parties concerned in such
dispute to attend his court in person or by pleader,
on a date and at a time to be speciﬁed in the
order, and to put in written statements of their
respective claims as respects the fact of actual
possession of the subject of dispute; and

(d) further requiring them to put in such
documents, or to adduce, by putting in afﬁdavits,
the evidence of such persons as they rely upon in
support of such claims."

Section 145(4)

In section 145 of the principal Act,' in sub-section ((4),-

(a) in the main paragraph, forthe words "the date
of the order before mentioned" substitute the words
"the date of the police-report or other inforrnatiom. on
which the order under sub-section (1) was passed";

(b) in the second proviso, for the words "date of
such order" substitute the'Words "date of such police-
report or other information;"

(c) in the third proviso, after the words "at any
time", insert the words, brackets and ﬁgure "after the
passing of the order under sub-section ( 1)".

' .

1. Where there were numerous subsections in a particular section, the"atnendments
to each sub-section has been put separately, for convenience. -

174
Section 145(-4A-)- (N ew)

_In section 145 of the principal Act, after sub-section
(4), insert the following sub-section, namely:--

. "(4A) Where the Magistrate attaches the subject of
dispute under the third proviso to sub-section (4), he
shall make such arrangements as he considers proper
for looking after the pr erty which is the subject of
the dispute, including w ere necessary, an order for
the appointment of a receiver, and where he makes an
order for the appointment of a receiver, the provisions
of sub-section (2) of section 146 shall, so far as may be,
apply as they apply in relation to the appointment of
a receiver under that section".

Section 145(5A) (New)

In section 145 of the principal Act, after such section
(5), insert the following sub-section, namely :--

"(5A) where the Magistrate cancels the said order
under sub-section (5), he shall also make an order with-
drawing the attachment, if any, ordered under the
third proviso to sub-section (4), and may, in a proper
case, restore to possession the party who was in posses-
sion at the time of attachment."

Section 145(6A) (New)

In section 145 of the principal Act, after sub-section
(6), insert the following sub-section, namely :---

"(6A) The order under sub-section (6) shall be
served and published in the manner laid down in sub-
sub--section (1)".

Section 145 (9)

In section 145 of the principal Act, in sub-section (9),
insert the following words at the end, namely :--

"and, nothing in the rst proviso to sub-section (4)
shall be construed as lmiting the discretion of the
Magistrate' to issue under this sub-section a summons
to a person whose aﬁidavit has not been put invunder
sub-section (1)".

Section 146

For section 146 of the principal Act, substitute the

following section, namely:---
Power to "146.(1) If the Magistrate decides that none of the parties
*"""'-1' Sub' was then in such possession, or 'is unable to satisfy him-

je" °f din" h' h them. was then in such possessionof the
me' gfillgjggttgftdistggutgf he may attach it untilia competent Court

175

has determined the rights of the parties thereto. or the
person entitled to possession thereof :

Provided that the District Magistrate or the Magis-
trate who has attached the subject of dispute may
withdraw the attachment at any time if he is satisﬁed
that there is no longer any likelihood of a breach of
the peace in regard to the subject of dispute.

(2) When the Magistrate attaches the subject of
dispute, he may, if he thinks fit, and if no receiver
of property, the subject of dispute, has been appointed

y any Civil Court, appoint a receiver thereof, who,
subject to the control of the Magistrate, shall have all

the powers of a receiver appointed under the Code. of' °f 1908'
Civil Procedure, 1908:

Provided that in the event of a receiver of the
property, the subject of dispute, being subsequently
appointed by any Civil Court, possession shall be made

mier to him by the receiver appointed by the Maois-
trate who shall thereupon be discharged."

Section 147(1)

In section 147 of the principal Act, for sub-section (1),
substitute the following sub-section, namely : --

"(1) Whenever a Chief Presidency Magistrate,
District Magistrate, Sub-divisional Magistrate or any
Executive Magistrate, of the ﬁrst class is satisﬁed, from
a police-report or other information, that a dispute like-
ly to cause a breach of the peace exists regarding any
alleged right of user of any land or water as explain-
ed in sub-section (2) of section 145, whether such right
be claimed as an easement or otherwise, within the
local limits of his jurisdiction. he may make an order
in writing-

(a) stating the grounds of his being so satis-
ﬁed;

(b) mentioning the date of receipt of the
police-report or other information;

(c) requiring the parties concerned in such
dispute to attend his court in person or by pleader,
on a date and at a time to be speciﬁed in the
order, and to put in written statements of their
respective claims;
and shall thereafter inquire into matter in the
manner hereinafter provided.

Section 147(2)

In section 147 of the principal Act, for sub-section (2),
substitute the following sub-section, namely :--

"(2) If it appears to such Magistrate that such right
exists, he may make an order prohibiting any inter-
ference with the exercise of such right, including, in a

Converti bi -
lity of Pro.
ceed ings.

Cf. s. 148
Bombay,

176

proper case, an_order for the removal of any obstruc-
tion in the exercise of any' such right :

Provided that no such order shall be made where'
the right is exercisable at all times of the year, unless
such right has been exercised within three months next
before the receipt of the police-report or other'infor--
motion leading to the institution of the inquiry. or
where the right is exercisable only at particular sea~
sons or on particular occasions, unless the right has.
been exercised during the last of such occasion before-
such receipt."

Section 147A (New)

After section 147 of the principal Act, insert the follow-
ing new section, namely:--

"147A. Whenever proceedings are commenced
under sub-section (1) of section 145 or under sub-section
(1) of section 147(1), the Magistrate may, if he ﬁnds
that the matter is one which should be dealt with
under sub-section (1) of section 147 or under sub-sec-
tion (1) of section 145, respectively, record an order to
that effect; and may thereafter deal with it accord---
ingly".

Section 148

In section 148 of the principal Act, in sub-section (1),
for the words "any District Magistrate or Sub-divisional
Magistrate," substitute the words "any Chief Presidency

Magistrate, District Magistrate or Sub-divisio1:a1Magis-.

trate".

Section 155(1)

In section 155 of the principal Act, in sub-section (1),
for the words "the Magistrate" substitute the following"

words, namely :--

"the Magistrate having jurisdiction to try such.
cases or commit the same for trial".

Section 155, Explanation (New)

In section 155 of the principal Act insert the following
explanation at the end, namely : -

"E.7cplanation.--Where a case relates to two or more
oﬁences of which at least one is cognizable, the case
is a cognizable case, notwithstanding that the rest of
the offences are non-cog*nizable".

Section 157

In section 157 of the principal Act, in sub-section (1),
for the words "upon a police report", substitute the words
"upon a report in writing made by a police o)_'ﬁk:er".

177

Section 160.
Section 160 of the principal Act, shall be renumbered

as sub-section (1) thereof, and after sub-section (1) as so
re-numbered, the following sub-section shall be inserted,
namely:-

(3),

"(2) Subject to such rules as the State Government
may make in this behalf, the Government shall pay
the reasonable expenses of every person attending

under sub-section (1) at any place other than his resi-
dence".

Section 161(3)

In section 161 of the principal Act, for sub-section:
substitute the following sub-section, namely:--

"(3) The police-ofﬁcer shall reduce into writing
every statement made to him by a person examined'
under this section, as far as possible in the words of
such person, and ....... .. shall make a separate record
of the statement of each such person ..... .. "

Section 161(4) and (5) (New)

In section 161 of the principal Act, after sub-section
insert the following sub-sections, namely:-

"(4) The police oﬁicer shall forthwith send copies Compare
of the statements so recorded to the Magistrate cm- section
powered to take cognizance of the oﬁence on the report 157(1)-
of a police-oﬂicer.

(5) Where a superior oﬂicer of police has been Compare
appointed under section 158, the copies of the state- section,"
ments shall, in any cases in which the State Govern-173(2),}
ment by general or s ecial order so directs, be submit-
ted through that oﬂiber, and he may give such ins-
tructions to the officer submitting the copies as he
thinks fit, and shall, after recording such instructions
on such copies, transmit the same without delay to the
Magistrate.'

Compare
section

157(2).

Section 162(1)

In section 162 of the principal Act, in sub-section (1),

omit the words "if reduced into writing".

Section 163(2)
In section 163 of the principal Act, to sub-section (2)',

add the following proviso, namely : --

"Provided that nothing in the sub-section shall aﬁect
the provisions of sub-section (3) of section 164".

13-29 Law/68

178

Section 164(1)

In section 164 of the principal Act, in sub-section (1),
for the words "Any Presidency Magistrate, any Magistrate
of the ﬁrst class and any Magistrate of the second class
specially empowered in this behalf by the State Govern-
ment may, if he is not a police officer" substitute the words
"Any Presidency Magistrate, any Judicial Magistrate of
ﬁrst class and any judicial Magistrate of the second class

specially empowered in this behalf by the State Govern-
ment may ............. ..".

Section 164(2)

In section 164 of the principal Act, in sub-section (2),
'after the words "Such statements shall be recorded" insert
the words "on Oath".

Section 165(5)
In section 165 of the principal Act, in sub-section (5),--

(a) after the words "a copy of the same" insert the
words "free of cost".

(b) omit the proviso.
Section 166(5)

In section 166 of the principal Act, in sub-section (5),-

(a) after the words "a copy of any record sent to
the Magistrate" insert the words "free of cost".

(b) omit the proviso.

Section 167(1)
In section 167 of the principal Act, in sub-section (1),

for the words "nearest Magistrate" substitute the words

"nearest Judicial Magistrate".

Section 167 (4)
In section 167 of the principal Act, for sub-section,

namely :-

"(4) Any Magistrate other than the Chief Judi-
cial Magistrate making such order shall forward a copy
of his order, with his reasons for making it, to the
Magistrate to whom he is immediately subordinate.

Section 169

In section 169 of the principal Act, for the words
"police report", substitute the words "report in writing
made by a police officer".

Section 170(1)

In section 170 of the principal Act, in sub-section (1),
for the words "police report". substitute the words "report

in writing made by a police officer".

' Section 13'! * * 6 ~ - ~

In section 157 of the principal Act, in _sub-section (1),
for the words "upon a police report", substitute the words-
"upon a report in writing made by a police officer".

179

Section 170(3)

In section 170 of the principal Act, in sub-section (3),
for the words "District Magistrate or Sub-divisional
Magistrate" substitute the words "Chief Judicial Magis-
trate".

Section 173(1)(a)

In section 173 of the principal Act, in sub-section (1),
in clause (a), for the words "a police report", substitute
the words "report in writing made by a. police oﬂicer".

Section 173(1), Proviso (New)

In section 173 of the principal Act, in sub-section (1),
insert the following proviso at the end. name1y:-

"Provided that if, after forwarding the said
report to the Magistrate, the said oﬂicer obtains further
evidence, oral or documentary, he shall forward to the
Magistrate a further report or reports regarding such
evidence in the form prescribed."

Section 173(4), Proviso (New)

In section 173 of the principal Act, in sub-section (4),
"insert the following proviso at the end, namely :-

"Provided that copies of the documents not in the
custody of the said officer at the time of the filing of
the report, and obtained after such ﬁling or after
commencement of the inquiry or trial, shall be fur-
nished to the accused as and when they are obtained
and before marking them as exhibits in the court".

Section 173(6) (New)

-In section 173 of the principal Act, insert the following
-sub-section at the end, namely:-

"(6) Notwithstanding anything contained in sub-
section (4), where the documents referred to in sub-
section (4), are voluminous, the Magistrate to whom
the report under clause (a) of the sub-section (1)
is .......... ..forwarded may at the request of the police
oﬁicer direct that the accused may instead of being
furnished with a copy thereof, be allowed to inspect it
in court free of cost, either personally or through
pleader".

Section 174(5)

In section 174 of the principal Act, in sub-section (5),
for the words "or Magistrate of the ﬁrst class and any
Magistrate especially empowered", substitute the words "or
Executive Magistrate of the ﬁrst class and any Executive
Magistrate especially empowered."

180
Section 175(1)

In section 175 of the principal Act, in sub-section (1),
omit the word "truly".

Section 176 (3) (New)

In section 176 of the principal Act, insert the follow-
ing sub-section at the end, namely :--

"(3) Where an inquiry is to be held under this
section, the Magistrate shall, wherever practicable,
inform the relatives -of the deceased whose names and
addresses are known, and shall allow them to remain
present at the inquiry.

Explanation :-

In this sub-section, the expression "relatives"
means parents, children, brothers, sisters and spouse."

APPENDIX 2
Note on section 1, Code of Criminal Procedure, 1898

Section 1(2) (which deﬁnes the territorial extent of the
Code) provides for an exception in these words:-

" ....... .. in the absence of any speciﬁc provision to

the contrary, nothing herein contained .... ..shall apply
to-

(a) the Commissioners of Police in the towns
of Calcutta, Madras and Bombay, or the police in
the towns of Calcutta and Bombay;

(b) heads of villages in the State of Madras,
as it existed immediately before the 1st November,
1956;

Provided that the State Government may, if it thinks
ﬁt, by notiﬁcation in the Oﬂicial Gazette, extend any of
the provisions of this Code, with any necessary modi-
ﬁcations, to such excepted persons."

The present position regarding each of the "excepted
persons" may be dealt with.

(a)(i) Commissioner of Police in Calcutta---

The Commissioner of Police in Calcutta has certain
powers under the Calcutta Police Act.' For example, he
can prohibit processions or public assemblies.'

1. The Calcutta Police Act (Bengal Act 4 of 1866) and the Calcutta Suburban Police
Act (Bengal Act 2 of 1866).

2. See Leakat Hossen v. Emp., (1913) I.I..R- 40 Cal. 470, 472.

181

(a) (iii) Commissioner of Police in Madras

I The Code does not apply to the Commissioner of Police
In Madras. This 1S apparently because the powers of the
Commissioner 01; Police in the city of Madras are governed
by a local Act.' Thus,_sect1on 51A(3) of the Madras Act
confers on the Cornmissloner the powers under sections 75
to 77 of the Code?'

(a) (ii) Commissioner of Police in Bombay---

The position up to 1951 was, that the Code did not
extendto the Commissioner of Police, Bo-mbay nor to the
police in Bombay. By the Bombay Police Act,' the mention
of Bombay at both the places is deleted, and the Code now
applies to the whole State of Maharashtra including the
town of Bombay, both as regards the Commissioner of
Police and as regards police generally.

(21) (iv) Police in the town of Calcutta-

The police in the town of Calcutta are governed" by
the Calcutta City Police Act.'-5 The Code does not apply
to the Calcuta Police.'-9

(a) (v) Police in the town of Bombay-
See above, under "Commissioner of Police in Bombay".
(b) Heads of villages in the State of Madras

Under certain local regulations,"-"' heads of villages in
Madras are empowered to try cases of a trivial nature,
such as abusive language and inconsiderate assault or
affrays and petty thefts. not attended with aggravating
circumstances and not committed by persons of notoriously
bad character. In their oﬂicial capacity as village head-
men in proceedings as village Magistrates, they are not
governed by the Code."-'3 The provisions of sections 480
and 482 of the Code do not apply to village Magistrates in
lVladras."--"

I. The Madras City Police Act (3 of 1888)-

2. See Nilamadhob v. Emp., I.L.R. 5 Fat. 171 ; A.1-R. 1926 Pat. 279,283.

3. Cf. Ramanath, A.I.R. 1953 Mad. 953, 954-

4- The Bambiy Police Act, 1951 (Bombay Act 22 of1951), section 167(3); see Ram -

lcishan, A.l.R. 1955 SC. 104, 110, para. 9.

5. The Cwlcutta City Police Act (4 of 1866).

6. The Manickchand, A.l.R. 1958 Cal. 324; Ishaq, A.l.R. 1958 Cal. 341- .

7. A n'1mb:r of provisions of the Cad: have, however, bran extended, under the

proviso to section 1(2), to the Calcutta Police.

8. Natabarjana v. State, A.l.R. 1955 Cal. 135.

9. Madras Regulation 11 of 1816.

10. Madras Regulation 4 of 1821.

11. Viziramutha, 2 Weir 1.

12. See also P. P. v. Mari Mudali, A.I.R- 1924 Mad. 730-
13. In re Muthukarunga, A.I.R. 1959 Mad. 175, 178, para. 24.
14. (2.13. v. Venkataswami, (1891) I.L.R- 15 Mad. 131, 132.

15. Q.E. v. Venkayya, I.L.R. 11 Mad. 375.

182

Under the Bombay Village Police Act,' the "Police
Patel" has manifold duties relating to prevention of crime
(sections 6 to 9 of the Act), and these duties extend not
only to assisting the police and giving information, but in
certain cases, he is bound to proceed to investigate the
matter, procuring all evidence relating to a crime com-
mitted in the limits of his village (section 10). He has also
certain duties by way of holding an inquest in cases of
sudden deaths, and ap rehension of any person, who he
may have reason to be ieve has committed serious offences-
(sections 11 and 12). He can call and examine witnesses,
and record their statement, and search for concealed arti-
cles (section 12). The Code is not applicable to proceeding
before village police officers.' The High Court could, how-
ever, under the general power of superintendence, confer-
red by the Letters Patent, deal with such proceedings."

Section 1 (2) means that the procedure laid down by the
Code is not to govern the actions of such village police
officers.'

APPENDIX 3
Note on section 4--Deﬁnition of "complaint".

According to the deﬁnition of "complaint", in section
4(h), a complaint does not include a report of a lice
officer. Now, the Code uses different expressions re ating
to reports of police ofﬁcers, as follows :-

(i) 'Police report," '

(ii) 'Report of a Police Ofﬁcer,"

(iii) 'Report in writing made by any police oﬂicer,"
(iv) "report" simpliciter"

(Sometimes, the expression "information"-1° or "inti-
mation" is used also.)"

Certain questions have arisen as to the meaning of
some of these expressions, with reference to section
4(1) (h), section 190(1) (b), and sections 207A and 251A, in
relation to reports made under various sections of the Code
or under other enactments. The questions are interlinked
with each other.

Dd!-l

...o\om-IosU-I-«k£»N»---'

. The Bombay Village Police Act, 1867 (8 of 1867).

. Q. E. v. Ragho, I.I_.R. 19 Bom. 612.

. In re Vasudev, A.I.R- 1919 Bom. 79.

. Emp. V. Shankar Sayaji, A.I.R. 1938 Bom. 489-

. Sections 133(1),145(1),l47, 157, 170,173,207. 207A, 208, 251 and 251A.
. Sections 4(1) (11) and 114. See also sections 62, 157 and 168.

. Section 190(1)(b).

. Section 62 and section 174(1).

. Section 153(2); see Bansidhar v. State, A.l.R- 1959 Raj. 191, 193, para. 8.
. Section 250; see Muhammad Hashim v. Emp., A.l.R. 1940 Sind 134, 135 (F3).
. Section 174(1).

183

(1) With reference to section 190(1) (b) which em-
powers the Magistrate concerned to take cognizance of an
oﬁence upon a "report in writing" of such facts of any
police officer), the main question that is to be considered
is, whether, a reporfmade by the police in a non-cogni-
zable case investigated without obtaining the orders of a
Magistrate as is required by section 155(2) does or does not
fall under clause (b) of section 190(1).

Before the amendment of 1923, the wording in section
190(1) (b) was "upon a police report of such facts". On
these words, the question arose whether a communication
by a_ police officer in respect of an oﬁence which is non-
cognizable, made of his own motion, fell under clause (b).
The leading case answering the question in the negative
was a Bombay one.'

In one Patna case," before the 1923 amendment, it was
stated that the police report mentioned in section 190(1) (b)
is a police report under section 173, i.e. a report in course
of the investigation of a cognizable offence.

In another Patna case,' the failure, to examine a com-
plainant on oath was regarded as fatal. In yet another
Patna case,' section 24 of the Police Act' whereunder it shall
be lawful for any police oﬂicer to lay any information
"before a Magistrate and to apply for a summons, warrant
.... ..against any person committing an offence" was consi--
dered. An application of the Sub-Inspector of Police to the
Magistrate stating that a riot had taken place for the bene-
ﬁt of certain persons who claimed interest in the subject
matter of the dispute, it seems, had led to the issue of a
summons against those persons under section 155, I.P.C..
(liability of a person for whose beneﬁt riot is committed).
The complainant was not examined on oath, and the ques-
tion arose under which clause of section 190 the cognizance
has been taken. It was held, that while a complaint by a
private person comes under clause (a), and information by
a private party comes under clause (c), a report to a
magistrate by the police comes under clause (b). The only
limitation laid upon the report is, that it must state
facts which constitute an offence.

Now, when a police officer acts under section 24 of the
Police Act and submits his information regarding the com-
mission of the offence to the Magistrate and applies for
action to be taken thereon, it becomes a "report" of that
otﬁcer within section 190(1) (b), as the deﬁnition of com-
plaint does not say that the report must be a report under
Chapter 14 or report only of a cognizable offence. The deci-
sion in Ram Lal v. Emp.' was disented from.

1. K. E. v. Sada (1902)I.I..R. 26 Born. 150 (F.B.).
2. Ram Lal v. Emp., AJR. 1920 Pat. 614 (Das L).
3. Mangu v. Emp., A.I.R. 1920 Pat. 670 (Das J.). (Case-law discussed).

4. Abdul Ali v. Emp., A.I.R. 1920 Pat. 700, 702 (jwala Pi-as-ad J.) (Case-law reviewed)
(relied on section 24, Police Act).

5. Section 24, Police Act, 1861 (S of 1861). ~
6. Ram Lal v. Emp., A.I.R. 1920 Pat. 614 (Das I.).

184

In a Lahore case,' decided before the 1923 Amendment
a challan was sent up by the police in an offence for which
rule 25(2) of the Defence of India Rules, 1915 required a
complaint. The challan was regarded as a complaint by the
High_Court. (The Punjab Government had empowered all
District Magistrates to order or authorise complaints for
the offence in question, and accordingly, the District
Magistrate had directed the Superintendent of Police to
make an "inquiry", complete the case and send it up for
trial, and in due course the police put up a 'cha1lan' be-
fore the District Magistrate). It was held, that this was a
"complaint", following the Bombay case.'

The history of section 190(1) (b) (upto 1898) was thus
traced in a Bombay case} where a police constable had ﬁled
a complaint for a non-cognizable offence.'

"Under Act 10 of 1872, section 140, a Magistrate might
take cognizance of an alleged oﬁe'nce:-

(3.) upon a police report under Chapter 10 (pov:ers
of the police to investigate, answering to Chapter 14 of
the present Code); '

(b) upon information or report by a Police oﬂicer
as to non-cognizable offence: such information or report
was to be regarded as a complaint;

and under Chapter 16 the Magistrate might in a summons
case dismiss the complaint as frivolous or vexatious and
award compensation. i

"There was no deﬁnition oi "complaint", but it is clear
that whether a police officer made a formal complaint or a
report of a non-cognizable summons case, his report. was
to be regarded as a complaint which could be dismissed
as frivolous or vexatious, compensation being awarded.,The
Code of 1882 did away with the "report of a Police officer
in a non-cognizable case, except by the order' of a Magis-
trate. Under the Code of 1882, as also under the present
Code, in the case of a non--cognizable offence the informant
is referred to a Magistrate. There is no section empowering
a Police officer to make a report in such a case without the
orders of a Magistrate. If there is no informant, and the
Police oiﬁcer has himself-iseenthe alleged oﬁence being
committed, there is no obstacle to his making a complaint
in the court of law, and askingfor the issue of prdcess.
But there is no provision by which he can in such a case
make a police report, and it has become necessary since

1. Khushall Singhv. smp..A.1.a'. 1921 hr. 345.
2. K. E. v. Sada, (1902) I.I..R. 25 Born. 150 aw. 13.).
3. K. E.v. Sada, (1902), l.I_.R. Z6 Bom. 150, 156, 157.

4. Offence under section 6:(j), BoInbay:District Police Act, 1890 (4 of 1890) (obeying
a call of nature in a street).

185

1882 to exclude from the deﬁnition of "complaint" the

(report of a police ofﬁcer. There is an intimate connection
between-

_ (a) "the report of a Police officer" which is by sec-
tion 4(1) (h) of the Code excluded from the deﬁnition
of "complaint";

(b) the report of a cognizable offence, which a
police officer is to send to a Magistrate empowered to

take cognizance of such offence upon a Police report
(sections 157, 173); and

"If the alleged offence is a non-cognizable one, there
is no section in the Code which empowers a police officer
of his own motion to make any report to a Magistrate; and
therefore there is no ground for holding that when he does
ﬁle a formal complaint he is, in fact, making a report, and
so what purports to be complaint is by the deﬁnition not
.a complaint at all."

It would be desirable to state the reasons for the 1923
Amendment. The Amendment Bill of 1914 proposed a
change in section 190(1) (b), and then gave the reasons for
the change as follows:'

"24. In sub-section (1) of section 155 of the said Code, Af'"°"s'i'c';'i"')'f1
the following shall be added after the words "to the Magis- '1'55,c°de of
-trate", namely:- Criminal

"and may if he thinks ﬁt send a report of such ¥§';§°d"'°'
information to a Magistrate empowered to take cogni- '
zance of offences under section 190(1) (b), and such
1\/flfagistrate may thereupon take cognizance of such
0 ence.

Such report shall, if the Local Government so
directs, be submitted through such superior ofﬁcer as
the Local Government by general or special order
appoints in this behalf." .

(Objects and reasons)

"Clause 24~The amendment is intended to make it clear
'that the words 'police report' -quoted in section 190 include
reports in cognizable and non-cognizable cases. There is
some conﬂict of judicial opinion on the point."

1. See Gazette of India, March 28, 194 (Part V) pages 104 and 121.

2. The Statement of Objects and _Reasons cites no cases. The cases relevant to the
-period would seem to lae----

(1) K. E. v. Sada, (1902) I.L.R. 26 Born. 150.

(ii) Dilan Singh, (l9l2) I.L.R. 50 Cal. 360, 364 (report of non-cognizable offence nota
"complaint" within the deﬁnition).

(iii) Chidambaran, (1909) I.L.R. 32 Mad. 3 (narrow view).
(iv) Sarferaz. (1913) 19 LC. 314; 14 Cr. L]. 218 (Calcutta).
(v) Nga Sen Ke, A.I.R- 1914 Upper Burma 31.

(vi) Ahmad Khan v. Emp. 12 .L._}. 92, overrule A.l.R. 1924 Sind 71 (Police report
is conﬁned to section 173).

186

. The Lowndes Committee' (which examined tli_e'19l4
B111) made these observations--- '

"Clause 24----We are not prepared to accept the amend-
ment proposed by this clause. The diﬂiculty suggested by
I.L.R. XXVI Bombay at page 157 will, we think, be met
by the amendment which we propose in section 190(1) (b)
(see clause 34B)."

"Clause 34B----See our note to clause 24. We do not think
that the term "police-report" in section 190(1) (b) was in-
tended to be a technical expression, but was used to cover
any report made by a police-oﬁicer, and our amendment will
make this clear."

According to the amendment proposed by the Lowndes
Committee,' section 190(1) (b) was to read:-

"(b) upon a'report of such facts made by any police)
oiﬁcer".

The joint Committee on the 1921 Bills said,----

"Clause 45--We approve the amendment made in
section 190 by this clause, but we think that courts
should take cognizance under section 190(1) (b) only
upon reports in writing".

Thus, in 1923 the present wording was substituted' in
section 190(1) (b). But the controversy seems to survive.

One view is, that the present wording does not cover
non-cognizable cases investigated without the orders of a
Magistrateﬁ-5-'-B-9-'"-"

A contrary view, however, has been taken in certain
cases."-'3

1. See Appendix 13 (Notes on clauses) to Report of the Lowndes Committee, ﬁle
relating to Bill which was enacted as the Code of Criminal Procedure (Amendment) Act,
1923 (16 of 1923) (National Archives, Government of India), Legislative Department,
Assembly and Council-A, Proceedings, October 1923, No. 1-54-

2. See Appendix C to Report to Lowndes Committee.

3. Repoit of the Joint Committee on the Code of Criminal Procedure (Amendment)-
Bill (26th June. 1923). See the ﬁle relatirg to the 1921 Bill, Governme nt oflndia, Legislative
Depﬁrtment, Assembly and Council--A, Proceedings, October, 1923, No- 1-54 (National
Arc ives).

. For review of pre-1923 cases, see Abdullah v. Emp., A.1.R. 1933 Sind 188 (D.B.).
. State ofKerala v. Ali Meeranlcully. A.I.R. 1965 Ker. 59 (Reviews case-law).
. A.I.R. 1961 All. 377, 378.
. Candrz'Bawee v. Emp., AJR. 1935 Born. 131, 134 (FawcettJ.).
. Emp. v. Shiuaswami. I.I..R. 51 Bom-_'-198; AIR. 1927 Born. 440, 443 (Fawcett].).
9. P. P. v. Ramiah, A-I.R- 1958 Andhra Pradesh 392, 393 para. 18.

10. Raghunath v. Emir, A.I.R. 1932 Born. 610, 612, 613 (Beaument C3. and Brownﬁeld"
J )- ll. Abdul Hakim v. State, A-1-R. 1961 Cal. 257, 258, para. 3, referring tola Division.
Bench ruling.

12. P. P. v. Ratnauelu, A.I.R. 1926 Mad. 865. 871 (F.B.). (Police investigating a dncoity--
case and found that the complaint was false-----sending charge sheet against the accused.
under section 211, I.P.C.

13- Trilolci Nath v. State, A.ILR'. 1962 Raj. 94. 96. _ '

®-lO\U'|-B

187

The Lahore High Court' followed the Bombay rulings
and in a later case,' it has clearly held that in a non-cog-
nizable case, no police report could be made, but on a com-
plaint signed by the Court Inspector as er-oﬂicio Public
Prosecutor, cognizance can be taken under section 19000).

The Calcutta decisions are reviewed in the under-
mentioned case? There are strong observations in one case'
that the use of 'police report' in secti-on 173 does not restrict
the power of the Magistrate to take cognizance of both
cognizable and non--cognizable offences, under section
190(1) (b).

An invalid investigation may not vitiate the proceed-
ings? But a Magistrate can decline to take cognizance on an
invalid report."-' .

Even before 1923 it was observed in a Calcutta case*
that report of a police officer in a non--cognizab1e case is:
a "police report" under section 190(1) (lo).

The decisions giving a restricted interpretation are-
based on one or more of the following grounds, namely,-

(1) that the police have no authority to investigate
or report a non-cognizable offence?'

(2) that a wide interpretation would lead to the
unacceptable position that a police ofﬁcer can never
make a ''complaint'';"' and

(3) that it is not clear" that the 1923 amendment
was intended to bring in all types of police reports
without exception.

It was held in a recent Supreme Court" case, that under
section 190, where the information discloses a cognizable
as Well as a non-cognizable offence, the police oﬁicer is not

1. Mehr Chiragh Din v. The Crown, A.LR. 1924 L311. 258, 260, (I.ums.denJ.).
2- Ernp. v. Ghulam Husain, A.I.R. 1925 Lah- 237.

3. Manik Chcmd v. State, A.I.R. 1956 Cal. 324, 334, para. 23; (1958) 62 Cal. Weekly
Notes 94. 107, 108 (Observations approving the wider view).

4- Bholanath v. Emp., A.I-R. 1924 Cal. 614. 616 (Greeves and Panton JJ.).
5. H. N. Rishbud v. The State of Delhi, (1955) S.C.R. 1150, 1163.

6. Cf. Delhi/Xdm. v. Ram Si-ugh, A.I.R. 1962 S.C. 63.

7. Smt. Tara v. The State, A.I.R. 1965 All. 372.

8. Bhairab Chandra v. Emp., LLR. 46 Cal. 810. note; A.I.R. 1919 Cal. 433, 434, 435'
(Richardson and Huda ]_I.).

9. Cf- Chandavatkar]. in K.E. v. Sada, (l901)l-L-R- 1'6 Bom. 150-

10. Cf. Burn I. in Mallikharjuna v. Emp., 1933, M-W.N. 876 (cited in A.l.R. 1965 Ker-
59, 61, para. 5).
311. Cf. Fawcett J. in Emp., v. Shivaswcmf, l.I..R. 51 Bcm. 498; A.l.R. 1927 Born- 440.
44 -

12. Pravin Chandra v. State ofArdh1'a P1cdesh,A.l.R. 19765 S.C. 1185 (Subha Rao. M-
Hidayatullah and Mudholkar j].).

188

debafrefi from iﬁvestigaﬁng any noncognizahle offence which
may arise out of the same facts. He can include that non-

cognizable oﬁence in the charge sheet which he presents for
a cognizable oﬁence.

_It was further observed, that such a case fell under
section 190(1)(b), and that once a case fell under section
190(1) (b), the procedure under section 251A was to be
followed. The Calcutta decision in Prem Chand v. State'
was partly overruled, i.e. to the extent described below.
The Calcutta decision held, that section 20G of the Opium
Act (as amended in Bengal) which provided that a report
in writing by an officer of the Excise, Police or the Customs
Department shall be enquired into and tried as if such
report was a report in writing by a police officer under
clause (b) of section 190(1), did not extend that ﬁctiqn so
as to regard the report as a charge sheet under section 173
or to attract section 251A. The Supreme Court raised this
query----if the fiction in section 20G did not make it a report
under section 173, then what other purposes could the
Legislature have had in mind in saying that it was a police
ofTicer's report ?

The Supreme Court decision does not, however, seem to
affect the proposition that if an investigation is not autho-
rised by law, then the police report should be treated as a
complaint. If a police oﬂicer is authorised to investigate a
particular non-cognizahle case ,(as was the position on the
facts which were before the Supreme Court), then his report
would not fall under "complaint".

(2) The second questi-0.11 is, whether the deﬁnition of
"complaint" can ever he applicable in the case of report of
a police officer." The matter is not academic, because, there
are certain differences in procedure as between a case ins-
tituted on complaint on the one hand and other cases on the
other hand. Thus, on a "complaint" at Magistrate has to
examine the complainant? and he may direct an inquiry or
investigation.' There are no similar provisions in relation to
a Magistrate taking cognizance on a report of a police offi-
cer, and, ordinarily, once the Magistrate takes cognizance,
and considers that there is sufficient ground for proceeding,
he has to issue process.' He cannot make over the police
report for inquiry and report to another Magistrate.' '

Further, if an "information" is not a report but a com-
piaint, then only section 250 applies.'

1. Prem Chand V- State, A.l.R. 1958 Cal. 213.

2. See the discussion in Lakhan v-- Emit, A.I.R. 1936 All. 788. 791. left-hand, 799,
left-hand (Judgments of Sulaiman C. J. and Rachhpal Singhj.) and page 793, right hand
(dissenting judgment of Banner 1.).

3. Section 200.
4- Section 202.
5. Section 204.
. 6. Abdullah M.:mda1v.Emp...(:913)1.L.R.41ca1.a54,s56.
7. Cf. Mohammad Hashim v. Emp., A-l-R- 1940 Sind 134. 135.

189

"Taking cognizance" means that a Magistrate must not
only apply his mind: to the contents of the petition, but he
must have done so for proceeding in a particular case.' The
taking of cognizance would be with the intention of taking
steps in the progress of the case."

In view of the case-law discussed above, it appears that

(a) "complaint" and report of a police officer are
mutually exclusive? but

(b) Where the context so requires, a communication.
by a police officer would be a "complaint",

(3) The third question concerns section 200. Section
200, proviso (aa), provides that when a complaint is made
in writing, inter alia, by a public servant acting or purport-»
ing to act in the discharge of his official duties, the court
need not examine the complainant on oath. The View is
sometimes expressed, that a Magistrate can take cognizance
of a non-cognizable offence upon the report in writin by
a police officer without examining the oﬂicer on oat by
virtue of section 190(1) (b) and section 200, proviso (aa).'
But it has been pointed out,' that section 200, proviso (aa)
pre-supposes that there is a "complaint", while (after 1923)
a report by a police officer of even a non-cognizable-
offence (according to one view) is not a complaint, and
cognizance of the offence reported (according to that view)'

can be taken of just as on a "report" of a cognizable
offence."

(4) The fourth question which has been discussed in the
case law is, whether section 190(1) (b) applies to reports
by the police under a provision of the Code of Criminal
Procedure other than section 173. One view is, that it in-
cludes not only the ﬁnal report under section 173, but also
other reports made by the police.'-''-'-'''

1. See R. R. Chari v. State, (1951) S.C.R. 312, 320; A.I.R. 1951 S.C. 207, 210, approving'

the observations in A.I.R. 1950 Cal- 437-
2. Cf. Bhajohari v. State of West Bengal, A.I.R. 1959 SC. 8, 12.

3. Cf. Woodroie, Criminal Procedure Code, (1926) page 12, and Abdullah Khan
v. Emp.i, A.I.R. 1933 Sind 188, I89.

4. Public Prosecutor v. Ratmwelu I.L.R. 49 Mad. 525; A.I.R. 1926 Med. 865.

5. Prag Datt v. Emp., A.I.R. 1928 All. 765, 766, 767.

6. Manik Chand v. The State, 62 Cal. Weekly Notes, 94, 108 (Chakravarti'C. J. and
Das Gupta J.).

7. Bansidhar, I.L.R. (1959) 9 Raj. 86; A.I.R. 1959 Raj. 191, l93|[Report under section
153(2)----cognizance can be taken].

8. Rama Shankar v. State, A.I.R. 1956 All. 525, 527, para. 7 (A Magistrate can take
cognizance of an offence on a charge-sheet submitted by an investigating oﬁcer under the
administrative directions of District Magistrate, after he had submitted a ﬁnal report).-

9. I.L.R. 1956 Cut. 267; A.I.R. 1956 Orissa 129, 135, para. 15 (P.V.B. Raoj.) (Report
under section 170)-

h 10). In. re Kunjan Nadar, I.L.R. 1954 TC. 1217; A.I.R. 1955 TC. 74, 79 (Interim charge-
s eet .

190

It was observed in a Sind' case (before the 1923 Amend-
ment) that the words "police report" in section 190(1) (b)
can cover reports under sections 114, 157 and 168 also.
It was also pointed out,' that when a report is submitted
under section 157, the Magistrate can direct an investi-
gation (section 159), or hold an inquiry or dispose of the
«case.

. But the Calcutta view seems to have been narrower
in this respect, namely, section 190(1) (b) (before 1923) is
confined to "police reports" Within the meaning of section
170.

The Allahabad High Court held before 1923 that "police
report" in section 190(1) (b) is not limited to a report men-
tioned in section 170 and preceding sections. Thus,' 5
receiving information by post, if the Magistrate sends the
case for inquiry and report to the police and takes cog-
nizance on the report thus received, it falls under clause
(b) of section 190(1).

Even under Chapter 14, a police oﬂicer makes three
-different kinds of reports at three different stages, under
the following sections-- '

(i) section 157 (a kind of preliminary report) ;
.(ii) section 168 (report to superior oﬁicer) ;
,(iii) section 173 (ﬁnal report).

The under-mentioned cases''-'--" may also be seen.

The observations in a Lahore case are instructive' :--

"The Code of Criminal Procedure clearly contem-
plates the possibility of a Magistrate who has taken
cognizance of an offence commencing an inquiry or
trial even though the case is still under investigation
in the sense that the ﬁnal report under section 173
has not been put in. Under section 170 of the Code,
if upon an investigation under Chapter 14 it appears to
the officer in charge of the police station that there is
sufﬁcient evidence or reasonable ground to justify the

1. Mehmb v- The Crown, A.I.R. 1924 Sind 71, 72 (F.B.) (Per Kincaid J. c.).

2. Mehrab v. The Crown, A.l.R. 1924 Sind 71, 72 (Per Raymond A.].C.).

3. See Nqgendra v. K. E. l.L.R. 51 Cal. 402; A.I.R. 1924 Cal. 476, 479 (Mookerjee and
Chatterjee J.).

4- Sarfaraz v. Emp. 14 Cr. L.]. 218.

5. See also Lallu Singh, A.I.R. 1943 Oudh 226.

6. Ranjit Singh v. State, A.l.R. 1952 Himachal Pradesh 81, 87, 88, para. 15 [Commence-
ment of trial on receipt of first challan without waiting for-ﬁnal challan--Held, that thouﬁh
the challan was not a "police-report" within the meaning of section 173, it fell within t e
provisions of section 190(1)(b)].

7. Bholanath v. Emp., A.I.R. 1924 Cal. 614, 616.

8. Churmi Lal v. Emp., A.I.R. 1933 All. 399, 400 (Report by prosecuting inspector to
put witness on trial as co-accused is a report in writing by a police oiﬁcer within s. 190(l)(b);
"taking cognizance is valid, but was set aside as unfair).

9. Lal Khan v. Emp., A.I.R. 1948 43, 45, para. 7 (Munir and Marlen J.).

191

forwarding of the accused to a Magistrate, such officer
shall forward the accused under custody to a Magis-
trate empowered to take cognizance of the offence
upon a police report, and to try the accused or commit
him for trial. Under section 190, a Magistrate may take
cognizance of an offence upon a report in writing of
facts which constitute such offence made by any police
ofﬁcer, It is well settled that the report contemplated
by section 190 need not be a ﬁnal report under section
173 of the Code and that any report of facts which
constitute an offence made by any police officer is
sufficient to give the Magistrate jurisdiction to take
cognizance of the offence and to commence the inquiry
or trial. If, therefore, a report made by the investigat-
ing ofﬁcer- under section 170 complies with the condi-
tions of section 190, sub-section (1), clause (b), namely,
that it states the facts which constitute an offence,
the Magistrate can take cognizance of the offence under
section 190 and proceed with the enquiry or trial. Thus
the position is quite possible, and every one acquainted
with the procedure of police investigation knows, that
an enquiry or a trial might begin on a report made
by the police under section 170, even though the matter
is still under investigation by the police and the
ﬁnal report under section 173 has not been received.
In such a case, it is, in our view, quite competent to
the enquiring or trying Magistrate to proceed to record
the statement of the accused person under section 342,
Cr. P.C. without giving any such warning as is
required by section 164, Cr. P.C."

According to the contrary view', it is only when the
ﬁnal "charge sheet" under section 173 is ﬁled that it will
be clear whether an offence has been committed. Until
then Magistrate does not take cognizance.

(5) The ﬁfth question is as regards reports made under
other laws.

Where a police officer, while investigating an offence
under another law, still follows the procedure in Chapter 14
of the Criminal Procedure Code, there is no diﬂicultyf In
that case, the procedure under section 252, if followed.
must be set aside."

The controversy regarding other laws may be illus-
trated by the conﬂict of decisions as to reports under the
Motor Vehicles Act, In one case,' it has been held that a
report of a police ofﬁcer in a non-cognizable case under

1. In re Ponnu Kudumban, A.l.R. 1956 Mad. 392, 395 ; para. 6.
2. Cf- Pavadai Gounder, (1967) 1 Cr. L]. 41, 44.
3. State v. Meenakshi, (1961) Kerala Law Times 532.

192

'sections_42"and 123 _of the Motor Vehicles Act, 1939, is a
complaint , while In some cases'-2 it was not treated as
a complaint.

_ A question as to the Essential Commodities Act arose
in a Supreme Court decision, but in that case an offence-
under section 420, Indian Penal Code', was also under
investigation. The Supreme Court disposed of the case' on
the ground that where a cognizable offence is involved,
other offences can also be investigated by the police, so
that the report submitted after the investigation was held
to fall under section 19Q('1)(b) and also under section 173.

The main reason for this conclusion was, that where the
information discloses a cognizable as well as a non--cogni-
zable oﬁence, the police oﬂicer isnot debarred from investi-
gating any non-cognizable offence which may arise out of
the same facts. He can include that non-cognizable offence
inf the charge-sheet which is presented for the cognizable
o ence.

The question has been considered under sections 207,.
207A, 208, 251, 251A and 252, which make a distinction as
to the procedure to be followed in cases instituted upon
police report on the one hand and other cases.

Considerable practical importance attaches to this ques-
tion, because the procedure under section 251A is quite dif-
ferent from that under section 252, and the basis of the
distinction 1S whether the case is instituted on a "police
report" or otherwise. The old procedure was retained for
cases instituted otherwise than on olice report, when sec-
tion 251A was introduced in 1955, ecause, in a case insti-
tuted on a police report there are statements of witnesses
recorded by the police under section 161 (3) and other docu-
mentary evidence which give the accused an opportunity
of knowing the case, while there are no such statements or
documents in a case instituted on a private complaint.'

In the decisions of the High Courts where this question
has come up before 1966, it has been held,''-' that when a
Magistrate takes cognizance under section 190(1) (b)
upon a report in writing of such facts made by a police
officer, it may or may not be a "proceeding instituted upon

a police report" within sections 207A and 251A.

1. State v. Abdul Rashid, A.I.R. 1963 M.P. 71.
2. State v. Abdul Kadir, A.l.R. 1963 M.P. 125.
3. Pravin Chandra v. State A.l.R. 1965 SC. 1185.

4 Report of the Joint Committee on the 1954 Bill, page (ix): Par?" 23 read With Par?"
20 notes relating to clauses 29 and 35).

5 .Kan,kanampath Nagayya, (1962) 2 Cr. L.]. 719. (Andhra Pradesh) (Kumarayya 1.).
6. Chitraranian Das v. State, A.I.R. 1963 Cal. 191.

193

. The procedure in section 251A takes into account two
important matters-

(1) that a competent Department of the Govern-
ment has investigated the matter, and

(2) that the investigation has been in accordance
with the Code of Criminal Procedure.

In fact, the validity of sections 207 and 207A Was up-
held by the Supreme Court' because the distinction is based
on a very relevant consideration, namely, whether or not

there has been a previous inquiry by a responsible public
servant.

It has been observed} that the report of a police oﬁicer
is the genus, of which "police report" understood in the
technical sense is only a species.

In fact, if section 251A is sought to be given a wide
interpretation to cover all reports of a police oiﬁcer, the
section would not really work} because sections 207A(3),
207A(5) and 251A contemplate that there has been an
investigation under Chapter 14. Section 251A(1) would not
be complied with, because there would be no first informa-
tion report under section 154 nor any statement recorded
under section 161 nor any report forwarded under sec-
tion 173, of which a copy could be furnished to the accused,
as required by section 251A(1) and section 207A(3). More-
over, sections 207A(1), 207A4(3), 207A(6), and section
251A(1) and (2) expressly refer to section 173.

Though there are observations in the Supreme Court
cases'-5 which may seem to take the view that every Report
which falls under section 19(l('1)(b) falls also under sec-
tion 251A, those observations must be read with the facts
of the case, and could not have been intended to obliterate
the distinction intended by the varying expressions used
in sections 173 and 251A on the one hand, and section
190(1)(b) on the other.

In a Full Bench decision of the Madhya Pradesh High
Court' the Supreme Court decision in Pravin Chandra's
case' was followed. The Madhya Pradesh case also related
to section 20G, Opium Act, as amended in Madhya Pradesh,
and the actual decision could not be otherwise, though the
observations seem to suggest that whatever falls under sec-
tion 190(1)(b) falls under section 251A.

1. A.I.R. 1957 SC. 927.

2. Chittaranjan Das v. State of West Bengal, A.l.R. 1963 Cal. 191, 196, para. 18 (Ama-
resh Roy J-)-

3. Cf. Premchand v. State, A.I.R. 1958 Cal. 213, 216 para. 11.
4-. Pravin Chandra v. State of Andhm Pradesh, A.I.R. 1965 SC. 1185.

5. See also Raghubans Dubey v. State of Bihar A.I.R. 1967 'S.C. 1167, 1169, para. 9
(August). . °

6. Ashiq Miyan v. State, A.I.R. 1966 M.P. 1. 4 para. 8 (January) (F.B.).
14-29 Law/68

194

In a Calcutta case,' the Supreme Court decision in
Pravin Chandraz was followed and was regarded as autho-
rity for a ﬁnding that the procedure prescribed in section
251A of the Code will be attracted to the trial of cases cog-
nizance whereof is taken under section 190(1)(b) of the
Code on the report of a police oiﬁcer submitted under sec-
tion 11 of the Essential Commodities Act.

Proposed solution

It is desirable to clarify the position as far as possible.
(Some parts of the controversy are due to a misreading of
the sections, and cannot be cured by amendment). The
solution would be----

(i) to include in section 4 in the deﬁnition of "com-
plaint" reports made by the police on an unauthorised
investigation of non-cognizable cases, thus solving the
points relating to the deﬁnition of "complaint" and sec-
tion 200, and relating to section 190 in respect of non-
cognizable oﬁences;

(ii) to keep» sections 251A and 207A as they are, as the
observations in Pravin Chandrafs case" must be read along
with the facts; and

(iii) to amend section 190(1) (b) (if necessary) to cover
speciﬁcally reports under other sections of the Code or
under other laws.'

Some important points of diﬁence between (i) complaint
cases (ii) cases instituted on police report under section 173,
and (iii) cases instituted on other reports or police officers
reports falling under section 190(1) (b), but outside sec-
tion 173. '

Complaint Police Report Other reports ofipolice
oﬂicers
A. 1 A. 2 A. 3
No distinction between S. 155(2) . .

complaints of cogniz- Police may investigate

able oﬂ'ences and other into non-cognizable

complaints. cases only on obtain-
ing the order of the
Magistrate. Hence a
"police report") in,
respect of such offence
can follow only on an
investigation so autho-
rised.

1. Malay Banerjee v. State, (1967) Cr. L.]. 858 para. 9 (July); A-LR. 1967 Cal. 352.
Z. Pravin Chandra v. State, A.I.R. 1965 SC. 1185.
3. To be considered under section 190(1)(b).

195

Complaint

Police Report

Other Reports of
police oﬂicers

B. 1
S. l96(1)(a)

No prosecution for con-
tempt of lawful autho-
rity of public servant
except on the complaint
of the public servant.

C. 1
S. 196A

No court to take cogniz-
ance of certain classes
of criminal conspiracy
except upon complaint
made by the authority
of the State Government
etc.

D. 1
S. 196

Prosecution for offences
against the State etc. to
lie only upon complaint
made by order of the
State Government.

E. 1
Sections 200 and 202 and
204

A Magistrate may examine
the complainant and
hold a preliminary en-
quiry before issuing pro-
cess on a case in which
cognizance has been
taken by him on a com-
plaint.

But under section 200,
Proviso (aa), examina-
tion of the complainant
is not necessary in case
of complaint by a pub-
lic servant etc.

The complaint may be dis-
missed as a result of the
inquiry, under section
202, if there is no suﬁ-
cient ground for pro-
ceeding.

B.2

E. 2
Section 204(1)
No Examination is ne-
cessary. Process

can be issued imme-
diately.

17.2

No provision for dis-
missal.

B.3

E. 3
Section 204(1)
No examination is ne-

cessary. Process can
be issued immediately.

I-'.3

No provision for dis-
missal.

196

Complaint

Police Report

Other Report of
police oﬂicers

Q.l

Sections 204(3) and 204(lB)
The Magistrate may dis-

miss the complaint if
process fee is not paid.
Further, a copy of the
complainant's exami-
nation need not be sup-
plied. But, under sec-
tion 204(lB), a copy of
the written complaint
accompanies the sum-
mons or warrant.

H. 1
Sections 208-220

The Procedure for enquiry

into cases triable by the
Court of Session or
High Court which are
instituted otherwise
than on a police report,
dealt with.

I. 1
Section 24-7

Accused to be acquitted

for non-appearance of
complainant, if sum-
mons issued on com-
plaint.

J. 1
S. 248

The Magistrate may per-

mit a Complaint to be
withdrawn by the com-
plainant, and thereupon

' acquit the accused.

K. 1
S. 250(1)

Compensation to the ac-

cused for false, frivo-
lous or vexatious ac-
cusation, where case is
instituted upon 'com-
plaint or upon 'infor-
mation' given to p0llCe
or Magistrate.

G. 2

Section 173(4)
Copies of the
report, and of the
Firstlnformation Re-
port and of the state-
ments etc. made in
investigation, are to
be supplied before
the commencement of

the inquiry or trial.

H. 2
Section 207A

Procedure for commit-
ment proceedings ins-
tituted on police
report, dealt with.

1.2

No such provision.

J. 2
S. 249

In any (summons) case
instituted otherwise
than upon complaint,
the Magistrate may
stop proceedings with-
out pronouncing any
judgment of acquit-
tal or conviction, for
reasons to be record-

ed by him.

K. 2
S. 250(1) would
apply.

not

(3.3

police No provision for sup-

plying copy to the
accused.

H. 3
Section 208-220

Procedure for commit-
ment proceedings into
cases instituted other-
wise than on a police
report falling under
section 17.3, dealt with.

1.3

No such provision.

J. 3
S. 249

In any case instituted
otherwise than upon

complaint (which
would include the
report of the police

oﬂicer than one under'
S. 173), the Magistrate
may stop the proceed-
ings without -pro-
nouncing judgment of
acquittal or convic-
tion, for reasons to be
recorded by him.

K.3

Apparently, S. 250(1)
would' not apply.' The
words "as deﬁned in
this Code" were omit-
ted in 1923, onlytas.
redundant. 3

1, Cf. In re Syed lbraham, A. I. R. 1959 Mad. 32, para. 13.

197

Complaint Police Report Other Report of
police otﬁcers

L. 1 L. 2 L. 3
S. 252 to 258 S. 25l--A Ss. Z52-258

Procedure for trial of Procedure for trial of Procedure for trial of
warrant cases instituted warrant cases insti- warrant cases institu--
otherwisethan on police tuted onpolicereport. ted otherwise than on

report. "police report".
M. 1 M. 2 M. 3
S. 259
Discharge of the accused No provision. No provision.

«on the ground of absence
of the complainant.

N. 1 N. 2 N. 3
S. 417(3) See s. 417(1) See section 417(1)
Appeal against acquittal .. ..

in a case instituted upon
complaint to lie only if
the High Court grants
special leave to appeal.

0. 1 O. 2 O. 3
S. 436

PowerofHigh Court or
the Sessions Judge to
order further enquiry
into any "complaint"
which has been dis-
missed under section 203
or section 204(3).

P. 1 P. 2 P. 3
S. 546-A
The Court may, in addi- .. I ..

tion to the penalty im-
posed upon the accused,
order him to pay to the
complainant any fees
paid by him on the peti-
tion of complaint etc.
when the same relates
to a non-cognizable
offence.

Power exer-
cisable by
bench in
absence of
Special
direction.

198
APPENDIX 4
Note on Section 15(2) and powers of Benches
Section 15(2) of the Code runs as follows :--

15(i2) Except as otherwise provided by any order
under this section, every such Bench shall have the
powers conferred by this Code on a Magistrate of the
highest class to which any one of its members, who is
present taking part in the proceedings as a member
of the Bench, belongs, and as far as practicable shall,
for the purpose of this Code, be deemed to be a
Magistrate of such class."

The true meaning to be attached to the section is
that Government, in its order under the section can specify
the gradation (first, or second or third class), but if Govern-
ment does not do so, then the Bench has the powers of
the member of the highest class. Thus, it is open to the
Government to invest a Bench composed of Magistrates of
a lower class with ordinary or additional powers of a Magis~
trate of the higher class.'

Section 15 (2) has also another aspect, namely, the
Bench has all powers (of the highest class of Magistrates to
which one of its Members belongs), The emphasis, now, is
not on the grade but on the nature of the powers. This re-
moves the diﬂiculty felt under section 50 of the Code of
1872, whereunder the High Court was unable to infer" that
.a Bench had jurisdiction with regard to miscellaneous
matters,----~such as disputes as to immovable property--from
the mere fact that the Bench had been empowered to try
'cases!'

The words "sit together" in section 15 were explained
by Beaumont C. J. as fol1ows"':--

"Acting under section 15, the Government of Bombay,
on 9th December, 1931, directed that ten Magistrates of the
Satara District, two having powers of the ﬁrst class and
eight of the second class should sit together as a Bench, and
conferred on the said Bench all the powers conferred by the
said Code on a Magistrate of the ﬁrst class except certain
powers referred to in the notiﬁcation. The view taken by
the Sub-divisional Magistrate is that under that notiﬁcation
all ten members of the Bench must sit togeher, these being
the words used in the notiﬁcation, and that the special
powers of a First Class Magistrate conferred by the noti-
ﬁcation only apply if the whole Bench is sitting together.
He takes the view further that as only three members of

1. Cf. Emp. v. Noor Mahmomed, A.I.R- 1928 Sind. 1, 5 (F.B.).
2. Sujffemdin v. Ibrahim, (1877) I.I.-R- 3 Cal- 754-
3. Emp. v.BhimablaiSitamm, A.I.R. 1934 Bom. 176, I77. I78-

199

the Bench were sitting (three being a quorum) the powers
of the Bench were those conferred by sub-section '(2), sec.
tion 15, v1z., the powers of a Second Class Magistrate, no
member of the Bench of three being of a higher class than
that. It seems to me that the latter View of the Sub--divi-
slonal Magistrate cannot be supported, because the Bench
on which powers are conferred by sub-section (3), sec-
tion 15, in the absence of any special powers conferred under
sub-section (1), is the same Bench as that on which special
powers might have been conferred under sub-section (1),
and if the learned Sub-divisional Magistrate is right in
thinking that the powers under sub-section '(1) can only
be conferred on the whole Bench of ten Magistrates then
no powers arise under sub-section (2), and a Bench con-
sisting of less than ten Magistrates would seem to be a
Bench devoid of powers. No doubt some force is lent to
the view of the learned Sub--divisiona1 Magistrates on the
former point by the use of the words "sit together" in the
Government Notiﬁcation, These words follow the language
of section 15, and as the notiﬁcation is expressly made
under the powers conferred by that section, we must, I
think, construe the words in the notiﬁcation as having the
same meaning as similar words in the section.

"We have therefore to use what the words "sit together"
in section 15 really mean. Now if they are to be construed
literally, they mean that the whole Bench must sit in
session together. Two difficulties arise on that construction.
In the ﬁrst place there would seem to be no force in the
power iven in section 16 by which the Local Government
can ma e rules for the constitution of Benches. If a Bench
in session must always consist of all the members of the
Bench that power seems to be nugatory. In the second place
it is plain that if the whole Bench must at all times sit
together it would for practical purposes be useless as a
Bench, because it is notoriously difficult to get a consider-
able number of Honorary Magistrates to "sit together" for
any length of time. We must read sections 15 and 16
together, and reading them together it seems to me that
the words "sit together", in section 15 must be construed
as equivalent to "constitute",' so that the Local Govern-
ment may direct any two or more Magistrate to consti-
tute a Bench, and then they may invest that Bench with
special powers, and they may make rules under section 16
providing how the Bench is to be constituted for the purpose
of conducting trials. If that is so, the rules which have
been made by Government, providing that a Bench should
consist generally speaking of ﬁve members with a quorum
of three, are valid, If the right construction of sections 15
and 16 of the Code is as I have indicated above, then a
similar meaning must be given to the words "sit together"
in the notiﬁcation made by Government under section 15,
and we must hold that three Magistrates, members of the

1. Emphasis supplied-

200

whole Bench of ten, who forrned the trial Bench, had the
powers _of a First Class Magistrate under the notiﬁcation.
That being so, the learned Sub-divisional Magistrate had no
Jurisdiction to deal with the case."

'To put the matter differently, "The two sections must
be interpreted so as to give_ effect to both, and that can only
be done, it seems, by holding that the Benches created by
notiﬁcation under section 16(c) out of the Bench created by
section 15 have the powers given to that Bench by the order
under section 15".'

Even where one of the Magistrates is of the first class,
Government can direct that the Bench shall be a Second
class one. This is clear? from the word "except as other-
wise provided" in section 15(2).

Where an Honorary Magistrate was a member of an
"independent" Bench, he could not (unless specially autho-
gsedzl Sexercise Magisterial powers when not sitting on the

enc .

APPENDIX 5

Points of dijference between Presidency Magistrates and
other Magistrates.

(1) Appointments: Section 18-

The Chief Presidency Magistrate and Additional Chief
Presidency Magistrate are "District Judges" Within the
meaning of Article 236 of the Constitution. They should be
"appointed" in consultation with the High Court.

Other Magistrates (including the District Magistrate)
are not "District Judges" within Article 236 of the Consti-
tution.

(2) Subordination: Section 21-

.(a) Presidency Magistrates are subordinate to the
Chief Presidency Magistrate, to the extent defined by the
State Government. Powers of transfer are exercised by the
Chief Presidency Magistrate--sections 528(2), 192(1).

(b) The Acts providing for Sessions Courts in the three
Presidency Towns do not subordinate the Presidency Magis-
trates to the Sessions Court. But, by virtue of section_528
:('1C), a power of transfer is conferred on the "Sessions
Judge", and this has been held to apply to coverythe
Sessions Judges in Presidency towns also.'

1. Barleej. in Emp. v. Bhimabai, A.l.R. 1934 Bom. 176, 178-

2. See Joseph v. Changanacherry Municipality, A.l.R. 1963 Kerala 200, 201.

3. Emp. v. Nuri Shaikh, (1902) l.I..R. 29 Cal. 483, 486.

4. Ahmed Moideen v. Inspector D. Division, A.I.R. 1959 Mad. 261, 269, para. 25 to 28.

201

(c) Magistrates in the mofussil are subordinate to the
District Magistrate. Except as provided by the Code' they
are not "subordinate" to the Sessions Judge."

(3) Benches: Sections 19 and 15-

The Chief Presidency Magistrate can frame rules, and,
subject thereto, the Presidency Magistrates can sit in
Benches of two or more Magistrates (section 19).

In the mofussil, the Magistrates cannot sit together
unless the State Government directs the constitution of
benches, and invests them with powers (section 15).

(4) Offences that can be tried: section 28, Second Schedule,
column 8, and section 32(a)----
Presidency Magistrates are sui generis regarding the
offences that can be tried and the sentences that can be
imposed. There is no "gradation" amongst them,

(5) Examination of complainant: section 200, proviso (b)

A Presidency Magistrate may dispense with the admi-
nistration of oath to the complainant and his witnesses. He
need not reduce the substance to writing, if the complaint
is a written complaint.'

Other magistrates must follow the detailed procedure
given in section 200.

(6) Committal Proceedings : sections 206 and 213-

(a) Commitment by Presidency Magistrates is to the
High Court under the scheme of the Code (section 206).
This position has been changed by local amendments, which
create a City Sessions Court in the three Presidency towns.

(b) A Presidency Magistrate need not give reasons for
commitment. (This is changed in Madras).

(7) Eejcord of Evidence and charge: Section 362(4) and
1 __

Where no appeal lies (i.e. caess in which the punish-
ment is imprisonment less than six months and ﬁne less
than Rs, 200/-) the Presidency Magistrate need not record
the evidence nor frame a charge.' [section 362(4)].

(8) Judgment: Section 370-

Presidency Magistrate need not write a judgment, but
should keep the record on the basis of particulars men-
tioned in section 370. But, where the Presidency Magistrate

1. Section 17(5).

2. I.I..R. 2 Al1.205 (F.B.); I.L.R. 26 Mad. 596.
3. I.L.R. 6 Fat. 39; A.I.R. 1927 Pat. 111.

4. Cf.Aiyar, A.I.R. 1948 Mad. 424.

5. The Law Commission, in its 14th Report, Vol. 2, page 828, has recommended an
xmendment requiring recording of substance of evidance and framing of charge by Presi -
dency Magistrates.

202

awards imprisonment or ﬁne exceeding Rs. 200, a brief state-
ment of the reasons for the conviction should be maintained.

(9) Appeal : Sections 411 and 406, 406A-

(a) Appeal lies to the High Court where the sentence

exceeds six months or where the ﬁne exceeds Rs. 200/-
(Section 411).

\(b) An appeal lies to the High Court from an order

requiring security for keeping the peace or good behaviour
[section 406(a)].

order refusing to accept or rejecting a surety, [section
406A(a)].

(10) Reference: sections 432(2) and 441--

Presidency Magistrates can refer a question of law to
the High Court.'

(11) Revision: Sections 436 to 439 and 441

(a) To the High Court only--The powers of the High
Court under section 439 are unaffected.'

Bombay and Madras enactments establishing Courts of
Sessions for the respective Presidency towns (sections 9,
10, 11) have not made changes in these provisions, but the
enactment creating the City Sessions Court, Calcutta, ex-
pressly states that the City Sessions Court will not' have
powers of Appeal, reference and revision (section 6..West
Bengal Act 20 of 1953).

(b) A Presidency Magistrate can submit his views to
the High Court (section 441).

(12) Transfer: Section 528----

See "Subordination" above, and "withdrawal" below.

(13) Attendance of Prisoners: Section 542-

Apart from powers conferred by the Prisoners (Atten-
dance in Courts) Act, 1955 (32 of 1955), which applies to
all the territories in India (except J ammu and Kashmir), a
Presidency Magistrate has special power under section 542.

(14) Compensation for groundless arrest : Section 553--
Applicable only to Presidency Towns.

1. See--
(i) Girish, A.I.R. 1929 Cal. 756 (F.B.); and
(ii) Abdul Rahman, (1960) 1 S.C.R. 749; A.I.R. 1960 S.C. 82.

2. Cf. Malik Pratap Singh v. Khan Mohamed, (1909) 36 Cal. 994, and R. G. Ruia v.
State, A.I.R. 1958 S.C. 97. 103.

203

(15) Withdrawal and transfer of cases---Sections 526(1A)
and 528(1C)--

Before 1955, there was no power in the Sessions Judge
to transfer cases from one Magistrate to another. The 1955
Amendment--sections 526\(1A) and 528(1C)--gives this
power. It has been held to extend to Presidency Towns.'

The power of the Chief Presidency Magistrate (sec-
tion 528) is controlled by the superior power of the City
Sessions Judge? On rejection of transfer application [Sec-
tion 526(1A)] by the Chief Presidency Magistrate, an appli-
cation can be made to Session Court [section 528I(1C)].

APPENDIX 6

Note on section 51 and Medical examination

The question of physical and medical examination of
the accused at the stage of investigation can be considered
under the following heads :--

(a) whether such examination is legally permis-
sible;

(b) if it is not legally permissible, whether a provi-
sion permitting it can be inserted without violating the
constitutional privilege against self-incrimination ;"

d (c) whether such a provision ought to be inserted;
an

(d) what ought to be the form of the provision.

As to (a) above, it may be stated that any interference
with the body of a person is, prima facie, unlawful, and
must justif itself under some express rule of law. According
to Winfie1d¥--"Battery is intentional application of force to
another person". As observed by Salmond,' "In respect of
his personal dignity, therefore, a man may recover substan-
tial damages for battery which has done him no harm what-
ever, as when a man's ﬁngerprints are taken without observ-
ing the statutory requirements."

Halsbury states the law in England thus" : ---

"Without the consent of a prisoner, a judge or
magistrate has no power to order an examination of
his person, and if in pursuance of such an order an exa-
mination is made, the person who made the order and

. Ahmed Moideen v. Inspector D. Division, A.I.R. 1959 Mad. 261, 279, paras. 25 to 28.
. Ahmed Moideen v. Inspector D. Division, A-LR. 1959 Mad. 261.

. Article 20(3), Constitution of India.

. Winﬁeld Torts, (1963) page 150.

. Salmond, Torts (1961), page 302.

6. Halsbury, 3rd Edn., Vol. 10, page 742, pra. 1425; As to search, see Halsbury,

3rd Edn., Vol. 10, page 356. -

UI-lbhltu---

204

the person who makes the examination are guilty of an
assault; but if the prisoner consents, even under a mis-
apprehension as to the power to make such an order,
the consent is an answer to the charge of assault."

In England, the right of a constable to search a prisoner
upon hlS arrest appears to be impliedly recognised by the
Magistrate's Court Act, 1952.' As to the metropolis, see the
Metropolitical Police Act, 1839." As to the extent of the
right of search at common law, see the under--mentioned
6 5 7 B 9 10 11

It has been speciﬁcally held," that a Magistrate has no
right to order an examination of the person of a prisoner.
An examination by medical men, in pursuance of such an
order, of the person of a female, '(in custody upon the charge
of concealing the birth of her illegitimate child) constitutes
an assault.

Examination of the body--both of the accused and of
the victim---thus seems to require consent in England."

We shall now refer to sections 4 and 5 of the Identiﬁca-
tion of Prisoners Act."

Section 4: Taking of measurements etc. of nonconvtcted
persons

Any person who has been arrested in connection with
an offence punishable with rigorous imprisonment for a
term of one year or upward shall, if so required by a police
officer, allow his measurements including ﬁnger impressions
and foot-print impressions to be taken in the prescribed
manner.

Section 5: Powers of Magistrate to order a person to be
measured or photographed

If a Magistrate is satisﬁed that, for the purpose, of any
investigation or proceeding under the Code of Criminal
Procedure, 1898, it is expedient to direct any person to
allow his measurements (including ﬁnger impressions and

1. R.v.B)xlton, (1871) 12 Cox. Co. 37, 91 (Restofthefootnote in Halsbury is '

Omitted).

\ooo\10\U\-AWN

. Magistrates' Courts Act, 1952 (15 S1 16 Geo. 6 and 1 Eliz. 2 c. 55), section 39.
. Metropolitan Police Act, 1839 (2 & 3 Vict. c. 47), section 66.

. \Villey v. Peace, (1951) 1 KB. 94 D.C.; (1950) 2 All. ER. 724.

. Bessell v. Wilson, (1853) 20 L.T. 0.3. 233.

. R. v. Bass, (1849) 2 Car. & Kir. 822.

. Leigh V. Cole, (1853) 6 Cox. C.C. 329...

. Dillon v. O'Brien and Davis, (1887), 16 Cox. C.C. 245.

. R. v. Boulton, (1871) 12 Cox C.C. 87, 95.

10. R. v. Boultan, (1871) 12 Cox C.C. 356.

11. Latter v. Braddell, (1881) 50 L]. Q.B. 448 (C.A.).

12. Agnew v. Jobsom, (1877) 13 Cox. C.C. 625.

13. See Keith Simpson, Doctor's Guide to Court (1962), pages 124 to 127-
14. The Identiﬁcation of Prisoners Act, 1920 (33 of 1920).

205

foot-print impressions) or photograph to be taken, he may
make an order to that effect, and in that case that person
to whom the order relates shall be produced or shall attend
at the time and place speciﬁed in the order and shall allow
his measurements or photograph to be taken. as the case
may be, by a police oﬂicer:

Provided further, that no order shall be made under this
section unless the person has at some time been arrested'
in connection with such investigation or proceeding."

These sections do not extend to medical examination.

That under section 51, medical examination of the
accused cannot be held without his consent, appears to be
fairly clear from the discussion in the undermentioned

case,' though consent need not be necessarily recorded in
writing,'

The matter has been elaborately discussed in a Bombay
case.'

As to (b) above, it will suiﬁce to refer to the decision
of the Suprement Court in Kathi Kalu,' which has the effect
of conﬁning the privilege under article 20(3) to testimony----
written or oral.5 The Supreme Court's judgment in Kathi
Kalu should be taken as overruling the View taken in some
earlier decisions." invalidating provisions similar to
section 5, Identiﬁcation of Prisoners Act, 1920.

The position in the U.S.A. has been thus summarised."

"Less certain is the protection accorded to the defen-
dant with regard to non-testimonial physical evidence other
than personal papers. Can the accused be forced to supply
a sample of his blood or urine if the resultant tests are
likely to further the prosecution's case? Can he be forced
to give his ﬁnger prints to Wear a disguise or certain cloth-
ing, to supply a pair of shoes which might match foot-
prints at the scene of the crime, to stand in a lineup, to

. Bhondar v. Emp., A.I.R. 1931 Cal. 601, 602.

- Hanuman Sarma v. Emp., A.I.R. 1932 Cal. 723, 725-

. Deoman v. State, A.I.R. 1959 Born. 284, 285, 286 (Data: & Tarkunde J].).

. Kathi Kalu, v. State, A.I.R. 1961 S.C. 1808.

. Some of the relevant decisions of the High Courts are--

(a) Pokhar Singh, A.I.R. 1958 Punjab 294, 299, 300, 301, paras. 32 to 50. '

(b) Ram Swamp v. State, A.I.R. 1959 All. 119, 125, 126 (Reviews case-law).

(c) In re Moopan Palani, A-LR. 1955 Mad. 495,, 497, para. 7 (B1ood.stained dmhes),
(d) Subbava v. Bhopala, A.I.R. 1959 Mad. 396, 401, para. 10 (Taking of blood for test).
6. Brij Bhushan v. State, A.I.R. 1957 'M.B. 106.

7. N. D. N. Pakuthy, A.I.R. 1950 T.C. 5.

8. Emerson G. Spies "Due process and the Atnerical Criminan Trial (1964) 38 Austraw
lian Law Journal 223, 231.

uu-tut-nJN-*

206

S1_1bm1t to a hair cut or to having h1s_ha1r dyed, or to have
his stomach pumped _or a ﬂuoroscopic examination of the
contents of his intestines'? The literature on this aspect of
self-mcrimination is voluminous.'

The short and reasonably accurate answer to the ques-
tions posed is that almost all such physical acts can be
required.' Inﬂuenced by the historical development of the
doctrine, its purpose, and the need to balance the conﬂicting
interests of the individual and society, the courts have gene-
rally restricted -the protection of the Fifth Amendment to
situations where the defendant would be required to con-
vey ideas, or where the physical acts would offend the
decencies of civilized conduct."

A well-known writer on American Criminal Procedure
makes these points.'

Non-testimonial evidence, other than private papers
(and perhaps personal "effects"), is outside the privilege,
subject to the qualiﬁcations-

(1) It may well be that compelling an accused per-
son to do acts which result in the conveyance of his
personal ideas is in violation of the privilege against
self-incrimination.

(2) Where barbaric or indecent methods are used
to obtain evidence, the Fifth Amendment, as well as the
Fourth and Fourteenth, may be violated.

In a recent decision the question of blood tests has been
considered.'

A recent study has thus summarised the position in
U.S.A.':-----

"Much energy has been expended by prosecutors
in an effort to persuade the courts to limit the privilege
of the accused to freedom from testimonial compulsion,
thus leaving the prosecution free to compel the defen-
dant's assistance in connection with the production of

1. Morgan, "Privilege Against Self»Incrimination", 34 Minn. L. Rev. 1 (1949); lnbau,
Self-Incrimination (1950); Note, 5 N.C.L. Rev. 333; (1927); 97 U. Pa. L. Rev. 1141 '(19so);
Ladd and Gibson, "Legal-Medical Aspects of Blood Tests to Determine Intoxication" 29
Va, L, Rev, 749 (1943); A.L.I. Model Code ofEvidence,Rul'e 205 (1942). V

. Th ' '11 d 'bt, h v , s to obtaining blood or urine specimens with-
out ¢2onse,fcr.°1sSe:t;1s<s;°1I2no:h:1(:':;. Calcigzdfnijzr, 3342 U.S. 165 (1952). In Rochin, the Court held
that pumping accused stomach to recover narcotics villated the Fourteenth Amendment
as offending the "decisions of civilized conduct." A

3, see Moreland, op. cit. supra note 1], at pages 65-83; Griswold, the Fifth Amendment
Today (1955); Sowle, c1 et al, "Privilege Against Self Incrimination. An International Sym-
posium", 51 Crim. L., C. & P. S. 129-180 (1960)-

4. Moreland, Modern Criminal Procedure, (1959) pages 74, 78, 80.

5. Schmerbar v. California, (1966, 384 U-S- 75)-

6. Sowle, "The Privilege Against Self-Incrimination Principles and Trends," in Sowle
Editor), Police Power and Individual Freedom, (1963) 215, 219-

207

non-testimonial evidence.

Under this diehotomy, the
defendant could not, of c

ourse, be compelled to take
the stand and testify (or

_ _ _ _ to produce in court, under
Judicial order, private papers and perhaps other ob-
jects); however), the accused could be compelled to

stand up in court in order to facilitate a witness's
identiﬁcation of him, to display a scar, to do certain
appeal, to assume a certain position and, perhaps, even
to provide a specimen of his handwriting or his voice. If
generalisation is possible in this uncertain borderland
of the privilege, it is to the effect that the prosecutors
have met with a fair degree of success. The efforts of
defendants to block such courtroom demonstrations
(and, in the same vein, to suppress the results of demon-
strations and tests conducted outside the courtroom)
frequently have been unavailing.' However, the deci-
sions are far from uniform. Professor McCormick, in
an attempt to bring order out of apparent conﬂict, has
suggested that some courts appear to draw a line bet-
ween enforced passivity on the part of the accused and
enforced activity on his part. That, they have regarded
as unprivileged those things involving passive submis-
sion, while recognising as privileged' those activities re-
quiring the active co-operation of the accused.' Inas-
much as this shadowy corner of the privilege provides
an ideal battleground for those who would limit the
privilege and those who would expand its scope, we

can safely assume that it will be productive of conﬂict
for some time to come."

It is unnecessary to multiply further references to

American and English law, as to which the under-mentioned
sources may be seen.' ' 5 ° 7 3 ° "'

A provision permitting examination seems to have a
fair chance of passing scrutiny by courts under article 20(3).

1. The cases are collected in INBAU, Self-Incrimination, What can an accused r-
son be compelled to do (1950). See also Maguire, Evidence or Guilt, section 204 (1959).
2. See McCormick, Evidence, section 126 (1954).

3. "Required information and privilege against Self Incrirnination", (1965 April)
65 Columbia Law Review 681-

4. Dalbey, Hotis and Mintz, "Search of the Person", (Nov. 1966) 2 Criminal Law

Bulletin, page 13. '
5. D. A. Thomas, "Arrest & Search", (September 1966) Criminal Law Review 481.
6. "Self-incrimination and the States", (July l964) 73 Yale L-]- 1491-

7. G. D. Nokes, "Self-incrimination by the accused in English; law", (Marcli 1966).
Vol. 2, Univesrity of Briths Columbia Law Review 316.

8. "Blood Tests and the Bill of Rights,--Breithaupt revisited" (Oct. l965)~17 Hastings
Law Journal 139.

9. "Books and records and the
33 Broklyn Law Rev. 70-

10. A State Statute to prevent the operation Motor Vehicles by Persons under the
Inﬂuence of Alcohol (March, 1967) 4 Harraro Journal on'_Legi slatute 280, 286, 287.

privilege against self incrimination", (Fall 1966)

208

As to (c) above, it would appear that such a provision
is needed, as examination of the body would reveal valu-
able evidence.

Such examination may take various shapes, e.g.----

(i) examination of the body for ascertaining the
accused's part in a sexual offence, or for ﬁnding out the
injuries received by him ;

(ii) examination for identiﬁcation mark;

(iii) examination of internal parts, taking of ﬂuids,
(e.g. in intoxication case) and so on.

As to (d) above, the provision in the Queensland Code
is useful,' the provision is quoted below :----

(Section 259, Criminal Code,
Queensland, Australia)

"259. Examination of person of Accused person in
custody.

When a person is in lawful custody upon a charge of
committing any offence, it is lawful for a police ofﬁcer to
search his person, and to take from him anything found
upon his person and to use such force as is reasonably
necessary for that purpose.

When a person is in lawful custody upon a charge of
committing any offence of such a nature and alleged to
have been committed under such circumstances that there
are reasonable grounds for believing that an examination of
his person will afford evidence as to the commission of
the offence, it is lawful for a legally qualiﬁed medical
practitioner acting at the request of a police officer, and for
any person acting in good faith in his aid and under his
direction, to make such an examination of the person of the
person so in custody as is reasonably necessary in order to
ascertain in the facts which may afford such evidence, and
to use such force as is reasonably necessary for that
purpose."

APPENDIX 7

Note on section 94 and the accused

It has been held by the Supreme Court,' that section
94(1), does not apply to the accused person. The decision
was not based on the constitutionality of section 94 (re-
garding the constitutional provision relating to the privilege
againsﬁ self-incrimination), but on a construction' of sec-
tion 9 .

1. Section 259, Criminal Code of Queensland (Australia). ,

2. State of Gujarat v. Shyamlal, AJR. 1965 SC. 1257, 1259, paras. 29 to 32 (aﬁrming,
ofthis point, A.I.R. 1963 Gujarat 178). (Majority judgment). _

3. For history of section 94, see In re Ahmed. I.L.R. 15 Cal. 110, 137 (Ghose ].). and
also M. P. Sharma, v. Satish, A.I.R. 1954 S.C. 300, 306, para. 18.

209

The reasoning behind the Supreme Court decision was,
that the Indian Legislature was aware of the principle of
English law that the accused person could not be com-
pelled to "discover" that which would tend to subject him
to any punishment etc. The Supreme Court noted, that one
consequence of this holding would be, that section 96 (i.e.
the first two paragraphs) would be useless (in relation to
the accused). But it pointed out, that a "general" search
or inspection could still be ordered, [under section 96(1),
last para.] and that, so far as police officers were concerned,
section 165, Code of Criminal Procedure, could be resorted
to.

[As to section 94 and article 20(3). the undermentioned
cases may be seen.']

In a recent decision of a special Bench of the Court of
the Judicial Commissioner, Goa, Daman & Diu? the various
Supreme Court decisions were summarised. It was ob-
served (obiter), that section 96 does not offend article 20(3),
as neither the search nor the seizure are acts of the ac-
cused,--they are acts of another person and not the testi-
monial acts of the accused, that if a person not accused of
an offence is compelled to give evidence, and the evidence
ultimately leads to an accusation against him, that would
not attract article 201(3).

Certain introductory observations may be made.

Section 96 is supplementary to sections 94 and 95. The
general provisions of Chapter 7 are based on the law of
England, where an Englishmen's house is his castle and
cannot be easily invaded even by forces of the State?

1. Decisions as to sections 94 and 96 and article 20(3)--
(i) State v. Prabhu Singh, A.I.R. 1964 Pun. 325-

(ii) Swaranlingam v. Asstt. Inspector of Labour, A-1-R. 1955 Mad. 716, 717, para. 2
(Somasundaram J.) (Section 94 considered).

(iii) In re Somalingam, A-LR. 1955 Mad. 685, para. 3;(Balal<i'isl~.na Aiyex J.) (sections 98
and 165 considered).

(iv) R. C. Gupta v. State, A.I.R. 1959 All. 219.
(V) Madan Lal v. State, A.I.R. 1958 Orissa 1.

(vi) Satyu Kinkar v. Nikhil Chandra, A.I.R. 1951 Col. I01 (F.B.).

(vii) State v. Nagpur Electric Co., A.I.R. 1961 Bom- 2&2.

(viii) Babu Ram v. State, (1961 )2 Cr. L]. 55, 57 (Ali.-).

(ix) Ranchhoddas v. Tcmpton, A.I.R. 1961 Guj. 137.

(X) State V- Shyamlal, A.I.R. 1963 Guj. 178.

(xi) Swamalingam V'- Assistant Labour Inspector, A.l.R. 1956 lvlad. 165 03.3.) Gection
9-': considered). . _

2. Me/icio Fernandcs v. Mohan Nair, A.I.R. 1966 Goa 33, 26 para. 5.
3. See Emp. v. Mohammad Sliuli, A.l.R. 1946 Lab. 456, 455, paragraph 6.
15429 Law/68

310

Any analysis of provisions relating to searchl in the Code
would be as follows :--

Scctions 94 to 98 Section 105 Section 165
(oy both police (by Magistrates) (by police)
and Magistrates)

The practical question now to be considered is,-

(i). What changes are necessary in the language
of section 94, to make section 94 conform to the Supreme
Court's decision in State of Gujarat v. Shyamlal'.

(ii) Would a resort to the last part of section 96(1)
"general search", be suﬁicient for practical purposes.
having regard to the fact, that such searches are not
very usual. and the law relating to them is also some~
what ill-deﬁned?

.(_ iii) Does the Supreme Court's decision necessitate
any change of substance or wording in section 96?

(iv) What is the effect of the Supreme Court's deci-
sion on analogous sections--e.g. sections 51, 98, 99A(1)
letter half, 165 etc.--having regard to the reasoning on
which the decision is based

These points are dealt with below:

Point (i)

As to the ﬁrst point, the question is whether section 94
is to be amended to exclude the accused by speciﬁc words:
thus codifying the interpretation placed by the Supreme
Court.

Points (ii) and (iii)

So far as section 96 is concerned, the last part of sub-
section (1) of that section speaks of "general search", "and
requires consideration. Since search warrants are a species
of process exceedingly arbitrary in characters, and are
resorted to only for very urgent and satisfactory reasons.
the rules of law which pertain to them are of more than
ordinary strictnessf'

The main question that has arisen is, whether a general
warrant under section 96 can be issued during investiga-
tion. It is not necessary that the authority issuing a war-
rant must be acting as a "court"'. But the omission of the

1, M. P. Sharma v. Satish, (1954) S.C.Ri 1077 ; A.l.R. 1954 S.C. 300.

2_ Stage ofﬁujaratv. Shyamlal A.I.R. 1965 SC. 1257, 1259, para. 29-30.

3_ Waluekar v. King-Emperor, A.I.R. 1926 Cal. 966, 969, lefbliand (Case under section

46, Calcutta Police Act, 1866)'
4. Clarke V- Brojendra Kishore Roy, (1912) I.L.R. 39 Cal. 953. 964, C65 (P.C.). For c(,m--
m cm, see (1912) 16 C.W.N. (Journal) 221, 229-

211

word "investigation" from section 56(1) seems to indicate,
that a Magistrate etc, cannot order search under that sec-
tion for the purposes of investigation. He can order search
only if the seizure will serve the purpose of an inquiry etc.'

The true principle seems to be, that the phrase "for the
purpose of" in section 96(1) is to be construed as not, in
itself, implying either the pendency of the specified pro-
ceedings or the immediate or immiment initiation thereof :
What is necessary is. that the Magistrate should be reason-
ably satisﬁed that the search is likely to be a link in the
chain which, in the normal course, will lead to an "inquiry",
if the expected material is found on the search, and that he
should also be satisﬁed that there is reasonable ground for
the expectation.'

The inquiry etc. must, of course. be under the Code, and
not under some other Act."

An investigation that is being made is not the same
thing as an inquiry about to be made. Therefore, an order
under section 96 cannot, it seems be made to further a
police investigation, which may or may not result is an
inquiry.'

A wider view has, however, been taken in a Mysore
case."

Another point on which a difficulty might arise in prac-
tice is, what is meant by a "general search". In England, a
"general warrant?' (to search premises) that is. a Warrant
in which either the person or the property is not specified),
is illegal.' Such "general warrants" have ﬁgured in cases
well-known in the English Constitutional law.''--9

(In England, a general warrant meant a warrant issued
by the Secretary of State for the arrest of such persons as
were, for instance, the authors of a seditious libel. No per-
sons were named in such a warrant, and such a warrant
left it to the person entrusted with the warrant to decide
who it was that should be arrested. Such warrants were
held to be illegal at common law."

1. Hoshide v. Emperor, A.I.R. l94O Cal. 97, 105 (Khundkar and Sen ]J.).

2. Cf. Jagannath Das C.]. in Kalinga Tubes Ltd. v. D. Sun', A.I.R. 1953 011553 153,
155, paragraph 10-

3. In re Mahomed Taliir, A.I.R. 1934 Born. 104-

4. Cf. the observations of Ashutosh Chaudhary J. in Jagarmath v. Emperor, I.L.R.
47 Cal. 597; A.l.R. 1920 Cal. 352, 353.

5. Kaverappa v. Sankarmayya, A.l.R. 1965 Mysore 214, paras. 32 to 42.

6. For a review of case-law, see Melliceo Fernandez v. Mohdn Nair, A.l.R. I966 Goa,
23, 26, para. 5 (November 1966).

7. See Hood Phillips, Constitutional Law, (1957), pages 509, 510; Willces v. Wood,
1763) 9 State Trials H93; Phillips, Leading cases (1957), page 195.

8. See also E. C.S. \V:ide, "Police Search", 1934, 50 L.Q.R. 354-367.

9. Eatick v. Carrington, (1765) 19 State Trials 1029; Phillips, Leading Cases, ([957),
page 196.

I0. ]owitt, Dictionary of English Law, (1959), Vol. 1, page 862.

212

What section 96 refers to, however, is a warrant wherein
a particular document or thing is not speciﬁed.

In practice, it is diﬁicult to draw the line and to come
to a clear conclusion as to whether warrants issued in a
particular case are to be considered as warrants for a parti-
cular search or for a general search.'

Another point which might arise is relating to the form
of the warrant under section 96(1), last para. The form
given in the Code of the Criminal Procedure" provides, that
the warrant must "specify the things clearly". Forms in the
Criminal Procedure Code are, however, to be used with
variations wherever necssary." The Form will, therefore,
have to be modiﬁed when a general search is contemplated.

In a Calcutta case,' the warrant was in this form:----

"To (1) Assistant Commissioner of Police Detec-
tive Department.

Whereas (2) information has been received before
me of the (3) commission of the offence of (4) Sea
Customs Act and conspiracy to cheat Government and
it has been made to appear to me that the production
of (5) documents, account books and other papers for
the year 1936-37, 1937-38, 1938-39 is essential to the
enquiry (6) now being made into the said (7) offence.
This is to authorise and require you to search
for the said (8) documents etc. in the (9) ﬁrm of Merrs.
Toyo Menka Maisha Ltd., 4. Clive Ghat Street, and if
found to produce the same forthwith before this Court,
returning this warrant with an endorsement certifying
what you have done under it immediately upon its
execution. Given under my hand the seal of the Court.
this 4th day of April, 1939.

Sd/- (R. GUPTA),
Chief Presidency Magistrate,
Calcutta.

Calcutta, 4th April, 1939."

This was regarded as a "general warrant".

It may be noted, that so far as section 165 is concerned,
that section does not authorise a general search. A
"general" search means a search not in respect of speciﬁc
documents or things which the ofﬁcer considered were
necessary or desirable for the purpose of the investigation
in hand, but a roving enquiry. for the purpose of discover-
ing' documents or things which might involve persons in

criminal liability.

1. Cf. the diﬁculty felt by Jagannathdas C. ]. in Kalinga Tubes Ltd. v. D. Sun' ALR-
l953 Orissa 153, 155, paragraph b-

2, sc1,edu1e V, form No.' VIII, Code of Criminal Procedure.

3. See section 555.

4 . Hoshide v. Emp., A.I.R. 1940 Cal. 97, 99, 102, right-hand, 104, left-hand.

5, pares}, Chandra V. Jogendra, A.I.R. 1927 Cal. 93. 95 (Cuming and Page IL).

Z13

(iv) Sections 51, 98, 99A(l) and 165 etc. do not seem
to need any change with respect to the point under consi-
deration.

APPENDIX 8

Note on section 109(a)

Section 109(a) of the Code of Criminal Procedure runs
as follows :-

"109. Whenever a Presidency Magistrate, Sub-
Security for good 't'e-- divisional Magistrate or Magistrate of

haviour from vagrants - - - __
and suspected persons. the ﬁrst class receives information

(a) that any person is taking precautions to
conceal his presence within the local limits of such
Magistrate's jurisdiction, and that there is reason
to believe that such person is taking such precau-
tions with a view to committing any offence, or

such Magistrate may, in manner, hereinafter pro-
vided, require such person to show cause why he
should not be ordered to execute a bond, with
sureties. for his good behaviour for such period.
not exceeding one year, as the Magistrate thinks
fit to ﬁx."

Now, the one point on which there is a conﬂict of
decisions is, whether the words "taking precautions to
conceal his presence within the local limits of such
Magistrate's jurisdiction" mean--

(a) that what is sought to be concealed is "presence
within the local limits", or whether they mean--

(b) that what is sought to be concealed is "pre-
sence" (simpliciter).

If (b) is to be codiﬁed, the sentence should read,--
"any person within the local limits of such Ma_q'i.9trate's
jurisdiction is concealing his presence and ....... .."

If (a) is to be codiﬁed, the sentence should read, "any
person is taking precautions to conceal the fact of his pre-
sence within .......... .."

Difference between (a) and »(b) above may be illus-
trated. The facts in a Calcutta case' were these :-

Two men were found not very far from their home in
a place outside a village, and there was evidence to show
that they were bent upon committing burglary at night.
One man was found in possession of a "sindh-kati" and a
pair of tin-cutters, and the other of a bunch of keys; and

l. Gagan Chandra v. Emp., I.L.R. 56 Cal. 949; A-I.R. 1929 Cal. 775; 34 C.W.N'. 194
Rankin C. ]. and Patterson J.). .

214

there was little doubt that these people were outside the
village in which they lived for the purpose of committing
burglary. They were seen to be approaching a certain
house, and. at the barking of a dog they lay quiet; and
sometime afterwards they attempted to approach again. In
these circumstances. they were arrested. and they were
charged as being people who were "taking precautions to
conceal their presence within the local limits of the Magis-
trate's jurisdiction" and that there was reason to believe
that they were taking such precautions with a View to
commit an offence. Itappeared, that they were trying to
conceal themselves from persons in the house and from
anybody who might come to pass that way, and there was
no doubt that they were taking such precautions with a
view to committing an offence. They were bound down
under section, 109.

The High Court set aside the order. The scope of sec-
tion 109(a) was thus explained'--"The idea is that someone
may be taking precaution to conceal himself within the
local limits of the Magistrate's jurisdiction not to conceal
himself as one who hides from a policeman but to conceal
the fact of his infesting the Magistrate's jurisdiction. and
in that class of case if there is reason to believe that this is
a precaution taken with a view to commit an oifence, the
Magistrate can require him to give security ................... ..
Authority on this point has been cited to us in the cases of
Reshu v. Emp. :3 Piru V. Emp." and Emp_ v. Bhairone.' The
exposition of the law given in the latter case is the correct
exposition of the meaning of clause 1. It is quite true that
clause 1. section 109, is not likely to come into operation
every day. That is no reason why it should be applied to
fill up any gap that there may be in the criminal law,
or in a case in which it does not apply. The learned Judges
of the Allahabad High Court say: "In our View it is an
entire mistake to read that clause as applying to any person
who takes steps to conceal himself, in the sense of con-
cealing his presence in the way in which a criminal con-
ceals his presence when he goes in the dark or by a
deserted road. or by some other secret means to commit a
crime in his own neighbourhood."

"I agree with that proposition and that in suﬂicient
to decide this case."

With this case, we may contrast the facts in an Allah-
abad case.' The police received information that a number
of persons were hiding themselves on a dark night at about

l. Qagavi C}u'mCl1'a \'. E77If?~, I.l..R. 56 Cal. 949; 34 C.\W.N. 194;1-\.l.R. 1929 Cal. 775.
776 (Rankin C'. V). and Patterson J.).
2- Resin: \'. Emp.. (I913) 22 C.\X'.N. 1963; 4] l.C. 649.
3. Pi1"ll\'. Emp.. A.l-R-1925 Cal. 616.
4. Emp. V.Bl1t1l7'O1l. LLR. 49 All. 240: A-l-R- I927 All 50 (F-Bl

5- Emp. V. Wmcliai. l.I.-R. 50 All. 909; A.I.R. 1929 All. 33, 34. 36 (F.B.) (majority
judgment) (BOY: and l..l\-i. Bmicrjec ]_l. contra) (Over-ruling Emp. V. Bhairon, l.I..R. 49 All.
240 -

215

midnight, in a mango grove outside the abadi of a village
with a view to committing some offence. When the police
went to the grove, they found four persons sitting there,
who, on being challenged, tried to run away. They were
chased and two of them, (the accused), were captured. They
had house-breaking instruments (jemmies) with them.
When caught. they ﬁrst gave wrong names and addresses,
and then later on disclosed their real identities. They were
residents of the same sub--diVision_ They were called upon
to show cause under section 109, Criminal Procedure Code.
The Magistrate came to the conclusion that the case fell
under section 109. sub-clause (a). and demanded security.
The Sessions Judge held that that sub-section was inappli-
cable. The Government ﬁled a revision from that order.

The High Court accepted the revision. The conclusion
of the majority, as explained by Sulaiman Ag. C.J.. was'------
"I think that if a man is taking precautions anywhere in
order to conceal his presence, and that concealing is to be
effected within the jurisdiction of a Magistrate who receives
Ihe information, such Magistrate has power to demand secu-
rity even though the residence of the person informed
against within the jurisdiction is well-known."

The observation of Dawson Miller =C.J. in a Patna case"
("there must be a desire to hide the fact that the accused
is present within the local limits of the Magistrates juris-
diction") support the Calcutta view. The judgment of
Muhammad Noor J. in later Patna case" agree with the
Allahabad view.

According to the Nagpur view,' concealment at a parti-
cular spot is sufficient even if residence within the local
limits well-known. This is the Oudh view also."

The conflict of decisions requires to be resolved. On the
existing language. the Calcutta view is plausible." But it
would narrow down the practical utility of the section.

Similar amendment in section 55 would be desirable.'
It was stated by Knox .I..' "there is little doubt that sec-
tion 55 was intended .... ..for the suppression of habitual bad
Characters whom an officer in charge of a police station
suddenly finds within his circle or about whom he has good
cause to fear that they will commit serious harm before
there is time to apply to the nearest Magistrate empowered
to deal with the case under section 112.'

l. Emp. v. Phunchai, A.I,.R. 50 All. 909; A.l.R- 1929 All. 33, 36 (EB); followed Ln-----
Rewl. v. Ram Dayal A.l.R. 1950 All. 134, D8 para. 18 (Seth].)- '

2. Rampirich v. Izmp. l.I..R. o Pm. 177; A.l.R. 1926 Pat. 569. 571. '

3. Emp. v. Bishi Sahara, A-l-R- 1935 Pat. 69, 72 (Reviews cases).

4. 1:: 7c' Qunupaii, A.l.R. I938 Nug- 465 (Gruerl-)«

5. CMmt(1.i \'. Emp. A.l-R. l9-41 Oudh 509. 510. '

6. See the HOCC in (1926-27) 31 CVV. N. H0. approving the earlier Allahabad case 0
lfnip. v. Bliuiron.

7. To be considered under section 55-

8. Daulat Singh. (l89l)l.L.R. 14 All. -15, 41*.

210

APPENDIX 9

Note on section 144(3) and the expressions "place" and
"frequenting".

. The position as to the meaning of certain expressions
in section 144(3) is, to some extent, unsatisfactory. While
some of the decisions can be explained as based on the
requirement of deﬁniteness,'-3 yet there are two points on
which there is uncertainty, as follows :-- -

(i) the ﬁrst is, as to the exact meaning of the ex-
pression "particular place". The earlier Bombay deci-
sions"-'-5 place a limited interpretation on this expres-
sion. and seem to rule out a wide area, such as a parti-
cular municipality."

In other Bombay case," it was pointed out, that the
District Magistrate, when formulating his order under sec-
tion 144. must show two things quite plainly, ﬁrst of all,
the thing which is prohibited. and secondly, the persons
who are prohibited.

In a later Bombav case.' the case-law was discussed, and
it was emphasised that the expression "particular place"
implies that the place to which the restriction applies
should be suiliciently particularised. Divatia J. in that case
stated :-- -

"It has not so much to do with the area of the
place as with its description."

In a still later Bombay case,' an order prohibiting certain
acts in the public or private streets in a particular city was
regarded as sufficiently deﬁnite.

These later Bombay cases, however, are not totally
reconcilable with the earlier ones.

(ii) The second question under section 144(3) is, whe-
ther persons residing in an area can be said to "frequent
or visit" it. The case-law on the subject was dealt in a
full Bench decision of the Allahabad High Court)". which
very clearly held that the act of "frequenting" includes the
act of residing.

Golan: Mohamad, (1897) 2 C.W.N. 422.
In re Qamar-ud-din. A.l.R. 1935 Lnh. 679, 680 (Currie ].).
Bhagubhai V. Emp., A.1.R. 1914 Bom. 1914 Born. 198(1).
Bcioz v.Emp.,A.1.R. 1931 Born. 325, 326.
Mott' Lal v. Emp., A.l.R. 1931 Born. 513.

6. Emp. v. Qancsh Malvanl<ar, l.L.R. 55, Bom. 322; A.l.R. 1931 Born. 135. 138 (per
Beaumont C-]-)- .

'§- Vascmt B. Khale v. Em[)., 1.L.R. 59 Bom. 27; A.1.R. 1934 Bom. 375, 378 (Reviews
cases .

8. Sorab Bavt1i.wala.v. Emp., A.l.R. 1935 Bom. 33, 34 (Beaumont C.].).

9. Emp. v. Afaq Hussain,1.L.R. 1941 All. 186; A.I.R. 1941 A11. 70, 72 (I-'.B.).

10. See also Abu Husain v. Emp., A.I.R. 1940 Cal. 358, 361 (Edge1eyJ.).

~I\-l>.uaN..o
.....

21?

Nevertheless, some doubt remains on this point, because of the (i) earlier Bombay decision on the subject,' (ii) the Calcutta cases"-" which take a limited view, though they were not followed in later case,' and (iii) a Madras casef APPENDIX 10 Note on section 144(6) Section 144(6) of the Code of Criminal Procedure has been held to be unconstitutional by the Patna High Court. on the ground that it confers a power on the State Govern- ment to deprive a citizen of his right of movement and the right of association indeﬁnitely, and gives no right of representation to the parties affected by the order, thus violating article 19(1) (b), (c) and (d) of the Constitution."

The judgment in the Patna case emphasises several elements as supporting the invalidity of section 144(6), namely,-

(i) indeﬁnite period of time ;

(ii) no right of appeal or revision to higher autho- rity from the order of the State Government;

(iii) no right of antecedent hearing.

The validity of section 144, in general. has been upheld by the Supreme Court in Babu Lal's case.' The Supreme Court's judgment is not referred to in the Patna case.

An analysis of the judgment of the Supreme Court would show. that in upholding the validity of section 144. one of the considerations which weighed with the Court was that the normal maximum duration of the order is two months from the date of its making, and th-e restraints im- posed by the order are thus, intended to be of a temporary nature. The powers are exercisable by responsible Magis- trates, and these Magistrates have to act judicially. More- over, the restraints permissible under the provision are of a temporary nature, and can only be imposed in an emer- gency.

In a recent Kerala case," the vires of the sub-section was not in issue, but, referring to the Patna ease, the Kerala High Court observed, "if that decision implies that an order under sub-section (6) is an independent order unaffected . Bhagubhai v. Emp., A.l.'R. 1914 Born. 198(1) (Shah and Heaton ]j.). . Ashutosh Roy 29 C.W.N. 411 ; A.I.R. 1925 Cal. 625, 626 (D.B.).

. Abdul Majid, 38 C.W.N. 556; A.I.R. 1934 Cal. 393. 396 (D.B.).

. Abu Hussain v. Emp., A.I.R. 1940 Cal. 358 (Edgeley J.).

. In re Shrirama Murthy, A.I.R. 1931 Mad. 242.

Kamala Kant, I.L.R. 41 Pat. 871; A.I.R. 1962 Pat. 292, 295. para. 7;

U\4kbJl\>v---

L]. 263 (Raniaswami C. J. and Choudhatyj.) (Decided on 22nd January, 1962 }(I 962) 2 Cr.

7- Babulal Parate v. State of Maharashtra, (1961) 2 S.C.R- 423; A.l.R. 1961 SC. 884;

(Decided on 12th January, 1961).

8. Varied Poriitchukttlly, v. State, A.l.R. 1967 Ker. 157: (I967) Cr. }.I_.

(July Part of Cr. l_.].).

898, para 3.

218

by any remedy that an aggrieved party may successfully pursue, either under sub-section (4) of section 144 or under section 439 of the Code, we mus', express our dissent". The Kerala High Court held, that an order extended by the State Government under section 144(6) could be rescinded by the Magistrate under section 1441(4). It also observed. that the High Court could revise the order even when its duration had been extended by the State Government.

A provision somewhat similar to section 144(6) con- tained in section 37(3), Bombay Police Act, 1951, has been held to be valid by the Bombay High Court.' Of the arguments advanced before the High Court, the following are of relevance 2--

(1) That there was no limitation regarding the duration for which the order could continue. The High Court pointed out, that the continuation of the order depended upon the authority being satisfied that it was necessary for the preservation of public order.

(2) That the section did not afford any opportu- nity to the person affected to show cause. The High Court held, that the order under section 37 (prohibiting a procession) was an administrative order. Further, there was no allegation against any person, and it was diﬁicult to understand what "representation" could be provided for. Moreover. the question whether there was an emergency or not, and whether the public order was threatened. could not be made the subject of a public debate between the Commissioner of Police and the citizens.

(3) That there was no corrective against the order. The High Court stated, that the Commissioner had to satisfy himself that conditions requiring continuance of the order were present. But he is the person on the spot, and to suggest that there should be a judicial corrective, or some other appellate authority, would stultify the ob- ject of the section.

For the present purpose, the question to be consider- ed is this----Is the High Court competent to go into the propriety of the State Government's order? On the one hand, there is no doubt that under section 144(6). the exten- sion of period can be indeﬁnite."

On the other hand. the High Court's revisional powers are wide.'"""'" But, this speciﬁc question does not seem to have been decided so far.

I. Bapmxzo V. State, A.l.R. 1956 Bom. 300, 301. (para. 4). 302 (]':ua. 7), 302 (para. 8) (Chagla C. J. and Dixit _].).

-\lO\U1-Blah) . Bhure Mal. l.L.R. 45 All. 526, 527 ; A.I.R. 1923 All. 606, 607 (D:nnic'.s].). . Editor.Tribzmev.Emp.,l.L.R. I942 Lah. 510;A.I.R. 1942 Lah.17l (F.B.).

- In 1'eArdeshir, A.l.R.194OBom. 42.

- RaShictAHidin<z\'.]iwundas,A.I.R.1943 Cal. 35, 3.".

. Pm'! Com1m'_<sio1m'.x' v. Jogendra, A.l.R. 1933 Cal. 3-15.

. In Tc Siirtirrxavriurthy, A.I.R. 1931 Mad. 242, 245.

219

It may be noted that, before 1923, section 435(3) barred revision of orders under section 144. The Select Committee' on the 1921 Bill observed, "Clause 114.----lt has been sug- gested from various quarters that revision should be allow- ed in respect of proceedings under sections 143 and 144 and Chapter XII. We do not agree that any change should be made in the law in this respect. Saiyad Raza Ali dis- sents from this conclusion, so far as cases under section 144 are concerned."

The question of revisional jurisdiction in _v:e.<pect of orders under section 144 was, however, debated (after the- Select Committee's Report) in the Legslative Assembly." The question whether only Chartered High Courts could ex- ercise such jurisdiction---and that too under the power of "supe.rintendence"~was discussed. Dr. H. S. Gour moved' an amendment to delete section 435(3), his argument being that if the High Courts had the revisional power--under "superintendence"-----then section 435(3) was "confusing".' The amendment was adopted by 36 votes to 29.' The only speech opposing it was made by Mr, H. Honkinson, who opposed it on the ground that proceedings under section 144 are "really of an executive order". and a general power of revision should not be given.

APPENDIX 11 Note on section 161(2) and the word "truly"

Section 161(2) provides, that the person examined by the Police Oﬂicer shall be bound to answer all questions relating to the case put to him by such ofﬁcer (other than incriminating questions). This subsection. as it stood in 1898, contained the word "truly". In omitting the word "truly", the Select Committee of 1898 made these obser- vation:---

"We have amended this clause by reverting to the law as it stood under the Codes of 1861 and 1872. Under those Codes a person examined by a police oﬂicer was bound to answer all material questions. but was not liable to be prosecuted for giving false evidence in res- pect oi' his answers under section 193 of the I.P.C.5 It seems to us unfair that a man should be liable to be convicted of giving false evidence on the strength or by the aid of a statement supposed to have been given to a police oF!i- cer, but which is not given on oath, which he has not signed and which he has had no opportunity of verify- ing. Such statements may be hurriedly taken down as _ 1- Report oftho Select Committee dated 26th June, 1922, under clauses 26 and 114.

2. Legislative :\sseinl)ly Debates, Vol. Ill, No. 19, dated 18 January, 1923.

3. Lc_L'i'~'lati\'c A.<.<.cinblv Debates. Vol. Ill, No. 32, dated 7th February, 1923.-

. Examples 0f]udicinl opinion on the subject would be found in Shcbalak Singh 7. Kizmorllddii'. }\.l.R. 1923 Put. 435 (F.B.); in t'\-l-R- I931 Cill- 30; 31 ; in l(l882)1.L.R. 8 Cal. 551'. 532 : and in Qtwindu (.11-eri v. Puzumul Chetli A.l.R. 1916 l\4ad. 662.

5. Sec l-.l.R- 7 Cu]. 121 and l(' Cal. 405-

-is 220 rough notes, as the police officer is not trained in taking evidence, and the notes are often faired out by another officer. They bear no resemblance to depositions and ought to have no weight as such attached to them. We are aware that there are inconveniences in abolishing the direct liability for giving false evidence to the police, but the balance of expediency seems to us to be in favour of the old law. The provisions of sections 202 and 203, I.P.C. appear to us to afford a suﬂicient safeguard against false information?"

As to section 161 as it stood in 1872 and 1882. the under- mentioned cases' 3 ' may be seen.

There was a case' of smuggling of gold from the Persian Gulf to Bombay by sea. The accused were prosecuted for offences punishable under section 120-B, Indian Penal Code read with section 167(2) of the Sea Customs Act, 1878 and section 8(1) of the Foreign Exchange Regulation Act, 1947. Some of the accused had made incriminating statements to the Customs Ofﬁcer, having been summoned and inter- rogated by him under section 171A of the Sea Customs Act, 1878. Under section 171A(3), all persons so summon- ed are bound to tell the truth upon any subject respecting which they are examined or make statements. The point involved was. whether the said confessional statements recorded by the Customs Officer were hit by section 24 of the Indian Evidence Act. and, as such, were inadmissible in evidence. It was held, that these statements were not hit by section 24 of the Indian Evidence Act. The question whether these statements fell under section 161(2) Criminal Procedure Code or not, was not in dispute.

The following observations of Tambe J. are. however. relevant:----

"That a person should always tell truth is a moral principle, but it cannot be said to be a legal principle as such. Whenever, the Legislature requires a person to tell truth it has so enacted in various enactments. It is only when it has so enacted and a person fails to tell truth that he comes within the mischief of the provisions of the Indian Penal Code."

When the deletion was made in 1898, the implications of the deletion on punishment for refusal to answer a question put by the police officer were not, it seems, con- sidered. Since the person examined under section 161 is not bound to state the truth, a refusal to answer the ques- tions. it has been held, is not punishable under sections UI-hL«-IF)!-"

. Report: of the Select Committee dated 16-24898- . Kassim Ali, I.l_.R. 7 Cal. l2l (Code of1872).

. E. v. Ismail. LLR. 11Bom. 659. 661 (1882 Code).

. Q. E. v. Sankarlinga, (1900) I.L-R- 23 Mad. 544, 546-

- Ldxman Padma Bhagat and others v. State, A.I.'R. 1965 Born. I95, 208.

221

176, 179 and 187 of the Indian Penal Code.' In fact, the section (as it stands now) restores the law under section 119 of the Code of 1872, whereunder the wording was "shall be bound to answer all questions"; this provision, it was held, did not constitute an express provision of the law LO "state the truth" within the meaning of section 191 of the Indian Penal Code."

A similar view has been taken by the High Court of Rangoon," holding that such refusal is not punishable under section 179 Indian Penal Code.

Now, this leaves a very curious situation. because Suggestion section 161(2) imposes an obligation to answer which is regarding not enforceable by any penal sanction. At present, its only f°§'.'a°"P::§i impact is to confer an absolute privilege.' This lacuna Soﬁe? should be removed. The proper place, however, for a pro- vision on the subject would be the Indian Penal Code, and it might be desirable to make a provision in section 179, Indian Penal Code, by adding after the words "to state the truth" the words "or to answer any quest7'.on."5 Proposals are made from time to time to add the word "truly" in section 161 (2). The matter was considered in connection with the Law Commission's report on Judicial Administration. The Commission did not favour the pro- posal."

In section 175, the word "truly" has not been omitted, S"3g':d"."°"

when section 161 was altered in 1898. The word "truly" reg" mg . . . . . . . ' 175.

should be omitted m section 175' 5 of the Code of Criminal E°§'d'2'.',;c,i.

Procedure. minal Proce-

d .

Another question which has arisen under section 161(2) me is. whether a person giving a false answer under section 161 is guilty of an offence under section 182, Indian Penal Code. The view of most of the High Courts seems to be, that the expression "gives information" in section 182. l.P.C. cannot apply to information which is supplied not voluntarily but in answer to a question.' A contrary View was taken in Patna" and Sind cases." There are also obser- vations in a Bombay case" which throw a doubt on the subject, by taking a wide view of section 182, Indian Penal Code.

g...

. Q. E. v. Sankarlinga, (1900) I.I..R. 23 Mad. 5_44, 545.

. Empress 0. Kassim Khan, 1890 I.L.R. 7 Cal, 121 (E13,).

. Mauzanagyi v. Emp.,I.L.R- 8Rang, 5l1;A.l.R. 1931 Rang 26. - Cf. Sanjivi v. Koneri, A.I.R. 1926 Mad. 521 (for section 179, Indian Penal Code), To be summarised in the Appendix relating to amendment of other laws.

. 14th Report, Vol. 2, page 752.

. To be considered under section 175, Code of Criminal Procedure, 1898.

. Cf. Sarkar on Code of Criminal Procedure, (1966), page 257. .

. U. Hlaing v. R. P. Abigail, A.I.R. 1937 Rangoon 232, 233 (Reviews case-law).

1o. Bodhau v. Emp., I.L.R. 7 Fat. 715 ; A.I.R. 1933 Pat. 555(1). ' ll. A.I.R. 1936 Sind 90.

12. Q. E. v. Ramji, (I886)I.L.R. IO Bom. 124, 125 (earlier order of30]une, 1885, passed without appearance of parties).

\¢®\lO\'_-1|-_¥-9""

Suggestion regarding sections 20 to 203, Ind:

an Penal Code.

222

There is a conflict of authorities on the point as to whether a person giving a false reply under section .161. Criminal Procedure Code is guilty of an offence under section 182, Indian Penal Code or not as pointed out by the Joint Secretary and Legislative Counsel on page 5 of his note. The question as to how far there is need to amend section 182, Indian Penal Code in order to resolve this con- ilict may be considered. The majority view has been, that the expression "gives information" in section 182, cannot apply to information which is supplied not voluntarily but in answer to a question put by a public servant. One of the ways to resolve this conflict may be to insert the word "voluntarily" in between the opening word "whoever" and the second word "gives" occurring in section 182, Indian Penal Code. This will ensure that a person making a state- ment under section 161(2), Cr. P. C. will not be made punishable under section 182. I.P.C. [In case, it is consi- dered desirable that such a person should be made pun- ishable under section 182, I.P.C. for giving false informa- tion, the following words may be inserted after the word information :---

"Whether voluntarily or in reply to questions put to him by any public servant".

Answers under section 161, Code of Criminal Proce- dure, cannot be made the basis of a prosecution under sec-- tion 211, Indian Penal Code. because such answers do not " ' As has been observed, "It would amount to a "charge .

make criminal investigation very diﬂicult if any person liable to criminal pro--

who gave voice to a suspicion were secution?"

There is. of course, one matter on which the anticipa- tions of the 1898 committee have not been realised. That committee assumed that a person making false statement would be guilty under section 203, Indian Penal Code. But it has been held?" that such a person does not volun- teer the information and therefore section 203, Indian Penal Code does not apply. If this View is correct, sections 202, Indian Penal Code, (relating to omission to give informa- tion) would also be inapplicable to an omission to answer a question under section 161(2) of the Code of Criminal Procedure.

In addition to the amendment to section 179, Indian Penal Code which is now recommended.' a clarification of 'the scope of sections 201 to 203, Indian Penal Code is also desirable.' I. Chinna Ramana Gowd v. Emp., (1908), I.I..R. 31 Mad. 506.

2- Kodcmgi v. Emp., A.I.R. 1932 Mad. 24 (]acl<son].).

3. Sarju Sonar, (1910) 11 Cr. L]. 438 (Allahabad)-

4. Emp. v. Nga Po Lwin, A.I.R. 1920 Upper Burma Z0.

5. But see Pattammal, A.I.R. 1940 Mad. 898, 899 (case under section 20] ).

6. See recommendation regarding section 179, Indian Penal Code.

'7. To be considered under sections 201 to 203, Indian Penal Code.

223

The points concerning section 182 and sections 201 to 203, Indian Penal Code, should also be considered when the Indian Penal Code is revised.' APPENDIX 12 Note on section 162, and cross-examination by the prosecu- tion of defence witnesses The question whether the prosecution should be per- mitted to contradict (under section 162) a defence witness with the statement recorded under 161, requires an exa- mination of several aspects" including-

(a) history of the section;

(b) object of the section, and

In the Code of 1872, section 119 ran as follows:-

"119. An officer in charge of a police station, or other police officer making an investigation, may exa- mine orally any person supposed to be acquainted with the facts and circumstances of the case, and may reduce into writing any statement made by the person so examined. Such person shall be bound to answer all questions relating to such case, put to him by such oili- cer other than questions criminating himself.

No statement reduced into writing shall be signed by the person making it, nor shall it be treated as part of the record or used as evidence."

Section 145 of the Code of 1861 read "Any statement so reduced into writing shall not be signed by the person making it, nor shall it be treated as part of the record or used as evidence."

Section 162 of the Code of 1882 had declared that statements of persons made to the police during investiga- tion, if reduced into writing, were not to be used as evidence.

For further history of the section, the under-mentioned sources"' may be seen.

I. To be summarised in recommendation for other Acts.

2. As to existing law, sec---

(i) Bahadur Singh v. Emp., A.I.R. 1925 Lah. 367.

(ii) Sarju Singh v. Mahindra, A.I.R. 1964 Par. 56], 564.

(iii) Sheo Shanker, A.I.R. 1953 All. 652.

(iv) King Emperor v. Vithu, A.I.R. 1924 Born. 510, 511.

3. A.l.R. l941_lourn:il52.

4- EH11)-\UNajibtld(li11,A-I4-R 1933 Pat, 589, 593.

5. Bihariv.En1p.,A.I.R. 1931 Pt. 152, 155 (Fazl Ali].).

224

b"°'e-1'*9";"' as t: fa"

o ave co ies o u t , Code of 1898 resolved this conﬂicll." S C S a emen S 8 Amendment In 1914, a change was introduced in section 162 as 0f section iollows" : --

162, 'Code V ' gfocggxgignal ' "27. After subfsection (1) of section 162 of the said 1899. ' Code,1 the following sub--section shall be inserted. name y :--

_ "(1A) When such statement or any part there- of is used to impeach the creditof a witness under sub-section (1), such statement may also be used to corroborate the evidence of such witness."

The reasons for the proposed amendment of section 162 were thus given' :--

"Clause 27-There has been some conﬂict of autho- rity as regards the bearing of section 157 of the Indian Evidence Act, 1872, on section 162 of the Code, as re- gards the use 'vhich may be made of a statement made by any person to a police officer in the course of an investigation. The amendment oi ovides that when such a statement of any part of it ,. used to impeach the credit of the witness it may also be used to corroborate his evidence. Reference may be made to the decision in Phanindra v. The King-Emperor.' {In Phantindv-as case it was decided' that section 162 (as it then stood) merely prohibited the use of the record of the statement. but not the proof of such statement by oral evidence for corroboration of prosecution witness.] The Lowndes Committee which examined the amend- ment proposed in the 1914 Bill thus dealt with the mattcr":--~ "Clause 27 :---The amendment of section 162 has been discussed at great length by the Committee. It has been the subject of amendment before, and of constant difficulty in the Courts. We. therefore, propose to recast the section, and. we think that a note as to its previous history will be instructive.

A i. Emp. v. Mamiu, (1897) I.L.R. 19 All. 390, 408, 416 (F-B-)-

2. Bikoo Khan, (1339), I.L.R. 16 Cal. 610, 612.

3. I.I..R. 20 Cal. 642.

4- For a summary of the decisions on this point and the suggestions made on the Bill of 1897 see note, "Law as to police papers", 2 C.W.N. (Journal, 158)-

5. Bill No. 3 of1914, Gazette oflndia, 28th March 1914, Part V, page lO4, clause 27.

6. Gazettc of India, March 28, 1914, Part V, Statement of Objects and Reasons, page 12 l .

7. Phanindra v. The King Emperor, I-LR. 36 Cal. 281. .

8. Phanindra v. K. E. (1908) I.L.R. 36 Cal. 281, 285, 286 (history of section traced).

9. Report of the Lowndes Committee. 23rd December, 1916 App. B. (Notes on Clauses) under clause 27.

225

2. Under the briginal Code of 1861 (section 145), a police-officer could examine potential witnesses and reduce their statements to writing but the writing was not to be part of the record or used as evidence. The Code of 1872 maintained the above provisions, merely adding (section 119) that no person when examined by the police should be bound to answer incriminating questions. The only material change made by the Code of 1882 (section 162) was that, instead of the provision that the statement when so reduced to writing should not be used as evidence, it was provided that no state- ment made by a witness if reduced to writing should be used as evidence against the accused, thus making it clear that the provision in question was intended for the beneﬁt of the accused.

"3. The new section did not lay down in terms that the accused might not use the written record of a witness' statement for the purposes of his defence, any- thing that appeared therein to his advantage, and "the Calcutta High Court ruled that he was entitled to do so. The Allahabad High Court, on the other hand, held that the writings in effect formed part of the police- diary, and were therefore privileged from inspection, and this was the position which stood to be dealt with when the Amending Act of 1898 was under considera- tion. There was evidently a good deal to be said on both sides, as will appear from the report of the Select Committee on the Bill which is quoted in extenso below. The Bill as introduced proposed to adopt the Allahabad view, and put statements of witnesses when recorded by the police under section 161 on the same footing as police--diaries, and would only allow them to be used to the same extent as such diaries under section 172, i.e., in effect enacting that the accused should not have access to them at all, unless the police- officer used them for the purpose of refreshing his memory, in which case the accused would be entitled to see them and cross-examine on them "4. The present section 162, which was embodied in the Act of 1898, was the result of a compromise in the Select Committee, whose report was in the following terms:--

"Clause 161.-This clause, as drafted proposed to aﬁirm the decision of the Allahabad High Court, which was in conﬂict with the decision of the Cal- cutta High Court. The Governments of Bengal, the North-Western Provinces, Madras, Bombay and Burma "and most of the autlmrities consulted ap- prove the decision of the Alkihabad High Court, but the question involved (namely, whether the accused is entitled to inspect statements taken down by the police under section 161) is full of diﬁiculty. In the ﬁrst place, it is essential in the interests of public justice, that the sources of police informa- tion should be kept secret. If the namestof inforfners 226 or directives and the nature of their information be disclosed, the detection of crime would be seriously crip eld. In the second place, it is unfair to a witness at his evidence should be discredited on the strength of an alleged statement made to a policeman, which he may have had no opportunity of verifying or correcting. Such statements must necessarily be often taken down hurriedly and may be incorrectly copied out. They are not taken down as depositions, or with regard to the rules of evi- dence, but merely to aid the police in the course of their investigation. But, in the third place, it may be most important for the accused to show that a witness called for the inspection is telling a story substantially different from that which he told when ﬁrst questioned by the police. We have endeavoured to reconcile these conﬂicting interests by reverting to the language of the Codes of 1861 and 1872, and adding a proviso compelling the Court, on the application of the accused, to refer to such statements, and then empowering it in its discretion to allow him to have copies of them.

"We then provide for the mode in which these statements are to be used. It is clear that a witness ought not to have his credit impeached on the strength of a statement alleged to have been made to a policeman, unless and until it is shown that he had made that statement."

"5. The result was not altogether a happy one. It will be noticed that the section deals mainly with the writing and enacts that it shall not be used as evidence, with a proviso that the Court may in its discretion direct the accused to be furnished with a copyeof it presumably only in order that the accused may know that there is something in the writing which may help his defence--and goes on to say that the statement (i.e.. what the witness 'said to the police-officer) may be used in the ordinary course to impeach the credit of the witness, obviously implying that for this purpose it must be duly proved. ' "6. It seems clear that all that the amendment of 1898 intended to effect was to make it clear that the accused had no right to call for or see the record of any statements taken down by the police under section 161. unless the Court thought that in the interests of justice he should be allowed to do so. It did not purport to deal with, and has left untouched, the further question whether -or not a statement made by a witness under section 161, as apart from the written record of the statement, might be used by the prosecution for the purpose of corroborating one of their witnesses under section 157 of the Evidence Act, and this is at all events one -of the principal diﬂiculties with which we have to deal now. ' 227 ''7. The re-draft of the section which we propose will make it clear that the statements taken down under section 161 (and not merely the written records of such statements) are not to be used in any way or for any purposes except as all-owed by the roviso. Having regard to the fact that the making of suc state- ments is compulsory under section 161, and to the way in which, and the circumstances under which, they are usually recorded, we do not think that they are of any corroborative value where the witness merely re ats the same statement in Court, and that ought not t ere- fore to be allowed to be used for the purpose of cor- ioboratiou under section 157 of the Evidence Act. If the really material fact to the prosecution is that a state- ment was made to the police on a particular date or at a particular place, this fact will of course still be proveable in the ordinary course, and it will be open to the Courts or to a jury to make any proper deduc- tion from this fact and th action which was taken on it. The amendment will aaso, we think, make it clear that if the accused wishes. to relyron anything in the previous statements of a witness to the police, of which he has been allowed by the Court. to have a copy, he will have to prove it in the ordinary way. If the wit- ness admits this in cross-examination, it will of course be sufficient; if he denies the contradiction. and the police officer who took it down is called by the prose- cution the previous statement of the witness on the point may be proved by him; if he, is not called by the "prosecution, the Court would no doubt itself in most cases call him-, or if the accused is calling evidence in support of his defence, it may be worth his while to call the police-oﬁicer himself. But it is clear that unless the previous contradictory statement is proved in some way in accordance with law, it ought not to depriciate the witness statement on oath. will be observed that under our amendment, if an part ofthe previous state- ment of the witness is used' for the. purposes of cross- examination by the accused any other part of it may be used by the prosecution within the proper limits of re-examination. This is, we think, the only way in which the previous statement ought to be allowed to be used by the prosecution."

_ '1'he Select Committee on the 1923 Bill expressed this view 2--

"Clause 33 :--We discussed the provisions of the proposed new section 162 at length and considered in detail the opinions received in connection with it. We recognise the force of some of the criticism directed against the section, but We do not think that power should be given to contradict by means of police diaries

1. Report of the Select Committee dated 26th June, 1922. Members of the Committee were T.B. Sapru, W.H. Vincent, M.B. Dadabhoy,'_S.Raza Ali, J. Chaudhuty, H. Mancrieft Smith. B. C. Mitter and Zulﬁquar Ali KhIm- f 17----29 Law/68 228 a prosecution witnesswho has turned hostile, and still less should power be given in respect of a defence wit- ness. We have, therefore, left the clause unaltered."

The amendments made in 1955 may be brieﬂy dealt with.

The Bill of 1954 proposed deletion of section 162. The Joint Committee, however, observed :--' "16. Clause 22 (Original clause 21)-- This clause provided that section 162 of the principal Act be dele- ted. The Committee feel that the deletion of this section will do away with the protection enjoyed at present by the accused against the prejudicial use of untruthful statement of witnesses recorded by the police officers. The effect of such an omission would be that the state- ments recorded by the police under sub-section (3) of section 161 may be used by the prosecution both for the purpose of corroboration as well as of contradiction.

_ The Committee consider that the statements recorded by the police should be used for contradiction only and this right should be available both to the accused ' and the prosecution. As the prosecution is not entitled to cross-examine its own witnesses with-out the permis- sion of the Court, it has been speciﬁcally provided that the 'statements recorded by the police under sub-section (3) of section 161 can be used by the prosecution for the ,purpose of contradiction, with the permission of the Court.

"The second proviso to sub-section (1) of section 162 has been inserted in section 173 with suitable modi- ﬁcations. The Committee have, therefore, omitted it from section 162.

"The restoration of section 162 with the proviso that statements can never be used for the purpose of corroboration but for the purpose of contradiction, ensures that the papers will be available both to the defence and to the prosecution. Normally, it is only the defence which is entitled to cross-examine. The prosecu- tion can never cross-examine its witnesses without the permission of the court and the permission is never given unless the witness is held to be hostile by the Court. Therefore, if the Witness turns hostile the court may permit him to be confronted with the statements that he made before the Court."

Hence the section was not deleted but amended as it now stands.

1- Report of the Joint Committee September, i954 page (vii), para. 16.

229

The suggested change may' go against the whole policy >f section 162. In a Bombay case Beman J. made these ibservations : --' "The section plainly constitutes an exception to the ordinary rule of evidence. The proviso again endrafts an exception upon the exception. And in giving effect to the section and the proviso together it is necessary to keep carefully in sight what the Legislature really means. About this the language and the policy of the section, combined, leave, I think, no reasonable doubt. Before the last amendment, statements made by wit- nesses to the Police, and recorded by the Police might not be used as evidence against the accused. But there was nothing to prevent them being used in favour of the accused. They were often so valuable for that pur- pose, that in almost every case. the accused sought to know what they contained, with the object of using them if suitable, to his own advantage. In order to curtail to some extent that liberty, the section was amended in its present form. The effect of the amend- ment is to restrict the privilege of the accused. He can now only obtain access to written statements made by prosecution witnesses to the police, at the discretion of the Court. It is no longer a matter of right.

"The proviso is clearly limited to the purpose of this single concession, in derogation of the universal prohibition contained in the body of the section, to the accused. This is so plain on the face of the section and proviso, that I should have thought there could have been no doubt about it. The proviso deals with one case and one case only, the case of witnesses "called for the prosecution" whose statements have been taken down "in writing as aforesaid". And the only concession it makes to the accused is to allow him, upon his request, and subject to the Court's discretion, to have access to a "copy thereof", namely, of the recorded statement, 'and thereupon to use it for one purpose and one purpose only, namely, to break down the evidence of the prose- cution witness already standing against him. On the face of it the proviso does not cover the case of a wit- ness for the defence, whose statement may have been recorded by a policeman, nor allows the prosecution to impeach the credit of such a witness by examining him upon any written statements he may have made to the' police. A fortiori the proviso could never have been intended (and I think that its terms are plain enough to the contrary) to allow the prosecution to impeach the credit of its own witnesses for itsown purposes,_ and; against the wish of the accused, by reference to police testimony. That view presents, on the face of it, these two startling diﬁiculties. (I) That the Legislature has in this important matter given the prosecution a marked advantage over the accused. And this is opposed to "the

1. Emp. v. Narayan Raghunath Patki, (1907), I.L.R. 32 Born. no, 142, 143. 144.1 V 230 ﬁrst principles of our criminal jurisprudence. (2) That in effect it works out to this, that the prosecution would be empowered indirectly and under the pretence of shaking the credit of its own witnesses, to substitute in the record, as evidence against the accused person, not what those witnesses have said on oath at the trial but what they have said or may have said in circums- tances altogether unknown and uncontrolled, to its own police oﬂicers. That is in fact what has happened in this case, and underlies, as I understand, the Advo- cate Genera1's certiﬁed objection to Shankar's state- ment to Narayamao. I think it too plain to need fur- ther argument that if the prosecution is precluded from using these statements to impeach the credit of witnesses for the defence, it is for much better reasons precluded from using them to impeach the credit of its own witnesses. Nor indeed is that in any case the real object, though it may be plausibly advanced as the nominal object which the prosecution has in view, when it seeks this indulgence. For ea: hypothesi. when a Crown witness has saidnothing against the accused "no question in impeaching his credit properly arises. The only person interested in shaking the credit of a witness is the person against whom he has said some- thing. What has really happened is this. A witness, who has said things to the police, which the prosecu- tion strongly relies on, refuses at the trial to repeat those things. The prosecution, pretending to wish to impeach his credit, then tries to bring on the record through the police oflicer, all that matter upon which it intended to rely, not of course to contradict; the witness, out as substantive evidence. It wants in other words to substitute for what the witness has said at the trial, what it believes he ought to have said. Apart then from the use to which Exhibit N was put on this occasion I go further. I think, than any of my learned colleagues and say, that it ought not to have been ad- mitted at all, or its contents to have been allowed to be used by the éirosecution for the nominal purpose of contradicting hankar."

Observations of Knox J. in Nasir-u.cL-di'n's case should also be borne in mind. He observed,' such statelnentsgare recorded by police oﬂicers in the most haphazard manner. Officers conducting an investigation not unnaturally record what seems in their opinion material to the case at that stage and omit many matters equally material, and, it may be, of supreme importance as the case develops. Besides that, in most cases they are not experts of what is -and what is not evidence. The statements are recorded often hurriedly in the midst" of a crowd and confusion, subject to frequent interruption and suggestions from bystandards. Over and above all, they cannot be in any sense termed depositions, for they are not prepared in the way of a deposition, they are not read over to, nor are they

1. Q. E. v. Nusir-ad-din, (1894-)1-LR. 16 All. 207. 208- 231 signed by, the deponents. There is no guarantee that they do not contain much more or much less than what the witness has said. The law has safeguarded the use of them, and it never can have been the intention of_ the Legisla- ture that, as in this case, copies of them should have been without question and as a matter of course made over to' the accused or their counsel.

"It is obvious that such statements, if used at all, should only be used after proper proof of them and of the circumstances under which they were recorded, and under the direct sanction of the presiding Judge."

The observations of Knox J. were cited again in a Madras case?

The object of the section was thus explained in a:

Supreme Court case-3 "(16) The object of the main section as the history of its legislation shows and the decided cases indicate is to impose a general bar against the use of statement made before the police and the enacting clause in clear terms says that no statement made by any person to a police officer or any record thereof, or any part of such statement or record shall be used for any pur-

pose. The Words are clear and unambiguous. The pro- viso engrafts an exception on the general prohibition and that is, the said statement in writing may be used to contradict a witness in the manner provided by section 145 of the Evidence Act. We have already n-oticed from the history of the section that the en- acting clause was mainly intended to protect the interests of accused.' At the stage of investigation, statements of witnesses are taken in a haphazard manner. The police-oﬁcer in the course of his investi- gation ﬁnds himself more often in the midst of an excited crowd and babel voices raised all round. In such an atmosphere, unlike that in a Court of Law, he is expected to bear the statements of witnesses and record separately the statement of each one of them. Generally he records only a summary of the state- ments which appear to him to be relevant. These state- ments are, therefore, only a summary of what a wit- ness says and very often perfunctory. Indeed, in View of the aforesaid facts, there is a statutory prohibition against police oﬂicers taking the signature of the per- son making the statement, indicating thereby that the statement is not intended to be binding on the witness or an assurance by him that it is a correct statement.

1- See also Isab, I.I..R. 28 Cal. 348-

2. In re Cju-ruva Varman, A.I.R. 1942 Mad. 385, 386 (Mockett and Horwill]].).

3. Tahsildar, Singh V. State of U.P., (1959) Supp. 2 875; AZLR. 1959 S.C.']Ol2, 1020, 1021, para. ll, pages 1022, 1023, paras. 16, 17 (object of sectwn) and pages 1018, 1019 (history).

4. Emphasis added-

232

"(17) At the same time, it being the earliest re-

cord of statement of a witness soon after the incident, .any contradiction found therein would be of immense help to an accused to discredit the testimony of a witness making the statement. The section was, there- fore, conceived in an attempt to ﬁnd a happy 'via media', namely while it enacts an absolute bar against the statement made before a police--ofﬁcer being used for any purpose whatsoever, it enables the accused to rely upon it for a "limited purpose of contradicting a witness in the manner provided by section 145 of the Evidence Act by drawing his attention to parts of the statement intended for contradiction. It cannot be used for corroboration of a prosecution or a defence witness or even a Court witness. Nor can it be used for contradicting a defence or a Court witness. Short- Lly stated, there is a general bar against its use subject to a limited exception in the interest of the accused, .and the exception cannot obviously be used to cross the bar."

Section 162 is designed to protect the accused against over zealous police oﬂicer and untruthful witnesses. It also recognises the danger of placing implicit conﬁdence in a record made more or less imperfectly by a olice officer who may not necessarily be competent to ma e an exactly correct record with due regard to the provisions of the law of evidence.' It has been pointed out by Beaumont C.J.,' that sec- tion 162 was intended to prevent user of statements.made by the accused to the police, and questions designed to show, by process of elimination, that the matters subse- quently mentioned by the accused were omitted from such statement, are within the mischief aimed at by the section.

The object of the section is (i) to protect accused persons from being prejudiced by a statement made to the police officer who, by reason of the fact that an in- vestigation is known to be on foot at the time when the statement is made, may be in a position to inﬂuence the maker, and (ii) to protect the accused persons from pre- judice at the hands of those who, knowing that an investi- gation has started already, are prepared to tell untruths.3 Section 162 renders the statements inadmissible for the obvious reason, that 'a suspicion about their voluntari- ness would attach to them.'

7.. Yusufali v. State, A.l.R. l965jBom. 3, 5, para. 19 (Dealing with tape recorded state-

ments) (Gokhale 1-)-

2. Issuf Mahomed v. Emp., A.l.R. 1931 Bom. 311, 312.

3. Emp. v. Aftab Mohd. Khan, A.l.'R. 1940 All. 291, 299 (Collister and Braund ]].).

4. Rafa Ram v. State ofBihar, (1964) 2 S.C.R. 752, AJR. 1964 SC. 828, 834.

233

The section is designed to keep out evidence which, it is suggested, is not of a free and fair nature but may have been induced by some form of police duress.' The very_ object of section 161 is to amend, for the purpose of criminal trials, certain sections in the Evidence Act which state what evidence is admissible and what is inadmissible?

The whole object of section 162, Cr. P. C. and of sec- tion 25, Evidence Act, is to deprive the court of certain materials.

The section plainly constitutes an exception to the ordinary rules of evidence," so that corroboration of a witness by his statement recorded under section 162 is not permissible.' t may also be noted, that section 173(4) as amended in 1955 does not give, to the accused, right to a copy of the statement of a person whom the prosecution does not pro- pose to examine. Therefore, if the prosecution is given the right to contradict a defence witness, the defence would be taken by surprise, in cases where the copy was not given.

A reference may also be made to the speech of Sir Malcolm Hailey in the debate on the 1923 Bill', where he pointed out,' that the statements under sections 161, 162 Cr. P. C. are recorded mainly for the assistance of superior oﬂicers in deciding on the necessity of and for guiding prosecution. It is true, (he stated) that the law, by a somewhat exceptional provision, allows the statement to be used for challenging the credibility of certain wit- nesses, but the primary object of recording a statement is not that they may be used as a species of evidence. They are primarily recorded for police purposes.

It will also have to be considered, that the defence cannot use these statement for corroborration. Would it be fair to permit the prosecution to contradict the defence witnesses when the defence cannot use them for corro- boration ?

The rule in section 162 is the result of long experience. That which has been eliminated has been considered to be of such doubtful value as, on the whole, to be more like- ly to disguise truth than to discover it. It is, therefore, . Delbar Mandal v. Emp., 37 Cr. L.]. 1117, 1113; 40 C.W.N. 733 (Cal.).

. Cf. Rankin]. in Sajjad Mirza v. Emp., A.I.R. 1927 Cal. 372.

. Emp. v. Narayan, (1907), l.L.R. 32 Born. 111, 142 to 144 (F.B.) (Beaman J.). . On this point, see Emp. v. Najibuddin, A.l.R. 1933 Fat. 589.

5. Rakha v. Crown, A.I.R. 1925 Lah. 399, 400 (Section 157 of the Evidence Act, is controlled by s. 162).

6, Legislative Assembly Debates, Vol. III, No. 24 (26th January, l923).

-hkxirvru 234 discarded for all purposes and in all circumstances. To introduce any further exception would be to destroy the whole Ob]€Ct of the general rule.

Before the amendment of 1955, Beaman J. dealing, with the question whether the proviso allowed the prose- cution to impeach its own witnesses, observed,' that it would work out to this--"that the prosecution would be empowered indirectly and under the presence of shaking the credit of its own witnesses, to substitute in the record, as evidence against the accused person, not what those wit- nesses have said on oath at the trial but what the have said or may have said in circumstances altogether un nown and uncontrolled, to its own police officers."

APPENDIX 13 Note on section 163(2) Section 163 encourages attempts at confessions, while section 164 discourages them. This discrepancy was point- ed out in a Madras case."-3 Section 163 says, that cautions are not necessary, but section 164 (in effect) says that they are necessary. It is better to provide, that section 163(2). is subject to section 164(3).

It may be noted, that before the amendment of section 164 in 19 3, this inconsistency was not there, as all that a Magistrate had then to consider was, whether the con- fession was voluntary. But, under the section as amended in 1923, the Magistrate has to administer certain wamings also. If the caution (under section 164) is successful and the accused is thereby prevented from making a c¢nfes~ sion, then the question would arise----"has not the M§agis~ trate done something illegal ?"' APPENDIX 14 Note on section 164(3) When a confession is produced in evidence, there are three questions which can possibly arise,' namely :-

(i) whether it was made by the accused;

(ii) whether it was free and voluntary;

(iii) whether it was genuine or true.

If all these three conditions are satisﬁed, there would"

remain nothing further to be done by the prosecution to- secure conviction.

1. Emp. v. Narayan Raghunath Patki, (1907) I.L.R. 32 Born. 111, 143 (F-B-)~

2. In re Vella Monji, I.L.R. 55 Mad. 711; A.I.R. 1932 Mad. 431, 432.

3. See also Mohamed Bux v. Emp., A.I.R. 1934 Sind 103, 105.

4. Cf. In re Vella Monji, I.L.R. 55 Mad. 711 ; A.I.R. 1932 Mad. 431, 432.

5: Birey Singh v. State, A.I.R. 1953 All. 785, 789, para. 6, (Desai ].).

235

The main object of section 164(3) is to satisfy the court,' that the confession is voluntary.

_ Various High Courts have, from time to time, issued circulars on the subject."'5 Valuable suggestions have also been made in reported cases, as to the procedure to be followed.' 7 9 ° '° "

The undermentioned cases also discuss the mat- ter_ 12 13 14 15 16 17 The provision in'section 164(3) is not intended to be a mere formality. The importance of such a warning has been regarded as essential for a long time."

The law as it stood in 1898 is dealt with in the under- mentioned case."

Appendix 15 Note on sections 167 and 344 There is a controversy as to whether a Magistrate has jurisdiction to remand the accused to a judicial custody under section 344 before submission of the report by the police under section 173.

The case-law on the subject is discussed in a recent decision" where the Madhya Pradesh decision on the sub- ject" was followed, and it was held that while ordinarily, the investigation should be completed in 15 days, the 1 )1. See In re G. Subbaramayya, I.A.R. 1937 Mad. 321, 324. (traces hisotry of the Madras ru e .

2. Sarauan Singh v. State of Punjab, A.l.R. 1957 S.C. 637, 643, which approves circulars issued by the High Courts in Bombay, Madras and U.P.

3. Kuppathan v. King Emperor, A.I.R. 1927 Mac]. 974.

. Rangappa v. State, A.I.R. 1954 Born. 285, 288 (Gajendragndkar and Chainani II.)- . Ram Chandra v. State of U.P., A.I.R. 1957 S.C. 381, 386.

. Note by Dalip Singhj. in Jahangiri Lal v. Emp., A.I.R. Lah. 230, 244.

. Discussion by B. K. Ray]. (as he then was) in Gurubaru Praia v. The King, AIR. 1949 Orissa 67, 71, 72.

8. Discussion by B. K. Ray, C.]. in Bala Majhi A.I.R. 1951 Orissa 168, 173, para. 14-

9. Patey Singh v. Emp., A.I.R. All. 1931 609, 615 (Boys and Sen II.)-

10. Emp. V. Nazir, A.I.R. 1933 Al]. 31, 37.

ll. Mohamed Ali v. Emp., I.L.R. 56 All. 302; A.I.R. 1934 All. 81, 84 (Sulaiman C.].).

12. In re Shivabassappa, A.I.R. 1959 Mys. 47, 49, para. 4.

13. R. v. Moti, A.I.R. 1953 A1]. 792, 794. 795 para. 7 (Malik C. J.).

14- Paramhansa v. State, A.I.R. 1964 Orissa 144-

15. In re R. Reddy, A.I.R. 1953 Mad. 74.

16. In re Sainambu, A.I.R. 1953 Mad. 564-

17. Emp. v. Panchkari Dutt, I.L.R. 52 Cal. 67 ; A.I.R. 1925 Cal. 587 (Asutosh MokerjiJ.).

17. See Emp. v. Jamuna Singh, A.I.R. 1947 Pat. 305, 322-325, 328, paras. 33 to 39, 47 (discu ses English law also).

18. Emp. v. Radhe Halwai, 7 C.W.N. 220.

19. State of Kerala v. Madhavan, A.I.R. 1964 Kerala 232.

20. Shrilal v. Aggarwal A.I.R. 1960 M.P. 135.

-lO\U'IA 236 Legislature could not have contemplated that the person must be released after 15 days if, as in the case of grave crimes, the investigation takes more than 15 days and it becomes necessary to continue the investigation. The E_xplanation to section 344(2) was cited in support of this View as making it clear that section 344 also relates to a stage where the offence is still under investigation.

It may_ also be noted, that the Calcutta High Court has taken conﬂicting views in the matter.' ' A clariﬁcation on the subject is, therefore, all the more necessary.

The Explanation to section 344(2) was not contained in the Code of 1861. It was inserted by section 194 of the 1872 Code, for the ﬁrst time.

Accused not Sections 124 and 194 of the 1872 Code (corresponding :3 lfyfggﬁgé to present sections 167 and 344) were as folIows:--

f';':':t _f;h';" '.'124. No Police olﬁcer shall detain an accused per- hours' wi';h_ son in custody for a longer period than, under all the out special circumstances of the case, is reasonable, and such authority. period shall not, in the absence of the special order of Magistrate, whether having jurisdiction to inquire into or try the case or not, exceed twenty-four hours, ex- clusive of the time necessary for the journey from the place of arrest to the Magistrate's Court.

If the investigation has not been completed within twenty-four hours and no such special order has been passed, and if there are grounds for believing that the accusation is well founded, the ofﬁcer in charge of the police-station shall forward the accused person to the Magistrate having) jurisdiction, with a statement of the offence for which e has been arrested.

A Magistrate authorising detention under this sec- tion shall record his reasons for so doing.

If such order be given by a Magistrate other than the Magistrate of the District or of a Division of a District, he shall forward a copy of his order. with his reasons for making it, to the Magistrate to whom he is subordinate".

Ad]-ou,me,,t-- "194. If, from the absence of a witness or from any of inquiry other reasonable cause, it becomes necessary or adm- and remand. sable to defer the examination or further examination of witnesses, the Magistrate may, be a written order, from time to time adjourn the inquiry and remand the accused person for such time as is deemed reasonable, not exceeding ﬁfteen days. .

1. Bhola Nath v. Emp., I.L.R. 51 Cal. 402; A.I.R. 1924 Cal. 614, 616 (Grves & Pat- on 1].).

2. Superinterdent and Legal Rememtranccr v. Bidhindra, A.I.R. 1949 Col. 143, para 5 ( Roxburgh and Blank I J.)-

23?

Instead of detaining the accused person in custody during the period for which he is so remanded, the Magistrate may release him, upon his entering into a recognizance, with or without a security or sureties, at the discretion of such Magistrate, conditioned for his appearance before such Magistrate at the time and place appointed for the continuance of such examina- tion.

Explanation: After commencin the inquiry, if sufficient evidence has been obtaine to raise a suspi- cion that the person accused may have committed an offence, and it appears likely that further evidence may' be obtained by a remand, this is a reasonable ground for a remand. .

In the Code of 1882, section 167 used the words "not exceeding ﬁfteen days", while section 344 used the words "not exceeding ﬁfteen days at a time. Moreover, section 344 in that Code spoke of 'postponing' the commencement of the inquiry, and the Explanation did not open with the words "After commencing the inquiry".

When the Bill which led to the Code of 1898 was introduced, clause 167(2), ﬁrst sentence, did not contain the words "in the whole". The Select Committee which con- sidered the Bill' stated as follows : --

"Clause 167-It has been held by the High Court of Madras' that the clause does not contemplate re- mands for successive period of ﬁfteen days. We think that this decision is right and have put in words to make the point clear. Any further proceedings should be taken under section 344".

The Select Committee, accordingly, added the words "in the whole" in section 167(2), ﬁrst sentence. It seems, that in the debates on the 1898 Bill, (after the Report of the Select Committee), an amendment was moved to subs- titute for the words "in the whole" the Words "at any one time". It would appear? that the Government of Bombay had considered the restriction indicated by the words "in the whole" undesirable--"since important cases arise in which the police require time for investigation and for the- collection of evidence, while such cases would frequently be prejudiced by any such proceedings in court as are con- templated by section 344 of the Code." The amendment was, however, rejected after some discussion.

(The Law Member, Mr. Chalmers, after referring to the conflicting decisions on the subject, stated that he could not express an opinion as to which view was preferable, since that was matter for people with Indian experience.

1. Legislative Council Debates, 12th March, 1898, speech of Mr. H.E.M. James.

2. The reference seems to be to (2.5. v. Engadu, (1887) I.L-R- 11 Mad. 98. 'u Legislative Council Debates, 12 March, 1898, speech of Mr. James.

238

'13he.Hon'able Mr. Nicholson said, that while remands under section 167 could_be_onie:_red by any Magistrate whether he had or had not Jurisdiction, the B111 (as amended by the Select Committee) provided that such preliminary deten- tion should not exceed ﬁfteen days in all. At the expiry of this period, he said, the suspect must either be released or placed before the Magistrate having jurisdiction, with a report. He added--

"Such report, however, need not be the ﬁnal charge sheet, and in fact, 1S usually an occurrence report, nor is it necessary for the Magistrate to begin enquiry there- on; on the contrary, by section 344 he is expressly em- powered to postpone such commencement and to give any reasonable number of remands of ﬁfteen days at a time if reasonable cause is shown, and the Explana- tion to section 344 expressly states, that if there is evi- dence creating a suspicion that the accused has com- mitted an oﬂence, and that further evidence may be procurable, if a remand be granted, that is a reasonable cause for remand. A man arrested, perhaps merely on suspicion, ought not to be detained indeﬁnitely in cus- tody under section 167, while the police are running round, hoping to ﬁnd out something. If the police had found out something which casts reasonable suspicion, on the person in custody, he could be detained under section 344 for a reasonable time. If they had not found out evidence which gave ground for action under the Explanation to section 344, he should be released."

Reading sections 61, 167, 169, 170 and 344 together, one ﬁnds that after expiry of the time allowed by sections 61 and 167, an accused must either be (1) released by the police under section 169, or (ii) forwarded for taking cog- nizance under section 170 to a Magistrate empowered to take cognizance upon police report. The Magistrate may either take cognizance and grant remand under section 344, or re- leased him'. He cannot grant remand under section 344 to enable completion of the investigation. Thus, the narrower view is correct The controversy on the subject was referred to in the 14th Report" of the Law Commission, and the recommen- dation made in that Report was that:---

(i) Section 167 should be amended to enable a magistrate to remand' an accused to custody for a period exceeding ﬁfteen days but not exceeding sixty days if the investigation is not completed within that period;

(ii) it was wrong to utilise section 344, (for the purpose in question as that would mean, in effect, giving an "unrestricted licence to the police and the dis-

cretion of the Magistrate can be seldom effectively exercised"

1. B7-Lola Nath v. Emp., A.I.R. 1924 Cal. 614. 515, 616, 167-

2. 14th Report, Vol. 2, pages 757 to 760, paragraphs 52 to 55, and summary, » 763, item No. (17). -

239

APPENDIX 16 Recommendatimzs in respect of others Acts.

1. The Bankers' Books Evidence Act, 1891 (18 of 1891).

This Act may be amended so as to extend some of its provisions to investigation by the police.'

2. Indian Penal Code, 1860 (45 of 1860)

(a) The question whether imprisonment for life should The rigorous or simple may be considered under the Indian Penal Code."

(b) Section 179 of the Indian Penal Code and other con- nected sections may be amended so as to ensure that a refusal to answer questions under section 161 of the Code of Criminal Procedure, 1898, is made punishable.'

(c) Similar amendment of the above-mentioned sections of the Indian Penal Code will be necessary in respect of a refusal to answer questions under section 175 of the Code of Criminal Procedure, 1898, if section 175 of the Code of tcrirrliinal Procedure is amended so as to omit the word .££tm y37.4

1. Paragraph 216, body of the Report.

2. Paragraph 162 of the body of the Report.

3. Paragraph 352 of the body of the Report,.r-dad with Appendix 11 (containing Note on section 161).

4. Paragraph 389 of the body of the Report.

LAW COMMISSION REPORT ON CODE OF CRIMINAL PROCEDURE [Sections 1- to 178] MINUTES OF DISSENT BY SHRI RAMA PRASAD MOOKERJEE MEMBER, LAW COMMISSION I have signed the Majority Report subject to a Minute of Dissent. I indiciate in this Minute the principal grounds on which I differ from the majority.

I. Part only of the Code should not be taken up for revision.

I feel very strongly that it is not only impracticable but not proper to attempt revision of or submit an Interim Report on a portion of the Code of Criminal Procedure. The different parts are so inter-dependent and interlinked that it is not possible to deal with the earlier part without reference to the later sections and Schedules.

Within the ﬁrst part falls Chapter I dealing with Deﬁ- nitions. It is impossible to come to any decision with regard to many of the problems included in the Deﬁnition section without reference to the subsequent sections and the man- nerhin which these other sections are proposed to be dealt wit .

So also the constitution and classes of Criminal Courts and particularly the powers of Courts as in Chapters II and III.

On a reference to the recommendations as made by the Commission on the present occasion, in respect of amend- ments under Chapter III, it would be noticed on a com- parison with the iecommendations as in the 14th Report of the Commission in Volume II and of the provisions as found under the amendments introduced in Bombay and Punjab, and those introduced by Executive Orders in Madras----how divergent the views are. Such divergences are due mainly to the conflicting approaches in respect of the later sections of the Criminal Procedure Code.

Even in the Report as now submitted casual references have been made in various places to the contents of the later sections of the Code. ' 240 241 II. Principles directed or decided upon to be followed.

If reference be made to the direction issued by the Gov-- ernment and announced on August 5, 1955 to the Parlia- ment when the Law Commission was constituted, it will appear that the principles on which revisions were to be made in the existing procedural law were :--

"Firstly to review the system of judicial adminis- tration in all its aspects and suggest ways and means' for improving it and making it speedy and less ex- pensive.

* * * Enquiry into the system of judical administration will be comprehensive and thorough including in its scope:----

(a) the operation and effect of laws, substan-V tive as well as procedural, with a view to elimina-

ting unnecessary litigation, speeding up the dis» posal of cases and making justice less expensive;

(b)'the organisation of courts, both civil and criminal;

In the 14th Report of the Law Commission on them Reforms of Judicial Administration certain amendments among others as regards both the Civil Procedure Code and"

the Criminal Procedure Code were made. As pointed out in that Report for obvious reasons it could not enter into~ detailed examination of either of the Procedure Codes or the law of Evidence. It was then observed that the Com-~~ mission would later on make recommendations in a com-----

prehensive manner. It was further considered that before ﬁnal consideration full implications of the amendments should be circulated to the State Governments for expres- sion of opinion.

The Commission had then also considered that it would"

be advantageous to take up the revision of the Criminal Procedure Code and the relevant sections of the Evidence) Act also simultaneously.

The normal practice in the Commission also in the past had been that either on a proposal for revision of an Act or of a particular topic referred to the Commission for opinion, the research staff under the Commission investi- gated the points, placed relevant materials properly arranged by the Secretary to the Commission -and the Draftsman as:

a Draft Report. That Draft Reportalong with the mate---

rials on which such Draft was prepared were considered by the Commission as a whole in successive meetings. The Draft Report was then circulated amongst the Govern»-

ments, High Courts and certain other bodies for expression of opinion on the Draft. Replies as received were tabulated and a ﬁnal Report was drawn up on a consideration of the opinions received and further materials, as might be col---

lected by the Commission staff and the whole-time Members;..

242

Av In certain cases questionnaires were_circulated for elici- ;_In public opinion and such information was considered .111 etail before arriving at the ﬁnal declsmn So_far as procedure is concerned on the Criminal side, the Criminal Procedure Code is rightly considered to be one of the most important pieces of statutory provisions teﬁecting the country as a whole in which not only the .administration, different branches of public opinion, but ordinary citizens also are concerned. The procedure stated above was not followed in this case.

III. Consideration of Procedure followed in other countries and Systems.

In my view, when we have to approach the problem of reform of Criminal Procedure in India, we ought not to be bound by the frame or contents of the law as had been «enunciated under the Anglo-Indian Code but also try to improve the same after examining experiments and modi- ﬁcation in Criminal administration as had been made in «other countries and systems. No doubt, difficulties that have been felt in the administration of criminal 'ustice by the ldiﬁerent High Courts and by the Supreme ourt of India have to be considered to resolve the divergent opinions.

For persons who have been trained and brought up under the Ang1o--Indian system are not always responsive 'to other systems of procedure and legal institutions, the Continental System is an anathema to many. But need I refer to recent American Codiﬁcation as in Wiscensin and Illinois in 1955 and 1961 respectively '? If reference be made to the above and to the 1964 draft of the New York Crimi- nal Code--which is more comprehensive and systematic than its predecessor, one will notice "the inﬂuence of the Model Penal Code of the American Law Institute which is patterned after Eu can Criminal Codes", "Many of the 'basic concepts of thetgoviet Criminal Law and Procedure are in the "continental" traditions".

All the more it is desirable and necessary to know more =-of the Continental System and examine whether any as in that System can or should be introduced for the better- ment and improvement of our System.

IV. Separation of Executive from the J wdicial.

Another important factor which cannot,_ and has not to 'be omitted from the scope of our investigation is the effect of the Directive Principles contained in Article 50 of our 'Constitution about the separation of executive from the judicial. This has not been overlooked altogether~'-but considered in a limited way. .

It should not be overlooked that attempts are. being 'made in different States for the separation of the Judlclal and executive functions. In certain States, separation has 'been effected by introducing local amendments of the Code 243 of Criminal Procedure and in a large number by issuing:

Executive Orders without making any alteration in the Code itself.

As far as, I have been able to gather, such separation has been introduced by amendment of the Code of Crimi-» nal Procedure in Bombay which has now been enforced in the new States of Maharashtra and Gujarat, also in the Punjab which has also now after separation been effective in Chandigarh and Harayana. Recently in 1965 separation has been introduced in Mysore by an amending Act.

It had not been possible to consider in detail the provi- sions as introduced in the different States-----as a matter of" fact all the relevant literature and copies of all the Execu--A tive Orders could not be obtained.

I had in my personal capacity occasion to visit during the last few months a large number of States both in the Eastern and Western parts of India in addition to some in the North. From the discussions that I could have with Judges or Executive ofﬁcers-in my private capacity--1 found that discussion with the persons in direct authority threw greater light on the effect of articular provisions' than a mere reading of the text of the provisions in the Amending Acts and Executive Orders could aﬁord. The Com-- mission could not have advantage of meeting representa-V tives from the States----could not even obtain the written views from the different States about the provisions as proposed in the Report for a portion ofthe Code.

It will be noticed from Azanexure 'A' how far attempts' have been made in the different States for separation of' Executive from the Judicial.

As noticed already in a large number of cases copies: of the Executive Orders were not before us.

According to the Law Commission as expressed in the 14th Report, preference was made on many of the impor~ tant topics and the policy and details as introduced in Bombay. In the present Report to be submitted by the Law Commission, on many of such points the recommendation. made is based upon the Punjab view.

As stated above, for a proper appreciation and the: effect of separation of executive from the judicial, mere: examination of the texts of the statutes or directions issued will not be sufficient. Reference has to. be made to the res.- ponsible 'officers who had to apply these provisions to ascer-. tain whether such provisions were salutary and practical. For this purpose, reference is essential to the State Gov- ernments, as such, and to examine representative witnesses, or in my view, obtain from questionnaire or memoranda the effect of such provisions. The provisions as We have found, in the three States to which references "were made by the 244 Commission on the present occasion differed in material P31'tiC111aI'S; and that by itself makes it more necessary to 'evaluate the eifect of such rules as in the different States.

It Cannot 3150 be Overlooked that some are very often influenced by notions of maintenance of peace and order; and whether one should have greater importance attached on maintenance of peace and order and rely more on police and the executive branch of the administration or em- phasise the independence of the judiciary and rely more on the courts than on the Police. My view is deﬁnitely the latter one. Before the Commission arrives at a decision reference must be made as to how the Rules and procedure followed in different parts of India produced the desired effect and result.

As indicated already, we had not the time or opportu- nity even to discuss the details of the system and policy in vogue in the majority of the States, as we had not even ~ copies of all the Executive Orders issued.

With a View to appreciate the implications of Article 50 of the Constitution "the States shall take steps to separate the judiciary from the executive in the public services of the State" divergent views have been expressed as noticed in the different Amending Acts and the Executive Orders issued by the majority of the State Governments.

To resolve these divergent View points, there is no other provision in the Constitution to interpret the implications of Article 50. But, it may perhaps be possible to refer to the provisions of Article 237 which is a consequential corol- lary to Article 50. Under Article 236 what categories of judicial ofﬁcers would come under the purview of the ex- pression "of District Judge" ﬁnds mention. There can, there- fore, be no scope for any controversy that these func- tionaries are purely Judicial Courts. It may be noticed that under Article 236(a) under the expression "District Judge", magistracy as a whole does not ﬁnd mention except Presi- dency Magistracy. This is so because both executive and judicial functions are now combined in the same func- tionary from which judiciary has to be separated. To what extent, the judicial magistracy would be separated from the existing Executive pattern may be stated to have been in a way suggested under Article 237. In order that these separated judicial magistracy would be brought under the effective and complete control of the High Court under Article 237, the Governor may have to fix a date by public notiﬁcation from which date any class or classes of Magis- trates in the State may be brought within the category of "judicial service" as ﬁnds mention under Article 238(b) sub- ject to such exceptions and modiﬁcations as may be speci- ﬁed in the notiﬁcation. Article 237, therefore, which may provide the clue to understand the implications under Arti-

~cle 50 may have to be stretched to its legal consequences so as to deduce the logical and lawful inference of the

- scope under Article 50.

245

"Any class or classes of Magistrates" as is mentioned und_er Article 237 can be properly construed if we would be in a position to appreciate the dictum of the classiﬁca- tion of magistracy which in the absence of any clariﬁca- tion _in_ our Constitution has to be referred to the relevant provisions under the Criminal Procedure Code by virtue of which the class or classes of Magistrates have been created.

Though, therefore, under section 6 in Chapter II of the Code of Criminal Procedure, different classes of Criminal Courts in India are mentioned_ difficulties arise in laying down the position and the powers of such Courts unless we travel into the latter parts of the Code of Criminal Proce- dure which in the present Report we are not discussing.

In my view, there is no escape from the conclusion that under the Directive Principles of the Constitution, in any matter in which evidence has to be taken by a tribunal or authority and decision has to be reached on appreciation of such evidence that must be by a judicial authority which is to be independent of the Executive control in the fullest significance of their term.

It is not possible in this short note to discuss in detail the effect of such a principle on the different sections of the Criminal Procedure Code. I refrain from, therefore, at this stage to discuss even these sections which are dealt with in the present Report---like section 144 or sections 108 to 110 and many others.

V. General questions which need consideration before parti- cular sections are considered.

I had expressed the View that it is not by tinkering amendments of particular sections of the Code of Criminal Procedure that the ideals which had 'been laid down by the Government when the Law Commission was appointed or the manner in which reform in procedure can be eﬁect- ed, can be fully implemented._ For a proper and satisfactory criminal administration topics which require serious consi- derations arm-

(i) the type of men who should be incharge of ad-

ministration of criminal justice.

(ii) The terms and conditions under which the per- sons responsible should be holding their appointments.

(iii) Can the investigation and enquiry as in force be made more rational so as to reduce harassment of innocent persons and expedite bringing to justice per- sons really accused of commission of such offence.

(iv) How far and to what extent the method of trial can be modiﬁed or reformed keeping in view the trust of the general public in the judiciary and if possible, reducing the number of appeals after ensuring that the original trial is more satisfactory, expeditious and less expensive as at present. « 246 One cannot overlook the fact that the higher appoint- ments which are made on the executive and administrative:

side are after All-India competitive examination where the best intellect may be represented. The terms and conditions.

of such services are more attractive than what can be or offered to the State Judicial Service. It is common know-

ledge, for all those _Who are intimately connected with the Judicial administration in the States are aware of the fact that because of such comparatively lower grades of pay and other terms of appointments, very few are attracted who have attained high academic attainments and are of high intellectual calibre. During the last few years, appointments of Munsifs had been very difficult in Bengal because of paucity of very competent candidates. Mere separation of executive from judicial will be of little assistance or ensure improvement unless the terms and conditions of service are brought at par with those for the Executive and Adminis-

trative side.

Persons are also not attracted to the State Judicial Service because those who go in for the Executive Branch have chances of promotions in diverse departments of ad- ministration which one joins the Judicial Service cannot have.

As regards the improvement of investigation, there is the possibility of improvement if we turn our eyes to the procedure which is in vogue in the "Continental System"--r keeping in view, no doubt, always that we must not divert.

from the Rule of Law.

As the Report dam not deal with the latter sections"

and Schedules of the Code, it IS not necessary to refer to the method of trial now in vogue and the various provi- sions for Appeals and Revisions.

Reference need be made to the observations as a pear- ing in the 14th Reportthat sufficient time had not e apsed at that stage in 1962 after the various amendments of .1955 had been introduced. The Commission had not at that stage considered "revision of the Code in toto". The positidnis, however, altogether different in 196'? when we are revising the 'Code in its entirety and with the wider terms of refer- ence for introducing such changes as are deemed necessary' and appropriate.

CON CLUS ION In view of the very short time available, it is not possible for me at this stage to deal exhaustively with all the points that arise or with the different sections.

Sd/--

(Rama Prasad Mookerjee).

GTPN§ec:et-7.9 M. of Law]68----12-9-69~l.90O

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