The Code Of Criminal Procedure ,1898-Vol 1

[Cites 422, Cited by 0]

Law Commission Report

The Code Of Criminal Procedure ,1898-Vol 1

LAW COMMISSION
OF INDIA I

FORTY-FIRST REPORT

(THE com; or CRIMINAL PROCEDURE. 1898) V

V SEPTEMBER,»1969
(Vol. I)

.. 93'"

CHAPTER

II
III
IV'

VI
VII
VIII
IX

XII
XIII
XIV

XV
XVI
XVII

XVIII
XIX

XXI
XXII
XXIII
XXIV
XXV

XXV I
XXVII
XXVIII
XXIX
XXX
XXXI
XXXII
XXXIII
XXXIV
XXXV

XXX V I
XXXVII

CONTENTS

INTRODUCTION
Preliminary .. .. .. .. .. .. .. ..
Constitution of Criminal Courts and Offices .
Powers ofCourts .. .. .. .. .. ..

Aid and Information to the Magistrates and the Police
Arrest, Escape and Retaking

Processes to Compel Appearance .

Processes to Compel Production of Things . .
Security for Keeping the Peace and for Good_Behaviour
Unlawful Assemblies '

Public Nuisances . . . . . . . . ...
Temporary Orders in Urgent Cases of Nuisancejor Apprehen-

ded Danger . . . .
Disputes as to Immovable Property

Preventive Action by the Police . . . .
Information to the Police and their Powers to Investigate
Jurisdiction of Criminal Courts in Inquiries and Trials
Complaints to Magistrates . . . . . .
Commencement of Proceedings before Magistrates . . . .
Inquiry into cases triable by the Court of Session or High Cou
TheCharge.. .. .. ..

Trial of Summons Cases by Magistrates

Trial of Warrant Cases by Magistrates' . .

Summary Trials . . . . . . . . . .

Trials before High Courts and Courts of Session

General Provisions as to Inquiries and Trials . . . . . .
Mode of Taking and Recording Evidence in Inquiries an
Judgment . . . . . . . . . .

Submission of Sentences for Conﬁrmation

Execution .. .. .. .. .. ..
Suspensions, Rcmissions and Commutation of Sentence
Previous Acquittals or Convictions

Appeals

Reference and Revision

Repealed alrea 1 y

Lunatics . . . . . . . . . . . . , _
Proceedings in the case of certain Offences ztﬁecting the
Administration of Justice . .

Maintenance of Wives and Childne

Dimctions in the Nature of a Htibeas Corpus . .

PAGES

vii
I-13
14-28
29-3 5
36
37-39
40-43
44-47
48-53
54-55
56-58

59-60
61-65

,§J.-:30
81-131
132-136
137-141
142-154
I55-I63
164-169
170-177
l78--183
I84-I87
I88-220

221-228
229-236
237-240
241-247
248-253
254-256
2 57-283
284-289

290-293

294-302
303-306
307-3 I0

XXXVIII
XXXIX
XL
Xl_l
XLll
XLIll
XLIV
XLV
XLVI
XLVII
XLVlll

(iv)

The Public Prosecutor

Bail . . . . . . . . .

Commissions for the Examination of Witnesses

Special Rules of EVld(:l'tCC

Bonds . .

Disposal of Property

Transfer of Criminal Cases

Irregular Proceedings

Miscellaneous . . . . . . . .

Classiﬁcation of Oﬂ'cnccs in the Second Schedule

Conclusion ..

Note of Dissent regarding the
to sections 161(3) and l62

Codes by Members Shri R. L.
Shri S. Balztkrishnan

proposed Amendments
Criminal Procedure
Narusimhum and

Volume 2
Draft Bill (See contents of the Bill given before the Bill)
Comparative Table No. 1--Corresponding Chapters
Comparative Table No. 2~--C0rresp0nding Sections

PAGI-LS

I 1-314
315-322
325-324
325-32>
330-332
333-342
343-349
350-353
354-36l
362-366
367-372

NEW DELHI-].,

September 24, 1969.

DEAR LAW MINISTER,

I have pleasure in sending herewith the forty--ﬁrst Report of the
Law Commission on the Code of Criminal Procedure, 1898. This
brings to a conclusion one of the major tasks of revision undertaken
by the Commission.

2. A detailed examination of the Code with a View to its complete
revision was undertaken in the Commission some time in 1961. The
previous Commission under the chairmanship of Shri I. L. Kapur sub-
mitted, between 1963 and 1968, four Reports (thirty-second, thirty-
third, thirty--ﬁfth and thirty-sixth) on problems arising out of. or in
connection with, certain speciﬁc provisions of the Code. In February,
1968, it submitted a comprehensive Report (thirty-seventh) on the
first fourteen Chapters comprising sections 1 to 176 of the Code.

3. When the present Commission was constituted in March, 1968,
with four whole-time Members and the ﬁfth Member from the Law
Ministry, it was possible to meet much more frequently and devote
greater time and attention to the revision of the Code than before.

4. Towards the end of the study, the Commission felt that it
would be desirable to have personal discussions with Judges of High
Courts, representatives of the Bar and ofﬁcers of the State Govern-
ments on the more important general questions which had come up
before us for consideration. Between January 15 and March 15 of
this year, one or more Members of the Commission visited eight High
Courts for these discussions which were of great value to us.

5. While this last Report on the Code has naturally to be read
along with the thirty--seventh, which deals in detail with roughly one-
third of the Code, and also with the other four Reports of the Commis-
sion mentioned above, we have endeavoured to make the present
Report a comprehensive one, and to include in it the Commission's
recommendations for the revision of the Code in a consolidated form.

(Vi)

6. Finally, we wish to express our appreciation of immense
amount of work put in by our Secretary, Slari P. M. Bakshi, 'In C0llect-
ing and analysing the material for our discussions and the unﬂring and
diligent manner in which he assisted the Commission right through.

Yours sincerely

K. V. K. SUNDARAM

Hon'ble Shri P. Govinda Menon,
Minister of Law & Social Welfare,
Government of India,

New Delhi.

INTRODUCTION

Some time after the Law Commission, as first constituted, had
submitted its report' on the Reform of Judicial Administration, the
Commission was re-constituted and it was asked by the Govermnent
of India to undertake a detailed examination of the Code of Criminal
Procedure with a view to its general revision. The work was started
immediately and has been going on continuously since l961.

While this intensive study of the Code was in progress, the Com-
mission found it necessary to consider a few speciﬁc problems arising
out of certain provisions of. the Code and report separately thereon to
the Government. In chronological order these were 2--

(i) Report on the Evidence of Oﬂicers of the Mint and of the
Indian Security Press regarding forged stamps, currency
notes etc., (connected with section 510 of the Code)';

(ii) Report on section 9 of the Code regarding the appointment
of Sessions Judges, Additional Sessions Judges and Assist-
ant Sessions Judges';

(iii) Report on section 44 of the Code and a suggestion to add
a provision relating to the reporting of, and the disclosure
in evidence about, oﬁence relating to bribery'; and
(iv) Report on sections 4-97, 498 and 499 of the Code with
reference to the question of granting of bail with condi-
tions."
Thereafter the Commission gave its comprehensive Report' on the
first fourteen chapters comprising sections 1 to 176, of the Code.

The Commission was then re-constituted in March, 1968, with the
following Members :--

(1) Shri K. V. K. Sundaram, retired Chief Election Commis-
sioner of India, (Chairman); '

(2) Shri S. S. Dulat, retired Judge of the Punjab High Court;

114th Report: given on September 26, 1953.

2 25th Report: given on September 27, 1963.

332nd Report: given on May 29. 1967.

433rd Report: given on December 15. 1967.

536th Report: given on January 9, 1968.

0 37th Report, given on February 19, 1968, was signed by Shri I. L.
Kapur (Cha1rman)_ and Sarvuim K. G. Datnr, S. S. Dulat, T, K. Tone
and R. P. Mookenee (Members). Shri R. P. Mookeriee signed the Report
subtect to a dissenting none.

(viii)

(3) Shri B. N. Lokur, formerly Law Secretary to the Govern-
ment of India;

(,4) Shrimati Anna Chandi, retired Judge of the Kerala High
Court; and

(5) Shri S. Balakrishnan. Joint Secretary and Legal .~\d*».;'v.rer
to the Government of India.

Shri B. N. Lokur, however, was with the Commission only for a
short period from March 20 to July 4, 1968, when he was appointed
a Judge of the Allahabad High Court. His place was taken by Shri
R. L. Narasimham, retired Chief Justice of the Patna High Court, -on
August 5, 1968.

After reconstitution. the Commission took up a detailed study of
the Code from where the previous Commission had ended its Report.
viz., section 177. One matter which particularly engaged the attention
of the Commission was the scheme of commital proceedings, bot}: as
it operated before the amendment of the Code in 1955 and as it has
been operating since that amendment. The opinions received by the
Commission from qualiﬁed and well-informed persons were highly
critical of the changes made in 1955. Many of them were of the View
that corrmiital proceedings, as now held under section 207A of the
Code, served no useful purpose. There were also suggestions. that
commital proceedings in any form were unnecessary and should be
totally abolished and that all cases triable by a Court of Session should
be brought directly before it instead of being committed to it for trial
after a preliminary inquiry by a Magistrate. As this was obviously a
very important matter, it was decided to obtain the views of the High
Courts, the Bar Council and the State Governments and a detailed
letter was addressed to them in August 1968 soliciting their views.

Towards the end of its study of the Code, the Commission felt that,
before coming to ﬁnal conclusions, it would be desirable to consult the
Bench and the Bar on the more important general questions which had
come up for discussion and that their views could be ascertained more
quickly and satisfactorily by Members of the Commission going round
the High Courts, meeting the Judges and representatives of the Bar
interested in criminal procedure and informally discussing with them
the questions we had in mind. The Commission accordingly started
these discussions in the first week of January, 1969, in Delhi itself,
meeting first the Judges of the High Court for Delhi and Himachal
Pradesh and then representatives of the High Court Bar Association
and of the District Bar Association. Between January 15 and March
15, one or more Members of the Commission visited the High Courts

i
9

2 (ix)

at A.ll'dh'<li"Jad, Bangalore, Bombay. Calcutta. Chandigarh, Jzibairur,
Madras {ind Patna and held discussions. At all these centres we 'rock
the Opportunity of discussing with the concerned officers of the Seat -
Governments and police chiefs various problems connected with the
constitution of crimin_al courts, separation of the executive from the
judiciary, the organisation of public prosecutors and the Code provi-
sions relating to police investigation.

These discussions have been of invaluable assistance to us in
clarifying our ideas and formulating our recommendations for revising
the Code. We would, in particular, record our grateful thanks to the
Judges of High Courts for readily sparing time for the meetings and
giving us the beneﬁt of their individual views on the topics discussed.

Although the first fourteen chapters of the Code have been
exhaustively analysed in the previous Report of the Law Coininission
and a number of amendments have been proposed, we have found it
unavoidably necessary to review their recommendations, to modify or
alter them here and there, and to suggest in places a different line of
revisions. A ﬁnely integrated and comprehensive law like the Code of
Criminal Procedure cannot possibly be revised piecemeal since amend-
ments suggested in one part of the Code naturally affect provisions in
other parts to a greater or lesser extent. We, therefore, propose in this
final Report on the Code to consider it chapter by chapter starting from
the beginning and to present the Commission's recommendations in a
consolidated form.

CHAPTER I
PRELIMINARY

in 1898, provided in section 1(2)
that it extended to the whole of British India. This seemingly
comprehensive extent clause had, however, to_ be read in the
light of the Scheduled Districts Act, 1874, which remained on
the statute book till the Government of India Act, 1935, Game
into force. The Scheduled Districts Act listed in a Schedule a
large number of backward areas in diﬁerent parts of India _and
gave them the common name of scheduled districts. By sections
3, 4 and S of the Act, the Local Government was enabled, with
the sanction of the Governor-General in Council, to notify what
enactments were in force and what enactments were not in force
in any of the scheduled districts and to extend to the scheduled
districts any Act in force in British India. Section 6 of the Act
enable the Local Government, inter alia, to appoint ofﬁcers to
administer criminal justice within a scheduled district, to regulate
the procedure of such officers but not so as to restrict the operation
of any enactment in force in the district, and to direct by what
authorities any jurisdiction, powers or duties incidental to the
operation of any such enactment shall be exercised or performed.

1.2. After the passing of the Code in 1898, the Local Gov-
ernment acting under the Scheduled Districts Act declared the
Code to be in force in some scheduled districts and not to be in
force in some others, with the result that in spite of the clear-cut
extent clause in that ﬁrst section of
into old notiﬁcations and directions to ﬁnd out whether the Code
was actually in force in a scheduled district and, if so, in what
form. When the Government of India Act, 1935, was brought
into force on the 1st April, 1937, the Scheduled Districts Act,
1874, was repealed by Adaptation of Indian Laws Order-in-
Council but "without prejudice to the continued validity of any
notiﬁcatfon, appointment, regulation, direction or determination
made thereunder before" that date. The Order-in-Council
further provided that the appropriate Government, Central or
Provincial, may vtithin six months of that date adapt any enact-
ment in force in a scheduled district by virtue of a notiﬁcation
under the Scheduled Districts Act in order to bring the enactment
into accord with the Government of India Act, 1935.

1.1. The Code, as enacted

1.3. The extent clause in the Code was modiﬁed thrice
between 1947 and 1951 in consequence of the constitutional
changes that took place during those eventful years. First the
expression "whole of Britsh India" was changed to "all the
Provinces of India" by the Indian Independence (Adaptation of
Central Acts and Ordinances) Order, 1948, meaning thereby all
the provinces of the Dominion of India. Then it was changed by
the Adaptation of Laws Order, 1950, to read "the whole of India
except Part B States". Thirdly, the Code of Criminal Procedure
(Amendment) Act, 1951, which came into force on the 1st April.
1951, substituted "the State of Jammu and Kashmir and Manipur"

the Code, it required research

Territorial extent
of the Code.

Not in force in
some "scheduled
districts".

Changes in ex-
tent clause after
independence.

Code does
apply to
land-Decision of

not
Naga-

Supreme Court.

Code does

not

apply to Assam
tribal areas.

No
areas
States.

excluded

other

)

for "Part B States" thereby enlarging the territorial extent of the
Code to the whole of lndia except these two named States : (Mani-
pur was then a Part C State). Finally in 1956 the Union Terri-
tories Laws (Amendment) Act. 1956. omitted the reference to
.\~larti;:tti' in the extent clause.

1.4. While by virtue of the two Acts of Parliament last men-
tioned the Code ostensibly extends to the whole ol' India except
the State of Jztmmu and Kashmir, it is. in fact. not in force in the
State 0.? Nztgaland nor in the autonomous districts and the North
Fast Frontier Tract of Assam. The question whether the Code
is in force in N-'1€.'8l.'lI1d camg up before the Supreme Court for
consideration in Stair' of .-'\'agulu/id v_ Rmun Singh} The Court
held that the Code did not apply to the State but certain rules made
by the Governor of Assam under section 6 of the Scheduled Dis-
tricts Act, 1874, on March 25, 1937, in supersession of all
previous orders on the subject continued to be in force and govern-
ed the trial of offenders in the State. The Court concluded its
jutlgment with the following observations :----

."Wc may. however. say that it would be better if, as soon
as it is found to be expedient. all Rules are cancelled and
one nnitornt set of Rules is made for the whole of this area.
'This would obviate having to ﬁnd out through the mazes of
h.i~:tory and the congeries of rules, notiﬁcations and regulations
what law is applicable. If any diﬂiculty is felt in making new
rules. recour;:;e may easily be taken to the provisions of section
3.! of the State of Nagaland Act which enables the President.
by order. to remove any difficulty to give effect to the provi-
sions of the State of Nagaland Act. The history of this area
shows that there have been difficulties in the past in ascertain-
ing laws which were applicable at any point of time in any

particular area and led to the DC.'-'T-':13 of many Acts of British
..::ra1 in Council to remove

Parliament and of the G0vcrnor-

such difficulties. We do not thi that such a state of affairs
should continue indeﬁnitely \.t'iitn the state of Nagaland Act
itself gives suﬂicient power to remove ditﬁculties."-°

1.5. The Commission is informed by the Government of
Assam that each of the autonomous districts of Assam has its own
rules for the administration of justice made under the Scheduled
Districts Act, 1874. and subsequently modiﬁed by the Assam
Autonomous Districts (Administration of Justice) Regulation.
1952, and the Code of Criminal Procedure is not as such in force
in these districts. It is also not in force in the four frontier tracts
which comprise the North East Frontier Agency. According to
the Government of Assam, some small portions of these tracts
fail'i_Ilf'. in the plains were transferred to the districts of Darrang
and Lakhimpur in February, 1951, but the Code has even novt
not been made applicable to these areas.

1.6. So far as the other States and Union Territories are
concerned, no area appears to be excluded from the operation of
the Code either because it was a scheduled district before 1937 or

1 (1966) 3 S.C.R. 330.
2 rm pp. 854-55.

bCL'¢'.lU>c' it is a scheduled area under the Fifth Schedule to the
Constitution,

l.7. It seems to us desirable that the extent clause in the Code Atncltdlnellélaugi
shoul,;i"state the lactual position, obviating, as the Supreme Court f:ég'I'mmnded.
1131 . put it, a need "to ﬁnd out through the mazes of history and
cong,et'ies of rules, notiﬁcations and regulations" whether the
Code is applicable or not in a particular area. We propose that
it should be amended to read :'--

"It extends to the whole of India except the State ol Janlmu
and Kashmir. the State oi Nagaland and the tribal areas' within
the State of Assam; ctc.,"

l.8. While there appears to be good justitication for Nagaland Position in

and the tribal areas of Assam having their own simple rules for Jammu, and
the administration of criminal justice and for not introducing the Kashmm
complicated provisions of the Code which are apparently not
suitable for the social conditions prevailing therein, it seems to us
highly anomalous that Jammu and Kashmir should be excluded
front the operation of the Code. This is due to the fact that
under the Constitution (Application to Jammu and Kashmir)
Order, the power of Parliament to legislate for this State in
respect of matters mentioned in the Concurrent List is limited to
a tow entriesand the entry relating to criminal procedure (entry
2 in List III) is not one of them. As regards criminal law also,
the power of Parliament to legislate for Jammu & Kashmir is
very limited. Neither the India nPenal Code nor the Code of
Criminal Procedure, 1898, is in force in the State. It has two
separate Codes, the Ranbir Penal Code and the Jammu and
Kashmir Criminal Procedure Code, which are practically the
same in wording and arrangement of sections as the Codes in
lorce in the rest of India.

1.9. It will be noticed that by virtue of the deﬁnition of "India" Anomaly under
in section 4( l ) (j) of the Code. any place in the State of Jammu SCCUOY1 133-
and Kashmir is outside "lndia" for the purposes of the Code.
This gives rise to an anomalous situation under section 188 of
the Code. If a citizen of India, whether he is a resident of that
State or of some other State in India. commits in Jammu an
ollencc punishable under the Indian Penal Code, he may be dealt
with at any place in any other State of India where he mav be
lound, but before the charge is inquired into at the latter place,
the sanction of the State Government will' be required (there
being no "Political Agent" for the State of Jammu and Kashmir).'~'
It is anomalous that all offences punishable under the Indian Penal
Code. when committed in the State of Jammu and Kashmir, should
be triablc in any place in the rest of India where the offenders may
he found. without any reference to the venue rules for inquirv and
trial contained in sections I77 to 183 of the Criminal Procedure
Code. This curious situation is dttc to the fact that these two
Codes do not extend to the State. and even ParIiament's power to
legislate for the State does not extend to criminal law and criminal

1 See para. 20(1) of the Sixth Schedule to the Constitution.

3311110 v. Om Park-ash. (1966) Cr.L.I. 366 (Punjab). In this case
the accused was alleged to have committed bigamy in Jammu and
returned to his ordinary place of residence in Punjab.

Code extends also
to territorial
waters.

References to
temtorial water
in_Central Acts.

We recommend

procedure.

by first suitably amending the Constitution
and Kashmir) Order, 1950, under article 370, and

extending the two Codes to

that the anomaly should be removed.
(Application to Jarnmu
then by

the State. \ \

1.10. Another point that requires consideration with retere}€$\\\

to the extent clause in the Code is

diction in and in relation to
Code extends to the whole
territory of the State of

the exercise of criminal juris-
The
the

the territorial waters of India.
of the territory of India except

Jammu and Kashmir. Notwithstanding

the use of the word "territory" which etymologically has a land
signiﬁcance, there is of course no doubt that the territory of India,

as of any sovereign State,

includes its territorial waters. This

internationally accepted principle has recently been formulated in
the Convention on the Territorial Sea and the Contigious Zone,
1958, in the following terms' :---

"Thc sovereignty of
territory and its internal

a State extends, beyond its land
waters, to a belt of sea adjacent to

its coast, described as the territorial sea.

The sovereignty of a
space over the territorial

A Presidential

coastal State extends also to the air
sea as well as to its bed and subsoil."

Proclamation announced on the 30th September,

'.967, that the territorial waters of India extend into the sea to a

distance of 12 nautical miles
line. The Code accordingly

measuring from the appropriate base
extends to the land territory of India

(excluding Jammu and Kashmir) and to the belt of sea, l2 nautical

miles wide, adjacent to the

1.11. The earliest reference

coast.
in Indian legislation to territorial

waters is to be found in section 4 of the Indian Fisheries Act,

l 897, This Act

lndia; now it

which were formerly comprised in Part B States.

originally
extends to the whole of India excluding the territories ,

extended to the whole of British

Sub-section

(1) of section 4 makes it an offence for any person to use dyna-

mite or other explosive substance in any
thereby to catch or destroy any

"water" vtith intent
ﬁsh that may be therein; and

sub--saL'tion (2) exptains----

"In sub-section (1),

within a distance of one

the word 'water' includes the sea

-marine league of the sea coast; and

ommitiod under that sub-section in such sea may

be tried punished and in all respects dealt with as if it had

been committed on

the land abutting on such coast."

According to British concepts of those days, the territorial

waters of. a State" were only
miles. wide; but presumably

the Territorial Waters Jurisdiction Act (41 and

it was considered necessary
of this explanation.

In recent legislation, section

one marine league, or three nautical
because of difficulties arising out of
42 Vict.c. 73),

to make the position clear by means

2(2) of the Merchant Shipping

Act, 1958, provides for the applicability of the Act to any foreign

ship while it is' "within'=India,

including the territorial waters

1 See Articles land 2 "of the Convention.

thereof". Customs Act of 1962 contains in section 2(27)

Thai

1 a deﬁnition (vf India as including the territorial waters of India.

Section 23 ref, and item 14 in the Second Schedule to, the Extra-
dition Act.; 1962, refer to any oﬂfence "committed on board any
vessel -on the high seas, or any aircraft while in the air outside

Indiid or the Indian territorial waters, which comes into any

- port or acrodrome of India."

1.12. Since the territory of India comprises the territories of
the States and the Union Tcrritories----vide article 1(3) of the
Constitntion----the territory ol' each of the States and Union
Territories abutting on or surrounded by the sea must include
the territorial waters adjacent to its coast. By the same reason-
ing, where the local jurisdiction of a court covers a sessions
division, district or sub-division which has a sea-coast, it must be
regarded as covering not only the land and internal waters of the
sessions division, district or sub-division, but also the stretch of
territorial sea adjacent to its coast. We think it is desirable to
make this clear in an appropriate place in order to avoid any
doubt or dispute over jurisdiction.'

1.13. We notice in this connection that section 20 of the Code
defines the local limits of a Presidency Magistrate's jurisdiction
in the following terms :--

"Every Presidency Magistrate shall exercise jurisdiction in
all places within the presidency-town for which he is appoint-
ed, and within the limits of the port of such town and of any
navigable river or channel leading thereto, as such limits are

_ defined under the law for the time being in force for the
regulation of ports and port-dues."

In the case of the presidency-towns of Bombay and Madras, both
of which have a sea coast, it would appear that the local juris-
diction of a Presidency Magistrate extends only to that part of
the territorial sea adjacent to the presidency-town which is within
the limits of the port. The rest of the territorial sea, of which
there must be a considerable extent both in Bombay and in
Madras, would be outside the jurisdiction of the Presidency
Magistrates and of any other Magistrates. (This diﬂiculty does
not arise in the case of Calcutta, as it is not on the sea coast).
Since the establishment of the City Sessions Courts in Bombay
and Madras, the local jurisdiction of a Presidency Magistrate in
either of these presidency-towns is coextensive with that of the
City Sessions Court. There is no reason why, as in the case of
any other coastal district, this should not extend to the whole of
the tergtorial sea pertaining to the "district"? of Greater Bombay
or M ras.

1.14. The existing extent clause also contains two kinds of
saving provisions. The first saves the operation of any special
or local law and any special jurisdiction or power conferred and
any special form of procedure prescribed, by any other law. The
second excepts three categories of oﬂicials from the application

13cc para. 1.27 below.
2See section 7(4) of the Code, which provides that "every presi-
dency-town shall for the purposes of the Code be deemed to be a dis-
trict".

. ' .'..':.J 14-.'-

Territory of coas-
tal State, district
or sub-division
includes its terri-
torial waters.

Diﬁculty regard-
ing presidency-
towns--section 20.

Saving provisions
in section 1(2).

§.

First

:w_tp of

6
of the Code. with a rider to the ellect. that the Stage Govemment
may by notiﬁcation extend any provisions of the Code to any of
these categories. '
1.15. The lirst group of excepted persons consisted. at the

e""'"""'*i 9"""°"*' Commissioners and Deputy Commissioners of Police' in the

Omissic. it

clause Lt) recom-

mendvri _

Second group of

excepted

Oniistsion

P6130115.

three towns of Calcutta, Madras and Bombay and
whole police force in the towns of Calcutta and Bombay. [he
Bombay Police Act, 1951, however, amended this provision by
deleting the references to Bombay with the result that, since then,
the Code applies to the police in that town. including the Com-
missioner of Police in the same way as it does to the police in
the other parts of the State. As regards the police in Calcutta,
a number of notiﬁcations have been issued from time to time by
the State Government under the proviso to section 1(2), apply-
ing a number of important sections of the Code, some with modi-
fications and some without, to the Commissioner of Police and
to the police force 01 the State. Among the sections so extended
are sections 47 to 51, 53, 58, 102,103, 151, 154_ 156, 161m 165,
167, 172, 173. 550 and 551. In Madras while the Code applies to
the city police who are governed by the Madras City Police Act,
1888. it does not apply to the Commissioner and Deputy Coin-
missioners of Police who are also governed by the same Act. No
notiﬁcation seems to have been issued under the proviso to section
1(2) 01' the Code extending any of its provisions to these police
oflicers.

1.16. There does not seem to be any real or suflicient reason
for this exception. It would be more logical and appropriate to
leave the Code generally applicable to all police forces. if any
special provisions inconsistent with the provisions of the Code
are required for the police in the town of Calcutta or for the
Commissioner and Deputy Commissioners of Police in Madras.
they could be made in the relevant State Act. We would recom-
mend thc omission of clause (a) of section 1(2).

1.17. The second category of excepted persons was "heads
of villages in the Presidency of Fort St. George". This territorial
reference. was changed by the Code of Criminal Procedure
(Amendment) Act, 1951, to the State of Madras. ignoring the
fact that certain parts of the former Presidency had been trans-
ferred to the Province of Orissa when the latter was formed in
1936. The reference was further changed by the Adaptation of
Laws (Number 2) Order, 1956. to "the State of Madras as it
existed immediately before the 1st November_ 1956", the date
of the large-scale reorganisation of States. The effect of this
amendment was to take out of the purview of the saving provision,
heads of villages in the territories transferred from the State of
Andhra and Mysore in 1953. But heads of villages in the terri-
tories transferred from the State of Madras to Andhra Pradesh,
Mysore and Kerala in 1956 and subsequently are apparently
still excepted from the application of the Code.

1.18. The reason for this exception appears to be that heads

claus: tblreconv of villages in the areas where the Madras Village-Police Regu-

nv.'nde»:'t,

lations of 1816 and 1821 (11 of 1816 and 4 of 1821) are in

1See deﬁnition of Commissioner of Police in section 4(1)(E)- ,

the' - I

force have the power to try cases of a trivial nature and impose
a mild punishment and also have certain police-powers under
those Regulations. These being special and local laws, their
provisions are already saved by section 1(2) of the Code and it
appears unnecessary to except headmen of villages again from
the general application of the Code. Clause (b) of the section
could also be omitted without affecting the existing position.

Third group of

1.19. The third category of excepted persons was "village excepted person'.

police-oﬂicers in the Presidency of Bombay", and is at present
"village police--oﬂicers in the State of Bombay as it existed imme-
diately before the lst November, 1956". This description covers
all those parts of the States of Maharashtra, Gujarat and Mysore
which went to make up the former State of Bombay. These
village police ofﬁcers are all governed by the Bombay Village
Police Act, 1867, which is clearly a special law and a local law.
There seems to be no real need for providing in clause (c) that
nothing in the Code shall apply to these village police oﬂicers.

1.20. We accordingly propose that section 1(2) should be Section 1(2)
amended to read :-- revised-

"(2) It extends to the whole of India except the State
of Jammu and Kashmir, the State of Nagaland and the tribal
areas in the State of Assam; but, in the absence of any speciﬁc
provision to the contrary, nothing herein contained shall affect
any special or local law now in force, or any special jurisdiction
or power conferred, or any special form of procedure pres-
cribed, by any other law for the time being in force . . . . . .."

1.21. Sub-section (1) of section 3 provides for the construc- S_<'«Cti0n 3 prac-
tion of references to the old Codes and other enactments repealed 'WHY 59°"-
by the Code of 1898. The general rule in section 8 of the
General Clauses Act, 1897, regarding the construction of refer-
ences to repealed enactments, would have taken care of the
matter, but for the fact that enactments passed before the passing
of that Act are not governed by that Act. Such references can-
not at present be many and sub-section (1) may be omitted as
being hardly of any practical importance. Sub-section (2)
contains rules for the construction of certain expressions which
are used in old enactments, being expressions which refer to
Magistrates or Judges under the phraseology used in the pre-1898
Codes. These rules of construction also may be regarded as
practically spent, and sub-section (2) can be safely omitted.

1.22. In the earlier Report,1 it was proposed to insert in sec- Proposed rule of
tion 3 a provision for the construction of expressions used in the °°"§''"°'i°" '0
existing enactments where those expressions refer to Magistrates earner R°p°"'
by their present nomenclature. This provision was as follows:

"In every enactment passed on or after the ﬁrst day of July,
1898 and before the Code of Criminal Procedure (Amendment)
Act, 197. .comes into force,----

(a) references to a Magistrate of the ﬁrst, second or
third class shall be construed as references to a

137th Report. paragraph 74.

Proposed rule in

Judicial Magistrate of the ﬁrst, second or third class
respectively;

(b) references to any other Magistrates, not being refe-
rences to a Presidency Magistrate, shall be construed
as references to the corresponding Judicial or Execu-
tive Magistrate as the nature of the case may require."

On further consideration we feel that the latter rule of con-
struction is too vague and unprecise to be of any practical
assistance.

1.23. We notice that the Union Territories (Separation of

U."i°n T°"i'°1'i°3 Judicial and Executive Functions) Bill, 1968, as introduced in

B111.)

cisable by Judi-
c_1a.l and Execu-
t1ve Magistrates.

Parliament contains the following clause :--

°Xer- "S. Where under any law, the functions exercisable by a
Magistrate relate to matters which involve the appre-
ciation or sifting of evidence or the formulation of any
decision which exposes any person to any punish-
ment, or penalty, detention in custody pending investi-
gation, inquiry or trial or would have the eﬁect of
sending him for trial before any court, such func-
tions shall, subject to the provisions of this Act and
the Code of Criminal Procedure, 1898, as amended
b this Act, be exercisable by a Judicial Magistrate;
and where such functions relate to matters which are
administrative or executive in nature, such as the
grant of a licence, the suspension or cancellation of a
licence, sanctioning a prosecution, or withdrawing
from a prosecufi.0I1, they shall, subject as aforesaid,
be exercisable by an Executive Magistra ."

As a broad classiﬁcation of the functions of judicial and execu-
tive magistrates and as a guide to the authorities in Union Terri-
tories when faced with the task of interpreting other laws in force
in these Territories, this provision may have some use. But on the
other hand they may not ﬁnd it easy to interpret and apply this
clause to border-line cases where the nature of the functions is
either not very clear or partly executive and partly judicial. If
any such provision is included in the Code itself and made appli-
cable, not only to laws in the central and concurrent ﬁeld, but also
to laws in the State ﬁeld, the constitutional question can be raised
whether Parliament is competent to legislate in this indirect
fashion aﬂecting State laws. In our opinion, such a provision is
more likely to raise technical diﬂiculties and problems of interpre-
tation than help to solve them.

1.24. We are proposing in the next chapter that every district
should have on the judicial side a Chief Judicial Magistrate, one
or more Judicial Magistrates of the first class and one or more
Judicial Magistrates of the second class, but need not have any
Sub-divisional Magistrates or Magistrates of the third class as at
present. On the executive side it should have a District Magistrate,
Sub-divisional Magistrates and other executive Magistrates with-
out class distinction. Presidency Magistrates will be replaced by
Metropolitan Magistrates. When the amended Code comes int_0
force in any State and the magistracy is re-organised on this

pattern, we do not apprehend that
diately arise in administering other Acts--State or Oentra1--which
contain references to magistrates. The deﬁnition of "MagisI1'ate"1
in the various General Clauses Acts as including every person
exercising all or any of the powers of a Magistrate under the Code
of Criminal Procedure for the time being in force will continue to
apply unless there is something repugnant, in the subject or con-
text. Thus a reference to a magistrate without any qualiﬁcation
may be taken to be a reference to any judicial or executive
magistrate and, until it is clariﬁed by a speciﬁc amendment made
by the competent legislature, there can be legal no obfjection to
either type of Magistrate performing the function. Re erence to
District Magistrates and Sub-divisional Magistrates are normally
to be found in connection with the discharge of executive func-
tions and since these functionaries will be found in each district,
no diﬂiculty can arise.

any grave difﬁculty will imme-

l.25. We therefore consider that the following rule of construc-
tion will be suﬂicient from the practical point of view :--

3. In every enactment

passed before the Code of Criminal
Procedure (Amendment)

Act, 197. ., comes into force,--

( a) any reference to a Magistrate of the first class shall be
construed as meaning a Judicial Magistrate of the
ﬁrst class;

(13) any reference to a Magistrate of the second class or
of the third class shall be construed as meaning a
Judicial Magistrate of the second class;

ing a Metropolitan Magistrate or Chief Metropolitan
Magistrate respectively.

1.26. -(i) The expression "Advocate General"
sections 194 and 333 both of which are
Clause (a) may accordingly be omitted.

(ii) The expression "Clerk of the State" occurs in one or two
sections relating to original trials before the High Court which
are proposed to be omitted. Clause (e) also may be omitted.

(iii) In clause (f) which deﬁnes "cognizable offence", the
words "within or without the presidency-towns" may be omitted
as the Code will extend also to the police in presidency-towns.

(iv) Clause (g) which deﬁnes "Commissioner of Police"
be omitted in view of the
in the Code applicable
dency-towns.

(v) The deﬁnition of "complaint" in
in detail in the previous Report." In view of the conﬂicting deci-
sions and uncertainty in regard to this deﬁnition and the connected
provisions in sections 173, 190, 207A and 251A of the Code, the

occurs only in
proposed to be omitted.

may
proposal to remove all special provisions
to Commissioners of Police in the presi-

clause (h) was discussed

1.5'ee e.g.. s. 332) of the General Clauses Act. 1897.
3 31th Report, para. 75 and Appendix 111.

Construction of
reference!

Magistratu
other enactments.

S°'='"'°" ilk
E§::'"%a.na.a:
and amended.

Commission recommended that the deﬁnition should make it clear
that the report made by the police on an unauthorised investiga-
tion of a non--cognizable case is a complaint. We agree with this
recommendation and propose to substitute for the words "the
report of a police olﬁcer" in clause (h) the words "a police
report". A deﬁnition of police report will have to be added in this
section}

(vi) The deﬁnition of "High Court" in clause (i) is comp-
letely out of date. For every State, there is a High Court under the
Constitution which is the highest court of criminal appeal other
than the Supreme Court. As regards the Union Territories, the
position is that the jurisdiction of a State High Court has been
extended by Parliament by law to some of them,2 and in others, a
High Court3 or a Judicial Commissioner's C0urt4 established by
law is the highest court of criminal appeal. The deﬁnition may

accordingly be as follows :--

(i) "High Court" means-

(i) in relation to any State, the High Court for that State
under the Constitution;

(ii) in relation to a Union Territory to which the jurisdic-
tion of the High Court for a State has been extended
by law, that High Court; and

(iii) in relation to any other Union, Territory, the highest
court of criminal appeal for that Territory, other than
the Supreme Court.

(vii) In clause (k) which deﬁnes "inquiry", the previous
Commission recommended a minor amendment to remove an
ambiguity, namely, to place the words "other than a trial" within

brackets.

(viii) In clause (n) which deﬁnes "non-cognizable offence"
and "non-cognizable case", the speciﬁc reference to presidency-
towns is unnecessary. The words "within or without a presidency-
town" which now occur in the deﬁnition may be omitted.

(ix) In regard to the deﬁnition of "officer in charge of a
police-station" contained in clause (p) , the Commission considered
in the earlier Report-5 a suggestion that the deﬁnition should be
amended to provide that a sub-inspector in charge, even when
out on duty in the interior. should continue to be regarded as the
ofﬁcer in charge of the police station for the purposes of the Code.
The Commission, however, felt that such a change in the deﬁni-
tion would not be suitable, since the scheme of the Code is that
at any given time there is only one oﬁicer in charge of a police

1See para. 1.27 below.

'-'Jurisdiction of the Calcutta High Court has been extended to the
Andaman and Nicobar Islands; of the Kerala High Court to the Lacca-
dive. Minicov and Amindivi Islands; of the Gujarat High Court to Dadra
and Nagar Haveli; of the Madras High Court to Pondicherry, and of
the High Court for Punjab and Haryana to Chandigarh.

3High Court for Delhi and Himachal Pradesh.

4There is a Judicial Commissioner's Court for Goa. Daman and Diu,
for Manipur and for Tripura.

5 37th Report, para. 83.

station. We agree with this View and consider that the deﬁnition
does not require any amendment.

(X) Clause (q) deﬁnes a "place" as including a house, build-
ing, tent and vessel. In the earlier Reportl reference was made
to a decision of the Supreme Court? 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 Commis-
sion was of the opinion, that the judgment of the Supreme Court
had revealed a lacuna in the deﬁnition of "place", because. as a
motor vehicle is not a place, the powers of search under various
other sections of the Code which authorise searches of a "place",
would not authorise searches of motor vehicles. The Commission
considered it desirable expressly to include vehicles in the deﬁni-
tion which would then read :--

"(q) "place includes also a house, building, tent, vehicle
and vessel;"

We agree with this recommendation.

(xi) With reference to clause (r) which deﬁnes the expres-
sion "pleader", the Commission observed' that it was unnecessary
to enumerate the various classes of practitioners and suggested
that the deﬁnition should be simpliﬁed as follows :--

"(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 proceed-
ing."

(xii) Clause (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 the Report5 on the Reform
of Judicial Administration, the Commission recommended the
substitution of "three years" for "one year" in this deﬁnition, in
order that, as a general rule, all offences which do not carry a
punishment of imprisonment for more than three years might be
triable under the summons case procedure. The main reasons for
this recommendation were that it would lead to the expeditious
disposal of a large number of cases particularly those relating to
statutory offences which are for the most part of a technical
nature; that 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; that the distinction between sum-
mons-cases and warrant-cases is arbitrary, e.g. offences under
sections 168 and 169, or offences under section 342 on the one
hand and sections 343 and 344 on the other; and that the expan-
sion of the category of summons cases as recommended would
not be prejudicial to the accused.

1 37th Report, para 84.
5'Blzagwanbhat v. State. (1963) 3 S.C.R. 386. 392 (Search under the
Bombay Prohibition Act, 1949).

3For example, sections 98(1) and 165(1).

437th Report, para. 86.

514th Report, Vol. 2, pages 723-724.

Additional deﬁ-
nitions.

Rule .4 of cons-
truction for refe-
rences_to Magis-
Rates.

The Commission, however, reached a diﬂerent conclusion in
the 37th Report for the following reasons :--

"In the ﬁrst place, expansion of the 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 dependent on an arbitrary
period (period of maximum imprisonment). Thirdly,
some of the offence----such as those under sections
153A, 295A and 465, Indian Penal Code--involve
nice questions of intention or interpretation of facts,
and the warrant-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 recommendation made in the earlier Report."

We also agree that no change is necessary in clause (w).

1.27. (i) With a view to shortening the language of some I

sections, we propose to add in section 4(1) a deﬁnition of "local
jurisdiction" as follows :--

"(n1m) 'local jurisdiction' in relation to a Court or
Magistrate, means the local area within which the
Court or Magistrate may exercise all or any of its or
his powers under this Code, and, where such local
area adjoins the sea, includes the territorial waters
extending into the sea to a distance of twelve nautical
miles measured from the coast."

Normally, the Code refers to "a Court within the local limits
of whose jurisdiction the offence was committed" (vide sections
177 to 183): it would be simpler to refer to "a Court within whose
local jurisdiction the offence was committed".

(ii) As indicated in the previous paragraph, sub-para. (v), a
clause will be necessary deﬁning "police report" as follows :--
"(rr) 'police report' means a report by a police oﬂicer to

a Magistrate under sub-section (1) of section 173."

1.28. In the next chapter we are proposing the replacement of
presidency-towns by metropolitan areas and the appointment of
metropolitan magistrates in those areas. The powers of the Chief
Metropolitan Magistrate and of the Metropolitan Magistrate will
however, with a few exceptions, be the same as those of the Chief
Judicial Magistrate and of Judicial Magistrates of the ﬁrst class
respectively. In order to avoid repetitive references to the two
categories of magistrates, we may have a rule of construction in
section 4 as follows :--

"(1A) Except in Chapter II and unless the context otherwise

requires-
(a) any reference without qualifying words to a-
Magistrate includes an Executive Magistrate as well

(b)

as a Judicial
Magistrate;

Magistrate and a Metropolitan

any reference to a Magistrate of the second class
means a Judicial Magistrate of the second class;

(d)

Judicial Magistrate of the ﬁrst class, and includes in
relation to a metropolitan area a Metropolitan
Magistrate;

any reference to the Chief Judicial Magistrate
includes, in relation to a metropolitan area, the Chief
Metropolitan Magistrate for that area.

1.29. As noted by the Commission in the previous Report, the
ﬁrst part of section 4(2) stating that "words which refer to acts
done extend also to illegal omissions" is superﬂuous in view of

section 3(2) of the General Clauses Act, 1897,

and may be

omitted. The second part, however, may remain, for the time

being.

1.30. Section 5 does not require any modiﬁcation.

Section 4(2).

Section 5.

Separation of
executive from
judiciary by
parliamentary
legislation.

Present position
:1 States.

Present Position
in Union terri-
torles.

CHAPTER II
CONSTITUTION OF CRHVIINAL COURTS AND OFFICES

2.1. The problem of separating the executive from the judi-
ciary has been fully discussed1 in the previous Report. The
Commission recommended? that this separation should be effect-
ed by central legislation and we entirely agree with this recom-
mendation. It is Very desirable that the uniform Code of Cri-
minal Procedure which has been evolved in the course of a
century, should not be allowed to take different forms in dif-
ferent States. The set-up of criminal courts, the distinction
between judicial and executive magistrates and their respective
functions under the Code should, in our view, be the same in
all the States and should be clearly laid down in the Code itself
instead of being regulated as at present by executive orders in
some States and special State legislation in others.

2.2. Madras was the ﬁrst State to work out a comprehen-
sive scheme of separation of the judiciary from the executive and
to initiate the reform even before the passing of the Constitu-
tion." Pursuant to the directive principle of state policy laid
down in article 50 of the Constitution, the States have been taking
steps to form separate cadres of judicial magistrates, place them
under the control of the High Court and make them independent
of the executive. In as many as seven States, viz., Maharash-
tra, Gujarat, Jammu and Kashmir, Mysore, Punjab, Haryana and
West Bengal, the separation of the judicial magistrates from
the executive magistrates has been brought about by amending the
Code. In West Bengal, however, the recently passed Separa-
tion of Judicial and Executive Functions Act, 1968, has so far
been brought into force only in the presidency-town of Calcutta
and in Hooghly District. In the other States (except Nagaland
where the Code itself is not operative), separation of ftmctions
has been effected to a varying extent by executive orders on the
lines originally adopted in Madras. It appears to be complete
in Andhra Pradesh, Assam (excluding the autonomous districts
and the North East Frontier Tracts, where again the Code is
not operative), Bihar, Kerala, Madras, Orissa and Rajasthan.
The scheme is in operation in the greater part of Uttar Pradesh
and Madhya Pradesh and it is only a question of time and of
ﬁnding the requisite number of qualiﬁed judicial oﬂicers before
it is brought into operation throughout these two States.

2.3. As regards the Union territories, Chandigarh and a
good part of Himachal Pradesh are covered by the Punjab Act.
Executive orders, similar to those passed in Madras, are in
force in Pondieherry. A bill to provide for the separation of
executive and judicial functions in the Union territories other
than Chandigarh has been recently passed by Parliament, and

1 37th Report paras. 32 to 62.
1' 37th Report para. 49.
3S'ee 14th Report, Vol. II, page 851.

'that in Bombay,

the Act is expected to be brought into force and implemented in
all the territories fairly soon.

2.4. We do not apprehend any serious practical difficulty in
giving effect to the scheme of separation on a uniform basis by
a central amendment of the Code. In areas where separation of
the executive has not been effected, steps should be taken to
do so by means of executive orders as in Madras. In 311t1C1Pa'
tion of such central amendment.

2.5. The previous Report recommended1 that this aiiiendiiicnt
should provide for a broad classiﬁcation of Courts of Magistrates
into Courts of Judicial Magistrates and Courts _of Executive
Magistrates, for a further classification of Judicial Magistrates
as Presidency Magistrates, Chief Judicial Magistrates, Judicial
Magistrates of the ﬁrst class, Judicial Magistrates of the second
class, Judicial Magistrates of the third class and Special Judicial
Magistrates, and for a parallel classiﬁcation of Executive Magis-
trates as District Magistrates, Sub-divisional Magistrates. Execu-
tive Magistrates of the ﬁrst class, Executive Magistrates of the
second class, Presidency Magistrates especially empowered by
the State Government and Special Executive Magistrates. We
consider that any such elaborate classiﬁcation is unnecessary and
that a simpler scheme for the set-up of Courts in all the States
is both desirable and feasible.

2.6. As regards the Executive Magistrates, we do not see
any point in maintaining the distinction of ﬁrst and second
class. The functions to be performed by Executive Magistrates
under the Code are very few and they hardly admit of being
divided into more important functions that will have to be
performed by Executive Magistrates of the ﬁrst class and less

'important ones that could be left to junior magistrates put in

the second class. In fact, the day-to-day, routine work of an

'executive magistrate under the Code arising in any sub--division

more than one officer to handle. We notice
according to the amendment of the Code made
in 1951, executive magistrates are not divided into those of the
ﬁrst class and of the second class nor is there a division of func-
tions between senior and junior magistrates. Provision is
made for a category designated Taluka Magistrates who are
presumably subordinate revenue officers in charge of talukas.
We propose that there need be only one class of executive
magistrates under the Code, that the chief officer in charge of
the administration of the district (whether known as District
Collector, District Oﬂicer or Deputy Commissioner) should
continue, as at present, to be the District Magistrate, and that
the institution of Sub-divisional Magistrates on the executive
side should also be retained. If there is need for an executive
magistrate at the taluka or tahsil level in any State, an executive
or revenue officer of the Government can be appointed simply
as Executive Magistrate to exercise functions under the Code.

2.7. As regards the classes of Judicial Magistrates, the view
was expressed in the previous Report'-' that the institution of
third class magistrates might be necessarv for purposes of
training and its retention was recomrnended. We. however. find

may not require

1 37th -Rep-ort paras. 94 to 103, new Section 6A.
'3IbI'd. para. 93.

No practical difﬁ-
culty in central
amendment of
Code.

Classiﬁcation of
Magistrate in
previous Report
too elaborate.

Executive Magis-
trates.

Judicial Magis-
trates ---- abolition
of third class
recommened

that in many States there are no magistrates of the third class
at all. In the States where separation of the executive from
the judiciary has been effected, civil judicial flmctions and:
magisterial functions are ordinarily combined in the same officer
and, even for purposes of initial training it is hardly necessary
that a civil judge or munsif should start with the very limited
jurisdiction and powers now available to a magistrate of the
third class under the Code. We are of the opinion that this-
class could be safely abolished.

Chief Judicial 2.8. In the previous Report1 it is recommended that in'
xggsiggfﬁa f°' every district there should be a Chief Judicial Magistrate, mainly
' to take the place of the District Magistrate on the judicial side
and to exercise proper supervision and control over the work
of all other judicial magistrates in the district. This has been
provided for in the Punjab Act and we have no doubt that this
is a better system than the Bombay system under which all
judicial magistrates are directly subordinate to the Sessions
Judge. Because of the diverse and important nature of the work
which the District and Sessions Judge has to do, he has little
time to spare for inspecting magistrates' courts and giving guid-
ance to them in their work. We are of the opinion that this
important task can be performed best by a Chief Judicial Magis-
trate who will naturally be in closer touch with the judicial
magistrates in the district than the Sessions Judge.

N0 need for SU_b- 2.9. There, however, appears to be no need for a special

g_ia"ti:;°8'u1di'c'i:5"' category of Sub--divisional Magistrates on the judicial side. We
notice that in the eastern States, particularly Bihar and West
Bengal, where the revenue districts are large and the Sub-
divisional system of administration is of long standing, the Sub-
divisional Magistrate coordinates and distributes the work among
the other magistrates working in the sub-division and exercises
a certain measure of superintendence over them. In these States
wherever considered necessary, an Additional Chief Judicial
Magistrate may be posted at sub-divisional Headquarters. Provi-
sion for the appointment of one or more Additional Chief Judicial'
Magistrates in a district has been recommended in the previous
Report and we think that this category of senior and experienced
magistrates could be utilised to serve the same purpose as Sub-
divisional Magistrates do at present in these States.

P1'°P°5°d, 5°""I3 2.10. We accordingly propose that in every district (outside
8gm_mMi:3:§§m'?-'£2 the presidency--towns) it is suﬂicient to have three categories of
' magistrates, namely, Judicial Magistrates of the first class, Judi-
cial Magistrates of the second class and Executive Magistrates.
Every district will have a Chief Judicial Magistrate who will
have all the powers of a Judicial Magistrate of the ﬁrst class
and certain additional powers which we shall discuss in the next
chapter. Where found necessary, one or more Judicial Magis-
trates of the ﬁrst class may be appointed as Additional Chief
Judicial Magistrates. On the executive side there will continue
to be the District Magistrate at the head, Additional District
Magistrates to the extent found necessary in large districts and
Sub--divisional Magistrates as at present.

137th Report, para. 99.

2.11. In the previous Report1 as well as in the earlier
Fourteenth Report} the Law Commission has recommended the
continuance of the special class of judicial magistrates _known
as Presidency Magistrates flmctioning in the three presidency-
towns. At the same time, the Commission stressed3 that only
persons of special merit should be appointed as Presidency
Magistrates. The high standard for recruitment to this cadre
which prevailed until not very long ago is apparently not being
maintained, which is unfortunate. However, we agree that the
administration of criminal justice in large cities requires a
measure of special treatment. The magistrates there ought to
be better qualiﬁed and more competent to deal expeditiously
with sophisticated crimes, particularly in the socio-economic
ﬁeld, which are more common in the cities. Apparently from
this point of view, Gujarat found it necessary to have special
magistrates for the city of Ahmedabad and enacted the Ahmeda-
bad City Courts Act, 1961, under which the City Magistrates
were equated in all respects with the Presidency Magistrate of
Bombay. Other large cities like Delhi, Bangalore and Hydera-
bad might hereafter feel the same need.

2.12. We therefore propose that the institution of Presidency
Magistrates should be maintained in the Code. Presidencies
having disappeared from the political map of India more than
30 years ago, it is archaic to refer to Calcutta, Bombay and
Madras as "presidency-towns", and it will be a misnomer to
call other large cities by that name. These areas may more
appropriately be referred to as "metropolitan areas" and the
special class of magistrates functioning therein as "Metropolitan
Magistrates".

2.13. It should be provided in the Code that a State Gov-
ernment may by notiﬁcation declare any area in the State com-
prising a city whose population exceeds one million to be a
metropolitan area, and then set up as many Courts of Metro-
politan Magistrates for that area as it thinks ﬁt. The State
Government should have the power to extend, reduce or alter
the boundaries of the area from time to time as changed circums-
tances may require, but not in such manner as to reduce its
population to less than one million. The three presidency-
towns and the city of Ahmedabad would automatically become
metropolitan areas under the proposed amendment. As regards
the city of Calcutta, we have pointed out the anomaly that exists
at present purely on account of historical reasons. The original
limits of this "presidency-town" still form the limits of the local
jurisdiction of the City Sessions Court and of the Presidency
Magistrates' Courts despite the enormous growth of the city.
It would be open to the State Government to extend the limits
of the "metropolitan area" of Calcutta by a notiﬁcation under
the new provision and thereby to remove the anomaly, either
completely, or to such extent as may appear to be desirable.

2.13a. In the presidency-towns there are at present no
oﬁicers corresponding to District Magistrates and Sub-divisional
Magistrates, although under section 7(4) every presidency-town

1 37th Report, paras. 69 and 101.
214th Report. Vol. II. page 801.
337th Report, para. 69.

Presidency magis-

ates.

Name' to be
changed.

Power to declare
metropolitan ,4
areas and set up
Metropolitan
Magistrates'
Courts.

Executive Magis-
trates in Metro-
Politan areas.

'[erritoria] divi-
SIODS.

Sub-divisions in
metropolitan
areas.

Revised section 6,
7 and 8.

Classes of crimi-
nal courts.

is deemed to be a district for the purpose of the Code. In
Bombay, some presidency magistrates are specially invested with
the powers of an executive magistrate under the Code. There
seems to be no good reason for making this distinction in regard
to metropolitan areas. As every such area will be a separate
district, it may have the same set-up on the executive side as
any other district. and the functions of the Metropolitan Magis-
trates under the Code may be exactly the same as those of Judi-
cial Magistrates in any other district.

214. Sections 7 and 8 deal with the territorial divisions of
a State (which term includes a Union territory) for the purposes
of administering criminal justice. Although sub-section (1) of
section 7 provides that "every State (excluding the presidency-
towns) shall be a sessions division, or shall consist of sessions
divisions". the exclusion has become meaningless after the esta-
blishment of City Sessions Courts under special State Acts.
Each of the presidency-towns is now 21 sessions division for the
purposes of the Code and the State Acts have made the requisite
amendment in the sub-section. For instance, as amended by
Bombay Act 23 of 1951, the sub-section reads, "The State of
Bombay shall consist of sessions divisions; and every sessions
division shall, for the purposes of this Code, be a district or
consist of districts." Sub-section (4) of section 7 already pro-
vides that every presidency-town shall be deemed to be a dis-
trict, with the result that at present every presidency-town is a
district as well as a sessions division, and the rest of the State
in which the presidency-town is situated has to be divided by
the State Government into one or more sessions divisions and
each sessions division into one or more districts.

2.15. Under sub-section (1) of section 8, a presidency-town
may not be divided into sub--divisions, but the State Government
is authorised to divide other districts into sub-divisions. There
appears to be no good reason for this special exclusion of
presidency-towns in regard to a purely discretionary power. It
is quite conceivable that in an area declared to be a "metro-
politan area" in future, the State Government may ﬁnd it con-
venient to create sub-divisions and to appoint Executive
Magistrates separately for such sub-divisions.

2.16. We propose, in the light of the foregoing discussion,
the following revised provisions in place of the existing aections
6, 7 and 8 of the Code :--

"6. Besides the High Courts and the Courts constituted
under any special law, there shall be in every State the following
classes of Criminal Courts. namely :--

(i) Courts of Session;

(ii) Judicial Magistrates of the ﬁrst class;

(iii) Judicial Magistrates of the second class;
and

(iv) Executive Magistrates,

and in addition, in every State having a metropolitan area,

Metropolitan Magistrates.

"7. (l) Every State shall be a sessions division or shall
consist of sessions divisions; and every. sessions Qlivision shall,
for the purposes of this Code, be a district or consist of dis-
tricts. :

Prexidcd that every metropolitan area shall, for the said
purposes, be a separate sessions division and district.

The State Government. in consultation with the High
Court. may alter the limits or the number of such divisions and
district.

(F) The State Government may divide any district into

sub-dixisions and may alter the limits or the number of such
sub-di\E<ions.

(4) The sessions divisions, districts and sub--divisions exist-
ing in State when the Code of Criminal Procedure (Amend-
ment) Act, l97. comes into force therein shall be deemed
to have been formed under this section.

8. -(1) The State Government may, by notiﬁcation in the
Oﬁﬁcial Gazette, declare that, as from such date as may be
speciﬁed in the notiﬁcation, any area in the State comprising
21 city whose population exceeds one million shall be a metro-
politan area for the purposes of this Code.

(2) As from the commencement of this Code, each of the
presidency-towns of Bombay, Calcutta and Madras and the city
of Ahmedabad shall be deemed to be an area notiﬁed under
sub-section (1) to be a metropolitan area.

(3) The State Government may, by notiﬁcation in the Offi-
cial Gazette, extend, reduce or alter the limits of, a metro-
politan area, but not in such manner as to reduce its population
to less than one million."

2.17. Section 9 provides for the establishment of a Court
of Session for every sessions division and for the appointment
of judges to that Court. As the section stands at present, it is
the duty of the State Government to establish the Court of
Session and to appoint the Sessions Judge. The State Govern-
ment ix; further empowered to appoint Additional and Assistant
Sessions Judges to exercise jurisdiction in the Court, to appoint
the Sessions Judge of one sessions division to be at the same
time and Additional Sessions Judge of another sessions division
and to direct at what place or places the Court shall ordinarily
hold its sittings.

2.18. In the State of Assam v. Ranga Muhammad} the
Supreme Court decided that the transfer of "district judges"
already in the cadre from one district to another in the State
must be regarded as part of the "control over district courts"
referred to in article 235 of the Constitution and as such. the
power to direct such transfers is vested exclusively in the High
Court. Such transfers and the "postings" involved therein are
outside the scope of the power conferred on the Governor of

l(l967) 1 SCR. 454: A.l.R. 1967 SC. 903.

Territorial divi-
sions.

Metropolitan
areas.

Appointment of
Sessions Judges.

Constitutional
position.

Oommission's
previous recom-
mendation.

Connotation of
"appoint" in sec-
tion 9.

the State by article 233. The word "posting" may mean either
the stationing of an employee at a particular place or the
assignment of an appointee to a particular position or job.
According to the Supreme Court, the word "posting", occurring
as it does in association with the words "appointment" and
"promotion", clearly bears the second meaning. "These words
indicate the stage when a person ﬁrst gets a position or job and
'posting' by association means the assignment of an appointee
or promotee to a position in the cadre of district judge."

2.19. In view of this decision, the Law Commission took
up for urgent consideration the question whether section 9
required to be modiﬁed in order to bring it into line with the
Constitution and made its recommendation in the 32nd Report-
Brieﬂy put, the Commission took the view that all the functions
in relation to a Court of Session, except its initial establishment,
and in relation to the Judges of the Court mentioned in section 9,
are functions of "control over the district courts" and conse-
quently the relevant powers must be vested in the High Court.
It recommended that sub-section (1) of section 9 should be
split into two parts, the ﬁrst stating that "the State Government
shall establish a Court of Session for every sessions division",
and the second stating tha "the High Court shall appoint a
Judge of such Court". In the other sub-sections of section 9,
"High Court" should be substituted for "State Government".

2.20. We have considered the awkwardness involved in
making the High Court the competent authority for "appointing"
the Sessions Judges, Additional Sessions Judges and Assistant
Sessions Judges under sub-sections (1) and (3) of section 9.
The two sub-sections when so worded, will strike one as being
inconsistent with article 233, but the inconsistency is more
apparent than real. We have to understand the "appointments"
referred to in section 9 of the Code, not as the ﬁrst appoint-
ment to the cadre of Sessions Judges, Additional Sessions
Judges or Assistant Sessions Judges, but as the process of assign-
ing or posting oﬂicers already in the cadre to a speciﬁed Sessions
Court. It is not easy to ﬁnd a more appropriate expression
than "appoint" for the purposes of section 9, and since the
section will have to be read and construed in the light of
article 233, no practical or legal diﬂiculty can arise by using

the word "appoint".

22021. It has been brought to our notice that occasionally,
owing to the sudden transfer or demise of the Sessions Judge
and delay in the choosing and posting of his successor, the
sessions division remains without a Judge for a considerable
period causing great hardship and inconvenience to the public.
Section 17(4) which enable the Sessions Judge to make provi-
sion for the disposal of urgent applications "when he himself
is unavoidably absent or incapable of acting" cannot obviously
be pressed into service in this contingency as the previous
incumbent has ceased to be the Sessions Judge and there is no
one in the sessions division to make the necessary formal order.
It appears desirable that an express provision should be included

1State of Assam v, Ranga Muhammad, (1967) 1 S.C.R. 454; AIR.
1967 S.C. 903. . _

in section 9 enabling the High Court to take action in such a
contingency.

2.21. We accordingly propose that section 9 be revised to
read as follows 1--

"9. (1) For every sessions division, there shall be a Court
of Session, the Judge of which shall be appointed by the High
Court.

(2) The Court of Session shall ordinarily hold its sitting at
such place or places as the High Court may by notiﬁed order
specify; 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
session 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 exercise jurisdiction in
a Court of Session.

(3) The 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.

1(5) Where the oilice of the Sessions Judge is vacant, the
High Court may make provision for the disposal of any urgent
application by an Additional or Assistant Sessions Judge,
or, if there be no Additional or Assistant Sessions Judge, by a
Chief Judicial Magistrate, in the sessions division; and such
Judge or Magistrate shall have jurisdiction to deal with any such
application."

2.22. Sections 10 to 13 provide for the appointment in each
district of the District Magistrate, Additional District Magistrates,
Sub-divisional Magistrates and other Subordinate Magistrates and
for deﬁning the local limits of their jurisdiction. In order to imple-
ment the scheme of separation of executive magistrates from the
Judicial Magistrates, the provisions for the appointment of these
two distinct categories of magistrates will have to be separate.
Those relating to judicial magistrates may be as follows :--

"l0. (1) In every district (not being a
area), there shall be established
Magistrates of the ﬁrst class and of the second class, and
at such places, as the State Government may, in consultation
with the High Courts, notify in the Official Gazette.

shall be

metropolitan
as many Courts of Judicial

(2) The presiding oﬂicers of such Courts
appointed by the High Court.

A 11. (1) In every district (not being a metropolitan area),
the High Court shall appoint a Judicial Magistrate of the
ﬁrst class to be the Chief Judicial Magistrate.

1Existing sub--section (5) of section 9 has been omitted as being Spent
and no longer necessary

Court of session .

Section 10 to 13-

Provisions
appointment

Judicial

for
of
Magis-

trates separated.

Courts of Judicial
Magistrates.

Chief

Judicial

Magistrate and
Additional Chief

Judicial
trate.

Magis-

Application of
articles 233 to 235
to Judicial Magis-
trates recommen-
ded.

Number and lo-
cation of courts
to be determined
by State Govem-
ment in consul-
tation with High
Court.

Section 14-Special
Executive Magis-
trates not re-
quired.

Special Judicial
Magistrates.

(2) The High Court may appoint any Judicial Magis-
trate of the first class to be an Additional Chief Judicial
Magistrate and such Magistrate shall have all or any of the
powers oi a Chief Judicial Magistrate under this Code or
under any other law for the time being in force as the High
Court may direct."

In these two sections also, the word "appoint" will bear
the same connotation as in section 9 namely, the assignment of
judicial officers in the cadre of magistrates to particular districts
and investing them with the powers of :1 Judicial Magistrate of
the first or second class or with the powers of a Chief Judicial
i\l:igistrate. as the case may be.

_._3. The separation of the executive from the judiciary will
be eifective only when the judicial magistrates are brought under
the control of the High Court and this can be readily achieved
by action under article 237 of the Constitution. The provisions
of articles 233. 234 and 235 should be made applicable by a
public notification of the Governor to all judicial magstrates in
the State. We note that this action has already been taken in

some States.

2.24. It will be observed that in the revised section 10 above,
the power to determine the number of courts of Judicial Magis-
trates of either class and their location is left to the State
Government since it will have to take into account various
administrative and ﬁnancial considerations. The State Govern-
ment, however. is required to exercise this power in consultation
with the High Court in order that an adequate number of
magistrates' courts is established in all districts and at suitable

places.

2.25. With regard to Special Magistrates dealt with in section
14 of the Code, the previous Report of the Commission recom-
mended1 that there might be two categories, Special Judicial"
Magistrates and Special Executive Magistrates. On reconsidera-
tion. we do not think that there is likely to be any need for the
latter, since the functions devolving on the Executive Magistrates
under the revised Code are going to be very limited and, in any
event. the State Government will have the power to appoint as
many Executive Magistrates as it ﬁnds necessary for performing
those functions. As recommended1 in the previous Report. the
High Court should be the only authority to appoint Special Judi-
cial Magistrates in any district or Special Metropolitan Magis-
trates in any metropolitan area, and with this transfer of power
to the High Court. sub-sections (3) and (4) of the existing
section l4 are not necessary. The section may accordingly be
revised follows and placed after the revised section 11

above :--

"l2. (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 may be pre-
scribed b the High Court in this behalf all or any of the
powers conferred or eonferrable by or under this Code on a

"r')

1 37th Report. para 119.

Judicial Magistrate of the ﬁrst class or of the second class,
in respect to particular cases or to particular classes of cases
or to cases generally, in any district not being a metropolitan
area.

(2) Such Magistrates shall
Magistrates and shall be appointed for such term as the
Court may by general or special order direct."

2.26. Under section 12 the local limits of the jurisdiction of
subordinate magistrates are deﬁned by the State Government, or,
subject to its control, by the District Magistrate. So far as Judi-
cial Magistrates, including Special Judicial Magistrates, are con-
cerned, this power may be given to the Chief Judicial Magis-
trates subject to the control of the High Court. The revised sec-
tion may be as follows :---

"l3. (1) Subject to the control of the High Court, the
Chief Judicial Magistrate may from time to time deﬁne the
local areas within which the Magistrates appointed under
section 10 or under section 12 may exercise all or any of the
powers with which they may be invested under this Code.

(2) Except as otherwise provided by such deﬁnition,
the jurisdiction and powers of such Magistrates shall extend

throughout the district."

be called Special Judicial
High

2.27. Section 15 provides for the formation and functioning
of Benches of magistrates in a very general way. In practice,
however, Benches are only formed of Honorary Magistrates, i.e.,
persons who are appointed as Special Magistrates under section
14, and Stipendiary Magistrates are never asked to sit together
as a Bench. As an institution, Benches of Honorary Magistrates
are not much in favour but, provided the right type of educated
and public--spirited persons come forward for rendering this ser-
vice to the community and are chosen and appointed by the High
Court, they can certainly give much valuable assistance to the
hard-worked Stipendiary Magistrates. We would, therefore,
retain the section in a simpliﬁed form. The power to form
benches may be vested in the Chief Judicial Magistrate subject
to the control of the High Court. It is hardly necessary to
provide for the formation of a bench consisting of some Special
Magistrates invested with ﬁrst class powers and some Others with
second class powers. Looking at it from the practical point of
view, such a Bench is not usually formed; and in fact it does not
appear to be very desirable that it should be formed and invest-
ed with the powers of a Judicial Magistrate of the ﬁrst class.

2.28. Under section 16 the power to frame rules for the
guidance of Benches is conferred on the State Government as
well as on the District Magistrate subject to the control of the
State Government. It is proposed that this power should be
with the Chief Judicial Magistrate subject to the control of the
High Court.

2.29. Sections 15 and 16 may accordingly be combined and
simpliﬁed as follows :--

"l4. (1) Subject to the control
Chief Judicial Magistrate may direct

of the High Court, the
any two or more Special

Section 12--Loca1
jurisdiction of
Judicial } Magis-
trates.

Local jurisdiction
of Magistrates.

Section 15--Ben-
ches_ of Judicial
Magistrates.

Section 16.

Section 15 and 16
combined and
simpliﬁed.

B_enches of Judi-
cial Magistrates.

Judicial Magistrates of the same class to sit together as 5,
Bench for trying Cases, and every such Bench shall, for the
purposes of this Code, be deemed to be a Judicial Magis-
trate of that class.

(2) Subject to the control of the High Court, the Chief
.lLt(llClal Magistrate may make rules for the guidance oi' such
Benches as respects--

('at tlie classes of cases to be lI'lL'.t;
("oi the times and places of sittine;
(e) the constitution oi" the Bench for etiiiftictitig trials:

':'l) the mode of settling (lliiCl'CflCCi» of opittiwn vrlticlt
may arise between the Magistrate in s:~~:sion."
Section 1.31021. 2.30. Seetioiis lb' to Zl deal with the courts of Presidene_\
§'$':>"'iVSil':>tI;SI'C\]'i.~ct'- m2z;_*-istrate; on 'liﬂnes not veijv dillerent from those atl-opted 'in
Mag¥m'm'Lj:'P""" S€.CIl(".}!l'H to 13 in regard to courts of 11135:} ates in the dis~
Count' tricts. x.\e have recommended aoove that, alter the t'L'\"lS10n of
the Code, the three Presidency Ma9,istrates' Courts and the
/\lllT1CClEll')£iCl City Magistrates' Court should be known as Courts
of Metropolitan Magistrates. At present articles 233. 234 and
235 of the Constitution apply only in relation to the Chief Pre-
sidency Magistrate and the Additional Chief Presidency Magis-
trate (vii./c deﬁnition oi' "district judge" in clause (a) or' articles
236). and not in relation to the other Presidency Magistrates
and their Courts (even if the latter could be 1'C_Z1t1'dC(.l as Courts.
diflerent from the Court of the Chief Presidency Magistrate or
the Court of an Additional Chief Presidency l'vlagistrate). When
the Code is revised and Presidency Magistrates are replaced by
Metropolitan Magistrates. it will naturally be necessary for the
Governor to issue a public notiﬁcation under article -37 direct-
pnlication of articles 233, 234 and 235 to all Metropo-

ing the a
litan Ma.

R€'«5<»C'~3ScC1i0It-3. 2.3l. in lieu of existing section 18 to 21 of the Code. the
following! sections may be put in this Chapu'_er. inunediately after
the revised section 14- proposed above :--

E§',"i'f"'~'\"'l "15. (l) in every Metropolitan area there shall be

tm1;7:_' ' "°"' estahlislted as ntany Courts of Metropolitan Magistrates. and

at such places, as the State Government 1na_v. in consultation
with the ligzli Court, notify in the Oilicial (laizette.

(Ill The presiding oﬁicers of such Courts shall be
appointed lay the High Court.

16. ill The High Court shall appoint a \«i.i,i':m-Alitzttt
Magi~trate to be the Chief Metropolitan ;'\l;tgis«.ra.»t- for the
area.

'2) The High Court may appoint any Metropolitan
Nlaeistrate to be an Additional Chief lvi-::tropmitan Magis-
trate and such Magistrate shall have all or any of the powers
of a Chief Metropolitan Magistrate under this Code or under
any other law for the time being in force as the High Court
may direct.

17. (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 may be pres-
criberi by the High Court in this behalf, all or any of the
powers conferred or conferrable by or under this Code On a
Metropolitan Magistrate in respect to particular cases or to
particular classes of cases or to cases generally, in any metro-
politan area.

(Zi) Such Magistrates shall be called Special Metropo-
litan Magistrates and shall be appointed for such term as the

High Court niay by general or special order direct.

E8. (1) Subject to the control of the High Court, the
Chief Metropolitan Magistrate may direct any two or more
Special Metropolitan Magistrates to sit together as a Bench
for trying cases and every such Bench shall, for the purposes
of Code. be deemed to be a Metropolitan Magistrate.

( 2) Subject to the control of the High Court. the-. Chiet
Metropolitan Magistrate may make rules for the guidance or

such Benehts as respec'.s----

(a) the classes of cases to be tried;
('oi the times and places of sitting:
(C) the constitution of the Bench for conducting trials;

(ti) the mode of settling diﬁcrences of opinion which
may arise between the Magistrates in session."
the

2.32. The appointment of Executive Magistrates and

deﬁnition of their local jurisdiction may be provided for sepa-
rately in two sections as follows :--

"I9. (l) In every district, the State Government may
appoint as many persons as it thinks fit to be Executive
Magistrates and shall appoint one of them to be the District
Magis:ratc.

(2) The State Government may appoint any Executive
Magistrate to be an Additional District Magistrate, and such
Addi{iOl'l£ll District Magistrate shall have all or any 01 the
powers of a District Magistrate under this Code or under
any other law for the time being in force as the State Gov-
ernment may direct.

(_3') The State Government may place an Executive
Mag "traits in charge of a sub--division and relieve him of the
cli;_. _ " as occasion requires. Such Magistrate shall be called
Slll7---.'ll\'lSlOnal Magistrates.

(l) Subject to the control of the State Government,
zlie Dlslflct Magistrate may from time to time deﬁne local
areas within which Executive Magistrates inay exercise all or
ii': (t3f)dt(l:ie po *ers with which they may be invested under
1 53- g ( _

Except as otherwise provided by such deﬁnition,
the jurisdiction and powers of such Magistrates shall extend
throughout the district."

Special Metro-
politan I Magis-
trates.

Benches _ of
Metropoliiaii
Magistiatcs.
Pi'ovisioiis for

Executive Magis-
lfiltcsi

E.\:€Ct'tl\C Magis-
iratcs.

Local limits of
E.\'€Cil!lVC Magis-
traties' .lUl'lSdlC~
tion.

Section 11 omit-
ted.

Section 17 re-
placed by four
new sections.

Subordination of
Assistant Ses-
sions Judges.

Subordination of
Judicial Magis-
trates.

Subordination of
Metropolitan
Magistrates.

Subordination of
Executive Magis-
tr-ates.

2.33. We do not think that a provision similar to section 11

is practically necessary. Even if a temporary hiatus in the
office of a District Magistrate is allowed by the State Gov-
ernment to occur, which itself is unlikely, it will not be very
material so far as his functions under the Code are concerned.

2.34. Reverting to existing section 17 of the Code which
deals with the subordination of Courts, it is proposed, for the
sake of greater clarity, to replace it by four sections as
follows :--

"2l. (1) All Assistant Sessions Judges shall be subordi-
nate to the. Sessions Judge in whose Court they exercise
jurisdiction.

(2) The Sessions Judge may, from time to time, make
rules consistent with this Code as to the distribution of busi-
ness among such Assistant Sessions Judges.

(3) The Sessions Judge may also make provision for the
disposal of any urgent application, in the event of his absence
or inability to act, by an Additional or Assistant Sessions
Judge, or, if there be no Additional or Assistant Sessions
Judge, by the Chief Judicial Magistrate, and such Judge or
Magistrate shall have jurisdiction to deal with any such
application.

22. (1) Chief Judicial Magistrates shall be subordinate
to the Sessions Judge; and all Judicial Magistrates shall,
subject to the general control of the Sessions Judge, be sub-
ordinate to the Chief Judicial Magistrate.

(2) The Chief Judicial Magistrate may, from time to
time, make rules' or give special orders consistent with this
Code as to the distribution of business among such Magis-
trates and Benches.

23. (1) All Metropolitan Magistrates, other than the
Additional Chief Metropolitan Magistrates, shall be subordi-
nate to the Chief Metropolitan Magistrate.

(2) The High Court may, for the purposes of this Code,
deﬁne the extent of the subordination, if any, of the Addi-
tional Chief Metropolitan Magistrates to the Chief Metro-
politan Magistrate.

(3) The Chief Metropolitan Magistrates may, from time
to time, make rules or give special orders consistent with this
Code as to the distribution of business among Metropolitan
Magistrates and as to allocation of business to Additional
Chief Metropolitan Magistrates.

24. (1) All Executive Magistrates, other than Addi-
tional District Magistrates, shall be subordinate to the
District Magistrate, and every Executive Magistrate
(other than a Sub-divisional Magistrate) exercising powers
in a sub--division shall also be subordinate to the Sub-
divisional Magistrate, subject, however, to the general con-
trol of the District Magistrate,

(2) The District Magistrate may, from time to time,
makes rules or give special orders consistent with this Code

as to the distribution ot business among the. Executive Magis-
trates subordinate to him and as to allocation of business to

an Additional District Magistrate."

2.35. Section 22 empowers the State Government to appoint
Justices of the Peace and section 25 declares the Judges of High
Courts, Sessions Judges, District Magistrates and Presidency
Magistrate to be Justices of the Peace ex-ofﬁcio. In the previous
Report, the Commission rccornmendedl that the appointment Of
Justices of the Peace under section 22 should be made in con-
sultation with the High Court and that such Justices should be
citizens of India. While we agree with the latter recommenda-
tion, we do not think it necessary that the High Court should be
consulted in regard to appointments to an office the lunctions of
which are not essentially, or even mainly, of a judicial character.

At present, except in Bombay and West Bengal, the powers
and duties of a Justice of the Peace are not deﬁned by law. We
agree that this lacuna in the Code should be ﬁlled as recom-

mended'-' in the previous Report.

Under section 25, Judges of the High Court are, at present.
ex-ofﬁcio Justices of the Peace for the while of India. We
think that it is not necessary to retain this part of the section,
as being Justices of the Peace does not add to the dignity of
Judges of the High Court. We do not think it necessary to add
to the list of ex~0fﬁcio Justices of the Peace as recommended

in the previous Report.3

In lieu of sections 22 and 25, the following sections may be
included in this Chapter 2---

"25. (1) In virtue of their respective ofﬁces, Sessions
Judges, Chief Metropolitan Magistrates, Chief Judicial
Magistrates and District Magistrates are Justices of the Peace
within and for the whole of the State in which they are

serving.

(2) The State Government may, by notiﬁcation in the
Ofﬁcial Gazette, appoint any person resident in the State,
being a citizen of India, to be a Justice of the Peace within
and for the local area speciﬁed in the notiﬁcation.

26. (1) A Justice of the Peace shall have, within the
area for which he is such Justice, the power of arrest confer-
red on a police officer by section 54 and on an oiﬁcer-in-
charge of a police station by section 55.

(2) A Justice of the Peace making an arrest in exercise
of any such power shall forthwith take or cause to be taken
the person arrested before the oﬂicer--in-charge of the nearest
police station and furnish such officer with a report as to the
circumstances of the arrest; and such ofﬁcer shall thereupon
re-arrest the person.

137th Report, para. 138.
237th Report, paras. 139 and 140.
337th Report. para. 142.

Section 22 and
25-Justices of the
Peace.

Justices of the:
Peace.

Powers of Justices
of the Peace.

(3) A Justice of the Peace shall have, within such area,
power to call upon any police oﬂicer to aid him--

(a) in taking or preventing the escape of any person
who has participated in the commission of any cog-
nizable otfence or against whom a reasonable com-
plaint has been made or credible information has
been received or a reasonable suspicion exists of
his having so participated;

(b) in the prevention of crime in general and, in parti-
cular, in the prevention of a breach of the peace or
a disturbance of the public tranquility.

(4) Where a police oﬂicer has been called upon by a
Justice of the Peace to render aid under sub--se:tion (3),
such call shall be deemed to have been made by an authority
competent to make the call.

(5) Subject to such rules as may be made by the State
Government, a Justice of the Peace for a local area may,
when so requested in writing by a police OfllCCI' investigating
an offence committed within that area, record any statement
made by a person in respect of whom an offence affecting
the human body is believed to have been committed, being a
statement relating to the circumstances of the otlence or of
the transaction which resulted in the offence. Such state-
ment shall be recorded in the manner hereinafter prescribed
for recording the evidence of a witness in the trial of a
warrant case.

(6) A Justice of the Peace for any local area, not being
a legal practitioner, may, in accordance with such ruies as
may be made by the State Government----

(a) issue a 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, any document so veriﬁed
shall be deemed to be duly verified, and any document so
attested shall be deemed to have been attested by a Magis-
trate."

CHAPTER III
POWERS OF COURTS

3.1. Under section 28, any offence under the Indian Penal
Code may be tried by the High Court, and under section 29,' any
ollence under any other law which contains no special pl'0VlSlOl1
as to the trying courts, may be tried by the High Court. Section
l94 provides that the High Court may take cognizance of any
offence upon a commitment made to it in the manner provided
in Chapter XVIII of the Code. Detailed provisions are then
made in Chapter XXIII with regard to the procedure of High
Courts in trying eases. Although these provisions apply to all
High Courts in lndia, only those of Calcutta, Madras and Bom-
bay exercised ordinary original criminal jurisdiction at any time
and this iurisdictior. was limited by the Letters Patent establish-
ing these High Courts to the three presidency--to\\ With the
establishment of City Sessions Courts in Bombay in 1948 and
in Marlins in l95o, the High Courts at these two places alto-
gether ceased to try criminal cases.

3.2. in Calcutta. however. although a City Sessions Court
was estaihlishtrti in l')57 with jurisdiction over the presidency-
town of Calcutta, it was precluded from trying offences punish-
able under sections 131 to 134, 302, 307, 396, 468 and 477A of
the Indian Penal Code. These offences. when committed within
the presi<lency--towns, were retained within the ordinary original
jurisdiction of the Calcutta High Court and continued to be
triable with the aid of a iury. In this connection it may be men-
tioned that the area of this presidency--town is only a part, and
the smaller part at that, of the area comprised within the Munici-
pal Corporation of Calcutta. The other part of the city is With-
in the jurisdiction of the Sessions Judge of the 24--Parganas
District who holds Court in Alipore.

3.3. The Law Commission, in its 14th Report, considered
that this division of original criminal iurisdiction between the
Calcutta High Court and the City Sessions Court wasl "full of
anomalies. For example, whereas an offence under section 302
I.P.C. for which the Court may impose a sentence of death or
imprisonment for life, is exclusively triable by the High Court, an
ollence under section 303 for which the only penalty is the sen-
tence of death, is triable by the City Sessions Court." The Com-
mission further said', "The City Sessions Courts in Bombay and
Madras which have been established much earlier than the
Calcutta Court possess all the powers which the High Court did
in the respective States in exercise of its ordinary original crimi-
nal jurisdiction. The evidence given before us revealed that the
City Sessions Courts in those States were functioning efﬁciently.
There is no reason why the Court should not be able to deal with
'these matters in Calcutta. We, therefore, recommend that the
City Sessions Court be given exclusive and the ordinary original

ll4th RCDOT1. Vol. II. D. 1201.

High Courts'
original _';Ui'lS(ilC-
tlon.

_l'resent position
in Calcutta.

Law Commis-
sion's recommen-
dation in 14th
Report.

Law Commis-
sion's recom-
mendation--37th

Report.

Earlier recom-
mendation pre-
ferred.

Section 28 and
29 combined and
revised.

Courts by which
offences are
triable.

criminal jurisdiction of the High Court be abolished.' This will
result in a substantial saving of the Judge time in the High Court.

3.4. In the 37th Report, however, the Law Commission took
a different viewl. They thought it was better to have JIISUCC from
the court of superior Jurisdiction than from a court of inferior
jurisdiction and where Justice from a superior court was avail-
able under the existing law (as in Calcutta), strong. reasons
should be needed to disturb the law. They further pointed out
that the iudgment of the High Court on the original side had
enriched not only our civil law but also our criminal law. They
thought that there were cogent reasons for 'not disturbing the
existing position and that it would be too big a price to pay for

uniformity.

3.5. We have again considered the matter and come to the
conclusion that the earlier recommendation made by the Law
Commission in its l4th Report is deﬁnitely to be preferred. We
were struck by the fact that original trials in the Calcutta High
Court are held up for an unduly long time as compared to trials
before the City Sessions Court. Apart from that fact, we are un-
able to see any reason for treating a small part of the city of
Calcutta on a different footing from the rest of the country. There
can hardly be any doubt that the City Sessions Court at Calcutta
is as competent to deal with murder, dacoity, forgery and account
falsiﬁcation cases as the Sessions Court sitting and functioning in
Alipore. The transfer of this work from the Calcutta High Court
to the City Sessions Court would relieve the former of a con-
siderable work load which should be welcome in the present state
of heavy arrears in that High Court. We therefore recommend
that this vestigial jurisdiction of the Calcutta High Court should
be abolished and the City Sessions Court should have the same
complete iurisdiction with regard to criminal cases as all other
Courts of Session in the country.

3.6. This proposal does not require the deletion of the refe-
rences to High Courts in sections 28 and 29 of the Code since
these will continue to be relevant for the extremely rare, but
possible, exercise of the extraordinary original criminal jurisdic-
tion vested in them. We. however, recommend that the two sec-
tions may bc combined and formally re-drafted as follows

"28. Subiect to the other provisions of this Code,--

(a) any offence under the Indian Penal Code may be
tried by the High Court or by the Court of Session
or by any other Court by which such offence is
shown in the Second Schedule to be triable; and

am' offence under any other law shall, when any
Court is mentioned in this behalf in such law, be
tried by_ such Court, and when no Court is so men-
tioned, it may be tried by the High Court or by any
Court by which such offence is shown in the Second
Schedule to be triable."

(b)

137th Report, para. 145,

ection 28 may be omitted in
th commitment proceedings
ssary for elucidating

The illustration to the existing 5
view of our proposal to do away wi
and, even otherwise, as not being very nece
the section.

3.7. In the previous Reportl, various suggestions were con-
sidered in regard to section 30, such as, whether. it should be re-
tained at all, whether it should be modiﬁed by increasing or re-
ducing the range of offences triable by Magistrates empowered
under the section, whether it would not be preferable to have all
the lesser Sessions Cases tried by Assistant Sessions Judges ins-
tead of such Magistrates, etc. Finally, however, the Report re-
commended that the section should be retained with one or two
minor amendments leaving the position ﬂexible.

3.8. lt appears that only in four States, viz., Puniab,
Haryana, Madhya Pradesh and Jammu & Kashmir, Magistrates
have been empowered under section 30 and even in these States,
except Jammu & Kashmir, the number so empowered is very
small. There are four such Magistrates in Puniab, three in
Haryana and only one in Madhya Pradesh. Five Presidency
Magistrates have been empowered under section 30 in Bombay,
but none in Calcutta, Madras or Ahmedabad.

3.9. The object of the .ection is. of course, to reduce the
volume of work before Courts of Session and to get the less im-
portant sessions cases disposed of more expeditiously by ex-
perienced Magistrates. We have recommended in the previous
chapter that there should be a Chief Judicial Magistrate for each
district. He would naturally be a senior and experienced Magis-
trate who could be safely entrusted with the power to impose
punishment up to seven years' imprisonment. In the hierarchy of
Judges and Magistrates in a district, the Chief Judicial Magistrate
would normally hold the same rank as an Assistant Sessions Judge
and be equally competent from the professional point of view.
After the separation of the executive from the judiciary, there
would not be any objection to such a Magistrate trying serious
cases and awarding sentences up to seven years simply because he
is designated a Magistrate. It is further more desirable that, in
addition to the administrative control and supervision which he
would be expected to exercise over other Magistrates in the
district, he should also be made responsible for the trial of im-
portant criminal cases. The vesting of the Chief Judicial Magis-
trate in each district (and of the Chief Metropolitan Magistrate
in each metropolitan area) with enhanced powers of punishment
will give the necessary relief to the Sessions Courts and will, in
our opinion, be advantageous from every point of view. If in
any metropolitan area or other large district the number of cases
which ought to be tried by the Chief Metropolitan Magistrate
or the Chief Judicial Magistrate is large. one or more Additional
Chief Metropolitan Magistrates or Additional Chief Judicial
Magistrates may be appointed'-' and invested3 by the High Cz;iurt
with the power to impose a sentence up to seven years' imprison-

merit."

137th Report, para. 151.
2Section 11. above.
3Seciion 16. above.
4Section 32. below.

Section 30 re-
commendation in
the previous Re-
port.

Few Magistrates
empowered under
the section.

Chief Judcial
Magistrates to
have enhanced
powers of punish-
merit.

Sections 32

Retention of Sec-
tion 30 not neces-

sary in view of

revised Second

Schedule.

Section 31.

and
34 combined and
revised.

Sentences which
Magistrates may
.pass.

3.10. It is, however, unnecessary to retain section 39 in its
present form or in a modiﬁed form. We propose to revise the
Second Schedule drastically, enlarging the number of offences
triable by Magistrates of the ﬁrst class and pro tamo reducing
the number of offences triable exclusively by the Court of
Session. Broadly speaking, offences punishable with imprison-
ment for 7 years or less will be within the jurisdiction of Magis-
trates. Offences in respect of which only the Court of Session
is mentioned in the Second Schedule as revised will all be offences
which, by reason of their nature, should be tried only by that
Court. Even where the punishment does not exceed 7 years'
imprisonment as is the ease with a few of these otlencesl, they
should be triable only by the Court of Session and it is not neces-
sary to confer a special iurisdiction on the Chief Judicial Magis-
trate to try such offences. Some offences triable by a Magistrate
of the first class under the Second Schedule are punishable with
more than 7 years' imprisonment. The Chief Judicial Magistrates,
being himself a Magistrate of the First Class, will be competent
to try all these offences. A provision on the lines of section 30
empowering him to try as a magistrate all offences not punish-
able with death or imprisonment for life or with imprisonment
for a term exceeding seven years is therefore not required.
Section 30 is accordingly proposed to be omitted.

3.11. No change is required in section 31.

3.12. Section 32 and 34 lay down the maximum sentences
which Magistrates of different categories may pass. In view of
the omission of section 30 proposed above, it would be desirable
to combine the two sections. We have in the previous chapter
recommended the abolition of third class Magistrates. When
the separation of the executive from the iudiciary is fully effect-
ed, a great maiority of Magistrates will be legally qualiﬁed and
trained members of the iudiciary who can be entrusted with
somewhat higher sentencing powers than they now have under
section 32. We propose that a Magistrate of the second class
may pass a sentence of imprisonment not exceeding one year or
of ﬁne not exceeding rupees one thousand or both. Similarly, the
powers of a Metropolitan Magistrate or of a Magistrate of the
ﬁrst class may be enhanced to three years as respects imprison-
ment and rupees ﬁve thousand as respects ﬁne. The revised
section 32 may be as follows :

"32. (1). A Chief Judicial Magistrate may pass any sen-
tence authorised by law except a sentence of death or of im-
prisonment for life or of imprisonment for a term exceeding
seven years.

_ ('2) A Magistrate of the ﬁrst class may pass a sentence of
imprisonment for a term not exceeding three years, including
such solitary conﬁnement as is authorised by law, or of ﬁne
not exceeding ﬁve thousand rupees, or of both.

_(3)_ A Magistrate of the second class may pass a sentence
of imprisonment for a term not exceeding one year, including
such solitary conﬁnement as is authorised by law, or of ﬁne
not exceeding one thousand rupees, or of both."

'Sections 124. 201. 211. 234. 308. 376. 402, 489C, soo
502(3) of the Indian Penal Code. M and

3.13. Sections 33 and 35 do not require any change of sub-
stance.

3.14. Section 36 describes what are called the ordinary
powers of District Magistrates, Sub--divisional Magistrates and
Magistrates of the ﬁrst, second and third class. These powers
which accrue to these different categories of Magistrates directly
from the provisions of the Code are catalogued in ﬁve different
parts of the Third Schedule. Similarly, the Fourth Schedule sets
out in a sizeable chart, the additional powers with which a Sub-
divisional Magistrate or a Magistrate of the ﬁrst, second or third
class may be invested by the State Government or by the District
Magistrate, as provided in particular sections of the Code. While
these two Schedules might have had some utility in the past for
reference purposes, they are, from the statutory point of view,
an unnecessary duplication. The nature and extent of the ordi-
nary powers or of the additional powers have in every case to
be ascertained from the particular section of the Code and the
orders of the appropriate authority empowering the Magistrates
either individually or as a class. There appears to be no point in
maintaining sections 36 and 37 and carefully revising the Third
and the Fourth Schedules after taking into account all the changes
which are being proposed in the relevant sections and in the cate-
gories of Magistrates. We consider that these two sections and

Schedules, and consequentially section 38 also, should be
omitted.
3.15. In the last three sections of this Chapter which deal

with the conferment, continuance and cancellation of powers, a
reference to the High Court will have to be made in addition to
the reference to the State Government, since in many places the
High Court is being made the authority for conferring powers in
iudicial matters. Similarly, sub-section (2) of section 41, should
be amended to include the Chief Judicial Magistrate besides the
District Magistrate."

ANNEX URE
(As proposed to be revised)
CHAPTER III

Powers of Courts
28. Subject to the other provisions of this Code,----

(a) any offence under the Indian Penal Code may be tried
by the High Court or by the Court of Sessions or by any other
Court by which such offence is shown in the Second Schedule to
be triable; and

(b) any offence under any other law shall, when any Court
is mentioned in this behalf in such law, be tried by such Court,
and when ni Court is so mentioned, it may be tried by the High
Ciurt or by any Court by which such otfence is shown in the
Second Shedule to be triable.

29B. Any offence not punishable with death or imprisonment
for life, committed by any person who at the date when he

Sections 33 and
35.

Sections 36 to 38
and 3rd and 4th
Schedules omis-
sign recommend-
6 .

Section 39 to 41.

Courts by which
offences are tria-
able.

Jurisdictlon in
the ease of juveni-
les.

Jurisdiction of
Chief Magis-
trates.

Sentence which
High Courts and
Sessions Judges
may pass.

Sentences I which
Magistrates ; may
pass.

Sentence of im-
prisonment in de-
fault of ﬁne.

appears or is brought before the Court is under the age of ﬁfteen
years, may be tried----
(a) by a Chief Metropolitan Magistrate or Chief Judicial
Magistrate, or
(b) by a Metropolitan Magistrate or Magistrate _of the
ﬁrst class specially empowered under sub-section (1)
of section 8 of the Reformatory Schools Act, 1897,
or under other similar law providing for the custody,
trial or punishment of youthful oﬁenders.

30. Notwithstanding anything contained in section 28, a Chief
Metropolitan Magistrate or Chief Judicial Magistrate may try all
oﬁences not punishable with death or with imprisonment for life
or with imprisonment exceeding seven years.

31. (1) A High Court may pass any sentence authorised by
law.
(2) A Sessions Judge or Additional Sessions Judge may pass

any sentence authorised by law; but any sentence of death passed
by him shall be subject to conﬁrmation by the High Court.

(3) An Assistant Sessions Judge may pass any sentence
authorised by law except a sentence of death or of imprisonment
for life or of imprisonment for a term exceeding ten years.

32. (1) A Chief Metropolitan Magistrate or Chief Judicial
Magistrate may pass any sentence authorised by law except a
sentence of death or of imprisonment for life or of imprisonment
for a term exceeding seven years.

(2) A Metropolitan Magistrate or Magistrate of the ﬁrst
class may pass a sentence of imprisonment for a term not exceed-

ing three years, including such solitary conﬁnement as is autho-
rised by law, or of ﬁne not exceeding ﬁve thousand rupees, or of
both.

( 3) A Magistrate of the second class may pass a sentence of
imprisonment for a term not exceeding one year, including such
solitary conﬁnement as is authorised by law, or of ﬁne not exceed-
ing one thousand rupees, or of both.

33. (1) A Magistrate may award such term of imprisonment
in default of payment of ﬁne as is authorised by law :

Provided that the term--

(a) is not in excess of the Magistrate's
section 32; and

where imprisonment has been awarded as part of
the substantive sentence, shall not exceed one-fourth
of the term of imprisonment which the Magistrate
is competent to inﬂict as punishment for the oﬂence
otherwise than as imprisonment in default of pay-
ment of the ﬁne.

powers under

(b)

_ (2)_ _The iinprisonment awarded under this section may be
in addition to a substantive sentence of imprisonment for the
maximum term awardable by the Magistrate under section 32.

34. (Omitted),

convicted at one trial of two or
more oﬂences the Court may, subject to the provisions of sec-
tion 71 of the, Indian Penal Code, sentence him for such offences,
to the several punishments prescribed therefor which such Court
is competent to inﬂict; such punishments when consisting Of i111'
prisonment to commence the one after the exI311'3t10I1 Of the
other in such order as the Court may direct, unless the Court
directs that such punishments shall run concurrently.

(2) In the case of consecutive sentences, it shall not be neces-
sary for the Court, by reason only of the aggregate punishment
for the several oﬂences being in excess of the Punishment Which
it is competent to inﬂict on conviction of a single offence to send

the offender for trial before a higher Court :
Provided that----

(a) in no case shall such person be sentenced to imprison-
ment for a longer period than fourteen years; and

(b) the aggregate punishment shall not exceed twice the
amount of punishment which the Court is competent
to inflict for a single offence.

35. (1) When a person is

(3) For the purpose of appeal by a convicted person, the
aggregate of consecutive sentence passed against him under this
section shall be deemed to be a single sentence.

36, 37, 38, (Omitted).

39. (1) In conferring powers under this Code, the High
Court or the State Government, as the case may be, may, by

order, empower persons specially by name or in virtue _of their
oﬂice, or classes of oﬂicials generally by their official titles.

_ . (2) Every such order shall take effect from the date on which
it is communicated to the person so empowered.

40. Whenever any person holding an oﬁice in the service of
Government who has been invested by the High Court or the
State Government with any powers under this Code throughout
any local area is appointed to an equal or higher oﬁice of the
same nature within a like local area under the same State Gov-
ernment, he shall, unless the High Court or the State Govern-
ment, as the case may be, otherwise directs or has otherwise
directed, exercise the same powers in the local area in which he
is so appointed.

41. (1) The High Court or the State Government, as the
case may be, may withdraw all or any of the powers conferred

1t1nd_f:1' this C0d6 On any Derson by it or by any oﬂicer subordinate
0 i .

( 2) Any powers conferred by the Chief Judicial Magistrate or
by the District Magistrate may be withdrawn by him.

Sentenoe_ in cases
of conviction of
several offences at

one trial.

Mode of confer-

ring powers.

Powers of olﬁcers

appointed.

Withdrawal
powers.

CHAPTER IV

AID AND INFORMATION TO THE MAGISTRATES
AND THE POLICE

Previous Reports. 4.1. In this short chapter which consists of only four sections,
no major changes of substance were recommended in the previous
Report. The Law Commission in its 33rd Report considered
a suggestion to insert a provision in this chapter under which a
duty would be cast on public servants to give information about
the commission of offences under sections 161 to 165A of the
Indian Panel Code and section 5 of the Prevention of Corruption
Act. 1947, but advised against the proposed measure.

Section 42. 4.2. The words "whether within or without the presidency
towns" may be omitted from section 42 as being superﬂuous.

59050" 44- 4.3. Under section 44, every person aware of the commis-
sion of, or of the intention to commit, certain speciﬁed oﬂences
is bound to give information to the nearest magistrate or police
oﬂieer. Amongst the sections mentioned at present are sections
435 and 436 of the Indian Penal Code, relating to mischief by
ﬁre. With the object of encouraging the detection of similar
offences in respect of roads, bridges, embankments, light~houses,
vessels etc., the previous Reportl recommended the addition of
sections 431 to 434 and 437 to 439 of the Indian Penal Code.
We agree with this recommendation. In this section also the
words "whether within or withouot the presidency towns" are
superﬂuous and may be omitted.

Section 45. 4.4. While in the main paragraph of section 45(1), certain
words were added in 1955 to cover members of village paneha-
yats, consequential amendment was not made in clause (a) of the
section. A recommendation to make this amendment was made
in the previous Reoort.'-'

Amendments re-- 4.5. The following amendments may, accordingly, be made
C0mme!1ded- in this chapter--

(1) In section 42_ the words "whether within or without the
presidency towns" shall be omitted;

(2) In sub--section ( 1) of section 44,-

(i) the words "whether within or without the presidency
towns" shall be omitted; and

(ii) for the ﬁgures "435, 436", the ﬁgures and words "431
to 439", shall be substituted; and

(3) In section 45, sub--section (1), clause (a), after the words
"or police-»oﬁicer", the words "or of the panehayat of which he is
a member" shall be inserted.

137th Report, para. 176 (V).
'~'37th Report. para. 180.

CHAPTER V ,
ARREST, ESCAPE AND RETAKING

5.1. Chapter V is divided into two parts, part A dealing with
"arrest generally" and part B with "arrest without warrant". In
regard to part A consisting of sections 46 to 53, no amendments
have been suggested in the previous Report; But the Commission
considered1 at length the question as to how far the physical
examination of the arrested person is legally and constitutionally
permissible and what provision, if any, should be made in the
Code for this purpose. It came to the conclusion that a provi-
sion on the subject was needed and recommended a new Section
authorizing, in certain circumstances and subject to certain safe-
guards, the examination of the person of the accused by a quali-
ﬁed medical practitioner. We agree that such a provision 1S
necessary for effective investigation and will not offend against
article 20(3) of the Constitution. A new section 53A may be
inserted after section 53 as follows:

''53A. (1) When a person is arrested on a charge of
committing an 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 shall be lawful for a registered medical practitioner
acting at the request of a police ofﬁcer not below the rank
of sub--inspector, and for any person acting in good faith in
his aid and under his direction, to make such an examination
of the person arrested as is reasonably necessary in order
to ascertain the facts which may afford such evidence, and
to use such force as is reasonably necessary for that purpose.

(2) Whenever the person of a woman is to be examined
under this section, the examination shall be made only by,
or under the supervision of, a female registered medical
practitioner."

5.2. In part B of this chapter the previous Report reconi--
mended a few amendments and two new provisions to which we
shall briefly refer. In regard to section 54(1), clause nintlzly,
there has been a sharp controversy as to whether the "requisition"
received from the other police-oﬂicer must be in writing before
it can be acted upon. We agree that it should be set at rest.
The clause should refer to "any person for whose arrest any
rcquintioiz, whether writzen or oral, has been received from
another police officer."

5.3. Two minor amendments are proposed in section 55.
First, in clause (a) of sub--section (1), the reference should be
to "(my person Wilhin the limits 'of such station who is found
taking precautions to conceal his presence under circumstances
etc.

137th Report, para, 183 and Appendix 6.

Sections 46 to 53.
---Physical exami-
nation of arresa
ted person.

Examination of
person by medical
practitioner.

Section 54.

Section 55.

Section 56.

Section 57.

Section 59.

Secondly, in clause (c), the phrase "in fear for injury" should be
replaced by "in fear of injury".

5.4. For the avoidance of any controversy, it is proposed to
insert a sub-section (1A) in section 56 read1ng:--

"(1A) Nothing in sub-section (1) shall aﬂect the power
of a police-oﬂicer to arrest a person under section 54."

5.5. Where a person committing or accused of committing a
non-cognizable offence refuses, on demand by a police officer, to
give his name and residence, or gives a false name or residence,
he can be arrested by the police oﬂicer, under sec-
tion 57(1). Under section 57(2), when the true name
and residence is ascertained such person is to be
released on his executing a bond to appear before a magis-
trate if so required. In the previous Report,1 the words "having
jurisdiction" were proposed to be added after the words "a
magistrate", (following the Bombay and Punjab amendments).
We are, however, of the view that this amendment is unnecessary.
If strictly interpreted, it would throw upon the police oﬂicer the
burden of ﬁnding out which magistrate would have jurisdiction
to deal with the case and entering the name of that magistrate
in the bond, which in the circumstances would be quite impractic-

able.

5.6. Section 59 deals with the right of a private person to
arrest any person who "in his view" commits a non-bailable and
cognizable oﬁence. Two points pertaining to this section were
considered in the previous Report. The ﬁrst point? was whether
it is necessary to replace the words "in his view" by the words
"in his sight" or by the words "in his presence". The case law
on the subject was examined, but it was considered unnecessary
to make any change. The matter was raised again before us, and
it was stressed that a verbal alteration was desirable, since the
word "view" might also mean "opinion". As this point has pro-
voked considerable discussion,-"' we think that the opportunity may
be taken to clarify it. Both in section 57 and in section 64, the
words "in his presence", are used to express the same idea. We
propose that the words "in his presence" may be substituted for
the words "in his View" in section 59(1) also. The second point'
was that the section should expressly enable the private person
not only to arrest the offender himself, but also "to cause him
to be arrested." Sub-section (1) of section 59 may accordingly

be amended to read as follows :--

"(1) Any private person may arrest or cause to be
arrested any person who in his presence commits a non-bai1-
able and cognizable oﬁence, or any proclaimed offender, and,
without unnecessary delay, shall make over or cause to be
made over any person so arrested to a police-oﬂicer, or in
the absence of a police-ofﬁcer, take such person or cause him
to be taken in custody to the nearest police-station."

1 37th Report, para. 198.
2 37th Report, para. 200(i).
'See Nazir v. Rex. AIR. 1951, All. 3 (Full Bench).

437th Report. nara; 200(ii).

5.7. The previous lieportl recommended the insertion of two
new sections after sections 59 as follows :--

"59A. Every police' oﬁéer oriother person arresting any
rson without warrant shall communicate to 'him full parti-
culars of me offence {or which hevisﬁarrsted or other grounds
for such arrest. .

I B.-"Where. a 'po1ice=o_i3icef','5'arrestsj'mtlrout warrant any '
.P'-'"'.'P .°"'°' '?"a'.' F' t1'I'*"v'w=""~..'.i1""l.¢.°".'.'°"'?.",».-V I 3" "VI-"°t"«7"V"'.',"'??:'?;.e
oﬁence, 11¢ _s,hai1,. r< 6'. persgﬁ. arrested Ihat he, rs.
entiﬂedbto be released on web' _'r1fja1id> tag'_1're 'ﬁ1ay'arrange'forj':_
snrcti¢s't<?,;°1T¢r.'b3i,1 oxxhii belfalf-" ' '

V ' .« 5);
5.8. -In' section'61,tthe previous Report-récommendedz 'a verbal"
change' in the opening part' making it' read "'No person who 'has'
been: 1 arrested ' without 7 warrant shall be detained Vi'n--*cu»stody' for = av
larger 'pcr'iod etc." 'On rewhsiddration weiﬁloltnot thinkthat' this'
change from a clear and mandatoryﬁdirectilin--to 'the? police-olﬁcer'
making the arrest which is in conformity with article 22(2) of the'
Constitution is necessary or even desirable. _

/«

1 37th Report, paras. 201 and 202, .312 .t:-mq .110:-pi! r!1\'£'
2373, Regan' pam_ 2o4_ .wolsd 01.5': 03 Mai'. .£!7'!8C1 5529

New Sections 59-
A and 59B.

Person attested to
be informed of
gaounds of arrest-
C .

=,»v.\nnI
Police-oﬂioer to
inform perso_n
arrested of right
to bail.

Section 61.

Introductory.

Section 68.

Section 69.

CHAPTER VI
PROCESSES T0 COMPEL APPEARANCE

6.1. It is a standing complaint that there is a great deal Of
avoidable delay in the service of summonses and that the execu-
tion of coercive processes is often unsatisfactory. Improvements
in this regard can only be eﬂected by administrative action and
there is little that can be achieved by amendment of the law.
Most of the changes recommended in Chapter VI by the previous
Report are of a formal character. Reference should however be
made to one important recommendation regarding the service of
summonses to witnesses by registered post for which the Commis-
sion has proposed a new section. The other changes proposed
in this Chapter relate to matters of detail and are brieﬂy review-

ed below.

6.2. In sub--section (1) of section 68, an addition is suggested"
to bring it into line with section 75 in respect of summonses issued
by a Bench of Magistrates. The sub-section will read :--

"(1) Every summons issued by a Court under this Code
shall be in writing, in duplicate, signed by the presiding
oﬂicer of such Court (or_ in the case of a Bench of Magis-
trates, by any Member of such Bench) or by such other oﬂi--
cer as the High Court may, from time to time, by rule direct,
and shall bear the seal of the Court."

The previous Report has recommended the addition of a sub-
section (4) to the effect that "nothing in this section shall affect
the provisions of section 174A", which is the new section propos-
ed for service of summons by post. Since other modes of service
are provided for in detail also in sections 69 to 74, we do not
think it will be desirable to include such a sub-section only in
section 68. Since issue of summons by post is to be in addition
to, and not in lieu of, any other mode of service adopted by the
Court in the particular case there is really nothing in section
68(2) or in the other sections to affect the new section. It would
be sumcient to say expressly in section 74A that its provisions
operate notwithstanding anything contained in the preceding
sections.

6.3. No change was recommended in section 69 in the previous
Report. With reference to subsection (3), however, it was noted
that the procedure to be followed after service on a body cor-
porate pertained to the chapter on general provisions in inquiries
and trials. This subject is considered? in detail under Chapter
XXIV but it may be noted here that societies registered under
the Societies Registration Act, 1860, although not formally in-
corporated, possess some of the attributes of a corporation and
it is desirable that such societies should be treated on a par with
corporation in criminal proceedings. While section 69 deals with

137th Report. para. 216. .
95¢: paras. 24.1 to 24.10' below.

r.-uuu.g..agu».n-....... ear. ,.,. ,

..;.,;.,
uni

~'»+:::~1:~*~

"W .. ,........':_(

--:. uanh«h.vnq7>.

-,x.n"eéna.v-en»:-aiv.~ .

service of summonses on individuals and incorporated companies,
it is silent as to service of summonses on registered societies. To
runove this lacuna, it is desirable to add a sub-section (4) to
section 69 reading as follows :--

"(4) The provisions of sub-section (3) shall apply to a
societies registered under the Societies Registration Act,
1860, as they apply to an incorporated company."

6.4. In regard to section 70, the previous Report has recom-
mended' that the special provision regarding service of summons
on a person in a presidency town through a servant residing with
him should be omitted, and instead, an explanation should be
added that a servant is not a member of the family of the person
to be summoned within the meaning of this section, whether it be
in a presidency town or outside. This section will accordingly
be amended to read as follows :--

"70. Where the person summoned cannot by the exer-
cise of due diligence be found, the summons may be served
by leaving one of the duplicate for him with some adult male
member of his family residing with him; and the person with
whom the summons is so left shall, it so required by the
serving oﬂicer, sign an receipt therefor on the back of the
other duplicate. '

Explanation?-----A servant is not a member of the family
within the meaning of this section."

6.5. As regards section 71, it is recommended' in the previous
Report that it should be amended to bring it into line with the
eorrespondin provision in the Code of Civil Procedure. For the
words "and ereupon the summons shall be deemed to have been
duly served" there should be substituted the following words' :--

"and the Court, after making such inquiries as it thinks
ﬁt, may either declare that the summons has been duly served
or order fresh service in such manner as it considers proper."

6.6. We have already referred' to the recommendation made
in the previous Report for the insertion of a new section relating
to service of summons on a witness by post. This section may
be as follows :-- V '

"74A. (1) Notwithstanding anything contained in the
preceding sections of this Chapter, a Court issuing a sum-
mons to a witness under any of the said sections may, in
addition to and simultaneously with the issue of such sum-
mons, direct a copy of the summons to be served by regis-
tered post addressed to the witness at the place where he
ordinarily resides or carries on business or personally works

for gain.

137th Report, para. 218.
2See Order 5. Rule 15. Code of Civil

337th Report. Dara. 219. . .
4See Order 5, Rule 19, Code of dvil Procedure, 1908.-A

'8eepu'as.6.land6.2ab0Vp. '

Procedure, 1908.

Section 70.

' Service when

person s
cannot be found.

Section 71.

Issue of summons
to wituesss _by
post-new section
74A.

Service of sum-
mons of witness
by post.

Section_77.

Section 78.

Section 87,

"mi 83;

tais;.%"°*??'*?ea* "' "2"t"t*¥;i "?"'"-?"'ﬂ""'.""""

L gm, sssdgada.ebithc:ineiatifaV'hi;iei3tr§si{* "

142

.;i_:(i2i)n8Vhen:taa<;ia9aznondodasuaimi;:prportinas'1vrrhe
the Wmﬁig gamaigoismeaepuqnmxxg unibesmodcdyyrlailptstal
empbyeg. 31¢ ggtggas ascfuddrimitakerdeh
ceived, the Court issuing the suminonsviniixiit deco =:thnt- 'tlierwmc
mons has been duly served.1i" V D
rig6.7'.fIn se'ctiotx73Z,til;e'.§pc<3,a;\ "V ]tiﬂ}Xi6i0I1_1l'G.1atjn£t0;'»P,KGidenSy
Msgisuates wmghav '2.!9';1?g~.5!l.Bitt§§- rr.Sub-sﬁctién. (1) my be
revised to read as fo ows :--'- '

"(-1) m'wiarrxh%+'brLarr¥st'sha11 0rdin.ari1y;.be.directed,i :, 19
or the .Cou_rt'jissuing such',
'~ warrant md'y;'iﬁ ﬁs"Wﬂ}&iiatg execution is necessary and no'

police-ofﬁcer»ﬁAI' '>waﬂab1e, direct it to any X
:person For persdns,g-and s" h person or personsshall e g
' same)': '37': '§.VTi'7;'I'.'. . . L ':

6.8. Section 18 present confers a power on the District'
Magistrate or Sub-divisional Magistrate to issue a special type 0f
"W2'--H'a£lt'to a land-holdefjiéfﬁrﬁier or manager ;of land within his

A ' , ,. or sub-divisf6n';§§g1'the:'a'i'fest of an convict, pro-

ciaiiiienronenaea *'~'év'iizi3=i:'a$'='-ia_eeii 'accused of_a.non--bail-
able otfencé andiWho'*"ﬁ ' ii trd ' 'p_tirsuit".A'fA;Ithoug'h:the power is
iaifi*eqttientiy'v*exefcis'ed,p ' " 'A " to befiio 'objection to con-
ferriiig it on air Magi: ii 9 ofthe ﬁrst class' andj-all Executive
Magistrates." It is not very clear whether the twoiclauses "who
has been accused of a non-bail_able'_offence and who has eluded
pursuit" are intended to qiia h jorily persons other than escaped
convicts and proclaimed oﬂ'eii 'rs. " The words "eluded pursuit"
are also not very apt context It is accordingly proposed
th'at'fhi's' S11.l>S€C.ﬁ°Ii fd.1I'<>,W,s.;----- - » -. »;-;::-:
. "7i;=,-Iris) A M" 'st;-aesét the ﬁrst class "or gnfngecame
Magistrate may» daii -, 'tie vﬁiiftbtﬁt gtqianyfrisndsiieigier,
oigmanager-Ihndiwiwiis iloeéil for the V
0 any esca co vict or ocai. e .0 en e o_ oﬁyany per-
V «V *mson< who §'s"éiét£iiséiiP'8f ac"ii§i§'-*bé_?i'iIIi1b1_e_.v 1 evading
' a-n.¢§g_.~n_ *~ r3 2;. - " .'{..

1' A .1;~..'. ;-'.'Z(,'=."f"7',l,'3 5 »

3 -:1. F at l :3:im;:.v'. if-.. * , t. ' 2% '

6.9. In sub-section (2 of section 87,. which prescribes the
mom of ipiihlishhig'Ja'%J'clamdtioni*~*reggitdi'hg '- aiii absconding
oﬁetider, -iitliesaprwious epe-iisiaas srscamimirneeas ' an" 'additiohal_'
pizavisinnz to the"-eI'fedt'th2It""'H%7(2ourt'-rnay"aIso,tif it t " I<s'ﬁt;"{
direct a copy of the proclamation to be published in- a' da 3+ news-'1'

Kn}: ;griiu:I=
:-:m'_"': A: ;i:i!r::rlT'.~ ,5::i:

absoondmg person».amiUwiH1Wth¢i&$'é§ﬁ afféin efel _; and objec-
ti0i!S"'!InlIﬂd.'z't01'-$316115 attaZ!@;Ill"%tnd?o Vei"1é§1is'Leqi)'éhtial" 'otters.
Inr*the'ipi=eviovs§ﬁR_e1l>bi1t;4
gested m:sub-seqtions*1{»'B9f,Uf(6B'). 9-.aﬁG'»16_€!)"v,'«' _"eff _to "Which
will be to empower the Chief Judicial Magistrate in ad8lfi%iil'iEo the
District Magistrate and Presidency -Magistrate---mentioned
12!" l"If'rv n1sr~'="~i' 1""!
1 Cf. Order :~*s,<'- 1-ii1evr!0iA<,H¢o£i6'Qf 'Civil'-'VPro'eedCii'€:} 1308957?' '_- "
2c;_ 3731, Report' para_ 225.. _ g ('is .8180 ,11O(I$5lV sin': 1
337th Repogﬁqsauyiasomq livif) in she?) ._Qi 511:}! ,t innit.) am!
437;], Rep",-t, pg", 231 233 amazed: 2.3 has [.3 .2:.-ma s-;~.Z =

'INI£.'ﬂiu¥1-4!-144 9.- . r

idistrict the attached property is sit!)

in the sub-section. On reconsidering the matter it appears to us
that the power to endorse an attachment order under sub-section
(2) should be with the {Judi ' 1 Magistrate within whose
th , and not with the District
M 'skate, of . ,.at,district. . _ .« ts to be made in sec-

tio?1g'}8'3' may éiccofdihgly be as oltowggﬂw' e
_ _4 V . "(i), In sub-section (2).and_,in s ,_ection (6B), for the
_Q;w,o;ds ,'_'_D1$t'1'ict l\{Iagistrate_orff ' f ( residency Magistrate",
'W .;jme words f'Chj,e:t Judicial': AMa'g§s aw'? S,haI1'be substituted;
-"'_ (ii),4l'nVsub-s'e,ctijo11 (6C)_, or"the)1p'1',qi{is'o, the fo1lowing;pro-

shall be substituted, ; § [
'Provided that, if it: is prefetiaedorvihadein the Court of
' a 'ChiefLJu.dic?ia1 Magistzmte, he ' make it over for
disposal to any Magistrate; 'si&_ ' " ate to him'."

6.11. As regards section 91, Report1 has recom- Section 91.

mended the addition of the following words at the end, namely,
"OI! aﬂxvmber to which; the «case. may be transferred for

1 37th Report, para. 238.

u.'.:1aG rx=',V3;.3'/

Section 94(1).

Section 94(3).

Sections 95 and
96.

Section 98(1).

CHAPTER VII
PROCESSEG T0 COMPEL PRODUCTION OF THINGS

7.1. Section 94 empowers any Court or, in any place beyond
the limits of the towns of Calcutta and Bombay, any oﬂiceein.
charge of a police-station, to issue a summons for the production
of any document or thing required for the purposes of any inves-
tigation, inquiry, trial or other proceeding. The exclusion of the
town of Bombay from the purview of this section, so far as the
police are concerned, has been removed by a local amendment'
of the section. The exclusion of Calcutta also may be removed
by omitting the words "in any place beyond the limits of the
towns of Calcutta and Bombay" from sub-section (1).

7.2. In the earlier Report,' the Commission examined the
effect of section 94 vis-a--vis the Bankers' Books Evidence Act,
1891, and recommended that a reference to this Act should be
included in sub-section (3) if section 94 so that it may be clear
that the provisions of this Act override the general provisions of
the Code. It also recommended that the Act should be amended
to cover investigations besides inquiries and trials. We agree
with both the recommendation. Sub-section (3) of section 94
of the Code may be amended to read--

"(3) Nothing in this section shall be deemed-

(a) to affect sections 123 and 124 of the Indian Evidence
Act, 1872, or the Bankers' Books Evidence Act,
1891, or

(b) to apply to any letter, postcard, telegram or other
documents or any parcel or thing in the custody of
the postal or telegraph authority."

7.3. No amendment of substance is required in sections 95 and
96, but the references to "Chief Presidency Magistrate" in both
these sections may be replaced by "Chief Judicial Magistrate",
which expression will, in a. metropolitan area, mean the Chief
Metropolitan Magistrate. '

7.4. In section 98(1), ﬁrst paragraph, the words "Presidency
Magistrate" may be omitted. In the fourth paragrap , power to
issue a search--warrant for obscene objects is conferred only on
the District Magistrate and Sub--divisional Magistrates in a district
and on Presidency Magistrates in a presidency-town. We see no
objection to the power being ecmferred on all Judicial Magistrates
of the ﬁrst class as in the ﬁrst paragraph, We, therefore, propose
that for the words "or a Presidency Magistra " in the fourth
paragraph, the words "or Magistrate of the ﬁrst class" be sub-
stitut , '

1Bombay Act 20 or 19541'
337th Report. pant. 242'. 243.'

433

.w~.t...«

7.5. In section 98(2), the reference to section_19 of the Sea
Customs Act, 1878, should be changed to section 11 or the
Customs Act, 1962.

7.6. In the earlier Report', the Commission recommended
that newspapers, books and documents containing obscene matter
should also be brought within the scope of section 99A. We
endorse this recommendation. Sub--section (1) of section 99_A_is,
at present, cumbrously worded and can be shortened by omitting
the description of the offences under the speciﬁed sections of the
Indian Penal Code as being redundant. The section may be revis-
ed as follows :--

"99A. (1) Where it appears to the State Government thata
newspaper, book or document, wherever printed, contains any
matter the publication of which is punishable under section 124A,
153A, 292 or 295A of the Indian Penal Code, the State Govern-
ment may, by notiﬁcation in the Oﬂicial Gazette, stating the
grounds of its opinion, declare every copy of the issue of the
newspaper containing such matter, or, as the case may be, every
copy of such book or document, to be forfeited to Government;
and thereupon----

(a) any police-oﬂicer may seize the same wherever found
in India, and

(b) any Magistrate may by warrant authorise any police-
ofﬁeer not below the rank of sub-inspector to enter
upon and search for the same in any premises where
any copy of such issue or any such book or docu-
ment may be or may be reasonably suspected to be.

(2) In sub-section (1),---

(a) 'newspaper' and 'book' have the same meanings as
in the Press and Registration of Book Act, 1867;

(b) 'document' includes any painting, drawing or photo-
graph or other visible representation."

7.7. Under section 99C, an application under section 99B

to set aside an order of forfeiture made under section 99A has

to be heard and determined by a Special Bench of the High Court
composed of three Judges. As pointed out in the earlier Report',
this will not be possible in the case of the three Judicial Com-_
missioners' Courts which are the High Courts for Goa, Manipur
and Tripura. No practical diﬂiculty appears to have arisen, per-
haps because no such order was ever passed in these Union
Territories. It seems desirable, however, to restrict the section
to High Courts which have three or more Judges so that the law
does not lay down an impossible procedure for any area. Section
99C may be amended to read :---

"99C. livery such application shall, where the High Court
consists of three or more Judges, be heard and determined
by a Special Bench composed of three Judges."

1 37th Report, para. 254.
937th Report, para. 257.

Section 98(2).

Section 99A.

Power to declare '
certain publi-
cations forfeited
and to issue
search-warrants
for the ease.'

Section 99C.

Heuinzbs
dﬂ YDG

New section
1tX)A same as
section 552.

' _
'Jim'-'

-alriuvi

.'m?:.::
Powﬂfib compel
reitﬂﬂliolri of
abdumd females.

New section 104-

Section 105A.

0612. /_ri gntir;-.3};
.ri:,n95.§ 11.. ,

«I6

18.» Under section r100npuwe1-:is:(:)nﬁerzod:on..an Presidency
Magistrate, Magistrate dtwsﬁlmlﬁrsirlchssaor Shb+diVisI}£'>!lalerMa¢83
Irate to issue a warrant to search for a person0Wrongf1ﬂl4yc.~coﬂ9
ﬁned. It is suggested that, as in section 98, the power may be
conferred on the District Magstrate, Sub-divisiona1:Magistrate or
Magistrate of the'?ﬁst1class£=T>'!!l!|e latter. expression ?iil1f'be!Isnﬁ[--
cieht to incmde Metropolnanwmsgtsu-ates in any metropolitan
a1lea_ ~ ' .". .' .. . '.I_.'..

l ' ' l'- . , '. . . " 1,'.
7.9. .anal9aou » provisos a conferring powers on «at Press:
deney Magistrate or Magistrate to compel -the esgtoragtii I
of abducted females is tucked away in the last Chapter of 1%:
Code as section 552. We propose that this provision witha
slight modiﬁcation be added in Chapter VII immediately after
seotiomiloﬂ,-thus-I-H-'.' ~ . ,
, .''}O0A; U ' on oath of the abdji'ctior;C"b't
i funlawf '_deteat1o_nji'>t a, woman, or of a female child,
the.'age'!of.TeighI¢.6Ii Iorany unlawful p'urp'os,e[,"f
District 'Magistrate, Sn fvisional Ma 'strate 'or. Méigis-4
trate of the St c1_as'sL ay'make an orgcler for ,'
diate restora 'on of Sue woman to her 1iber'tiy,',o11,of 'sn_' _
female child to her husband, parent, guar ia"n' or" other
person having the _,l , _.charge of such child, and may
compel compliance with such order,' such force as
, may be necessary." .
2 -, 'z " "3 ru;,1.. In I. ' '

, 37.10. No g;11agges».a;p,req};ired, in othersections of this
GhﬂPte1'"s".'r:. ,-H Zas"f} ii} 'if.' ti. '

_ 'We; notice that mafeag miscellaneous _ ovisions col-
lected 1i1"thé= last *ClfaptBr"bf-'the' ' de is' section 5 . The police
power to seize property suspected to be stolen or found in suspi-
cious circumstances is analogous to the powers mentioned in
-iélt «would be: appmpriate to transfer section 550
to thiB«"ﬂIhapler,E.mﬂ put'eitiIaftc't,sEction 104ias section 104A.

~t'7"i1'- Seetioni.-1Q§rAtrprqvidas ionmutualzaid bebween "courts
in the territories xto%wlriohethe1(1ideeeartends" on -the one hand, and
"courts in the State of Jammu and Kashmir and courts established
or continued by"tl1e'arIiﬁéi§"G§€'of"the»('§ehttaliG0vemment in any
area fetgtsideltsie §a£z¥:tepHe_oiie§7*--=?oii7t§ewearer;; in 'th'e"/niatter of
seioaggugéhiaeeaésrlaaaﬂe ' "egg; w«lrliants_~ as arrest
wan«an§s,':'rrHe2>1ase:meat;e 8"B&'9g0"'Y:0£-"_¢'ourt's were thasezrrew
oetnfts 2e§ttIBIlslfedf5br9'8o _' ' new €lre'?'?Forei'g1'1j_'J?&ri§dicﬁtili
AetgrIiMi_1;=1£i:'Is1hee1ae'3s lédujtscexistz» 'at-«present
ouf§ide'I1'ltlia,"t_l5eté ayr4r«£mee&r2b:4Eefet»'t'o nuem'. we=*have,~ '
dﬁifdlscﬁﬁisiénfbf 'sé'e€ﬁ$h l~';Vpr ed3a*,n0an¥ehdm€nt"'iﬂ'*th_'e'ie_'- _
orange; gvithai nwoagy.msssta éf<l|-"é'niﬁ§ti1and:'Kaéhmh"B9t"gB3
ma stgtevor Nagalalld -new the 5&it£_hl9'tirea,s*»=witl1i1i"tH3 state at
Hsvaitmwinﬁbe texstaatly» rld>ar'taa'operario:i» or-the ' .s

The following consequential ameriﬂiﬂeﬂts iWilI"JBel3

ct' n 1 so tha co ' yin a and and the tribaljareas of
«$31 sls§A1se?aa rglvmuallﬁsgeglsligilliiug,-as ¢.sp.;cs«a.::a1anmu and
HHfH.ie____l>rvf; ravrxs. 32533.10 amrr; in fillv' . . r -.

xv/.<«.:. '/.311 v if In-'.1-rr:«;::.: . ,. N
"In sub-sections (1) )and ((2), for the words 'a court in the
State of Jammu and Kashmir or"? court established or

rmn 1100551 d1'.'£ 7
.\'?.£ Jsmq ,n0q::$ 111??'-

1See para. 1. 7.

... ..,. .. . -
-nu.-,;.....-.

Q mu-a.w._ »_
- 'SEE:-Jar

continued by the authority of the Central Government
in any area outside the said territories' the words 'a court
in any State or area in India outside the said tenitories'
be substituted." = V f

Introductory.

Section 106(1)
and section 149,
I.P.C.

CHAPTER VIII

SECURITY FOR KEEPING THE PEACE AND FOR GOOD
BEHAVIOUR

8.1. The main sections of this Chapter are sections 106 to
110. They empower Courts and Magistrates to take security
from persons in certain circumstances in order to ensure that
they keep the peace and are of good behaviour for a speciﬁed
period. The remaining sections lay down in detail the proce-
dure to be followed by the Magistrates before ordering anyone
to furnish security and the action to be taken after passing such
orders. Security proceedings under section 106 are basi
different from those [under the other four sections in that the
demand for security under the ﬁrst section may be made only by
a Court convicting the person of certain types of offences. The
order for executing a bond to keep the peace has to be passed
by the Court at the time of passing sentence on the convicted
person. Proceedings under section 107, 108, 109 or _110, on
the other hand, are independent proceedings initiated either by
the police or by private individuals and partake of some of the
characteristics of a regular trial.

8.2. The scope of section 106(1) has been discussed in
detail in the earlier Report} Noting the uncertainty that exists
as to how far a person constructively liable under section 149 of
the Indian Penal Code could be ordered to give security under
this section, the Commission suggested the addition of a lengthy
explanation as follows 2--

"Where any offence speciﬁed in this sub-section is com-
mitted by a member of an unlawful assembly, in prosecution
of the common object of the assembly, or is committed by
a member of an unlawful assembly and the oﬂence is me
which the member 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 assembly wlnn
the offence is committed, whether or not he has himself
committed the oﬁence."

On a further consideration of this point we think that the ﬁr-
ler and better course would be to omit the excepﬁon regard
mg section 149 of the Indian Penal Code which is now to be
found in section 106(1). The controversy has arisen become
of the speciﬁc exception of section 149. If the reference to
section 149 is omitted from section 106, the Court may, no
doubt, in their discretion demand security from a person can-
victed under section 149 whatever he the nature of the oﬂence
committed by the other member or members of the unlawful
assembly. This slight extension of the scope of section 106'

oftheCodewillnot,inouropinion,beharmfnlinanywuy.

137m neport,pms.219fto2s2.

8.3. Another point on which an amendment was suggested
in the earlier Reportl refers to the words "assault or other
oiience involving a breach of the peace". Judicial decisions are
conﬂicting in regard to what is an oﬂence involving a breach of
the peace. So far as the offence of assault is concerned, we
think that it should be made clear that a person convicted of
the oﬂence could be called upon to furnish security for keeping
the peace and it would not be necessary to inquire whether the
assault was inside a house or in a public place or was otherwise
accompanied by circumstances to show an intended, actual or
likely breach of the peace. Similar considerations should, in
our opinion, apply also to any oﬁence which consists of, or in-
cludes, using criminal force or committing mischief. The latter
appears to be specially desirable in order to check violent
demonstrations involving deliberate destruction of property which
are unfortunately becoming common.

8.4. As to the categories of Courts which may take action,
the section enumerates "a High Court, a Court of Session or the
Court of a Presidency Magistrate, a District Magistrate, a Sub-
divisional Magistrate or a Magistrate of the ﬁrst class". It should
be quite suﬂicient to mention a Court of Session and the Court
of a Magistrate of the ﬁrst class, since District Magistrates and
Sub-divisional Magistrates will not be trying cases and a Magis-
trate of the ﬁrst class will include a Metropolitan Magistrate.

8.5. Section 106 may be revised as follows :--

"106. (1) When a Court of Session or the Court of a
Magistrate of the ﬁrst class convicts a person of any of
the offences speciﬁed in sub-section (IA) or of abetting
any such oifence and is of opinion that it is necessary to
take security from such person for keeping the peace,
the Court may, at the time of passing sentence on such
person, order him to execute a bond, with or without
sureties, for keeping the peace during such period, not
exceeding three years, as it thinks ﬁt.

(IA) The oﬂences referred to in sub-section (1)
are---

(a) any offence punishable under Chapter VIII of
the Indian Penal Code, other than an offence
punishable under section 143, 153A or 154
thereof;

(b) any oﬁence which consists of, or includes,
assault or using criminal force or committing
mischief;

(d) any other oﬂfence which caused, or was intend-
ed or known to be likely to cause, a breach of
the peace.

. (2) If the conviction is set aside on appeal or other-
wise, the bond so executed shall become void.

(3) An order under this section ma also be made
by an Appellate Court or by the High urt when ex-
ercismg its powers of revision."

137th Report. Data. 282.

"other oﬂenee in-
volving a breach
of the peace".

Courts mentioned

in section 106(1).

Section 106 re-
visci

8.6.. Security pro,ceeﬁng§gv3uﬁdier"'seetion1'10:7;9tii ""'be'-ta_kcI!.

by 1a Presidency Miigistratef Distn'et''Ma'gistih2te, ; ' 'vis'ionﬁl

.,",'§";,,"_""""°"" Magistrate or Magistrate 'off/th'e"'Iiist'elass1".a|ga3fisY"any 'pefi§8a
who is likely to commit breaehiof the peace or disfuﬂﬁ the"pul§!iie
tranquillity or to 'do any v?r*reh"ful-V act that"'ﬁ1ay proba. '
occasion a breachlof t-he peaeeior ' , b'the¢publice'-tranq'u' .'
A private member's Bill' introduced in 'in I
sought to repeal this section and section 109' on,t_h'e.ground that
these sections "have -been instruments of oppressioniin the hands
of the local police". We' are' unable to agree with=this'
We understand that most 0 the State Governments have express}-
ed themselves strongly a st' the proposed repeal of sections
107 and 109. A provision' of this nature is,'*in-oiir opinion, Very
necessary for maintaining peaceand order in any area. '

P°"'°' .'h°"1d 5° 8.7. In all States where so ation of the iudici has
:33: $a;!ls§;'t°e;_ introduced in some form or otiizei, powers under 'thi?ysection are
A exercisable 'exclusively by executive magistrates. In order to be
' eﬂfective, proceedings under the' section have to betaken urgent}-7

ly, and as they are immediately concerned «widwrtheimaintenancd

of peace and order; the functions :slr'ould; i«mI'l0l1l" opiniorr,4f'b"¢

assigned to executive magistrates; :!Wu' do vlnomtiioiwever, think

it necessary' to restrict the power to'tako'action'umierJ's'uhH'sectiolw

(1') to District Magistrates ~and::&1b--divisional:.MIa'gistriates. "ME

District Magistrate who is the azchrrinistrativedieatfiof uie district

will not in practice have any_t,i;ne. toalook, to,such"proceedings.

It is therefore proposed tIiat"a'ny'executiV'e'magistrates may be

vested with the power §to"'taite' security'ptoc'eedings"'under this

section. It is not necessary to 'invest, judicial magistrates with

concurrent powers. . .s~- hr. ' r-(.«; 2: 2:

Sub-sections (':2 j 8.8. With this .cha1ig¢f,fi1'1[€'Jb--sLectigt§. ijj(r,j;'ft1{fg:' will be no

. .13.'-z; w

W'. <4 my need for the provisions comai e3'iri,s A-'section '(3)"and (4)
mm ' which at present' enable' a 1.'t1ag'iiti,'ate;of$!he¢§3l§.Qﬁ&O9§;§155Td 01353

to' take action in an 'emerge,ncy,"i's'suef a'.'w'arriint,';offM for the
person proceeded a ainst andﬁtseiid liim_'to ,','3§i';

magistrate or a ma strate of the *ﬁr§t"cTass'ib_r bei 'g"dea1t with
under sub-section (1).? Sub+'a9ection's"'(3) and ((44)! may be

omitted.
Sevwcéion I07 re- _ 8.9. Section 107 may, follows :--
seeuiiryroi "107. (ii Whien 'ari*~;l'.'x'ec'u;ii't»' "Magistrate receives
keepinsthcpeaee information that any person is like "¥d"commit a breach
"' °'h°" °"°'° of the peace :or:dis!utb>?l!he public; tranquiility or to do

any wrongful act ?that: may»-'probab.l r:'oc'casion a breach
of the peace or disturb the publicii anrquillity and is of
ppinion thtﬁi» there piss' :1IJt']l'ﬁCien§;;gr§J5Ztnd'-;'i:§t)£1'd(1z'0cee_cling, 11;

may, 111 e ,mann" er _ er... row" vrequire sue
person to show' cage, iv §91£1le,[.s,I_)1t_? ' ';n.9t'lE>e ordered to
execute a' bond, with or without} 'etigg, for keeping the
peace for such period_not exceeding one year as the
F' Magi__sttate"ﬁ1§ilts} tit*:_.~!; ' 11'
A (2) Proceedings ' iiiit'iei"tiiis 'seetieii its 'Be taken
'mm: -isefore anynlsfxateaivélrmagtsarut 'bvaeﬂfei the place
?>'J'$J'liete4«"tiie liitdich-'lt')f{€1€_°péHde sraibiantaneew appre-
hended is within his-Iﬁ§iW3iri§dit3di5i§"br?'tlﬂ'ie3'°i§' within

1 Bill No. 41 of 1966 by Shri Mndhu Limiﬂé Mﬂa .t1oqsSi rlIT£ '

jun'-:dic,tion.:a.persoa wh9.is¢l;'kely.to commit a
.5: .'0f Peaﬁﬁiﬁr. .tFal1$F§}111§Y 9!
. to do any wrongful pct as _afm-vsaxd bey.0ad..4uGknIurwdtc-
tiQﬂ.;i i' V_ ,1 V7 3... E ;',.':i, '),I

7'1: . s.

_g:s.1o. Sections 108; =1q9'ian& 11;bi,'p'xov1dc 'for tal(ing"security
forgood behaviour' from peisorls dissenﬁifating 'seditious matters
or matters amounting to intimidation or defamation of'a Judge,
from vagrants and suspected persons, and from habitual offend-
ers,' respectively. The quesﬁon.,arise's,w1hether this power which
is',now vested in all senior7M2jgistrat's,' Judicial and executive,
should be vested only in Judicial Mfzgistrates or in Executive
Magistrates or. concurrently in,' both. '_The present position in
the States where separation of the judiciary from the executive
has been eﬂected to some extent, is. not uniform. In the earlier
Report,' emphasis was laid on the preventive nature of' these
security proceedings and on their vital impact on the mainten-
ance of. law and order and the recommendation was to the effect
that the powers under all the three sections should be vested
exclusively in Executive Magistrates.

_ A 8.11. This matter was again discussed in detail before us.
We, are of the view that, having' re rd. t" itlietfact that the ﬁnal
order to be passed in these proqec 7 cts the liberty of the
person against whom the proceedings "are instituted and that
sitting of evidence in a judicial manner is required before an
order demanding securityvzean justiﬁahly bevpassed, it is desir-
able to vest these powers exchlsiveljn in«..Judicial Magistrates.
Inquiry under any of these ﬂ1ree<sec*tionss partakes of the charac-
tei:::o£':a trial, though technically 'tha'Ipersom.'against whom the
proceedings are. talrengis not'an;-racclxsedniperson, there is no
otfencc '10. be7inq1:1i1*dd'v=iIito:.1>r"tiried: and theordinary rules of
evidenwrj ma relaxed:-rte»! some ﬁxtzerits 'A;ll;:«Magistrates of the
first class"may, -in 'our opinion, the given powers under these three
sections. At" the same time, wdr-dozénot think that the powers
under these sections need be vested concurrently in both Judicial
and Executive~Magistrates although »tl;1is,is the position in some
States at present. Under a statutory scheme olhsepaxzatinn, such,
a system is likely to create confusion and even [otherwise has
nbthiﬂg 'MI; 1-; "1 : :

8.12. Sub-section (1) of section 108
revised as follows :----

w: « .7?' W: g-. m »;

A. « -wf*:r:,f>"..lWhen a Masistsats «is: tiJst»..°1a§ rrspsivss
£h<_=.r«'= is . .i"_ri5_d;?,€"°l9.';Fu.1Y2
~i I X " _v,, ,.;'r9r .-§W!th9*'ti)s"i33!:J "r5d19H99¢: ,.-?v'.¢'°rr
will mung.-m I n.w.1ner».t1n .

I E"-' V 1
may accordingly be

" " " ":09?!-1X;"L

msssessnaraates you at:empts- tli¢'j--§li's:n'
:1' $.:c.'.I.mia:..°cn~ "' v"!"l-"l:'iZf'> 'mi ri ' " " 'y::r?"'v

f(a'):a1'ryi1i1a>t1isr.':tth:ripul)1idzItil)nrIoﬁ<svhich'.is r lahb
- f/f.' mmimmies '1r24lA21ior8I53tA;rof)tl1e: Ihdianl

V ; ' Penal Code, or t "T 3
--.:m:: .::::.2. n 6.".--;~.< =a:,r. 'mv ;s::m :1) no ='",-'
.rz:"?.~7:',!') <r!.f(b,).rr)lW.¥i;. 4. .. . I . Wd'!'?i3.E@lm°"m5
"ggoﬁgsglna . at E"?ﬁ*i599m under
_.:.'e1..I,1....i ena1.....° 9. .

1 37th Report, para. 286. -995 -mm =110q95l d1V'E '

Secutiry for good
behaviour under
sections 108, 109
and 110.

A 4'1).

2'1'.

: ',.'.J_»'

. .'.'.!../

Power to vest'
exclusively in
judicial magis-
trates of the first
class.

.~,/,

'1 ".1;
Section 108 (1)
revised.

Section 109 re-
vised.

Security for good
behaviour from
vagants and sus-
pected persons.

Section 110
amended.

Sections 118 and
123(3).

and the Magistrate is of opinion that there is sufficient
ground for proceeding, the Magistrate may, in the man-
ner hereinafter provided, require such person to show
cause why he should not be ordered to execute a bond,
with or without sureties, for his good behaviour for such
period, not exceeding one year, as the Magistrate thinks
fit."

8.13. As regards section 109, clause (a), the Commission
referred' in the earlier Report to the controversy as towhether
the person proceeded against should be concealing his presence
within the Magistrate's jurisdiction or whether it is suﬁicient
it' the person, being within Magistrate's jurisdiction, is taking
precautions to conceal his presence with a view to committing
an offence. The following re-draft of the section will make the

intention clear :--

"I09. When a Magistrate of the first class receives
information----

(:1) that there is within his local jurisdiction a per-
son taking precautions to conceal his presence
and that there is reason to believe that he is
doing so with a view to committing an offence,
or K

(b) that there is within his local jurisdiction 3

person who has no ostensible means of subsis-
tence or cannot give a satisfactory account of
himself, the Magistrate may, in the manner
hereinafter provided, require such person to
show cause why he should not be ordered to
execute a bond, with sureties, for his good be-
haviour for such period, not exceeding one
year, as the Magistrate thinks ﬁt."

8.14. In section 110, the opening paragraph may be amend-
ed as follows :--

"When a Magistrate of the ﬁrst class receives infor--
mation that there is within his local jurisdiction a person
who----".

8.15. In regard to sections 118 and 123, we notice that it is
provided in section 367(6) that an order under section 118 or
section 123(3) shall be deemed to be a judgment. The object
of this provision (inserted by the Amendment Act of 1923) is
apparently to ensure that reasons are given separately and in
suﬂicient detail as to each person proceeded against under this
Chapter. It would, in our opinion, be more appropriate to lay
down this requirement (which in practice is observed by Magis-
trates) in section 118 itself by adding a sub-section as follows :--

_ "(2) Everyorder made under this section shall con-
tain the point or points for determination, the decision
thereon and the reasons for the decision."

1 37th Report, para. 299.

Order under section 123(3) are passed by Sessions Judges.
who may be expected to give reasons without a statutory require-
ment. We do not consider it necessary to add a similar pro-
vision in section 123(3).

8.16. Section 124 gives power to the Chief Presidency Section 124.
Magstrate 111 a presidency-town and to the District Magistrate
if he thinks that it can be done without hazard to the commu-
nity. This is treated as a purely executive or administrative
function, analogous to the power vested in the Government to
suspend, commute or remit sentences passed on persons con-
victed ot' offences. As such we do not consider it necessary or
even desirable to coner a concurrent power on the Chief Judi-
cial Magistrate, as recommended by the Commission in the
earlier Report.' Since our scheme visualises a District Magis-
trate in metropo 'tan areas, we propose to omit all references to
Chief Presidency Magistrate in section 124.

In mib-section (2) an exception is made of when the original
"order has been made by some Court superior to the District
Magistrate". It would be simpler and clearer to refer expressly
to the High Court and the Court of Session. The words in
brackets may be amended to read "unless the order has been
made by the High Court or the Court of Session".

8.17. In section 125 also, the reference to the Chief Presi-- Section 125.
dency Magistrate may be omitted and the words "not superior
to his Court" may be replaced by the words "other than the

Hi@ Court or the Court of Session".
8.18. As recommended in the earlier Report," esction 126 Section 126.

"l26. (1) Any surety for the peaceable conduct or Discharge of
good behaviour of another person ordered to execute a 3ul'¢'i¢5-

(2) On such application being made, the Court shall
issue a summons or warrant, as it thinks ﬁt, requiring the
person for whom such surety is bound, to appear or to
be brought before it."

8.19. In view of the amendment made in section 126, section se¢gion125A,
126A will require agconsequential amendment, viz. the addition
of "or Court" after "Magistrate".

1 37th Report, para. 317. - _

237th Report, para. 321.

Introductory.

Power to
for executive ma-
gistrates only.

Provisions should
remain in the
Code.

Sections 132 and
132A.

Amendments
proposed.

. VASSEMBLTES: _ = M/

. .. . .-- . ~~ . ,,,-1.14

9.1. Sections 127 to 130A 'deal with the.dispers'a1. of unlaw,_ﬁiI,,
assemblies. Powers_' in this respect are conferred "primarily on"
any Magistrate or oﬂicer in charge of a police,-station. When_,1
the public security is manifestly endangered and"_when}no
trate can be communicated with, any commissioned oﬂicer _'o£ ,
the armed forces may disperse the assembly with the help, of,

the forces under his command.

9.2. In the earlier Report the 'question whether". I Hlpowersj
should be with Executive Magistrates or Withboth J11. 'c_ia._l .a'nd'»,'
Executive Magistrates was examined and the Commission came'
to the conclusion' that it would be better to conﬁne these powers
to Executive Magistrates; iW:e\ are, also of' the same view.

9.3. The Commission consid_er_ed'anfextreme suggestion made/g
by the Madras Bar Council that Magistrates should not have}
anything to do withithe dispersal of unlawftil"asSembljes ancrit',
should be left to thepolice and the armed forces to tackle them. '
The Commission did not agreerwith the suggestion and sawano
need to disturbfthe sfn1ctu' efpf I,he'.Code bycputting the proyi-- ,
sions in a separate law. Wfe' share this view.' «

. > v, y I I , [X
9.4. Section 132----clauses (b) and (d)--'----provide's that no"
officer acting under section 13,1_.in, good. faith and no inferior
oﬁicer, or soldier» 5'§*i1°I?-05?: . fin Ih€,t3l'1334'3d -forces .d9i.nsn
any act in obedience teeny -9'r<ie¥«v?!hic11.;heravas :to obey,-I
shall be deemed to have thereb3{_.r;rgrnmitt?d.;an.£ The,
expression "oﬂicer" is deﬁned in section 2A as meaning a
person comn1issi9n.ed,.or. gaZ0t1Ied.;JO'l'tJil1 may as 3-amenicer of the
armed forces andrvbillﬁtlud-_i;ng.:,a~i&lni11>1* dommissiolhd iaﬁicer, a
warrant olﬁcery, it I WM 0ﬂi<-wrmand: re; :iT§>n-'cumrstsissi£>nedv'oﬁicer.
Though theA'¢?'«§9:essizt)ns»'%in£erior oﬁeer"'~.is not=d1\.ﬁned,» iris fairly
clear that this expression as used in.sectior1Hl32((d)_,covers' all
ofﬁcers other '

1
J

rénaaeiﬁe "6.Iié"-'ak§'t1" en '1~':tn= éamm::;.em:d a certain
situation and was h;éee=to'= act' in"o I' nae 'fci;th5t'diﬁ9,§i;'§,prdem.
In every armed 7forc'e'of thet'Iilfiio1i,f'tith&'tf the
Air Force and the_Navy, there is a diéisﬂ" Betweéifoiﬁcers and
men, but the latter may not strictlywcovme the gleseription
of
lacuna. we itiroiibse T ' "' 1_$:¢.7,9t1. -- T re er,
generally to "oﬁicer or member I:3f"t'liE=2"ai'med "forces"'a'nd a'
deﬁnition of "member" added in section 132A.

9.5. No other amendments of substance are required in this
Chapter. The following amendments may be carried out 1--

(i) In sections 127 to 132, for the word "Magistrate"
wherever it occurs, the words "Executive Magistrate"
be substituted;... . . . . .

.'r'i€ .nu;q ,)lu\{J

JSC .£)'Ie.;q ._r-toqail rl!x'<'.'~'

1 37th Report, paras. 323 and 324.

)Ie~v£---4L,,

(ii) In section 127, sub-section (2) be omitted;

(iii) In section 128, the words "whether within or with-
out the presidency towns" be omitted;

(iv) In section 132, clause ((1), for the words "inferior
officer, or soldier, sailor or airman in the armed
forces", the words "oﬂicer or member of the armed
forces" be substituted; and in the proviso, for the
words "soldier, sailor or airman in the armed forces",
the words "member of the armed forces" shall be
substituted;

(v) In section 132A, the following clause be added,
namely :--

"(c) 'member', in relation to armed forces, means
a person in the armed forces other than an
oﬂicer."

M33MofI-IA/69

Section 133.

Sections 135 to
139---jury provi-
sions unneces-
sary.

CHAPTER X
PUBLIC NUISANCES

10.1. Under section 133, a District Magistrate, a Sub-divi-
sional Magistrate or a Magistrate of the ﬁrst class may take
action for the removal of any such public nuisance as is described
in the section on receiving a police report or other information
and on taking such evidence (if any) as he thinks ﬁt. In the
earlier Report} the Commission considered that this function
should be with the Executive Magistrates and further that it
need not be conﬁned to District Magistrates and Sub-divisional
Magistrates. We agree that Judicial Magistrates need not be
brought in to adjudicate on these matters and to pass orders
for the removal of nuisances and, accordingly, the reference to
a "Magistrate of the first class" in sub-section (1) will have to
be omitted. We, however, consider that instead of empowering
any Executive Magistrate to take action under the section, the
State Government should specially empower an Executive Magis-
trate if and when considered necessary.

In view of the deﬁnition? we are proposin for the expres-
sion "police report" which will not be applicab e in this context,
it is better to refer to "the report of a police oﬂicer" instead of
"a police report".

The ﬁrst four lines of section 133(1) may accordingly be re-
vised to read :--

"(1) When a District Magistrate or a Sub-divisional
Magistrate or an Executive Magistrate specially empower-
ed in this behalf by the State Government, on receiving
the report of a police oﬂicer or other information and on
taking such evidence (if any) as he thinks ﬁt."

Consequentially, the last paragraph of section 133(1) may be
amended to read 2--

"to appear before himself or some other Executive
Magistrate subordinate to him, at a time and place to
be ﬁxed by the order and show cause why the order should
not be made absolute in the manner hereinafter provided."

10.2. Sections 135 to 139 contemplate the appointment of
a jury consisting of not less than ﬁve members who will practi-
cally decide whether the conditional order made by the Magis-
trate under section 133 is reasonable and proper or whether it
should be modiﬁed in any way or whether it should be made
absolute. In the earlier Report3 the Commission did not agree
with the concurrent suggestion of a State Government and of a
High _Court Judge that the provision for the appointment of a
Jury in these proceedings is not necessary. The Commission
expressed the View that the function of the jury is to decide

137th Report, para. 330(ii).
2 See para. 1.27 above.

=37th Report. paras. 133. 141.

whether the measures directed by the Magistrate are reasonable
and proper and as the powers given to the Magistrate are of an
exceptional nature, the jury provisions which are intended to
operate as a check on the exercise of the summary and arbitrary
dealing with the right of property may be retained.

On considering the matter further, we are unable to agree
with this view. We notice that the Committee set up in Uttar
Pradesh for investigating causes of corruption in subordinate
courts stated that, "experience over the years had shown that
very rarely did a party ask for the appointment of a jury; further
whenever -1 party did ask for the appointment of a jury, the re-
quest was not made in order to have a proper decision of the
case but was made mainly for the purpose of delaying the pro-
ceedings." Even in regard to sessions trials, we are proposing
the abolition of the jury system since it has not worked satis-
factorily in practice. A jury of the type provided for in section
138 (the foreman and one-half of the remaining members being
nominated by the Magistrate and the other members by the pre-
son concerned) is, in our opinion, most unlikely to be helpful
in reaching a proper decision. It will be diﬂicult for the Magis-
trate to ﬁnd person in the locality imbued with a strong civic
sense, and capable of resisting extraneous pressure, to serve as
jurors in such proceedings.

10.3. Sections 135 and 136 may accordingly be revised as
follows :--

ha1'1'l35. The person against whom such order is made
S 1

(a) perform, within the time and in the manner
speciﬁed in the order, the act directed thereby;
or

(b) appear in accordance with such
show cause against the same .

"136. If such person does not perform such act or
appear and show cause . ., he shall be liable to the
penalty prescribed in that behalf in section 188 of the
Indian Penal Code, and the order shall be made abso-
lute."

Sections 138 and 139 which provided for the appointment of
jury and the further procedure may be omitted.

order and

10.4. Section 139A lays down the procedure before the
Magistrate when the person against whom a conditional order
is made under section 133 denies in a relevant case the exist-
ence of_ a public right. No amendments of substance are re-
quired in this section, but it should obviously precede section
137 and not come after it. As section 138 is to be omitted the
following consequential amendments will be required in seétion
139A--

(i) in sub-section (1), omit "or section l38";

(ii) in sub-section_(2) omit "or section 138", as the
case may require"; and

Revision of sec-
tions l35 and 136
and omission of
section 138 and
139.

Person to whom
order is addressed
to obey or show
cause or claim
11113'-

Consequence of
his failing to do
so.

Section 139A
should be placed
before section
137.

Section 137 re-
vised.

Procedure where

he appears to
show cause.

New section for
local investiga-
tion and expert
evidence.

Power of Magis-
trate to direct
local investiga-
tion and exami-
nation of an ex-

pert.

Section 140
143.

(iii) in sub-section (3), omit "nor shall any question
in respect of the existence of any such pubhc right
be inquired into by any jury appointed under section
138".

10.5. As pointed out by the Commission in the earlier
Report} it has to be made clear in section 137 that the Magis-
trate has the power to modify the conditional order on the basis
of the inquiry made by him and then make it absolute. Section
137 may be revised as follows :

"137. (1) If he appears and shows cause against the
order the Magistrate shall take evidence in the matter as in
a summons case.

(2) If the Magistrate is satisﬁed that the order, either as
originally made or subject to such modiﬁcation as he considers
necessary, is reasonable and proper, the order shall be made
absolute without modiﬁcation or, as the case may be, with
such modiﬁcation.

(3) If the Magistrate is not so satisﬁed, no further pro-
ceedings shall be taken in the case."

10.6. In the earlier Report2, the Commission has suggested
an additional provision enabling the Magistrate to direct local
investigation and the examination of experts. The provision
which should be useful is as follows :--

"l37A. (1) The Magistrate may, for the purpose of an
inquiry under this Chapter--
(21) direct a local investigation to be made by such per-
son as he thinks ﬁt; or
(b) summon and examine an expert.
(2) Where the Magistrate directs a local investigation by
any person under sub--section (1), the Magistrate may--
(a) furnish such person with such written instructions as
may seem necessary for his guidance; and

(b) declare by whom the whole or any part of the neces-
sary 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 costs of such summoning and examination shall be
paid."

10.7. The reference to section 139 in section 140(1) and the
whole section 141 will have to be omitted. No amendment is
required in section 142. In section 143, the reference to "any
other Magistrate" may be changed to "any other Executive
Magistrate".

1 37th Report, para 339(ii).
2 37th Report, para. 340.

CHAPTER XI

TEMPORARY ORDERS IN URGENT CASES OF NUISANCE
AND APPREHENDED DANGER

11.1. Chapter XI consists of a single, well-known and fre-
quently used section--section 144. This confers an omnibus
power on senior Magistrates to issue, what the marginal heading
of the section pithily describes as "order absolute at once in
urgent cases of nuisance or apprehended danger." The wide
range of situations in which Magistrates may resort to this power
in the public interest will be apparent from a reading of the
second paragraph of sub-section (1). Neither the usefulness of
the section not its validity under the Constitution has been
seriously questions. In the earlier Report', the Commission
proposed only a formal amendment in sub-section (1), an
amendment of substance in sub-section (3) and an additional
sub-section with reference to sub-section (6).

11.2. Sub-section (1) of section 144 now confers power on
"a District Magistrate, a Chief Presidency Magistrate, a Sub-
divisional Magistrate or any other Magistrate, (not being a
Magistrate of third class) specially empowered by the State
Government or the Chief Presidency Magistrate or the District
Magistrate to act under this section." It should, in our opinion,
be quite suﬁicient to confer power on "a District Magistrate, a
Sub-divisional Magistrate or any other Executive Magistrate
specially empowered by the State Government in this behalf."
It will be recalled that in matropolitan areas also, there will be
Executive Magistrates appointed by the State Government for
performing functions under the Code.

11.3. As regards sub-section (3), the Commission noticed in
the earlier Report" the limitations of the expression "to the public
generally when frequenting or visiting a particular place" and
suggested that there should be a reference to area in addition
to place and a reference to people residing in a place or area in
addition to people frequenting or visiting a place or area. In
view of the different opinions expressed in judicial decisions,
§ub--section (3) of section 144 requires to be ampliﬁed as

ollows :--

"(3) An order under this section may be directed to
a particular individual, or to persons residing in a parti-
cular place or area, or to the public generally frequenting
or visiting a particular place or area." _

11.4. Under sub-section (6), an order made under section
144 will not remain in force for more than two months "unless,
in cases of danger to human life, health or safety, or a likelihood
of a riot of an affray, the State Government otherwise directs."
This loosely worded sub-section appears to confer a very wide

137th Report, paras. 353 to 355.
237th Report. para. 354 and Appendix 9.

Introductory.

Section 144(1).

Section 144

Section 144(6).

Redraft a ugges-
ted. 6

power on the State Government to extend temporary orders made
by Magistrates for an indeﬁnite period in certain cases. The sub-
section has come in for criticism from the constitutional angle
in the High Courts. In the earlier Report', the Commission,
after discussing these decisions at length, considered it unneces-
sary to lay down any maximum period for the State Government':
directions, but proposed that persons aﬂected by the order should
be given a right of representation to the State Government.

11.5. We also agree that it is not necessary to specify any
maximum period in sub-section (6), but we propose that it
should be re-drafted as follows and placed immediately after
sub-section (3) :--

"(3A) No order under this section shall remain in force
for more than two months from the making thereof :

Provided that, if the State Government considers' it
necessary so to do for preventing danger to human life,
health or safety or for preventing a riot or an affray, the
State Government may, by notiﬁcation in the Oﬂicial
Gazette, direct that an order under this section shall remain
in force for such longer period as it may specify."

The provisions of sub--sections (4) and (5) will then apply to
an order the duration of which has been extended by the State
Government under this proviso, as they apply to the original
order of the Magistrate. There should be no need for a pro-
vision enabling the persons concerned to represent to the State
Government.

No amendments are required in the other sub-sections of
section 144.

1 37th Report, Appendix 10.

CHAPTER XII
DISPUTES AS TO IMMOVABLE PROPERTY

12.1. Since disputes over land and water, crops and other
produce of land and rights of user in respect of immovable
property often result in breach of the peace, violence and
bloodshed, Chapter XII (sections 145 to 148) arms the magis-
tracy with powers to intervene at an incipient stage of the dis-
pute and compel the disputanvts to have recourse to legal re-
medies. Experience over the years has proved the usfulness
of the provisions contained in this Chapter of the Code.

12.2. At present only District Magistrates, Sub-divisional
Magistrates and Magistrates of the ﬁrst class are com-
petent to take action under section 145 or section 147.
In Bombay this power is vested by a local amendment in the
Chief Presidency Magistrate, District Magistrates, Sub--divisional
Magistrates or other Executive Magistrates specially empowered
by the State Government in this behalf. We agree with the re-
commendation of the Commission in the earlier Report1 that
Judicial Magistrates need, not deal with cases of this type. Since
in the scheme we are proposing, there will be no Executive
Magistrates of the second or third class and metropolitan areas
also will have separate Executive Magistrates, it is proposed
that all Executive Magistrates may be vested with the power
to take action under this Chapter.

12.3. When the Code was amended in 1955, important
changes were made in sub-section (1) and (4) of section 145
with the object of curtailing the proceedings before the Magis-
trate and expediting the completion of the inquiry as to which
party was in possession of the property. Before 1955 the parties
were only required to put in written statements of their claims

as respects the fact of actual possession of the subject of dispute

and it was for the Magistrate to record at the inquiry all such
.evidence, oral and documentary, as may be produced by the
parties. After the amendment of 1955, the parties are required
under sub-section (1) to put in such documents or to adduce,
by putting in aflidavits, the evidence of such persons as they
rely upon in support of their claims; and under sub-section (4),
the Magistrate ':is normally expected to complete the inquiry
and reach a conclusion on the basis of these documents and
aﬂidavits. The ﬁrst proviso to sub-section (4) gives him a

discretion to summon and examine any person whose aﬁidavits

has been put in by a party.

12.4. The revised procedure does not appear to have worked
'satisfactorily in practice. It is said that stereotyped afﬁdavits
'prepared by lawyers on the same lines as the written statements
-are put in by both sides and these do not help the Magistrate
very much in reaching a sound decision. Examination of wit-
nesses under the ﬁrst proviso cannot in most cases be avoided
and consequently there is no saving of the Court's time. The

1 37th Report, para. 357.

Introductory.

Powers to be exer-
ci by Executive
Magistrates only.

Section 145-;

changes made in
1955.

Revised proce-
dure not satisfac-
tory.

Date for counting
period of two
months under
section 145 (4).

Sub-sections (1)
and (4) revised.

main object of the amendment, which 15 to get_the inquiry eon}-
pleted rapidly, has not been achieved. On principle also, it Is
better that the Magistrate is required to decide the important
fact of possession on the basis of oral evidence given before him
and tested by cross-examination in the presence of parties. We
therefore recommend that the procedure as it existed before
1955 should be restored.

12.5. At the completion of the inquiry under sub-section
(4), it is the duty of the Magistrate to decide whether any, and
if so which, of the parties was at the date of the order made by
him under sub-section (1) in actual possession of the property
which is the subject of dispute. If, however, it appears to the
Magistrate that any party has, within two months next before
the date of this order, been forcibly and wrongfully dispossessed,
he may treat that party as if he had been in possession on the
date of the order. Sometimes it happens that the Magistrate
passes his ﬁrst order under sub-section (1) some appreciable
time after receiving the police-report or other information about
the dispute with the result that the two months' limit speciﬁed
in the proviso does not assist the party wrongfully dispossessed.
In the earlier Report1 the Commission, after examining the case
law on the subject, recommended that the period of two months
should be counted backwards from the date of receipt of the
poliee--report or other information, instead of the date of making
the order under sub-section (1) on the basis of that report or
information.

12.6. Sub-sections (1) and (4) of section 145 may accord-
ingly be revised as follows 1--

"(l) When an Executive Magistrate is satisﬁed from
the report of a police officer or upon other information
that a dispute likely to cause a breach of the peace exists
concerning any land or water or the boundaries thereof
within his local jurisdiction he shall make an order in
writing, stating the grounds of his being so satisﬁed, and
requiring the parties concerned in such dispute to attend
his Court in person or by pleader on a speciﬁed date and
time and to put in written statements of their respective
claims as to the fact of actual possession of the subject of
dispute.

"(4) The Magistrate shall than, without reference to
the merits or the claims of any of the parties to a right
to possess the subject of' dispute, peruse the statements
so put in, hear the parties, receive all such evidence as
may be produced by them, take such further evident)-., if
any, as he thinks necessary, and, if possible, decide whether
any and which of the parties was, at the date of the order
made by him under sub-section (1), in possession of the
subject of dispute:

Provided that if it appears to the Magistrate that any
party has been forcibly and wrongfully dispossessed with-
in two months next before the date on which the report of
the police oﬂicer or other information was received by the-

137th Report. naras. 358 to 362 and 374.

Magistrate, or after that date and before the date of his
order under sub-section (1), he may treat the party so
dispossessed as if that party had been in possession on the
date of his order under sub-section (1)."

12.7. The third proviso to the existing section 145(4) en-
ables the Magistrate to /attach the property if he considers the
case to be one of emergency. In the earlier Report1 the Com-
mission recommended that it should be made clear that the order
of attachment could be passed at any time after the main order
under sub-section (1) had been passed. It further recom-
mended two new sub-sections providing for matters consequen-
tial to attachment. We agree that these provisions are neces-
sary but they may be made in one sub-section as follows :--

"(5A) If the Magistrate, at any time after making the
order under sub-section (1), considers the case to be one
of emergency, he may attach the property which is the
subject of dispute, pending his decision under this section,
and make such arrangements as he considers proper for
looking after the property. The Magistrate may, if he
thinks fit, appoint a receiver who, subject to his control,
shall have all the powers of a receiver appointed under
the Code of Civil Procedure, 1908; and if in any such
case the order of the Magistrate under sub-section (1) is
cancelled under sub-section (5), the Magistrate shall with-
draw the attachment and make such consequential or inci-
dental orders as may be just."

12.8. With reference to sub-section (6) of section 145, the
Commission recommended in the earlier Report2 a speciﬁc pro-
vision to the effect that the order made under sub-section (6)
shall be served and published in the manner laid down in sub-
section (3). A sentence to this effect may be added to sub-
section (6).

No other amendments of substance are required in section
145.

12.9. Before 1955. the procedure under section 146 was
short and simple. If the Magistrate decided that none of the
parties was in possession, or if he was unable to satisfy himself
as to which party was in possession, then he had the power to
attach the property "until a competent court has determined
the rights of the parties thereto, or the person entitled to pos-
session thereof". The amendment of 1955 introduced a novel
scheme, whereunder in such cases, besides attaching the pro-
pertv, the Magistrate has to draw up a statement of the facts
of the case and to forward the record of the proceedings to a
competent civil court, for deciding the question of possession.
Further, the Magistrate has to direct the partia to appear be-
fore a civil court on a date to be ﬁxed by the Magistrate. The
object of this amendment was to shorten the overall time taken
in the criminal proceedings and the subsequent civil proceedings.
The new procedure was examined in the earlier Report} and
both theoretical and practical objections were raised. Theoreti-
cally the procedure was anomalous, since it contemplated a

1 37thmIH{eport. para. 375.
237th Rep0rt. para. 387.
337th Report. paras. 392 to 394.

New sub-section
(SA).

Subsection (6).

Section 146--re-
version to pre-
1955 position re-
commended.

Power to attach
subject of dispute.

Section 147---sub-
section (1) 1'6-
vised.

reference to a civil court as a part of the proceedings in a crimi-
nal court. The main object of the proceedings under this
Chapter was to take steps for immediately preventing a breach of
the peace, and once those Steps were taken, the proceedings in
the criminal court should come to an end. As regards the practi-
cal working of the amendment of 1955, dissatisfaction had been
expressed in several quarters. The earlier Report, therefore,

recommended restoration of the former position. We are also of
the same view.

The section may be revised as follows :--

"146. (1) If the Magistrate decides that none of the
parties was then in such possession, or is unable to satisfy
himself as to which of them was then in such possession
of the subject of dispute, he may attach it until a compe-
tent Court has determined the rights of the parties thereto,
or the person entitled to possession thereof:

Provided that the District Magistrate or the Magistrate
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 by 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 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, the Magistrate--

(a) shall order that the receiver appointed by him shall
hand over possession to such receiver and shall there-
upon be discharged, and

(b) may make such other consequential or incidental
orders as may be just."

12.10. Section 147 deals with the power of Magistrates to
intervene in cases where the dispute is in regard to right of
user of any land or water, whether such right is claimed as an
easement or otherwise.

Sub-section (1) of section 147 may be revised on the same
lines1 as sub-section (1) of section 145 to read as follows :--

"(l) When an Executive Magistrate is satisﬁed, from
the report of a police officer or other information, that a
dispute likely to cause a breach of the peace exists regard-
ing any alleged right of user of any land or water. ..
within his local jurisdiction, whether such right be claimed
as an easement or' otherwise, he shall make an order in
writing, stating the grounds of his being so satisﬁed and
requiring _the parties concerned in such dispute to attend

1See para. 22.6 above.

Q-v

his Court in person or by pleader on a speciﬁed date
time and to put in written statements of their respective

claims. . .

Explanation--The expression "land or water" has the
meaning given to it in sub--section (2) of section 145."

12.11. In regard to sub-section (2), there is a conﬂict of
decisions as to the scope of the words "prohibiting any inter-
ference with the exercise of such right". The Commission, after
noting this conﬂict in the earlier Report} recommended that the
position should be clariﬁed so as to empower the Court to order
in a proper case, the removal of any obstruction in the exercise
of any such right. In the proviso to this sub--section, it was
recommended that instead of "three months next betore the
institution of the inquiry", it should be "three months next be-
fore the receipt under sub-section (1) of the report of a police
oﬂicer or other information." We agree with both these amend-

IDCIIIS .

12.12. It was noted in the earlier Report? that there was a
controversy as to whether a proceeding brought under section
145 could be converted into one under section 147, and vice
versa. The Commission considered it desirable to empower the
Magistrate to proceed under whichever section he found to be
applicable, irrespective of the view taken at the stage of initiat-
ing proceedings. The following new section may be added for this

purpose :--

"l47A. When in any proceedings commenced under
sub--section (1) of section 145 the Magistrate ﬁnds that the
dispute is as regards an alleged right of user of land or
water, he may, after recording his reasons, continue with
the proceedings as if they had been commenced under sub-
section (1) of section 147,

and when in any proceedings commenced under sub-
section (1) of section 147 the Magistrate ﬁnds that the
dispute should be dealt with under section 145, he may,
after recording his reasons, continue with the proceedings
as if they had been commenced under sub--section (1) of
section 145."

12.13. In the earlier Report? the Commission recommended
:the addition of a reference to the Chief Presidency Magistrate
in section 148(1) on the assumption that in presidency-towns,
the Chief Presidency Magistrate will also function as the Chief
Executive Magistrate. Since in the scheme now proposed for
metropolitan areas, there will be District Magistrates and Sub-
divisional Magistrates as in other districts, no amendment is
required in this section.

137th Report, para. 398.
337th Report. para. 401.
3 37th Report, para. 402.

Sub-iedon (2)
amended.

New section
147A

Convertibility of
proceedings un
section 145 and
147.

Section 148(1).

CHAPTER XIII
PREVENTIVE ACTION BY THE POLICE

No amendment Chapter XIII (sections 149 to 153) contains provisions em-

necessary. powering the police to take action in various ways to prevent the
commission of cognizable offences and the causing of injury to
any public property, moveable or immovable. Section 153 cm-
powers a station house oﬁicer to inspect weights and measures,
and if he ﬁnds any of them to be false, to seize them,

No changes appear to be necessary in this Chapter.

CHAPTER XIV

INFORMATION TO THE POLICE AND THEIR POWERS
T0 INVESTIGATE

14.1. Chapter XIV deals with police investigation in all its
aspects from the moment when the information about the com-
mission of an offence is received at the station-house to the stage
when the police complete the investigation and send a ﬁnal report
to the Magistrate. A sharp distinction is drawn right at the
beginning of the Chapter between cognizable cases and non--cog-
nizahle cases. The latter may be investigated by the police only
on the orders of a Magistrate. If a person goes to the station-
house with a report about a non-cognizable offence, the police-
officer has to advise him to lodge a complaint before a Magistrate.
If the information indicates the commission of a cognizable offence,
investigation can commence without the orders of a Magistrate,
but the investigation officer has to send a report about it to the
Magistrate. If the offence does not appear to be serious and
if the station-house--oﬁ'icer thinks there is no sufficient ground
for starting an investigation, he need not investigate but, here
again, he has to send a report to the Magistrate who can direct
the police to investigate, or if the Magistrate thinks ﬁt, hold an
inquiry himself.

During investigation, the police-oﬁicer has the power to require
thetattendance of witnesses before him and to put questions to
them which they are bound to answer. He has also the power
to send any witness he likes before a Magistrate and have his
statement recorded on oath. The police-ofﬁcer has the power to
search any place and seize anything material found at the place.
In such a case he must prepare on the spot a list of the articles
seized and send a copy of the list to the Magistrate. If as a
result of his investigation the police-oﬂicer arrests any person, he
must have that person presented before a Magistrate within
24 hours and thereafter the custody of the arrested person will be
under the control of the Magistrate,

14.2. A noticeable feature of the scheme as outlined above is
that a Magistrate is kept in the picture at all stages of the police
investigation, but he is not authorised to interfere with the actual
investigation or to direct the police how that investigation is to
be conducted. This demarcation of functions between the police
and the magistracy at the investigation stage has been clearly laid
down by the Privy Council in Khwaja Nazir Ahmed's case} It
would appear that the power to "direct an investigation" under
section 159 should be resorted to by a Magistrate only when he
found that the police had desisted from investigation on insuﬂi--
cient grounds and felt that further investigation was likely to pro-
duce results. Following the decision of the Privy Council just
cited, it has been held by the Supreme Court? "that the formation

1A.I.R. 1945 PC. l8.
2Abhimmdan Jim v. Dinesh Mishra, (1967) 3 S.C.R. 668. 678.

Scheme of
Chapter.

Function of Ma-
gistrate _ during
investigation.

Section 154-copy
of ﬁrst informa-
tion report to be
given to infor-
mant.

Section l55(l)----
no amendment
needed.

Caserelating to
a cognizable and
a non-cognizable

offence. 3

Case cognizable
when it relates to
cognizable and
non-cognizable
offences.

Sections 157 to
159.

of the opinion as to whether or not there is a case to place' the
accused for trial is that of the oﬂicer-in-charge of the police station
and that opinion determines whether the report (on completion of
investigation) is to be under section 170, being a 'charge-sheet' or
under section 169, a 'ﬁnal report'." This arrangement seems to
us to be basically sound and we do not think there is anything to
be gained by giving the Magistrate further powers of supervision
and control over the police during investigation.

14.3. Section 154 regulates the manner of recording the ﬁrst
information relating to the commission of a cognizable offence.
After the information has been reduced into writing by the station-
house--oﬂicer, it has to be read over to the informant and his
signature obtained on it_ Under the law however the informant is
not entitled to get a copy of the report then and there. In some
of the States, police rules require a copy of the ﬁrst information
report to be given to the informant. We consider this a healthy
practice and propose that it should be placed on a statutory basis
by adding the following sub--section to section 154 :--

"(2) A copy of the information as recorded under sub-
section (1) shall be given forthwith, free of cost, to the
informant."

14.4. Section 155(1) requires that if the information given to
a police-officer is about a non-cognizable offence, he must enter
the substance of such information in a book and "refer the infor-
mant to the Magistrate". In the earlier Report} the Commission
recommended that the words "having jurisdiction" should be add-
ed after the word "Magistrate". We feel, however, that this addi-
tion is not necessary and the amendment will not be of any
practical assistance to the informant who will, in any event, have
to ﬁnd out for himself which particular Magistrate has jurisdiction
to deal with his complaint. .

14.5. A non-cognizable offence can be investigated by the
police on the orders of a Magistrate, and once such an order is
given a police oﬂicer has in that investigation the same powers
as he has while investigating a cognizable offence. Cases often
occur when during the investigation of a cognizable offence it
appears that a non-cognizable offence also has been committed
and the question then arises whether the investigation can proceed
without a Magistrate's order. The Commission recommended in
the earlier Report? that it should be made clear that the investiga-
tion can proceed in respect of both offences and suggested adding
an explanation to section 155. We entirely agree with this recom-
mendation, but propose a separate section 156A for this purpose
as being more suitable. The section may be as follows :--

"156A. Where a case relates to two or more offences of
which at least one is cognizable, the case shall, for the purposes
of section 154, 155 and 156, be deemed to be a cognizable
case, notwithstanding that the rest of the offences are non-
cognizable."

14.6. Sections 157, 158 and 159 do not call for any comments
or amendments.

1 37th Report, para. 413.
3 37th Report, para. 415.

l4.6a. Under section L60 the investigating po1ice--oﬂicer may
require the attendance of witnesses before himself. In the earlier
Report,1 the Commission recommended that a witness summoned
by the police should 'be paid his reasonable expenses. We agree
and propose the addition of the following sub--sect1on:--

"(2) Subject to any rules made by the State Govern-
ment, the reasonable expenses of any person attending In
compliance with an order under sub-section (1) at a place
other than his residence shall be paid to him by the police."

14.7. Sections 161 and 162, dealing with the oral examination
of witnesses by the police, the record to be made of their state-
ments and the use to which it may be put subsequently, form
the crux of this Chapter. They have attracted a variety of com-
ments and a variety of suggestions. We regret that, in spite of
earnest and prolonged discussion, we have not been able to agree

among ourselves as to how best these sections could be modiﬁed
or altered,

Section 161 empowers an investigation oﬂicer to examine oral-
ly any person acquainted with the facts and circumstances of the
case. That person is bound to answer all questions concerning the
case except those which tend to incriminate himself. The investi-
gating officer is permitted, but not obliged, to reduce into writing
any statement made to him; and if he does so, he must make a
separate record of the statement of each witness. Section 162
then says that the recorded statement must not be signed by the
witness, and the statement so recorded cannot be used for any
purpose other than contradicting the person making it if he appears
to give evidence as a prosecution witness.

14.8. In a previous Report," the Commission expressed the
view that the discretion allowed to a police-oﬂicer to record or not
to record the statement of a witness orally examined by him is in
such unrestricted terms that the whole purpose of section 173
(which requires copies of such recorded statements to be given
to the accused) could be defeated by a negligent or a dishonest
police-oﬂicer. It therefore recommended that the police-oﬂicer
should be obliged by lawto reduce to writing the statement of
every witness whom the prosecution propose to examine at the
trial. This view was accepted in the 37th Report of the Com-

-mission,3 but its recommendation went further to suggest that the

statement of every witness

questioned by the police under section
161 must be recorded.

14.9. It is of course true that the discretion allowed to a police-
oﬂicer to record, or not to record, any statement made to him
during investigation is expressed in absolute terms. Such wide
discretion naturally attracts suspicion_ We can therefore readily
understand why the previous Reports suggested some limitation
which would help to guide the exercise of this discretion. When,
however, we come to consider the concrete situation with which
the law here seeks to deal, we ﬂnd that there is for practical

137th Report. mm. 425.

914th Report Vol. 2. page 755. para. 47.
337th Report, para. 437(b). _

Section 160.

Sections 161
162--Geaenl.

Discretion to _re-
cord examination
of witncss----Com-
mission's former
views.

Present view of
Commission that
discretion should
not be fettered.

Section 16l(2)~--
witness bound to
answer truly ?

purposes no point in imposing a restriction on the judgment of th_e
investigating oiﬁcer. The reason is this A police-oﬂicer investi-
gating a crime has to question, and then to examine orally, a large
number of persons, many of whom may have no useful informa-
tion to give and much of the information is later found to be
pointless, It would be too great a burden on him if he should be
required by law to reduce into writing every statement made to
him; nor would it serve any purpose apart from distracting atten-
tion from the main task.

It was for this reason, we think, that the Law Commission
suggested, in the earlier Report', that the statement of only those
persons whom the prosecution proposed to produce at the trial
need be recorded. Even this requirement seems to us to be un-
workable. The investigator does not always know what the result
of his investigation is going to be; nor does he necessarily know
who will be produced at the trial. The proposed guide line is not
therefore a helpful guide, and we would hesitate to suggest it
as such. Our view is that there is no need to place any fetter
on the discretion of the police-oﬁicer at the stage of investiga-
U01').

This discretion is, in practice, not capable of being abused,
nor have we heard any complaint that it is being abused. There
has been no lack of complaint that the record prepared by the
investigating oﬁicer is not accurate, but no serious complaint that
the statements of material witnesses are not recorded. Here again,
we think the reason is simple. A police-oﬂieer can, without con-
travening the law, omit to record the statement of every important
witness orally examined by him, but such an oﬂicer will not, we
think, stay long in the police force. His superior oﬂiccrs will,
in every case, see to it that his reports are informative enough
for them to judge how the investigation is proceeding. Any appre-
hension, therefore, that because of negligence or dishonest a
police-oﬂieer may misuse his discretion in this connection, oes
not appear well--founded in practice, however plausible it may
appear on theoretical considerations. We feel it is better to leave
it to the investigating officer to record only what, in his judg-
ment, is worth recording and leave the rest to departmental ins-
tructions and supervision. The permissive and discretionary pro-
visions now contained is section 161 ["may examine orally" in
sub-section (1) and "may reduce into writing" in sub-section (2)]
should not be fettered down in any way.

14.10. Sub--section (2) of section 161 requires every person
examined by the police--ot'1icer to answer every question put to
him. The sub--section, however, avoids saying that the person
examined must answer those questions "truly". There is, thus,
at that stage, no legal obligation to speak the truth as there is
later in Court, The reason for this curious attitude of the law
in this respect was explained by the Select Committee in 1898
in these words? :--

"We have amended that clause by reverting to the law
as it stood under the Codes of 1861 and 1872. Under these
Codes a person examined by a police--ofﬁcer was bound to

114th Report, Vol. 2, page 755. para. 47.
9Report of the Select Committee dated 16-2-1898.

answer all material questions, but1 was not liable to be
prosecuted for giving false evidence in respect of his ans-
wers under sections 2193 of the Indian Penal Code. 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 p011_ce-0ﬂ"1061'.
but which is not given on oath, which he_has not signed and
which he has had no opportunity of verifying. Such state-
ments may be hurriedly taken down as rough notes, as the
police-olﬁcer is not trained in taking evidence, and the notes
are often faired out by another oﬂicer. They hear no resem-
blance 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, Indian Penal Code, appear to us to alford a suﬂicient
safeguard against false information."

The Law Commission dealt with this matter in a previous
Report2 and, although feeling that the absence of the word "truly"
virtually suggests that the "version of the witnesses need not be
the true one", still thought that going back to the position as in
1882 was not wholly desirable as it might lead to numerous
prosecutions of witnesses for making false statements to the police.
The same view was accepted by the Commission in the 37th
Report'.

We recognise that a legal obligation to speak the truth carries
with it the liability to punishment if the truth is not spoken.
We think, however, that this is how it should be. If it is neces-
sary to provide that information must be supplied by every
person questioned by the police, the law must also require that
the information is not false or misleading. There seems no point
in saying to every citizen in clear terms that he must answer
eveg question put to him by the police but need not tell the
tru .

We are, in this connection, not unmindful of the practical
aspect of the matter. In the Legislature's mind in 1898 the
apprehension was that prosecutions for making a false statement
to the police might be numerous and they would be unfair if
based mainly on the police record of the statement, which record
will not have been prepared with great care. We do not know
if this had actually happened during the years 1882 and 1898;
but we have no reason to think that it would happen in 1969.
Prosecutions for giving false evidence _in Court are rare enough,
and their successful termination rarer still. The same reasons will
operate more effectively to inhibit prosecutions for making false
statements to the police.

_ The Delhi Police Commission headed by a retired Chief Jus-
tice has suggested' that the word "trully" should be put back

"See Kasiim Ali, (1879) I.I..R. 7 Cal. 121 and I.L.R. 10 Cal. 405.
314th Report. Vol. 2. Page 752. Dara. 44.
3 37th Report, para. 435 and Appendix 11. ,

4Report of the Delhi Police Commission, (1968), Vol. 1, page 175,
paras. 27-28. _

Section 162 (l)---
statement to be
signed by literate
witness.

Section 162(1)---
pse of statements
in evidence.

in section 161. Similarly, a recent Seminar-1 on Criminal Law
which, although organised by a wing of the police, was attended
by a number of judges and jurists from all over the country,
made the same recommendation. We strongly feel that the law
should not be so framed as to give the impression that a person
appearing before a competent authority is free to tell lies. We,
therefore, propose that in section 161(2), the word "truly" be
inserted after the words "bound to answer."

14.11, Section 162(1) ﬁrst lays down the prohibition that "no
statement made by any person to a police-oﬂicer in the course
of an investigation under this Chapter shall, if reduced into
writing, be signed by the person making it." In the 14th Re-
port2, the Law Commission recommended that literate witnesses
should be required to sign their statements. In the 37th Report3,
the Commission did not favour such a change. We feel, as did
the earlier Law Commission, that such a provision would be a
step in the right direction. There is no reason why a witness able
to read the record of his statement should not sign it in token
of its accuracy and we recommend, therefore, that a witness who
can read his statement as recorded by the police should be re-
quired to sign it.

14.12. The second part of section 162(1) is controversial and
has been so for a long time'. It provides that no statement of
a witness to the police, or any record thereof whether in a
police-diary or otherwise, or any part of such statement or re-
cord, shall be used for any purpose (save as hereinafter provided)
at any inquiry or trial in respect of the offence under investiga-
tion, but when that witness is called for the prosecution in such
inquiry or trial, any part of the statement if duly proved, may
be used by the accused, and with the permission of the Court,
by the prosecution, to contradict such witness in the manner
provided by section 145 of the Indian Evidence Act, 1872.

It is this provision that is freely used during criminal trials.
A prosecution witness is confronted with his police statement
and if the two are contradictory, the witness is discredited unless
the contradiction is explained. In principle, the procedure is
sound, We have, however, heard complaints that the police
record of a witness's statement is often inaccurate and that a
dishonest police-officer can write anything he likes. The real
remedy for that, we think, lies in improving the calibre of the
investigating officer. We have heard it said that subordinate
police-oﬂicers who investigate most of the cases are universally
corrupt, and there is little chance of improving them in this res-
pect. A suggestion has even been made that the police should
be relieved of the task of investigation which should be entrusted
to some other agency". We can ﬁnd nothing practical about this
suggestion. Any agency working under conditions similar to the
police will be subject to the same temptations and will develop

1Seminar on Criminal Law and Contemporary Social Change (8th
to 10th May. 1969--New Delhi) Report of Study Group D

214th Report, Vol. 2. pages 752 to 755, paras. 45 to 47.

337th Report, para. 437(c).

4See 37th Report, Appendix 11 which traces history of section 162.

"The suggestion was put fmh before us during our consideration of
the subieet by one of the Members.

the same weaknesses. Nor need we despair of any improvement
in the police force. We should, on the other hand, hope that
with advance of literacy and improvement in the general standard
of living, a public opinion will be created wholly intolerant of
corruption, and with improvement in the working conditions of
the subordinate police, corruption will gradually disappear.

L 14.13. Except for the purpose mentioned in the proviso, sec-
tion 162(1) prohibits the use oi a statement made to the police
during investigation. Two rival suggestions have been made in
this connection. One is that the ban imposed by section 162
should be removed and the police record made available for all
purposes, subject to the rules in the Evidence Act. In other
words, the suggestion is that the statement should be available
not only for contradicting the witness, but also for corroborating
himl. The rival suggestion is that statements to the police should
be totally unusable for any purpose and the proviso to section 162
should be deleted?

It seems to us that there are serious diﬂiculties in the way
of accepting either suggestion and neither oﬁers any substantial
improvement in the existing situation. A total ban on the use of
police statements would deprive the defence of an opportunity
to discover what a particular witness said at the earliest oppor-
tunity. To get over the difficulty, it is suggested that the state-
ment of every "material witness" should be recorded by a Magis-
trate under section 164, and that this statement would be avail-
able to the prosecution as well as defence, It is clear, however,
that the statement before a Magistrate would not be the earliest
statement, but made some time after the witness had been exa-
mined by, and made a statement to, the police. The time lag bet-
ween the two statements may sometimes be considerable and
is liable to be used for improving upon the ﬁrst statement. It
seems to us that the statement under section 164 would not be a
good substitute for the statement before the police.

Secondly, the practical dilﬁculties of getting the statement of
every material witness recorded by a Magistrate would be consi-
derable. A police-oﬂicer would have to interrupt his investiga-
tion every time he came across a material witness in order to
take him to a magistrate; or else, he would have to wait till the
end of the investigation and produce all the material witnesses
before a magistrate, possibly several days after some of the
witnesses actually appeared before the police. Neither situation
strikes us as satisfactory. Our courts have steadily discouraged
the _use of section 164 for recording statements of some witnesses
during investigation. We doubt if, by making its use com ul-
sory in all cases or in a certain class of cases, we wo be
making any improvement.

_The alternative suggestion seems, at ﬁrst sight, less diﬂicult.
Pohce statements are, at present, available for contradicting a
witness, and to make them available for corroborating the same
witness seems merely to complete the picture, Actually, how.

1Seminar on Criminal Law and Contemporary Social Changes, (311;
to 10th 'May. 1969-blew Delhi) Report of Study Group D.

2This is linked with the suggestion that the «statements should be
'ecorded under s. 164, See note appended jyo this ,

Su estions _re-
gar ng section
162 considered.

Section 162(1)-
Contradiction by
prosecution of its
own witness.

ever, there is a material difference between contra_d1_ct10n and
corroboration; and what is good enough for contradicting a wit-
ness is not always good enough for corroborating him. It is
obvious that if a witness says one thing at one time and another
at another time, it is prima facie good ground for distrusting
him; but if a witness says the same thing every time he is ques-
tioned, the reason for trusting him is not so obvious: many liars
are consistent. The policy of law in permitting a witness to be
contradicted by a police statement and not permitting him to be
corroborated by the same statement is basically sound and sen-
sible, On the other hand, there seems to be considerable risk
(in the existing circumstances) in extending the scope of the
proviso along the suggested lines,

We are, therefore, not attracted by either proposal; and,
apart from the change we have suggested above in regard to the
ﬁrst part of section 162(1), we are content, like the previous
Law Commission', to leave the substance of the second part and
proviso unchanged'.

14.14. Before 1955, the statement of a witness to the police
could be used for contradicting him only by the defence and
only if he appeared for the prosecution. The section was amend-
ed in 1955 by adding that a witness appearing for the prosecution
could also be confronted with his statement to the police at the
instance of the prosecution, but only with the permission of the
Court. The intention is that, if a prosecution witness is won over
by the other side, it can be shown that he is not trustworthy as
he had earlier made a different statement. In the Fourteenth
Report', the Law Commission commented on this change and
said that it could not serve any useful purpose. The Commission,
however, did not then recommend any change, and we too are
not recommending any change.

We have also considered another suggestion' that a defence
witness should be allowed to be contradicted by his statement
to the police. With respect, we do not think it would be desir-
able to allow a witness to be contradicted by a record prepared
by the opposite party, The Commission took the same View in
the earlier Report'.

14.15. In the light of the above discussion, we propose that
section 161(3) and the main paragraph of section 162(1) be
amended as follows :--

"161. (3) The police-oﬂicer may reduce into writing
any statement made to him in the course of an examination
under this section; and if he does so, he shall make a separate
and true record of the statement of each such person whose
statement he records, and where the person can read the state-
ment so recorded, obtain his signature thereon after he has
read it.

1 Cf. 37th Report, discussion as to section 162.

2Two of us Shri R. L. Narasimham and Shri S. Balakrishnau, do
not agree with this view. Their suggestions for amending Chapter XIV
of the Code are set out in a Note appended to this Report.

3 See observations in Lanna: v. Kalu A.I.R. 1968 S.C. 1390.

4 14th Report, Vol. 2. poge'753, para. 45.

5 37th Report, pg;-38. {Sb and 451 and Appendix 12.

162. (1) No statement made by any person to a police-
officer in the course of an investigation under this Chapter,. . .
no record thereof, whether in a police diary or otherwise, and
no part of such statement or record, shall be used for any
purpose, save as hereinafter provided, at any inquiry _or trial in
respect of any offence under investigation at the tune When
such statement was made."

14.16. Section 163(1) contains a direction to police otﬁcérs
and other persons in authority not to offer any such inducement,
threat or promise as is mentioned in section 24 of the Evidence
Act. Sub-section (2) then says that such persons in authority
need not by any caution or otherwise prevent any voluntary state-
ment being made by any person, implying that a caution is not
necessarv to a person making a confession. Then comes section
164 which mentions the elaborate precautions that should be
taken by a magistrate before recording a confession and that
includes a caution and a warning. It has been iudiciallv observed
that the provisions in section 163 (2) and section 164(3) are not
in harmony. In the earlier Report.' the Commission had conse-
quently recommended that it should be made clear that section
164 over-rides this implication of section 163(2). We agree
and propose that the following proviso should be added to section
163(2) :--

"Provided that nothing in this sub-section shall affect the
provisions of sub-section (3) of section 164."

14.17. Under section 164(1) at, present, any Presidency
Magistrate or Magistrate of the first class and any Magistrate of
the second class empowered by the State Government is compe-
tent to record confessions and statements during investigation. We
agree with the recommendation in the earlier Report' that only
judicial magistrates should have these powers. We think. how-
ever. that after separation of the iudiciary all second class magis-
trates could be trusted to exercise their powers and no special
empowerment by the State Government or by the High Court would
be necessary.

The earlier Report' considered the question whether state-
ments recorded under section 164 should be on oath or not and
recommended that they should be. The actual practice. we
understand. varies: but it would certainly be proper if such state-
ments were always made on oath and this should be expressly
provided in the section itself.

By way of drafting improvement. we propose a re--arrangement
of the provisions put together in- sub-sections (2) and (3) of
section 164. The sectio nmay be revised to read as follows :--

"164. ( 1) Any Metropolitan Magistrate or Judicial Magis-
trate mav. whether or not he has iurisdiction in the case, record
any confession or statement made to him in the course of an

1 37th Report. para. 460.

237th Report, paras. 461 to 464.

337th Report, para. 466. See also 28th Report on the Oaths Act,
Dallas 29. 30.

Section 163.

Section 164.

Recording of
confessions and
statements.

Section 165 and
I".

Section 167.

investigation under this Chapter or under any other law forthe
time being in force, or at any. time afterwards before the com-
mencement of the inquiry or trial.

(2) The Magistrate shall, before recording any such confes-
sion, explain to the person makingit that he is not bound to
make a confession and that, if he does so, it may be used as
evidence against him; and the Magistrate shall not record any
such confession unless, upon questioning the person making it, he
has reason to believe that it is being made voluntarily.

(3) Any such confession shall be recorded in the manner
provided in section 364 for recording the examination of an
accused person and shall be signed by the person making the
confession; and the Magistrate shall make a memorandum at the
foot of such record to the following effect :--

'I have explained to (name) that he is not bound to
make a confession and that, if he does so. any confession he
may make may be used as evidence against him and I believe
that this confession was voluntarily made. It was taken in
mv presence and hearing. and was read over to the person
making it and admitted by him to be correct. and it contains
a full and true account of the statement made by him.

(Si2ned) A.B.
Magistrate.'

(4) The Magistrate recording a confession or statement
under this section shall forward it to the Magistrate by whom the
case is to be inquired into or tried.

(5) A Magistrate recording a statement under this section
shall do so in such of the manners hereinafter prescribed for
recording evidence as is, in his opinion, best ﬁtted for the circums-
tances of the case, and shall have power to administer oath to the
Witness whose statement is recorded."

14.18. When a police ofﬁcer decides to search a place during
investigation, he has to record his reasons: and if any articles are
seized. he must 'prepare a list. Copies of the records thus pre-
pared have to be sent to a magistrate at once. and sub-section (5)
of section 165 further provides that the "owner or occupier of
the place searched shall on application be Furnished with a copv"
of the same bv the magistrate. The cost of the copies is to be
ordinarily naid by the owner or the occnnier. We agree with
the recommendation in the earlier Renorti that such copies should
be furnished free of cost and propose that in section 165(5) and
in section 166(5), after the woro "furnished", the words "free of
cost" be inserted.

14.19. Section 167 provides for remands. The total period
for which an arrested person may be remanded to custody---police
oriudicial---is 15 days. The assumption is that the investigation
must be completed within 15 days. and the ﬁnal report under
section 173 sent to court bv then. In actual practice, however.
this has freauentlv been found unworkable. Quite often. a
complicated investigation cannot be completed within 15 davs.
and if the offence is serious, the police naturallv insist that the
accused be kept in custody. A practice of doubtful legal validity

137111 Report. paras. 473 and 476.

".5

has therefore grown up. The police ﬁle before a magistrate a
preliminary or "incomplete" report, and the magistrate, purport-
ing to act under section 344, adiourns the proceedings and rernands
the accused to custody. In the Fourteenth Report} the Law
Commission doubted if such an order could be made under section
344, as that section is intended to operate only after a magistrate
has taken cognizance of an offence, which can be properly done
only after a ﬁnal report under section 173 has been received, and
not while the investigation is still proceeding. We are of the same
view. and to us also it appears proper that the law should be
clariﬁed in this respect. The use of section 344 for a remand
beyond the statutory period ﬁxed under section 167 can lead to
serious abuse, as an arrested person can in this manner be kept
in custody indeﬁnitely while the investigation can go on in a
leisurely manner. It is, therefore, desirable, as was observed
in the Fourteenth Report, that some time limit should be placed
on the power of' the police to obtain a remand, while the investiga-
tion is still going on: and if the present time limit of 15 days is
too short. it would be better to ﬁx a longer period rather than
countenance a practice which violates the spirit of the legal safe-
guard. Like the earlier Law Commission, we feel that 15 days
is perhaps too short. and we propose therefore to follow the recom-
mendation in the Fourteenth Report that the maximum period
under section 167 should be ﬁxed at 60 days. We are aware of
the danger that such an extension may result in the maximum
period becoming the rule in- every case as a matter of routine": but
we tmst that proper supervision by the superior courts will prevent
that. We propose accordingly to revise sub-sections (2) and (4)
of section 167 as follows 2--

"( 2) The Magistrate to whom an accused person is for-
warded under this section mav. whether he has or has not
jurisdiction to try the case, 'from time to time authorise the
detention of the accused in such custody as such Magistrate
thinks ﬁt. for a term not exceeding ﬁfteen days at a time and
sixty days in the whole. If he has no iurisdiction to try the
case or commit it for trial. and considers further detention
unnecessary. he may order the accused to be forwarded to a

Magistrate having such jurisdiction :
Provided that--

(a) no Magistrate shall authorise detention in any custody
under this section unless the accused is produced before him;

(b) no Magistrate of the second class not specially
empowered in this behalf by the High Court shall authorise
detention in the custody of the police.

( 4) Any Magistrate other than the Chief Judicial Magistrate
making such order shall forward a copy of his order, with his
reasons for making it, to the Chief Judicial Magistrate."

14.20. The Thirty-seventh Report' did not propose any sections 153 'O
material alteration in sections 168 to 172; nor do we. Only one 172.

114th Report. Vol. 2, pages 758-760. paras. 53 to 56.
2Cf. 37th Report. paras. 477. 478.
3See 37th Report, paras. 485 to 497.

Sect1onl73--sup-
ply of copies of

documems
accused.

Where documents
are voluminous,
impection should
suﬁoe.

lte-opening

investigation.

suggestion needs to be noticed'. It is that the police diaries which
under section 172 a court can send for and look at should be
open to inspection by an accused person. We are unable to
accept the sugestion, as it would dteer informers conveying infor-
mation to the police and hamper speedy investigation. It is clear
that under the law, as it is, all relevant statements recorded by the
police are handed over to the accused, and nothing else is

necessary.

14.21. Section 173 requires every investigation to be comple-
ted without delay, and on completion the police oﬂicer must send
to the proper magistrate a report in a form prescribed by the
State Government, mentioning the particulars of the offence and
of the accused and of the witnesses, apart from certain other
matters. Further, the section provides that after sending such a
report and, in any case, before the inquiry or trial starts in court,
the police oﬂicer must furnish the accused certain documents,
such as copies of statements of witnesses to be produced at the
trial, copies of documents to be relied upon by the prosecution
and copies of any confession made during investigations. There
has been a lot of complaint that these copies are not furnished in
time in most cases, causing much avoidable delay. Also, we
were told at nearly every place we visited that these copies pre-
pared by the police are hardly legible, and nearly every time an
adjournment beocmes necessary to neable defence counsel to
obtain legible copies. The copies are hurriedly prepared by hand
in most cases. It is possible that police oﬂicers whose statutory
duty it is to prepare and hand over the copies to the accused are
not adequately equipped for the purpose, and the extra work
involved has not led to a proportionate increase in the staff. It
would, we think, be much simpler if the statutory duty is shifted
from the police to the magistrate taking cognizance. He would
then be in a better position to ensure that the ease in court is not
held up for want of proper copies and also to ensure that legible
copies are furnished.

14.22. It has at times been found that documents relied upon
by the prosecution are too voluminous to be copied out or even
their extracts prepared. This diﬂiculty has been felt particularly
by the Central Bureau of Investigation while investigating compli-
cated cases of commercial fraud where a large number of account
books have to be produced in evidence. In the earlier Report."
the Commission recommended that in such circumstances, and
subiect to the orders of acomoetent court, the documents may be
made available for inspection by the accused. We agree that this
should be provided.

14.23. A report under section 173 is normally the end of the
investigation. Sometimes, however, the police oﬂicer after sub-
mitting the report under section 173 comes upon evidence bearing
on the guilt or innocence of the accused. We should have thought
that the police oﬂicer can collect that evidence and send it to the
magistrate concerned. It appears, however,' that courts have

1 Suggelstion considered and not accepted in 37th Report, paras. 492
to .
337th Repcrt. para. 506(b).

3See 37th Report, para. 499 (Reviews cane-law).

sometimes taken the narrow view that once a ﬁnal report under
section 173 has been sent, the police cannot touch the case again
and cannot re--open the investigation. This View places a hindrance
in the way of the investigating agency, which can be very unfair
to the prosecution and. for that matter, even to the accused. It
should be made clear in section 173 that the competent police
officer can examine such evidence and send a report to the
magistrate. Copies concerning the fresh material must of course
be furnished to the accused.

14.24. We propose that section 173 should be revised__as
follows :-- - ' '
"I73. (1) Every investigation under this Chapter shall
be completed without unnecessary delay,

(2) As soon as it is completed, the of_'ﬁcer in charge of
the police station shall forward to a Magistrate empowered
to take cognizance of the offence on a po1ic€----repOrt a
report, in the form prescribed by the State Government,
stating----

(a) the names of the parties;

(b) the nature of the information;

(d) whether any offence appears to have been committed,
and if so, by whom;

(e) whether the accused has been arrested;

(f) whether he has been released on his bond under section
169, and, if so, whether with or without sureties,-

(g) whether he has been forwarded in custody under
section 170.

The oﬂicer shall also communicate, in such manner as
may be prescribed by the State Government, , the action
taken by him to the person, if any, bv whom the information
relating to the commission of the offence was ﬁrst given.

(3) Where a superior officer of police has been appointed
under section 158, the report shall, in any cases in which the
State Government by general or special order so directs, be
submitted through that oﬁicer, and he may. pending the
orders of hte Magistrate. direct that officer in charge of the
police-station to make further investigation.

(4) Whenever it appears from a report forwarded under
this section that the accused has been released on his bond.
the Magistrate shall make such order for the discharge of
such bond or otherwise as he thinks ﬁt.

(5) When such report is in respect of a case to which
section 170 applies, the police-oﬂicer shall forward to the
Magistrate along with the report-

(a) all documents or relevant extracts thereof on which
the prosecution proposes to relv other than those
alréady sent to the Magistrate during investigation;
an

Section 173 re-

} vised.

Report of Police
oﬂicer on comple-
tion of investiga-
tion.

Section 174 to
176.

(b) the statements recorded under. . .section 161 of _all
persons whom the prosecution proposes to examine
as its witnesses.

(6) If the police oﬂicer is of opinion that any part of
any such statement is not relevant to the subject-matter of
the proceedings or that its disclosure to the accused is not
essential in the interests of justice and is inexpedient in the
public interest, he shall indicate that part of the statement and
append a note requesting the Magistrate to exclude that part
from the copies to be granted to the accused and stating his
reasons for making such request.

(7) Nothing in this section shall be deemed to preclude
further investigation in respect of an offence after a report
under sub-section (2) has been forwarded to the Magistrate.
Where upon such investigation, the oﬂicer in charge of the
police station obtains further evidence. oral or documentary
he shall forward to the Magistrate a further report or reports
regarding such evidence in the form prescribed; and the
provisions of sub-sections (2) to (5) shall, as far as may be,
apply in relation to such report or reports as they apply in
relation to a report under sub-section (2)."

14.25. Section 174 provides for an inquest by the police in
certain circumstances, and section 175 empowers a police-officer
holding an inquest to summon two or more persons for the purpose.
Every person questioned at the inquest is bound to answer truly
the questions put to him. In the earlier Report1 the Commission
has suggested the deletion of the word "truly", as it does not occur
in section 161. Since we are now proposing to insert? that word
in section 161, it need not be taken out of section 176. In certain
circumstances the inquest must be held by a magistrate and these
are mentioned in section 176. We agree with the recommendation
in the earlier Report3 that before holding the inquest the magistrate
must inform the near relatives of the deceased so that they may, if
sufﬁciently interested, attend the hearing. The following sub-
section may be added to section 176 :--

"(3) Where an inquiry is to be held under this section,
the Magistrate shall, wherever practicable, inform such of
the near relatives of the deceased whose names and addresses
are known, and shall allow them to remain present at the
inquiry.

Explanat_ion----In this sub-section, the expression 'near
relatives' means parents, children, brothers, sisters and
spouse."

1 37th Report, para. 519.
2See para. 14.10 above.
337th Report, para. 522.

CHAPTER XV

JURISDICTION OF CRIMINAL COURTS IN INQUIRIES
AND TRIALS

A.--~Place of inquiry or Trial.

15.1. Sections 177 to 189 lay down general principles for deter-
mining which shall be the proper Court to inquire into or try an
offence. Following the old rule of English common law pertaining
to the "venue" of a trial section 177, provides that every olfence
shall ordinarily be inquired into and tried by a court within the
local limits of whose jurisdiction the offence was committed. In
England this territorial principle of criminal law was closely COI1~
nected with the institution of the grand jury who, as neighbours,
gave their testimony concerning crimes committed in the locality.
"Venue", as a term of law, originally meant the place where the
jury was summoned to come for the trial of a case; and the jurors
had to be from the same parish or neighbourhood where the crime
had tken place. Apart from the fact that material witnesses might
be expected to be available in that locality and consequently it
would be convenient both to the prosecution and to the defence
if the trial took place there, the sense of social security was better
maintained by requiring the dispensation of criminal justice to be
done in the vicinity of the crime.

15.2. Recent legislation, like the Indictments Act of 1915,
the Criminal Justice Act of 1925, and the Magistrates' Courts Act
of 1952, has, however, largely modiﬁed the common law rule in
England. It is no longer necessary that the venue should be in the
county or place where the indictable oﬁennce has been committed.
Since the passing of the Criminal Justice Act, 1925, a person
charged with an indictable oﬁence may be proceeded against in
any county or place in which he has been apprehended, or is in
custody on a charge of the olfence, or has appeared in answer to
summons lawfully issued charging the offence, as if the oﬂence
had been committed in that county or place. For all purposes
incidental to, or consequential on, the prosecution, trial or punish-
ment of the offence, it is deemed to have been committed in that
county or place.

15.3. We do not think, however, that the rules relating to the
proper place of inquiry and trial contained in. this chapter should
be dispensed with. Considering the size of the country, the distance
of courts from the place of crime and diﬁiculties of transport in the
interior, it is, in our view, desirable that the inquiry and trial
should ordinarily take place in the vicinity of the crime and some
venue rules must be provided in the Code.

15.4. As the word "ordinarily" used in section 177 of the
Code indicates, the general rule laid down in this section is neither
exclusive nor peremptory. In the subsequent sections alternative
venues for inquiry and trial are provided for in regard to certain
types of oﬂences. Barring section 178 which empowers the State

Introductory----
"Venue" in
English common
law.

_Recent legislation
in England as to
venue.

Venue rules de-
sirable in Indian
conditions.

General rule in
section 177 not
exclusive.

Some offences
tnable where
accused is found.

Charges in terri-
t_or1al jurisdic-
tton of courts.

Meaning of
"ordinarily"
explained by
Supreme Court.

Government to supersede the normal 'rule in regard to certain
sessions trials, the other provisions supplement that rule and
either authorise certain venues different from the place of com-
mission of the offence even where it is known or can be deter-
mined, or authorise different venues where the place of commis-
sion of the offence is prima facie not determinable.

15.5. A few offences of a predatory character like thuggery
and dacoity are made triable by any court within whose local
jurisdiction the offender may be found. The venue for an offence
committed outside India is also naturally any place within India
where the accused may be found according to section 188. Similar
provisions constituting an exception to the general rule are to be
found in some special laws e.g. section 7 of the Foreign Recruit-
ing Act 1874, section 134(1) of the Railways Act 1890, Section
66 of the Inland Steam-vessels Act, 1917, and section 5 of the
Diplomatic and Consular Oﬂicers (Oaths and Fees) Act, 1948.

15.6. The rule laid down in section 177 has come up for
consideration by the courts in connection with charges in the terri-
torial jurisdiction of a court taking place after it has taken
cognizance of an offence. Where such a charge was due to the
transfer of territory from a British Indian Province to an Indian
State} or from one district in a Province to another district,' or
from one State in the Union of India to another State3, the Courts
have held that it does not affect the jurisdiction of the court to
continue to deal with the offence of which it has taken cognizance.
In the case of transfer of territory from one State to another which
could only be effected by an Act of Parliament, express provision
is usually to be found in the Act itself in regard to the pending
cases affected by the transfer. We do not consider that any general
provision is necessary in the Code for this purpose.

15.7. The rule is one of general application and governs all
trials held under the provisions of the Code, includinsg trials of
offences punishable under local or special laws. It has been held
by the Supreme Court' that, although the section uses the word
"ordinarily", it means the same as except where otherwise pro-
vided in the Code itself or other law. The Court observed :--

"There is no doubt that the State Legislature is compe-
tent to provide for the trial of offences created by its statutes
otherwise than is prescribed by section 177 of the Code; but
it must appear from the relevant provision of the special
statute that a departure from the general principle prescribed
by section 177 is intended."

In view of this ruling, it does not seem necessary to alter the
wording of the section with a view to making it more deﬁnite and
precise.

1Emp. v. Saheb Din (1911) 12 Cr. L.J. 470:

Emp. V. Ram Naresh, (1911) I.L.R. 34 All. 188;

Emp. v. Ganga. (1912) I.L.R. 34 All. 45.

2Emp. v, Saveruddin, I.L.R. (1938) 2 Cal. 357.

3 . . . . . . . . . . . . .. I.L.R. (1952) Puni. 186.

*NarumaI V. State of Bombay. A111. (1960) S.C. 1329 at p. 1332.

15.8. Section 178 empowers the State Government to direct
that any cases or class or cases committed for trial in any district
may be tried in any sessions division. Now the combined eﬁect of
sections 177 and 206 is that a magistrate inquiring into an
offence committed in his district has to commit the otfender for
trial to the Court of Session within whose jurisdiction that offence
was committed, that is to say, the Court tor the sessions division
which comprised his district. But if there is a direction of the
State Government under section 178 applicable to a particular
case, it becomes triable in such other sessions division as is speci-
tied in the direction.

15.9. Although this provision concerning an extraordinary
power on the State Government has been in the Code since the
beginning, it appears that occasion for its use has been rare. One
instance) apparently the latest, which came to our notice was a
direction issued in 1951 by the Government of Uttar Pradesh to
the effect "that all Special Police Establishment cases committed
to the Court of Session in any district in Uttar Pradesh shall be
tried in the Lucknow Sessions Division". At the same time the
State Government found it necessary to give a supplementary
direction under1 sub-section (2) of section 193 (sic) of the Code
that the Sessions Judge of Lucknow was to be an Additional
Sessions Judge for all other sessions divisions in the State. This
was apparently because while the ﬁrst direction enabled the cases
to be tried in the Lucknow sessions division, as provided for in
section 178, it was not suﬂicient to confer jurisdiction on the
sessions court of that division to try the cases. Strictly interpreted
section 178 would not be sufﬁcient authority for a magistrate to
commit a case of the speciﬁed class for trial to the Court of
Session for the speciﬁed sessions division."

15.10. The power conferred by section 178 is an extraordi-
nary power intended to be used only when some consideration of
public interest (e.g., maintenance of public order during the trial
of a sensational case) justiﬁes the holding of a sessions trial in a
different sessions division. We have, after due consideration,
come to the conclusion that, despite its infrequent use and seem-
ingly arbitrary character, the provision should remain in the Code.
Although the section is expressed to override only section 177, it
is obviously intended to override also the other venue provisions
and should be placed later after section 184.

15.11. In the proviso, the references to section 15 of the
Indian High Courts Act, 1861, section 107 of the Government of
India Act, 1915, and section 224 of the Government of India
Act, 1935, are obsolete and should be omitted. The references to
article 227 of the Constitution and section 526 of the Code do not
exhaust the legal provisions under which the High Court could
issue directions of the same nature. It is also necessary to cover

1Haridas Mundhra v. The State of U.P., A.I.R. 1959, All. 82.

2'Ihis citation. taken from the judgment appears_t_o be erroneous.
Sub-section (4) of section 9 is the relevant provision.

3 Queen Empress v. Nga The Moung, (1884) I.L.R. 10 alcutta, 643.

Section 178.

Extraordinary
DOWCI
used.

seldom

Retention recom-

mended.

Amendment
proviso.

Sections 179, 180
and 182--forma1
amendments pro-
posed.

section 181(1).

the possibility of previous directions issued by the Supreme Court.
We recommend that the proviso may read :--

"Provided that such direction is not repugnant to any
direction previously issued by the High Court or the Supreme
Court under the Constitution, this Code or any other law."

15.12. Sections 179, 180 and 182 (somewhat illogically
separated by section 181 dealing with particular oﬂences) enume-
rate a few general principles for determining the venue for inquiry
or trial in the case of certain kinds of oﬁences with reference to
their nature and characteristics. The ﬁrst two sections adopt differ-
ent wording to express the same idea for which there does not
appear to be any need or justiﬁcation. Thus in section 179 there is
no need to refer to any person who is accused of the commission

- of an oﬁence when the intention is to describe the kind of oﬂence,

as is done in section 180. Then, while section 179 simply says
"such oﬁence may be inquired into or tried", section 180 refers
to "a charge of the ﬁrst mentioned oﬁence". We recommend that
these verbal discrepancies should be removed and the wording of
the two sections assimilated as follows----

"179. When an act is an oﬁence by reason of a thing
which has been done and of a consequence which has ensued,
the offence may be inquired into or tried by a Court within
whose local jurisdiction such thing has been done or such
consequence has ensued.

180. When an act is an offence by reason of its relation
to another act which is also an oﬂence or which would be
an offence if the doer were capable of committing an offence
x x x the ﬁrst mentioned offence may be inquired into or
tried by a Court within whose local jurisdiction either act was
done."

15.13. Section 181 consists of four sub-sections, each dealing
with a group of offences under the Indian: Penal Code and pres-
cribing the venue for the inquiry and trial. Sub-section (1) covers
the offences of being a thug, being a thug and committing murder
or rather murder committed by a thug, dacoity, dacoity with
murder, belonging to a gang of dacoits and escaping from custody,
and lays down that any of these offences may be inquired into or
tried by a court within the local limits of whose jurisdiction the
person charged is. It is noticeable that, differing from the other
three sub-sections, sub-section (1) does not expressly mention the
place of commission of the offence as an alternative venue, but
ovbiously the intention is not to exclude that venue. In fact, the
rules laid down in sections 177 to 184 are not mutually exclusive
but cumulative in effect and intended to facilitate the prosecution
of offenders by providing a wider choice of courts for initiating the
inquiry or trial. Though no practical difﬁculty has arisen in the
application of sub-section (1) of section 181 by the absence of
a reference to the place of commission of the offence, it is desir-
able for the sake of consistency to introduce it in this sub-section
also. The sub-section may be revised to read :--

"(1) Any offence of being a thug, of murder committed
by a thug, of docoity, of dacoity with murder of belonging

to a gang of dacoits, or of escaping from custody may be
inquired into or tried by a Court within whose local jurisdic-
tion the Oﬁence was committed or the accused person is
found."

15.14. Sub--setion (2) of section 181 indicates the possible
venues for the offences of criminal misappropriation of property
and criminal breach of trust. Besides the local area where the
offence was committed the venue may be laid in any area within
which the property which was the subject of the oifence was either
received or retained by the accused person.

15.15. As deﬁned in section 405 of the Indian Penal Code,
the offence of criminal breach of trust may be one of two types.
The ﬁrst occurs when the trusted person dishonestly misappro-
priates or converts to his own use the property in question; and
the second, when he dishonestly uses or disposes of that property
in violation of 2--

(a) any direction of law prescribing the mode of discharge

of the trust, or

(b) any legal contract, express or implied, which he has
made touching the discharge of the trust.

The place of commission of the offence in the ﬁrst type is the
place where the accused dishonestly misappropriate the property
or converted it to his use, and in the second type, it is the place
where he dishonestly used or disposed of the property in violation
of law or contract.

15.16. Doubt exists in many cases as to the exact manner,
point of time and place where the dishonest misappropriation,
conversion, use or disposal was effected. Since these matters are
within the special knowledge of the accused, the complainant is
unable to adopt the jurisdiction with which the oﬂence has been
committed. Though no such doubts ordinarily arise in regard to
the place or places where the property in question was received
or retained by the accused, these places are not always suitable
for launching the prosecution.

15.17. The question has accordingly arisen in a number of
reported cases whether these offences can be inquired into or
tried by a court within whose jurisdiction the accused was bound,
by law or contract, to render accounts or to return the entrusted
property but failed to discharge that obligation. The decisions of
High Courts on this point are conﬂicting.

15.18. In an early Calcutta case,1 Mukerji J. of the Calcutta
High Court took the view :--

"If there is a contract that the accused is to render
accounts at a particular place and fails to do so as a
result of his criminal act in respect of the money, he
can, without unduly straining the language of the
section, be said to dishonestly use the money at that
place as well in violation of the express contract and

16tmananda Dkone v. Santi Prakush Nandy, 1925 Cal. 615.

Section 181(2).

Breach of trust-
two types.

Place where
offence is com-
mitted often
doubtful.

Place of account-
lng as venue.

Calcutta view.

Bombay view.

Allahabad view.

so commits the offence of criminal breach of trust at
that place also."

In a_ later casel, Rankin C.J. of the same High Court dissented
fromthis view in the following terms :---

"I am bound to say that, while I must appreciate the great
convenience that will arise if this view is accepted, I
doubt extremely whether the learned Judge is right
in saying that this does not unduly strain the language
of section 405, I.P.C.******The fact that a man fails
to account in Calcutta does not seem to me to be the
same thing as that he honestly uses the money in
Calcutta or that he dishonestly disposes of the money
in Calcutta."

At about the same time two other Judges of the Calcutta High
Court, relying more on the English common law rule relating to
the venue for cases of embezzlement than on the Code, held'~' :--

"If there is evidence apart from the fact of non~accounting
to show where the misappropriation was committed,
the venue must be laid either in that place or in the
place where the property was received or retained.
there is no evidence to show where the misappropria-
tion was committed other than the fact of non-
accounting, then the venue may be laid in the place
where the accused failed to account, because that is
where the oﬁence was committed within the meaning

of section l8l(2)."

15.19. In re Jivandas Savchand,3 a full Bench of the Bombay
High Court came to the conclusion that section 179 of the Code
has no application at all to cases of criminal breach of trust and
also completely dissented from the views taken by the Calcutta
High Court in Gunanda Dhone's case. Beaumont C.J. stated :--

"With very great respect to the learned Judges who
decided that case, I am quite unable to follow the
line of reasoning. It seems to me to involve a con-
fusion between the place where the offence was
committed and the place where the complainant ﬁrst
acquired evidence that the offence had been com-
mitted. I can see nothing in section 405 of the Indian
Penal Code to justify the contention that when a man
in Rangoon delivers false accounts in Bombay, he is
thereby making a dishonest use in Bombay of money
or property which has never left Rangoon."

15.20. In a somewhat later case,' Sulaiman C.J. and Bennet
J. of the Allahabad High Court came to the following con-

clusion :--
"Where there is a violation of a direction of law or a legal
contract, the proof of that violation may be by nega-
tive evidence that the direction of law or the contract

1 Pascal v. Ra)' Kishore Mathur. AIR. 1951 Cal. 521.
2Paul De Flonder v. Emu. AJR. 1931 Cal. 523.

3A.I.R. 1930 Born. 490.
4 Mohru Lal v. Enp. A.I.R. 1936 All. 193.

if he

." q-_umuo.¢,a( in

has not been -fulﬁlled. We are of opinion that
where the direction of law or the contract required
that the accused should dispose of the property at a
particular place, then the court having jurisdiction at
that place will have jurisdiction to try the offence of
the second part of section 405 of the Indian Penal
Code where there is a charge that the accused has
failed to comply with the direction of law or the legal
contract and has failed to carry out his duty at that
place. Where it is alleged that the accused has failed
to account for the property, then the second part of
section 405 will apply and jurisdiction exists at the
place where the property should have been delivered
by the accused."

15.21. In some early decisions the Courts considered the rule APP.13°3-bi15tY by
in section 179 applicable and held that the place where the 5°°"°" 179'
complainant suffered loss "in consequence of" the accused person's
act could be the venue for his trial on a charge of criminal breach
\ of trust. The following extract from a judgment of the Allahabad
« High Court1 typiﬁes this line of reasoning :--

"The consequence which ensued here is that money was

taken out of the pocket of a British India subject.

That man suffered in; Allahabad from the consequence

of the applicant's supposed guilt. Section 181(2) of

' the Code does not in any way modify the provision
of section l79."

Most High Courts, however, have taken the View that loss
to any person caused by the misappropriation is not an ingredient
of the offence, that the offence is complete as soon as there is
appropriation, conversion or use with a dishonest intention and
that section 179 has no application whatever in regard to this
offence.

15.22. Where it is doubtful whether the misappropriation Applicability of
took place at A or at B, the ﬁrst clause of section 182 ("when section 182.
it is uncertain in which of several local areas an offence was
committed") is applicable and it has been held by the Supreme
Court? that the offence may be tried at either place. The pro-
visions of section 182 are supplemental to those contained in
the last ﬁve words of section 181(2) ("or the offence was

' committed") and the latter does not exclude the former.
15.23. The law3 in England is stated in the following English 1aw,
terms :--

"The embezzlement is committed in the place where the
* accused person has refused to account, or, if there is no
evidence of fradulent embezzlement except of non-account-
ing in the place where he ought to have accounted and
failed to do so, or has accounted falsely, or in the place
where he received and misappropriated the property in
question."

1Mohammed Rashid v. Emp.. A. LR. 1926 All. 466.
2S!ate of Madhya Pradesh v. K. P. Ghiara, A. I. R. 1957 S.C. 196.

3!-Ialsbury's Laws of England (3rd Edn.) Vol. 10. para. 1523 gt
page 788.

ram! unnu-

Amendment of
sub-section (2)
recommended.

Section 181(3).

Amendment of
1923.

Further ' amend-
ments recom-
mended.

11.24. In view of the conﬂicting decisions noted above, we
recommend that sub-section (2) of section 181 should be
amended to read :--

"(2) Any offence of criminal misappropriation or of
criminal breach of trust may be inquired into or tried by a
Court within whose local jurisdiction the oﬂence was com-
mitted or any part of the property which is the subject of
the offence was received or retained, or was required to be
returned or accounted for, by the accused person."

We do not think it necessary to limit the additional alternative
venue, namely, the local area where the property was required
(by law or contract) to be returned or accounted for by the
accused person, to cases where there is no evidence of the
offence other than the failure to return or account for the pro-

petty.

15.25. Sub-section (3) of section 181 provides alternative
venues for two categories of offences, namely, (i) theft and any
offence which includes theft and (ii) any offence which includes
the possession of stolen property. The ﬁrst category includes
the aggravated forms of theft like theft in a building theft by a
servant, etc., and also robbery and the 'aggravated ﬂorms of
robbery involving theft, but not extortion and its aggravated
forms. The second category, however, comprises all offences
which include the possession of stolen property. As deﬁned in
section 410 of the Penal Code, stolen property includes not
only property the possession of which has been transferred by
theft or robbery, but also property the possession of which has
been transferred by extortion and property which has been
criminally misappropriated or in respect of which criminal
breach of trust has been committed.

15.26. The sub--section was given its present form by the
Amendment Act of 1923. Originally, it only referred to "the
offence of stealing or any offence which includes stealing". The
Lowndes Committee which examined the Amendment Bill
accepted the proposal to replace "stealing", by the technical
term "theft" and, furthermore, enlarged the enumeration of
offences to include the possession of stolen property. Their
Report added somewhat cryptically :--

"This will cover the case of extortion; see the deﬁnition
in section 410 I. P. C."

15.27. It is clear, however, that the revised sub--section does
not cover the offence of extortion or any offence which includes
extortion. We see no reason, why it should not. It would
indeed be convenient in many cases of extortion if the alterna-
tive venues provided in sub--section (3) for theft and robbery
were available. We recommend that the sub--section should be
split into two sub-sections: one dealing with the offences of
theft, extortion and robbery, including their aggravated forms,
and the other dealing with offences which include the possession
of stolen property. These sub-sections may be as follows :--

"(3a) Any offence which includes theft, extortion or

robbery may be inquired into or tried by a Court within

whose local jurisdiction the offence was committed or the
stolen property which is the subject of the oﬂence was
possessed by any person committing it or by person who
received or retained such property knowing or having reason
to believe it to be stolen property.

( 3b) Any offence which includes the possession of stolen
property may be inquired into or tried by a Court within
whose local jurisdiction the oﬂence was committed or the
stolen property was possessed by any person who received
or retained it knowing or having reason to believe it to be
stolen property."

15.28. It will be noticed that. under the second sub-section,
the venue for an offence punishable under section 411, 412,
413 or 414 I. P. C. does not include the jurisdiction within which
the stolen property was possessed by the person committing the
original offence. Since, however, under section l80--vide illus-
tration (b)--the venue could be laid in the jurisdiction within
which the original offence was committed, the position for all
practical purposes would remain the same.

15.29. In regard to the oﬂences of kidnapping or abducting
a person, sub-section (4) of section 181 provides that the venue
may be laid either in the jurisdiction where the offence was
committed or where the kidnapped or abducted person was con-
veyed or concealed or detained. While the provision is adequate
and does not require any change of substance, we recommenda
slight change of wording to improve its form}

15.30. Controversial questions have frequently arisen in
regard to the venue for the oﬂence of cheating where the frau-
dulent or dishonest misrepresentation is made by post, telegram
or long distance telephone and where the property of which
the person deceived is cheated is delivered to a common carrier
or other agent at one place and received by the cheat at another
place. In the absence of special provisions similar to these
contained in section 181, such questions have necessarily to be
decided with reference to the general principles laid down in
sections 177, 179 and 182. Different views have been expressed
by the High Courts in applying these principles to the facts of
the particular cases before them.

15.31. In an early Bombay case,' both sections 179 and 182
were held to be applicable. The High Court observed that the
act of deceiving and the act of inducing delivery of the property,
were composite acts which began, in the particular case, with
the delivery of the parcels to the post oﬂice at Panvel. This was
an essential part of the offence and, although the consequent
delivery of the property took place at Poona, section 179 of the
Code applied to the case. Alternatively, the High Court held,
the offence was committed partly in Panvel by the posting of the
parcels and partly in Poona where the money was paid by the

1See para 15.38 below.
2 Gafur Karimbax v. Emp., A. I. R. 1930 Born. 358. See also Yusuf
Ali V. Wahaiuddin, A. I. R. 1914 All. 373; Girdhar Das V. King Emp.

A. I. R. 1924. All. 77.

Section 181(4)

_Venue for cheat-

Both section 179
and_ 182 held
applicable.

Posting held one
of series of acts.

Oﬁence commit-
ted wholly at
complaina.nt's
end.

Patna and Lahore
views.

Supreme Court's
analysis.

addressees to the post otﬁce. Either the second clause or the
fourth clause of section 182 was applicable and the case could
be tried by the Panvel court.

15.32. In another Bombay case}, where the accused had
sent from Nandurbar letters by post to various merchants in
Bombay ordering goods and promising to pay on receipt of the
goods, but absconded after obtaining delivery, the High Court

-held that the posting of the orders by the accused at Nandurbar

was one of the series of acts which went to make up the offence
of cheating, and the Magistrate at Nandurbar had jurisdiction
under section 182 to try the oﬂence.

15.33. But in a Madras case} where the accused at Manga-
lore sent by value-payable post parcel bogus lottery tickets to the
complainant living in Trichur (Cochin State) and the latter paid
a certain sum on delivery of the parcel, the Madras High Court
held that the deception was practised at Trichur, the delivery
of property also took place there, and consequently, the oﬁence
was committed in Trichur, and not in Mangalore. The post
ofﬁce was held to be the agent of the accused both for delivering
the packet to the complainant and for receiving the money from
him.

15.34. In a Patna case?' the view was taken that the offence
of cheating could be tried at the place from which the accused
made the false representation by sending a cheque which was
dishonoured, but in a Lahore case,' where the accused in district
B sent a letter to his creditor in district G and falsely insured
it for a certain sum with the intention of relying on the postal
receipt of the letter as proof of discharge of his debt, it was
held that the court in district G had jurisdiction under section
179 of the Code to try offence of cheating.

15.35. The Supreme Court, however, in the case of Mobaﬁk
Ali Ahmed v. State of Bombay," has decided the question entire-
ly under section 177 of the Code and analysed the position as
follows :--

"The offence of cheating under section 420 of the Penal
Code as deﬁned in section 415 of the Code has two essential
ingredients, vz'z., (1) deceit i.e., dishonest or fraudulent mis-
representation to a person, and (2) the inducing of that
person thereby to deliver property. In the present case, the
volume of evidence set out above' and the facts found to be
true show that the appellant, though at Karachi, was making
representation to the complainant through letters, telegrams
and telephone talks, sometimes directly to the complainant
and sometimes through Jasawalla, that he had ready stock
of rice, that he had reserved shipping space and that on
receipt of money he would be in a position to ship the rice
forthwith.

lln re Hornmsii, A.I.R. 1943 Born. 183.

3 In re Antony D. Silva, A.I.R. 1949 Mad. 3.

3MatcaIfe V. Watson. A.I.R. 1924- Pat. 708.

4 Narain Das v. Pram Chand. AIR 1931 Notes 25f (Lahore).
5A.I.R. 1957 S.C. 857. 867-868. 23.

"These representations were made to the complainant at
Bombay, notwithstanding that the appellant was making the
representations from Karachi. The position is quite clear
where the representations were made through the trunk
phone. The statement of the appellant at the Karachi-end
of the telephone becomes a representation to the complainant
only when it reaches cognition of the complainant at the
Bombay--end. This indeed has not been disputed.

"It makes no difference in principle if the representations
have in some stages been conveyed by telegrams or by letters
to the complainant directly or to some one of the appellant's
agents including Jasawalla in that category. There is also
no question that it is as a result of these representations
that the complainant parted with his money to the tune of
about Rs. 5% lakhs on three different dates.

"On these facts it is clear that all the ingredients neces-
sary for ﬁnding the offence of cheating under section 420
read with section 415 have occurred at Bombay. In that
sense the entire offence was committed at Bombay, and not
merely the consequence, viz., delivery of money, which was
one of the ingredients of the offence."

15.36. On the strength of this analysis, it might be argued
in comparable cases that no part of the offence of cheating and
dishonestly inducing delivery of property takes place at the
accused person's end and the entire oﬁence is committed at the
deceived person's end. The application of either section 179
or section 182 might be regarded as of doubtful validity. There
should, however, be no objection in principle to the person
accused of cheating from a distance being triable for the olfence,
not only at the place where his victim was deceived and/or
made to part with property, but also at the place from where
the accused has been carrying on his dishonest practices and
reaping the beneﬁt. We therefore recommend that a special
provision should be made in section 181 on the following
lines :--

"Any offence which includes cheating may, if the
deception is practised by means of letters or telecommunica-
tion messages, be inquired into or tried by any Court within
the local limits of whose jurisdiction such letters or messages
were sent or were received; and any oﬁence of cheating
and dishonestly inducing delivery of property may be inquir-
ed into or tried by any Court within the local limits of
whose jurisdiction the property was delivered by the person
deceived or was received by the accused person."

15.37. In the absence of a special provision, the offence of
bigamy can be inquired into or tried only at the place where the
offence is committed. This fact, coupled with the statutory res-
trictionl that a complaint by the aggrieved wife 'hr husband is
necessary for initiating proceedings against the bigamist, places
undue obstacles in the way of prosecuting the latter. It makes
it easy for that person to go to a distant place, perhaps in another

1See section 198 of the Code.

Special provision
recommended.

special provision
as to venue for
bignmy.

Section 181 as
revised.

Place of trhl
in case of cer-
tain offences.

State, get the second marriage performed, return with impunity
to his or her usual place of residence and live with his or her
second spouse in the same neighbourhood as the ﬁrst. In other
countries where the law of monogamy is traditional and is enforc-
ed with greater rigour, such conduct would not be possible.
Since bigamy is conceived as an oﬂence against the institution
of marriage in which society is concerned, we consider that practi-
cal opportunity to bring offenders before the courts should not
be denied by restricting the venue to the local areas where the
bigamous marriage was actually performed. It should, in our
opinion, be extended to the local area where the offender last
resided with his or her lawfully married spouse. We recommend
that a new sub-section should be included in section 181 on the

following lines :--

"Any oﬁence punishable under section 494 or section
495 of the Indian Penal Code may be inquired into or
tried by any Court within the local limits of whose juris-
diction the offence was committed or the oﬁender last
residedl with his or her spouse by the ﬁrst marriage."

15.38. In the light of the above recommendations, section
181 may be ampliﬁed and revised to read as follows :-

"18l. (1) Any offence of being a thug, of murder
committed by a thug, of dacoity, of dacoity with murder,
of belonging to a gang of decoits, or of escaping from
custody may be inquired into or tried by a Court within

whose local jurisdiction the offence was committed or the
accused person is found.

(2) Any offence of kidnapping or abducting a per-
son may be inquired into or tried by a Court within
whose local jurisdiction that person was kidnapped or
abducted or was conveyed or concealed or detained.

(3) Any offence of theft, extortion or robbery may
be inquired into or tried by a Court within whose local
jurisdiction the offence was committed or the stolen pro-
perty which is the subject of the oﬁence was possessed
by any person committing it or by any person who re-
ceived or retained such property knowing or haviig
reason to believe it to be stolen property.

_ (_4) Any offence of criminal misappropriation or of
criminal breach of trust may be inquired into or tried
by a Court within whose local jurisdiction the oﬁence
was committed or any part of the property which is the
subject of the offence was received or retained, or was
required to be returned or accounted for, by the accused
person.

(5) Any offence which includes the possession of
stolen property may be inquired into or tried by a Court
within whose local jurisdiction the offence was committ-
ed or the stolen property was possessed by any person

1Oomvare section 488(8). 0'. PC.

who received or retained it knowing or having reason to
believe it to be stolen property.

(6) Any oﬂence which includes cheating may, if the
deception is practised by means of letters or telecommu-
nication messages, be inquired into or tried by any Court
within whose local jurisdiction such letters or messages
were sent or were received; and any offence of cheating
and dishonestly inducing delive of property may be
inquired into or tried by any ourt within whose local
jurisdiction the property was delivered by the person
deceived or was received by the accused person.

(7) Any oﬁence punishable under section 494 or
section 495 of the Indian Penal Code may be inquired
into or tried by a Court within whose local jurisdiction
the oﬂence was committed or the offender last resided
with his or her spouse by the ﬁrst marriage."

15.39. Section 182 does not require any modiﬁcation, but
as it lists in general terms four types of cases where different
alternative venues are permissible it would be more appropriate
to place the section immediately after 177 as section 178 and
put the existing 178 after section 183.

15.40. Proceeding to section 183, we notice an inconsistency
between the wording of the opening part and that of the con-
cluding part which appears to have escaped judicial attention
or comment. The section deals with "an oﬁence committed
whilst the oﬂender is in the course of performing a journey or
voyage", but prescribes that the venue may be laid in any local
areas through or into which either "the oﬁender or the person
against whom, or the thing in respect of which, the oﬁence was
committed, passed in the course of that journey or voyage".
The last four words could only mean the journey or voyage
which the offender was in the course of performing when he
committed the oﬁence. If strictly interpreted in this manner,
the section would seem to be of little or no practical application
to the common type of cases which it is obviously intended to
cover.

15.41. X is travelling by train from Bombay to Calcutta and
at some place not deﬁnitely known is killed and robbed. The
oﬂender is traced but it cannot be said that he was performing
any journey when he committed the offence. He might have
got into the train at one station, committed the offences and
got out of the train at the same or the next station. While the
apparent intention of section 183 is to enable the inquiry or trial
in such a case being held in any local area between Bombay and
Calcutta, the wording will stand in the way as it cannot be
shown that the accused was performing any journey. We re-
commend that the section should be redrafted on the following
lines :--

"When an offence is committed whilst the person by
or against whom, or the thing in respect of which, the
offence is committed is in the course of performing a
journey or voyage, the oﬁence may be inquired into or

Section 182.

Section 183 in-
correct wording.

Amendmat re-
commended.

tried by a court through or into whose local jurisdiction
that person or thing passed in the course of that Journey
or voyage."

Scope of section 15.42. In a recent reported case} some articles were stolen

133 110' Widmed from a passenger travelling by train from one place to another

bys'18°' in Rajasthan. Subsequently these articles were recovered from
different persons at different places outside that State. When
these persons were prosecuted for the offence of receiving stolen
property in a Rajasthan court, the Rajasthan High Court decid-
ed that section 183 had no application, since the offence was
certainly not committed during the train journey of the complain-
ant and that if section l80--vide illustration (b)--was relied
on_ the offender could be tried only by a court within whose
jurisdiction the theft was actually committed. This appears to
us to be correct position and does not require any change.

Correspontﬁng 15.43. Incidentally, we notice that the corresponding provi-
§'T°&'13'°" "1 E98' sion in England is to the effect2 that "where an offence has been
an ' committed on any person, or on or in respect of any property, in

or on a vehicle or vessel engaged on any journey or voyage
through two or more local jurisdictions, the offence may be
treated, for the purposes of the preceding provisions of this Act,
as having been committed in any of those jurisdictions". This
is somewhat narrower in scope and effect than the provision in
section 183 of the Code or the formally revised provision sug-
gested above.

section 134 un-_; 15.44. Section 184 provides that "all offences against the

necessary. provisions of any law for the time being in force relating to rail-
ways, telegraphs, the post oﬂice or arms and ammunition may
be inquired into or tried in a presidency-town whether the offence
is stated to have been committed within such town or not, pro-
vided the offender and all the witnesses necessary for the pro-
secution are to be found within such town." The section was
taken from section 238 and 239 of the Presidency Magistrates'
Courts Act, 1877. Even if it served some useful purpose in
those days it does not appear to have been resorted to or
found useful in any appreciable number of cases in recent times.
The proviso seems to look only to the convenience of prosecu-
tion in requiring the presence in the presidency-towns of all the
witnesses for the prosecution. There appears to be no good
reason for this special provision applying only to the three presi-
dency-towns and in respect of only four Central Acts. The
section should be omitted.

venue in case of 15.45. It will be convenient at this stage to consider the
joinderofcharges problem of venue in relation to joinder of charges and joint
and J°'"' '"315- trials for which provision is made in sections 234, 235, 236 and
239 of the Code. Except as provided in these sections there has
to be a separate charge for every distinct offence of which any
person is accused and every such charge has to be tried
separately under section 233. When under section 234, 235
or 236 an accused person may be charged with and tried at one
trial for all or more offences, it is but reasonable to assume

1Munna Lal v. State, A.l.R. 1964 Rai. 118.
9Section 3(3) of the Magistrates' Courts Act, 1952.

that the venue for the trial can be laid in any local jurisdiction
within which any of those oﬁences may be inquired into or
tried under the provisions of Chapter XV of the Code. Similar-
ly when under section 239 two or more persons may be charged
vdth and tried together for different oﬂences, the prosecution
has a similar choice of venue for the trial.

15.46. This question has, however, been frequently raised in

9 the courts in regard to a criminal conspiracy. It has now been

held by the Supreme Court1 that the court having jurisdiction to
try the oifence of criminal conspiracy, even if those offences were
committed outside the jurisdiction of the court, as the provisions
of section 239 are not controlled by section 177. It was observed
in that decision, that "there is no reason why the provisions of
sections 233 to 239 may not also provide exceptions to section 177,
if they do permit the trial of a particular oﬂenoe along with others
in one court." In another decision," the Supreme Court has also
held that a court having jurisdiction to try the offences committed
in pursuance of the conspiracy can try the main offence of cons-
piracy, even if it was committed outside the jurisdiction of the

court.3

15.47. However, since there appears to be a lacuna in the
venue provisions and this has led to controversies in the court
proceedings, we recommend that an express provision should be
made on the following lines :--

"I84. Place of trial for oﬁences triable together.--Where----

(a) the offences committed by any person are such that
he may be charged with and tried at one trial for,
each such offence by virtue of the provisions of sec-
tion 234, 235 or 236 or

(b) the offence or oliences committed by several persons
are such that they may be charged and tried together
by virtue of the provisions of section 239,

the offences may be inquired into or tried by any court
competent to inquire into or try any of the offences."

This provision would only be giving eﬁect to a view accepted
by the Supreme Court as right and proper and would not, in our
opinion, be prejudicial to the accused in any way.

15.48. Provision is made in section 185 for deciding any
question arising as to the court which "ought to inquire into or
try an offence". This formula was adopted in sub-section (1) of
the section when it was revised by the Amendment act of 1923 to
make it clear that, in deciding the question, the High Court could
take into account, not only the convenience of the prosecution
or the defence, but also the competence of the forum. The High
Court . . . . . . . . . . . .however, cannot decide a question under this

1Purushotram Das Dalmia V. State of West Bengal, (1962) 2 S.C.R.
l06: AIR. 1961 S.C. 1589.
160515 L. N. Mukherjea v. State, (1962) 2 S.C.R. 116; A.l.R. 1961 S.C.

3See also R. K. Dalmia v. Delhi Administration, (1963) 1 S.C.R.
253: A.l.R. 1961 S.C. 1821.

Decisions of Sup-
reme Court in
cases of criminal
conspiracy.

Exprus provision
recommended.

Section 185.

Power should be
with High Court.

Modiﬁcation of
of sub-section (1)
suggested.

Criticism of sub-
-section (2).

Revision of sec-
tion l85--rooon-
mended.

section unless the matter is brought to its notice with the proper
records. As was suggested by the Calcutta High Court in Sta:
v. Sadananda Darji,1 it would be convenient if the High Oolrt
made rules laying down the procedure to be followed by subordi-
nate courts in making a reference under this section.

15.49. With reference to sub-section (1) we considered a
suggestion that it should be amended so as to provide that the
court which ﬁrst took cognizance should try the offence, thereby
saving the time of the High Court. Reference was made to the
analogous Provision in section 10 of the Civil Procedure Code,
but different considerations must apply to criminal proceedings
where the question of proper forum could be of importance, both
to the prosecution and the defence. Where, for instance, pro-
ceedings for the same offence against different persons are institut-
ed in different courts, one on complaint and the other on police
report, the court which first took cognizance may not be the pro-
per forum, and the power to decide the question should be with
the High Court.

15.50. It will be noticed that the wording of sub-section (1)
is wide enough to permit a reference being made by a subordinate
court which has ﬁrst taken cognizance of an offence even where
no other court subordinate to the same High Court has taken
cognizance of that offence. For a reference under sub4section (2),
however, the requisite condition is that two or more courts not
subordinate to the same High Court should have taken cognizance
of the same offence. While this difference in approach appears
to have been deliberate and for fairly obvious reasons, we feel
that no harm would be done by bringing sub-section (1) into line
with sub-section (2) in this respect. Even where the question of
forum concerns only one High Court it need be referred to it for
decision only when two or more subordinate courts have taken
cognizance of the offence.

15.51. Sub-section (2) of section 185 is curiously ambivalent
in its approach. The ﬁrst High Court may only decide that the
trial may proceed in the court subordinate to it. It cannot decide
that the trial should not proceed in that court but in the court
subordinate to another High Court. When one High Court decides
that the trial should proceed within its appellate jurisdiction,
the other proceedings have to be discontinued. The rationale of
this cumbrous and dilatory provision in regard to a matter of
urgent importance to the accused person is difficult to understand.
We recommend that it should be made as clear-cut and simple as
the provision in sub-section (1).

15.52. The section should be consolidated and revised on the
following lines :--

"185. Where two or more courts have taken cognizance
of the same offence and the question arises as to which of them
ought to inquire into or try that offence, the question shall be
decided,--

(a) if the courts are subordinate to the same High Court,
then by that High Court and

1 A.I.R. 1952 Cal. 563.

.r'r/

'97

(b) if the courts are not subordinate to the same High
Court, then by the High Court within the local limits
of whose Appellate criminal jurisdiction the proceed-
ings were ﬁrst commenced; and thereupon all other
proceedings in respect of that offence shall be (115-
continued".

l 15.53. In this connection we considered whether it would be
desirable to vest in the Supreme (hurt the power now vesting in
the High Courts under sub-section (2), in view of the fact that
more than one High Court is concerned and the power to transfer
cases from a. court subordinate to one High Court to a court sub-
ordinate to another High Court is vested in the Supreme Court
under section 527 of the Code. We however, came to the con-
clusion that the question of proper forum is not of such difficulty
or importance as to merit a direct reference to the Supreme Court
under the law. It can be adequately dealt with by the High Court
within whose appellate jurisdiction the proceedings in respect of
the offence were ﬁrst commenced. Even in the extremely unlikely
case of three courts in three different States taking cognizance of
the same offence at about the same time, there is no reason why
the ﬁrst High Court should not be empowered by law to decide
which of them should continue with the proceedings.

15.54. Section 186 confers on certain magistrates a power to
initiate action against any person within their jurisdiction who is
reasonably suspected to have committed an offence triable by a
court outside that jurisdiction. Though the magistrate does not
take cognizance of the offence in the technical sense, he is em-
powered by the section to inquire into it as if it had been com-
mitted within his jurisdiction, compel the person to appear before
him and bind him to appear before a magistrate who will have
jurisdiction to inquire into the offence. The power is available
whether the offence is cognizable or non-cognizable.

. 15.55. Since the proceedings under this section are of 3
judicial character, it is not necessary that District Magistrate and
Sub-divisi.onal Magistrates should have the power to take action.
On the other hand, all Judicial Magistrates of the ﬁrst class may
be authorised to take action without being specially empowered
by the State Government to do so. We recommend that the open-
ibnigl words of sub-section (1) may be revised to read, "When a

gistrate of the ﬁrst class sees reason to believe" etc.

15.56. Section 187 prescribes the procedure to be followed
after a person has been arrested on a warrant issued by a Sub-
divisional Magistate or Magistrate of the ﬁrst class. The Magis-
trate is required to send the person to the District Magistrate or
the Sub-divisional Magistrate to whom he is subordinate unless
there is already a warrant for that person's arrest issued by the
Magistrate having jurisdiction to try the offence. It is then pro-
vided in sub-section (2) that this procedure will not be necessary
if the arrested person is to be sent under section 186 to the court
of a competent Magistrate in the same district. We consider that
all these controls and dilatory procedure are unnecessary and the
provisions of section 186 (amended as proposed above) can be

Not npeeuary to
bring in the Sup-
renecourt.

Section 186.

Amendment of
sub-section (1)
suﬂlkted.

Section 187-
omisaion recom-
men

Section 188---
Procedural
counter-part of
section 4, I.P.C.

Extra-territorial
offence.

Anomalous posi-
tion of Jammu
and Kashmi.

safely left to their operation. We recommend that section 187

should be omitted.

15.57. The main provision in section 188 is that "when an
offence is committed by--

(a) any citizen of India in any place without and beyond
India; or

(b) any person on any ship or aircraft registered in India
wherever it may be,

he may be dealt with in respect of such offence as it it had been
committed at any place within India at which he may be foun ."
This furnishes the necessary procedural counter-part to those sub-
stantive penal laws which have extra--territorial application. Thus,
under section 4 of the Indian Penal Code, the provisions of that
code apply also to any offence committed by---

(1) any citizen of India in any place without and beyond
India; or

(2) any person on any ship or aircraft registered in India
wherever it may be.

It is explained in the section itself that the word "offence" includes
every act committed outside India which, if committed in India,
would be punishable under the Penal Code. To make the position
clearer still, section 3 provides that any person liable by any
Indian law to be tried for an offence committed beyond India shall
be dealt with according to the provisions of this Code for any act
committed beyond India in the same manner as if such act had
been done within India.

15.58. The word "offence" is also deﬁnedl in the Criminal
Procedure Code to mean any act or omission made punishable by
any law for the time being in force. Though the words "in India"
are not in the deﬁnition at the end, there can hardly be any doubt
that they have to be understood; and when section 188 refers to
the commission of an offence without and beyond India, the act
done or omitted to be done in foreign territory or on the high seas
constituting the offence has to be punishable as such by an Indian
law. In other words, in order to attract this procedural provision
the relative penal law must also have express extra-territorial
application on lines similar to section 4 of the Indian Penal Code.

15.59. We have already noticed in Chapter I that by virtue of
the deﬁnition of "India" in section 4(1)(j) of the Criminal Pro-
cedure Code, any place in the State of Jammu and Kashmir is
a "place without and beyond India". The result is that if a citizen
of India, whether he is a resident of that State or of some other
State in India, commits an offence in Jammu, he may be dealt
with at any place in any other State of India where he may be
found, but before the charge is inquired into at the latter place,
the sanction of the State Government will be requiral (there being
no Political Agent for the State of Jammu and Kashmir)? This
is indeed an anomalous and unsatisfactory situation. Par1iament's

1See section 4(l)(o).
2State V. Om Parkash, 1966 Cr. LJ. 366.

power to legislate for the State does not at present extend to
items 1 and 2 of the Concurrent List, relating, respectively, to cri-
minal law and criminal procedure. We have recommended above'
that the anomaly should be removed by ﬁrst suitably amending
the Constitution (Application to J ammu & Kashmir) Order, 1950,
under article 370 and then extending the two Codes to the State.

15.60. The use of the word "place" in clause (a) of section
188 may give rise to a doubt whether the section applies where
a citizen of India commits an offence on the high seas, or while On
board a foreign vessel, or in air space over foreign territory or the
high seas while on board a foreign aircraft. The wording of the
ﬁrst proviso to the section also does not help resolve this doubt.
It was decided in a Bombay case? that the proviso does not apply
to an offence committed on a ship on the high seas since there is
no "territory", and no Political Agent for the "territory", in which
the offence is committed. It is desirable to amend clause (a) as
well as the first proviso so as to make it clear that the section
applies when an offence is committed outside India by any citizen
of India, whether on the high seas or elsewhere.3

15.61. An offence falling within clause (b) of section 188 is
extra-territorial only when the Indian ship or aircraft is outside
India including its territorial waters. To this extent, the expression
"wherever it may be" is not precise. Clause (b) need not also
refer to all persons on an Indian ship or aircraft since citizens Of
India are already covered by clause (a). The main Paragraph
of the section may be revised to read 2-

"When an offence is committed outside India--

(a) by a citizen of India, whether on the high seas or
elsewhere; or

(b) by a person, not being such citizen, on any ship or
aircraft registered in India;

he may be dealt with in respect of such offence as if it had
been committed at any place within India at which he may
be found."

15.62. The ﬁrst proviso to section 188 requires to be simpliﬁ-
ed and recast in view of the political changes that have taken
place in the last 20 years. It was originally framed with the
object of controlling the prosecution and trial in British India of
persons accused of committing offences in the former Indian
States. There were a number of Political Agents of the Govern-
ment of India appointed regionally for groups of these States to
look after the political relationship between the rulers and the
paramount power. When a British Indian subject was alleged
to have committed an offence in an Indian State, the charge as to

such offence could not be inquired into in a British Indian pro-

vince unless the Political Agent for that State certiﬁed that it ought
to be inquired into there. Where the offence was committed

lsee para 1.9 above.
3ManueI Philip v. Emp., A.I.R. 1917 Born. 280.
See also Po T/mung v. Emp., (1911) 12 Cr. LI. 198.
3Article 1 of the Convention on the Seas, 1958. deﬁnes the

term "high seas" to mean all parts of the sea that are not included in
the territorial sea or in the inland waters of a State.

Amendment of
clause (3) to re-
move doubt.

Amendment of
main paragraph
recommended.

First Proviso.

Non obstante
clause.

Sanction should
be of Central
Government.

Meaning of
"charge as to"
Offence.

Amendment 0
proviso recom-
mended.

Second proviso.

100

outside India altogether, the previous sanction of the Provincial
Government was required under the proviso.

15.63. The non obstante clause which was inserted in the pro-
viso by the Amendment Act of 1923 could also be traced to the
same political considerations. The Select Committee, while re-
porting on this particular amendment, said 1--

"Certain decisions of the Madras High Court seem to
make it doubtful whether section 188 is subject to the provi-
sions of sections 179 to 184 and we think it is desirable to
clear this up. We are not satisﬁed that this was the intention
of section 188, and in our opinion it is safer, when a man is
tried in British India in respect of an offence committed in a
Native State, to require the Political Agent's certiﬁcate in every
clase. The amendment which we propose will make this
c ear."

15.64. Since the section now applies mainly to offences com-
mitted by Indian citizens in foreign countries or by foreigners on
Indian ships or aircraft, it would be appropriate to provide for
the previous sanction of the Central Government, rather than that
of the State Government. From the practical point of view the
existing provision requiring a certiﬁcate from the Indian envoy in
the foreign country appears to be unnecessary. It is also likely
to lead to undue delay in initiating proceedings. It could be left
to the Central Government to consult its envoy in the foreign
country to such extent as it deems ﬁt and proper.

15.65. The proviso refers to a "charge as to" the extra-
territorial offence being inquired into in India. This has led to
a needless controversy as to the stage when the Political Agent'.-.
certiﬁcate or the State Govemment's sanction has to be obtained
and produced before the court. While one view is that it is
sufficient to do so some time before the charge is framed against
the accused, some courts have held that it is a condition precedent
to the inquiry by the court into the offence. This controversy
will be avoided by providing "that_ notwithstanding anything in
any of the preceding sections of this Chapter, no such offence
shall be inquired into or tried in India except with the previous
sanction of the Central Government."

15.66. The second proviso is obscurely worded. The inten-
tion is apparently to import the principle laid down in section 403
of the Code and make it applicable in relation to further proceed-
ings under the Extradition Act in a foreign country for the same
offence. If the proceedings taken against a person under section
188 for an extra-territorial offence have resulted in a trial of that
person by a court of competent jurisdiction in India and upon
such trial the person is convicted or acquitted or discharged of
the offence, section 403 will be directly applicable and will debar
his trial in India once again for the same extra-territorial offence.
This being so, it is difficult to give meaning to the periphrasis "bar
to subsequent proceedings against such person for the same
offence if it had been committed in India". Section 403 applies
equally to an offence committed in India and to an oﬁence com-
mitted outside India.

101

15.67. We think that in so far as any such provision is re-
quired in the statute book, it should ﬁnd a place in the E;(trad_1-
tion Act, 1962, rather than in the Code. What is required In
that Act is a provision to the effect mat-

(a) while proceedings under section 188 of the Code are
pending against any person in respect of any oﬂence,
no proceedings for extraditmg him from India shall
be taken in respect_of the same offence either 111
India or outside India; and

(b) if in such proceedings, the person is convicted, 36-
quitted or discharged of the offence by a competent
court, no extradition proceedings shall be taken
against him in respect of the same oﬂence either in

India or outside India.

We recommend that the second proviso to section 188 should
be omitted.

15.68. We considered a suggestion that section 188 should
be made applicable to Indian companies and sorporations in the
same way as it applies to Indian citizens. This would, in our
opinion, be a case of putting the cart before the horse. It is only
when a substantive penal law applies also to Indian companies
in respect of offending acts committed by them outside India that
a corresponding provision on the lines of section 188 will be re-
quired. The Indian Penal Code, for instance, does not envisage
the commission of offences by Indian companies outside India.
If in the case of some special law e.g., the Foreign Exchange
(Regulation) Act, 1947, it is felt that Indian companies contra-
vening its provisions outside India should be liable to be tried in
India, it would be as easy, as it would be appropriate, to make a
special provision in that law itself. As a general provision, sec-

tion l88 does not, in our opinion, require extension to corporate
bodies.

15.69. The question may arise whether an Indian citizen who
has been tried by a court of competent jurisdiction in a foreign
country for an offence can be proceeded against for the same
oﬂence when he is found in India, assuming of course that the
act committed by him is an offence punishable under an Indian
law having extra-territorial application. Section 403 of the Code
will not in terms apply to such a case and it is a moot point
whether article 20(2) of the Constitution (which lays down that
"no person shall be prosecuted and punished for the same oﬂence
more than once") will of itself operate as a bar to the proceed-
ings under section 188. Since, however, the Government before
giving its sanction is bound to take into account this fact and all
the circumstances of the trial in the foreign court, we do not

consider it necessary to suggest any change in the section from
this point of view.

15.70. In the light of the above discussion section 188 may
be revised to read 3--
"188. When an offence is committed outside India-

(a) by a citizen of India, whether on the high seas or
elsewhere; or

Provision should
be made in the
Extradition Act
1962.

Su action to ex-
ten section 188
to corporations.

Is previous trial
in foreign coun-
try bar to pro-
ceedings under
section 188.?

Section 188 as
revised.

Offence commit-
ted outside India.

Section 189.

Power to direct
copies of deposi-
tions and exhibits
to be received in
evidence.

Section 190.

102

(b) by a person, not being such citizen, on any ship or
aircraft registered in India;

he may be dealt with in respect of such offence as if it had
been committed at any place within India at which he may

be found :

Provided that, notwithstanding anything in any of the pre-
ceding sections of this Chapter, no such oﬁence shall be m-
quired into or tried in India except with the previous sanc-

tion of the Central Government."

15.71. Section 189 needs one or two consequential and minor

changes. Although the opening words "whenever any such
offence as is referred to in section 188 is being inquired into or
tried" are comprehensive, the section applies only where an

extra-territorial offence is alleged to have been committed in a
foreign country. In order to make this clear it would be desir-
able to amend the opening words. Since the sanctioning autho-
rity under the ﬁrst proviso to section 188 is to be the Central
Government, the reference to the state Government in section 189
should be replaced by the Central Government. And since the
expression "Political Agent" as deﬁned in the General Clauses
Act, 1897, means the principal oﬂicer representing India in the
foreign country, we recommend that it should be replaced by "a
diplomatic or consular representative". Section 189 may accord-
ingly be revised to read :--

"l89. When any offence alleged to have been committed
in a territory outside India is being inquired into or tried
under the provisions of section 188, the Central Government
may, if it thinks ﬁt, direct that copies of depositions made or
exhibits produced before a iudicial ofﬁcer in or for that terri-
torry or before a diplomatic or consular representative of India
in or for that territory shall be received as evidence by the
Court holding such inquiry or trial in any case in which such
Court might issue a commission for taking evidence as to the
matters to which such depositions or exhibits relate."

B : Cortditions requisite for Initiation of Proceedings.

15.72. The group of sections, from section 190 to section
199B, describes the methods by which, and the limitations sub-
iect to which, various Criminal Courts are entitled to take cog-
nizance of offences.

Section 190 ﬁrst mentions the classes of Magistrates entitled
to take cognizance, and then says that cognizance may be taken-

"(a) upon receiving a complaint of acts which constitute
such offence;

(b) upon a report in writing of such facts made by any
police officer;

(c) upon information received from any person other
than_ a police oﬂicer or upon his own knowledge or
suspicion that such oﬁence has been committed."

-«~ cry ,1.

jm 324''

9-- rvr.

103

15.73. Clause (c) is of limited practical importance as resort
to it is not had in many cases. Leaving that alone, and speak-
ing broadly, the cases fall into two categoriw :--

(1) those started on complaint; and
(2) those started on a police-report.

A "complaint" is deﬁned in section 4(1) (h) as not includinﬂ the
"report of a police oﬂicer". It seems to us, however, that there
is no practical advantage in distinguishing 3 0356 Sta¥t¢d 011 g
complaint from a case started on "the report of a police oﬁicer
which is not given under section 173. In Chapter XXI of the
Code, where two different procedures_ are laid down for the trial
of two different kinds of cases, the point of distinction is whether
the case was instituted on a "police report" or not, and the ex-
pression "the report of a police oﬂicer" is not used. The Same
is the case in Chapter XVIII.

15.74. At ﬁrst sight, of course, the difference in meaning
between a "police report" and the "report of a police oﬁicer" may
seem slight, but authoritative decisions show that the expression
"police report", which was in fact the expression used in clause
(b) of section 190(1) before 1923, has a technical connotation,
liiriited to a report made by an investigating oﬂicer under section
173 of the Code. Such an investigation can only be of a cogniz-
able offence, or if made into a non-cognizable offence, it must be
with the permission of a Magistrate required by section 155. We,
therefore, consider it important that Magistrates should be readily
able to distinguish a case instituted on a "police report" from
any other kind of case; and to facilitate this, we propose, that
the expression "police report" should be clearly deﬁned in the
Code itself, and the deﬁnition should follow the judicial decisions,
limiting it to a report made under section 173. For the same
reasons, we propose that clause (b) of section 190, sub-section
(1) should mention only a "police report", leaving other kinds
of reports by a police oﬂicer to be treated as complaints. We
have already proposed the necessary verbal alteration in the deﬁ-
nition of "complaint" now contained in section 4.

15.75. These proposals, we hope, will do away with the con-
troversy whether the present wording of section 190(1)(b) does
or does not include a report made regarding a non-cognizable
offence investigated by a police oﬂicer without the orders of a
Magistrate, which on occasions has arisen. At the same time,
there will be a clear-cut division between cases properly investi-
gated by the police and others, and the distinction between cases
mstlituted on a police report and other cases will be easy to
ma e.

15.76. Section 190 authorises only a Presidency Magistrate,
a District Magistrate or a Sub-divisional Magistrate to take cogni-
zance of offences, and leaves any other Magistrate to be specially
empowered in that behalf, so that a ﬁrst class Magistrate cannot,
without such special power, take cognizance. We ﬁnd no great
advantage in this scheme, as most of the cases have to be handled
by ﬁrst class Magistrates and, in practice, we gather, all ﬁrst class
Magistrates have to be so empowered. We feel that all ﬁrst class

Two main cate-
gories of cases.

"Police report"
to be deﬁned and
used in clause (b).

Object of pro-
posals.

First class magis-
trates need not be
specially
empowered.

Amendment of
opening words.

Amendment of
clause (c).

Meaning of "may
take cognizance."

section 190 as
revised.

104

magistrates can be safely entrusted with this DOWCF. and 31¢ £01'
mal step of specially empowering them can be done away with.
We therefore propose to mention all ﬁrst class Magistrates in the
section itself, leaving magistrates of the second class to be spe-
cially empowered. We assume, of course, that first class powers
are conferred on magistrates only when they are experienced
enough to exercise them.

15.77. There remain two small matters about this section. It
opens with the words "Except as hereinafter provided", while in
fact the provisions that follow are not in a strict sense "excep-
tions", but only additional requirements for initiating proceed-
ings. It would in our view, be more appropriate to use the
words "subject to the provisions of this Chapter".

15.78. Clause (c) of sub-section (1) authorises a magistrate
to take cognizance of an offence not only on his own knowledge,
but also on suspicion that an offence has been committed. We
recognize that a police oﬁicer can, in certain circumstances, act
on suspicion---(reasonable of course)------that an offence has been
committed? but we do not think it wise to place such a responsi-
bility on a judicial officer, and we therefore propose to delete that
provision from the clause.

15.79. Before concluding we would like to mention one as-
pect of section 190 which has been discussed in the courts but
which does not seem to require any change in its wording. It
will be noticed that section 190 provides that certain magis-
trates "may" take cognizance of offences if certain conditions are
satisﬁed. It has at times been argued in court and the argu-
ment accepted, that, despite the use of the word "may" a magis-
trate is bound to take cognizance of an offence if there is before
him a proper complaint, or a proper police report. At other
times, as in a recent case in the Supreme Court, it has been ob-
served that a Magistrate has ample discretion in this respect and
if on looking at a police report he finds that there has not been a
thorough investigation he can, without taking cognizance, order
further investigation. We take it, therefore, that a magistrate has
certain discretion in this connection but as this discretion is judi-
cial in nature, it is limited in its scope, and that is how it should
be. We, therefore, do not propose to disturb the language of
the section.

15.80, We would accordingly revise the section to read as
follows :--

"190. Cognizance of oﬂences by Magistrate.--(1) Subject
to the provisions of this Chapter, any Presidency Magistrate
or Judicial Magistrate of the first class and any Magistrate of
the second class specially empowered in this behalf under sub-
section (2), may take cognizance of any offence----

(a) upon receiving a complaint of facts which constitute
such offence;

(b) upon a police report of such facts;

1C]. Section 54.

105

(c) upon information received from anv person Othcf
than a police-ofﬁcer, or upon his own knowledge, .
. . . . . . that such offence has been committed.

(2) The Chief Judicial Magistrate may_ empower any
Magistrate of the second class to take cognizance under sub-
section (1) of such oﬁences as are within his competence to
inquire into or try.

15.81. Since clause (c) of section 190(1) contemplates the
possibility that cognizance of an offence may have been taken by
a Magistrate because of his own knowledge or his own informa-
tion, a safeguard has been provided in section 191 that in such a
situation the accused must be told, "before any evidence is taken,"
that he is entitled to have the case tried by another court and if
he so chooses, "the case shall be committed to the Court of Ses-
sion or transferred to another magistrate". This rests on the view
that administration of iustice should always appear to be un-
biased. As the provision now stands, however, it is possible that
a magistrate may, in spite of the accused's previous object, go
on with the inquiry in order to commit him to the Court of
Session. The proper and digniﬁed course for a magistrate would,
in our opinion, be to make over the case to another magistrate
as soon as an objection is raised. This procedure would be fairer
to the magistrate as well as the accused. If cognizance is taken
by a magistrate under clause (c) and the accused objects to the
magistrate hearing the case, the case must at once be made over
to another magistrate competent to inquire into or try it. No
mention of the Court of Session would then be necessary in the
section. We recommend that it should be modiﬁed as follows :--

"191, When a Magistrate takes cognizance of an oﬂence
under clause (c) of sub-section (1) of section 190, the
accused shall, before any evidence is taken, be informed that
is entitled to have the case inquired into or tried by another
Magistrate, and if the accused, or any of the accused if there
be more than one, objects to further proceedings before the
Magistrate taking cognizance, the case shall be transferred
to such other Magistrate as may be speciﬁed by the Chief Judi-
cial Magistrate in this behalf."

15.82. Section 192 has two sub-sections. The first em-
powers a Chief Presidency Magistrate, a District Magistrate or a
Sub-divisional Magistrate to transfer a case after taking cognizance
of it, to another magistrate subordinate to him. This is a neces-
sary power for the proper arrangement of criminal work and the
object is that senior magistrates may ﬁnd it convenient to look
at most of the cases in the ﬁrst instance but after taking cogni-
zance send them for disposal to their subordinates. The second
sub-section enables a District Magistrate to clothe a first class
Magistrate with powers like his own under sub-section (1). This
again is useful in order to relieve the District Magistrate of un-
necessary burden.

15.83. Section 192 is placed with other sections which deal
with cognizance of offences by criminal courts and, as far as the
express provisions of the Code are concerned, they speak of cog-
nizance only of offences. Section 192(1), however, speaks of

Section 191.

Section 192.

To cover _cases
c o n c c r n I n g
oifences only.

Revision recom-
mended.

Section 193.

106
"any case of which he (i.e. the Magistrate) has taken cogni-
zance". The Courts have therefore been persuaded to hold that

the power of transfer mentioned in section 192(1) includes the
power to transfer all kinds of cases under the Code, and not only
cases concerned with offences. In concrete terms, the decisions
hold that not only an ordinary case under the lndian Penal Code
can be thus transferred but also proceedings under section 107
or 133 or 145 of the Criminal Procedure Code. We take no ex-
ception to this interpretation. We feel, however, that it is a. bit
inconguous that this kind of power of transferring proceedings
under section 107, Cr. P.C. should be included in a provision
which in its proper context should deal only with "offences" and
their cognizance. The power of transferring other proceedings
necessary as it may be--shou1d be mentioned in a more suitable
context. The language of section 192 should be changed to make
it clear that it has nothing to do with transfer of a case other than
a case "involving an offence. The provision for transferring other
kinds of cases will be placed in the Code elsewhere.

15.84. We recommend that section 192 should be revised as
follows z------

''192. Making over of cases to Magistrate.--(1) Any Chief
Judicial Magistrate may, after taking cognizance of an
offence, make over the case for inquiry or trial to any compe-
tent Magistrate subordinate to him.

(2) Any Magistrate of the ﬁrst class empowered in this
behalf by the Chief Judicial Magistrate may, after taking cog-
nizance of an oﬂence, make over1 the case for inquiry or trial
to such other competent Magistrate as the Chief Judicial
Magistrate may, by general or special order, specify."

15.85. Sub-section (2) of section 193 provides that Addi-
tional Sessions Judges and Assistant Sessions Judges shall try
such cases only as the State Government may direct them to try
or as the Sessions Judge of the division may make over to them
for trial. It appears unnecessary to bring the State Government
into what is, mainly, a matter of distribution of work among the
courts in district, a matter of day to day control of the work of
the courts which, as pointed out by the Supreme Court,'-' must
rest with the High Court. In Bombay, the power of the State
Government to issue directions under this provision is exercisable
only in consultation with the High Court. Even this restricted
power need not be retained with the State Government. As it is,
the distribution of cases is mainly attended to by the Sessions
Judges and they should continue to do so under the overall con-
trol of the High Court. We recommend that the sub-section may
be amended to read--

"(2) An Additional Sessions Judge or Assistant Sessions
Judge shall try such cases only as the Sessions Judge of the
division, by general or special order, may make over to him
for trial or as the High Court, by special order may direct him

to try."

1-Cf. section 528. (2) and (4).
'State 0! Axum v. Rauga Muhammed. A.I.R. 1967 S.C. 903.

/W' '\.,;Fg;it' \

107

15.86. Section 194 deals with the cognizance of offences by
the High Court. We have discussed above in_ Chapter III the
question whether the ordinary original criminal Iurisdiction of the
Calcutta High Court requires to be retained, and recommended
that it should be abolished and that the City SCSSIOIIS. Court 1n
Calcutta should have the same complete iurisdiction with regard
to criminal cases as in Bombay and Madras. Since the other
High Courts do not exercise ordinary original jurisdiction there
is no need for sub-section ( 1) of section 194.

15.87. Sub-section (2) of section 194 deals with a special
procedure known as "information by the Advocate General". It
provides that the Advocate General may exhibit information
against persons to the High Court for all purposes for which Her
Majesty's Attorney General may exhibit information on behalf
of the crown in the High Court of Justice in England. This
special procedure has been considered in England as too dilatory
and too inconvenient to afford any satisfactory remedy' and
seems to have been used but rarely. The last such case" to be
filed in England was in 1910 in respect of a libel on the king.
The procedure has since been abolished altogether.'

15.88. In India also the procedure has seldom been used.
The last case under this provision seems to be one ﬁled in the
Patna High Court in 1930. In that case,' where information
was exhibited against certain person for fabricating and giving
false evidence on a capital charge, it was observed by the Privy
Council that the procedure adopted "of an ex-oﬂicio information
was unfortunate and undoubtedly prejudicial to the accused",
and further that the case "did not differ from other cases of
perjury and conspiracy which have been tried by the ordinary
procedure and its result, it is to be hoped, will be to discourage
the recourse to unusual procedure in similar cases in future". In
two other cases," both involving contempt of court, references
were made to section 194(2) as contentions were raised in both
cases that the proper procedure to be adopted for initiating con-
tempt of court proceedings was the one prescribed in section
194(2). In both cases the Courts held that the procedure under
section 194(2) is not to be preferred. This procedure which is
not necessary and has so little to commend it need not be retain-
ed, especially as the corresponding provision in English law on
which it was modelled has been abolished.

15.89. We would therefore recommend that section 194 be
repealed.

15.90. Section 195 deals with prosecution for three different
groups of offences. viz. contempt of lawful authority of public
servants, certain offences against public justice and certain
offences relating to documents given in evidence. The second
and third groups are connected in that both of them affect the

1R. V. Davies H906) IKB page 41.

2R. V. Mylius (1910).

3The Criminal Law Act 1967 (C58) Section 6(6).
4Dwarkanath vs. Em.p. AJR. 1933 PC. 124.

K 'In. re an Advocate of Allahabad, 1935 All. 1:
In re Tushakaml Ghosh. A.I.R. 1935 Cal. 419.

Section 194 origi-
nal jurisdiction of
High Courts.

Section 194(2).

Special procedure
found unsuitable
in India.

Repeal of section
194.

Revised section
relating to public
servants.

Section 195(1)
clauses (b) and (c).

Clause (c) should
apply to witnesses
also.

108

administration of justice. Clause (8) Of Sub-S¢Cli01'l (1) and
sub--section (5) concern public servants, clause_ (b) and (c) of
sub-section (1), sub-section (2) and sub--sect1on (3) concern
the Courts, and sub--section (4) relates to both. It would, in
our opinion, be conducive to clarity if the two subjects are
dealt with in separate sections. We recommend that section
195 may be split up on the lines indicated above.

15.91. The first section may be as follows :-

"I94. Prosecution for contempts of lawful authority of
public servants.----(l) No Court shall take cognizance---

(a) of any offence punishable under sections 172 to 188
of the Indian Penal Code, or

(b) of any abetment of, or attempt to commit such
oﬁence, or

(c) of any criminal conspiracy to commit such oﬂence,
except on the complaint in writing of the public servant con-
cerned or of some other public servant to whom he is sub-
ordinate.

(2) Where a complaint has been made by a public ser-
vant under sub-section (1), any authority to which he is
subordinate may order the withdrawal of the complaint and
send a copy of such order to the Court; and upon its receipt
by the court no further proceedings shall be taken on the
complaint."

15.92. Under clauses (b) and (c) of section 195(1), the
complaint of the civil, revenue or criminal court concerned is
necessary for any criminal court to take cognizance of certain
offences against public justice or certain olfences relating to
documents given in evidence. As observed in a Madras case,'
"this salutary rule of law is founded on common sense. The
dignity and prestige of Courts of law must be upheld by their
presiding oﬂicers, and it would never do to leave it to parties
aggrieved to achieve in one prosecution gratiﬁcation of personal
revenge and vindication of a Court's honour and prestige. To
allow this would be to sacriﬁce deliberately the dispassionate
and impartial calm of tribunals and to allow a Court's prestige
to be the sport of personal passions".

15.93. It will be noticed that while clause (b) applies when
any of the speciﬁed offences is committed in, or in relation to,
any proceeding in any Court, clause (c) applies only when the
offence of forgery etc. is "alleged to have been committed by a
party to any proceeding in court in respect of a document pro-
duced or given in evidence in such procwding". An important
point that has to be considered here is whether the restriction
of the application of the section to a party to the proceeding
should be retained. The purpose of the section is to bar private
prosecutions where the course of justice is sought to be pervert-
ed, leaving it to the Court itself to uphold its dignity and pres-
tige. On principle, there is no reason why the safeguard in
clause (c) should not apply to offences committed by witnesses"

' Ramaswamy v. P. Mudaliar A.I.R. 1938 Mad. 173. 174.
9An illustration of forgery_by a witness is furinshedby the facts I'
Dr. 5. Dan v. State of U.P.,' All. 1966 S.C. 523.

109

also. Witnesses need as much protection against vexatious pro-
secutions as parties and the Court should have as much control
over the acts of witnesses that enter as a component of a judicial
proceeding, as over the acts of parties. If, therefore, the provi-
sions of clause (c) are extended to witnesses, the extension
would be in conformity with the broad principle which forms the
basis of section 195.

15.94. Another question which arises in this connection is
whether persons who abetted the offence but are not parties to
the proceeding come within the purview of clause (c). It would
seem that their case is covered by sub--section (4) by which the
provisions of sub--section (1) are made applicable to abetment.

In an old case} the Bombay High Court took the view that
if a crirriinal court were to try the abettors it would in fact be
taking cognizance of the principal offence committed by the
party without a complaint from the court which is speciﬁcally
forbidden by section l95(1)(c). They also observed that sub-
slection (4) of section 195 "appeared to lend countenance" to

is view.

Many High Courts, however, have taken the contrary view
that in the case of persons who are not parties to the proceed-
ing and are alleged to have abetted the commission of forgery
by a party, a complaint by the court is not necessary for prose-
cuting them. This leads to the somewhat incongruous situation
that while the main offender could not be prosecuted without
sanction, any minor aiders, or abettors or accessories of his
could be so prosecuted.

15.95. Another controversial point is, where an offence
speciﬁed in clause (c) is alleged to have been committed by
several persons of whom only one is a party to the court pro-
ceeding, can the others be prosecuted without a complaint from
the court, and also, can the court make a complaint against
those persons who are not parties? Different views have been
expressed by the High Courts on both these questions.

15.96. Taking an over-all view of the matter and keeping
in mind the object of the section, we. consider that the scope of
clause (c) should not be restricted to offences committed by
parties to the court proceeding. The clause should apply when
any of the speciﬁed offence is alleged to have been committed by
any person in respect of a document produced or given in
evidence in any proceeding. It should also apply, as provided
in sub-section (4), to criminal conspiracies, abetments and
attempts to commit any such offence in respect of any such
document.

15.97. Though the question has occasionally arisen whether
and when a particular impugned document was actually "produc-
ed or given in evidence in such proceeding", the expression is
clear enough and we do not consider it necessary to alter it.

15.98. Sub-section (2) of section 195 deﬁnes the term
"court" where it occurs in clauses (b) and (c) of sub--section

1In re Nara)-an Dhonddev Risbud. (1910) 12 Born. LR, 383.

Applicability
abetments.

When offence is
committed by
several persons.

Scope of clause

Distinction bet-
ween eourts and
quasi-Judicial
tribunals.

Recommendation
regarding tribu-
rials.

Exclusion of re-

gistrars and sub-
regintrars. 1,

110

(1) as including a civil, revenue or criminal court but not in-
cluding a registrar or sub-registrar under the Indian Registra-
tion Act, 1877. (This reference is now to be read as a reference
to the Indian Registration Act, 1908). In the Code as enacted
in 1898, the deﬁnition used the word "means" instead_of "in-
cludes". The latter word was substituted by the Amending _Act
of 1923. This naturally raises the question what else, besides
civil, revenue and criminal courts, is covered by the generic term
"court". As observed by the Supreme Court in Virinder Kumar
Satyawadi v. The State of P1mjab.1--

"It is familiar feature of modern legislation to set up
bodies and tribunals and to entrust to them work of a judi-
cial character but they are not courts in the accepted sense
of that term. * * * * It may be stated broadly that what
distinguishes a Court from a quasi-judicial tribunal is that it
is charged with a duty to decide disputes in a judicial manner
and declare the rights of parties in a deﬁnitive judgment.
To decide in a judicial manner involves that the parties are
entitled as a matter of right to be heard in support of their
claim and to adduce evidence in proof of it. And it also
imports an obligation on the part of the authority to decide
the matter on a consideration of the evidence adduced and
in accordance with law. When a question therefore arises
as to whether an authority created by an Act is a Court as
distinguished from a quasi-judicial tribunal, what has to be
decided is whether having regard to the provisions of the
Act it possesses all the attributes of a Court."

_ 15.99. In any concrete case this question is bound to raise
diﬁicult and complex issues. Consequently we have a long series
of cases over the years deciding what tribunals and oﬁicers acting
in a judicial capacity should be regarded as courts and what
should not be so regarded. The substitution of "includes" for
"means" in the deﬁnition has, if anything, added to the dim-
culties of the problem. We consider that for the purpose of
clauses (b) and (c), "court" should mean a civil court or a
revenue court or a criminal court properly so called, but where a
tribunal created by an Act has all or practically all the attributes of
a court, it might be regarded as a court only if it is declared by
that Act to be a court for the purposes of this section. This would
make the position clear to all concerned, and particularly to
criminal courts when required to take cognizance of offences fall-
ing within the scope of clause (C). They would then be left with the
comparatively easy question whether the judicial body or autho-
rity before which the document was produced or given in evi-
dence was a civil court or a revenue court or a criminal court.

15.10Q. The present deﬁnition of "court" speciﬁcally ex-
cludes registrars and sub-registrars functioning under the Indian
Registration Act. This appears to have been done in 1898 in
order to settle controversy as to whether these oﬂicers when
acting in a quasi-Judicial manner in connection with the registra-
tion of_ documents should be regarded as courts for the purposes
of section 195(1) of the Code. The view of the Bombay High
Court' was that they were not courts since section 84 of the

'(l955) 2 S.C.R. 1013. 1018.
2Q. E. V. Tulia, I.L.R. 12 30111. 36. __ 4," 7 3

111

Indian Registration Act did not mention section 195 of the Code
while declaring for what purposes they should be deemed to be
public servants and the proceedings before them should be deem-
ed to be judicial proceedings. A full bench of the Madras High
Court1 held the contrary that the registrar who has the power
under section 75 of the Act to summon and enforce the atten-
dance of witnesses and to compel them to give evidence "as if
he were a civil court" is in all essentials a court. The Allahabad
High Court dissented from this view and observed? 1--

"The word "court" must be taken in its ordinary sense,
and the word would not in ordinary language be one used of
the Registrar. Throughout the Indian Registration Act, the
Registrar is described as an oﬂicer and his place of business
as an ofﬁce. When it is necessary to invest him with the
powers of a court the language used is language which clearly
implies that he is not a court. Section 75 of Act III of 1877
makes use of the expression 'as if he were a civil court'. In
section 483 of the Code of Criminal Procedure he is to be
deemed a civil court for special purposes."

We consider that the speciﬁc exclusion of registrars and sub-
registrars is unnecessary, as they cannot be regarded as civil
courts for the purposes of section 195.

"In clauses (a) and (b) of sub--section (1), the term
'court' means a civil, revenue or criminal court, and includes
a tribunal constituted by or under a Central, Provincial or
State Act if declared by that Act to be a court for the pur-
poses of this section."

15.101. Section 195 in so far as it applies to prosecution for
certain offences against public justice may accordingly be revised
as follows :--

"195. (1) No Court shall take cognizance-

(a) of any offence punishable under any of the follow-
ing sections of the Indian Penal Code, namely, sec-
tions 193 to 196, 199, 200, 205 to 211 and 228
when such offence is alleged to have been commit-
ted in, or in relation to, a proceeding in any Court, or

(b) of any oﬂence described in section 463, or punish-
able under section 471, section 475 or section 476,
of the same Code, when such offence is alleged to
have been committed in respect of a document pro-
duced or given in evidence in a proceeding in any

Court,

except on the complaint in writing of that Court, or of some other
Court to which that Court is subordinate.

(2) In clauses (a) and (b) of sub-section (1), the term
"Court" means a civil, revenue or criminal court and includes a
tribunal constituted by or under a Central, Provincial or Stare Act
if declared by that Act to be a Court for the purposes of this
section.

1Atchayya v. Cangayya, I.L.R. 15 Mad. 138.
2Q. E. v. Ram Lal, I.L.R. 15 All. 141. 143.

Section 195 as

revised.

Prosecution for
otfences against
public justice and
offence relating to
documents given
in evidence.

Section l96---Pro-
secution of otl'en-
oes against the
State.

112

(3) For the purposes of this section, a court shall be deemed
to be subordinate to the court to which appeals ordinarily lie
from the appealable 'decrees or sentences of such former Court,
or in the case of ClVll court from whose decrees no appeal ordi-
nar_1ly_li_es, to the principal court having ordinary original civil
Jurisdiction within the local limits of whose jurisdiction such civil
court is situate :

Provided that-

(a) where appeals lie to more than one court, the appel-
late court of inferior jurisdiction shall be the court
to which such court shall be deemed to be subor-
dinate; and

(b) where appeals lie to a civil and also to a revenue
court, such court shall be deemed to be subordinate
to the civil or revenue court according to the nature
of the case or proceeding in connection with which
the offence is alleged to have been committed.

(4) The provisions of sub--section (1) shall apply also to
any criminal conspiracy to commit, or attempt to commit, or the
abetment of, any offence speciﬁed therein as they apply to such
oﬂence.

15.102. Under section 196 a complaint mad; by order of,
or under authority from, the State Government or some oflicer
empowered by the State Government is necessary to initiate pro-
Ceedings for a variety of non-cognizable offences punishable under
different sections of the Indian Penal Code. First come all the
offences against the State punishable under sections 121 to 130,
except section 127 which relates to receiving property taken by
war or depredation against any power in alliance or at peace with
the Government of India. Though all these offences (except
two) are triable only by a Court of Session and the minimum
punishment is imprisonment for seven years or more, the offences
are non-cognizable under the Second Schedule to the Criminal
Procedure Code and, at the same time, private complaints are
shut out by section 196 of that Code. The object of this sec-
tion which provides an exception to the general rule that a cri-
minal prosecution can be initiated at the instance of any person
is to prevent unauthorised persons from intruding in matters of
State by instituting prosecutions and to secure that such prosecu-
tions shall only be instituted under the authority of Government}
We do not ﬁnd any good reason for excluding only section 127 of
the Penal Code from the purview of this section. Further, it
seems to us that, in addition to the State Government, the Central
Government also should have the authority to initiate prosecu-
tions by ordering a complaint. It is conceivable that in some
circumstances the Central Government might be more concerned
with prosecuting the offender than a State Government. We note
that until 1937 this authority was vested in the Governor--General
in Council, the Local Government or some oﬂicer empowered by
the Governor--Geueral in Council.

lsee Ba! Gangadhar Tilak. I.L.l. 22 Born. 1l2(l25).

ed?'

err"

113

15.103. The second group of offences covered by section 196 Prosecution 0*"

Penal Code except section l7lF so far as it relates to persona-
tion. This Chapter was inserted in the Indian Penal Code by
the Indian Election's Offences and Inquiries Act, 1920, and for
the ﬁrst time made various corrupt and illegal acts committed dur-
ing elections, likely bribery, undue inﬂuence, making false state-
ments, personation etc., punishable offences. A wide definition of
election as denoting an election for the purpose of selecting mem-
bers of any legislature, municipality or other public authority of
whatever character was inserted by the same Act in section 211 of
the Penal Code. It was felt that the purity of all elections should be
maintained by penalising various corrupt and illegal practices
but at the same time in order to allay the apprehensions of several
local governments that the new penal provisions were likely to
be abused, specially in rural areas. for putting one's personal
enemies into trouble by foisting false cases on them after an elec-
tion, reference to this Chapter of the Penal Code was included
in section 196 of the Criminal Procedure Code. It was thought
that this would give some discretion to the Government to deter-
mine whether criminal proceedings were warranted in the circum-
stances of each case so that vexatious proceedings instituted
solely on the basis of political animosity by private individuals
could be avoided. This secondary object was certainly achieved
but it is doubtful whether the penal provisions ostentatiously put
in the Penal Code, but effectively blunted by section 196 of the
Procedure Code, helped to maintain the purity of elections to any
appreciable extent.

15.104. This difficulty was realised in some provinces in
regard to the offence of personation punishable under section
171F of the Penal Code. Even a person blatantly committing
this offence at the polling booth could not be arrested or other-
wise proceeded against on the spot since the offence was non-
cognizable and the complaint of an empowered officer was requir-
ed for prosecuting the offender in court. The Criminal Proce-
dure Code was locally amended by four provinces excluding this
offence from the scope of section 196 and making it cognizable.
This lead was followed up in the Representation of the People
Act, 1951, and the amendment became applicable throughout
India.

15.105. The experience of the last 20 years in the ﬁeld of
countrywide democratic elections shows that unless these impe-
diments to prosecution are removed, the mere fact that bribery,
undue inﬂuence, character assassination etc., are punishable on
conviction by a criminal court, makes little difference and these
corrupt practices are indulged in with impunity. The number of
complaints lodged by the Govemment or empowered officers in
regard to election offences (apart from personation) is naturally
very small. Under the party system of government prevalent
throughout the country it will, no doubt, be embarrassing for the
State Government to decide in the first instance whether a com-

laint ought to be lodged in a particular case. Whichever way
it decides this question it is most likely that political motives and
prejudices will _be attributed to it. It is possible that if the bar

1See Explanation 3. Section 6 makes the deﬁnition applicable to
Gunter IXA of the Code also.

are the offender, punishable under Chapter IXA of the Indian 'f".°°"°" °'7°"°°5"

tstory.

Personation ex-
cluded from sec-
tion l96 in 1951.

Exclusion of all
election offences
recommended.

Abetment of ex-

tra-territorial
offences.

Sections

153A,

295A and 505,

I.P.C.

Kccfling
olﬁce.

lottery

Latter part of sec-

tion I96 to
simpliﬁed.

114

contained in section 196 of the Code is removed there will be a
spate of private complaints, including quite a few vexatious ones
for the sake of harassment, but we feel that this possibility must
be faced in the interest of free and fair elections. We recom-
mend that all election offences should be excluded from the
purview of section 196. We would also recommend that neither
illegal payments in connection with an election nor failure to keep
election accounts need be offences punishable under the Penal
Code and accordingly sections 171 H and 171 I of that Code
be repealed.

15.106. The third item in section 196 is any offence punish-
able under section 108A of the Indian Penal Code. This section
does not exactly create an offence but only explains that a person
abets an offence who, in India, abets the commission of an act
outside India which, if committed in India, will constitute an
offence. It is a form of abetment which along with other forms
is punishable under different sections of the Indian Penal Code.
An abetment of the nature described in section 108A is congniz-
able or non-cognizable according as the offence abetted is cogniz-
able or non-cognizable. The object of a provision in section
196 that a court shall take congnizance of such abetment only
on complaint made by order of the State Government appears to
be to keep under control prosecutions which might impinge on
foreign relations in general, and relations with the former Indian
States in particular. (Incidentally, it should be noticed that when
a person in Punjab abets the commission of an offence in Kashmir,
the abetment falls under section 108A of the Penal Code and
consequently attracts section 196 of the Criminal Procedure
Code. In view of the external affairs aspect of the matter, pro-
ceedings for abetment of extra-territorial offences should, in our
opinion, require a complaint made by order of the Central Gov-
ernment or of the State Government.

15.107. The offences under section 153A, section 295A and
section 505 of the Penal Code continue to be non-cognizable,
though by an amendment of that Code in 1961 the maximum
punishment has been increased to three years. We recommend
that, in regard to these offences also, proceedings should require
a complaint made by order either of the Central Government or
of the State Government.

15.108. Section 294A of the Indian Penal Code makes it an
offence to keep an office for, or to publicise, any unauthorised
lottery and the offence is non-cognizable. We see no reason why
private complaints in respect of this offence should be shut out
and recommend that the section should be left out of section 196.

15.109. The latter part of section 196 is unnecessarily com-
plicated. The complaint necessary for initiating proceedings may
be made "by order of, or under authority from, the State Gov-
ernment or some officer empowered by the State Government in
this behalf." We recommend that this should be simpliﬁed to
complaint made by order of the Central Government or of the
State Government. A simple provision of this type would avoid
the time-consuming controversies that are frequently raised in
the courts as to whether the oﬁcer has been duly empowered by
the State Government, whether' the authority to lodge' the parti-

115

cular complaint has duly emanated from that oﬁcer or from the
Government and so on.

15.110. Finally, we propose that any criminal conspiracy to
commit any of the offences covered by section 190 should also
be covered by that section, instead of by clause (1) of section
196A as at present.

15.111. Section 196 may accordingly be revised to read :--

"I96. No court shall take cognizance of--

(a)

any offence punishable under Chapter VI, section
153A, section 295A or section 505 of the Indian
Penal Code, or

any criminal conspiracy to commit such offence, or

any such abetment as is described in section 108A
of the Indian Penal Code,

(b)
(c)

except upon complaint made by order of the Central Government
or of the State Government."

15.112. Section 196A was inserted in the Criminal Proce-
dure Code by the Criminal Law Amendment Act, 1913, which
made criminal conspiracy as such an offence by inserting sections
120A and 120B (Chapter V-A) in the Indian Penal Code. It
was apparently felt that, in the case of petty conspiracies made
punishable for the first time by sub-section (2) of section 120B,
private complaints should not be freely allowed and prosecutions
should be instituted only when necessary in the public interest.
The section classiﬁes such criminal conspiracies in two groups
and makes a ﬁne distinction as to the manner of initiating pro-
ceedings. There seems to be no point in this reﬁnement.

It has been authoritatively held by the Supreme Court' that
when the object of the conspiracy is to commit a cognizable off-
ence, such as cheating and dishonestly inducing delivery of pro-
perty, and other non-cognizable offences such as forgery were
also committed as steps for effecting this object, the consent of
the State Government or District Magistrate is not required under
clause (.2) of section 196A. In view of this decision, we do not
consider that any clariﬁcation is necessary in the section.

15.113. Section 196A may accordingly be simpliﬁed and re-
vised as follows :--

"196A. No Court shall take cognizance of any criminal
conspiracy punishable under section 120B of the Indian Penal
Code, other that a criminal conspiracy to commit a cogniz-
able offence punishable with death, imprisonment for life or
rigorous imprisonment for a term of two years or upwards,
unless the State Government or the District Magistrate has
consented in writing to the initiation of the proceedings:

Provided that where the criminal conspiracy is one to
which the provisions of section 194, section 195 or

1 Bhanwar Singh v. State ofkliasthan, AIR. 1968 S.C. 709.

Criminal conspi-
racies also to be
covered.

Section 196 as
revised.
Prosecution for

the offences
against the State.

Section 196A.

Prosecution for
certain classes of
criminal conspi-
racy.

116

section 196 apply, no such consent shall be
necessary."

s°°u°n196B' 15.114. Section 196B provides that in the case of any offence
in respect of which the provision of section 196 or section 196A
apply, a District Magistrate or Chief Presidency Magistrate may,
"Notwithstanding anything contained in those sections or in any
other part of this Code" order a preliminary investigation by a
police ollicer not being below the rank of Inspector. The object
of such an investigation can only be to enable the competent
authority to decide whether it should order a complaint under
section 196 or give consent to the initiation of proceedings under
section 196A. We, therefore, recommend that the section should
be amended vesting the power to order investigation in that au-
thority and making it clear that such investigation will take place
before the complaint is ordered or the consent is given. The
words "notwithstanding anything contained in those sections or
in any other part of this Code" are clearly unnecessary and

should be omitted. The section may be revised to read :--

Preliminary in- "196B. The Central Government or the State Govern-

vestigation in merit betore ordering complaint to be made under section

°¢|'Wn°35°3- 196, and the State Government or the District Magistrate
before giving consent under section 196A, may order a pre-
liminary investigation by a police officer not below the rank
of Inspector, in which case such police ofﬁcer shall have the
powers referred to in sub--section (3) of section 155."

Section l97--its 15.115. Under section 197 the previous sanction of the ap-
Oblect propriate Government is necessary when a judge or a Magistrate
or a public servant, not removable from his oﬂice save by or
with the sanction of Government, is to be prosecuted for an
offence alleged to have been committed by him while acting or
purporting to act in the discharge of his ofﬁcial duty. Substan-
tially similar provisions have found a place in the Code since
1861, the object being to enable the more important categories
of public servants performing onerous and responsible functions
to act fearlessly by protecting them from false, vexatious or mala

ﬁde prosecutions.

History of the 15.116. As originally enacted, section 197(1) read :--
section.

"When any Judge, or any public servant not removable
from his oﬂice without the sanction of the Government of
India or the Local Government is accused as such Judge or
public servant of any offence, no court shall take cognizance
of such offence except with the previous sanction of the Gov-
crnment having power to order his removal, of some officer
empowered in this behalf by such Government or of some
Court or other authority to which such Judge or public ser-
vant is subordinate, and whose power to give such sanction
has not been limited by such Government."

It was subsequently noticed that the section did not give protec-
tion to officers not removable from their office except by or with
the sanction of the Secretary of State, nor to Magistrates as such
while acting in their non-judicial capacities.' It was also felt that
the phrase "accused as such Judge or public servant of any oﬁ-

117

once" was not sutticiently precise. Accordingly, the section Wm
amended by the Amending Act of 1923 to read 1--

"When any person who is a Judge within the meaning of
section 19 of the Indian Penal Code, or when any Magistrate,
or when any public servant who is not removable from his
office save by or with the sanction of a Local Government
or some higher authority, is accused of any offence alleged
to have been committed by him while acting or purporting to
act in the discharge of his official duty, no Court shall take
cognizance of such ollence except with the previous sanction
of the Local Governmen."

15.117. The protection against prosecution thus given to cer-
ain public servants was placed on a constitutional footing by
section 271 of the Government of India Act, 1935. Sub-section
(1) of this section provided that "no Bill or amendment to
abolish or restrict the protection afforded to certain servants of
the Crown in India by section 197 of the Indian Code of Criminal

the Federal Legislature without the previous sanction of the Gov-
ernor General in his discretion." Sub-section (2) of the same
section further provided that "the powers conferred upon a Local
Government by the said section 197 with respect to the sanction-
ing of prosecutions and the determination of the Court before
which, the person by whom and the manner in which, a public
servant is to be tried, shall be exercisable only----

(a) in the case of a person employed in connection with
the affairs of the Federation, by the Governor-Gene-
ral exercising his individual judgement; and

(b) in the case of a person employed in connection with
the aifairs of a Province, by the Governor of that
Province exercising his individual judgement."

Following this latter provision, the words "except with the re-
vious sanction of the Local Government in section 197(1) of the
Code were replaced by the Adaptation of Indian Laws order of
1937 with the words "except with the previous sanction----

(a) in the case of a person employed in connection with
the affairs of the Federation of the Governor-General
exercising his individual judgment; and

(b) in the case of a person employed in connection with
the aﬁairs of a Province, of the Governor of that
Province exercising his individual judgment."

Subsequent Adaptation Orders made necessary formal changes
in the section without altering its substance.

15.118. The section now applies to three classes of public
servants, namely :--

(i) any person who is a Judge within the meaning of
section 19 of the Indian Penal Code;1

1This section states :--"The word Judge denotes not only every
person who is oﬂicially designated as a Judge but also every pe
is empowered by law to give, in any legal proceeding, civil or criminal,
a deﬁnitive judgment. or a' judgment which if n '
be deﬁnitive or a iudtzment which. if conﬁrmed by some other authority,
would be deﬁnitive or who is one of a body of persons. which body of
person is empowered by law to give such a judgment";

Protection rein-

forced by Govern-
ment of India
Act, 1935.

Analysis of the
section.

Does section
offend article 14
of the Constitu-
tion?

118

(ii) any Magistrate; and

(iii) any public servant 'who is not removable from his
oﬂice save by or with the sanction of a State Gov-
ernment or of the Central Government.

Such a public servant is protected against a prosecution only if
the olfence is alleged to have been committed by him while acting
or purporting to act in the discharge of his oﬁicial duty. The
protection consists in the prosecution having to obtain the previ-
ous sanction of the Central Government it the person is employed
in connection with the alfairs of the Union, and of the State Gov-
ernment if he is employed in connection with the affairs of a
State.

15.119. The Supreme Court has held1 that "Article 14 (of
the Constitution) does not render section 197, Criminal Proce-
dure Code, ultra vires as the discrimination is based upon a
rational classiﬁcation. Public servants have to be protected from
harassment in the discharge of ofﬁcial duties while ordinary citi-
zens not so engaged do not require this safeguard". In this case,
however, the Supreme Court did not consider whether any un-
constitutional discrimination was involved in the section extend-
ing its protection to a few categories of public servants and not
to every public servant as deﬁned in section 21 of the Indian
Penal Code. The judgement states2, "if the Government gives
sanction against one public servant but declines to do so against
another, then the Government servant against whom sanction is
given may possibly complain of discrimination. But the peti-
tioners who are complainants cannot be heard to say so, for
there is no discrimination against any complainant. The dis-
crimination will be patent in a case where a senior ofﬁcer remov-
able from his oﬂice only by the State Government and a subor-
dinate olﬁcer removable from his oﬂice by a lesser authority are
sought to be prosecuted in connection with their official duty,
and the State Government considers it proper to refuse sanc-
tion in respect of the senior oﬁicer but has no voice as to the
prosecution of the subordinate. It will be a nice point of law
to determine whether the classiﬁcation adopted in section 197 of
public servants removable from oﬂice only by or with the sanc-
tion of the Government and other public servants is "rational"
having regard to the objective of the safeguard. It has, however,
been laid down by the Supreme Court'', while explaining the scope
of article 14, that "the Legislature is free to recognise degrees
of harm and may conﬁne its restrictions to those cases where the
need is deemed to be the clearest." It can, therefore, be argued
that Parliament considers that the need of superior Government
servants to protection under this section is the clearest and does
not consider it necessary to extend the protection to lower groups
of Government servants and that in this view, the section does
not offend article 14.

1 Mata Jog Dubey v. H. C. Bhari (195-5) 2 S.C.R. 925, 931.

2lbid_ D. 932.
3Ram Krishna Dalmia v. Justice Tandolkar, A.I.R. (1958) S.C. 538,
548.

119

15.120. It has been suggested by a State Government that Sugggstjon to 1-,-
this discrimination, whether unconstitutional or not, should be n_10V¢ discrimina-
removed by making section 197 applicable to all public servants "°n-
irrespective of the authority competent to remove them from
their otlice. Activities of the Government have greatly increased
and a public servant at the lowest rtmg of the ladder is also called
upon to perform duties likely to prejudice the interest ofoertain
individuals though the same may be in the larger interest of the
society. It is not always possible for the superior oiﬁcer to per-
form the duties himself and on a number of occasions he has
to get things done by his subordinates. It is said that this situa-
tion has led to an increased number of fictitious and frivolous
proceedings against public servants who are not protected by
section 197 of the Code, but we have no deﬁnite information in
support of this statement.

15.121. However that may be, we do not think it would be widening scope of
proper or prudent to widen the scope of the section so as to Section _ to Cover
cover all public servants irrespective of their grade or rank which '['11o1t1:"b1'°'°"'§'e';
goes, pari passu, with the importance of the duties they have to °°°mm°n '
perform. The deﬁnition of "public servant" given in section
21 of the Indian Penal Code, particularly clause twelfth, is very
comprehensive. It includes, besides government servants proper,

"every person in the service or pay of a local authority or of a
corporation established by or under a Central, Provincial or State
Act or of a Government company as deﬁned in section 617 of
the Companies Act, 1956". The public servants now protected
by section 197 are, broadly speaking, those government servants
in the higher grade with more responsible and onerous duties to
perform and hence requiring to be protected from vexatious pro-
secutions which would be highly detrimental to the administrative
work of Government. There is, in our opinion, no need to ex-
tend this protection to other categories of government servants.

15.122. The meaning of the word "acting or purporting to Procedural do-
act" in section 197 has been well settled by a string- of decisions' "ms. ""4" th-
of the Federal Court, the Privy Council and the Supreme Court. '°c"°n'

Any diﬂlculty that may be felt lies in the actual application of
the principles laid down in these decisions to the facts and cir-
cumstances of particular cases. The section does not prescribe
any particular form of sanction, but Courts usually insist on
being satisﬁed that the sanctioning authority has applied its
mind to the facts of the case before granting sanction, and that
the sanction is not arbitrary? The sanction need not specify the
offences as precisely as a charge'*, and omission to mention a parti-
cular section of the law also does not seem to preclude the pro-

1Hari Ram A.I.R. 1939 F.C. 43, 46;

H. H. B. Gill, A.I.R. 1948 P.C. 128;

T. A. Merton, A.I.R. 1950 P.C. 19;

Mathum_ A.I.R. 1954 S.C. 455:

Bis-hwabhusan v. The State, A.I.R. 1954 S.C. 359;

Satwant Singh v. The State of Punjab (1960)

2 S.C.R. 89; A.I.R. 1960 S.C. 266;

Indu Bhusan v. The State, A.I.R. 1958 S.C. 148;

Baiinath v. The State, A.I.R. 1966 S.C. 220; (1966) l S.C.R. 210.
2 Gokal Chand Dwarka Das, (1948) 75 Indian Appeals 30. 37; A.I.R.

1948 PC. 82: '

Jawant Singh v. The State of Ifuniab $1958) S.C.R. 762. 765.
3Emperor v. Iehangir Cama, A.I.R. 1 27 Don. 501, 503.

1:4I-IA/69 \

Section to apply
to public servant
after retirement
also.

Reference to sec-
tion 19, l.P.C.
unnecessary.

Sub-section (2) of
section 197 may
be retained.

120

secution from proving the relevant factsl. Though prosecutions
sometimes fail because of defects in the sanction, It does not
appear to be necessary to insert any provision in the Code as
to what the sanction should contain.

15.123 Section 197, as it now stands, applies to a public
servant of the speciﬁed category only when he is holding oﬁce
as such public servant. It does not apply to him after he has
retired, resigned or otherwise left the service". As interpreted
by the Supereme Court, the section requires that the person charg-
ed must be a public servant not only at the time when the offence
was alleged to have been committed but also when he "is accused"
of the offence'*'. It appears to us that protection under the sec-
tion is needed as much after retirement of the public
servant as before retirement. The protection afforded by
the section would be rendered illusory if it were open to a
private person harbouring a grievance. to wait until the public
servant ceased to hold his olﬁcial position, and then to lodge
a complaint'. The ultimate justiﬁcation for the protection con-
ferred by section 197 is the public interest in seeing that qﬂicial
acts do not lead to needless or vexatious prosecutions. It should
be left to the Government to determine from that point of view
the question of the expediency of prosecuting any public servant.

15.124. Sub-section (1) refers to "a Judge within the
meaning of section 19 of the Indian Penal Code". Even with-
out these words, the position will be the same in view of section
4, sub-section (2), of the Code of Criminal Procedure. In fact,
section 556 of this Code, while referring to the Judge, does not
refer to section 19 of the Indian Penal Code. As regards Mays-
trates, however, the deﬁnition in section 19 of the Indian Penal
Code may not cover Magistrates while exercising non-judicial
functions or even when holding certain inquiries. It is neces-
sary to refer to Judges and Magistrates explicitly sinus not all
of them fall under the category of public servants not removable
from their office save by or with the sanction of the Govem-
ment.

15.125. Sub-section (2) empowers a Government not only
to determine the person by whom the manner in which, and the
offence or Offences for which, the prosecution of the public ser-
vant is to be conducted, but also to specify the Court before
which the trial of the public servant is to be held. It is presum-
ably to ensure that the dignity of high-placed government servant
is maintained and that he is not compelled to undergo the em-
barassment of a trial by junior and inexperienced magistrates.
There appears to be no harm in retaining the sub-section without
any modiﬁcation.

1 Maj. J. Phillips V. The State, AIR. 1957, Cal. 12, 25.

2Keshavlal v. The State, AIR. 1961 S.C. 1395; (1962)
451 (Section 197):

In re S. A. Venkataraman, (1958) S.C.R, 1037 (section 6, Prevention
of Corruption Act, 1947).

'Emperor v. P. A. Joshi, A.I.R. 1948 Born. 248 (Reviews cases).

'Cf. the observations in In re S. Y. Pan'! A.I.R. 1937 Nag. 293
(now overruled by Keshavlal's case, supra).

l S.C.R .

.)kV .

121

15.126. In the light of the above discussion, sub--section (1)
of section 197 may be revised as follows :

"(l) When any person who is or was a Judge x_ x x or
Magistrate or a public servant not removable from his oﬂice
save by or with the sanction of the Central Government or
of a State Government is accused _of any oﬁence alleged_ to
have been committed by him while acting or purporting
to act in the discharge of his oﬂicial duty, no Court shall
take cognizance of such oﬂence except with the previous
sanction----

(a) in the case of a person who is employed, or as the
case may be was at the time of commission of the
alleged oﬂence employed, in connection with the aﬁairs
of the Union, of the Central Government;

(b) in the case ot a person who is employed, or as the

case may be was at the time of commission of the

alleged oﬁence employed, in connection with the affairs
of a State, of the State Government."

15.127. Section 197A was inserted by the Amendment Act
of 1951 which extended the Code to all Part B States. It con-
iers on the Rulers of the Former Indian States a protection
similar to, but wider than, that conferred on public servants by
section 197. Sub--section (2) of section 197A debars criminal
courts from taking cognizance of any oﬁence alleged to have
been committed by any such Ruler except with the previous
sanction of the Central Government. Under clause (a) of sub-
section (1), the Central Government has notiﬁed 284 former
Indian States; and every person who is for the time being recog-
nized by the President as the Ruler of any of these States is en-
titled to protection under the section.

15.128. During the British regime, the Rulers of Indian States
in political alliance with the paramount power were treated as
sovereign within their respective territories and, consequently,
they enjoyed the absolute privileges enjoyed by independent
sovereigns and their ambassadors in the courts in England in
accordance with the principles of international law. In British
India also, so far as the criminal courts were concerned, they
were not amenable to their jurisdiction at all on the principle
which is stated in a classic judgement' on the subject as follows :-

"The principle to be deduced from all these cases is
that, as a consequence of the absolute independence of
every sovereign authority, and of the intemational comity
which induces every sovereign State to respect the indepen-
dence and dignity of every other sovereign State, each and
every one declines to exercise by means of its courts any of
its territorial jurisdiction over the person of any sovereign
or ambassador of any other State, or over the public pro-
perty of any State which is destined to public use, or over
the property of any ambassador, though such sovereign,
ambassador, or property be within its territory, and, there-
fore, but for the common agreement, subject to its jurisdic-
tion."

1The Parlement Belge, (1880) 5 P.D., 197, 214, 215.

Sub-section (1)
revised.

Section 197A.

Absolute privi-
lege enjoyed by
the rulers during
British regime.

Continuance of
privilege under
the Constitution.

Limited protec-
tion under sec-
tion 197A.

Section 198--dele-
tion of reference
to Chapter XIX
of I.P.C. reco-
mmneded.

Oﬁ'ences against
marriage ---- con-
solidation of pro-
visions in sections
198. 199 199A
and 199B.

122

15.129. When after Independence, the process of integrat-
ing the former Indian States with the rest of the country began,
guarantees were "given to the Rulers under the various Agree-
ments and Covenants for the continuance of their rights, dig-
nities and privileges. The rights enjoyed by the Rulers vary
from State to State and are exercisable both within and without
the States. They cover a variety of matters ranging from the
use of red plates 'on cars to immunity from civil and criminal
jurisdiction and exemption from customs duties. Even in the
past it was neither considered desirable nor practicable to draw
up an exhaustive list of all these rights. x x x Obviously, it would
have been a source of perpetual regret if all these matters had
been treated as justiciable. Article 363 has, therefore been em-
bodied in the Constitution which excludes speciﬁcally the Agree-
ments of Merger and the Covenants from the jurisdiction of
Courts' except in cases which may be referred to the Supreme
Court by the President. At the same time, the Government of
India considered it necessary that constitutional recognition
should be given to the guarantees and assurances which the Gov-
ernment of India have given in respect of the rights and privi-
leges of Rulers.. This is contained in Article 362, which pro-
vides that in the exercise of their legislative and executive organs
of the Union and States will have due regard to the guarantees
given to the Rulers with respect to their personal rights, privi-
leges and dignities."1

15.130. The enactment of section 197A in the Code of
Criminal Procedure was intended to give effect to this directive
in so far as criminal prosecutions of ex-rulers were concerned.
Having regard, however, to the changed circumstances, the sec-
tion did not confer on them an absolute immunity from prose-
cution for any oﬁence, but only a limited protection in the shape
of a previous sanction by the Central Government to the prose-
cution. No amendment is required in this section.

15.131. Section 198 deals with the cognizance of oﬁences
falling under section 491, sections 493 of 496 and sections 500
to 502 of the Indian Penal Code. These three groups of offences
have nothing in common, but under Section 198, proceedings
can be initiated only on complaint made by some person aggriev-
ed by the offence. The ﬁrst offence mentioned in the section,
namely, breach of contract to attend on or to supply demands
to helpless persons, hardly ever comes before the courts. It
seems to us to be wholly unnecessary to hedge it in with the
procedural restriction that only some person aggrieved by the

offence can lodge a complaint against an offender. We recom-
mend the deletion of the reference to Chapter XIX of the
Indian Penal Code in section 198.

15.132. The second group of offences covered by
the section are the first four oﬁences in Chapter

of the Indian Penal Code. The other two offences in the same
Chapter, namely, adultery and enticing or taking away a married
woman with criminal intent, are dealt with mainly in section
199. Certain procedural aspects which are common to sestions

1White paper on Indian States (Revised Edition). 1950, pp 125126,
paragraph 240.

123

198 and 199 are dealt with in sections 199A and 199B. It
would be conducive to clarity and ease of reference if the cogni-
zance of all offences relating to marriage (sections 493 to 498 of
the Indian Penal Code) and matters connected therewith are dealt
with in a single section. A draft is proposed below.

15.133. In this draft section, we have made two minor modi-
ﬁcations of substance. There is at present a conﬁict of decisions
as to whether sections 198 and 199 apply to attempts and abet-
ments of the offences. One view is that any abetment or
attempt to commit the offence, say of bigarny, could be regarded
as an offence "falling under" section 494 of the Penal Code.
The proposed draft makes this clear,

15.134. Clause (b) of the second proviso to section 198
and the second proviso to section 199 which are in identical
terms, relate to offences under sections 494, 497 and 498 of the
Penal Code. In the circumstances envisaged in the proviso, it
hardly seems necessary that the person duly authorised by the
husband serving in the Armed Forces should be required to
obtain leave of the Court to make the complaint on his behalf.
There is also no reason why the proviso should not apply to
the other offences relating to marriage in the same Chapter.

15.135. The revised section 198 dealing with prosecutions
for offences against marriage may be as follows : --

"198. (1) No court shall take cognizance of an offence
punishable under Chapter XX of the Indian Penal Code
except upon a complaint made by some person aggrieved
by the offence:

Provided that---

(a) Where such person is under the age of eighteen years,
or is an idiot or a lunatic, or is from sickness or in-
ﬁrmity unable to make a complaint, or is a woman who
according to the local customs and manners, ought not
to be compelled to appear in public, some other
person may with the leave of the Court, make a com-
plaint on his or her behalf;

(b) where such person is the husband and he is serving in

any of the armed forces of the Union under conditions

which are certiﬁed by his commanding Oﬂiceir as
precluding him from obtaining leave of absence to en-
able him to make a complaint in person, some other
person authorised by the husband in accordance with

the provisions of sub-section (4) may. . .. make a

complaint on his behalf;

(c) where the person aggrieved by an offence punishable
under section 494 of the Indian Penal Code is the wife,
complaint may be made on her behalf by her father.
mother, brother. sister, son or daughter or by her
father's or mother's brother or sister.

(2) For the purposes of sub-section (1), no person
other than the husband of the woman shall be deemed to

New section to
apply to attempts
and abetments.

Modiﬁcations '
relating to serving

soldiers.

Revised section

198.

Prosecution

offences
marriage.

for
against

New_ section re-
garding prosecu-
tion for defama-
tion.

Prosecution for

defamation.

124

be aggrieved by any offence punishable under section 497
or section 498 of the said code :

Provided that, in the absence of the husband, some
person who had care of the woman on his behalf at the
time when such offence was committed may, with the leave
Of the Court, make a complaint on his behalf.

(3) When in any case falling under Clause (a) of the
proviso to sub-seiction (1)... .. the complaint is sought
to be made on behalf of a person under the age of eighteen
years or of a lunatic by a person who has not been ap-
pointed or declared by a competent authority to be the
guardian of the person of the minor or lunatic, and the
Court is satisﬁed that there is a guardian so appointed or
declared, the Court shall, before granting the apphcation for
leave, cause notice to be given to such guardian and give
him a reasonable opportunity of being heard,

(4) The authorisation referred to in clause (b) of the
proviso to sub-section (1) shall be in writing, shall be
signed or otherwise attested by the husband, shall contain
a statement to the eifect that he has been informed of the
allegations upon which the complaint is to be founded, shall
be countersigned by his Commanding Officer, and shall be
accompanied by a certiﬁcate signed by that oﬂicer to the
effect that leave of absence for the purpose of making a
complaint in person cannot for the time being be granted to
the husband.

(5) Any document purporting to be such an authorisa-
tion and complying with the provisions of sub-section (4).
and any document purporting to be a certiﬁcate required
by that sub-section shall, unless the contrary is proved, be
presumed to be genuine and shall be received in evidence.

(6) The provisions of this section apply to the abetment
of or attempt to commit, an offence as they apply to the
offence."

15.136. So far as offences falling under Chapter XXI of the
Indian Penal Code, ie. defamation, are concerned, the provision
in section 198 may be put in a new section 198AA consisting
only of the main clause and the ﬁrst proviso. The provision
contained in section 199A is hardly necessary in defamation
cases and can safely be dispensed with. The section will read
as follows :--

"198AA. No Court shall take cognizance of an offence
punishable under Chapter XXI of the Indian Penal Code
except upon a complaint made by some person aggrieved
by the offence :

Provided that where such person is under the age of
eighteen years, or is an idiot or lunatic, or is from sickness
or inﬁrmity unable to make a complaint, or is a woman who,
according to the local customs and manners, ought not to
be compelled to appear in public. some other person may.
Xithbtglealleave of the Court, make a complaint on his or

or ."

125

15.137. Section 198A lays down a rub of limitation in
regard to the offence of rape where it consists of sexual inter-
course by a man with his own wife, the wife being under ﬁfteen
years of age. Clause (ii) of the section is obviously spent and
may be omitted. The revised section will read :--

"198A. No Court shall take cognizance of an offence
under section 376 of the Indian Penal Code, where such
oﬁence consists of sexual intercourse by a man with his
own wife, the wife being under ﬁfteen years of age, if more
than one year has elapsed from the date of the commission
of the oﬁence."

15.138. Section 198B, which was introduced by the
Amendment Act of 1955, deals with prosecution for the offence
of defamation where such offence is committed against certain
high dignitaries and public servants in respect of their conduct
in the discharge of public functions. The section lays down a
special procedure for such cases. The Court of Session is em-
powered to take cognizance of such offence, without the ac-
cused being committed to it for trial, upon a complaint in
writing made by the Public Prosecutor. It is not necessary1 for
the aggrieved rson to sign the complaint under this section,
but the complaint has to be made with the previous sanction of
a speciﬁed authority. There are also distinctive features which
will be discussed below.

15.139. The legislative history of the section is interesting
and instructive. In the Code of Criminal Procedune (Amend-
ment) Bill of 1954 as introduced in Parliament, it was proposed
that the offence of defamation of public servants should be made
cognizable on the ground that" "often grossly improper, unfound-
ed and defamatory allegations and charges are made against
public servants in regard to their actions in the discharge of
their oﬂicial duties. It is desirable, in the public interest, that
inquiries should be made into such charges. Therefore, such
cases are being made cognizable, so that they may be brought
before a court by the police after proper investigation. Such
cases are being made triable exclusively by a Court of Session."

15.140. There was strong opposition to this proposal, parti-
cularly from the Indian Federation of Working Journalists. The
Press Commission-" which reported on 12th July, 1954, made the
following points against the Bill :-- i

"We think that it would not be altogether safe to make
such offences cognizable with all the consequences ﬂowing
from such a provision. It would enable the police to arrest
the alleged offender without a warrant. to take pneventive
action contemplated under Chapter XIII of the Criminal
Procedure Code and to conduct searches under sections 165
and 166 of the Criminal Procedure Code. The defamatory

1P. C. Joshi, A.I.R. 1961 S.C. 387: (1961) 2 S.C.R. 63. See also
sub-Sec. (14) inserted by Act 40 of 1964.

3Statement of Obiects and Reasons attached to the Bill: note on
clause 25.

to 175

'Report of the Press Commission (12 ]uly_. 1954) paragraph 172

Section 198A---
omission of
spent clause.

Prosecution for
oﬁenoe of martial
misbehaviour.

Section l98B---
Introduction.

Legislative his-
tory.

Views of the Press

Recommendation
of the Press Com-

mission.

Final views of

the Joint
mittee.

Com-

126

allegation may be so vague that it' would be impossible to
secure a conviction. These allegations may vary in gravity;
some may be serious while others may be so inconsequen-
tial that no one would take serious notice of them. Yet
to invest police oﬂicers with power to take action in all
these cases might well constitute an instrument of oppres-
sion. x x x x it would depend upon the subjective appre-
ciation by the poliee oiﬁcer as to what constitutes defama-
tion. x x x Even if ultimately no case is sent up by the
police, the ignominy involved in an arrest is not wiped out.

On the other hand, we realise that there would be some
cases where serious' allegations are made which would re-
quire police investigation. There may also be public ser-
vants, perhaps with guilty conscience who would not be
willing to bring cases into courts and to clear themselves
of the defamatory allegations. The police cannot take any
action because the offence is a non-cognizable one, and
under section 198 of the Criminal Procedure Code, no court
can take cognizance of the offence of defamation (an
oﬁence falling under Chapter XXI of the Indian Penal
Code) except upon a complaint made by a some person
aggrieved by such offence. A procedure has therefore, to
be devised which will strike a balance between those two
considerations, viz., (1) frivolous action by the police and
the consequent harassment of the alleged oﬂender, and (2)
the desirability of police investigation or magisterial inquiry
in some cases where it is necessary that the public servant
should clear himself of the defamatory allegations."

15.141. The Press Commission recommended an addition
to section 198 as follows 2--

"Provided further that where the person aggrieved
under Chapter XXI of the Indian Penal Code is a public
servant within the meaning of section 21 of the Indian Penal
Code, by reason of allegations made in respect of his con-
duct in the discharge of his public duties, the magistrate
with jurisdiction may take cognizance of the oﬂences
upon a complaint made in writing by some other public
servant to whom he is subordinate."

It also recommended an addition to section 202 to the effect
that "where the complaint is in respect of defamation of a pub-
lic servant in the discharge of his duties the Magistrate shall
make the inquiry hirneslf or direct an inquiry or investigation
into the complaint as aforesai ."

15.142, The Joint Committee which considered the Bill of
1954 agreed1 that "the otfence of defamation against the Presi-
dent. Governor or Rajpramukh of a State, Minister, or other
public servant should not be made cognizable." They omitted
the clause by which section 198 was amended and recommended
as follows :--

"Instead, the Comm.ittee have inserted a new section
198B in the Criminal Procedure Code. In drafting this sec-

lloint Committee': Report. para 18 on clause 25.

127

tion, the Committee have taken into consideration the recom-
mendations of the majority of the members of the Press Com-
mission and the evidence tendered bY_th6 1'6D1'€_=S€ﬂtat1V€S Of
Indian Federation of Working Journalists. _While the Com-
mittee consider that dafamation of a public servant should
not be made a cognizable offence, they are of the OPIDIOI1 that
there should be an independent authority apart from _the
person aggrieved to set the law into motion. The Committee
are of the view that the procedure laid down in sub-sect10n
(2) of section 194 is cumbersome, and might prove expen-
sive. The Committee consider that the Public P1'0S6C11t0I'
should have the right to launch a prosecution in all such
cases by a written complaint which should be ﬁled before the
Court of Session. The Court of Session may take cognizance
of the offence upon such complaint without the accused being
committed to it for trial, and it shall try the case following
the procedure prescribed for warrant cases. The Public
Prosecutor, however, shall have no right to make a complaint
except with the previous sanction of the person speciﬁed in
sub-section (3) or section 198B. Such a complaint _should
set forth such particulars as may be reasonably sufﬁcient to
give notice to the accused of the oﬁence alleged to have been
committed by him, and should be ﬁled within six months
from the date on which the offence is alleged to have been

committed."

15.143. Section 198B thus emerged in its present form after
much deliberation and discussion. It was substantially different
from the original clause in the Bill, and also from the provision
suggested by the Press Commission. It brings in the Public Prose-
cutor, who is expected to make the complaint made with the Gov-
emment's approval and to conduct the trial before the Court of
Session. It puts the whole weight of the Government against
the accused, in what would otherwise have been a private litiga-
tion between the accused and the public servant. This interven-
tion of the State can be justiﬁed only on the ground that the Gov-
ernment has an interest in "protecting its reputation when it is
likely to be tarnished if an attack on its oﬂicers goes unchallenged,
or in other words, the defamation, besides causing harm to the
individual, has caused appreciable injury to the State.

15.144. The primary obiect behind section 198B is to pro-
vide a machinery enabling Government to step in to » maintain
conﬁdence in the purity of administration when high dignitaries
and other public servants are wrongly defarned. We think that
to achieve this object, it is unnecessary to cover all Government
servants irrespective of their position. Government servants in
general, can seek permission of the Government and approach
the Courts for vindicating their oﬂicial conduct} The special
provision is nealed only for the high dignitaries who really consti-
tute the Government itself. We think that it should be conﬁned
to the President and the Vice-President of India, the Governors
of States, Administrators of Union Territories and Ministers,
whether of the Union or of a State. \

Details as to the number and nature of the prosecutions
launched under section 198B since 1955 which were furnished to

1Cf.-Rule 19. Central Civil Services' Conduct" Rules.

Section designed
to protect Gove-
rnment's reputa-
tion.

Sub-section (1)----

unnecessary to
cover ' all public
servants. «

Defamation of
ex-ministers.

Sub-section (1)
revised.

128

us by the Courts of Session show that a comparatively large
number of cases were on behalf of the subordinate ranks of Gov-

ernment servants. For example, during the tﬁeriod 1955 to 1967, I

only twenty-ﬁve cases were instituted under is section in Punjab,
out of which 2 related to Class I oﬂicers, 8 related to class II
oﬂicers and 15 related to other Government servants such as
sub-Inspectors of Police, Registration Clerk, Accountants, Peons
etc. The Total number of prosecutions in any year was very
small.

We are of the view that the provisions of the section, excep-
tional as they are, should be conﬁned to the high dignitaries of
the State mentioned above. In the case of defamation of other
public servants, the ordinary provisions of section 198 should be
enough, so far as the Code is concerned.

15.145. In a case1 decided by the Allahabad High Court, the
question arose whether section 198B applied when the person de-
famed was a Minister of the State Government but had ceased
to hold that ofﬁce at the time when he was detained. The High
Court held in the afﬁrmative stating that publication of the defa-
matory article, apart from being defamatory of the ex-minister in
his personal capacity, "was also a defamation of a Minister of the
U.P. State. It was, therefore, the State which suffered the injury
along with the individual and the responsibility for initiating pro-
secution for defamation, therefore, lay with the State of U.P.
irrespective of the fact whether the particular Minister remained
in the State as such at the time the article was published or when
sanction to prosecute the accused was obtained or not."

We are somewhat doubtful whether, strictly as a matter of
interpretation, this view of sub-section (1) is correct.
to the main object of the section, however, we consider that the
section should apply only when the person defamed holds, at the
time of the defamation, an oﬂice mentioned in that sub-section.
In the case of a Minister, for instance, the defamation must be of
a person who, on the date of the defamation, is actually a Minis-
ter. In our opinion, it is not necessary that the State should have
the power to initiate prosecutions under this section for alleged
defamation of ex-ministers.

15.146. Sub-section (1) of section 198B may accordingly be
revised as follows :---

"(1) Notwithstanding anything contained in this Code,
when any offence falling under Chapter XXI of the Indian
Penal Code is alleged to have been committed against a person
who, at the time of such commission, is the President of India,
the Vice President of India, the Governor of a State,
the Administrator of a Ulion Territory, or a Minister of
the Union or of a State or of a Union Territory, x x x in
respect of his conduct in the discharge of his public func-
tions, a Court of Session may take cognizance of such offence,
without the case being committed to it, upon a complaint in
writing made by the Public Prosecutor." .

1 Ramesh ﬁnha v.!PubRo Prostcutor, A.I.R. 1960 All. 763. 768.

Looking"

129

Sub-section (3)

15.147. Sub-section (3) which requires the Public Prosecutor rmsed

to obtain the previous sanction of the Government concerned
in the case of public servants and of some particular secretary to
the Government in the case of the President, Vice-President,
Governor or Minister, appears to be unnecessarily ¢0I11P1l°3t¢d-
In the case of the Governor of a State, f0? lI1St_3n°e»_ 3 Secretary
to the Government authorised by. the Governor in this behalf has
to apply his (the Secretary s) mind to the facts of the case and
give his previous sanction to the Public Prosecutor lodgmg thc
complaint. This may place him in an awkward and embarras-
sing position if the Governor himself has suggested ta_klIlg action
under the section. It would be simpler and more straightforward
to provide for the previous sanction of the Government concem-
ed in all cases. The sub-section may be revised as follows :--

"(3) No complaint under sub-section (1). shall be 'made
by the Public Prosecutor except with the previous sanction--

(a) of the State Government, in the case of the Gover-
nor of a State or of a Minister of the State Govern-

ment; and
(b) of the Central Government in any other case."

15.148. Sub-section (S) lays down that the Court of Session
taking cognizance of an offence under sub-section (1) shall try
the case without a jury and follow the same procedure as a
Magistrate is required to follow in trying a warrant case insti-
tuted on complaint. Since Jury trials are to be abolished and the
procedure for sessions trial in general is to be simpliﬁed, it will
be sufficient to provide that the Court of Session may try a case
under this section as if it had been committed to it by the Magis-
trate on a complaint. The sub-section may be revised as
follows

"(5) A Court of Session taking cognizance of an offence
under sub-section (1) shall try the case as if it had been com-
mitted to it by a Magistrate taking cognizance of the offence
upon a complaint :

Provided that the person against whom the offence is
alleged to have been committed shall, unless the Court of
Session, for reasons to be recorded, otherwise directs, be
examined as a witness for the prosecution."

The latter half of the sub-section which has been put in the form
Of 8 Droviso in the above redraft is intended to avoid abuse of
the procedure or any suspicion of it. Ordinarily, there could not
be a fair trial in a case of defamation without the person who
claims to have been defamed entering the witness box and stand-
ing cross-examination. In order to maintain public conﬁdence,
the sub-section rightly provides that, even where the aggrieved
person is a high dignitary, he must give evidence in person.

15.149. S_ub-sections (6) to (11) provides for the _payment
of compensation in any case where the court acquits or discharges
the accused and is of the opinion that the accusation against him
was false and either frivolous or vexaﬁous; Cases where the

Sub-section, (5)

Compensation
under sub-section
(6) to (11) .

Sub--sections (6)
and (7) amended.

Sub-sections (8)
to (11).

Sub-section ( l 2)
omitted.

130

aggrieved person is the President or the V106-President Of India
or the Governor of a State are, however, taken out of the pur-
view of these sub-sections. This leaves the cases where the
person against whom the offence of defamation is alleged to have
been committed is a Minister or other public servant. Though
that person may not have 'expressly given his consent to the com-
plaint lodged by the Public Prosecutor, the Court is required to
call upon that person (and not the Public Prosecutor) to show
cause why he should not pay compensation to the accused.1' In
practice, however, the complaint would not have been sanctioned
by the Government in the case of defamation of a Minister un-
less the Minister himself had initiated the prosecution or, at any
rate, given his personal consent to it. We have recommended
above that the scope of this section need not extend to cases of
defamation of ordinary public servants. Where defamation of a
Minister is alleged and not proved and the complaint is found to
have been ﬁled without reasonable cause, it is but proper that, as
provided in sub-section (6), the Court should ask the Minister
to show cause why he should not pay compensation to the
accused.

15.150. Sub--sections (6) and (7) may be amended to read
as follows :-- ,-
"(6) If. in any case instituted under this section, the Court
of Session x x x discharges or acquits all or any of the accused
and is of opinion that there was no reasonable cause for mak-
ing the acquisition against them or any of them, it may, by
its order of discharge or acquittal, direct the person against
whom the offence was alleged to have been committed, where
such person was at the time of such commission a Minister,
to show cause why he should not pay compensation to such
accused or to each or any of such accused, where there are
more than one.

(7) The Court of Session shall record and consider any
cause which may be shown by the person so directed, and if it
is satisﬁed that there was no reasonable cause for making the
accusation, it may, for reasons to be recorded, direct that
compensation to such amount not exceeding one thousand
rupees, as it may determine, be paid by such person to the
accused or to each, or any of them."

15.151, Sub-sections (8) to (11) do not require any change
of substance.

15.152. Sub-section (12) makes the section applicable to
the High Courts at Calcutta and Madras in the exercise of their
Oriizinal criminal iurisdiction. But so far as Madras is concerned,
Madras Act 34 of 1955 has omitted sub-section (12), and it is
only the City Sessions Court which has iurisdiction under the
section in the Presidency--town. In view of our proposal to abolish
the ordinary original jurisdiction of the High Court at Calcutta
the sub-section may be omitted. '

1 It may be noted that the provision regarding compensation was not
recommended by the Joint Committee which considered the Amendment
Bill in 1954- though it was suggested by one of its members in a dis-
9*'-mink n0t¢- It came in. later by means of an amendment moved in
the Lok Sabha while considering the Bill as revised by the Joint Com-
mittee.

131

15.153. Sub-section (13) states that "the provisions of
section 198B shall be in addition to, and not in derrogation of,
those of section 198". The precise meaning and effect of this
sub-section was a matter of controversy until it was_ settled 'by the
Supreme Court} The sub-section is "enacted with a 'view to
state ex abundanti cautela that the right of a party aggrieved_by
publication of a defamatory statement to proceed under section
198 is not derrogated by the enactment of section 198B. The
expression 'in addition to' and 'not in derrogation of' mean the
same thing, that section 198B is an additional provision and not
intended to take away the right of a person aggrieved, even if
he belongs to the speciﬁed classes and the offence is in respect of
his conduct in the discharge of his public functions, to ﬁle a com-
plaint in the manner provided by section 198". The Supreme
Court thus negatived the contention that, in every case falling
under section 198B, besides the complaint ﬁled by the Public
Prosecutor, there must also be a complaint by the aggrieved
person.

15.154. Presumably with a view to making this position clear,
sub--section (14) was added to section 198B by the Anti--Cor--
ruption Laws (Amendment) Act, 1964. This sub-section states
that "where a case is instituted under this section f0r'the trial of
any offence, nothing in sub-section (13) shall be construed as
requiring a complaint to be made also by the person aggrieved
by the said offence". The correct position appears to be that the
remedies available to the aggrieved person under the two sections
are not mutually exclusive but are parallel to, and independent
of, each other. Where the aggrieved person and the Government
concerned have decided to proceed under section 198B, it is
clear that the complaint need not comply with the condition laid
_down_in section 198. This idea could be readily brought out by
inserting the usual saving provision in section 198, e.g., the words
"save as otherwise provided in section 198B". If this was done,
the only point to make clear in section 198B would be that the
right of the aggrieved person to bring forward a complaint on
his own in the Court of a Magistrate in accordance with section
198 was not in any way aﬂected.

15.155. We accordingly propose that in place of the existing
sub-sections (13) and 14), the following sub-section may be
put in section 198B :--

"(13) Nothing in this section shall affect the right of the
person against whom the offence referred to in sub-section
(1) 1s alleged to have been committed, to make a compmjm in
respect of that offence before a Magistrate having jurisdjc-
tion or the power of such Magistrate to take cognizance of
the offence upon such complaint."

15.156. Sub-sect'on (1), 2 , 3 4 1 I -
section are properly vi/ithin t(he) sc(op)e <()f )tl1i(s 3c)h§3%r( ftils
deal with the conditions required for initiation of proceedin ii
3 °°Ft3--in °3t_e80rY of cases. The other sub--sections howevergs are
stfaecialprovisions governing the trial of these cases,by the (four:

11>. C. Joshi v. State of U.P., A.l.R. 1951 s.c. 387 390 9

Effect of Sub.
section (13).

Sub-section (14)
added in 1964.

Revised sub-sec-
tion in ' place of
sub-sections (13)
and (14).

Inclusion of pan
of section in
Chapter XXIII
recommended.

CHAPTER XVI
COMPLAINTS T0 MAGISTRATE8

General scheme 16.1. Chapter XVI of the Code deals with complaints to
°f°h"P'"' Magistrates and contains, only four sections. One of these, sec-
tion 201, merely provides that if a complaint is made to_ a Magis-
trate who is not competent to deal with it, he must, if it is in writ-
ing, return it with an endorsement that it sho_uld be presented to
the proper court, and if it is an oral complaint, direct the com-
plainant to the proper court. The other three sections describe
how a competent Magistrate should deal with complaints. The
scheme is simple enough. The Magistrate must ﬁrst examine the
complainant and, if there are any witnesses present, they too
must be examined and a record of such examination made. If
the Magistrate ﬁnds that there is substance in the complaint and
he ought to proceed further, he can, of course, summon the
accused. The formal power in that respect is contained in section
204. In case, however, he is not satisﬁed after hearing the
complainant and the few witnesses, the Magistrate can postpone
the issue of process against the accused, and for satisfying him-
self, either--
(a) inquire into the case himself, or
(b) send it for inquiry to a subordinate Magistrate, or
(c) send it for investigation to a police officer, or
(d) send it for investigation to some other person.

/'en:

This inquiry or investigation is, according to section 202, for
the purpose of "ascertaining the. truth or falsehood of the com-
plaint". The section further requires the Magistrate to record ~

is reasons for ordering such an inquiry or investigation. The )'

next section provides that if after such investigation or inquiry
the Magistrate ﬁnds that there is no justiﬁcation for proceeding
further and summoning the accused, he may dismiss the com-
plaint after recording his reasons.

Provisions sound. 16. 2. We are satisﬁed that the general policy underlying
these provisions is sound. Every--day experience of the courts
shows that many complaints are ill-founded, and it is necessary
therefore that they should at the very start be carefully considered
and those which are not on their face convincing, should be sub-
]€Cted to further scrutiny so that only in substantial cases should
the court summon the accused person. We are not therefore pro-

posing any change of substance.

S_ecti0n'_200-0mi,s,- 16.3. There are, however, _some details which admit of im-

3'°" °f a'°"°° - provement. Section_ 200 requires that the magistrate must
examine the complainant "at once" in order to emphasise that
such examination is, in every case, the ﬁrst step to be taken, It
can, however, lead to a futile controversy about the eﬁect of
some time interval between the receiving of a complaint and the
complainant's examination, which we would like to avoid. We
have therefore deleted the expression "at once", as we have no
doubt that the mandate of the law is otherwise suﬂiciently clear.

,.-

l 133

16.4. The proviso to section 200 says, amongother things,
that a presidency maﬁstrate may or may not administer oath _to
the complainant, and further, in the case of a written complaint
he need not make such a full record of the exammat1_on_as other
magistrates are required to do. ' We ﬁnd 110 P1'°P¢l' l115tlﬁC3t1°}1o
these days, to make a distinction between a presidency magis-
trate and other competent magistrate, and have removed the dis-
tinction. _

16.5. One question for our consideration was whether a com-
plainant must always appear in court to support his complaint.
unless the complainant be a court or a public servant already
excepted by section 200, or whether he can be permitted to be
examined on commission and perhaps, send his written complaint
to the court through post. We are clear that the making of a
complaint is a formal act with legal consequences and it must be
done formally in person or through properly appointed counsel
and the complainant must be ready to support it with his sworn
statement in court. The provision for a commission is contained
in section 503 of the Code and it contemplates only the witnesses'
examination on commission. Although therefore some courts
have at times allowed a commission to be issued for the exami-
nation of a complainant, we are not in favour of encouraging such
a practice.

16. 6. In the light of the above discussion, section 200 may
be revised to read as follows :--

"200. A Magistrate taking cognizance of an offence on
complaint shall examine upon oath the complainant and the
witnesses present, if any, and the substance of such examina-
tion shall be reduced to writing and shall be signed by the
complainant and the witnesses, and also by the Magistrate :

Provided that, when the complaint is made in writing, the

Magistrate need not examine the complainant and the wit-
IlCSS€S---

(a) if a public servant acting or purporting to act in the
discharge of his oflicial duties or a Court has made the com-
plaint; or

(_b) if the Magistrate makes over the case for inquiry
or trial to another Magistrate under section 192;

Provided further that if the Magistrate makes over the
case to another Magistrate under section 192 after examining
the complainant and the witnesses, the latter Magistrate need
not re-examine them."

16.7. We recommend a formal redraft of section 201, with-
out making anv change of substance, as follows :--

"20l. If the complaint is made to a Magistrate who is
not competent to take cognizance of the offence, he shall-

_ (a) if the complaint is in writing, return it for presenta-
tion to the proper court with an endorsement to that eﬂect,
and

Proviso-dame
Cb) Omitted.

Examination of

dot section 200.

Revision of sec-
tion 200.

Examination of
the complainant.

Redraft of sec-
tion 201.

Procedure by
Magistrate not
competent to
take

of the cue.

Section 202 (1)-
rccording of rea-
SODS I101 l'lCC€S-

531')' .

Object of inquiry
or investigation.

Iljlquiry by subor-
dinate magistrate
not desirable.

Complaints of
offences triable
exclusively by the
Court of Session.

134

(b) if the complaint is not in writing, direct the com-

plainant to the proper Court."

16.8. Section 202(1) requires a Magistrate to record his

reasons in case he postpones the summoning of the accused and
orders an inquiry or investigation into the complaint. It. has been
by the Chief Justice of a High Court

forcefully represented 'to us _
that Magistrates find it diﬂicult at that stage to record their

reasons. We are inclined to agree. One reason why a Magistrate
may be reluctant to issue process against the accused can be that
he feels doubtful about the value of the complainant's statement,

and the few witnesses if any, produced by him. It would be

clearly embarrassing for him to say so in writing at that Stage-

Nor do we see any real purpose that can be served by any expres-
sion of iudicial opinion at that stage. We therefore propose
to do away with the requirement.

169. Section 202 says in terms that the further inquiry
or investigation is intended for the purpose of "ascertaining
the truth or falsehood of the complaint". We consider this
inappropriate, as the truth or falsehood of the complaint cannot
be determined at that stage; nor is it possible for a magistrate
laint before him is true when he decides

to say that the comp _
to summon the accused. The real purpose is to ascertain whether

grounds exist for "proceeding further", which expression is in
fact used in section 203. We think therefore that the langu-
age of section 202 should correspond to the language of sec~
tion 203, and we have accordingly made suitable verbal altera-

tions.

16.10. When a magistrate decides to postpone the issue
of process under section 202, he can make an inquiry into the
case himself or have an inquiry made by a subordinate magis-
trate. Finally, however, the case has to be decided by him-
self. A inquiry is a proceeding in court involving the hearing
of evidence, and if that evidence is to be ﬁnally weighed by a
particular magistrate, it is, we think, proper that it should be
heard by the same magistrate. The delegation of a part of
the task----possibly a tedious part----to another judicial func-

tionary can well lead to avoidable delay. Nor is the division

of responsibility, implied in the present scheme, wholly desir-
able. We are, therefore, suggesting the deletion of this power

from the provision.
16.11. We are recommending _in a subsequent chapter1
the abolition of commitment inquiries. This necessitates certain

amendments in the procedure to be followed in an inquiry into
complaints where the offence complained of is one triable ex-
We recommend that the

clusively by_ the Court of Session.
Magistrate who takes cognizance of such offence on complaint
must himself make an inuiry into the complaint, and call upon
the complainant to produce all his witnesses and examine them
on oath. Further, in such cases the Magistrate should not direct
an investigation by a police officer or other person. For this
purpose, we propose two amendments of section 202 in the form
of another proviso to sub-section (1) and a proviso to sub-sec-

tion (2).
1Chapter 18.

135

16.12. The section may be amended to read as follows :--

"202. (1) Any Magistrate, on receipt of a complaint of
an olience of which he is authorised to take cognizance or
which has been made over to him under section 192, may,
if he thinks ﬁt, postpone the issue ot process against the
accused, and either inquire into the case himself or direct an
investigation to be made 'by a police officer or by such other
person as he thinks ﬁt, tor the purpose oi deciding whether
or not there is suliicient ground for Droceﬁdmg 3

Provided that no such direction for investigation shall be
made-----

(a) where it appears to the Magistrate that the offence
complained of is triable exclusively by the Court of Session;
or

(b) where the complaint has not been made by a court,
unless the complainant and the witnesses present (if any)
have been examined on oath under section 200.

(2) In any inquiry under sub-section (1,), the Magistrate
may, if he thinks ﬁt, take evidence of witnesses on oath :

Provided that if it appears to the Magistrate that the
oﬁence complained of is triable exclusively by the Court of
Session, he shall call upon the complainant to produce all his
witnesses and examine them on oath.

(3) If an investigation under sub-section (1) is made by
a person not being a police oﬂicer, he shall have for that in-
vestigation all the powers conferred by this Code on an olﬁcer
in charge of a police station except the power to arrest with-
out warrant."

16.13. Section 203 provides that if the Magistrate dealing
with a complaint ﬁnds no sufficient cause for proceeding with the
case even after considering the evidence of the complainant and
his witnesses and the result of the inquiry or investigation made
under section 202, he "may" dismiss the complaint. It is diﬂi-
cult to imagine what other course is possible in such circumstances,
and the direction of law for the dismissal of such a complaint
might as well be plainer. We propose, therefore, to put in "shall"
in place of "may". Reasons have, of course, to be recorded
for the dismissal of the complaint, as the order is subject to
scrutiny by the District Magistrate and the Sessions Judge, and
is revisable by the High Court. These are necessary safeguards
against the arbitrary dismissal of a complaint.

16.14. Further, in law, a second complaint after the dismissal
of a similar complaint is competent. Quite obviously, however,
if a Magistrate has dismissed a complaint alter careful considera-
tion of the material before him, he is unlikely to ﬁnd "sufficient
cause for proceeding" with it on the second occasion; and even
if the magistrate who deals with the second complaint is diffe-
rent, the likelihood of his proceeding with it is not increased. Only
'm exceptional circumstances will a second complaint be proceed-

331-1.0459

Postponement of
issue of process.

Section 203-
"May dismiss the
complaint".

Fresh complaint
after dismissal
of previous com-
plaint 'admissible
only in excep-
tional circum,
stances.

Legislation not
recommended.

Revised section
203.

Dismissal of com-
plaint. -

130

ed with. _The law is in accordance with these exceptions. In a
recent decision', the Supreme Court has held :----

"An order of dismissal under section 203, Criminal Pro-
cedure Code is no bar to the entertainment of a second com-
plaint on the same facts, but it will be entertained only in
exceptional circumstances like when the previous order was
passed on an incomplete record or on a misunderstanding of
the nature of the complaint or it was manifestly absurd, un-
iust or foolish, or where new facts which could not with
reasonable diligence have been brought on the record in the
previous proceeding, have been adduced."

16.15. It was suggested to us that the enumeration of the
special circumstances by the Supreme Court should be accepted
as exhaustive and the law should provide that, barring those cir-
cumstances, no second complaint on the same facts would be
competent. We are not convinced that the circumstances men-
tioned by the Supreme Court exhaust the category of special cir-
cumstances in which a court would, and in our opinion, should,
entertain a new complaint, but leaving that alone, it is clear that
the enumeration is largely in abstract terms, which can be of
little assistance in practice. In the very case before the Supreme
Courtl, although the facts were not disputed, there arose in the
Supreme Court itself, a sharp difference of opinion regarding the
existence of special circumstances. Two Judges held that in the
circumstances of the case the entertainment of the complaint was
an abuse of the process of the court and could not be permitted;
while one Judge found that the second complaint was a step in
the furtherance of iustice. It seems to us, therefore, that legisla-
tion in this respect is not called for, there being no doubt about
the law itself.

16.16. Section 203 speaks of the Magistrate dealing with the
case as "the Magistrate before whom a complaint is made or to
whom it has been transferred". This we consider unnecessarily
lengthy and indirect, as the context leaves no doubt that the
power of dismissal is given to the very same magistrate who has
dealt with it, under section 200 and 202. We propose that section
203 may be revised as follows :--

"203. If, after considering the statements on oath (if any)
of the complainant and of the witnesses and the result of the
inquiry or investigation (if any) under section 202, the
Magistrate is of the opinion that there is no sufficient ground
for proceeding, he shall dismiss the complaint. In every such

case he shall brieﬂy record his reasons for so doing."

-1 Pramatha Nath Talukdar and another v. Sar0I>RanIan Sarkar, (1962)
Suppl. 2 s.c.n. 297; A.l.R. 1962 s.c. 876.

CHAPTER XVII

COMMENCEMENT OF PROCEEDINGS BEFORE
MAGISTRATES

17.1. This Chapter consists of two sections, one dealing with
the issue of process, and the other with the power to dispense
with the personal attendance of the accused at the commence-
ment of proceedings before the Magistrate.

17.2. Section 204(1) refers to the Second Schedule and to
the division made in the fourth column of that Schedule between
cases where a summons is to issue in the first instance and cases
where a warrant is to issue. While in the Iormer case the Magis-
trate has to issue a summons (unless he proposes to issue a
warrant under section 90), in the latter case, "he may issue a
warrant, or, if he thinks fit, a summons tor causing the accused
to be brought or to appear" before the Magistrate.

17.3. An analysis of the fourth column of the Second Sche-
dule shows that a summons is to issue in the ﬁrst instance -for
every summons case with the exception of the following thirteen
oﬁences under the Indian Penal Code, namely :--

(i) Offence under section 153, 357, 374, 417, 434, 448,
482, 508 or 509, punishable with one year's impri-
sonment,

(ii) offence under section 138 or 225B, punishable with
6 months' imprisonment,

(iii) offence under section 292, punishable with 3 months'
imprisonment, and

(iv) oﬂence under section 510, punishable with imprison-
ment for not more than 24 hours.

_ On the other hand, a warrant is to issue in the first instance
in every warrant case except in regard to offences under the
following sections of the Indian Penal Code :--
(i) section 326 (imprisonment for life),
(ii) section 376 (10 years' imprisonment),
(iii) section 325 (7 years' imprisonment),
(iv) section 335 (4 years' imprisonment),
(v) sections 161, 162, 164, 165, 167, 324, 344, 347,
2:3, 484, 485 and 487 (3 years' imprisonment),
section 169, 177, 189, 217, 223, 225A, 229, 270,
295, 338, 342, 345, 346 and 355 (2 years' impri-
sonment).

(Vi)

_These_few exceptions do not appear to be based on any
1°g1C?_11 principle or consideration. The law may well
5° Simpliﬁed by °m'"1n8 the fourth column from the Second

Scheme of Chap-
ter.

Section 204(1)-
issue of summons
or warrant.

Omission of 4th
column in 2nd
Schedule recom-
mended.

Simpliﬁcation of
sub-section (1).

Section 205.

Plea'of guilty in
absentia in petty
cases.

Special procedure
recommended.

Schedule and by relating sub-section (1) of section 204 about

'issue or process to summons cases and warrant cases.

17.4. A suggestion has been received that if the case is one
relating to an ottence punishable with imprisonment of less than
three years, a summons should issue in the first instance. There
are not many otience under the Indian Penal Code which are
punishable with imprisonment which may extend to two years,
and even in these cases, the Magistrate has tull discretion under
section 204 to issue a summons in the lirst instance. This pro-
vision is suﬂicient for all practical purposes, and we recommend
that sub-section (1) of section 204 be simpliﬁed as 1ollows:--

''(1). ll in the opinion of a Magistrate taking cogni-
zance ot an offence there is suﬂicient ground tor proceed-
ing, and the case appears to be a summons-case, he
shall issue his summons for the attendance of the accus-
ed. If the case appears to be a warrant-case, he may
issue a warrant, or it he thinks ﬁt, a summons, for caus-
ing the accused to be brought or to appear at a certain
time before such Magistrate or (if he has not jurisdic-
tion himself) some other Magistrate having jurisdiction."

17.5. Section 205 empowers a Magistrate to dispense with
the personal attendance of the accused whenever he issues a
summons for the appearance of the accused. It may be noticed
that the power is not conﬁned to summons-cases, but extends
also to warrant--cases where the Magistrate issues a summons in
the ﬁrst instance. The Courts have taken the view that the
power to dispense with the personal attendance of the accused
under this section is limited to the first issue of process and
that it cannot be exercised at any later stage. If the Magistrate
ﬁnds it necessary at a later stage to dispense with the personal
attendance of the accused, he will have to act under and in
accordance with the provisions of section 540A. The two
complementary provisions appear to be adequate and do not
require any change.

17.6. The Law Commission in its Fourteenth Report re-
commendedl that a provision similar to that contained in section
130 of the Motor Vehicles Act, 1939, enabling the accused to
plead guilty without appearing in Court and to remit the pre-
determined ﬁne should be made applicable to the trial of petty
offences, particularly those under special and local laws. It
pointed out that "there are a large number of petty offences
mostly of a technical kind, in which the imposition of a line
as penalty would meet the ends of justice. In those cases, where
there is every likelihood of the accused pleading guilty, the need
for the examination by the courts of a large number of witnesses;
often public servants, may be avoided if the above procedure is
employed".

17.7. We consider that this procedure could be adopted with
advantage in regard to any offence punishable only with fine not
exceeding one thousand rupees. The prosecution may indicate
in the police report or complaint whether the case is regarded

1140: Rep. Vol. 2, page pin. 24.

139

as a ﬁt one for applying this procedure : and if the Magistrate
taking cognizance of the offence agrees he may indicate in the
summons that if the accused desires to plead guilty to the charge
without appearing in Court, he may transmit his plea and the
stipulated ﬁne, either by post or by messenger. It should, how-
ever, be provided in the law that the amount of ﬁne that might
be speciﬁed in the summons should not exceed one-hundred
rupees. The new provision should not apply to any oifence
under any special or local law which, like the Motor Vehicles
Act, 1939, contains a provision for convicting the accused in
his absence on a plea of guilty and sentencing him to pay a ﬁne.

17.8. We accordingly recommend adding in Chapter XVII
of the Code a new section as follows :--

"205A. (1) If, in the opinion of a Magistrate tak-
ing cognizance of a petty offence, the case may be sum-
_marily disposed of under section 241A, the Magistrate
may issue summons to the accused requiring him either
to appear in person or by pleader before the Magistrate
on a speciﬁed date, or if he desires to plead guilty to
the charge without appearing before the Magistrate to
transmit before the speciﬁed date, by post or by messen-
ger, to the Magistrate, the said plea in writing and the
amount of ﬁne speciﬁed in the summons which shall not
exceed one-hundred rupees.

(2) For the purposes of this section. 'petty offence'
means any offence punishable only with ﬁne not exceed-
ing one thousand rupees, but does not include any offence
so punishable under the Motor Vehicles Act, 1939, or
under any other law which provides for convicting the

accused person in his absence on a plea of guilty."

In Chapter XX, -which deals with the trial of summons cases
pyn Magistrates, another new section should be inserted as
o ows :-- .

"241A. (1) Where a summons has been issued under
section 205A and the accused desires to plead guilty to
the charge without appearing before the Magistrate, he
shall transmit to the Magistrate by post or by messenger,
a letter containing his plea and also the amount of ﬁne
speciﬁed in the summons.

(2) The Magistrate may thereupon convict the accus-
ed in his absence on his plea of guilty and sentence him
to pay the ﬁne speciﬁed in the summons, and the amount
transmitted by the accused shall be adjusted towards
that ﬁne."

17.9. While considering section 173, we have recommended'
that the duty cast on the police by sub--section (4) of supplying
to the accused copies of statements and documents mentioned
therein should be transferred to the Magistrate taking cognizance.
Apart from changes consequential on this altered arrangement,
the only change of substance which is proposed is that where a

1 See paragraph 13 above.

New sections
205A and 241A.

Special summons V

in case of petty
offence.

Conviction in
absence ofaocus-
ed on plea of
guilty.

Supply of copy
of police report
and other docu-
ments to the
accused---newsec-
tion 2053.

Supply of copy
of police report
and other docu-
ments to the
accused.

Supply of copies
of statements etc.
in complaint case
triable _by Court
of Session.

Supply of copies
of statements and
documents to the
accused in com-
plaint case triable
by _ Court of
Session.

140

document is voluminous, the Magistrate may allow the aectlwd
to be far-

or his pleader to inspect it instead of causing a copy .
nished. The new section providing for the supply of copies and
for the matters connected therewith may be as follows :--

"205B. In any case where the proceeding has been
instituted on a police report. the Magistrate shall with-
out delay furnish to the accused free of cost a copy of

each of the following :--

(i) the police report;

(ii) the first information report recorded under sec-
tion 154;
the statements recorded under sub-section (3)
of section 161 of all persons whom the pro-
secution proposes to examine as its witnesses.
excluding therefrom any part in regard to
which a request for such exclusion has- been
made by the police officer under sub-section
(4) of section 173;

the confessions and statements, if any, recorded
under section 164; and

any other document or relevant extract thereof
forwarded to the Magistrate with the police
report under rub--section (4) of section 173:

Provided that the Magistrate mav. after perusing any
such part of a statement as is referred to in item (iii)
above and considering the reasons given by the police
officer for the request. direct that a copy of that part
of the statement or of such portion thereof as the Magis-
trate thinks proper, shall be furnished to the accused;

Provided further that if the Magistrate is satisﬁed
that any document referred to in item (vl above is
voluminous. he shall. instead of furnishing the accused
with a copy thereof, direct that he will only be allowed
to inspect it either personally or through pleader in
Court."

17.10. Where the Magistrate issues process under section 204
on complaint and the offence is triable exclusively by the Court
of Session. the Magistrate should grant to the accused copies of
the statements of all persons examined by the Magistrate. and
other material on which the prosecution relies in order that the
accused may get adequate information about the charge against
him and prepare for his defence. This is all the more necessary
since commitment proceedings are to be abolished. The new
section may be as follows :--

"205C. Where in a case instituted on a complaint it
appears to the Magistrate issuing process under" section
204 that the offence is triable exclusively by the Court
of Session. the Magistrate shall without delay furnish
to the accused, free of cost, a copy of each of the
following :--

(i) the statements recorded under section 200 or
section202ofal1persons examined by the
Magistrate;

(iii)

(iv)
(v)

141

(ii) the confessions and statements, if any, record-
ed under section 164; and

(iii) any documents produced before the Magistrate
on which the prosecution proposes to rely:

Provided that if the Magistrate is satisﬁed that any
such document is voluminous, he shall, instead of furnish-
ing the accused with a copy thereof, driect that he will
only be allowed to inspect it either personally or through
pleader in Court."

17.11. Where the case (whether instituted on a police report
or on complaint) relates to an offence triable by the Court of
Session, the Magistrate has to send up the case to the Court
of Session. Since an inquiry by the Magistrate is not contem-
plated in the scheme which we propose in regard to such offenc-
es, the provision in this respect can take a simple form and can
be placed in this Chapter as forming part of the commencement
of proceedings before magistrates. It will be convenient to refer
to this process as "commitment of the case to the Court of
Session", although the procedure is radically different from the
commitment proceedings at present provided in Chapter 18. The
new section may be as follows :--

"205D. When in a case instituted on a police report
or on a complaint, the accused appears or is brought
before the Magistrate and it appears to the Magistrate
thlrat tlhelcase is triable exclusively by the Court of Session,

e s a --

(a) commit the case to the Court of Session;

(b) if the accused is in custody, forward him to that
Court, and, if he is not in custody, take bail
from him for appearance before that Court;

(c) send to that Court the record of the case and
the documents and articles, if any, which are
to be produced in evidence; and

(d) notify the Public Prosecutor of the commitment
of the case to the Court of Session."

Commitment of
case to Court
of Session--new
section 205D.

Commitment of
case to court
of Session when
offence is triable

exclusively' by it.

Nature of com-
mittal rooeed-
ings until 1955.

Main object not
attained In prac-
nee.

Proposal in 1954
to abolish com-

rnittal _ proceed-
"185 In police
cases not acce.
Dted.

CHAPTER XVIII

INQUIRY INTO CASES TRIABLE BY THE COURT OF SES-
SION OR HIGH COURT

18.1. Chapter 18 prescribes the procedure for the prelimi-
nary inquiry before a Magistrate where the case is triable
exclusively by a Court of Session or a High Court or, in the
opinion of the Magistrate, ought to be tried by such Court.
Committal proceedings, as these inquiries are commonly called,
have been a distinct feature of the Code from the beginning.
Ordinarily, a Court of Session or High Court may take cogni-
zance of an offence and try the case only on the basis of a com-
mittal made to it by a Magistrate under the provisions of this
Chapter. Until 1955, the procedure for the committal inquiry
was the same, whether the proceedings had been instituted be-
fore the Magistrate on a police report or on a complaint or in
any other manner. He was required to take all the evidence----
oral and documentary----that may be produced in support of the
prosecution, or on behalf of the accused, or that may be called
for by the Magistrate himself, examine the accused and satisfy
himself that there was suﬂicient ground for committing the
accused to the Court of Session. If he was so satisﬁed. he
framed a charge or charges against the accused, bound over the
witnesses. committed the accused and sent up the case to the
Court of Session. If he was not so satisﬁed, he discharged the

accused.

18.2. The main object of the committal proceedings was to
ensure that innocent personsalleged to have committed grave
offences were not harassed by being made to face a sessions
trial straightaway and that only those persons against whom a
Prima facie case was made out before a Magistrate underwent
that ordeal. But, to quote from the Statement of Objects and
Reasons appended-to the Amendment Bill of 1954,--

"Experience, however. has shown that Magistrates
commonly commit practically all the persons brought
be'ore them by the police. The proportion of persons
discharged at this stage does not exceed 2% or there-
abouts. These commitment proceedings, however, are
made extremely lengthy, involve manv adjournments and
cause not only the prosecution. but the accused as well,
trouble and heavy expense. Even after the commit-
ment. the sessions trial may not commence for some
months. The result is that persons guilty (sic) of
extremely grave offences have to remain in suspense for
more than a year or so."

18.3. It was accordingly proposed in that Bill that. in all
cases instituted on a police report. committal proceedings ch0u]d
be abolished and the accused should be put up by the Mawictraw
directlv_bcfore the Court of Session for undergoing trial. These
proceedmgs were, however, retained for cases initiated by

143

private complaints on the ground that "the safeguards to the
accused which become available in cognizable cases through
police investigation are non-existent." This proposal did not
find favour with Parliament which eventually adopted a via
media in the shape of a slightly abbreviated form of committal
proceedings in police report cases. The procedure was set out in a
comprehensive new section 207A consisting of sixteen sub-
sections. and the old sections 208 to 220 in the Chapter were
made applicable to cases instituted otherwise than on a police
report. It should be borne in mind that such cases are very few
indeed as compared to the cases instituted on a police report.

18.4. The main differences between the two procedures may
be brieﬂy noted. in a police case, the accused has to be fumish-
ed with a copy of the police report. of the statements of prose-
cution witnesses as recorded by the police and of all documents
on which the prosecution relies. The Magistrate is required to
satisfy himself that this has been done at the commencement of
the committal proceeding! (This innovation introduced in 1955
applies equally to warrant cases tried by Magistrates), In a
complaint case, this is of course not possible and hence not
required. ' '

In a police case. the Magistrate is required "to take the
evidence of such persons. if any. as may be produced by the
prosecution as witnesses to the actual commission of the offence
alleged". While he has a discretion to take the evidence of
other prosecution witnesses if he considers it necessary in the
interests of iustice. he is not expected to take the evidence 0'
any defence witness. In a complaint case, on the other hand. the
Magistrate has to take "all such evidence as may be produced
in support of the prosecution or on behalf of the accused".

Tn a police case. the Magistrate proceeds to frame a charge
against the accused if. on the basis of the statements of wit-
nesses recorded by the police under section 161 (3) and those
recorded by himself. he "is of opinion that the accused should
be committed for trial". in a complaint case. the Magistrate
frames a charge when he "is satisﬁed that there are suﬁicient
grounds for committing the accused for trial". This difference
in wording suggests a higher standard for the prosecution
evidence in complaint cases.

The difference is somewhat more noticeable in regard to
the circumstances in which the Magistrate is expected to
discharge the accused. in a police case. he may do so only "if
he is of opinion that (the) evidence and documents (before
him) disclose no grounds for committing the accused person
for trial". In a complaint case. he may do so "if he ﬁnds that
there are not .mﬂ'icien! grounds for committing the accused
person for trial".

These differences. however. are not verv material. nor of
any great consequence since. as mentioned above, the number
n' sessions cases instituted otherwise than on a police report is
verv small. We mav accordinglv concentrate attention on
section 207A under which most committal inquiries are now
conducted by Magistrates. i .

Present position-
main differences
between proce-
dure in police
cases and com-
plaintcases.

Controversy over
revised Procedure

High Courts, Bar
Associations and
State Govern-
ments consulted.

144

18.5. The purpose of providing a shorter procedure police
cases was, of course, to speed up the committal proceedings and
to avoid, as far as possible, a duplication of the taking of
evidence, ﬁrst, by the committing Magistrate and then, by the
Court of Session. Ever since its introduction, the new procedure
has been a subject-matter of controversy. Even in 1958, the
Law Commission noted in the earlier Report that "the views
expressed X x x before us were sharply divided on this ques-
tion. One view supported the abolition of the committal stage
altogether so that the Sessions Court may be seized straightaway
of these police report cases. On the other hand, a large section
of opinion emphatically supported a reversion to the old full
committal procedure, There was little support for the continua-
tion of the present shortened committal procedure."1 While
takinrz the View that the abolition of committal proceedings
altogether will not be justified, the Commission at that time
felt "that it would not be right to reach deﬁnite conclusions on
this question in View of the fact that the amended committal
procedure has been in operation only for a little over two years.
Greater experience of its working has to be gained before a
decision is reached to make radical changes in legislation so
recently enacted."' For the time being. the Commission only
recommended two amendments in section 207A,3 one in sub-
section (4) so that all witnesses to the commission of the crime
and all other important witnesses should be examined in the
committal proceedings, and the other in sub-section (6) chang-
ing "disclose no grounds" to "there are not suﬂicient grounds".

18.6. When the revision of the Code was taken up in 1960
and suggestions were received from the public, they were found
to be of the same conﬂicting nature as before in regard to the
utility of committal proceedings. In view of the importance of
the subiect, the Commission decided to ascertain in greater
detail the views of those who were competent to speak on it,
and addressed a letter' to the High Courts, the leading Bar
Associations and the State Governments soliciting their views
specially on the following questions:

(1) Are commitment proceedings under section 207A
of the Code an improvement over the pre-1955
position from the point of view of securing a
speedy and fair trial for the accused?

If not, should the pre-1955 position be restored in
respect of commitment proceedings by repealing sec-
tion 207A and making suitable modiﬁcations in the
other sections ?

(2)

(3) Do commitment proceedings serve any useful pur-
pose at all and would it be better to dispense with
such proceedings?

( 4) Will an authority similar to the Director of Public
Prosecutions in England be useful and effective in

114th Report, Vol. II, p. 793, para. 10.
3Ibid, p. 797. para. 18.

stud, p. 797, pm. 19.

'Letter dated 23rd Aunt, 1968.

I/.

145

Indian conditions, purticulraly in regard to the
prosecution of sessions cases?

One or more Members of the Commission also held discus-
sions on these points at various places with Judges, members of
the Bar Associations and others.' As was only to be expected,
the views expressed in the replies to the Commission's letter and
at the personal discussions revealed a sharp difference of opinion.

18.7. Before considering the arguments for and against the
abolition of committal proceedings, it will be useful to refer to
the evolution of the English procedure for the trial of felonies
or indictable offences. As stated by Holdsworth',--

"Early law did not contemplate any preliminary
enquiry into the guilt or innocence of an accused person.
Criminals were presented for trial either by the jury of
presentment, or in consequence of the ﬁnding of the
coroner's inquest. If they were taken in the act, they
were generally executed out of hand. x x x In fact, in
the seventeenth century, the examination conducted by
the magistrates was of an inquisitorial nature. The pri-
soner was closely examined. The witnesses for the
prosecution were not examined in his presence. Their
evidence was only for the information of the court. Even
as late as 1823 it was stated to the grand jury that, when
a magistrate was conducting this preliminarv examina-
tion, he was acting inquisitorially and not judicially; that
such proceedings might and ought to be conducted in
secret; and that information so ascertained might be
communicated to the prosecutor but not to the party
accused. In 1836, the Prisoners' Counsel Act allowed
accused persons to inspect all depositions taken against
them. In 1848, it was enacted that the witnesses for the
prosecution should be examined in the presence of the
accused. The accused person was allowed to make anv
statement he pleased or to call any witnesses he pleased;
but he was not to be obliged to do either; and the Magis-
trate must inform him about this. The preliminary ex-
amination before the Magistrates was thus made an
entirely judicial proceeding."

The pattern thus set in England for the trial of serious
oﬂ'ences--a preliminary judicial inquirv before magistrates follow-
ed by a full-ﬂedged jury trial before the court of assize or quarter
sessions----was copied while codifying the law of criminal pro-
cedure in British India.

18.8. Recently. however, an important change has been
made in England by the Criminal Justice Act. 1967 in respect
of proceedings before examining justices. It has introduced a
new tvpe of "committal for trial without consideration of the
evidence". Under the ordinary procedure, examining justices are
obliged to consider the evidence, which must be adduced orally

1See Introduction to this Rotlart.
'Holdsworth. History of Bnglldr Law (1922). Vol. I. DD. 295 to 297.

English proce-
dure for trial of
felonies.

Change made by
the Criminal Jus-
tlce Act of 1967.

No committal
proceedings in
Scotland.

Main features of
Scottish proce-
dure.

146

before them, and any statement of the accused. They cannot
accept written statements as evidence and must satisfy themselves
that there is suﬂicient evidence to place the accused upon his
trial. The Act of 1967 enables them to admit as evidence, sub-
ject to certain safeguards, written statements of witnesses to the
same extent as oral evidence to the like effect. A learned writer
in a Law Review comments on the new procedure as follows' :--

"Committal proceedings have long been recognised as
time--consuming and potentially productive of a sense of
unfairness and of risk of prejudice for the defence when
reported in the press. Witnesses did not come up to proof
and thus counsel's opening speech was sometimes unwittingly
inaccurate; evidence was admitted at committal proceedings
but rejected as inadmissible at the trial; only the prosecution
case was given at committal and the press report was neces-
sarily one-sided. and often haphazard and fortuitous; at the
trial the Judge always had to warn the iury to put out of their
minds anything they had read about the case. Accordingly
a new simpliﬁed committal procedure and restrictions on
reporting, while retaining the essential principle that the
accused is entitled to know in advance the case he has to meet
at the trial, and to have press publicity if he wishes, are
very welcome. Where the accused is legally represented,
committal may now take place formally by consent on the
basis of written statements, served on the defence before the
hearing. which will not even be read out aloud in court not
even read by the magistrates, if the defence does not wish the
prosecution witnesses to be called."

18.9. In Scotland there are no committal proceedings at all.
The Lord Advocate and the Crown Oﬁice staff in Edinburgh are
responsible for deciding whether the evidence iustiﬁes prosecution,
the offence to he charged and the Court in which the prosecution
is to he brought. The procurator-ﬁscal in a county (correspond-
ing to our Public Prosecutor in a district) has a wide discretion as
to the prosecution of lesser offences and receives guidance from
the Crown Oﬁice regarding more serious crimes. He sends to the
Crown Ofﬁce "pre-eognitions" (i.e., the statements of witnesses
recorded before trial\ and reports of crime received from the police
and from private individuals. Each prosecution witness is pre-
cognised privatelv. the accused being neither present nor represen-
ted by counsel. The function of the procurator-ﬁscal corresponds
more to the investigating judge in continental procedure than to
magistrates conducting a preliminary inquiry in England. It is
his dntv to ensure that pre-cognitions are as full as possible and
faithfullv represent the evidence of witnesses.

18.10. It is a rule of Scottish procedure? "that everv indict-
ment must have appended to it a list of all productions which are
to be used as evidence bv the Crown at the trial and of all Crown
witnesses with their addresses. The indictment is served upon
the accused not less than six clear davs before the ﬁrst diet. that is.
the sitting of the Court at which the accused is called on to plead
'guilty' or 'not guilty'. If the accused does not plead guilty. the
trial takes place at the second diet. which must be not less than

1 A. Samuels in the Modern Law Review (1968) at p. 17.

L Q'*'RW. Gsggormand, The Public Prosecutor in Seotland','(l938) 54
. . ., D. . ~

-L

471

nine clear days after the ﬁrst diet. There is therefore a minimum
of ﬁfteen clear days between the date when the accused person
ﬁrst receives the list of the witnesses and -of the productions which
may be used against him and the date of trial. In practice_the
time is usually considerably longer." The defence is also obliged
to provide a list of its witnesses to the prosecutor who may pre-
cognise them. The pre-cognitions, however, are merely _aids to
the examination of the witnesses in Court. They are not disclosed
to the Judge or jury.

18.11. Another country which does not have committal pro- Procedure in
ceedings for the trial of grave oifences is Israel. Under a recent Israel-
law, it has dispensed with such proceedings. The law provides '
that the accused person may at any reasonable time inspect a copy
of the investigation material in the possession of the prosecutor
and that the prosecution may not produce any evidence in court
or call any witness unless the accused has been given a reasonable
opportunity to inspect and copy the evidence or statement of the
witness during the investigation. The procedure is thus similar
to that obtaining in India for the trial of warrant cases before
Magistrates under section 251A of the Code.

18.12. Some of the Australian Provinces which have been Procedure _in
following the traditional English system of a preliminary inquiry ifme. A"5"a"a"
by a Magistrate followed by a jury trial before a Judge in the case r°Vm°°s'
of all serious offences have been feeling the delay, expense and
inconvenience involved in the committal proceedings. They
have recently been amending their laws so that such proceedings'
are shortened, particularly where the accused has pleaded guilty.

As in England, statutory declarations are made admissible in lieu
of oral evidence in these proceedings.

18.13. We have mentioned these few foreign instances only Committal pro-
to show that committal proceedings are by no means an essential Ceedinss not
part of a fair trial which a person accused of a grave crime has a 'fgfgiizj f°' '
right to expect. They are more in the nature of a convenience '
from the point of view of the prosecution as well as of the defence,
especially in places where trial by jury is prescribed by law. A
jury trial has necessarily to be concentrated into as short a period
as possible and carried on without a break. Committal proceed-
ings help in presenting the evidence of the prosecution and the
defence in an organised manner before the jury, besides, of course,
affording a protection to the individual against having to face a
jury trial when the evidence to support the charge against him is
insuﬂicient. With the abolition of jury trials, these advantages
have lost much of their importance.

18.14. It should also be noticed that the Indian Legislature committal pro-
has occasionally provided for the direct trial of the accused person ceedings dispens-
by the Sessions Court without any committal proceedings before a °d t"{"h bylawin
Magistrate. Section 198B of the Code, for example, dispenses °°r am mm'
with such proceedings when the prosecution is for defaming the
President or Vice-President of India, the Governor of a State, a
Minister of the Union or of a State, or other public servant
employed by Government. Under the Prevention of Corruption
Act, Sessions Judges, appointed as Special Judges, take direct
cognizance of certain serious oﬂancei involving bribery and
corruption and try them more or Inn according to warrant-ease

No _ effective
screening of
ﬂimsy cases.

148

procedure. Special courts and tribunals have also been estab-
lished from time to time for the trial of persons charged with
grave offences without zhe case being committed to them after a
magisterial inquiry. 1n all these cases, the avowed object of the
special provision or law is to avoid the delay inherent in committal
proceedings and expedite the trial of the oﬁence. At the same
time, it cannot be contended that the law has in any way failed to
secure the essentials 0: a .air tr.al for the accused.

18.15. The main object of Chapter 18 of the Code in inter-
posing a judicial inquiry by a Magistrate as a preliminary to every
sessions trial is to secure that a prtma facze case 1S made out against
the accused person to the satistaction of the Magistrate, and that,
where the Magistrate is not satisﬁed that there are suﬂicient grounds
for committing the accused tor trial, the latter is discharged and
saved the trouble and expense involved in facing the Sessions
Court. This would seem to be the only real justiﬁcation for a
procedure which involves the taking of the same prosecution
evidence twice over, puts the State as well as the accused to
additional expense and trouble and holds up the trial for a consi-
derable period. Examination of the witnesses before the effective
Court is postponed by weeks, sometimes months, because of this
procedure. lt would be well to remember in this connection
Katyana's injunction to the Hindu kings of old :--

na kala-haranam kdryam
rdjmi sdkshi-prabhdshgte

mahdn dosho bhavet ktildt
dharma-vyavriti-lakshagzah.

[No delay should be permitted by the king in getting
witnesses to depose; for lapse of time leads to great evil,
marked by their deviating from the lawful course.]

18.16. Even under the full committal proceedings in vogue
before the amendment of 1955, it was noticed that the screening
of ﬂimsy cases, which these proceedings were designed to effect,
was in fact not achieved. Subsequent to the amendment, the
number of cases in which the committing Magistrates found it
possible to discharge the accused because the evidence and docu-
ments produced by the prosecution "disclosed no grounds for
committing the accused person for trial" was not unnaturally even
smaller than before. The amendment might have reduced to a
certain extent the time taken in the committal proceedings, since
the prosecution witnesses actually put forward and examined by
the Magistrate were fewer, but this gain in time was offset in quite
a few States, particularly in Uttar Pradesh and Bihar, by the time
taken after commitment for the case to be brought up before the
Court of Session for trial. The Commission was informed that
this interval, which ought not to be more than three or four weeks,
was in many cases about a year in Uttar Pradesh and in Bihar
according to recent statistics. There is also no doubt that in
almost all States the time spent in committal proceedings themselves
continues to be considerable in spite of the amendment of 1955.

Many of the arguments put forward in support of retaining
committal proceedings are based on the assumption that they

149

effectively help in the screening of ﬂimsy cases. For instance.
when it is urged that evidence before committing magistrate often
establishes that there is no prima jacie case against the accused
or some or the accused and they are saved the trouble and expense
of a sessions trial, or that the committal stage operates as a
check against innocent persons being brought betore the Court of
Session on the oasis or defective p0llCe investigation, or that corn-
mittal proceedings save the time of Sessions Judges and 'congestion
in their Courts, the argument conveniently turns a blind eye to
the tact that the number of cases resulting in discharge of any of
the accused persons by the Magistrate is very small indeed. The
advantage on this score is consequently negligible as compared to
the magisterial time and public money wasted in the great majority
of committal proceedings.

18.17. Another line of argument for retaining committal pro-
ceedings is that the accused must have a full and clear picture of
the case against him before he is brought up before the Sessions
Court and for this purpose it is essential that a Magistrate should
record the statements on oath of all the prosecution witnesses, or,
at any rate, of the "witnesses to the actual commission of the
offence alleged". While one may readily agree that these deposi-
tions taken in his presence give the accused a better idea of the
case against him than copies of their statements-recorded by the
police under section 161 (3) and of the other documents relied on
by the prosecution, we do not think that they are essential for a
fair trial of the accused. In order to prepare his defence, he has
certainly a right to know the nature of the evidence which the
prosecution has obtained against him, but this, in our opinion, is
made available to him under section 173(4). It has to be
remembered that what ﬁnally matters is the evidence before the
Sessions Judge at the trial and not the statements recorded by the
Magistrate or by the police in the ﬁrst instance, and the longer
the time taken in bringing the witnesses before the trial court, the
better are the chances of their deviating from the truth.

18.18. We may quote here a Sessions Judge1 who writes from
personal experience as follows :---

"Another fact which I have noticed is that the commit-
ment proceedings are unduly delayed and there are instances
where the accused have been committed to the Court of
Session after more than two years of the date of offence.
Even in serious offences like murder, the commitment pro-
ceedings take quite a long time. This has a number of evils
in its train. The main evil is that there is a lot of gap
between the examination of the witnesses in the Court of
Session and before the Magistrate, and again in the Court of
Session and the date of occurrence, and the witnesses who
are by a large number illiterate make discrepant statements
on some matters and this furnishes an opportunity to the
defence to confront the witness with his previous statement
made in the committing court or before the police. Further
if there is a delay in the trial of the case the witnesses are
likely to be won over. In some cases I have found that due

1 Sin' Raiendra Nath Agprwal, District to Sessions Judge, simla.

Committal pro-
ceedings not
essential for giv-
ing accused clear
picture of the
case.

Sessions J udge's
evidence.

Abolition of com-
mittal proceed-

_ ings recommend-

ed.

ln d e D e n d e n t
authority to con-
rol public prose-
cutions.

Existing prose-
cuting agency in
the districts.

Defects of the sys-

tem pointed out
in 14th Report.

150

to delay important witnesses disappear, and there is delay \

in the disposal of the trial. I have also found that when
there is a delay in the trial of the case, important witnesses
such as doctor, investigating olﬁcer, are transterred and some-
times it becomes difficult to procure their presence and this
delays the ﬁnishing of the trial."

Similar views have been expressed by a number of other Sessions
Judges with varying emphasis on the diﬂerent points brought out
in the above report.

18.19. After a careful consideration we are of the unanimous
opinion that committal proceedings are largely a waste of time and
effort and do not contribute appreciably to the eﬂiciency of the
trial before the Court of Session. While they are obviously time-
consuming, they do not serve any essential purpose. There can
be no doubt or dispute as to the desirability of every trial, and
more particularly of the trial for a grave offence, beginning as
soon as practicable after the completion of investigation. Com-
mittal proceedings which only serve to delay this step, do not
advance the cause of justice. The primary object of protecting
the innocent accused from the ordeal of a sessions trial has not
been achieved in practice; and the other main object of apprising
the accused in suﬂicient detail of the case he has to meet at the
trial could be achieved by other methods without going through a
very partial and ineffective trial rehearsal before a Magistrate. We
recommend that committal proceedings should be abolished.

18.20. We have mentioned above1 that one of the connected
questions on which informed opinion was sought by us was
whether an authority similar to the Director of Public Prosecu-
tions in England would be useful and effective in Indian condi-
tions, particularly in regard to the prosecution of sessions cases.
The opinions received by us were generally in favour of such an
authority provided its independent character could be safeguarded
and it was given an effective voice in advising whether the evidence
collected by the investigating agencies was sufﬁcient to put u .
the case before the Court of Session. Such an authority wou d
doubtless be specially valuable after the abolition of committal
proceedings.

18.21. We have now in every district an oﬂicer appointed by
the State Government who is designated the Public Prosecutor and
who, with the assistance of one or more additional Public Prose-
cutors, conducts all prosecutions on behalf of the Government in
the Court of Session. These senior Public Prosecutors are under
the general control of the District Magistrate. Prosecution in the
magisterial courts is, generally speaking, in the hands of either
the police oﬂicers or of persons recruited from the bar and styled
Police Prosecutors or Assistant Public Prosecutors all of whom
work under the directions of the Police Department.

18.22. In an earlier Reportz, the Law Commission analysed
the defects of the existing system in the following passage :

"We have pointed out earlier that, in most of the States,
the prosecutors in the Magisterial courts are either pohce

lsee para. 18.6 above. '
314th Report, Vol. II,,pp. 169-770.

A-

151

oﬂicers, who may or may not be legally qualiﬁed, or members
of the Bar, but they all function as a part of the Police Depart-
ment. However experienced the specially appointed police
oﬂicers might be, want of legal knowledge or legal qualiﬁca-
tions must affect adversely prosecutions conducted by them.
On account of a lack of adequate knowledge of law, and parti-
cularly of case law and the law of evidence, such prosecuting
oﬂicers are not capable of presenting their cases with ability
and effectiveness. As compared with counsel appearing for
the accused, who are all legally qualiﬁed and trained, their
performance is bound to be inadequate. The burden of pro-
ving a case is upon the prosecution, and the prosecution
ought to be represented by advocates, as able if not abler than
the lawyers for the accused. In any case, there can be little dis-
pute about the general principle, now largely accepted, that
the prosecutors ought to be legally qualiﬁed persons and
should be recruited from the Bar.

It must n.ot also be forgotten that a police oﬂicer is generally

' one-sided in his approach. It is no reﬂection upon him to say so.

The Police Department is charged with the duty of the mainten-
ance of law and order and the responsibility for the prevention
and detection of offences. It is naturally anxious to secure con-
victions. Not infrequently, relevant witnesses are kept back by
the prosecution. Intimidation of defence witnesses is also not
unusual. These are the results of an excess of zeal by the police
oﬁicers and a want of a realization of their true function. But if
the purity of judicial administration is to be maintained, such con-
duct must be sternly checked. We have also been told of police
oﬂicers of the lower grade in charge of the prosecutions delibera-
tely weakening their cases out of corrupt motives. It is obvious
that by the very fact of their being members of the police force
and the nature of the duties they have to discharge in bringing
a case to court it is not possible for them to exhibit that degree
of detachment which is necessary in a Prosecutor.

The Public Prosecutor is almost wholly occupied with the
conduct of prosecutions in the Sessions Court and in appearing
for the State in criminal appeals or revisions and like matters.
Apart from such advisory functions as he may discharge when
requested to do so by the District Magistrate or the District
Superintendent of Police, he has no control over the cases before
they come to the court. Even in the exercise of the power to
withdraw from a prosecution, he is controlled to a large extent
by the District Magistrate or the District Superintendent of Police.
On account of the practice that has prevailed for a long time, the
Public Prosecutor has come to occupy a subordinate position.
Even when he is aware of the defects in the prosecution evidence,
he is not in a position to inﬂuence the future course of the prose-
cution. He is rarely consulted at the crucial stages of investigation
and has no opportunity of guiding the investigating agency in the
matter of gathering relevant evidence.

A large number of complaints never come to court for the
reason that the police after investigation report them to be not
worth proceeding upon grounds of insuﬂicient evidence or legal
diﬂiculties. It is true that in such cases, the complainant can
himself directly ﬁle a complaint. The propriety of dropping the

Recommendation
to make pr0_Se-
cuting agency in-
dependent 0
police depart-
merit.

Director of pub-
lic prosecution
for each district
recommended.

Public prose-
cutor to be of
higher status with
wider range of
functions.

Responsibility of
public prosecutor
in police report
sessions cases.

152

prosecution in such cases is a matter that is at present examined'
only by the departmental oﬂicials. The Public Prosecutor is un-
able to interfere in any of these matters, being regarded more or
less as a subordinate official under the control of the District
Magistrate and the District Superintendent of Police." '

18.23. The Law Commission then suggested1 "that the pro-
secuting agency should be separated from and made independent

f of its administrative counter-part, that is the Police Department,

and that it should not only be responsible for the conduct of the
prosecution in the court but it should also have the liberty of
scrutinising the evidence particularly in serious and important
cases before the case is actually ﬁled in court. Such a measure
would ensure that the evidence in support of a case is carefully
examined by a properly qualiﬁed authority before acase is insti-
tuted so as to justify the expenditure of public time and money on
it. It would also ensure that the investigation is conducted on
proper lines, that all the evidence needed for the establishment
of the guilt of the accused has been obtained. The actual conduct
of the prosecution by such an independent agency will result in a
fairer and more impartial approach by the prosecutor to the case."

18.24. As a ﬁrst step towards improvement, the Law Commis-
sion proposed? that in every district a separate prosecution depart-
ment should be constituted and placed in charge of an official who
may be called a "Director of Public Prosecutions", and indicated'
in some detail what his principal functions should be.

18.25. It is to be regretted that this recommendation has not
been given any serious consideration by the State Governments
and that there has been little improvement in the calibre of the
prosecuting agencies in India and, consequently, in the level Of
eﬁiciency in the conduct of prosecutions in the more important
cases, whether before the Sessions Court or the Courts of Magis-
trates. We would therefore repeat the recommendation. Should
the reluctance of the State Governments to move in this direction
be to the creation of a new oﬂice with a high sounding designation,
we would suggest that the objective could be achieved by giving
the Public Prosecutor of the district a greater authority. a higher
status and a wider range of functions than he has at present, and
approximating to those envisaged for the Director of Public Pro-
secutions by the Law Commission in the earlier Report. These
changes, substantial as they would be, would not require any
radical amendment of the Code and could be effected by adminis-
trative action of the State Government.

18.26. With the abolition of committal proceedings, it will be
the responsibility of the Public Prosecutor to scrutinise the police
report (or "charge-sheet" as it is commonly called) before it is
submitted to the Magistrate and to see that a case which, accord-
ing to the police is exclusively triable by a Court of Session, is
really so and that there is sufﬁcient evidence to support it. This
is said to be the practice even now, at least in important sessions
cases, and there should accordingly be no diﬂiculty in enforcing

1 14th Report, Vol. II, p. 770, para 14.
214th Report, V01. II, p. 770, para. 15.
3 Ibid, p. 771.

153

it in all sessions cases. At this stage, the Public Prosecutor should
have the authority to send the case back for further investigation
and to modify the proposed charge whenever he ﬁnds it necessary
to do so.

18.27. Though committal proceedings as such are to be abo-
lished, we propose that the existing system under which Magis-
trates alone are competent to take cognizance of offences should
be continued even in regard to cases triable exclusively by the
Court of Session. Later in this Report} we are recommending
a considerable reduction in the number of offences under the
Indian Penal Code which should be within the exclusive jurisdic-
tion of the Sessions Court; but the cases partaining to 'such offences
need not be instituted directly in that Court. Whether on a police
report or otherwise, such cases will, as at present, be instituted
in the Court of a competent Magistrate.

18.28. We have recommended in an earlier Chapter that
the duty now cast on the police by section 173(4) to furnish
copies of the police report statements of witnesses, and relevant
documents to the accused should be shifted to the Magistrate
taking cognizance of the offence? When a sessions case is insti-
tuted before a Magistrate on _a police report, he will ﬁrst see to it
that all these copies are furnished to the accused in good time
and will also decide that, prima facie, the case is triable exclu-
sively by the Court of Session.

18.29. As regards the small number of sessions cases that
may be instituted on complaint, it would obviously be convenient
if they were also brought before a Magistrate in the ﬁrst instance;
but we do not consider it necessary to retain the elaborate provi-
sions contained in sections 208 to 220 which lay down the proce-
dure for committing such cases to the Court of Session. The
object of this procedure is to get all prosecution witnesses examin-
ed by the Magistrate in the presence of the accused in order that
the accused may have a full idea of the case which is brought
against him. We propose3 that in such cases it will be suﬂicient
if the Magistrate taking cognizance of the offence on complaint
holds an inquiry under section 202 and examines the complainant
and all his witnesses on oath, but not in the presence of the
accused. If on the basis of such sworn statements he ﬁnds that
there is "suﬂicient ground for proceeding" he should issue process
to the accused as provided in section 204. He should then grant
to the accused copies of the statements of all persons examined
by the Magistrate and other material on which the prosecution
relies in order that the accused may get adequate information
about the charge against him and prepare for his defence.'

The combined effect of these two provisions will be to place
a person accused of a grave oﬁence by a private complainant in
a somewhat better position than one charged with a similar
offence on the basis of a police investigation. In the former case,
a preliminary inquiry by a Magistrate into the truth of the com-
plaint is made mandatory and takes the place of an investigation

1,S'€r= para. 47.10 below.
'-'See para. 14.21 above.
-'See Daras 16.11 and 16.12 above.
4See para 17.10 above.

Sessions cases to
continue to be
instituted in Ma-
gistrates' Courts.

Magistrate's
function in police
report cases.

Procedure in com-
plaint cases.

Procedure

for

the sessions trial.

Omission
Chapter 18
commended.

of
re-

154

by the police. The accused gets copies of the statements of all
prosecution witnesses recorded by the Magistrate in the former
case and the statements recorded by the police under section
161(3) in the latter case. With these safeguards which appear t0
us to be sufficient, we consider that committal proceedings could
be dispensed with for complaint cases also.

18.30. Although there will be no committal proceedings as
such, in the sense of a judicial inquiry with the accused present,
the Magistrate will, under the proposed scheme, be "committing
the case to the Court of Session" whenever it appears that it is
triable exclusively by that Court. The steps to be taken by him
have been indicated1 at the end of the last Chapter. The procedure
for the sessions trial will broadly be the same as for the trial of
a warrant case instituted on a police report. The statutory pro-
visions in this respect are set out in a subsequent Chapter? but
we may mention here the main features of the trial before the
Court of Session. The ﬁrst hearing will be devoted to a state-
ment of the case by the Public Prosecutor, consideration of the
statements of witnesses and other documents on which he pro-
poses to reply, framing of the charge against the accused, record-
ing of his plea and other necessary preliminaries. An adjournment
will be necessary at this stage inorder to secure the attendance
of all the prosecution witnesses and also to give the defence time
to prepare for their examination in the light of the opening day's
proceedings. The second stage will be the recording of the prose-
cuti-on evidence which could, and should, go on de die in diem,
followed by the examination of the accused. Another short ad-
journment will be necessary at this stage for the defence evidence
and conclusion of the trial.

The proposed scheme for the sessions trial does involve two
adjournments for 10 or 15 days each which are probably not re-
quired--in theory, at any rate--under the existing procedure. In
practice, however, many sessions trials even now are not conclud-
ed at one continuous sitting and adjournments are found to be
necessary for one reason or another. The inability of the prose-
cution to produce all its witnesses on the appointed days is said
to be the main cause. Such 'delays can only be avoided if all con-
oerned in the trial are imbued with a feeling of urgency and a
desire for its speedy conclusion.

18.31. The whole of Chapter 18 of the Code may accordingly

be omitted.

1See para. 17.11 above.
2See para. 23.2 below.

CHAPTER XIX
THE CHARGE

19.1. Section 221 lays down the main requirement for the
framing of a charge as regards the offence with which the accused
is charged.

Sub--section (6) provides that in the presidency--towns the
charge shall be written in English and elsewhere it shall be
written either in English or in the language of the Court. We see
no justification at the present day to have a separate rule' for
presidency-towns and recommend that there also the charge should
be written either in English or in the language of the Court. A
suggestion has been received that the charge should be written in
the language of the accused when it is not the language of the
Court. The Code expressly provides1 that in trials of warrant cases
by magistrates as well as in sessions trials, the charge should be
read and explained to the accused. These provisions are adequate
to secure a fair notice to the accused and there is no need to add
a reference to the language of the accused in sub--section (6).

19.2. Section 222(1) prescribes the important general rule
that full particulars as to the time and place of the offence and as
to the person against whom or the thing in respect of which the
offence was committed should be given in the charge. Sub--section
(2) of the section provides a limited relaxation of the rule in a
case of criminal breach of trust or of dishonest misappropriation.
In these two cases it is suﬂicient to specify the gross sum embez-
zled or misappropriated and the dates between which the offence
was committed, subject to the limitation that the interval bet-
ween the ﬁrst and the last of such dates shall not exceed one
year. The charge so framed shall be deemed to be a charge of
one offence within the meaning of section: 234.

19.3. The combined effect of sections 222(2) and 234(1) is
that a person accused of breach of trust may be charged with and
tried at one trial for three such offences committed within the
space of 12 months, and in regard to each such offence the relaxa-
tion as to stating particulars of time, place and amount may be
availed of. But when the embezzlement has been going on for a
long time, say three years, it is not permissible to rely on section
222(2) for grouping together each year's embezzlement as one
offence and then rely on section 234(1) for trying the three
charges at one trial. It is suggested that multiplicity of criminal
proceedings is not avoided in such a case because both the sections
have the same period limit of one year. By way pf remedy the
suggestion is made that the period mentioned in section 234(1)
should be increased to two years and also that the number of
charges that can be tried jointly may be increased from three to
ﬁve or even six. We are unable to agree with either suggestion. We
do not think it is desirable to permit generally the joinder of more

'Sections 25lA(4). 255(1) and 271.

Section 221.

Language of

charge.

Section 222.

Effect of sections
222(2) and 234(1).

Sections 223 to
230.

Section 231--revi-
sion recommend-

Section 232 omit-
ted and provi-
sions included in
section 535.

156

than three offences of the same kind at one trial or to increase the
period-limit to two years. Apart from embezzlement cases it
would not be to the advantage of the prosecution or of the defence
to deal with numerous different transactions spread over a long
period at one trial. Even in embezzlement cases the limit of one
year, set in both the sections, is not unreasonable and there is no
good justiﬁcation for increasing it.

19.4. Sections 223, 224 and 225 do not call for any com-
ments. In section 226 the special provision for the High Courts
is not necessary and the words "or in the Case of a High Court,
the Clerk of the State" may be omitted. Similarly, since trial by
jury is proposed to be abolished, in section 227(1) the latter part
("or in the case of trials by jury before the Court of Session or the
High Court, before the verdict of the jury is returned") may be
omitted. Sections 228, 229 and 230 also do not call for any
comments.

19.5. Under section 231, whenever a charge is altered or
added to by the Court after the commencement of the trial, the
prosecutor and the accused "shall be allowed" to recall or re-
summon and examine, with reference to such alteration or addi-
tion, any witness already examined. Where an application is made
for re--summ0ning of such witnesses, the court is bound to grant it,
and cannot refuse it on the ground that the accused cannot be
prejudicedl or even on the ground that the alteration is of such a
nature that it cannot affect the evidence. Now, it may happen that
the application for recalling and re-summoning the witness is
made only for the purpose of vexation or delay or defeating the
ends of justice. In such cases, the court should have a power to
refuse the application. If the evidence of a witness is of a purely
formal character and the other party merely desires to prolong the
proceedings by taking advantage of the right given by the section,
there is no reason why it should be mandatory for the court to re-
summon the witness. We, accordingly, recommend that section
231 be revised as follows :--

"231. Whenever a charge is altered or added to by the Court
after the commencement of the trial, the prosecutor and the
accused shall on application be allowed--

(a) to recall or re-summon, and examine with reference
to such alteration or addition, any witness who may
have been examined, unless the court, for reasons to
be recorded in writing, considers that such applica-
tion is made for the purpose of vexation or delay or
for defeating the ends of justice?

(b) to call any further witness whom the Court may think
to be material."

19.6. Section 232 deals with the effect of a material error in,
or absence of, a charge which has misled the accused in his
defence. It provides that in such a case the court of appeal, revi-
sion or conﬁrmation shall direct a new trial upon a charge framed

1Ramalinga v. Emu. A.I.R. 1929 Mad, 200. 201;
Nogendra Nath v. Emp., A.I.R. 1932 Cal. 486, -I87.

2 Cf. Sections 251A(9) and 257(1).

157

in such manner as it thinks ﬁt, or, if it is of opinion that on the
facts proved in the case no valid charge could be preferred against
the accused, it shall quash the conviction. This is hardly the pro-
per place for sucha provision. While the power of the superior
courts to order retrial is referred to in subsequent sections like
376(b), 423(1) and 439(1), the effect of omission to frame a
charge or an error in a charge is again provided for in sections
535 and 537(b). We consider that section 232 should be omitted
and its provisions suitably modiﬁed and combined with the pro-
visions in sections 535 and 537(b)1.

19.7. The ﬁrst requirement of a fair trial in criminal cases is
a precise statement of the accusation. This requirement the Code
seeks to secure, ﬁrst by laying down in sections 221 to 224 what
a charge should contain; next, by laying down in section 233 that
for every distinct offence there should be a separate charge; and
lastly, by laying down. in the same section that (except in certain
speciﬁed cases) each charge should be tried separately, so that
what is sought to be achieved by the ﬁrst two rules is not nulliﬁed
by a joinder of numerous and unconnected charges.

These exceptions are based on some rational principle or other.
In section 234, which permits a joint trial for offences of the
same kind not exceeding three in number and committed within
a period of twelve months, the principle is the avoidance of a
multiplicity of proceedings. In section 235(1), the principle is
the relation between offences forming part of the same transac-
tion, separate trials whereof will naturally result in an incomplete
comprehension of the totality of the crime even where they do not
lead to conﬂicting judgments. The principle behind section 235(2)
and section 235(3) is that if a criminal act has several aspects,
all of them should be adjudged together. Sections 236 and 237
(which should be read together) provide for the not unusual type
of casein which while broad facts concerning an offence are, or
can be, established by the evidence, not all the incidents and
circumstances are known. In such cases it is permissible to charge
the accused with having committed all or any of different but
connected offences, and also to convict him of an offence with
-which he has not been expressly charged but might have been
charged. Lastly, section 239 permits a joint trial of several persons
in speciﬁed cases because of some basic connection between the
various offences committed by them.

19.8. The meaning of the expression "distinct offence" in
section 233 has been fully explained by the Supreme Court in a
recent decision? No changes are necessary in this section.

19.9. We considered the question whether there is any need
to increase the period of twelve months mentioned in section
234(1) or the number of offences which are triable at one trial.
'We are of the view that either increase would embarrass the
accused and hinder a smooth and fair trial.

1See para. 45.9 below.

?Banwnri Lal v. The Union of India, (1963) Suppl. 2 S.C.R. 338;
A.I.R. 1963 S.C. 1620. ' '

J oinder of char-
ges--general
scheme.

Section 233 "dis-
tinct offence".

Section 234.

158

The principle laid down in section 234(2) as to when offences
may be regarded as being "of the same kind" is, in our opinion,
sound. The exception made by the proviso in regard to simple
theft punishable under section 379 of the Penal Code and theft
in a dwelling house etc., punishable under section 380 is also
sound and the proviso does not require any addition, e.g., theft
after preparation for violence (section 382) or robbery involving
theft (section 392).

Section 235-Join- 19.10. The application of section 235, particularly in relation

g:i1;a°g§§1S:i§°§ogf to conspiracies, has been dealt with in a number of decisions1 of

andpfalsiﬁcaﬁon the Supreme Court, and the_scope of the section in this respect

ofao¢ounts_ 1S now well settled. There is some controversy? as to whether
the joinder of three charges of criminal breach of trust or mis-
appropriation with three charges of falsiﬁcation of accounts con-
nected with those offences is permissible, even when all the olf-
ences have been committed Within the space of twelve months.
A charge specifying the gross sum, framed with reference to
section 222(2), is no doubt a charge of one offence within the
meaning of section 234, but this legal ﬁction contained in section
222(2) is only for the purposes of section 234.3 While the falsiﬁ-
cation of accounts connected with a single act of misappropriation
can be said to form the same transaction and consequently a joint
trial of the two offences is permissible under section, 235(1), it is
not permissible to try together even two offences of misappropria-
tion and two connected falsiﬁcations of accounts, much less a series
of misappropriations charged as one offence under section 222(2)
and all the connected falsiﬁcations of accounts.

This position creates practical diﬂiculties. Criminal breach of
trust (or misappropriation) is often accompanied by falsiﬁca-
tion of accounts (or analogous offences) committed either to
facilitate the breach of trust or to conceal its commission. The
exclusion of such connected offences of falsiﬁcation of accounts
from the ﬁction created by section 222(2) deprives this section
of its usefulness in many cases. While misappropriation on
several occasions within a year accompanied by falsiﬁcation of
several items in the account books may be fairly described as
parts of the same transaction, the several acts of falsifyinglthe
accounts cannot be clubbed together in one charge.

NW subsection 19.11. After considering various alternatives we recom-
recommended. mend the insertion of a new sub-section in section 235 as
follows :--

"(1) When a person charged with one or more offences
of criminal breach of trust or dishonest misappro-
priation of property as provided in sub-section (2)
of section 222 or in sub-section (1) of section 234,
is accused of committing, for the purpose of facili-
tating or concealing the commission of that offence

1 Purshottam Das Dalmia v. The State, (1962) 2 S.C.R. 101;
R. K. Dalmia v. Delhi Administration, (1963) 1 S.C.R. 253, 273:
State of Andhra Pradesh v. Ganeshwar Rao_ (1964) 3 S.C.R. 297.
2See case-law discussed in Sriram v. The State, A.I.R. 1956 All. 466.
3 D. K. Chandra v. The State. A.I.R. 1952, Bom., 177;
Krishna Murlhy v. Abdul Subhan, A.I.R. I962 Mys. I28.

159

or those oﬂlences, one or more offences of falsiﬁca-
tion of accounts, he may be charged with, and tried
at one trial for, every such oﬂence."

19.12. Section 236 cannot be said to be very clearly or
expressively worded. The two illustrations that are appended to
it would seem to be essential for a proper understanding of what
the section means and what types of cases are intended to be
covered by it. In fact, the second illustration is hardly covered
by the words of the section inasmuch as when a person makes
on oath two contradictory statements, and the prosecution can-
not prove which of them is false, he does not commit several
offences but only one. The illustration is, for practical purposes,
a distinct rule enabling the Court to frame a charge of inten-
tionally giving false evidence without specifying which one of
two or more particular statements the accused either knew or
believed to be false, or did not believe to be true. This is referred
to in the illustration as charging in the alternative.

19.13. The section refers to a "series of acts being of such
a nature that it is doubtful which of several offences the facts
which can be proved will constitute." In a Calcutta case} the
judge observed-

"The confusion which has arisen about the interpreta-
tion.» of section 236 is due to the way in which it
is worded. What is really meant seems to be 'if a
single act or series of acts is of such a nature that it
is doubtful which of several offences has been
committed if the facts as alleged by the prosecu-
tion are established, the accused may be charged
with the commission of all or any of such offences.
The facts which can be proved are only ascertained
after the completion of the trial and therefore the
charge cannot be made to depend on them; more-
over in the terms of the section, the doubt must
arise from the nature of the act or series of acts, and
the doubt would arise because of the inferences which
might be drawn from those acts."

This view does not appear to be correct. It was dissented
from by the Bombay High Court in a case? where the prosecu-
tion was in doubt as to the age of a girl who was alleged to have
been kidnapped or abducted. The Court observed----

"The condition on which the section comes into opera-
tion must be complied with, and there must be a
single act or series of acts of a certain nature, and
the nature must raise a doubt about which of
several oﬁences the facts which can be proved, will
constitute. But we think that doubt may include a
doubt as to what exact facts within the ambit of
the series of acts postulated can be proved. At the
time the charge is framed, the prosecution can

1 Istahar Khandliar v. Emp., I.L.R. 62 Cal. 956; A.I.R. 1936 Cal. 796.
2Emp. v. Kasinath, A.I.R. 1942 Born. 71 (F.B.)

Section 236-um -
clear wording.

Judicial interpre-
tations of the sec-
tion.

Section 237.

160

never know exactly what facts they will succeed in
establishing. The most promising witness may break
down in cross--examination; and in our View the
prosecution are entitled to say: 'If we prove certain
of our alleged facts, then such and such an offence
will be committed; but if we prove other of such
facts, then it will be another offence'. and to charge
the offences in the alternative. That is the exact
case here, the prosecution being in doubt whether
they could prove that the girl was under sixteen.
We think illustration (a) to section 236 shows that
the Calcutta View of the section is too narrow."

This is accepted as the correct interpretation of the section.
To put it in an ampliﬁed form, if the offending act or series of
acts alleged in the case is of such a nature that it may, depend-
ing on the facts that can be proved, at the trial, constitute one,
or more than one, of several offences and doubt exists as to the
particular offence or offences with which the accused should be
charged, he may be charged with, and tried at one trial for, all
or any of such offences, or he may be charged with having
committed in the alternative one or the other of such offences.

19.14. The interpretation of section 237 also was a matter
of some difficulty in the past. In a easel which went up to the
Privy Council, several accused were charged under section 302,
Indian Penal Code, but as regards some of them, the evidence
did not suﬂiciently or deﬁnitely prove that they were present at
and had taken part in the murder. It was, however, found that
they had wrapped up the corpse, placed it on a horse, and gone
away with it. These accused were convicted under section 201,
Indian Penal Code, though not charged thereunder and their
convictions were upheld by the Lahore High Court. Dismissing
the appeal, the privy Council, after referring to sections 236 and
237 of the Criminal Procedure Code, said--

"The illustration (to section 237) makes the meaning of
these words quite plain. A man may be convicted
of an offence, although there has been no charge in
respect of it, if the evidence, is such as to establish
a charge that might have been. made. That is what
happened here. The three men who were sentenced
to rigorous imprisonment, were convicted of
making away with the evidence of the crime by
assisting in taking away the body. They were not
charged with that formally, but they were tried on
evidence which brings the case under section 237."

In a later judgment of the Privy Council? it was emphasised
that the' wide power to convict the accused of a crime not
charged is subject to two conditions, viz., (1) that the crime of
which the accused was found guilty was established by the
evidence and (b) that having regard to the information avail-
able to the prosecuting authorities. it was doubtful which of one
or more offences would be established by the evidence. These

1Begu V. King Emp., A.I.R. 1925 PC. 131.
'1Tha/(ur Shah. AIR. 1943 P.C. 192.

judgments of the Privy Council have been

only the substantive offence was charged.'

that the latter is a minor offence.

161

referred to with
approval by the Supreme Court more than once. Since the law
appears to be well settled, we consider it best to leave the word-
ing of the sections and the illustrations as they are.

19.15. Section 238(2A) provides that when a person is
charged with an offence, he may be convicted of an attempt to
commit that offence [although such attempt is not separately
charged. It is clear that the section does not cover abetment of
an offence, and Courts have held1 that conviction for abetment
would not be permissible where the accused was only charged
with the substantive offence. In one case2, however, a conviction
for abetment of rape was upheld, though the offence charged
was one of rape, and the abetment was treated as a 'minor'
offence under section 238(2). We do not think this was a
correct View to take of the section.

The case of abetment stands on a footing different from that
of attempt. Abetment is not an incomplete form of the offence,
nor connected with it in the same way as an attempt. The ingre-
dients that have to be proved for the abetment of an offence are
quite different from those required to establish the substantive
offence.3 There are authorities to the effect that if the facts of
the case are such that the principle of sections 236 and 237 is
applicable. and if no prejudice has been caused to the accused in
his defence, a conviction for abetment is permissible even though
We do not consider
it necessary or proper to widen the scope of section 238 by equat-
ing abetment with a minor offence of the same species.

19.16. While section 238(3) saves the provisions of section
198 and section 199, it is incomplete in that it does not refer to
the other analogous sections which also require a complaint or
sanction for taking cognizance of particular offences. For

'example, section 195, 196 and 196A also require the complaint

of a particular person or authority for the offences dealt with
therein; and sections 197 and 197A require the previous sanction

of the Government for prosecution in respect of certain offences.

It appears to be desirable to make it clear, in section 238, that a
conviction for a minor offence is not authorised where the re-

quirements imposed by the law for the initiation of proceedings *
'in respect of the minor offence have not been complied with. This

clariﬁcation will incidentally help to codify the proposition that
"section 238 must yield to section 195."5 Thus, where the com-
plaint is of an offence under section 211, Indian Penal Code,

there cannot be a conviction under section 182 on the ground
The Supreme Court" has

1Padmanaba y. Emp-. (1910) I.L.R. 33 Mad. 264; Emp. V. Ragya.
A.I.R. 1924 Born. 432; Hulns Chandra V. Emp., A.I.R. 1927 Cal. 63. 64;

.H1'rasa v. Emp.. A.I.R. 1947 Pat. 350. 351: Chote v. Emp. A.I.R. 1948

All. 168. 170; Narvir Chand v. The State, A.I.R. 1952 M.B. 17, 20.
2.Samuel John V. Emp., A.I.R. 1935 All. 935. 937.
3Narvirchand V. The State. A.I.R. 1952 M.B. 17. 20.
4Hz'rasa V. Emp., A.I.R. 1947 Pat, 350, 351, 352, 353 (reviews case

law); Debi Prasad v. Emp., A.I.R. 1932 Cal. 455.

5Kantir Missir v. Emn., A.I.R. 1930 Pat. 98. 102.
"Emir-ztl-Haq v. State of West Bengal, (1953) S-C-K 836; A-I~R-

"1953 S.C. 293, 396.

Section 238(2A)
and abetment.

Section
incomplete.

238(3)

Section 238 (3)
{reVised.

Section 239.

Section 240.

162

also observed that the provisions of section 195 cannot be evad-
ed by the device of charging a person with an offence to whicln
it does not apply, and then convicting him of an offence to
which it does, upon the ground that such latter offence is a.
"minor offence".

This aspect of the matter may be illustrated by the facts in an
Allahabad case} wherein a sentence under section 173, Indian.
Penal Code, was set aside by the. High Court. The Magistrate's
explanation, that he took cognizance under section 225B, Indian.
Penal Code, and convicted the accused under section 173 by
virtue of section 238, Code of Criminal Procedure, was not.
accepted, as there was no complaint of a public servant as re-
quired by section 195.

19.17. We, therefore, recommend that, for sub-section (3)
of section 238, the following sub-section may be substituted :-V

"(3) Nothing in this section shall be deemed to autho-
rise a conviction of any minor offence where the condition re-
quisite for the initiation of proceedings in respect of that
minor offence have not been satisﬁed."

19.18. Section 239 which lays down when persons may be
charged and tried jointly has been elucidated in a recent decision?'
of the Supreme Court. The various clauses of the section need
not be treated as mutually exclusive, and it is permissible to
combine the provisions of two or more clauses. The join-t trial
of several persons partly by applying one clause and partly by
applying another clause is authorised.

A small grammatical amendment
which should read----

is required in clause (b)

"(b) persons accused of an offence and persons accused'
of abetment of, or x x x attempt to commit, such
offence."

It has been held by the Privy Council3 that the offence of
conspiracy and any offence committed in pursuance of the cons-
piracy are to be regarded as forming part of the same transac-
tion for purposes of section 235 and persons accused of such-

offences can, thus, be tried under clause (d) of section 239.

We note that Beaumont C.J. has, in a Bombay case,' criticis-
ed the language of clause (f). The: interpretation of the words
"possession of which has been transferred by one offence" is,
however, now well settled, and we do not consider it necessary'
to alter the wording.

19.19. No change is needed in section 240.

1Narain Singh v. Emp., A.I.R. 1925 All. 129 (Neave J.).

2State of Andhra Pradesh V. Ganeshwar Rao, (1964) 3 S.C.R. 297;
A.I.R. 1963 S.C. 1850.

3Bnbultzl v. Emp.. 65 Indian Appeals 138: A.I.R. 1938 P.C. 130-.
133.

4Emp. v. Lakho Amra, A.I.R. 1932 Born. 201.

163

19.20. We considered the question whether a provision
should be inserted after section 240 to empower the Court to
order separate trial where a trial had begun on a joinder of vari-
ous charges. The power is exercised even now although without
an express provision. We do not think it is necessary to insert

such a provision.

19.21. It was suggested during our discussion that if the
accused made a request in writing for the trial of certain charges
together, then the joinder of those charges should be allowed
even if the joinder is not otherwise permissible under the provi-
sions of sections 233 to 239. We do not think that, in practice,
there will be many accused persons making such a request.
While theoretically there might be no objection to the suggested
provision, it would not have much practical utility.

Power to_ ondcl
separate tnal.

Joinder of charges
with consent of
--Provi-
sion not recom-
mended.

Section 241----In-
troductory.

Section 241A
(New).

Sections 242 and
243.

CHAPTER XX
TRIAL OF SUMMONS CASES BY MAGISTRATES

20.1. Summons cases are tried with much less formality tham
warrant cases, and the manner of their trial is less elaborate.
There need, for instance, be no formal charge, and at present
even a formal plea by the accused is not necessary. As soon as
the accused appears, "the particulars of the offence of which he is-
accused" are stated to him, and he is asked "if he has any cause
to show why he should not be convicted". If he admits that he
has committed the offence and shows "no suﬁicient cause why he
should not be convicted", he can be convicted at once. In case
the Magistrate does not on such admission convict him or if the
accused "does not make such an admission", the Magistrate'
proceeds to hear the complainant, take "such evidence as may
be produced" to support the prosecution, and then to hear the
accused and take such evidence as he produces in defence. The
proceedings are then virtually over, unless of course the Magis-
trate himself thinks it necessary to call some more evidence; and'
all that remains to be done by the Magistrate is to consider the
evidence and either acquit or convict and sentence the accused.
Even the method of preparing the record is less formal. The
whole of the evidence is not required to be taken down; a memo-
randum of the substance of the evidence is enough (section
355). The scheme is simple, and the intention clearly is that
these not very serious but numerous cases should be decided
quickly. We agree that this is how it should be. All the essen-
tials of a fair trial are present here, and the nature of these cases
is such that a more elaborate method would only add to the ex-
pense and perhaps harassment of the parties without substantial-
ly aiding the cause of justice. Without departing from the subs-
tance of the existing provisions, therefore, we have considered
if some changes of detail would improve the working of the
existing scheme.

20. 2. We have provided1 in Chapter XVII that in the case
of certain petty offences, an accused who is willing to plead guilty
need not be compelled to appear in Court, either in person or
through pleader. Our object is to avoid unnecessary trouble
to offenders who have committed petty offences and are willing
to pay the penalty. To provide for the procedure in such cases,
a new? section 241A has also been proposed to be included in
this Chapter.

20.3. We recognise that a formal charge is not necessary in
summons-Cases, and it is suﬂicient to state the particulars of the
offence. Section 242 then says that the accused should be ask-
ed "if he has any cause to show why he should not be convicted".
This tends to be a little ambiguous. The intention, we take it,
is to provide an opportunity to the accused to plead guilty or

1Section 205A (proposed). ,
2See Dara 17.8 above.

165

not guilty. The language of sections 242 and 243, however, is
likely to create the impression that an admission of guilt alone
may not be sufficient ground for a conviction. We think it would
be better if a straight-forward provision is made for the accused
to plead guilty or not at that stage, as everybody understands these
(lays what is meant by "pleading guilty" or "not guilty", and the
Code itself uses this expression on other 0CCaSlOI1S: If the accus-
ed pleads guilty, he can be convicted at once; but if he does not,
the case has to be decided on the evidence. On this view,
section 242 and 243 may be amended to read as follows :--

"242. When the accused appears or is brought before
the Magistrate, the particulars of the offence of which he is
accused shall be stated to him, and he shall be asked whether
he pleads guilty or has any defence to make, but it shall not
be necessary to frame a formal charge.

243. If the accused pleads guilty, the Magistrate shall
record the plea as nearly as possible in the words used by

the accused, .. and may in his discretion convict him
thereon."

20.4. While doing this, we hope to set at rest a controversy
that seems to have arisen at times about the meaning of section
242 when considered along with section 205. It will be noticed
that section 205 enables a Magistrate issuing a summons for an
accused to dispense with his personal attendance and to permit
him to appear by his pleader. This power is likely to be used
mostly in summons cases. Yet, in such cases, the proceedings
have to start with the questioning of the accused about the
accusation against him, so that if that questioning has to be per-
sonal, the power mentioned in section 205 cannot be usefully
exercised. One view, therefore, has been that in cases where
the personal attendance of the accused is dispensed with, his
pleader can, in his stead, plead to the "charge" or make an
answer to the statement of allegations. The other View is, that
such an admission of guilt is a serious matter, and if made negli-
gently by a pleader, it can burden the accused with severe
penalty, so that the accused alone can make such an admission
and the questioning of the accused must be intended to be per-
sonal. There is little doubt that nowadays in the Criminal
Courts a pleader is in every case a practising lawyer. We do not
think a member of the legal profession is likely to act without
clear instructions in such a matter; and we therefore see no great
danger in entrusting this task to the accused's pleader. We pro-
pose therefore that where the personal attendance of the accused

has been dispensed with, his pleader may answer the charge
against him.

20.5. The wording of sub-section (1) of section 244 is
unnecessarily verbose. All the situations mentioned there in
detail are covered by the opening words, the only two possibi-
lities being when the Magistrate convicts on a plea of guilty. and
when the Magistrate does not do so and the case proceeds to
evidence. The proviso to the sub-section is also unnecessary.
The sub--section may be revised to read as follows :--

"(1) If the Magistrate does not convict

the accused
under section 243

. the Magistrate shall proceed to

Substance ' of
accusation to_be
stated.

Conviction of

plea of guilty.

Procedure under
section 242 when
attendance ~ of
accused has been
dispensed with.

Section 244.

Procedure when
not convicted.

Section 245.

Section 246.

166

hear the prosecution and take all such evidence as may be
produced in support of the prosecution, and also to hear the
accused and take all such evidence as he produces in his

defence."

In sub-section (2) also, the word "prosecution" may _be
substituted for the word "complainant" in order to cover police-
cases besides complaint cases.

20.6. A controversy has arisen whether the examination of
the accused person himself is compulsory under section 342 in a
summons-case. That section occurs in the Chapter on "Gene-
ral Provisions as to Inquiries and Trials", and it provides that
the Court shall question the accused "generally on the case after
the witnesses for the prosecution have been examined and before
he is called on for his defence". Some High Courts are of the
opinion that this provision applies to the trial of summons cases,
as it occurs in the Chapter meant for all inquiries and trials,
while some High Courts think that it is inapplicable to summons
cases, as the accused is never, in such cases, called on for his
defence. We feel that the examination of an accused would be
useful in all cases, and we intend making a suitable clariﬁcation'
in section 342.

In regard to section 245, however, the question would be
whether this examination must be of the accused in person or
whether his pleader can be examined if the accused's attendance
has been dispensed with. Considering the general nature of
summons cases, we think no harm would occur if the pleader is
examined instead of compelling the accused's attendance, unless
of course the court considers it necessary to do so. In other
words, we prefer to leave this matter largely to the discretion of
the Magistrate and merely enable him to examine the
pleader if he thinks that suﬂicient or to compel the attendance of
the accused and examine him in appropriate cases. As we intend
to provide for this in section 342, we propose to omit the words
"and (if he thinks ﬁt) examining the accused" from section
245(1). No other amendment is required in this section.

20.7. In Chapter XIX of the Code concerning the charge,
there is a provision that a person charged with one offence may
be (if there is evidence, of course) convicted of another offence
for which he might have been charged according to the provi-
sions of that Chapter? As there may be no charge framed in a
summons case, a somewhat similar provision has been made in
section 246 which says that a Magistrate may convict the accused
"of any olfence triable under this Chapter which from the
facts admitted or proved he appears to have committed what-
ever may be the nature of the complaint or summons". The
language used here is very wide, but we have no doubt that it is
not the intention that a person accused of a particular offence
triable under this Chapter, that is as a summons case, can be
convicted of a totally diﬁerent and unconnected oifence about
which he may never have been questioned and against which he

1 See para. 24.50 below.
2 Section 237.

ﬂ"

l
4

\
3,.'

167

may never have defended himself. We, therefore, propose that a
qualifying clause "if the Magistrate is satisﬁed that the accused
would not be prejudiced thereby" should be added to section 246.

20.8. Section 247 seemingly requires the presence of the
complainant in a complaint case at every hearing; and prior to
the amendment of the Code in 1955, the rule was that if the
camplainant absented himself, the accused must be acquitted
unless the Magistrate thought it proper to adjourn the hearing.
It was evidently felt that this rule was too harsh, and a proviso
was added in 1955 saying that "where the Magistrate is of opinion
that the personal attendance of the complainant is not necessary"
he may dispense with such attendance. The rigour of the original
rule has thus gone, and the whole thing is left to the discretion of
the Court which, we assume, is being properly exercised. It has
been suggested that it' the complainant is a public servant or the
complainant is properly represented by a pleader, the case should
not be dismissed because of his absence. We have, however, no
reason to think that in such situations the Court will not be
persuaded to dispense with the presence of the complainant, so
that the provision of law as it stands and as it is intended to be
worked is in our view adequate.

The only change which we suggest in the section is to extend
the scope of the proviso so as to empower the Magistrate to
proceed with the case where the complainant is represented by his
pleader or by the oﬂicer conducting the prosecution.

A question has arisen whether the complain.ant's death ends
the proceedings in a summons case; and we ﬁnd that different
views have been expressed on thisquestion. As a matter of
policy, we think the answer should depend on the nature of the
case and the stage of the proceedings at which death occurs. It
is impracticable to detail the various situations that may arise and
the considerations that may have to be weighed. We think, in
the circumstances, that the decision should be left to the judicial
discretion of the court, and the legal provision need only be that
death and absence stand on the same footing. We trust this will
in practice work satisfcatorily.

In the light of the above discussion, section 247 may be
amended so as to read as follows :--

_"247. (1) If the summons has been issued on com-
plaint, and upon the day appointed for the appearance of the
accused, or any day subsequent thereto to which the hearing
may be adjourned, the complainant does not appear, the
Magistrate shall, notwithstanding anything hereinbefore
contained, acquit the 'accused, unless for some reason he
thinks it proper to adjourn the hearing of the case to some
other day :

Provided that where the complainant is represented by a
pleader or by the oﬁicer conducting the prosecution or where
the Magistrate is of the opinion that the personal attendance
of the complainant is not necessary the Magistrate may dis-
pense with -his attendance and proceed with the case.

Section 247.

Non-appearance
or _death of com-
plainant.

Withdrawal
complaint.

Section 249.

Section 250.

168

(2) The provisions of sub-section (1) shall, so far as
may be, apply also to cases where the non-appearance of the
complainant is due to his death."

20.9. Section 248 enables the complainant to withdraw the
complaint with the Court's permission, and the accused is then
acquitted. It has been doubled if the complaint can be withdrawn
regarding some of the accused if there be more than one, and one
High Court has held that the whole case against all the accused
stands withdrawn if it is withdrawn regarding some of them, We
think that this power, like that of compounding an offence, should
be exercisable concerning each accused separately when there are
more than one accused. We propose that section 248 may be
amended to read 2

"248. If a complainant, at any time before a ﬁnal order
is passed in any case under this Chapter, satisﬁes the Magis-
trate that there are suﬂicient grounds for permitting him to
withdraw his complaint against the accused, or if there be
more than one accused against all or any of them, the Magis-
trate may permit him to withdraw the same, and shall there-
upon acquit the accused against whom the complaint is so
withdrawn."

20.10. No change of substance is necessary in section 249.
The reference to the District Magistrate may be replaced by "Chief
Judicial Magistrate", and for the words "any other Magistrate",
the words "a Magistrate of the second class" may be substituted.

20.11. Section 250 of the Code is designed for payment of
compensation to those accused against whom frivolous or vexati-
ous complaints are brought in Court. Apart from providing that
compensation upto one-half of the ﬁne which the Magistrate can
impose can be awarded to the accused, it lays down the procedure
governing such proceedings. Notice to the complainant is
necessary, and of course he has to be heard in reply, and against
the ﬁnal order, an appeal lies. The procedure is, we think, satis-
factory. We are not, however, satisﬁed with the scope of the
power given to the Court. At present, the Court must be
satisﬁed that the accusation "was false" and either
frivolous or vexatious. We should have thought that
a false accusation would be necessarily vexatious; but that view
has not found favour with the Courts, and we understand that in
very few cases, Magistrates resort to section 250 on the view that
its requirements are rarely satisﬁed. To discourage frivolous
complaints, it would, we feel, be proper to widen the scope of
this provision. It is obvious that a complainant who brings a.
false complaint knowing it to be false needs to be punished.
Knowledge on the complainant's part is, however, a subjective.
matter, and in any case hard to prove. We propose to put in its
place on objective test, namely, the total absence of any reason-
able ground for the accusation. In most cases, we think this
would be the same as actual knowledge of the falsity of the
accusation. We therefore propose, that in any case where the
Magistrate acquits or discharge the accused and is further of
opinion that there was no reasonable ground for making the
accusation against them or any of them, he may award compen-
sation to the accused. The only other change we suggest is that

5-.

169

the limit of non-appealable orders under this provision when
made by a ﬁrst class Magistrate should be raised from Rs. 50 to
Rs. 100. No change in the procedure is required.

The following amendments may be made in the section :--

(1) in sub-section (1), for the words "that the accusa-
tion against them or any of them was false and either frivo-
lous or vexatious", the words "that there was no reasonable
ground for making the accusation against them or any of
them", shall be substituted;

(2) in sub-section (2), for the words "that the accusap
tion was false and either frivolous or vexatious", the words
"that there was no reasonable ground for making the accu-
sation" shall be substituted; and

(3) in sub-section (3) for the Words "ﬁfty rupees" the
words "one hundred rupees" shall be substituted.

Section 251.

Sub-section (1) to
be omitted in View
of new section
205B.

Section 251A (2).

CHAPTER XXI
TRIAL OF WARRANT CASES BY MAGISTRATES

21.1. After the amendments made in 1955, this Chapter
practically falls into two parts. The ﬁrst consisting only of
section 251A lays down the procedure for the trial of warrant
cases instituted on a police report, and the second consisting of
the other sections in the Chapter, namely, sections 252 to 259,
lays down the procedure in other cases. This division has result-
ed in the repetition of some of the provisions but as the two parts
are thereby made clear and self-contained, the scheme does not
require to be changed.

21.2. Section 251A deals with the procedure to be adopted
in warrant cases instituted on a police report. Under sub-section
(1), the ﬁrst thing that has to be done by the Magistratesis to
satisfy himself that the documents referred to in section 173 have
been furnished to the accused, and if not, the Magistrate has to
cause them to be so furnished. We have recommended above
that the duty cast on the police by sub-section (4) of section 173
should be transferred to the Magistrate taking cognizance and
suggested the necessary provision1 to be included in Chapter
XXII. In view of this provision, sub-section (1) of section
251A may be revised as follows :

"(l) When, in any case instituted upon a police report,
the accused appears, or is brought, before a Magistrate at
the commencement of the trial, the Magistrate shall satisfy
himself that the provisions of section 205B have been com-
plied with."

21.3. Section 251A(2) provides that, if upon consideration
of the documents received under section 173 and making such
examination, if any, of the accused as the Magistrate thinks
necessary and after giving the parties an opportunity of being
heard, the Magistrate considers the charge to be groundless, he
shall discharge the accused. The reference to section 173 may
be replaced by a reference to the new section 205B.

One of the suggestions? received by us is that consideration
of the documents alone cannot enable the court to form a deﬁnite
opinion as to whether a prima facie case exists, and that the pro-
cedure laid down in sections 252 et seq should be adopted for
cases instituted upon police report as well, subject to a modiﬁca-
tion that, after the framing of charge, there should be no further
right of cross-examination and the accused should be called upon
to enter upon his defence straightway. One advantage of the
proposed procedure, it is stated, would be that if the statements
of the prosecution witnesses disclosed that no offence was com-
mitted, the court should discharge the accused at an early stage.

1See paragraph 17.9 above.
2The suggestion has been made by the Deputy I.G.P.. Delhi F. 3(2) /
55-L. C. Part II, S. No. 34(d) and F. 3(2)/55-LC. Part I. S. No. 83.

171

We are unable to accept this suggestion as it strikes at the very
basis of the distinction between cases instituted upon police
report and other cases. It is no doubt possible that in a few
cases the recording of prosecution evidence at the outset before
framing charge may prove to be useful. We do not, however,
consider it desirable to make any such radical change as suggested.

Sub-section (2) does not require the Magistrate to record his
reasons for discharging the accused. As he has to reach that
conclusion after a proper consideration of the documents and
hearing both sides and his order of discharge is subject to revision,
it is obviously necessary that he should record his reasons in the
order. The words "and record his reasons for doing so" may be
added at the end of the sub-section}

21.4. No changes are needed in sub--sec.tions (3) and (4) of
section 251A.

21.5. With reference to sub-section (5), the question whether
in a warrant case the pleader of the accused can be allowed to
plead to the charge has been considered by the courts." The
view generally taken is that if the accused is present, his plea must
be recorded, even though his pleader is present, but if the atten-
dance of the accused has been dispensed with, the pleader can be
allowed to plead to the charge. We do not think that any speciﬁc
amendment is necessary on the point.

21.6. Sub-section (6) provides that if the accused refuses to
plead, or does not plead, or claims to be tried, the date for the
examination of witnesses shall be ﬁxed. It does not, however,
cover the case where the accused pleads guilty, but the plea is not
accepted by the court under sub-section (5). The wording of
section 244(1) (as amended in 1923) leaves no such lacuna in
regard to summons-cases. It would be useful to adopt a similar
wording in section 251A(6).

While sub-section (7) requires the Magistrate to take all such
evidence as may be "produced" in support of the prosecution,
there is no express provision in sub-section (6) or elsewhere for
the issue of process to compel the attendance of prosecution wit-
nesses. There has been some controversy in the past as to
whether process can be asked for. Most High Courts3 have
taken the View that it can, but the lacuna has been judicially
noticed.4 It may be noted that the corresponding provision for
the trial of complaint-cases---section 252(2)--is more speciﬁc on
this point. In Uttar Pradesh the following words have been
added at the end of sub-section (6) by a local amendment" :--

"and shall summon the witnesses, documents or things
speciﬁed in any application made on behalf of the prosecu-
tion before the said date for summoning the same, unless for

1See para. 21.13 below.
2Dorabshah, I.L.R. 50 Born. 250; Champa. A.I.R. 1950 Cal. 161;
Kanchanbai, A.I.R. 1959 Madhya Pradesh 150.
3Public Prosecutor, A.I.R. 1965 Andhra Pradesh 162; Paban. A.I.R.
1965 Cal. 387: Phulloo A.I.R. 1966 All. 18.
4State v. Shib Charan, A.I.R. 1962 Orissa 157. 159 (para. 9).
5U.P.. Act 31 of 1961.

Section 25lA(3)
and

4). \

Section 251A(5).

Section 25lA(6).

Section 251A(7).

Section 251A(8).

Section 25lA(9)

172

reasons to be recorded, he deems it unnecessary to summon
all or any of them."

We accordingly recommend that sub-section (6) be amended
to read--

"(6) If the Magistmte does not convict the accused
under sub-section (5), he shall ﬁx a date for the examination
of witnesses; and the Magistrate may, on the application of
the prosecution, issue a summons to any of its witnesses
directing him to attend or to produce any document or other
thing."

21.7. It has been mentioned to us that the proviso to sub-
section (7) which permits the cross-examination of any witness
to be deferred until any other witness or witnesses has been
examined is sometimes resorted to without sufficient justiﬁcation
and leads to delay, expense and inconvenience to witnesses. There
is at present no such provision in regard to sessions trials-1. While
the underlying principle is sound, such deferments of the cross-
examination of witnesses are not intended to be a routine matter.
We, however, do not think it desirable to omit this part of the
proviso as suggested to us.

The proviso also enables the Magistrate to recall any witness
for further cross-examination. It has been suggested that the
proviso should further provide for the summoning of a new
witness whose name is revealed during the examination of other
witnesses. Even apart from section 540, there is nothing to
debar the production of such a wimess by the prosecution so long
as the prosecution evidence is not closed. No amendment is
required on this point.

21.8. Sub-section (8) allows the accused to put in any
written statement he wants. The practical necessity for this
provision has been questioned but it seems to us that it does no
harm and might be of some use to an accused person who (or
whose pleader) feels that his examination under section 342 has
not given him a full opportunity to explain all aspects of the case.
The sub--section does not require to be curtailed.

21.9. Sub-section (9) requires the Magistrate to summon at
the instance of the accused, a witness "for examination or cross-
examination", but under the proviso, the attendance of a witness
is not compellable where the accused has had an opportunity of
cross-examining that witness. This is, however, subject to the
counter-exception expressed by the words "unless the Magistrate
is satisﬁed that it is necessary for the purposes of justice". The
Magistrate's action is, thus, hedged in by a number of seemingly
contradictory provisions. Further, the word "or" in the main
paragraph seems to allow the summoning of a new witness only
for cross-examination, which may not be desirable and is perhaps
not the intention of the sub-section. No change is, however,
suggested on this point, since the sub-section vests full discretion

1This provision is being made for! Sessions trials also. See para 23.2,
revised section 276(2) below.

173

in the Magistrate and indicates that he should be guided by "the
ends of justice".

In the proviso to sub-section (9), the words "after the charge
is framed" are unnecessary, because under the preceding sub-
sections of the section, no examination of a prosecution witness
takes place before the charge. The reference should really be to
the stage before the accused enters on his defence. The _W01'd5
in question should be replaced by the words 'before entering on
his defence".

21.10. Sub-section (11) provides that where in any case in
which a charge has been framed, the Magistrate ﬁnds the accused
not guilty, he shall record an order of acquittal. A State Govem-
ment has stated that the absence of witnesses on the date ﬁxed
for hearing sometimes leads to acquittal and a subsequent prose-
cution is barred under section 403. It is suggested that an
acquittal by reason of the absence of prosecution witnesses should
be no bar to the subsequent prosecution and that this ditﬁculty
can be overcome by the insertion of a provision similar to section
249.

The question whether the accused is to be acquitted if there
are no prosecution witnesses was considered by us in detail. In
this connection the question whether the court is bound to
summon prosecution witnesses under section 540 when the prose-
cution does not produce the witnesses, was also discussed. In
an Orissa case,1 it was stated that the case of the absence of
prosecution witnesses is not provided for in the Code, and an
order of acquittal was set aside in that case as an acquittal must
be based on "evidence". Of course, once the prosecution has
summoned the witnesses through Court, the Court must enforce
their attendance." But the question is, can the court acquit the
accused merely on the ground of want of diligence on the part of
the prosecution ?

In a Madras case,3 it was stated that once the Court has
already framed a charge in a warrant case, "an important duty is
laid on it to see that all the powers available to the Court for the
examination of witnesses are exercised for a just decision of the
case irrespective of the laches of the complainant. Such powers
include the powers under section 540, Criminal Procedure Code
to summon witnesses on the motion of the Court".

In an Andhra Pradesh case,' the prosecution witnesses were
not present, and the summonses also were not returned, on the
date of hearing. The Assistant Sub-Inspector undertook the
responsibility of producing the witnesses at the next hearing. None
of the witnesses were however present at the next hearing, and
consequently the accused were acquitted. Even so, the High
Court set aside the acquittal.

1Shibcharan, A.I.R. 1962 Orissa 157 (R. K. Das J.).
2State of Mysore v. Narasimha, A.I.R. 1965 Mys. 167 (D.B.).
_ 3P. P. v. M. Sambangi, A.I.R. 1965 Mad. 31. 35. para. 4 (Rama-
knshnan J.).
4P. P. v. Pachtyappa, A.I.R. 1965 AP. 162 (Mohammed Mirz,a I.)

Section 25lA(1l).

Section 251A(12)
and (13).

Section 252.

Section 253.

174

We have recommended above an amendment of sub-section
(6) expressly enabling the prosecution to apply for, and the
Magistrate to issue, summonses to secure the attendance of
witnesses. We think the position will be clearer when this
amendment is made. In any event, the insertion of a provision
like section 249 in this Chapter relating to the trial of warrant
cases will mean keeping the accused in suspense for no fault of
his and for an indeﬁnite period simply because the prosecution is
unable to produce its witnesses before the Court. This is not a
situation which can be recommended.

21.11. No changes are needed in sub-sections (12) and
(13).
21.12. In section 252(1) we propose to substitute for the

words "complainant (if any)", the word "prosecution", and to
omit the proviso which will be rendered unnecessary by this
amendment.

Section 252(2) appears to throw on the Magistrate the res-
ponsibility of ascertaining the names of any persons likely to be
acquainted with the case and to summon such of them as he con-
siders necessary. This would appear to be both unnecessary and
undesirable when the case has been instituted on complaint
whether by a private individual or by a public servant. In those
cases the complainant would have already furnished a list of pro-
secution witnesses under section 204(1A). Even in the rare
cases where cognizance was taken under section 190(1) (c) there
would be somebody prosecuting the case who should be in a posi-
tion to give a list of witnesses. Sub-section (2) in its present
form does not appear to be necessary, and in its place we may
have a sub-section as follows :

"(2) The Magistrate may, on the application of the pro-
secution, issue a summons to any of its witnesses directing him
to attend or to produce any document or other thing."

This will bring section 252(2) into line with section 251A(6) as
proposed to be amended}

21.13. We propose to make two amendments in section
253(1). In view of the comprehensive provision in section 342
relating to examination of the accused the words "and making
such examination (if any) of the accused as the Magistrate thinks
necessary" are practically superﬂuous and may be omitted. When
the Magistrate ﬁnds that no prima facie case has been made out
against the accused there will hardly be anything to examine him
about! Secondly, it is desirable to make it clear in sub-section
(1), as already done in sub-section (2), that the Magistrate should
record his reasons for discharging the accused. An order of dis-
charge under either sub-section is a judicial order and subject
to revision?'

Sub-section (1) may be revised as follows 2--

"( 1) If, upon taking all the evidence referred to in section
252. . . . the Magistrate Considers, for reason to be

1See para. 21.6 above.
2)L. Narayan v. P. Chetmreddi, A.I.R. 1961 A.P. 117, 119 (Reviews
cases .

175

recorded, that no case against the accused has been made out
which_ if unrebutted, would warrant his conviction, the
Magistrate shall discharge him."

21.14. In section 254, also the reference to examination_of
the accused is unnecessary and may be Omitted. The opening
words of the section may be amended to read "If when such evi-

dence has been taken or at any previous stage of the case, etc."

21.15. In section 255(1), the words "whether he is guilty",
may be replaced by the words "whether he pleads guilty" as being
more appropriate.

The question whether, in section 255(2),. after the words
"record the plea", the words "as far as possible in his own words"
should be added as in section 243 was considered by us. As
section 243 relates to summons cases where there is no charge,
the direction to record the admission of the accused as far as
possible in his own words has a meaning and a purpose. The
«situation under section 255 is different. The plea is with reference
to a detailed charge which has to be formulated precisely and
must give full particulars oﬁ the offence. It is unnecessary to
provide in this context that the plea must be recorded in the
accused person's own words.

2l.15a. Section 255A, which is analogous to section 310
-applying to sessions trials, was inserted by the Amending Act of
1923. The Lowndes Committee1 which examined the Amend-
ment Bill of 1914 recommended it for these reasons :

"We think that this addition is necessary after section 255
to provide for a case where previous conviction is also charged.
Deﬁnite provision is made for this in the case of trials before
a Court of Session (see section 310), but it does not seem
to have been provided for by the Code in the case of a
Magistrate's trial."

The Select Committee which examined this clause observed
as follows? :

"It was suggested to us that the new section 255A is un-
necessary, on the ground that though a procedure for the
proof of previous convictions is necessary in a Sessions Court
to prevent the Jury or the Assessors from being prejudiced by
anything that they may hear as to the accused's previous
record, yet in warrant cases the same considerations do not
apply. On the whole, however, we think the new section may
serve a useful purpose. and we have retained it."

Although in a Patna case,3 it was observed by a Judge that
"no advantage is to be gained by this procedure", we do not re-
commend the omission of this section. Postponement of the in-
quiry into the charge of previous conviction does not cause any
inconvenience to the Magistrate or delay in the proceedings.
Occasionally even the trained mind of a Magistrate may be
affected by the knowledge that the accused has been previously

1 Report of the Lowndes Committee Appendix B, under clause 56A.
2 Report of the Select Committee, (1922), under clause 68.
33 Ishwar Singh v. Shama Dusadh, A.I.R. 1937 Pat. 131.

Section 254.

Section 255.

Section 255A.

Section 256.

Section 257.

Section 258.
Section 259.

176

convicted.1 If this charge also_ is put to the accused the
beginning, he may get the feehng that the Magistrate ls perhaps
prejudiced by the knowledge of that previous conviction which it
is better to avoid.

21.16. As proposed above in regard to section 251A(6), a
formal amendment is required in the opening words of section
256(1). For the words "If the accused refuses to plead, or does
not plead, or claims to be tried", the words "If the accused is not
convicted under sub-section(2) of section 255" may be substi-
tuted. No other amendment is required in section 256.

21.17. Under section 257(2) the Magistrate may, before
summoning any witness at the instance of the 'accused, require a
deposit to be made of the reasonable expenses of such witness.
A suggestion has been made that this sub--section should be
deleted. While in the majority of the cases, the Magistrate may
not think it necessary to exercise the power under this sub-section,
it does not 'appear to be necessary or desirable to take away the
power. Usually, the Government bears the expenses ofdefence
wi1tnesses3, but not in all cases'. The matter is dealt with by
ru es.5

There seems to be some controversy as to the course to be
adopted by the Magistrate when some prosecution witnesses are
absent and cannot, therefore, be cross-examined after charge. One
view is_ that the accused should be acquitted and that the evidence
previously given by those prosecution witnesses should be "ex-
punged°. Another view is that the court should re--summon the
witnesses under section 257.7 The correct position seems to be
that if the parties concerned have taken the necessary steps in
accordance with law for summoning of the witnesses, or if the
accused wishes to exercise his right of further cross-examination
in accordance with law, the court must enforce the attendance of
such witnesess, and cannot acquit the accused merely on the
ground of the complaint's or witnesses' absence} The rulings ap-
parently to the contrary are distinguishable on facts."-1°

21.19. Section 258 needs no change.

21.20. A suggestion" has been made that the cases in which
the Magistrate may discharge the accused because of the com-
plainant's absence should not be limited to non-cognizable offen-
ces and compoundable oﬂences. This question was also consi-

1Cf. Beaumont C. J. in Emp. v. Ahmad Ebrahim, A.I.R. 1935
Bom. 39.

2See para. 21.6 above.

3See Sayed Habib v. Emp., A.I.R. 1929 Lah. 23. 24 (Shadi Lal C.I.).

4 Ganpm Ra. v. The Crown, A.I.R. 1923 Lah. 420 (Moti Sagar 1.);
Abdul Rehman. A.I.R. 1952 Aimer 45.

5See If; Singh v, The Smte. A.I.R. 1963 Puni. 143.

3Sadek Mohd. Ahmed Hassun v. Jyotish Chander, A.I.R. 1948 Cal.
88 (Roxburgh and Chunder IL).

7Rampal v. Mangala, A.I.R. 1952 Rai. 601.

3 Repin v. Paban, A.I.R. 1951 Cal. 418.

9Emp. v. Nazir, A.I.R. 1930 All. 795, 796, (Boys I.)

10 Gobinda v. Rahl Prasad, A.I.R. 1953 Orissa 152.

11 F. 3(2)/55-L.C. Part III. S. No. 52, pages 269-270 of the Corres-
pondence (Suggestion of the Chief Presidency Magistrate. Madras).

177

dered in the past. The Lowndes .Oommittee1 had suggested
deletion of the words "and the oﬂence may be lawfully compound-
ed" as suggested by the Bengal Govemment. The Committee's rea-
soning was, that no useful result would follow from attempting
(in ordinary cases) to force the complainant to go on against his
will. But the Select Committee? which considered the Amendment
Bill of 1922 thought that this would be going too far and that it
would be "suiﬁcient to extend the application of the sectionto
cases of non-cognizable offences." The words "or is not a cogni-
zable oifence" were accordingly added in the section.

As to the principle underlying the section it was observed in a
Rangoon case3 :--

"The principle underlying the provisions dealing with the
trial of non-compoundable or cognizable warrant cases is that,
whether instituted on complaint or otherwise, the ﬁnal respon-
sibility for the conduct of such cases rests with the State and
that where there is reasonable ground for believing that such
an offence has been committed, once the machinery of the law
has been set in motion, the right of arresting its progress rests
with the State alone."

Agreeing with this view, we do not recommend any widening
of the scope of section 259.

The question whether the requirement of compoundability and
the requirement of non-cognizability are alternative or cumulative
has been discussed in one case.' The language of the section is
clear on this point, and we do not, therefore, consider any such
amendment necessary as was hinted at in that case.

It has been suggested {L6 that a proviso should be added in sec-
tion 259 to the effect that the Magistrate shall not discharge
the accused if the complainant is a public servant acting or pur-
porting to act in the discharge of his oﬂicial duty. We do not
think any such provision is necessary. Discharge of the accused
under this section is a matter within the discretion of the court,
and the fact that the complaint was made by the complainant in
the discharge of his oﬂicial duty will necessarily be taken into
account by the court before passing an order under this section'.

1 Report of the Lowndes Committee. Appendix B, clause 59.

'-'Report of the Select Committee. (1922) under clause 71.

3Maung Thin, I.L.R. 5 Rang, 136; A.I.R. 1927 Rang, 174, 175
(Doyle 1.).

4Shankar Das v. Mahu Ram, A.I.R. 1963 H. P. 32. 33, para 4.

5 F. 3(2)/55-L.C. Part I, S. No. 61.

"See also F. 3(2)/55-L.C. Part II. S. No. 34(c) and 34. (Sugges-
tion of a District Magistrate. endorsed by the Administration of the
Union Territory).

7 See also discussion relating to section 247.

General.

Section 260---Clas-
ses of Magistrates
who may try sum-

arily.

CHAPTER XXII
SUMMARY TRIALS

22.1. From the point of view of procedure, a summary
trial is an abridged form of the regular trial and is resorted to
in order to save time in trying petty cases. Short-cuts in pro-
cedure in criminal cases are not without risks; but in View of the
safeguards provided as to the type of judicial ofﬁcers who may
exercise this power, the nature of the offences that may be so
tried and the punishment that may be inﬂicted in such trials,
summary jurisdiction is justiﬁable.

22.2. Under s'ection 260(1), the Magistrates who can try
a case summarily are (a) the District Magistrate, (b) any ﬁrst
class Magistrate specially empowered by the State Government,
and (c) any Bench of Magistrates invested with the powers of a
ﬁrst class Magistrate and specially empowered by the State
Government.

In view of the proposed separation and change in nomen-
clature, the reference to "District Magistrate" should be changed
to read "Chief Judicial Magistrate". However, we do not consi-
der it necessary to include the Chief Judicial Magistrate as, in
practice, he would hardly have the time or occasion to try cases
summarily.

At present, Presidency Magistrates are not mentioned in sec-
tion 260, because under section 362(4) Presidency Magistrates
are not required to record the evidence or to frame a charge in
a case in which an appeal does not lie. We propose to remove
this special provision and to equate the procedure to be adopted
by Presidency Magistrates in such cases with that laid down for
summary trials. This not only avoids repetition, but also indi-
cates clearly the record to be kept in the case. Hence we are
adding Presidency Magistrates in section 260(1). (Compare
the amendment made by Bombay Act 54 of 1959 on this point
in section 260 and in section 362).

As regards ﬁrst class Magistrates, the power to try cases
summarily should be conferred, not by the State Government,
but by the High Court which is in overall control and is in a
better position to know their capabilities. As regards Benches
of Magistrates also, the conferment of powers under this' section
should be by the High Court and not by the State Government.

Thus the three classes of magistrates who may try cases sum-
marily will be-----
(a) any Presidency Magistrate,

(b) any Judicial Magistrate -of the ﬁrst class specially em-
powered in this behalf by the High Court, and

(c) any Bench of Magistrates invested with the powers of
a. Judicial Magistrate of the ﬁrst class and specially
empowered in this behalf by the High Court.

179

Suggestions have been received that such powers should be
given only to senior Judicial Oﬂicers. While it should be de-
sirable that only experienced Magistrates with, say, 5 years' ex-
perience as a ﬁrst class.' Magistrate should be given these powers,
a statutory provision of a rigid character is not necessary. In
fact, we ﬁnd that powers under this section are even now con-
ferred only upon experienced Magistrates.

22.3. Section 260(1) gives in clauses (a) to (m) a list of
the offences that may be tried summarily.

Clause (a) provides that all offences punishable with im-
prisonment upto six months may be tried summarily. This coin-
cided with the deﬁnition of summons cases in the Code before
the amendment of 1955. We are of the View that since the
deﬁnition of "summons cases" has been now changed to cover
offences punishable with imprisonment upto one year, the scope
of offences triable summarily should also be correspondingly
widened by substituting "one year'-' for "six months" in this
clause.

Consequentially clauses (b) and (c) should be' omitted, since
the offences punishable under sections 264, 265, 266 and 323
of the Penal Code are punishable with imprisonment that may
extend to one year only. It has been suggested that the offences
under section 324 may be added in clause (c), and that, in
clause (tn), offences under the Prevention of Gambling Act,
Opium Act, Excise Act and Dangerous Drugs Act may be added.
The offence under section 324 (voluntarily causing hurt by
dangerous weapons) is much more serious than that under
section 323; it is cognizable, not bailable and punishable with
imprisonment that may extend to three years and with ﬁne. As
regards offences under the Opium Act, a general provision
covering all such offences would not be desirable. The sugges-
tion has not, therefore, been accepted.

A suggestion has been made to effect the following changes
in section 260(1) :

(i) in clauses (d), (e), (f) and (g), the limit laid down
for the value of the property should be increased
from Rs. 200 to Rs. 1000; and

(ii) offences under sections 406, 417, 419 and 420 in-
volving property not exceeding Rs. 1000 in value
should be included in the section.

So far as the increase in the value of the property is con-
cerned, we note that the value mentioned before the Amendment
of 1955 was Rs. 50 and it was increased to Rs. 2-00 in 1955.
As not much time has elapsed since the increase, we are not
inclined to recommend a further increase.

As regards offences under section 406 (criminal breach of
trust), 419 (cheating by personnation) and 420 (cheating and
dishonestly inducing delivery of property), these offences often
involve complicated questions of facts and law, and it appears
to us that an extension of the procedure for summary trials' to
such offences is not without risk. The offence under section'

Section 260-offenp
ces that may be
tried summarily.

Section}261.

180

417 (cheating) will be covered by the proposed extension of
section 260(1) (a) to offences punishable with imprisonment upto
one year. We do not, therefore, recommend any amendment in
this respect.

In clause (i), the reference to house-trespass under section
448 should be omitted since the oﬁence is punishable with
impris-onment up to one year only. The reference to section 457
should also be omitted since this' is a grave offence punishable
with ﬁve years' imprisonment and when connected with theft
with 14 years' imprisonment.

Clause (m) is not accurately worded. Section 20 of the
Cattle Trespass Act, 1871, does not create an offence, by itself.
It is by virtue of the deﬁnition in section 4(1) of the Code of
Criminal Procedure that any act in respect of which a com-
plaint may be made under section 20 is included in the deﬁni-
tion of "offence". The clause should be amended to read---

"(m) any offence constituted by an act in respect of
which a complaint may be made under section 20 of the
Cattle Trespass Act, 1871."

22.4. Under section 261, the State Government can confer
on any Bench of Magistrates invested with the powers of a
Magistrate of the second or third class the powers to try sum-
marily the speciﬁed oﬁences. As in the case of the Benches
mentioned in the previous section, we consider that the confer-
ment of powers under this section also should be by the High
Court, and not by the State Government.

In an earlier Report', the Law Commission observed that in
States where there are Magistrates of the second class, summary
jurisdiction should be given to such Magistrates sitting singly.
In our view, however, it would not be proper to give the power
in question to individual Magistrates of the second class, having
regard to the need for experience and maturity for a proper
exercise of summary jurisdiction.

As for the offences which the Bench of Magistrates may try
summarily, one of the sections of the Indian Penal Code men-
tioned is section 352 (assault or use of criminal force otherwise
than on grave and sudden provocation), but the offence under
section 358 (assault or use of criminal force on grave and sudden
provocation) is not mentioned. The former is punishable with
imprisonment upto 3 months, or ﬁne upto Rs. 500 or both,
while the latter is punishable with simple imprisonment upto one
month or ﬁne upto Rs. 200 or both. It has been suggested that
the offence under section 358, Indian Penal Code should be in-
cluded in section 261(a) of the Code of Criminal Procedure.
Having regard to the fact that the latter oﬂence is in all respects
a less serious one than the former, we would accept the sugges-
tion.

114th Report. Vol. 2. page 731. paragraph 47. and page 732. item -10.

181

22.5. Section 262(1) provides that in summary trials the

shall be folowed in warrant cases, except as mentioned in
sections 263, 264 and 265. In an earlier Report1 the Law Com-
mission recommended that this distinction between summons-
cases and warrant-cases should be abolished in summary trials.
Since the Code deﬁnes the offences triable summarily and con-
templates the appointment of specially empowered Magistrates
for trying such cases, it was recommended that a uniform pro-
cedure should be followed in all such cases'. It was pointed out,
that in the majority of the offences so triable, the punishment
was imprisonment for 6 months or less (which would be sum-
mons--cases under section 4(1)(w) as it stood before 1955),
and that the maximum sentence that could be passed was limited
to three months even when the speciﬁed offences were warrant
cases. For these reasons, the Law Commission recommended
that summons-case procedure should be followed in all cases, as
no particular advantage would be gained by following the more
complicated warrant-case procedure if the case was to be tried
summarily. We entirely agree with this recommendation.

22.6. Section 262(2) provides that no sentence of imprison-
ment for a term exceeding three months shall be passed on con-
viction in a summary trial. We recommend that this limit of
three months be increased to six months. It is true that the
object of the restriction in section 262(2) is to restrict the pass-
ing of sentence of considerable length in a summary trial, but an
increase upto six months should not, in our view, be objection-
able sinoe every sentence of imprisonment is appealable. Section
414 of the Code, as originally enacted, barred an appeal in a
case tried summarily in which a sentence of imprisonment not
exceeding 3 months or a sentence of ﬁne not exceeding Rs. 200
was passed. That part of section 414 which related to impri-
sonment was omitted in 1923, and therefore every sentence of
imprisonment or ﬁne of over Rs. 200 is now appealable.

The record in a summary trial is no doubt less elaborate than
that in a regular trial; but our recommendation that the substance
of the evidence be recorded in all cases other than those where
the accused pleads guilty will facilitate an effective scrutiny by
a higher Court into the correctness of the Magistrate's order.
In View of the fact that the scope of section 260(1)(a) is pro-
posed to be widened so as to cover oﬁences punishable with im-
prisonment upto one year, an increase in the maximum imprison-
ment which the court can award would also prove to be of practi-
cal use in some cases,

22.7. Accordingly, section 262 may be amended so as to read
as follows :--

"262. (1) In trials under this Chapter, the procedure
prescribed for summons cases shall be followed . . . . ..
except as hereinafter mentioned.

1 14th Report. Vol. 2. pages 730-731. paragraph 45.

Section 262(1)-
procedure prescribed for summons cases shall be followed in Pl,"f'f"'e";ﬁ:,e"°'i:°°'n
summons cases and the procedure prescribed for warrant cases summary n-m,_

Section
limit of
to be raised.

Amendment
section 262
commended.

262(2)-
sentence

of
re-

Section 263 and
264.

182

(2) No sentence of imprisonment for a term exceeding six
months shall be passed in the case of any conviction
under this Chapter."

22.8. Sections 263 and 264 deal with the procedure to be
followed in non-appealable and appealable cases respectively.
The main difference between the two is that, while in the former
no evidence need be recorded, in the latter case the Magistrate
has to record the substance of the evidence. The defect of this.
scheme is that procedure is made to depend on the result. In
other words, if the need to record evidence is dependent on
appealability, and appealability in turn depends on the sentence
awarded, then the Magistrate has to decide on the guilt of the
accused and sentence that should be awarded even before he
has heard the evidence. This artiﬁciality has led to some con-
ﬂictl in the interpretation of the words "in which appeal lies"
appearing in section 264.

Another shortcoming of this' scheme is that the right of re-
vision against a conviction and the right of an appeal against
acquittal are rendered virtually ineffective in so far as the higher
court cannot conduct a meaningful enquiry into the correctness
of the trial court's order for want of a proper record of the case.
This reason had prompted the Law Commission to recommend'
in an earlier Report? that the substance of the evidence should
form part of the record of the case in appealable and non-
appealable cases alike. We are also of the same view.

This change should not make any practical difference in the
speedy disposal of summary cases as our investigation reveals
that, even as it is, the Magistrates, due to the difficulty and
undesirability of making up their minds on the ultimate result
of the case even before they have heard the evidence, do take
notes' of the evidence during the examination of the witnesses to
be later incorporated in the records, should an appealable con-
viction follow. It was also revealed that in a large number of

summary trials the accused pleads guilty and the need to record
evidence does not arise. We, therefore, recommend that the

procedure to be followed in all summary trials should be the
same irrespective of the result of the trial.

Section 263 expressly provides that no formal charge need
be framed in a case where no appeal lies. Since we recommend
that summons-case procedure, in which there is no formal
charge, be adopted in all summary trials, the words "or frame
a formal charge" in this section can be deleted.

Accordingly sections 263 and 264 may be combined and
recast to read as follows:

"263, In every case tried summarily, the Magistrate
or Bench of Magistrates. . .. shall enter, in such form as
the State Government may direct, the following particulars
namely :--

(a) the serial number of the case;
1 See discussion of case-law in Antonio Vmcente v. The State, A.I.R.

1968 Goa 81.
2 14th Report. Vol. 2. page 827. para. 8.

: |I '

183

(b) the date of the commission of the offence;
(c) the date of the report of complaint;
(d) the name of the complainant (if any);

(e) the name, parentage and residence of the accused;

(f) the offence complained of and the oﬂence (if any)

proved, and in cases coming under Cldu-V6 (b), (C),

(d) or (e) of sub-section (1) of section 260, the

. value of the property in respect of which the oﬂence
has been commited;

(g) the plea of the accused and his examination (if any);
(h) the ﬁnding. . .;
(i) the sentence or other ﬁnal orkr; and

(j) the date on which the proceedings terminated;

and when the accused does not plead guilty, the Magistrate
or Bench shall also record the substance of the evidence and
a judgment containing a brief statement of the reasons for
the ﬁnding."

22.9. Sub-section (1) of section 265 deals \m'th the langu-
age of the record and judgment. The mention therein of the
mother-tongue of the presiding ofﬁcer may be omitted as' un-
necessary at the present day. It also appears unnecessary to
require the presiding oﬁicer himself to write up the record. In
practice, the factual particulars of the case are recorded by the
Clerk of the Court. The sub-section may accordingly be re-
vised to read :

"(l) Every such record and judgment shall be written
either in English or in the language of the Court."

22.10. Sub-section (2) of section 265 enables the State
Government to authorise any Bench of Magistrates to employ
an ofﬁcial to prepare the record or judgment or both and take
the signature thereon of each member of the Bench taking part
in the proceedings. The oﬂicial is to be "appointed in this
behalf by the Court to which such Bench is immediately subordi-
nate" i.e., the Chief Judicial Magistrate of the district. As this
is a petty administrative matter, the authorisation also could, it
is suggested, be left in his hands. The sub-section may be re-
vised to read :

"(2) The Chief Judicial Magistrate may authorise any
Bench of Magistrates empowered to try offences summarily
to prepare the aforesaid record or judgment or both by
means of an oﬂicer appointed in this behalf by the Chief
Judicial Magistrate, and the record or judgment so pre-
pared shall be signed by each member of the Bench taking
part in the proceedings."

No modiﬁcations are required in sub--sections (3) and (4).

Section 265(1)-
Language of re-
cord and judge-

ment.

Section 265 (2),
(3) and (4) Special

provisions,
Benches.

for

Chapter to be
shortened after
omitting referen-
oes to High Court
and jury trials.

Provisions re-
vised.

Trial to be con-
ducted by Public
Prosecutor.

opening the Case
for prosecution.

Discharge.

CHAPTER XXIII

TRIAIS BEFORE HIGH COURTS AND COURTS OF
SESSION

23.1. In this Chapter, which is the longest in the Code con-
sisting of 70 sections, the procedure for trials before High Courts
and Courts of Session is laid down in detail. A large portion of
the Chapter is devoted to various details connected with trial by
jury, like preparing and maintaining lists of jurors, issuing sum-
monses to them, choosing of jury etc, The Law Commission
has, in a previous Report} recommended that the jury system
should be abolished. Even now it is followed by Courts of
Session in very few places. We propose that all references to
jury trials should be removed from the Code. Secondly, we
have, in an earlier Chapter} recommended that the Calcutta High
Court, which at present is the only High Court exercising ordi-
nary original criminal jurisdiction in a very small category of
cases, should cease to exercise that jurisdiction. In view of these
two proposals this Chapter will be very much shortened and will
lay down the procedure for trials by Courts of Session only,
without the help of jurors or assessors.

23.2. The abolition of commitment proceedings has been
recommended in an earlier Chapter.' Formally, however, cases,
whether instituted on a police report or on a complaint, will
ordinarily4 be committed to the Court 01' Session for trial by a
Magistrate who will have gone through certain preliminaries, We
have already indicated in that Chapter in broad outline the
procedure that will have to be followed by Courts of Session on
such commitments. The detailed provisions to be inclulded in
this Chapter governing "Trials before Courts of Session" may
be as follows :--

"270. In every trial before a Court of Session the prose-
cution shall be conducted by a Public Prosecutor."

271. When the accused appears or is brought before the
Court in pursuance of a commitment of the case under section
205D, the prosecutor shall open his case by describing the
charge brought against the accused and stating by what evi-
dence he proposes to» prove the guilt of the accused.°

272. If, upon consideration of the record of the case
and the documents submitted therewith, and after hearing
the submissions of the accused and the prosecution in this
behalf, the Judge considers that there is not suﬂicient ground
for proceeding against the accused, he shall discharge the
accused and record his reasons for doing so.'

114th Report. Vol. 2. page 873.

2l'ara. 3.5 above.

3Chaz3ter XVIII above.

4 Prosecution under s. 198B is an exception.

5Present section 270.

'Cf. section 286(1). For new section 205D. see para 17.11 above.
7Cf. section 2511(2).

185

273. (1) If after such consideration and hearing as afore- Framing of chat-
said, the Judge is of opinion that there is ground for pre- 3°-
suming that the accused has committed an offence triable by
the Court, he shall frame in writing a charge against the
accused} 7

(2) The charge shall be read out in Court and explained
to the accused, and he shall be asked whether he pleads
guilty of the offence charged or claims to be tried?

274. If the accused pleads guilty, the Judge shall record
the plea and may, in his discretion, convict him thereon."

275. If the accused is not convicted under section 274, Dal"-'f°'. dP1'°5='
the Judge shall ﬁx a date for the examination of witnesses, °""°"~°'" °n°°'
and may, on the application of the prosecution, issue any
process for compelling the attendance of any witness or the
production of any document or other thing.'

Evidence of the

276. (1) On the date so ﬁxed, the Judge shall proceed pwSecuﬁon_
to take all such evidence as may be produced in support of
the prosecution.5

Plea of guilty.

(2) The Judge may, in his discretion, permit the cross-
examination of any witness to be deferred until any other wit-
ness or witnesses have been examined or recall any witness
for further cross-examination.'

277. If after taking the evidence for the prosecution, exa- Acquittal.
mining the accused and hearing the prosecution and the
defence on the point, the Judge considers that there is no
evidence that the accused committed the offence, the Judge
shall record an order of acquittal.'

278. (1) Where the accused is not acquitted under section Emrlng "P011
277, he shall be called upon to enter on his defence and °f°"°°'
adduce any evidence he may have in support thereof.'

(2) If the accused puts in any written statement, the
Judge shall ﬁle it with the record.'

(3) If the accused applies for the issue of any process
for compelling the attendance of any witness or the produc-
tion of any document or thing, the Judge shall issue such
process unless he considers, for reasons to be recorded, that
such application should be refused on the ground that it is
made for the purpose of vexation or delay or for defeating
the ends of justice."

279. When the examination of the witnesses (if any) for Argumenm
the defence is complete, the prosecutor shall sum up his case
and the accused or his pleader shall be entitled to reply."

1Cf section 251A(3).

2Cf. section 271(1) and section 251A(4).
3Cf. section 271(2) and section 25lA(5).
4 Cf. section 272 and section 251A(6).
5Cf. section 286(2) and section 25lA(7).
5Cf. proviso to section 25lA(7).

7Cf_. secti_on 289. (2) and (3).

SC). section 289(4) and section 251A(8).
°Cf. section 251A(8).

10 Cf. section 25lA(9).

11 Cf. section 290 and section 292.

Judgment.

Previous convic-
lion.

Trial of cases ins-
tituted under sec-
tion 19813.

Procedure in
cases instituted
under section
198B.

186

280. (1) Thereafter, the Judge shall give a judgment in
the case.

(2) If the accused is convicted, the Judge shall, unless
he proceeds in accordance with the provisions of section 562,
hear the accused on the question of sentence and then pass
sentence on him according to law.'

281. In a case where a previous conviction is charged
under the provisions of sub-section (7) of section 221 and
the accused does not admit that he has been previously con-
victed as alleged in the charge, the Judge may, after he has
convicted the said accused under section 274 or section 280
take evidence in respect of the alleged previous conviction,
and shall record a ﬁnding thereon."

23.3. In our discussion of section 198B, we have recom-
mended3 that apart from five sub-sections which deal with the
conditions requisite for initiating proceedings under that section,
the remaining provisions of the section should be put in this
Chapter as they are special provisions governing the trial of these
Cases by Courts of Session. This section will be as follows :--

"282. (1) A Court of Session taking cognizance of an
offence under sub-section (1) of section 198B shall try the
case under this chapter as if it had been committed to it by a
Magistrate taking cognizance of the offence upon a com-
plaint 2

Provided that the person against whom the offence is al-
leged to have been committed shall, unless the Court, for
reasons to be recorded, otherwise directs, be examined as a
witness for the prosecution.'

(2) Every trial under this section shall be held in
camera if either party thereto so desires or if the Court so
thinks ﬁt to do.'

(3) If, in any such case, the Court discharges or acquits
all or any of the accused and is of opinion that there was
no reasonable cause for making the accusation against them
or any of them, it may, by its order of discharge or acquittal,
direct the person against whom the offence was alleged to
have been committed, where such person was at the time of
such commission a Minister, to show cause why he should
not pay compensation to such accused or to each or any of
such accused, when there are more than one.'

(4) The Court shall record and consider any cause which
may be shown by the person so directed, and if it satisﬁed
that there was no reasonable cause for making the accusation,
it may, for reasons to be recorded, direct that compensation
to such amount not exceeding one thousand rupees, as it

1 Cf. section 309. The requirement about hearing the accused on the
question of sentence before passing sentence has been added as a desirable
DI'0VlSl0l'l.

2Cf. section 310 and section 25lA(l3).

3See para. 15.160 above.

'Cf. section l98B(S).

50'. section 198B(5A).

"Cf. section 198B(6). _ ., _'___

187

may determine, be paid by such person to the accused or to
each or any of them}

(5) All compensation awarded under sub--section (4) shall
be recovered as if it were a ﬁne?

"(6) No person who has been directed to pay compen-
sation under sub--section (4) shall, by reason of such order,
be exempted from any civil or criminal liability in respect of
the complaint made under this section:

Provided that any amount paid to an accused person
under this section shall be taken into account in awarding
compensation to such person in any subsequent civil suit
relating to the same matter."

(7) The person who has been ordered under sub-section (4)
to pay compensation may, in so far as the order relates to the
payment of compensation, appeal from the order to the High
Court.'

(8) When an order for payment of compensation to an
accused person is made in a case which is subject to appeal
under sub--section (7), the compensation shall not be paid
to him before the period allowed for the presentation of the
appeal has elapsed, or, if an appeal is presented, before the
appeal has been decided."-'

1Cf. section 198B(7).
'-?C_f. section 198B(8).
3Cf. section l98B(9).
' Cf. section 198B(10).
5Cf. section 198B(11).

Procedure when
accused is a cor-
poration or asso-
ciation.

Penal provisions
applying to com-
panies and asso-
ciations.

Service of sum-
mons on corpo-
rations :

section 69 (3).

CHAPTER XXIV
GENERAL PROVISIONS AS TO INQUIRIES AND TRIALS

24.1. Before considering in detail the various general provi-
sions contained in this Chapter as to inquiries and trials, it is
necessary to deal with a lacuna in the Code as regards the pro-
cedure when "persons" other than individuals are accused of
offences, Section 11 of the Indian Penal Code states that the
word "person" includes any company or association or body of
persons, whether incorporated or not. The deﬁnition in section
3(42) of the General Clauses Act, 1897, is almost the same
except that, instead of "persons", it refers to "individuals".
While the context of most of the provisions of the Indian
Penal Code referring to a person being punishable for doing or
failing to do a speciﬁc thing would normally exclude their appli-
cation to a body of individuals, there is no doubt that a com-
pany or association can be prosecuted for certain oﬂences under
the Indian Penal Code and other laws which are punishable with
ﬁne.

24.2. Certain special laws speciﬁcally provide for the appli-
cation of the penal provisions contained in them to companies
and associations. The standard form which has been adopted
for this purpose in recent legislation1 runs as follows :--

"If the person committing an offence under this Act is a
company, the company as well as every person in charge of,
and responsible to, the company for the conduct of its busi-
ness at the time of the commission of the offence shall be
deemed to be guilty of the oﬁence and shall be liable to be
proceeded against and punished accordingly etc.

Explanation--For the purpose of this section--

(a) 'company' means any body corporate, and includes
a ﬁrm or other association of individuals; and

(b) 'director' in relation to a ﬁrm, means a partner in
the ﬁrm."

24.3. 'Provision is made in section 69, sub-section (3) as to
how service of a summons is to be eﬂected on an incorporated
company or other body corporate. This may be done either
by_ serving it personally on the secretary, local manager or other
principal oﬂicer of the corporation or by registered post letter
addressed to the chief_ oiﬁcer of the corporation in India. In
the latter case, service is deemed to have been effected when the
letter would arrive in ordinary course of post. The Code is,
however, silent as to how the corporation is to appear in court'

}e.g.. section 230 0f_ the Foreign Exchange Regulation Act, 1947.
s.egtti1<l>n'Il7 dof the Prevention of Food Adulteration Act. 1954. section 88'
tion 52 .§?:%eM££'i'3 8235315.? '°°1§"'é" "° °' "-'° °""°""' "'°" 19"' '°°'
Industrial Development Act' 19cé,2' v 5 and section 61 of the Maliaraslitra

:89

through a representative, how the person who may come ﬁozrward
as a representative of the corporation is to be recognised as
such by the court, what will happen if after due service no one
appears in court as the authorised representative of the corpora-
tion, etc.

24.4. In the code of 1882, section 69 did not contain a
sub-section (3); this was added for the ﬁrst time in the Code
of 1898. It was brieﬂy explained in the Statement of Objects
and Reasons that "this amendment provides for service of
summons on a company or other body corporate in such cases
as public nuisance under Chapter X". The possibility of a
corporation being summoned to answer to a charge of an offence
before a criminal court was apparently not visualised and conse-
quently no other provision was made in the Code for this pur-
pose.

24.5. It appears that this lacuna has not given rise to any
serious practical difficulty in the courts. In a Calcutta case,'
however, where a conviction had to be set aside and the case
remanded because the summons was served on one individual
and there was no evidence to show any relationship between
him and the company, these observations were made 1--

"The difﬁculty is Caused by the circumstance that while
the Indian Penal Code, as well as the General Clauses Act,
provides that a person includes a company and there are
decisions that a company can be prosecuted for an offence
punishable with ﬁne, there is no clear provision in any
law as to the proper representative of the company when a
company has to be prosecuted for an offence under the
Indian Penal Code or an offence under other Acts like the
Bengal Municipal Act.

In view of the terms of section 69(3), Criminal Proce-
dure Code, showing that summons on a company may be
served on the Secretary or the local manager or other
principal officer, it may be held by analogy that the secretary
or the local manager or the principal oﬂicer of the company
will represent the company in such a prosecution.

Accordingly, when summons is issued against a company,
some competent representative like the secretary, local
manager or other principal otﬁcer must be described both
by name and by designation as representing the company
and there must be some evidence of his representative
character. Only in such a case the conviction would be
proper".

24.6. The evolution of the law on the subject in England
shows how certain diﬂiculties were experienced in this respect
to start with and how those were gradually surmounted. First
it was felt that a corporation "having no muscles." could not act
except through the individuals who were its servants. In the
last centnrv the courts got over this difficulty, in cases of non--
feasance, by emphasising that an artiﬁcial legal entity is not

gt)-«v:Iarpau1ix'y v. Om Khouu, Au.

1 Commissiuner of South Dum Dum
1956 Cal. 237. 238. Para 5 (S. K. Fin

History of section
69(3).

Lacuna noticed in
I Calcutta case.

Evolution of law
in England

Corporations
punishable
with fine.

only

190

incapable of failing to act,' and in_ c_ascs of nuisance (5-8-
obstructing the highway), on the principle that even at common
law it was a crime of vicarious responsibilit .2 But the major
development in juristic approach to the pro lem took place in
this century.

In a judgment relating to civil liability in tort, the House
of Lords, taking a step which extended beyond the boundaries
of vicarious liability, enunciated the doctrine that the active
and directing will of a corporation, which was "an abstraction",
must be sought in the person of somebody who "for some pur-
poses may be called an agent, but who is really the directing
mind and will of the corporation, the very ego and centre of
the corporation."3 This ﬁction was later extended to criminal law.

In 1939, it was held' that a corporation could be indict-
ed for a libel. In 1944, it was held?' that a company
alongwith its managing directors and others, could be indicted
for conspiracy, the fraud of the director being imputed to the
company. The action of the director, it was stated, "is the
very action of the company itself". The objection that a cor-
poration could not commit crimes because it would be ultra
vires for it to authorise the commission of crimes, was also
overruled." \

Because the corporation has no mind and, therefore, no
guilty mind, it was thought that it could not be held liable for
any crime involving intention, knowledge or deceit. This diﬂi-
culty was solved, ﬁrst by holding a corporation liable for crimes
of absolute prohibition, next by holding it liable in cases where
vicarious criminal liability was permissible, and lastly, by im-
puting the state of mind of the directors to the corporation.
Thus, the scope of criminal liability of corporations widened in
course of time. It was held that even a local authority could
be convicted of a crime.' In 1951, the Yorkshire Electricity
Board was ﬁned £ 20,000 for committing breach of a Defence
Regulation by unauthorised building.'

24.7. As it is impossible to imprison a corporation practically
the only punishment which can be imposed on it for committing
an offence is ﬁne. If the penal law under which a corporation
is to be prosecuted does not provide for a sentence of ﬁne, there
will be a difficulty. As aptly put by a learned writer,°----

"Where the only punishment which the court can
impose is death, penal servitude, imprisonment or whipp-
ing, or a punishment which is otherwise inappropriate

' R. v. Birmingham & Gloucester Rlv. (1840) 20.13. 47.

2 Great Norlh of England Rly., (1846) 9 Q.B. 315; 115 BR. 1294.

3l.enrmrdr' Carrying Co. Ltd. v. Asiatic Petroleum Co. Ltd.. (1915)
AC. 705. 713 (per Lord Haldane).

4 Triplex Safety Glass Co. Ltd. v. Lansgage Safety Glasir Ltd. (1939)
2 All. E. R. 613. 620. 621 (C.C.A.).

5R. v, I.C.R. Haulage Ltd. (1944) KB. 551; (1944) 1 All. E. R. 691.

0Harker v. Brittanic Assurance Co. (1928) 1 KB. 766.

7 Wursel v. Houghton Main Home Delivery Service, (1937) I K). 380.

3Glanvv'lle Williams. Criminal Law (1961). Due I64.

'Welsh, "Criminal Liability of Corporations". (1945) 62 L.Q.R_ -363,

191

to a body corporate, such as a declaration that the offend-
er is a rogue and a Vagabond, the court will not stultify
itself by embarking on a trial in which, if the verdict of
guilt is returned no effective order by way of sentence
can be made".

In order to get over this difﬁculty we recommend that a provi-
sion should be made in.the Indian_ Penal Code e.g. as section
62 in Chapter III relating to punishments, on the following

lines 2--

"In every case in which the offence is only punish-
able with imprisonment or with imprisonment and ﬁne
and the offender is a company or other body corporate
or an association of individuals. it shall be competent
to the Court to sentence such offender to ﬁne only".

24.8. Since a corporation cannot be physically present in
court, procedural difﬁculties may arise which in England have
been got over by legislation. Thus at common law, a corpora-
tion could not be committed for trial; consequently it was pro-
vided by statute that in place of "commitment" there would be
an order empowering the prosecutor to prefer a bill of indict-
ment against the offending corporation. Statute also provides
for the appearance in court through an authorised representa-
tive of the corporation to answer to the charge brought against it.

24.9. We have noticed above that in recent legislation some
penal provisions are expressly made applicable to companies
as well as to unincorporated associations of individuals. The
Code. however, contains no provisions at all in regard to such
associations. Even section 69(3) which provides for the ser-
vice of a summons covers only corporate bodies. Societies
registered under the societies Registration Act, 1860, though not
formally incorporated, possess some of the attributes of a cor-
poration, and it appears desirable that they should be treated
on a par with corporations in criminal proceedings.

24.10. We accordingly recommend the insertion of a new
section at the beginning of Chapter XXIV of the Code. The
gecition (which is provisionally numbered 336) may be as
ol ows :- '

"336. (1) In this section, "corporation" means an
incorporated company or other body corporate, and in-
cludes a society registered under the Societies Registration
Act, 1860.

(2) Where a corporation is the accused person of
one of the accused persons in an inquiry or trial, it may
appoint a representative for the purpose of the inquiry
or trial. Such appointment need not be under the real
of the corporation.

(3) Where a representative of a corporation appears.
any requirement of this Code that anything shall be done
in the presence of the accused or shall be read or stated
or explained to the accused, shall be construed as a
requirement that that thing shall be done in the presence

Procedure in

English Law.

Registered socie-
ties.

New section 336
recommended.

Procedure when
corporation or a
registered society
is an accused.

Section 337----sub-
section (1) ana-
iysed.

192

of the reprcsentaﬁve or read or stated or explained to the
representative, and any requirement that the accused shall
be examined, shall be construed as a requirement that the
representative shall be examined.

(4) Where a representative of a corporation does not
appear, an such requirement as is referred to in sub-sec-
tion (3) s all not apply.

(5) Where a statement in writing purporting to be sign-
ed by the managing director of the corporation or by any
person (by whatever name called) having, or being one
of the persons having, the management of the affairs of
the corporation, to the effect that the person named in
the statement has been appointed as the repre-
sentative of the corporation for the purposes of this sec-
tion, is ﬁled, the Court shall unless the contrary is proved,
presume that such person has been so appointed.

(6) If a question arises as to whether any person
appearing as the representative of a corporation in an
inquiry or trial before a court is or is not such represen-
tative the question shall be determined by the Court".

24.11. Section 337 deals with the tender of pardon to an
accomplice. Sub--section (1), which is the main provision and
a lengthy and complicated one, lays down (1) the offences in
respect of which pardon can be tendered; (ii) the Courts which
can tender pardon; and (iii) the stage at which pardon can
be tendered.

(i) The offences in respect of which the power can be ex-
ercised fall in three groups, namely :--

(a) any offence triable exclusively by the High Court or
Court of Session;

(b) any oﬁence punishable with imprisonment which
may extend to seven years; and

(ii) The Magistrates who can tender pardon are District
Magistrates, Presidency Magistrates, Sub-Divisional Magistrates
and Magistrates of the ﬁrst class.

be tendered at any stage of (a) investiga-

(iii) Pardon can
(b) inquiry into the oﬂfence; or (c) trial

tion into the offence;
of the offence.

Under the proviso, however, where the offence is under inquiry
or trial, no magistrate of the ﬁrst class other than the District
Magistrate, can exercise the power unless he is the inquiring or
trying Magistrate, and where the offence is under investigation
no such magistrate can' exercise this power iunlesshe has juris-
diction in the place where the dﬁence might be inquired into or

193

tried and sanction of the District Magistrate has been obtained.
In other words, while the power of the District Magistrate 1S
unlimited as regards the stage, any other ﬁrst class magistrate
can tender pardon---

(a) during investigation, only if he has territorial jurisdic-
tion in reard to the offence and the sanction of the
District Magistrate has been obtained, and

(h) during inquiry or trial, only if he is the inquiring or
trying magistrate.

I«

24.12. It may be noted that the section originally enacted
in 1898 was different in all these respects. The power was then
vested in the District Magistrates, Presidency Magistrates and
First Class Magistrates inquiring into the offence and any other
magistrate who had obtained the sanction of the District Magis-
trate. As regards the offences, it was conﬁned to those triable
exclusively by the High Court or Court of Session. Lastly, as
regards the stage of tender of pardon, it did not make elaborate
provisions as at present dealing separately with investigation,
inquiry and trial. During the last 70 years, the section has
been made much more elaborate, and as regards oﬂences, its
scope has been enlarged more than once. In 1923, offences
punishable with imprisonment which may extend to 10 years.
an oﬂence punishable under the latter part of section 211, and
the offences under sections 216A, 369, 401, 435 and 477A of
the Penal Code were added. Then, in 1955 the limit of 10
years' imprisonment was reduced to 7 years. and the offences
under sections 161, 165 and 165A of the Penal Code were
included. Apparently by oversight, while the reference to section
211 was omitted in 1955 as no longer necessary, reference to
sections 216A, 369, 401, 435 and 477A were kept, though all
these offences are punishable with imprisonment which may ex-
tend to 7 years.

24.13. The question whether an oﬁence under section 409
of the Penal Code, which is punishable with imprisonment for
life or with imprisonment which may extend to 10 years and is
triable by the Court of Session, at Presidency Magistrate or a
Magistrate of the ﬁrst class, was an offence in respect of which
pardon could be tendered under section 337 (as it stood before
the amendment of 1955), was raised before the Supreme Court'.
The argument was that, where an oﬂence was not exclusively
triable by the Court of Session, pardon could be granted onlv if
it was punishable with imprisonment up to 10 years. but not if
a higher punishment like imprisonment for life was provided for
the offence. The Supreme Court repelled this contention, observ-
ing that the very object of section 337 was to allow pardon to
be tendered where a grave offence was alleged to have been
committed by several persons so that with the aid of the evidence
of the approver the offence could be brought home to the rest.
The gravity of the offence was, of course, to be determined with
reference to the sentence awardable for the offence. 'The State
Counsel's suggestion was that section 337 could be reasonably
interpreted to mean that even where the offences are punishable

1State v. Ganerhwara Rao, AIR. 1963 SC. 1850.

Changes in the
section.

A decision of the
Supreme Court.

Amendment to

194

with imprisonment exceeding 10 years, pardon could be granted.
The Supreme Court, while observing that this interpretation might
fulﬁl the object of the section, namely, to embrace within it the
graver offences, stated that it wished to express no opinion on
it. It held that, since the alternative punishment for the offence
under section 409 was imprisonment which may extend to 10
years, and since section 337 did not expressly say that the only
punishment should be imprisonment which may extend to 7 years,
the case was covered by section 337.

24.14. There is, thus, an ambiguity in the expression "any

remove ambiguitywffence punishable with imprisonment which may extend to

Offences triable
by Courts of Spe-
cial Judges.

Offences to which
section 337 (1)
should_apply.

Oﬁences against
customs and
foreign exchange
laws.

seven years". We recommend that the ambiguity should be
removed by adding the words "or with a more severe sentence",
so as to include offences for which the maximum term of impri-
sonment prescribed in the Penal Code or other law is more than
7 years (e.g. 10 years or 14 years) or imprisonment for life.

24.15. Offences punishable under sections 161, 165 and 165A
of the Penal Code were brought within the scope of section 337
of' the Code of Criminal Procedure (Amendment) Act, 1955.
The Criminal Law Amendment Act, 1952 which provided for
the appointment of Special Judges equal in rank to Sessions
Judges, had made these offences and the offence punishable
under sub-section (2) of section 5 of the Prevention of Corrup-
tion Act, I947, triable exclusively by the Courts of such Special
Judges. When this Act was subsequently amended in 1955 by
the inclusion of offences under sections 162, 163 and 164 of
the Penal Code within this list, there was no corresponding amend-
ment of section 337(1) of the Criminal Procedure Code. These
offences are not in any way different from the offences punish-
able under sections 161 and 164 of the Penal Code, particularly
in regard to the desirability of obtaining the evidence of an
agyrover. We. therefore, recommend that a uniform principle
may be adopted, and that all offences which are triable exclusively
by the court of a Special Judge appointed under the Criminal
Law Amendment Act, 1952, may be brought within the scope
of section 337(1) of the Code.

24.16. As indicated above,1 the reference to sections 216A,
369, 411, 435 and 477A of the Indian Penal Code is super-
ﬂuous, as the offences under these sections are punishable with
imprisonment for seven years. The reference to the High Court
in the opening part of section 337( 1) is also unnecessary, in
view of our recommendation for abolition of the ordinary origi-
nal criminal jurisdiction of all High Courts. We recommend
that this section should apply to any offence triable exclusively
by the Court of Session or by the Court of a Special Judge
appointed under the Criminal Law Amendment Act, 1952, and
to any offence punishable with imprisonment which may extend
to seven years or with a more severe sentence.

24.17. In a recent case? which came up before the Supreme
Court in appeal, a woman who acted as a carrier in a conspiracy

15¢: para 24.2 above.
2Laxmipat Choraria v. T he State of Maharashtra. A.I.R. 1968 S.C.
938. 945.

195

to smuggle gold into India had, in her statements made to the
customs otﬁcials investigating the case, admitted her role. as a
participant in the crime. But, instead of being included m_the
array of accused persons and sent up for trial, she was examined
as a witness against her former associates. The question arose
whether she was competent witness. While holding that she was,
the Supreme Court observed---

"It is, however, necessary to say that where section
337 or 338 of the Code applies, it is always proper to
invoke those sections and follow the procedure there laid
down. Where these sections do not apply, there is the
procedure of withdrawal of the case against an accom-
plice. To keep the sword hanging over the head of an
accomplice and to examine him as a witness is to en-
courage perjury. Perhaps it will be possible to enlarge
section 337 to take in certain special laws dealing with
customs, foreign exchange etc. where accomplice testi-
mony will always be useful and witnesses will come for-
ward because of' the conditional pardon offered to them."

We have given our respectful consideration to this observa-
tion of the Supreme Court but it does not seem practicable to
select from among the large number of special laws creating
socio--economic offences those which are suﬂiciently grave to be
brought within the scope of section 337. The result of such
inclusion will be that every case pertaining to such an offence
where tender of pardon is made, will have to be tried by the
Court of Session which may not be feasible.

24.18. The next question to be considered is whether, in
view of separation, the power to tender pardon under this section
should be given to Judicial Magistrates or to Executive Magis-
trates, or to both to be exercisable at different stages. It is
clear that when the stage of inquiry or trial has been reached, the
power should be exclusively with the Judicial Magistrates and
the Executive Magistrates need not come into the picture. We
are of the opinion that the power to grant pardon even at the
stage of investigation should be conﬁned to Judicial Magistrates
as the matter relates primarily to prosecutions in courts. We
propose that _at this stage the power should be with the Chief
Judicial Magistrate of the district. Once the inquiry or trial
has commenced, the Magistrate holding the inquiry or trial would
normally be exercising the power to tender pardon but the Chief
Judicial Magistrate should also have the power. Accordingly,

we propose that the Magistrate competent to tender pardon
under section 337 should be--

(a) a Presidency Magistrate or _Chief Judicial Magistrate,
gtldany stage of the investigation, inquiry or trial,

(b) a Judicial Magistrate of the ﬁrst class, while inquir-

ing into or trying an offence, at any stage of the
inquiry or trial.

24.19. A few minor changes are necessary in b. ti
(IA). It is desirable to provide for a clear record osfuncfteconcly

Section 337 (1)
and Magistrates
empowered to
grant pardon.

Section 337(lA).

Section 337(2A).

Section 337(3).

Revised section
recommended.

Tender of pardon
to accomplice.

196

the reasons for tendering pardon but also of the fact whether the
tender was accepted or not accepted. Secondly, there is no
justification tor the proviso which requires the accused to pay
for a copy of the record unless the magistrate for special reason
exempts him from payment. The proviso should be omitted.

24.20. Under sub-section (2A) every approver's case
whether or not it relates to an offence triable by the Court of
Session has to be committed to that Court when the Magistrate,
after recording the evidence of the approver under sub-section
(2) is satisﬁed that there are reasonable grounds for believing
that the accused is guilty of an offence. Sub-section (2B), how-
ever, lays downﬁa different procedure in cases where the offence
is triable by the Court of Special Judge appointed under the
Criminal Law Amendment Act, 1952. In view of the abolition
of commitment proceedings, we consider that the procedure
should be made uniform and there is no need to require the
Magistrate to scrutinise the evidence of the approver and that
of the other witnesses produced by the prosecution. It is desir-
able that every approver's case should be committed to the Court
of Session whether or not the case is exclusively triable by that

Court' . i _;.-;i_-" "

24.21. Under sub-section (3), an approver, unless he is
already on bail, has to be detained in custody until the
termination of the trial. The trying Magistrate or Sessions
Court has no power to release the approver on bail. Though
this may seem harsh, particularly where the trial is prolonged,
we do not think the provision should be changed. In extra-
ordinary cases of hardship, the approver can approach the
High Court whose powers as to bail are very wide,

It is fairly clear that the words "unless he is on bail" do not
prevent a Court from cancelling the bail previously granted to
an approver and the general provisions as to cancellation or
modiﬁcation of bail apply to an approver as they apply to the
accused persons under trial.

24.22. We recommend that section 337 may be revised as
follows :--

"337. (1) With a View to obtaining the evidence of
any person supposed to have been directl or indirectly
concerned in or privy to any offence to which this section
applies, the Chief Judicial Magistrate or a Metropolitan
Magistrate at any stage of the investigation or inquiry
into, or the trial of, the offence, and a Magistrate of the
ﬁrst class inquiring into or trying the oﬂence, at any
stage of the inquiry or trial, may tender a pardon to such
person on condition of his making a full and true dis-
closure of the whole of the circumstances within his know-
ledge relative to the offence and to every other person
concerned, whether as principal or abettor, in the com-
mission thereof.

(2) This section applies to--

(a) any offence triable exclusively by the Court of
Session or by the Court of a Special Judge

197

appointed under the Criminal Law Amendment
Act, 1952; and

(b) any offence punishable with imprisonment which
may extend to seven years or with a more
severe sentence.

(3) Every Magistrate who tenders a pardon "under
sub-section (1) shall record--

(a) his reasons for so doing, and

(b) whether the tender was or was not accepted

by the person to whom it was made;

and shall on application made by the accused, furnish
him with a copy of such record free of cost.

(4) Every person accepting a tender of pardon made
under sub-section (l)----

(a) shall be examined as a witness in the Court of
the Magistrate taking cognizance of the oﬁence
and in the subsequent trial, if any;

(b) shall, unless he is already on bail, be detained
in custody until the termination of the trial.

(5) Where a person has accepted a tender of pardon
made under sub-section (1) and has been examined under
sub-section (4), the Magistrate taking cognizance of the
offence shall, without making any further inquiry in the
case, commit it for trial--

(a) where the offence is triable exclusively by the
Court of a Special Judge appointed under the
Criminal Law Amendment Act, 1952, to that
Court.

(b) in any other case, to the Court of Session.

24.23. Under section 338, the Court of Session may at any
time after commitment of the case, but before passing judg-
ment, either tender pardon itself, or may "order the committing
Magistrate or the District Magistrate" to tender pardon. Though
this power is rarely resorted to by a Court of Session, it will
be useful to retain the section. But in view of the abolition of
commitment proceedings, the Court of Session need not be
authorised to direct "the committing Magistrate" or any other
Magistrate to tender pardon. The section may be revised to read
as follows :--

"338. At any time after commitment of a case but
before judgment is passed, the Court of Session may,
with the view to obtaining at the trial the evidence of any
person supposed to have been directly or indirectly con-
cerned in or privy to, any such oﬁence, tender a pardon
on the same eondiﬁon to such person".

Section 338.

Power of Court
of Session to ten-
der pardon.

198

Section 339 and 24.24. Sections 339 and 339A lay down the procedure for

339A-1|'r0du¢- prosecuting a person who, after accepting a pardon tendered

my' under section 337 or 338, fails to comply with the condition on
which the tender was made. Section 339 as originally enacted
was found to be sketchy and unsatisfactory in many respects and
was, therefore, amended, and ampliﬁed by the addition of section
339A, by the Amending Act of 1923. A certiﬁcate by the
Public Prosecutor that the approver has, either by wilfully con-
cealing anything essential or by giving false evidence, broken the
condition of his pardon, is an essential requisite for prosecuting
him for the offence in respect of which the pardon was tendered
or for any other offence of which he appears to have been guilty
in connection with the same matter.

Prosecution for 24.25. it is by no means clear whether the offence of giving
ﬁ:'J"'pYr(fS';':u§':rt,'; false evidence is covered by the underlined words. oﬂenco
ce,,iﬁcm_ which the approverymight have COI11£IlllIcd,'clthcI' during his
examination as a witness by the Magistrate or during his ex-
amination by the Sessions Judge, could hardly be said to be an
offence committed "in connection with the same matter" as the
original offence. But in an Oudh case', where sanction of the
High Court under sub-section (3) of section 339 was asked for
by the Sessions Judge who had forwarded the papers to the High
Court, it was held that sanction for the prosecution could be
granted only if a certiﬁcate from the Public Prosecutor under

sub--section (1) was produced.

When prosecu- 24.26. In a Nagpur case'', the approver accepted the tender

"ﬁn léof Dcriury of pardon and was immediately examined as a witness, but

ghgg b' 1a""' denied that he knew anything about the murder. At a subse-
quent exaniination he gave an account of the murder which
agreed with the account given by the prosecution, but a few
days later, he again denied all knowledge and swore that his
previous statement was false and given at the instance of the
Police Inspector. After the sessions trial had ended in the
conviction of two persons for murder, the Public Prosecutor gave
his certiﬁcate under section 339(1) to enable the approver to
'be tried for the oﬂence of murder or for any other offence com-
mitted by him in connection with the same matter. When, with-
out prosecuting him for any such oﬂence, the Local Government
applied under section 339(3) for the sanction of the High Court
to prosecute him for perjury, the Court observed 2--

"The reasons for which a High Court should grant or
refuse sanction to the prosecution of a pardoned approver
for perjury seem to be indicated with fair certainty by the
fact of the sanction being necessary in that case only. It
is clearly not necessary that such a person should be punish-
ed for perjury if he can be punished sulﬁciently both for
that and the original crime on a conviction for that original
crime. Sanction therefore ought to be refused unless it
appears that a conviction for the original crime is unlikely
or a prosecution for it undesirable for any other reason,
or that on a conviction for the original crime the sentence
that could be passed would be too light to cover both

1 Emperor v. Ghasitey, A.I.R. 1929 Oudh 527.
2 Gambhir Bhaiua, A.I.R. 1927 Nagpur. 189, 192.

199

offences. Before sanction can be granted, therefore, it must
be shown that there is no intention of prosecuting the
approver for the original crime, or that he has already been
prosecuted for it and either has been acquitted or has
received or is likely to receive such a light sentence that
it is not suilicient to cover his further crime of perjury."

Rejecting the application for sanction as premature, the Court
added that the person's acquittal for murder would not of itself
be any bar to his conviction for perjury. If such prosecution
should tail, that failure of itself would be no reason why another
application for sanction to prosecute the accomplice for perjury
should not be made. The Court also observed that while the
prosecution for murder would be by the police on the basis
of a certificate from the Public Prosecutor, section 339(1) of
the Code did not cancel section 476. It merely imposed an
additional condition essential to the institution of a prosecution
for perjury by an approver and, even when that condition is
satisﬁed, the prosecution could still be initiated only on a com-
plaint by the Sessions Court or the High Court.

24.27. The position is also obscure in one other aspect.
Under the proviso to sub--section (1), the approver is entitled
to plead at such trial that he has complied with the condition
upon which the tender of parden was made to him. The proce-
dure for giving effect to such a plea is indicated in section 339A.
The trial of the approver for the original offence must neces-
sarily be distinct from his trial for perjury. While the first
would without doubt be regarded as a trial "under section 339",
the second might not be so regarded. It is obviously desirable
that doubts on these points should be removed by a proper
rewording of the two sections.

24.28. lt will be readily conceded that the offence of
perjury committed by an approver stands on a special footing
and prosecutions for that offence require a certain amount of
screening. it does not, however, appear to be necessary that
there should be, ﬁrst, a certiﬁcate of the Public Prosecutor
under section 339(1), secondly, the sanction of the High Court
under section 339(3), and thirdly, a complaint under section
l95(l)(b) (after an inquiry, if necessary under section 476)
by the Court before which the offence was committed or by
the High Court. The certiﬁcate of a responsible law oﬂicer
like the Public Prosecutor who has been in charge of the
original trial and consequently fully acquainted with the facts
and circumstances of the case might even be regarded as
sufficient guarantee that the approver is prosecuted for perjury
only in appropriate cases. As indicated in the judgment cited
above, such a prosecution would be launched in the majority
of cases only when the circumstances do not justify a prosecu-
tion of the approver for the original offence or when that prose-
cution has, for some reason, failed. After careful consideration,
however, we are of the view that it would be sufﬁcient to provide
for a certiﬁcate of the Public Prosecutor and sanction of the
High Court under section 339 and that it is not necessary
to complicate and delay the prosecution by insisting upon a
prior inquiry under section 476, followed by a complaint under
section 195(1)(b).

Is trial for per-
jury under sec-
tion 339?

Applicability of
sections 195 and
476 to offence of
perjury by appro-
ver.

Section 339(2).

Section 339A.

Revised section
339 recommended.

Trial of persons
not complying
with condition
of pardon.

200

24.29. Section 339(2) provides that "the statement" made
by a person who has accepted a tender of pardon may be given
in cvidence against him at a trial referred to in section 339(1).
This gives an impression that there is only one such statement
which is generally not the case. Judicial decisionsl make it
clear that the statements referred in sub-section (2) are the
statements made by the approver after he has accepted the
tender of pardon. As pointed out in a Lahore case} the sub-
section "makes, by necessary implication, a statement of this
nature an exception to the rule of evidence enacted in section 24,
Indian Evidence Act, so far as that section excludes confessions
made as the result of the inducement of pardon". Such state-
ments could have been recorded by a Magistrate under section
164 during investigation or by the Court during the inquiry or
trial under section 337(2), and notwithstanding that they were
or might have been induced by the tender of pardon, they are
made admissible in evidence under section 339(2). Despite
the loose wording, this section cannot be held to cover other
statements made by the approver after accepting the tender of
pardon, e.g., statements made to a police oﬂicer or to a private
person. Their admissibility in evidence will be decided under
the general pr-ovisions of the Evidence Act.

24.30. The provisions contained in section 339A are supple-
mentary to those contained in section 339. In fact, it will be
conducive to clarity and easier understanding if the provisions
are put together in one section. The reference to a High Court
in sub--section (1)(a) and the reference to the jury and to the
Magistrate in sub-section (2) will have to be omitted as being
unnecessary or superﬂuous.

24.31. The revised section 339, after including the provisions
of section 339A, may be as follows:

"339. (i) Where in regard to a person who has accepted
a tender of pardon made under section 337 or section 338,
the Public Prosecutor certiﬁes that in his opinion such
person has, either by wilfully concealing anything essential
or by giving false evidence, not complied with the condition
on which the tender was made, such person may be tried
for the offence in respect of which the pardon was so tender-
ed and any other offence of which he appears to have been
guilty in connection with the same matter, and also for the
offence of giving false evidence:

Provided that such person shall not be tried jointly with any
of the other accused;

Provided further that such person shall not be tried for the
offence of giving false evidence except with the sanction of the
High Court, and nothing contained in section 195 or in section
476 shall apply to that offence.

1Rambharosa, A.I.R. 1944 Nag. 105 (F3): Horilal, A.I.R. 1940 Nag.
218: Miral, A.I.R 1943 Sind. 166, 169.

2Ram Nath v. Emper-or_ 29 Cr. LJ. 413; A.I.R. 1928 Lah. 320(2), at
page 322.

___--_.... 4

201

(2) Any statements made by such person after accepting the
tender of pardon and recorded by a Magistrate under section 164
or by a Court under sub-section (3) of section 337 may be given
in evidence against him at such trial.

(3) At such trial the accused shall be entitled to plead that
he has complied with the condition upon which such tender was
made in which case it shall be for the prosecution to prove that
the condition has not been complied with.

(4) At
(a)

such trial, the court shall--

if it is a Court of Session, before the charge is read
out and explained to the accused, and

if it is the Court of a Magistrate, before the evidence
of the witnesses for the prosecution is taken,

(b)

ask the accused whether he pleads that he has complied with the
condition on which the tender of pardon was made.

(5) If the accused does so plead, the Court shall record the
plea and proceed with the trial. It shall, before passing judgment
in the case, ﬁnd whether or not the accused has complied with
the condition of the pardon, and, if it ﬁnds that he has so com-
plied, it shall, notwithstanding anything contained in this Code,
pass judgment of acquittal." I

24.32. Section 340 consists of two sub-sections which have
no connection with each other. Sub-section (1) deals with
the right of any person accused of an offence or against whom
proceedings are instituted under the Code to be defended by a
pleader. Sub-section (2) deals with the right of persons against
whom certain proceedings are instituted to olfer themselves as
witnesses, which is an entirely different matter. This should be
dealt with in a separate section, a convenient place for which
would be after section 342A.

24.33. Sub-section (2) mentions proceedings under section
107 but leaves out proceedings under sections 108, 109 and 110
which are in the same category. We are of the view that persons
against whom such proceedings are instituted should also have a
right to offer themselves as witnesses. In their case, however, it
should be provided that their failure to give evidence should not
be made the subject of any comment or give rise to any adverse
presumption: vide clause (b) of the proviso to section 342A.

We recommend that sub-section (2) of section 340 be
omitted, and a new section 342B added after 342A reading as
'follows :--

"342B. Any person against whom proceedings are insti-
tuted in any Criminal Court under Chapter VIII, Chapter X,
Chapter XI, Chapter XII or Chapter XXXVI, or under sec-
tion 552, may offer himself as a witness in such proceedings :

Provided that in proceedings under section 108, section
109 or section 110, the failure of such person to give evidence
shall not be made the subject of any comment by any of the

Section 340.

Sub-section
amended
ampliﬁed.

(2)
and

Legal aid to
accused at ex-
pense of the State
in certain cases-
present position.

Recognised as a
"human right" by
International
covenant.

Gideon's Trum-
pet"case.

202

parties or the court or give rise to any presumption _against
him or any other person proceeded against together with him
at the same inquiry."

24.34. Though section 340 provides that the accused may be
represented by a pleader, it does not give him any right to legal
aid at the expense of the State. Assistance of counsel at the ex-
pense of the State is at present provided for by rules or adminis-
trative orders which vary from State to State. Almost all States
provide for such assistance in capital cases. In Maharashtra and
Gujarat it is provided in all Sessions trials; and in Kerala it is
provided also for all trials before District Magistrates.

24.35. It can hardly be disputed that, in a trial for a serious
offence, the assistance of counsel on both sides is essential for a
just decision of the case. Development in the ﬁeld of human
rights has been towards the recognition of the right of the accused
person to assigned counsel. The recently adopted International
Covenant on Civil and Political Rights1 provides in Article 14(3)
that "in the determination of any criminal charge against him,
every one shall be entitled to the following minimum guarantees
in full equality :--

(d) x x x x x to be tried in his presence, and to de-
fend himself in person or through legal assistance of
his own choosing; to be informed, if he does not have
legal assistance, of this right; and to have legal assis-
tance assigned to him, in any case where the interests
of justice so require, and without payment by him
in any such case if he does not have suﬁicient means
to pay for it;"

The European Covenant on Human Rights, which has been
in effective operation for some years, contains a similar provision.

24.36. In a celebrated case," the Supreme Court of the U.S.A.,
after a review of previous decisions, held that the right of an
accused in a criminal case to have the assistance of counsel for
his defence-3 includes the right to have a Counsel provided at the
expense of the State if the accused is too poor to engage one at
his expense. The reasons for this decision have been given by
Black J. as follows :--

"Not only these precedents but also reason and reﬂection re-
quire us to recognise that in our adversary system of criminal
justice, any person hauled into court, who is too poor to hire a
lawyer, cannot be assured a fair trial unless counsel is provided
for him. This seems to us to be an obvious truth. Governments,
both State and Federal, quite properly spend vast sums of money
to establish machinery to try defendants accused of crime. Law-
yers to prosecute are everywhere deemed essential to protect the
public's interest in an orderly society. Similarly, there are few
defendants charged with crime_ few indeed, who fail to hire the
best lawyers they can get to prepare and present their defences.

9 1 Adopted by the General Assembly of the United Nations in January,
1 68.
'-'Gideon v. Wainwright, (1963) 372 U.S. 335.

3U. S. Constitution. Sixth Amendment.

203

That government hires lawyers to prosecute and defendants who
have the money hire lawyers to defend are the strongest indications
of the widespread belief that lawyers in criminal courts are neces-
sities, not luxuries. The right of one charged with crime to
counsel may not be deemed fundamental and essential to fair
trials in some countries, but it is in ours. From the very begin-
ning, our State and national constitutions and laws have laid
great emphasis on procedural and substantive safeguards designed
to assure fair trials before impartial tribunals in which every
defendant stands equal before the law. This noble ideal cannot
be realised if the poor man charged with crime has to face his
accusers without a lawyer to assist him."

24.37. In India, the importance of this right, i.e. a right to
assignment of counsel at Government expense was emphasised in
the Law Commission's Report on the Reform of Judicial
Administration} where a brief review of the schemes in force in
some of the States was made, and it was pointed out that certain
measures of legal aid were capable of being implemented forth-
with, without sctting up elaborate legal aid organisations, by
amending the law or the rules of the high Courts. As regards
criminal cases, three recommendations were made in that Report."
First, representation by a lawyer should be made available at
Government expense to accused persons without means in all
cases tried by a Court of Session. Secondly, representation by a
lawyer should be made available at Government expense to
applicants without means in proceedings under section 488 cf the
Code. Thirdly, representation by a lawyer should be made avail-
able at Government expense to an accused person without means
at the time of the ﬁnal hearing of a jail appeal which has been
admitted.

24.38. The matter has been engaging the attention of the
Government of India for a long time, and the need for action in
the matter has been impressed upon State Governments. But,
apparently, ﬁnancial considerations have come in the way of
setting up legal aid organisations or putting into effect compre-
hensive schemes. It is not necessary for our purpose to go into
the details of the various possible schemes. But we strongly
recommend that the right of the accused to representation at
Government expense should be placed on a statutory faotinz in
relation to trials for serious offences, and as a ﬁrst step in this
direction, we propose that such a right should be available in all
trials before the Court of Session. The Code should also contain
a provision enabling the State Government to extend this right
by a notiﬁcation to any class of trials before other courts in the

State.
24.39. The new section may be as follows :--

"340A. (1) Where, in a trial before the Court of
Session. the accused is not represented by a pleader, the
Court shall assign a pleader for his defence at the expense
of the State.

1 Law Commission. 14th Report. Vol. 1. Chapter 27. pages 587 to 500.
2 14th Report, Vol. 1, page 598, paragraph 17.

Recommendation
in 14th Report.

Our recommenda '
tlon.

New section 340A
proposed.

Section 342 Intro-

ductory.

Stephen's
cism.

criti-

204

(2) The High Court may, with the previous approval of
the State Government, make rules providing for-

(a) the mode of selecting pleaders for defence under
sub--section (1),

(b) the facilities to be allowed to such pleaders by the
Courts,

(C) the fees payable to such pleaders by the Government,
and, generally, for carrying out the purposes of sub-
section. ( 1 ).

(3) The State Government may by notiﬁcation in the
Gazette direct that, from such date as may be speciﬁed in
the notiﬁcation the provisions «of sub-sections (1) and (2)
shall apply in relation to any class of trials before other
Courts in the State as they apply in relation to trials before
Courts of Session."

24.40. Section 342 is one of the most important sections in
the Code. It requires that the Court must, at the close of the
prosecution evidence, examine the accused "for the purpose of
enabling him to explain any circumstance appearing in the evi-
dence against him." The section, for a moment, brushes aside
all counsel, all prosecutors, all witnesses, and all third persons.
It seeks to establish a direct dialogue between the Court and the
accused for the purpose of enabling the accused to give his ex-
planation. For a while the section was misunderstood and
regarded as authorising an inquisitorial interrogation of the
accused, which is not its object at all. The key to the section
is contained in the ﬁrst sixteen words of the section. Giving an
opportunity to the accused to explain the circumstances appear-
ing in the evidence is the only object of the examination. He
may, if he chooses, keep his mouth shut or he may give a full
explanation, or, if he is so advised, he may explain only a part
of the case against him.

24.41. Discussing the history and scheme of his section in
his History of the Criminal Law of England} Stephen writes :--

"The words specifying the purpose for which questions
are to be asked were not in the Code of 1872, which autho-
rised the examination of the accused without assigning any
reason for it. Perhaps the expression was introduced in the
Code of 1882 in order to soften what many people consider
a harsh proceeding. For my own part I regret the alteration.
It will either be inoperative or most embarrassing, and it
looks like an apology for what does not require one. It is,
however, hypocritical, for the Code contains no provision as
to what is to happen if the questioning does not conform to
the directions of the Code, and it speciﬁcally enacts that 'the
court and jury (if any) may draw such inference from' the
refusal of the accused to answer or from his answers as they
please. Besides, in practice, every question any one could
want to ask might be justiﬁed by the terms of the section;
e.g. 'The witnesses say they saw you at this place. Were

1Vol. 3. p. 335.

.1.

205

you there or not, and, if not, where were you '2'. The words
thus make hardly any difference."

24.42. At another place in the same treatise,' however, LaWinEng1and-
Stephen has expressed himself in favour of questioning the accus-
ed at the trial. After tracing the history of the law on this point
in England, he writes:

"This state of the law continued till the year 1848, when
by 11 & 12 Vic. c. 42, the present system was established,
under which the prisoner is asked whether he wishes to say
anything, and is warned that if he chooses to do so what he
says will be taken down and may be given in evidence on
his trial. The result of the whole is that as matters stand
the prisoner is absolutely protected against all judicial ques-
tioning before or at the trial, and that, on the other hand,
he and his wife are prevented from giving evidence in their
own behalf. He is often permitted_ however, to make any
statement he pleases at the very end of the trial, when it is
difficult for any one to test the correctness of what is said.

"This is one of the most of characteristic features of
English criminal procedure, and it presents a marked con-
trast to that which is common to, I believe, all continental
countries. It is, I think, highly advantageous to the guilty.
It contributes greatly to the dignity and apparent humanity
of a criminal trial. It effectually avoids the appearance of
harshness, not to say cruelty, which often shocks on English
spectator in a French court of justice, and I think that the
fact that the prisoner cannot be questioned stimulates the
search for independent evidence. The evidence in an English
trial is, I think, usually much fuller and more satisfactory
than the evidence in such French trials as I have been able
to study.

"On the other hand, I am convinced by much experience
that questioning, or the power of giving evidence, is a posi-
tive assistance, and a highly important one, to innocent men,
and I do not se-e why in the case of the guilty there need be
any hardship about it. It must be remembered that most
persons accused of crime are poor, stupid and helpless.
They are often defended by solicitors who conﬁne their
exertions to getting a copy of the depositions and endorsing it
with the name of some counsel to whom they pay a very
small fee. so that even when prisoners are defended by
wunsel, the defence is often extremely imperfect, and consists
rather of what occurs at the moment to the solicitor and
counsel than of what the man himself would say if he knew
how to say it. When a prisoner is undefended his position
is often pitiable, even if he has a good case. An ignorant
uneducated man has the greatest possible difﬁculty in collec-
ting his ideas, and seeing the bearing of facts alleged. He is
utterlv unaccustomed to sustained attention or systematic
thought. and it often appears to me as if the proceedings on a
trial. which to an experienced person appear plain and
simple, must pass before the eyes and mind of the prisoner
like a dream which he cannot Sfilsp."

1 Stephen. History of Criminal Law of England. Vol.' 1, pp. 141-442.

Is section 342 re-
dundant in view
of section 3423. 7

Need for exami-
nation of accused.

Section 342
should be
retained.

Section 342 (1)--
Two kinds of
examination.

206

24.43. It has been suggested that after the enactment of sec-
tion 342A which enables the accused to enter into the witness
box if he so chooses and give evidence, section 342 is redundant
and can. be safely omitted. A View has also been expressed that
the elaborate examination contemplated by this section leads to
needless delay. At least where the accused is represented by
counsel, it should be unnecessary to examine the accused, because
his counscl is bound to put forth, whatever explanation there is
to be offered.

As against this it has to be borne in mind that there are
several ollences (such as receipt of stolen property) which are
of such a nature that the accused has to give his explanation,
lJ€C£iL1>C in the absence of a reasonable explanation1 the accused
runs the risk of being convicted by the court relying on section
114, illustration (a) of the Evidence Act, 1872. The provisions
of the Prevention of Corruption Act, 1947, and other special
laws which enable the court to hold the accused guilty unless he
can satisfactorily account for his possession of property or other
articles may also be referred to in this connection. Section 342
of the Code affords the accused the only opportunity of giving
such an explanation without running the risk of facing cross-
examination.

24 44. Furthermore, differing from civil cases in this respect,
the parties in criminal cases are not equally placed. The whole
machinery of the States is against the accused. The accused has
no investigating machinery, no power of search and no power
of questioning, which the prosecution has. If he puts forth a
deﬁnite case, he may not in many cases be able to prove it. This
is also the reason why in civil cases preponderance of evidence
is sulﬁcient, but in criminal cases a shadow of doubt operates in
favour of the accused. Even where the State provides counsel
for the accused, experience shows that the Court has to guide
counsel who is usually a junior member of the Bar. In this
state of affairs, examination of the accused under section 342
appears to be essential proceeding. The mode of applying the
section would, no doubt. vary with the knowledge intelligence
and experience of the Judge. If in a particular case the Judge
exceeds the permissible limit and subjects the accused to an
inquisitorial examination. the superior courts will correct the
error. The words "question him generally" in the section are
clearly intended to prevent unfair interrogation of the accused.

24.45. We have, after considering the various aspects of the
matter as summarised above, come to the conclusion that sec-
tion 342 should not be deleted. In our opinion, the stage has
not yet come for its being removed from the statute book. With
further increase in literacy and with better facilities for legal aid,
it may be possible to take that step in the future.

24.48. The examination of the accused under section 342 is
of two kinds :--

(a) the power of the court to put a particular question
to him at any stage for the purpose of enabling him

1 G. Feller, AJR. 1943 P.C.. 211: Hart" Lal. I.L.R.. 56 All. 250.

2ir7

to explain any circumstance appearing in the evi-

dence against him, and

(b) the cluty of the Court to generally _examine him
(after the close of the prosecution evidence) for the
above purpose.

The object of the examination in each case is the same.
But the first is optional, while the 'second is mandatory. The
ﬁrst can be at any stage of the inquiry or trial, while the second
is after the witnesses for the prosecution have been examined,
and "before the accused is called upon to enter upon his
defence". The ﬁrst is particular; while the second is general.
These points of difference between the two would be brought out
more clearly if each is dealt with in a separate clause, and we
recommend that sub-section (1) may be split up into two
clauses, each clause dealing with one kind of examination.

24.47. There is a conﬂict of decisions on the question
whether section 34?. applies to summons cases. Most High Courts
have taken the view1 that it does so apply, but a contrary view?
has been taken by some High Courts.

2448. Where the Court has dispensed with the personal
attendance of the accused, is it necessary that his pleader should
be examined under section 342, or should such examination be
of the accused himself? There is also a controversy on this point,
and different views have been expressed both as to what the law
is and as to what it should be. One view is that the accused
himself should be examined in all cases, and even where his
personal attendance has been dispensed with at other hearings,
the court must require him to be present for examination under
section 342. Another View is that where it is not a serious case
and personal attendance has been dispensed with, the court may
also dispense with the examination of the accused or of his
pleader. It is against the intendment of section 342 to examine
the pleader instead of the accused and such examination serves
no useful purpose.

The question came up before the Supreme Court in a case"
decided recently. After noting the sharp conﬂict of Judicial
opinion, the Supreme Court referred to the decision of the
Calcutta High Court in Prova Debi v. Mrs. Fermzndes4 and
said :--

"In that case a Full Bench of the Calcutta High Court by
a majority decision held that the Magistrate may in his dis-
cretion examine the pleader on behalf of the accused under
section 342. This view is supported by numerous decisions
of other High Courts, but from time to time many judges
expressed vigorous dissents and came to the opposite con-
clusion. The two sides of the question are ably discussed in

1 Khacho Mal v. Em/7., AIR. 1926 All. 358; Sim Ram v. Emp., A.I.R.
1935 All. 217: Ram D/zirai V. Stale, A.l.R. 1956 All. 167; Balkrishna V.
Emp., A.I.R. 1931 Born. 132; Gulam Rarul, A.I.R. 1921 Pat. 11.

2 Ponnuswami, A.I.R. 1924 Mad. 15; Vidyanand, A.I.R. I962 A.P. 394.

'B. B. Das Gupta v. State of We5t Bengal, (1969) 1 S.C.I. 867. 869.

4A.I.R. 1962 Cal. 203.

Application to
summons cases.

Examination of
pleader in places
of accused.

Conclusion.

208

the majority and minority judgments of the Calcutta case.
After a full examination of all the decided cases on the sub-
ject, we are inclined to agree with the minority opinion."

A third view is that the pleader should be examined in such
cases, but the law should also provide that the answers given
by the pleader shall not be put in evidence against the
accused in any other inquiry or trial for any other offence which
the answers of the pleader may tend to show that the accused
has committed. It would not, according to this view, be proper
to totally dispense with the examination of both the accused and
his pleader. There should be something on the record to show
the explanation either of the accused or of his pleader.

A suggestion intended to simplify the matter was also consi-
dered by us, namely, in summons cases, no examination of the
accused under section 342 should be necessary, and neither the
accused nor the pleader need be examined; but in all other cases,
the accused person should be examined personally. A more limit-
ed form of this suggestion was also considered by us, namely,
that in summons cases in which the personal attendance of the
accused is dispensed with, section 342 should not apply, and
neither the accused nor the pleader need be examined.

24.49. We have, on a consideration of the various views ex-
pressed in the matter, come to the conclusion that :--

(a) the section does, and should, apply to all inquiries
and trials, including commitment inquiries and trials
of summons cases, and to make this position clear,
the words 'In every inquiry or trial' should be in-
serted at the beginning of sub-section (1);

(b) in summons cases where the personal attendance of the
accused has been dispensed with, either under section
205 or under section 540A, the court should have a
power to dispense with his examination; and

(c) in other cases, even where his personal attendance
has been dispensed with, the accused should be
examined personally.

«is

3""

Amendmem of 24.50. We accordingly recommend that section 342(1) be

section 3.1:' (l" : 'vised as follows :--
fCCOmlll€llC.' -.

"( I) In every izzquiry 0r trial, for the purpose of enabl-
mg the accused personally to explain any circumstances
appearing in the evidence against him, the Court--

(a) may, . . . . ..at any stage without previously warning

the accused, put such questions to him as the Court 9'

considers necessary, and

(b) shall, . . . . ..aftcr the witnesses for the prosecution
have been examined and before he is called on for
his defence, question him generally on the case:

Provided that in a summons-case, where the Court has
dispensed with the personal attendance of the accused, it may
also dispense with his examination under clause (b).

209

24.51. Section 342(2) is ambivalent in its import. The ﬁrst Section 342 (2)-
part rightly provides that the accused shall not render himself g<7§:1e1§8(§§;end
liable to punishment by refusing to answer the questions put_by Y '
the Court or by giving false answers to them, but the section im-
mediately gives the warning to the accused that "the Court and
the jury (if any) may draw such inference from such refusal or
answers as it thinks just." It has been suggested that_ in view
of the clear possibility of the Court drawing an adverse inference
from a refusal to answer, the section offends article 20(3) of the
Constitution, in that its indirect effect may be to compel the
accused to be a witness against himself. We note that two
learned authors1 have expressed doubts about the constitutional
validity of the pmvision.

24.52. The matter has not come up before the Supreme View of High
Court, but High Courts have held that the provision does not COWS-
conflict with the Constitution. The reasoning on which one of
the decisions is based? is that the drawing of an adverse inference
is a far cry from being compelled to be a witness. A distinction
is made between "evidence" and "statement" and it is said that
the statement of the accused is not "evidence". It is also stated3
that no oath is administered to the accused and therefore he is
not a "witness". We are afraid, however, that it is possible to
argue that the permissibility of drawing an adverse inference
would, at least in some cases, amount to an indirect compulsion
of the accused to enter the witness box. Where the prosecution
evidence is strong, this will be particularly so. It cannot be
denied that the accused will be placed in a dilemma: he must
either answer the questions under section 342 or enter the wit-
ness box under section 342A. The ﬁrst course compels him to
incriminate himself, because the answers can be used against him.

The second course also compels him to incriminate himself,
because, once he enters the witness box, he is bound to be cross-
examined.

It may be said that the privilege against self-incrimination
operates regardless of the ultimate result, and emphasises that
certain means cannot be adopted even for a righteous end. In a
Calcutta case} the Judges observed :--

"If a person accused of an offence refuses to answer a
ouestion on the ground that by answering it he will incrimi-
nate himself or to produce a document on the ground that it
will incriminate him. he will in a way be admitting his guilt,
and yet, if effect is to be given to article 20(3) of the Consti-
tution, he will, in effect be protected from being compelled to
furnish evidence of his admitted guilt and protected even by
the issue of, if necessary, a writ. This may seem odd. but in

1Seervai. Constitutional Law, (1966), page 442, paragraph 12.43;
Basn Commentary on the Constitution. (1962). Vol. 2. pages 36. 37.

9B(1r;.uzz~i Lal v. The State, A.I.R. 1956 All. 341. 344. paragraph 33
(D.B.).

3/1: re B. N. Rcunakrishna, A.I.R. 1955 Mad. 100. 119. paragraph
60 (Ramaswami J.).

4 Collector of Customs v. Calcutta Motor and Cycle C0.. A.I.R. 1958
gal. 682. 690. paragraph 19 (P. B. Chakravarti C.J. and K. C. Das

uma 1.).

Amendment
recommended.

Section 342 (3).

210

balancing the advantages of an effective detection of crime,
with information collected from all sources, against the obser-
vance of civilised standards of enquiry and the upholding of
the dignity of man, the framers of our Constitution like those
of the Constitution of America, have given preference to the
latter."

24.53. We, therefore, recommend that the latter part of
section 342(2) be omitted. Since section 342(3) provides that
the answers (whether false or true given by the accused may be
taken into consideration in such inquiry or trial, there is no need
to state in section 342(2) that the court "may draw such infer-
ence from such answers as it thinks just."

24.54. The latter part of section 342 (3) provides that the
answers given by the accused may be put in evidence for or
against him in an inquiry into, or trial for, any other offence
which such answers may tend to show he has committed. Such
use of the answers for the accused would be governed by the
Evidence Act. Reference may be made to sub--scctions (1),
(2), (3) of section 21 and illustrations (c), (d) and (e)
thereto, and also sections 157 and 159, of the Evidence Act.

The answers given by the accused may amount to an
admission of some other offence or may by themselves constitutes
an offence. e.g. contempt of court or defamation. As regards
the latter case. the question may arise Whether the answers enjoy
any absolute protection. In a Bombay case1 it was held, that
the criminal law of defamation being codiﬁed in section 499 of
the Indian Penal Code. the case must (if an exemption is claim-
ed) be brought within the four corners of one of the nine excep-
tions given below that section. The Court followed a Calcutta
decision} wherein the judgment contains a comprehensive dis-
cussion of the law of defamation under the Indian Penal Code.
A wider view was taken in one case by the Madras High Court,'
holding that such answers enjoy absolute protection, and that
this rule of the English law was not intended to be abrogated by
section 499 of the Indian Penal Code; but this was over-ruled
in a latter case.' The Allahabad High Court5 has taken the
wider view, recognising absolute protection for answers given by

the accused.

These decisions, however, are. not based on the effect of sec-
tion 342(3), but on an interpretation of section 499, Indian
Penal Code. Most courts have assumed that the answers given
by the accused can be used in evidence in a latter prosecution
for defamation ﬁled against the accused, and have proceeded to
deal with the case on the other legal issues. We: have consider-
ed the question whether this position requires to be disturbed.

1Bhai Shmiri V. Umrao Amir, I.L.R. 50 Born. 162; A.I.R. 1926
Born. 141. 143 (F.B.).

2.S'aii'.s'lr Chandra v. Ram Dayal, I.L.R. 48 Cal. 388; A.I.R. 1921
Cal. 1; 24 C.W.N. 982 (S.B.).

317: re Venkala Reddv, (1912) I.L.R. 36 Mad. 216 (F.B.).

4Tiruvcn2aa'e Mudali v. Tripllrrmsu Udai, (1926) I.L.R. 49 Mad.
728. 737: A.I.R. 1926 Mad. 906 (F.B.).

3Murl.i Pathak, I.L.R. 50 All. 169; A.I.R. 1927 All. 707. 708,
(Dalal 1.).

'~**

211

It was stated before us, that the accused is in a less favourable
position than a witness to whom section 132, Evidence Act,
gives full protection. Though the accused is not, in law, "com-
pelled" to answer the questions put under section 342 (so that
the analogy of section 132 may not be strictly appropriate), yet
the accused has to answer the questions in order to save himself
from conviction for the offence for which he is under trial. Such
compulsion as there may be: is, in our view, no compulsion in
law. If the accused, while answering such questions, commits
an offence, such as defamation, contempt of court, or uttering
obscene words, there is no reason why he should not be punish-
able. A.n~.,r privilege that the substantive law itself recognises in
such would, no doubt, be available; but the procedural law
need not. in our opinion, add its own special cloak of protection
to the accused.

24.55. It would be more appropriate to place sub-section
(4) of section 342 immediately after sub-section (1) instead of
at the end.

24.56. Under section 342A, (which was inserted in 1955),
the accused is now a competent witness for the. defence and can
give evidence in disproof of the charges made against him or
against his co-accused. Are the words1 "in disproof of the
char_:zes" intended merely to prevent the accused from implicat-
ing other co-accused ? Or do they also shut out cross--examina-
tion of the_ accused as to the main offence ? The position in this
respect appears to be somewhat obscure. It is also not clear as
to What is the scope of the cross--eXamination of the accused
when he offers himself as witness. Can questions regarding his
character or impeaching his credit be put in cross-examination ?
If such questions are permissible, to what extent can he be ques-
tioned in respect of previous convictions ?3 All these matters
may prove to be controversial, but having regard to the fact that
section 342A has been recently introduced and apparently has
not created any difficulty so far, we are not recommending any
elaboration of the section.

24.57. No change is needed in section 343.

24.58. Section 344(lA) provides for the postponement of
the commencement of an inquiry or trial and for adjournment
during the inquiry' or trial. It empowers the court to remand the
accused, if in custody, for not more than 15 days at a time. The
explanation at the end of the section states that if sufﬁcient
evidence has been obtained to raise a suspicion that the accused
may have committed an offence, and it appears likely that further
evidence may be obtained by a remand, this is a reasonable cause
for a remand, mainly because of the explanation in these terms,
the View has been taken that remands can be given by Magistrates
under section 344 even at the stage of investigation and even
before a court has taken cognizance of the offence on a police
report.

1The wording follows that of section 7, Prevention of Corruption
Act. l947.

1'Cf. s. 1 of the (English) Criminal Evidence Act, 1898.

Section 342 (4).

Section 342 A.

Section 343.

Detention under
section 167(1).

Maximum period

should be increased,

Remand under s.
344 (IA) only
after taking cog-

nizance.

Adjournment

C0815.

Amendment of

section
mended

recom-

212

24.59. In our opinion, this reliance on s. 344 is not correct,
as the explanation cited above is only an explanation to that sec-
tion and cannot be read into section 167. This lax view of the
two sections seems to have been taken in order to avoid the prac-
tical diﬁiculty that arises in cases where investigation is prolong-
ed, the accused has been arrested and detained in custody, and
the maximum period of 15 days allowed for such detention under
s. 167 (2) is found to be inadequate. The Code, however, makes
a clear distinction between detention in custody before taking oog-
nizance and detention in custody after taking cognizance. The
former is covered by section 167 and the latter by s. 344. The
two are, in our opinion, mutually exclusive and ought to be kept
so.

2460. There is, however, no doubt that serious oﬁences take
a long time for investigation and the police often ﬁnd it neces-
sary to place the accused person under arrest even before the
investigation is quite complete. The only way of solving this diffi-
culty appears to be to increase the period of remand mentioned
in section 167(2) to "ﬁfteen days at a time and sixty days in the
whole". There may be some risk that if this amendment was
made in s. 167(2) remands would be asked for, and granted, as a
matter of routine up to the permissible limit of 60 days. But such
an amendment appears to us to be unavoidable.

24.61. In order to make it very clear that remands under sec-
tion 344(1A) can only be given after cognizance has been taken
of the offence and not at the stage of investigation, we recommend
that the opening words of this section should be altered to
read 2--

''If the Court, after taking cognizance of an offence ﬁnds
it necessary or advisable to postpone etc."

24.62. Under this section the Court has the power to impose
"such terms as it thinks ﬁt" on either party while granting an
adjournment or postponement at its instance. The power to
impose "terms" would, in theory, seem to include a power to
direct the payment of costs bv a party whose conduct has neces-
sitated the adjournment, We ﬁnd, however, that Courts are reluc-
tant to award costs against the prosecution, even where the
adjournment is due to serious laches on its part like delay in
producing important witnesses, delay in giving necessary documents
to the defence, etc. While the power to award costs as a part of
the "term" which can be imposed is not denied, the courts do
not seem to exercise that power with a view to speeding up the
inquiry or trial. We would therefore draw pointed attention of
the Courts to this power by adding another explanation to section
344.

24.63. Sub-section (2) of section 344 appears to us to be
practically unnecessary. The requirement in sub-sections (1)
and (IA) that reasons shall be recorded should be quite suﬂi-
cient. There is also considerable verbiage in sub-section (IA)
which could be cut out. We recommend that in place of the
existing sub--sections ( 1A) and (2) and explanation, the follow-
ing sub-section and explanation may be substituted :--

"(2) If the Court, after taking cognizance of an oﬁence,
finds it necessary or advisable to postpone the commencement of

213

or, adjourn, any inquiry or trial it may, from time to time, for
reasons to be recorded, postpone or adjourn the same on such
terms as it thinks ﬁt, for such time as it considers reasonable.
and may by a warrant remand the accused if in custody;

Provided that no Magistrate shall remand an accused person
to custody under this section for a term exceeding ﬁfteen days at
a time :

Provided further that when witnesses are in attendance,_ no
adjournment or postponement shall be granted, without examining
them, except for special reasons to be recorded.

Explanation 1. If sufﬁcient evidence has been obtained to
raise a suspicion that the accused may have committed an offence,
and it appears likely that further evidence may be obtained by a
remand, this is a reasonable cause for a remand.

Explanation 2. The terms on which an adjournment or post-
ponement may be granted include, in appropriate cases, the pay-
ment of costs by the prosecution or the accused".

24.64. Section 345 deals with the compounding of offences.
Sub-section (1) lists 22 Penal Code offences which may be com-
pounded by the speciﬁed aggrieved party without the permission
of the court and sub-section (2) lists 32 other Penal Code offences
which also may be compounded but with the permission of the
court.

24.65. It was suggested before us that instead of having two
such long lists, some simple general rule should be evolved to
determine which offences are compoundable, e.g. by relating
them to the punishment provided for the offence. The theory that
the offences at present listed as compoundable are those in which
the individual aggrieved person is much more concerned than the
community as a whole was said to be not very convincing. It was
also said that withdrawal of the prosecution under section 494
was often resorted to for securing the same result after privately
compounding the offence.

24.66. We have, however, come to the conclusion that it is
not feasible to formulate any general rule for determining com-
poundable offences. The broad principle that forms the basis of
the present scheme is that where the offence is essentially of a
private nature and relatively not serious, it is compoundable. It
is, in our opinion. better to have clear and speciﬁc provisions such
as those contained in section 345 than a general rule which is
likely to lead to different interpretations. A rule to the effect
that an offence will be compoundable if the maximum punishment
provided for it is not more than three years' imprisonment will,
no doubt, be deﬁnite but will not, in our opinion, be suitable.

24.67. It was further suggested that, even if the existing
section is maintained, the distinction between offences compound-
able with the permission of the Court and offences without such
permission should be abolished and that the law should be simpli-
ﬁed requiring permission in every case. This suggestion, how-
ever, did not appeal to us. The safeguard of the Court's permis-
sion is to prevent an abuse of the right to compound and to

Section 345.

General rule for
determining com-
poundable offences
suggested.

Not feasible.

Court's permis-
sion necessary in
some cases.

Offences under
special laws not
compoundablc.

Addition to the
two lists consider-
ed.

Three additions
in sub-section (2)
recommended.

Petty theft should
be compoundable.

214

enable the court to take into account the special circumstances
of the case which may justify composition. It is not in every
case that such a safeguard is required.

24.68. Under the Second Schedule to the Code all oﬁences
unde-r special laws are at present non--compoundable. It was
suggested that if such an otlence is punishable with ﬁne or with
imprisonment not exceeding one year, it should be.compound-
able. We think that this should be left to the legislature con-
cerned to decide as a matter of policy whether and to what extent
offences under the special laws should be compoundable. It is
not desirable to make any general provision in the Code touching

this point.

24.69. Various suggestions have been received by us to add
some more Penal Code offences in sub--section (1) or in sub-
section (2) of section 345. The additions suggested are: being
member of an unlawful assembly (5.. 143), rioting (s, 147),
false claim in a court of justice (s. 209), fraudulently obtaining
decrees (s. 210), driving or riding on a public way so rashly or
negligently as to endanger human life (5. 279), causing death
by rash or negligent act (s. 304A), causing grievous hurt by
dangerous weapon (s. 326), wrongful conﬁnement for extortion
(s. 347), theft in a building (5. 380), lurking house-trespass or
house-breaking by night (s. 456), that same in order to commit
an offence (s. 457) and bigamy with concealment (s. 495). We
do not consider that any of these or"fences should be compound-
able. Public peace, order and security are matters in which
society is vitally interested and offences which ieopardize them
ought to be suitably punished by the courts. They should not
be left to be compounded by the person directly aggrieved by
the offence.

24.70. We, however, agree with the suggestion that the
offence under section 354, Indian Penal Code, should, with the
permission of the court, be compoundable by the woman on
whom the assault is committed or to whom criminal force is
used. We also recommend that the offences under section 411
(receiving or retaining stolen property) or under section 414
(assisting in the concealment or disposal of stolen property)
should be compoundablet with the permission of the court, if the
value of the property does not exceed Rs. 250.

24.71. We have received a suggestion that the term relating
to "theft where the value of property stolen does not exceed 250
rupees" should be omitted from the list in sub-section ( 2) of
section 345. It is said that, after the offence of theft has been
made compoundable to this limited extent in 1955, habitual
thieves are taking advantage of it and escaping punishment
This is not easy to understand. In such cases, it is very likely
that the prosecution has mentioned in the chargesheet itself the
previous convictions of tee accused with a view to asking for
enhanced punishment under section 75 of the Indian Penal Code,
or, if for some reason it has initially failed to do so, it will bring
the fact to the notice of the court when permission to compound
the offence is sought. We do not think any harm is being done
by the amendment of 1955 which has made petty thefts com-
poundable with the permission of the Court.

.,\\w_d_

-s...

215

24.72. We recommend that the offence of unlafwul compul-
sory labour punishable under section 374 of the Indian Penal
Code, should not be eompoundable and that this item should be
omitted from the list in section 345(1).

24.73. As it is possible that a Magistrate inquiring into or
trying an otlencc may ﬁnd that some other Magistrate should
deal with the case; a provision is made in section 346 enabling
the Magistrate to report the case to his superior, who can then
deal with it himself, or transfer it to some other competent Magis-
trate. Want of jurisdiction is not mentioned in the section as a
reason for presuming that "the case should be heard by another
Magistrate ', and .'~,.OII:lC doubt has, on occasions, been expressed'
whether "lack of jurisdiction", is covered by section 346. We
think it is, and we propose to make this clear by a suitable change
in the language.

There may be cases which a subordinate Magistrate cannot
dispose of. but which the Chief Judicial Magistrate can, e.g. a
case relating to an offence punishable with imprisonment for a
term that may extend to 7 years. There is, at present, no provi-
sion empowering a subordinate Magistrate to refer such cases
to the Chief Judicial Magistrate before or during trial. Such a
provision would obviously be useful from the point of view of
reducing the work of Sessions Courts.

Presidency towns are expressly excluded from the scope of
the section, but we think that it can be usefully extended to me-
tropolitan areas. Under our proposed scheme, the Chief Metro-
politan Magistrate will have higher powers of trial and sentenc-
ing than ordinary Metropolitan Magistrates, and there are likely
to be quite a few cases which an ordinary Metropolitan Magis-
trate cannot dispose of, but which should be referred to the
Chief Metropolitan Magistrate for disposal instead of being com-
mitted to the City Sessions Court. We would, therefore, extend
the section to metropolitan areas.

Section 346 is a provision for the transfer of proceedings con-
cerned with oﬂenees, i.e. inquiry into and trial of offences. We
propose to make it clear that it is so limited, by adding the words
"into an offence" after the word "inquiry".

Accordingly, section 346 may be revised as follows :--

"346. (1) If, in the course of any inquiry into an off-
ence or a trial before a Magistrate in any district, the evidence
appears to him to warrant a presumption---

(a) that he has no jurisdiction to try the case or com-
mit it for trial, or

(iv) that the case is one which should be tried or com-
mitted for trial by some other Magistrate in the dis-
trict, or

xsmm v. Pokker, A..l.R. 1959 Ker. 53 (Reviews cases).

Compulsory la-
bour not to be
compoundablc.

Section 346.

Procedure in
cases which Ma-
gistrate cannot
dispose of.

Procedure _ in
Cases which
Magistrate can-
not dispose of.

Section 348

Trial of persons
previously convi-
cted of offences
against coinage,
stamp--law or
Dropeft)'.

Section 349.

216

the case, with a brief report explaining its nature,
to the Chief Judicial Magistrate or to such other
Magistrate having jurisdiction as the Chief Judicial
Magistrate directs.

(2) The Magistrate to whom the case is submitted may,
if so empowered, either try the case himself or refer it to any
Magistrate subordinate to him having jurisdiction to commit
it for trial."

24.74. Section 347 lays down the procedure when, after com-
mencement of the inquiry or trial before a Magistrate, he ﬁnds
that the case ought to be tried by the Court of Session. As all
Magistrates will be competent to commit a case to the Court of
Session and the reference to l_ligh Courts will have to be deleted,
the section may be formally revised as follows :--

"347. If, in any inquiry into an olfence or a trial before
a Magistrate, it appears to him, at any stage of the proceed-
ings before signing judgment that that case is one which ought
to be tried by the Court of Session, he shall commit it to
that Court under the provisions hereinbefore contained."

24.75. Section 348 requires a Magistrate to commit to the
Court of Session the case of any accused person liable to enhanc-
ed punishment under section 75 of the Indian Penal Code as a
previous convict. In order to avoid unnecessary commitment to
the Sessions Court, however, two exceptions have been provided
in the section, (i) when a Magistrate having powers under section
30 of the Code is available to try the case, and (ii) when the
Magistrate dealing with the case is of opinion that he will be able
to inflict suitable punishment in case of conviction. No change
of substance is necessary in this section, but it may be formally
revised as follows 2--

"348. (1) Where a person, having been convicted of an
offence punishable under Chapter XII or Chapter XVII of
the Indian Penal Code with imprisonment for a term of three
years or upwards, is again accused of any oﬁence punishable
under either of those Chapters with imprisonment for a term
of three years or upwards, and the Magistrate before whom
the case is pending is satisﬁed that there is ground for pre-
suming that such person has committed the offence, he shall
be sent for trial to the Chief Judicial Magistrate or commit-
ted to the Court of Session, unless the Magistrate is com-
petent to try the case and is of opinion that he can himself
pass an adequate sentence if the accused is convicted.

(2) When any person is sent for trial to the Chief Judi-
cial Magistrate or committed to the Court of Session under
sub-section (1), any other person accused jointly with him
in the same inquiry or trial shall be similarly sent or com-
mitted, unless the Magistrate discharges such other person
under section 251A or section 253, as the case may be."

24.76. Section 349 deals with the transfer of a case pending
before a second or third class Magistrate if he thinks the accused
guilty but meriting punishment which the Magistrate is not com-
petent to impose. The case then goes to his superior who has to

217

decide it on the merits. This provision is obviously necessary
and useful. We propose to extend it to convictions before first
class Magistrates also, so that they can report the case to the
Chief Judicial Magistrates. The latter have higher powers of
sentencing, and it would be useful if cases tried by Magistrates
of the first class could be sent to them for punishment, where
the circumstances demand the imposition of a sentence higher
than what a first class Magistrate can impose. At present, this
is not possible, both because Magistrates of the first class are not
mentioned in sub-section (1), and because the proviso to sub-
section (2) restricts the sentencing powers of the Magistrate _to
whom the case is forwarded. We consider both these restric-
tions to be unnecessary. Sub-section (1) may be revised as
follows :--

"(l) Whenever a Magistrate X X X is of opinion, after
hearing the evidence for the prosecution and the accused, that
the accused is guilty and that he ought to receive a punish-
ment different in kind from, or more severe than, that which
the Magistrate is empowered to inﬂict, or, being Magistrate
of the second class, is of opinion that the accused ought to
be required to execute a bond under section 106, he may
record the opinion and submit his proceedings and forward
the accused to the Chief Judicial Magistrate to whom he is
subordinate."

Apart from consequential changes in sub-sections (IA) and
(2), the proviso to sub-section (2) may be omitted

24.77. Section 350 deals with "part-heard cases", when one
Magistrate who has partly heard the case is succeeded by another
Magistrate, either because the first Magistrate is transferred and
is succeeded by another, or because the case is transferred from
one Magistrate to another Magistrate. The rule mentioned in
section 350 is that second Magistrate need not re-hear the whole
case; he can start from the place the ﬁrst Magistrate left it, un-
less of course he is of opinion that "further examination of any
of the witnesses whose evidence has already been recorded is
necessary in the interest of justice." The decision for a re-hear-
ing, thus, rests with the Magistrate, and this arrangement is, we
think satisfactory.

The section is conﬁned to cases in the Magistrate's Courts,
and is inapplicable to the Courts of Session. We have consi-
dered the advisability of extending this rule to Sessions cases,
as We understand that sometimes Sessions Judges are transferred,
leaving behind part-heard cases which have to be heard all over
again. It would be an ideal position if such transfers did not
take place, as Sessions cases are to be heard from day-to-day
and decided within a few days. It is obviously desirable that in
serious cases the whole evidence should be heard by the Judge
who ﬁnally decides the case. However, having regard to the rea-
lities of the situation, it is necessary to make some provision for
cases where such transfers do take place, because a mandatory
provision for a de novo trial may often cause considerable incon-
venience and hardship. We, therefore, propose to extend the
section to Judges of Sessions Courts by referring to "Judge or
Magistrate" instead of "Magistrate" only.

Section 350(1).

Section 350(2).

Section 350A.

Changes in cons-
titution of Ben-
ches.

Section 351-
limited to oﬂ'en-
ders in courts.

218

24.78. At the other end are "summary uials", which again
should be decided quickly and no question of a "part--hea.rd
case" should normally arise. Also, the record of evidence in a
summary trial is scanty;1 and in certain cases may be virtually
non-existent. In these cases too, the rule in section 350 ought
not to apply." We propose that section 350(2) should be amen--
ded to read, "Nothing in this section applies to summary trials
to cases in which etc."

24.79. Section 350A deals with Benches of Magistrates, and
provides that the judgment of a Bench will not be affected by
any change in the constitution of the Bench, if it is constituted
"in accordance with sections 15 and 16" and the "Magistrates
constituting it have been present on the Bench throughout the
proceedings".

The language used here tends to obscure the meaning of the.

provision", and the Courts have at times complained' of the
obscurity.

The requirement that the "Magistrate"--meaning "all the
Magistrates" constituting the Bench----should have been present
throughout the proceedings, greatly reduces the usefulness of the
provision. The cases handled by Benches of Magistrates are not
important, and we think it should be quite sutlicient if one of
the Magistrates has been present and heard all the proceedings,
so that the other members of the Bench (even if not present
throughout) can be properly advised by him. We, therefore.
suggest that the scope of section 350A should be widened, and
all decisions by a Bench of Magistrates should be valid so long
as one of the Magistrates deciding the case has heard the whole
evidence.

Section 350A speaks of "order or judgment". Obviously.
"judgment", which is the more important of the two, should be
mentioned ﬁrst.

In the light of the above discussion, section 350A may be
amended to read as follows :--

"350A. No judgment or order of a Bench of Magistrates
shall be invalid by reason only of a change having occurred
in the constitution of the Bench, in any case in which the
Bench by which such judgment or order is passed is duly
constituted under sections 15 and 16, and at least one 07'
the Magistrates constituting the Bench by which the judg-
ment or order was delivered has been present on the Bench
throughout the proceedings."

24.80. It happens sometimes, though not very often, that a
Magistrate hearing a case against certain accused ﬁnds from the

1Sec' section 263.

2For a review of case-law. see Surat Municipality v. Nagendra, A.I.R.
1953 Bom. 29.

'See Harmzrain v. Emp. A.I.R. 1943 A11. 20; Jai Ram v. The State,
A.I.R. 1953 All. 137; Kali Charan v. Emp. A.I.R. 1955 All. 711.

4Cf. Dasrath Rat v. Emp.. I.L.R. 56 All. 599; A.I.R. 1934 All. 144,
146 (Per Sulaiman C.I.). -

219

evidence that some person, other than the accused before him,
is also concerned in that very oﬁence or in a connected oﬂenoe.
It is only proper that the Magistrate should have the power to
call and join him in the proceedings. Section 351 provides for
such a situation, but only if that person happens to be attending
the Court. He can then be detained and proceeded against.
There is no express provision in section 351 for summoning such
a person if he is not present in Court. Such a provision would
make section 351 fairly comprehensive, and we think it proper
to expressly provide for that situation.

25.81. Section 351 assumes that the Magistrate proceeding
under it has the power of taking cognizance of the new case. It
does not, however, say in what manner cognizance is taken by
the Magistrate. The _modes of taking cognizance are mentioned
in section l90, and are, apparently, exhaustive. The question is,
whether against the newly added accused, cognizance will be
supposed to have been taken on the Magistrate's own informa-
tion under section l90(l)(c), or only in the manner in which
cognizance was first taken of the offence against the other accus-
ed. In concrete terms, if the original case was instituted on a
police report, i.e. under section l90(1)(b), will cognizance
against the new accused be supposed to have been taken in the
same manner, or under section l90(l)(c) ? The question is
important, because the methods of enquiry and trial in the two
cases differl. About the true position under the existing law,
there has been difference of opinion, and we think it should be
made clear. It seems to us that the main purpose of this parti-
cular provision is, that the whole case against all known suspects
should be proceeded with expeditiously, and convenience requires
that cognizance against the newly added accused should be taken
in the same manner as against the other accused. We, there-
fore, propose to re-cast section 351 making it comprehensive and
providing that there will be no difference in the mode of taking
cognizance if a new person is added as an accused during the
proceedings. It is, of course, necessary (as is already provided)
that in such a situation the evidence must be re-heard in the
presence of the newly added accused.

24.82. The oﬁence for which the newly added accused can
be tried is not indicated in precise terms in the section. Obvi-
ously, that offence should be connected with the one for which
the original accused is under trial. To bring that out, a small
verbal amendment is recommended.

24.83. Section 351 should, therefore, be amended to read
as follows z---

''351. (1) Where, in the course of an inquiry into or
trial of an offence, it appears from the evidence that any
person not being the accused has committed any offence for
which such person could be tried together with the accused,
the Court may proceed against such person for the offence
which he appears to have committed.

(2) Where such person is attending the Court, although
not under arrest or upon a summons, he may be detained by

1See sections 207. 207A. 251 and 251A

How_ is
cognizance
taken 'I

Oﬂences to be

indicated.

Amendment of s.
351 recommen-
ded.

Power to proceed
against other per-
sons appearing to
be guilty of
oﬁence.

220

such Court for the purpose of the inquiry into or trial of the
oﬁence which he appears to have committed.

(3) Where such person is not attending the Court, he
may be arrested or summoned, as the circumstances of the
case may require, for the purpose aforesaid.

(4) Where the Court proceeds against any person under
sub-section (1), then-- V

(a) the proceedings in respect of such person shall be
commenced afresh, and the Witnesses re--heard;

(b) subject to the provisions of clause (a), the case may
proceed as if such person had been an accused per-
son when the Court took cognizance of the offence
upon which the inquiry or trial was commenced.

[Section 352. 24.84. Section 352 contains the healthy rule that Criminal
Courts should ordinarily be open to the public, and no change
is to be suggested in that rule.

CHAPTER XXV

OF TAKING AND RECORDING EVIDENCE IN

INQUIRIES AND TRIALS

MODE

25.1. Section 353 lays down the general rule that at any
inquiry or trial, all evidence "shall be taken in the presence of
the accused, or, when his personal attendance is dispensed with,
in presence of his pleader". There is a difference of judicial
opinion as to whether the words "when his personal attendance
is dispensed with" occurring in this section confer by themselves
a power on the Court to dispense with the personal attendance
of the accused, or whether they merely refer to the two other
provisions of the Code, namely sections 205 and 540A, under
which such attendance can be dispensed with. The Madras}
Allahabad? and Assarn3 High Courts have taken the view that
the section itself empowers the Court to dispense with the atten-
dance of the accused at the evidence stage but the contrary view
has been taken by the Calcutta' High Court. In our opinion,
section 353 is not intended to confer an independent power of
dispensing with the personal attendance of the accused and this
should be made clear by adding a reference to sections 205 and
540A after the words "dispensed with".

We considered a suggestion that in cases where the accused
deliberately obstructs the proceedings or otherwise makes it im-
possible for the Court to take the evidence of witnesses in his
presence, it should be lawful for the trial to proceed in his ab-
sence, or even in the absence of his pleader if he has no pleader
to represent him. Since, however, no such diﬂiculty has arisen
in practice, so far as we are aware, we do not consider it neces-
sary to provide for such a contingency.

25.2. The object of section 354 is purely to introduce the
next seven sections. It enacts no rule of procedure and is really
superﬂuous. Furthermore, the reference to a Sessions Judge is,
strictly speaking, not correct; it should be to a Court of Session
so that there is no doubt as to the applicability of the sections
to Additional and Assistant Sessions Judges. We also propose
to place inquiries and trials by Presidency Magistrates on the
same footing as those by other Magistrates in regard to the re-
cording of evidence. We, therefore, recommend that this section
be omitted.

25.3. Section 355 governs the recording of evidence in three
categories of cases, namely (1) summons cases tried before a
Magistrate other than a Presidency Magistrate; (ii) cases of the
oﬂences mentioned in clauses (b) to (m) of section 260(1)
when tried by a Magistrate of a first or second class but not sum-
marily; and (iii) proceedings under section 514 otherwise than

--~17:rT:_'U}nma1'Haiamuh. A.I.R. 1947 Mad. 433. 434.

9 Sultan Sinqh v. The State, A.I.R. 1951 All. 864. 867 (Full Bench);
Aditya Prasad v. Jogindra Nath. A.I.R. 1948. All. 393. 395.

3KamaI Devi' v. Pannalal. A.I.R. l952 Assam 151.
'Kali Das v. The State, A.I.R. 1954 Cal. 576.

Section 353.

Section 354-
omission
recommended.

Different _ modes
of recording
evidence.

Language of
evidence and
language of
record.

Section 355 to
359 and 362 not
well drafted.

222

in the case of a trial. The essential feature is that in these cases,
the Magistrate is only required to make a memorandum of the
substance of the evidence of each witness as the examination of
the witness proceeds. Section 358, however, provides that the
Magistrate may, if he thinks ﬁt, take down the evidence of any
witness in a fuller manner as provided for warrant cases.

The mode of recording evidence in all other trials except
before Presidency Magistrates and in all inquiries under Chapter
XII and XVIII is regulated mainly by sections 356 and 359. In
these cases, evidence has to be recorded in greater fullness, gene-
rally in the form of a narrative and occasionally, when consider-
ed necessary by the presiding Judge or Magistrate, in the form
of questions actually put and answers actually given.

Section 362 applies to trials by Presidency Magistrates. Here
again two modes of recording evidence are prescribed, a distinc-
tion being made between cases in which an appeal lies and cases
in which there is no appeal. In the former class of cases, evi-
dence is recorded in the same manner as in the trial of warrant-
cases by Magistrates, while in the latter class of cases the Presi-
dency Magistrate need not record the evidence at all.

The manner of recording evidence in cases coming up before
the High Courts (other than Judicial Commissioners' Courts)
is left to be prescribed by the Courts themselves under section
365.

25.4. The language or languages in which this record of evi-
dence is to be prepared is also regulated by sections 356 and
357, but only in regard to sessions trials, trials of warrant-cases
and committal proceedings. Neither section 355 nor section 362
refers to the language in which the evidence is to be recorded in
summons-cases and by Presidency Magistrates. Presumably,
however, it is to be done in the language of the Court or in
English. Under section 356, the evidence is ordinarily to be
taken down in the language of the Court. When the evidence is
given in some other language, including English, it may, if prac-
ticable, be taken down in that language or, if it is not practicable
to do so, the evidence has presumably to be translated into the
language of the Court as the examination of the witness proceeds
and such translation is to be recorded. Sub--section (3) of sec-
tion 356 provides that in cases where the presiding Judge or
Magistrate does not take down the evidence with his own hand
or dictate it in open Court, he should make a memorandum of
the substance of what each witness says and this memorandum
also shall form part of the record. Section 357 contains a curious
provision that the State Government may direct that in any dis-
trict or part of a district, or in any proceedings before any Court
of Session. or before any Magistrate or class of Magistrates, evi-
dence shall be taken down by the Sessions Judge or Magistrate
with his own hand and in his mother-tongue. The same section.
however, goes on to provide that the State Government may
direct the Sessions Judge or the Magistrate to take down the
evidence in English or in the language of the Court although
such language is not his mother-tongue.

25.5. This broad summary of sections 355 to 359 and 362
shows that they are a confused jumble of provisions, incomplete
in some respects, and not very clearly or systematically arranged.

223

The language in which the evidence is actually given and the
language of the record are occasionally mixed up. For inst-
ance, it is not in all cases correct to say that the Judge or Magis-
trate "takes down" the evidence in his mother-tongue or in
English or in the language of the Court. When the witness is
giving evidence in an altogether different language, what is taken
down, or caused to be taken down, by the Judge or Magistrate
is a simultaneous translation of that evidence in his mother~
tongue or English or the language of the Court, as the case may
be.

25.6. In this connection it will be useful to remember. parti- predominant
eularly in regard to the language of the record, that this Chapter position , of
was enacted at a time when English was the language in which E"§1"h "' ""3
the business of practically all the criminal courts was conducted D33'
and all evidence given in the regional language was translated
into, and recorded in English. The dual record of the evidence,
for which provision is made in section 356(3), owed its origin
to the same circumstance. The Sessions Judge or Magistrate W3';
often not sutliciently acquainted with the regional language in
which most of the evidence was given, to take it down in that
language. Consequently, the law had to provide for the pre-
paration of a full record of the evidence by a court official, the
Judge or Magistrate only taking notes of the evidence as the exa-
mination of the witness proceeded.

25.7. In view of the greatly changed conditions which now Simpuﬁcatioii
prevail, we think it desirable to analyse, both the mode of record- desirable-
ing evidence and the language of the record for different classes
of cases and courts and to simplify the provisions contained in
this Chapter.

25.8. Taking section 355 which prescribes what may be cal-- Section 355--
led a brief record of the evidence in three categories of cases, we I3"3!"'g°d 'O b°
have already mentioned the fact that it is silent as to the language m"m°"° '
of the record. This omission should be rectified by stating in
the section itself that the Magistrate shall make a memorandum
of the substance of the evidence in the language of the Court or
in English. This would be in accord with the present practice.

25.9. This section at present covers summons--cases tried Sealgn 'O °°V°"
before a Magistrate other than a Presidency Magistrate. Earlier ﬁfggﬁsﬁgctzs
in this report we have recommended the inclusion of Presidency '
Magistrates in section 260(1) in order that they may be able to
try all summons--cases (and also the warrant-cases specified in
that section) in a summary way. In practice, the number of
summons--cases tried by Presidency Magistrates in a regular
manner must be comparatively very small. It could hardly make
any difference if in those few cases they record the evidence
brieﬂy in the same manner as Magistrates elsewhere are required
to do under section 355. The words "other than a Presidency
Magistrate" occurring in sub--section (1) of this section may
accordingly be omitted.

25.10. The second category of cases in which a brief record Section not to
is prescribed by this section are warrant-cases relating to the 11991110 MY
otferioes mentioned in clauses (b) to (in) of section 260(1) ""3" 435°"-

Section toapply
to inquiries
under Chapter
XII.

Revised section

355

Record in sum-
mons-cases,

inquiries under
Chapter XII and
proceedings un-
der section 514.

Section 358-
omission
recommended.

224

when tried by the Magistrate of a first or second class in the
regular- way. Though some of these cases may be trivial, in view
of the possibility of substantial sentences being imposed in such
cases when not tried summarily, we think a full record of the
evidence would be desirable. We, therefore, recommend
omission of this part of sub-section (l) of section 355.

25.1]. On the other hand, in inquiries under Chapter XII
i.e. sections 145. 146 and 147, which are now governed by
section 356, a brief record of the evidence will be quite suliicient
as the object of these proceedings is not determination of any
right to irnmoveable property but the prevention of an appre-
hended breach of the peace and the proceedings are intended to

summary in character. The reference to Chapter XII should

accordingly be transposed from section 356(1) to section
355(1).

25.12. Including a few drafting changes, the revised section
355 may read as follows :--

"355. (1) In: all summons-cases tried before a Magistrate,
in all inquiries under Chapter XII, and in all pro-
ceedings under section 514 otherwise than in the
course of a trial, the Magistrate shall, as the exami-
nation of each witness proceeds, make a memo-
randum of the substance of his evidence in the
language of the Court or in English :

Provided that if the Magistrate is unable to make such
memorandum himself, he shall, after recording the
reason of his inability, cause such memorandum to
be made from his dictation in open Court,

(2) Such memorandum shall be signed by the
Magistrate and shall form part of the record."

25.13. Section 358 which is a sort of proviso to section 355
is hardly necessary. It purports to enable the Magistrate to take
down the evidence in a fuller manner than that contemplated in
section 355. This is not necessary since there could be no
technical objection to any Magistrate taking down a memo-
randum of the evidence of each witness instead of trying to abbre-
viate or summarise it. Section 358, could, in our opinion, be
safely omitted.

25.14. The mode of recording evidence in trials of warrant-
cases before Magistrates, inquiries _under _Chapter XVIII and
sessions trials is prescribed partly in section 356 and partly in
section 359. The language of the record is dealt _with partly in
section 356 and partly in section 357. The provisions would be
clearer and easier to follow if they were put in_ three. separate
sections: one dealing with the mode of _ recording evidencenn
warrant-cases and comrmtment proceedings, another deahng
with the mode of recording evidence in sessions trials, and the
third dealing with the language of the record in all these cases.

225

25.15. The first two sections may be as follows :--

"356 (1) In all warrant-cases tried before a Magistrate
. . . . ..,1 the evidence of each witness shall, as his
examination proceeds, be taken down in writing
either by the Magistrate himself or, under his direc-
tion and superintendence by an oﬂicer of the Court
appointed by him in this behalf.

Such evidence shall ordinarily be taken down in the
form of a narrative; but the Magistrate may, in his
discretion, take down, or cause to be taken down,
any part of such evidence in the form of question
and answer.

The evidence so taken down shall be signed by the
Magistrate and shall form part of the record.

(1) In all trials before a Court of Session, the
evidence of each witness shall, as his examination
proceeds be taken down in writing either by the
presiding Judge himself or, under his direction and
superintendence, by an oﬂicer of the Court
appointed by him in this behalf.

Such evidence shall ordinarily be taken down in the
form of question. and answer; but the presiding
Judge may, in his discretion, take down, or cause
to be taken down, the whole or any part of such
evidence in the form of a narrative.

The evidence so taken down. shall be signed by the
presiding Judge and shall form part of the record."

(2)

(3)

357.

(2)

(3)

25.16. have made two important changes in this revision,
besides :2. .. ' fying the unduly complicated provisions now
Contaivwcal ..-l sections 356, 357 and 359. First, we consider that
at the pie-,-ant time there is no need for the dual record which
is being prepared in a few north Indian States under section
356(3). In cases where the evidence is not recorded by the
Magistrate or presiding Judge himself but by an officer of the
Court under his direction and superintendence, the notes? which
he may (or may not) keep for his own use need not necessarily
form part of the record as provided in this section. Neither of
the revised sections 356 and 357 contains a provision similar to
sub--section (3) of the present section 356. It will also be
noticed that details like "from his dictation in open Court" "in
his presence and hearing" and "personal direction" which now
occur in the present sections 356 and 357 have been omitted in
the revised sections as being superﬂuous.

25.17. The second substantial change we have proposed is
that in sessions trials evidence of each witness should ordinarily
be recorded in the form of question and answer, though the
presiding, Judge may, in his discretion, have the whole or any
part of the evidence recorded in the form of a narrative. This is

1 In section 356(1). mention of Chapter 18 is omitted in view of pro-
posed changes retzardimz commitment.

,2Such notes were invariably in English while the full record of the
evidence used to be in Urdu.

Revised Sections
356 and 357.

Record in
warrant cases and
inquiries under
Chapter XVIII.

Record in trials
before Courts of
Session.

Language of
record of
evidence.

Section 360.

226

reversing the existing position under section 359. It can hardly
be disputed that, in the process of converting a question put by
the advocate, particularly in cross-examination, and the answer
given by the witness, to a sentence purporting to be the witness's
statement, accuracy is often lost and the record does not always
convey all the implications of the question and the answer. We
recognise that making :1 full record of the evidence in the form
of questions and answers almost necessarily involves the
employment of shorthand writers at every sessions trial but con-
sider that this step has to be taken in the interests of justice.
The additional expense which it might seem to involve is, in our
opinion, worth incurring, since the presiding Judge would be
relieved of the tiresome task of recording the evidence himself
and be able to concentrate attention on what the witness is say-
ing and assess its worth.

25.18. As regards the language of the record we propose the
following new section :--

"358. In every case where evidence is taken down under
section 356 or 357--

(a) if the witness gives evidence in the language of the
Court, it shall be taken down in that language;

(b) if he gives evidence in any other language, it may
if practicable be taken down in that language, and
if it is not practicable to do so, a true translation of
the evidence in the language of the Court shall be
prepared as the examination of the witness pro--
ceeds, signed by the Magistrate or presiding Judge,
and shall form part of the record; and

(c) where under clause (b) evidence is taken down in
a language other than the language of the Court, a
true translation thereof in the language of the
Court shall be prepared as soon as practicable
signed by the Magistrate or presiding Judge and
shall form part of the record:

Provided that when under clause (b) evidence is taken
down in English and a translation thereof in the language
of the Court is not required by any of the parties the
Court may dispense with such translation."

25.19. Section 360 which prescribes the procedure to be
followed after the evidence of each witness has been taken under
section 356 or 357 requires only one or two formal amendments.
In sub-section 2, for the words "Sessions Judge", the words
"presiding Judge" may be substituted. In sub-section (3), it
would be more accurate to refer to the record of the evidence
being in a language different from that in which it has been
given. The sub-section may be amended to read :

"(3) If the record of the evidence is in a language
different from that in which it has been given and
the witness does not understand that language, the
record shall be interpreted to him in the language
in which it was given, or in a language which he
understands."

227

25.20. Section 361, which deals with the interpretation of
the evidence to the accused or his pleader needs no change.

25.21. As already mentioned, the recording of evidence in
inquiries and trials mfore the Presidency Magistrate will be
governed by the same provisions as those applicable to other
Magistrates. A distinction is now made in section 362 between
cases in which an appeal lies and those in which no appeal lies.
If the case falls in the latter category---and the Magistrate has
to make up his mind at the beginning of the trial which prima
facie is not appropriate the Magistrate need not record any
evidence. If the Magistrate thinks that the case is such that in
the event of conviction of the accused, he may have to pass an
appealable sentence, he has to record the evidence in the same
way as a Magistrate in a district. We do not think it is desirable
to maintain this distinction. Another peculiar feature is that in
a non--z-ippealable warrant--case it is not necessary for a Presi-
dency Magistrate to frame a charge: vide section 362(4). There
is hardly any justiﬁcation for this artiﬁcial distinction. We
recommend the omission of the whole of section 362.

25.22. No change of substance is required in section 363,
which relates to remarks respecting the demeanour of witness;
but the reference to "a Sessions Judge", may be replaced by the

¢r+1

words the presiding Judge" in order that there may be no doubt

as to the applicability of the section to an Additional or
Assistant Sessions Judge.
25.23. Section 364 relates to the mode of recording the

examination of the accused and the language of such examina-
tion and of the record. It applies to all Magistrates other than
Presidency Magistrates whose proceedings in this respect are
regulated by section 362(2A). Since the omission of section

362 is being proposed, sub-section (2A) of that section may be
included in section 364.

This section does not apply to the High Courts of States but
applies to the Courts of Judicial Commissioners. Apparently, the
matter is left to be dealt with either by rules made under
section 365 on the footing that "evidence" in a wide sense
includes the examination of the accused, or by the rules of Court
referred to in article 225 of the Constitution. However that
may be, since original criminal trials before a High Court or a
Judicial Commissioner's Court are rare, the exclusion of these
Courts from the scope of section 364 is not of any practical
consequence. There is no need to treat the Courts of Judicial
Commissioners differently and they also may be excluded.

In sub-section (2), the requirement that the record shall be
signedonly "when the whole is made conformable to what the
accused declares is the truth" is not very appropriate. The pro-
vision in sub-section (1) that he shall be at liberty to explain or
add to his answers is suﬂicient for practical purposes.

We propose that the section may be revised as follows :----

"364. (1) Whenever the accused is examined by a
Metropolitan Magistrate, the Magistrate shall make
a memorandum of the substance of the examina-

Section 361.

Section 362.

Section 363.

Section 364.

Record of exami-
nation of accused.

Section 365.

Record in high
court.

228

tion of the accused in the language of the Court or

in English. Such memorandum shall be signed by.
the Magistrate and shall form part of the record.

(2) Whenever the accused is examined by any
Magistrate other than a Metropolitan Magistrate, or
by a Court of Session, the whole of such examina-
tion, including every question put to him and every
answer given by him, shall be recorded in full
either by the Magistrate or Judge himself or under
his direction and superintendence by an oﬂicer of
the Court appointed by him in this behalf.

(3) The record shall, if practicable, be in the language
in which the accused is examined or, if that is not
practicable, in the language of the Court.. . . .

(4) The record shall be shown or read to the accused,
or, if he does not understand the language in which
it is written, shall be interpreted to him in a
language which he understands, and he shall be at
liberty to explain, or add to his answers.

(5) It shall thereafter be signed by the accused and by
the Magistrate or presiding Judge who shall certify
under his own hand that the examination was taken
in his presence and hearing and that the record
contains a full and true account of the statement
made by the accused.

(6) Nothing in this section shall be deemed to apply to
the examination of an accused person in the course
of a summary trial."

25.24. Section ~365 may be amended so as to confer a rule-
making power on Judicial Commissioners' Courts besides the
High Courts of States and also to cover expressly examination
of the accused. The section may read as follows :--

"365. Every High Court may, by general rule, prescribe
the manner in which the evidence of witnesses and the exami-

nation of the accused shall be taken down in cases coming '
before it; and such evidence and examination shall be taken-..

down in accordance with such rule."

CHAPTER XXVI

JUDGMENT

26.l..Section 366(1) deals with the modes of pronouncing a judgment, though the marginal note to the section speaks of "delivering" a judgment. Under section 366(1) a judgment may Section 366 (l)--

Modes of_ pro-

nouncing judge-

be pronounced or its substance explained. Here "pronounced" men evidently means the reading out of the whole judgment. The proviso to section 366(1) states that, if the prosecution or the defence so desire, the whole judgment shall be read out. Further, under section 367(1), it is permissible to dictate a judgment in court. Thus, a reading of sections 366 and 367 reveals three modes of pronouncing a judgment--

(a) delivering a judgment by dictation in open court;

(b) reading out the whole of a written; and

(c) explaining the substance of the written.

judgment already judgment already We feel that all the three modes should be one section. Further, the provisions ing the dating and signing of included in this section.

brought under of section 367(1) regard-

judgments should also be 26.2. Section 367(1) provides that the judgment shall be dated and signed at the time of pronouncing it. However, it is quite obvious that unless the judgment is a very short one, this requirement cannot be satisﬁed where the judgment is pro- nounced by dictating in court. Transcribing a dictated judg-- ment will take time. In such cases the judgment can be signed and dated only when the transcript is ready----which may be some hours or even days after the judgment is pronounced. Therefore, besides re-arranging the matter contained in section 366(1) and 367(1) as we have recommended above, the position regarding the dating and signing of judgments dictated in court has also to be stated more clearly.

26.3. We also propose to add a provision to the effect that when the judgment is pronounced by explaining the substance of it, the operative part of the judgment should be read out.

26.4. The main paragraph of section 366(1) provides that the judgment shall be pronounced or its substance explained. Clause (a) says that this should take place immediately on the termination of the trial or on a later notiﬁed date; and under clause (b) it should be in the language of the court or in some language the accused or his pleader understands. Clause (:1) obviously applies to both modes of pronouncing the judgment, but clause (b) evidently has reference only to explaining the substance of the judgment, as otherwise it would mean that the judgment should be written or read out in some language the accused understands. We think, that the reference to a language Dating_ and sign-

ing of Judgment.

Operative part should be read-

out.

Reference to language in s.

366(1) (b) unnecessary.

Reading out whole judgment need to be com-

pulsory.

Section 366(2).

Section 366(3) and 366(4).

Amendment of Section 366 recommended.

230

the accused or his pleader understands may be safely omitted, as the court, when "explaining" the substance of the judgment will ensure that the accused understands what is being explained.

26.5. The proviso to section 366(1) requires the court to read out the whole judgment if so requested by either party. We think that it would suiﬁce if the judgment or a copy thereof is made available for the perusal of either party. We also propose to make it clear, that this should be conﬁned to cases where the judgment is pronounced by explaining its substance. Obviously, when the whole judgment is read out or dictated, there is no point in requiring a copy for perusal.

26.6. Section 366(2) provides that the judgment shall be pronounced in the presence of the accused, except in certain speciﬁed instances where the presence of his pleadcr is suffi- cient. This requirement can give rise to difficulties in cases where there are more accused than one and some of them, out on bail, fail to appear at the time of judgment. In such cases, the pronouncement of the judgment will have to be postponed even against the accused present in court, till the absconding accused are apprehended. This, apart from wasting the time of the court, will also cause needless harassment to the other accused.

We would, therefore, recommend that a power be given to the court to pronounce judgment in such instances, even if one or more of the several accused in the case are not present to hear it, making it clear that the power is to be used only to prevent undue delay. True, even under the present provisions such a pronouncement will not be an illegality due to the saving provi- sion in section 366(3); but it would be better to give the court such power in clear terms than to leave the procedure as an irregularity curable under another section. A consequential amendment1 to section 383 will be necessary in order to provide that in such cases the Magistrate shall issue a warrant for the arrest of the accused who is absent.

Two other changes also appear necessary in sub-section (2). It provides that the accused need not be present to hear the judgment if his personal attendance during trial had been already dispensed with and the sentence to be passed is only one of ﬁne or if he is acquitted, in both of which cases the presence of the accused's pleader is suﬂicient. We do not think it necessary to insist on the presence of even the pleader in such cases. Secondly, the sub-section, as it stands, deals with the cases of the accused in custody as well as the accused on bail. It would be better, in the interests of clarity, to provide for these two cases separately.

26.7. No changes are needed in sections 366(3) and 366(4).

26.8. Section 366 may, in the light of the above discussion, be amended to read as follows :--

Judgment "366.(1) The judgment in every trial in any Criminal Court of original jurisdiction shall be pronounced 1See para. 28.5 below.

A, 231 in open court by the presiding oﬂicer immediately after the termination of the trial or at some subsequent time of which notice shall be given to the parties or their p1eaders,-----

(a) by delivering the whole of the judgment; or

(b) by reading out the whole of the judgment; or

(c) by reading out the operative part of the judgment and explaining the substance of the judgment.

(2) Where the judgment is delivered under clause (a) of sub-section (1 ), the presiding officer shall cause it to be taken down in short--hand, sign the transcript and every page thereof as soon as it is made ready, and write on it the date of the delivery of the judgment in court.

(3) Where the judgment or the operative part thereof is read out under clause (b) or clause (c) of sub--section (1), it shall be dated and signed by the presiding oﬂicer in open court, and if it is not written with his own hand, every page of the judgment shall be signed by him.

(4) Where the judgment is pronounced in the manner speciﬁed in clause (c) of sub--section (1), the whole judg-

ment or acopy thereof shall be immediately made available for the perusal of the parties or their pleaders free of cost.

(5) If the accused is in custody, he shall be brought up to hear the judgment pronounced.

(6) If the accused is not in custody, he shall be required by the court to attend to hear the judgment pronounced, except where his personal attendance during the trial has been dispensed with and the sentence is one of ﬁne only or he is acquitted . . . . . . ..;

Provided that. where there are more accused than one, and some of them do not attend the court on the date on which the judgment is to be pronounced, the presiding officer may, in order to avoid undue delay in the disposal of the case, pronounce the judgment notwithstanding their absence.

(7) No judgment delivered by any Criminal Court shall be deemed to be invalid by reason only of the absence of any party or his pleader on the day or from the place noti- ﬁed for the delivery thereof, or of any omission to serve, or defect in serving. on the parties or their pleaders, or any of them, the notice of such day and place.

(8) Nothing in this section shall be construed to limit in any way the extent of the provisions of section 537."

26.9. We have already considered1 that part of section 367(1) which deals with the dating and signing of the judgment. The remaining part deals with the contents of the judgment. The same topic is also dealt with in sub-sections (2) and (4). We recommend that all these provisions be brought together under me sub--section, so that one can know at a glance what the ontents of a judgment should be.

1Sce para. 26.2 above.

Section 367.

Section 367 and reasons for sen-

tence in capital cases.

Pronouncement of judgment ,,_ by successor.

Section 367(6).

232

No changes are needed in sub-section (3) of section 367. Sub-section (5), is relevant only to trials by jury. As this of trial is proposed to be abolished, sub-section (5) of section 367 may be omitted.

26.10. A recommendation relevant to section 367 was made in the Law Commission's Report1 on Capital Punishment, while considering the question whether a provision requiring the court to state its reasons for awarding the sentence of death or irnpri- sonment for life in a capital case, should be inserted. The conclusion was thus expressed--

"The replies to question 8 show a considerable body of opinion which is in favour of a provision requiring the court to state its reasons for imposing the punishment either of death or of imprisonment for life. Further, this would be a good safeguard to ensure that the lower courts examine the case as elaborately from the point of view of sentence as from the point of view of guilt. It would also provide good material at the time when a recommendation for mercy is to be made by the court, or a petition for mercy is consi- dered. Again, it would increase the conﬁdence of the people, in the courts, by showing that the discretion is judicially exercised. It would also facilitate the task of the High Court in appeal or in proceedings for conﬁrmation in respect of the sentence (where the sentence awarded is that of death), or in proceedings in revision for enhancement of the sentence (where the sentence awarded is one of impri- sonment for life).

Thus, there appears to be sufficient justiﬁcation for a provision requiring the court to state its reasons, whenever it awards either of the two sentences in a capital case. We recommend the insertion of such a provision in the Code of Criminal Procedure, 1898."

We are also of the same view, and recommend that the section be amended accordingly. In this connection, it may be noted that there are certain offences for which the Penal Code prescribes the punishment as death or in the alternative, life imprisonment or imprisonment for a term of years. Therefore, the amendment recommended above should cover these cases also.

26.11. We note that there is no provision in the Code as to pronouncement of a judgment written by a predecessor. We considered the question whether any provision on the subject should be inserted. In our view, it is not proper that in criminal cases, a judge should pronounce a judgment written by his pre- decessor. He can, no doubt, make use of the material contained in the (draft) judgment prepared by his predecessor. But in that case he is himself responsible for the contents of the judg- ment.

26.12. Section 367(6) provides that for the purposes of this section, an order under section 118 or section 123(3) shall be 1 35th Report (Capital Punishment), paragraph 820-822.

233

deemed to be a judgment. Its main object seems to be to ensure that, in any such order reasons are given separately for the order as to each person proceeded against. It is, in our view, suﬁicient to provide1 in section 118 itself that reasons should be recorded for an order under that section. No such provision is necessary for orders under section 123. These orders are passed by Sessions Judges, who may be expected to give reasons without a statutory provision.

26.13. Revised on the lines suggested above, section 367 will read as follows :--

"367. (1) Except as otherwise expressly provided by this Code, every such judgment--

(a) shall be written in the language of the Court or in English;

shall contain the point or points for determination, the decision thereon and the reasons for the decision;

(c) shall specify the offence (if any) of which, and the section of the Indian Penal Code or other law under which, the accused is convicted and the punishment to which he is sentenced; and

(d) if it be a judgment of acquittal, shall state-the offence of which the accused is acquitted and direct that he be set at liberty.

(2) When the conviction is under the Code and it is doubtful under which of two sections, or under which of two parts of the same section, of that Code the oﬁence falls, the Court shall distinctly express the same, and pass judgment in the alternative.

(13)

Indian Penal (3) When the conviction is for an offence punishable with death or in the alternative with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded.

26.14. No changes are needed in section 368.

26.15. Section 369, as enacted in 1898, provided that "no Court, other than a High Court, when it has signed its judgment, shall alter or review the same, except as provided in sections 395 and 484 or to correct a clerical error." Despite the express exclusion of the High Courts from the operation of this provision, they held" that they had no implied power to alter or review their own judgments whether under section 369 or under section 439 or otherwise. It was accordingly proposed in 1921 that the words "other than a High Court" should be omitted to make it clear that section 369 conferred no such power on the High Courts. The Joint Committee which examined the Bill noticed that one or two other sections in the Code, besides sections 395 and 484, and clause 26 of the Letters Patent of the High Courts, 1 See para. 8.15 above.

'3 Queen Empress v. Durga Charan, (1885) I.L.R. 7 All. 672; Queen Empress v. C. P. Fox, (1885) I.L.R. 10 Born. 176 (F.B.); In the matter of Gibbons. (1886) I.L.R. 14 Cal. 42 (F.B.).

Revision of Sec-

tion 367 recom-

mended.

Language _ and contents of Judg-

ment.

Section 368.

Section 369 appli-

cability to High Courts.

Amendment recommended.

High Court's power of review.

Section 370.

234

empowered the High Courts to revise their judgments. They accordingly re--drafted the amendment to read as follows :--

"In section 369 of the said Code, for the words 'No Court other than a High Court', the words 'Save as other- wise provided by this Code or by any other law for the time being in force or, in the case of a High Court established by Royal Charter, by the Letters Patent of such High Court, no Court' shall be substituted; and the words and ﬁgures 'as provided in sections 395 and 484' shall be omitted."

Subsequent adaptation in 1950 and formal amendment in 1955 have given the section its present form.

26.16. It is, however, clear that the Letters Patent or other instrument constituting a High Court are also laws for the time being in force and accordingly the words "or in the case of a High Court established by the Letters Patent or other instrument constituting such High Court" are redundant and somewhat confusing. In fact, the reference to Letters Patent of the older High Courts is practically obsolete after the insertion of section 411A in the Code. We, therefore, recommend that the words cited above should be omitted from the section.

26.17. It is to be noted that the judgment referred to in section 369 is the judgment of a criminal court in its original jurisdiction vide section 366(1). The rule in section 369 that no court shall alter or review its own judgment except to correct a clerical error is made applicable by section 424 to the judgment of any appellate court other than a High Court. The question whether a High Court has any inherent power of reviewing its judgment in an appeal or revision will be considered later under section 561A.

26.18. Section 370 relieves a Presidency Magistrate of the task of writing a detailed judgment setting out the point or points for determination, the decision thereon, reasons for the decision, etc., as provided in section 367 for other Magistrate. He has. only to record the essential particulars of the case and the ﬁnal order in all cases, and in those cases in which he inﬂicts imprison- ment, or ﬁne exceeding Rs. 200, or both, a brief statement of the reasons for the conviction. It will be noticed that under section 411 a sentence of ﬁne not exceeding Rs. 200 is not appealable and, presumably because of this fact, section 370, clause (i) does not require a Presidency Magistrate to record the reasons for the conviction when the ﬁne is within this limit. In regard to sentences of imprisonment, however, the said clause is not logical even where the imprisonment inﬂicted is not more than six months and consequently the sentence is not appealable under section 411, the Presidency Magistrate has to record reasons for the conviction. Then again, although a judgment of acquittal is appealable under section 417, the Presidency Magistrate need not record even a brief statement of the reasons for his decision which the prosecution might not always ﬁnd satisfactory. We consider that it would be more logical and reasonable to provide in clause (i) of section 370 that, in all cases in which an appeal 235 lies from the ﬁnal order either under section 411 or under section 417, the Presidency Magistrate should record a brief statement of the reasons for his decision. This clause should be amended to read--

"(l) in all cases in which an appeal lies from the ﬁnal order either under section 411 or under section 417, a brief statement of the reasons for the decision."

26.19. Under sub-section (1) of section 371, a copy of the judgment has to be given without delay to the accused on his application. Though the section does not say that this should be a certified copy the Supreme Court has held1 that "whether it is the accused person who applies for a copy under s. 371, sub- section (1) and (2) or it is the State which applies for a copy. the copy supplied by the public officer must be a certiﬁed copy." In conformity with this interpretation the words "certiﬁed copy"

may be substituted for the word 'copy'.

This sub-section further provides that the copy shall be given free of cost except in a summons case. Considering that the main object of the sub-section is to facilitate the lodging of an appeal by the accused without avoidable delay, we propose that the second sentence of sub-section (1) should be amended to read "such copy shall, in every case where the judgment is appeal- able by the accused, be given free of cost."

In cases where the High Court passes or conﬁrms or main- tains a death sentence, a certiﬁed copy of the judgment should, in our view, be immediately given to the accused whether or not he applies for it. This would enable him to make immediate preparations for an appeal.

Accordingly, sub-section (1) of s. 371 may be simpliﬁed to read as follows :--

"37l. (1) On the application of accused, a certiﬁed copy of the judgment, or when he so desires, a translation in his own language, if practicable, or in the language of the Court, shall be given to him without delay. Such copy shall, in every case where the judgment is appealable by the accused, be given free of cost:

Provided that where a sentence of death is passed, conﬁrmed or maintained by the High Court, a certiﬁed copy of the judgment shall be immediately given to the accused free of cost, whether or not he applies for the same.

Sub-section (2) of s. 371 may be omitted as it relates to trials by jury and consequentially the words "or sub-section (2)"

in sub-section (4) may also be omitted. Sub-section (3) does not require any change.

Since an order under s. 118 may result in the imprisonment of the defendant, we think it desirable that the provisions of sub- section (1) of this section should also apply to any order under 1State of L-'.P. v. C. ATobit. 1958 S.C.R. 1275. 1280.

Section 371.

Copy of judg-

ment to be given to accused.

236

s. 118. We, therefore, propose the addition of _a new sub-section (2) in lieu of the existing sub-section (2) reading as follows :--

"(2) The provisions of sub-section (1) shall apply in relation to an order under section 118 as they apply in relation to a judgment which is appealable by the accused."

gggtions 372 and 26.20. No changes are needed in sections 372 and 373. V-

CHAPTER XXVII SUBMISSION OF SENTENCES FOR CONFIRMATION 27.1. When the Court of Session passes sentence of death and the proceedingsare submitted to the High Court, section 374 provides that the sentence shall not be executed unless it is conﬁrmed by the High Court. In an appeal which came before the Supreme Court, the accused had been sentenced to death by the Court of Session but the High Court, holding that section 27 of the Evidence Act was unconstitutional, excluded a statement admitted under that section and acquitted the accused as the remaining evidence was not suﬂicient to establish his guilt. Against this order of acquittal the State appealed to the Supreme Court with a certiﬁcate under Article 134(1) (c) of the Constitu- tion granted by the High Court. The Supreme Court decided that section 27 of the Evidence Act was a valid provision and that, if the evidence admitted under that section was taken into account, there was no doubt as to the guilt of the accused. Their Lordships accordingly set aside the order passed by the High Court and restored the order passed by the Court of Session. They stated' :--

"It may be observed that the sentence of death cannot be executed unless it is conﬁrmed by the High Court. The High Court has not conﬁrmed the sentence, but in exercise of our powers under Article 136 of the Constitution, we may pass the same order of conﬁrmation as the High Court is, by the Code of Criminal Procedure, competent to pass. We accord- ingly conﬁrm the sentence of death."

It is difficult to follow the reference to Article 136; and it is pos- sible that a reference to Article 142(1) was intended. However that may be, in view of this decision of the Supreme Court, we do not think it is necessary to amend section 374 of the Code for this purpose.

27.2. After passing sentence of death, the Court of Session is expected to issue a "warrant of commitment under sentence of death" to the Superintendent of Jail. While the form of warrant is set out as form XXXIV in the Fifth Schedule to the Code, it is not expressly referred to or provided for in section 374 or any- where else. It is noticed that when the accused is sentenced by the Court of Session to imprisonment for life, section 383 expressly provides for the issue of a suitable warrant and the forwarding of the accused with the warrant to the jail in which he is to be con- ﬁned. It is desirable that a similar provision should be made in section 374 so that there may be speciﬁc statutory authority for holding the accused in prison after the Court of Session has passed sentence of death and until it is executed in due course. We recommend that a sub-section should be added as follows :--

"(2) The Court passing the sentence shall commit the convicted person to jail custody under a warrant."

'State of U.P. v. Deoman Upadhyaya. 1961(1) S.C.R. 14, 33.

Section 374 Sup-

reme Court's power to conﬁrm 111 appeal.

Authority to issue ;v4arrant in form Section 375.

Section 376.

Section 377.

Section 378.

238

27.3. In view of the abolition of jury trials, sub-section (2). of section 375 may be formally amended to read :--

"(2) Unless the High Court otherwise, directs, the pre-

sence of the convicted person may be dispensed with when such inquiry is made or such evidence is taken."

27.4. No change is needed in section 376.

27.5. Section 377 requires that every conﬁrmation case shall be heard and decided by a Bench of two or more Judges of the High Court. The section, however, does not apply to a Judicial Commissioner's Court which has only one Judge, as in the Union Territories of Manipur and Tripura. It is somewhat anomalous that a person sentenced to death in either of these Union Terri- tories does not have the beneﬁt of two Judges of the Court of Criminal Appeal reviewing his case as in the rest of India. An obvious way of removing the anomaly is to extend the jurisdiction of the Assam High Court to these two Union Territories. How- ever, since the number of death sentences passed by the two Ses- sions Judges is very small, the matter is not of much practical importance. No amendment is proposed in section 377.

27.6. The wording of section 378 is repeated in section 429* which applies when the Judges composing the Court of Appeal are equally divided in opinion in regard to "the case" heard by them. The question has frequently arisen under section 429 as to what exactly is the case that is to be laid before the third Judge, whether it means the entire case of all the accused and all the charges in which they were tried, or whether it means the entire case of a particular accused about whose guilt the Judges are equally divided in their opinion or whether, even more restrictedly, it means only the particular point or points of law or of fact on which there is a difference of opinion. This difficulty does not appear to have been felt to any noticeable extent with reference to section 378.

27.7. In any event we do not consider it necessary or desir- able to amend section 378 with the object of clarifying the posi- tion. When for instance ﬁve persons are tried together on charges of a capital offence, two are convicted and sentenced to death and the others are convicted of lesser offences, the whole proceed- ings before the Court of Session are submitted to the High Court for obtaining conﬁrmation of the two death sentences passed in the case. If the two Judges hearing the "referred cases" together with the connected appeals, if any, of the convicted persons, are agreed that the death sentence of one of them should be conﬁrmed but divided in opinion as to the other, it is "the case" heard by the Bench which has to be laid before another Judge together with the opinion of the two Judges. The matter in regard td which the third Judge has to deliver a binding and conclusive opinion under section 378 is not expressly indicated in the section. There can however be hardly any doubt that it is the matter over which there is a difference of opinion between the two Judges and that the third Judge is entitled and bound to consider this matter in all its aspects and give his opinion so that a conclusive judgment or order may follow thereon. There is nothing to be gained by amending or adding to the words used in section 378 which would only have the effect of fettering the discretion of the third Judge.

239

27.8. In several cases the question has been discussed whether the third Judge ought to consider himself bound by the views expressed by the two referring Judges on points On Which there was no difference between them. Under the corresponding pro- visions in the Letters Patent1 of High Courts and in the Code of Civil Procedure} the view of the majority of all the Judges includ- ing those who first heard the case prevails in a civil matter. The position in criminal cases, however, is different from that in civil cases where clear--cut issues of fact and law have to be framed and decided. As observed by the Supreme Court3 with reference to section 429, it is for the third Judge to decide on what points, if any, he will hear arguments and this postulates that he is com- pletely free to resolve the differences in such manner as he thinks fit and proper. The position for the purposes of section 378 is no doubt the same. In our view, no change in the Code of Crimi- nal Procedure is needed on this point, and the matter should be left to the discretion of the third Judge.

27.9. We may here refer to the amendment of section 378 proposed by the Lowndes Committee in 1917. They stated in their Report :--

"We think that in conﬁrmation cases, where the Judges hearing the case are equally divided, it may not always be suﬂicient to refer the case to another Judge by whose opinion it is to be decided. We think that it should be within the power of the Judges before whom the case was originally heard in the High Court to insist upon a re-hearing before themselves and the additional Judge. As in some cases this may not be feasible, we would allow the Chief Justice in any such case to direct a re--hearing before three other Judges."

That Committee accordingly proposed the addition of the follow- ing proviso to section 378 :--

"Provided that, if any Judge being a member of such Bench so require, such case shall be re-heard before them and another Judge or, if the Chief Justice or the Judicial Commis- sioner so direct, before three other Judges, and the judgment or order shall follow the opinion of the majority of the Judges so re--hearing such case."

This amendment was not accepted by the Select Committee which reported on the Bill in 1922 :--

"The amendment of section 378 has been condemned by a majority of the Judges who have expressed an opinion on the Bill. In view of the fact that the difficulty which the amendment is intended to meet is probably of rare occurrence and that the second portion of the proviso will be inapplicable in the case of Judicial Commissioners' Courts which do not at present consist of ﬁve Judges, we prefer to leave the law as it is, and we delete this clause.4"

1See e.,2., Clause 36. Letters Patent of the Calcutta High Court.

2 Section 98.

3Dharam Singh v. State, (1962) Suppl. 3 S.C.R. 769; Babu v. The State, A.I.R. 1965 S.C. 1467. 1470.

4Gazette of India (1922), Part V, pages 263 and 264; Report of the Select Committee under clauses 99 and 113.

Q Section 379.

Section 380.

240

27.10. No change is required in section 379.

27.11. Section 380 is ancillary to section 362 which empowers Courts to release certain convicted first oﬁenders on probation of good conduct instead of sentencing them to imprisonment. In fact, with the enforcement of the Probation of Offenders Act, 1958, in many States, the utility of section 562 of the Code has been much reduced. If at all it is necessary to retain that section in the Code, section 380 may appropriately be added to it. We propose to omit section 380 from this Chapter and consequentially to alter the heading of the Chapter to "Of the Submission of Death Sentences for Conﬁrmation."

CHAPTER XXVIII EXECUTION 28.1. Section 381, as it now stands, is confined to cases where a sentence of death passed by a Court of Session is sent up for conﬁrmation by the High Court. When a sentence of death is passed by the High Court in appeal or in revision proceedings for enhancement of sentence, its execution is now left to be governed by sections 425(2) and 442 and the High Court Rules. As it is desirable to have a speciﬁc provision in regard to this important matter, we recommend that a new section 381A be inserted after section 381, as follows :-----

"38lA. When a sentence of death is passed by the High Court in appeal or in revision, the Court of Session shall, on receiving the order of the High Court, cause the sentence to be carried into effect by issuing a warrant."

28.2. We propose the insertion of another new section pro- viding for the postponement of execution of a death sentence in cases where an appeal against the judgment of a High Court pas- sing or conﬁrming such sentence can be preferred to the Supreme Court under the Constitution. Our object in recommending the new provision is to ensure that where there is a possibility of appealing to the Supreme Court, the appeal is not rendered infructuous by an unfortunately prompt execution of the sentence.

Appeals in capital sentence cases may come up before the Supreme Court; (i) as of right under sub--clause (a) or (b) of article 134(1); or (ii) on a certiﬁcate of ﬁtness granted by the High Court under article 132 or 134(l)(c) or (iii) after obtain- ing special leave from the Supreme Court under article 136 of the Constitution.

In the first case, since the appeal is as of right, it is clearly necessary that execution should be postponed until the period of limitation for preferring the appeal expires, or, if an appeal is ﬁled within that period, until the appeal is disposed of.

In the second case, it is only if an application for a certiﬁcate is made to the High Court that there is a reasonable possibility of appeal. If such application is made, execution should be post- poned until the application is disposed of. If the certiﬁcate is granted, the possibility of appeal becomes almost a certainty, and the execution should be further postponed till the period of limita- tion for preferring an appeal expires. Within that period, the person sentenced should prefer an appeal and obtain a stay from the Supreme Court.

In the third case, it is sufficient if execution is postponed for such period as would enable the person sentenced to apply for special leave to the Supreme Court. Within that period, the person sentenced can apply for special leave and obtain from the Supreme Court orders for stay of execution.

Section 381 Death sentence passed by High Court in appeal or revi-

sion.

Execution of death sentence passed by High Court.

Postponement of execution in case of appeal to Sup-

reme Court.

New Section 381 B. Postponement of execution in case of appeal to Sup-

reme Court.

Section 382.

Section 383.

Execution of sen-

tence of imprison-

ment.

242

28.3. The new section providing for postponement of execution pending possible appeal to the Supreme Court may be as follows :--

"38lB. (1) Where a person is sentenced to death by the High Court and an appeal from its judgment lies to the Supreme Court under sub-clause (a) or (b) of clause (1) of article 134 of the Constitution, the High Court shall order the execution of the sentence to be postponed until the period allowed for preferring such appeal has expired, or, if an appeal is preferred within that period, until such appeal is disposed of.

(2) Where a sentence of death is passed or conﬁrmed by the High Court, and the person sentenced makes an appli-

cation to the High Court for the grant of a certiﬁcate under article 132 or under sub--clause (c) of clause (1) of article 134 of the Constitution, the High Court shall order execution of the sentence to be postponed until such application is disposed of by the High Court, or if a certiﬁcate is granted on such application, until the period allowed for preferring an appeal to the Supreme Court on such certiﬁcate has expired.

( 3) Where a sentence of death is passed or conﬁrmed by the High Court, and the High Court is satisﬁed that the person sentenced intends to present a petition to the Supreme Court for the grant of special leave to appeal under article 136 of the Constitution, the High Court shall order the execution of the sentence to be postponed for such period as it considers sulﬁ- cient to enable him to present such petition."

28.4. No change is needed in section 382.

28.5. Under section 383, an accused person sentenced to imprisonment has to be forwarded with a warrant to "the jail in which he is or is to be conﬁned". Section 384, however, refers to "the jail or other place" indicating the possibility of a con- victed persons being conﬁned temporarily in a place other than a jail. It is desirable to bring the wording of section 383 into line with that of section 384 in this respect.

Secondly. where the accused is sentenced to imprisonment till the rising of the Court, as is sometimes done, he is simply detained in custody in the Court premises for the few hours. No warrant is prepared or sent under section 383, which can be regarded as a breach of the statutory provision. It is desirable to add a pro- viso to the section legalising the procedure.

'I'hirdlj.', in our discussion1 on section 366, we have suggested' that a suitable provision should be made in section 383 for cases where a sentence of imprisonment is passed in the absence of the accused.

Accordingly, we recommend that section 383 may be ampli- ﬁed and amended as follows :--

"383. (1) Where the accused is sentenced to imprison- ment for life or imprisonment in cases other than those pro- vided for by section 381, the Court passing the sentence shall 1See Dara. 26.6 above.

I! 243 forthwith forward a warrant to the jail or other place in which he is, or is to be, conﬁned, and, unless the accused 1S already conﬁned in such iail or other place, shall forward him to such jail or other place, with the warrant :

Provided that where the accused is sentenced to imprison- ment till the rising of the Court, it shall not be necessary to prepare or forward a warrant to a jail, and the accused may be conﬁned in such place as the court may direct.

(2) Where the accused is not present in Court when he is sentenced to such imprisonment as is mentioned in sub-section (1), the Court shall issue a warrant for his arrest for the pur-

pose of forwarding him to the jail or other place in which he is to be conﬁned; and in such case, the sentence shall commence on the date of his arrest."

28.6. No change is needed in sections 384 and 385.

28.7. Section 386 lays down the two methods by which the Court passing a sentence of ﬁne may take action for realising it. One is to issue a warrant for levying the amount by attachment and sale of any movable property belonging to the offender, By virtue of section 4(2) the expression "movable property" has the meaning assigned to it by section 22 of the Indian Penal Code, and not the wider meaning given in the General Clauses Act, 1897; only "corporeal property" may be attached and sold for realising the ﬁne imposed by a criminal court. This would appear to exclude actionable claims, debts, salary not due etc. from the court's process. Where the offender has only a share in movable property belonging to a joint family questions have arisen in the Courts whether the share can be attached and sold, and if so, whether attachment can be by way of seizure of the property. We do not, however, consider it necessary to clarify and elabo- rate this clause. It is primarily intended to furnish the Court with a rough and ready method of seizing and selling tangible goods belonging to the offender. especially when the ﬁne to be realised is not a large sum, and it can be left at that.

28.8. The second method laid down in clause (b) of sub- section (1) and sub-section (3) is cumbrous and time consum- ing. The Collector to whom the warrant is sent has to take steps like any other decree-holder in a civil court for recovery of the ﬁne. This appears to be a waste of time. Once payment of an amount has been iudicially ordered, there is no reason why the amount due to the State should not be recovered like any other monetary demand of the State. We recommend that a provision authorising recovery of the ﬁne by the Collector as an arrear of land revenue may be substituted in place of clause (b).

It appears that there is some uncertainty as to how far pro- pertv exempt from attachment under the Code of Civil Procedure is exempt when the Collector proceeds under clause (b). In view of the changed procedure which we propose in place of clause (b), it is unnecessary to discuss this point elaborately.

28.9. Under the proviso to section 386(1), if the offender has undergone the whole of the imprisonment in default of pay- ment of ﬁne, no court shall issue a warrant for levy of the ﬁne Section 384 and

385. Section 386--Levy of ﬁne by attach-

ment and sale of movable pro-

perty.

Fine to be made recoverable as arrear of land 1'6)/GRUB.

Section 386 (1), proviso.

Fine should be recoverable when compensation has been ordered.

244

unless, for special reasons to be recorded in writing, it considers it necessary to do so. The obiect of the proviso and the special reasons that can possibly arise were dealt with at length in a Bombay easel in these words :--

"The proviso applies in terms only to the issue of a fresh warrant and does not require the withdrawal of a warrant already issued before expirationof the sentence in default of payment. But I think that in dealing with such existing warrants the Court should follow the policy which seems to have inspired the proviso to section 386.

"That policy appears to be that in general an offender ought not to be required both to pay the ﬁne and to serve the sentence in default. But the proviso enables a warrant to be issued for recovery of the ﬁne, even if the whole sentence in default has been served, it the Court considers that there are special reasons for issuing the warrant. I apprehend that the special reasons should be reasons accounting for the fact that the ﬁne has not been recovered before the sentence in default has been served, and any reasons which are directed to that point would be relevant. It may be that the authori- ties, through no negligence on their part, did not know of the existence of the property or the accused may have inherited property after he served his sentence in default; or there may not have been time to execute the warrant. Matters of that sort would all be special reasons for issuing a warrant after the sentence in default had been served; and I think, in the same way, they are reasons iustifying the Court in refusing to withdraw a warrant already issued.

"In the present case, in my opinion, there are special reasons, though not quite those which were recorded by the Judge. I think that a special reason for not withdrawing the warrant is that before the sentence in default had been sewed the authorities had taken steps to enforce this warrant by levying execution upon the immovable property of the appli- cant, and the delay which has taken place is not, in my opinion, shown to be due to any default on the part of the authorities. The learned Judge himself gave as his reasons for not withdrawing the warrant that the oﬁence was a serious one and the complainant had been allotted part of the ﬁne. In my view, reasons of that sort are not relevant because they do not account for the ﬁne not having been recovered before the service of the sentence in default."

28.10. We notice that in the above judgment the fact that the complainant has been allotted part of the ﬁne was not con- sidered a relevant special reason for purposes of the proviso as it stands. A contumacious offender should not, in our opinion, be 'permitted to deprive the aggiieved party of the small compen- sation awarded to it by the device of undergoing the sentence of imprisonment in default of payment of the ﬁne. When an order under section 545 has been passed for payment of expenses or compensation out the ﬁne, recovery of the ﬁne should be 1 Digambar v. Emperor, A.I.R. 1935 Bom. 160. 161, 162 (Basumont 0].).

71:

245

pursued, and in such cases, the fact that the sentence of imprisonment in default has been fully undergone should not be a bar to the issue of a warrant for levy of the ﬁne. We recom- mend that the proviso to section 386(1) should make this clear.

28.11, Section 386(2) contemplates the making of rules by State Governmentsl. The desirability of framing such rules has been pointed out in a Bombay case? Where such rules are not made and a claim is made by a third party to the property attached under section 386(1)(a), the question may arise what procedure should be followed. One view is, that in such a case the only thing that can be done by the Magistrate is to stay the sale and refer the claimant to a Civil Court2. But according to an-

other view, the procedure given in section 88(6A) et seq. (which is analogous to order 21, rule 58, Civil Procedure Code) should be followed-"-4. The rules should provide for the procedure to be followed when such claims are made.

28.12. Section 286(3) can be shortened in view of the amend- ment which we propose in section 386(1)(b). The matter con- tained in the main paragraph requires to be modiﬁed; the proviso may be retained with such verbal changes as are necessary in view of the changes to be made of the main paragraph.

28.13, Section 386 may accordingly be amended to read as follows :

"386. (1) Whenever an offender has been sentenced to pay a ﬁne, the Court passing the sentence may take action for the ICCOVCIV of the ﬁne in either or both of the following ways, that is to say, it may--

(a) issue a warrant for the levy of the amount by attach-

ment and sale of any movable property belonging to the offender;

issue a warrant to the Collector of the district, authorising him to realise the amount as arrears of land revenue from the movable or immovable pro- perty, or both, of the defaulter :

Provided that, if the sentence directs that in default of payment of the ﬁne, the offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment 1I1 default, no Court shall issue such warrant unless, for spe- cial reasons to be recorded in writing, it considers it neces- sarv to do so, or unless it has made an order for the payment of expenses or compensation out of the ﬁne under section 545.

(2) The State Government may make rules regulating the manner in which warrants under clause (a) of sub-section (1) are to be executed, and for the summary determination

(b) 1A letter inquiring abo t th t 't' 1;

es 3in October. 1968. F0? theeolgrislélg. léflselsfosnee I?ISa1ri)r$1:aIi zsAe'itRto19t?§ ' 5. . . . .

re Pallduramz. AJR. 1932 Bom. 476. 477.

rasanna v. Emperor, I.L.R. 55 Mad. 1041; AIR. 1932 Mad 538 agar: Lal v. Memunabi, A.I.R. 1955 Saurashtra 86, 87 para 3* 'ase-law). ' ' ' Section 386 (2_)---

Rules for settling claims necessary.

Section 386 (3).

Amendment of Section 386 re-

commended.

Warrant for leavy of ﬁne.

Section 387.

Section 387A.

A Bombay pro-

vision.

Section 388 to 395.

Section 396.

Execution of sen-

tence on escaped convicts.

246

of any claims made by any person other than the offender in respect of any property attached in execution of such warrant.

(3) Where the Court issues a warrant to the Collector under clause (b) of sub-section (1), the Collector shall realise the amount in accordance with the law relating to re- covery of arrears of land revenue, as if such warrant were a certiﬁcate issued under such law.

Provided that no such warrant shall be executed by the arrest or detention in prison of the offender."

28.l4_ Under section 387, a warrant issued under section 386(1)(a) (warrant for the attachment and sale of movable property) can be executed within the local limits of the jurisdic- tion of the Court issuing it, and, if endorsed by the District Magis- trate or Chief Presidency Magistrate concerned, also outside such local limits.

No amendment of substance is required in section 387.

28.15. Section 387A deals with the levy of fine under a war- rant issued in the State of Jammu and Kashmir. If, as We have recommended elsewhere in this Report, the Code is extended to that State, this special provision will not be necessary and the section may be omitted. In the meantime, until the Code is so extended, section 387A will require a slight formal amendment to bring it into line with the amendments proposed above in clause

(b) of sub-section (1) and sub-section (3) of section 386. In section 387A, for the words "by execution according to civil process against the movable or immovable property, or both, of the offender" there should be substituted the words "as if it were an arrcar of land revenue."

28.16. We have considered an additional provision made in the Code by a Bombay amendment and numbered section 387AA, for the recovery by executive Magistrates of ﬁnes and penalties imposed under special laws. The need for such a provision is not very clear, and in any event, it does not appear to have been felt in any other State.

28.17. Section 388 and 389 need no change. Section 390 to 395 have already been repealed.

28.18. Section 396 is not well-constructed. drafted as follows :--

It may be re-

'396. (1) When a sentence of death, imprisonment for life or ﬁne is passed under this Code on an escaped convict, such sentence shall, subiect to the provisions hereinbefore con- tained, take effect immediately.

(2) When a sentence of imprisonment for a term is pas ed under this Code on an escaped conl-'ict,--

(a) if such sentence is severer in kind than the ser which such convict was undergoing when he es-

the new sentence shall take effect immediate"

247

(b) if such sentence is not severer in kind than the sen-

tence which such convict was undergoing when he escaped, the new sentence shall take effect after he has suffered imprisonment for a further period equal to that which, at the time of his escape, remained unexpired of his former sentence.

(3) For the purposes of sub--section (2),----

(:1) a sentence of imprisonment with solitary conﬁne- rnent shall be deemed to be severer in kind than a sentence of the same description of imprisonment without solitary conﬁnement; and

(b) a sentence of rigorous imprisonment shall be deemed to be severer in kind than a sentence of simple im- prisonment with or without solitary conﬁnement."

28.19. No changes are required in sections 397 and 398.

28.20. Section 399 is in force only where the Reformatory Schools Act, 1897, is not in force. Furthermore, the Children's Acts in force in certain States and Union Territories contain pro- visions which practically supersede those of section 399 of the Code. This section is thus obsolete and may be omitted.

28.21. No change is needed in section 400.

Section 397 and

398. Section 399.

Section 400.

Provisions ancil-

powers under the Consti-

lary to tution.

Prerogative mercy land.

in of Eng-

CHAPTER XXIX SUSPENSIONS, REMISSIONS AND COMMUTATION OF SENTENCES 29.1. The provisions of this Chapter are ancillary to the powers conferred on the President of India and the Governors of States by article 72 and article 161, respectively, of the Con- situation. Both these articles first refer to the power to grant pardons, reprieves, respites or remissions of punishment, and then, to the power to suspend, remit or commute the sentence, of any person convicted of any offence. Section 401 contains detailed provisions in regard to the suspensions and remissions of sentences, while section 402 deals with the commutation of sentences. Following article 72(1)(c) of the Constitution, section 402A makes the powers conferred by sections 401 and 402 on the State Governments in respect of the State ﬁeld of oﬁence exercisable also by the Central Government, 29.2. It is noteworthy that these section do not circumscribe in any way the power of the President and Governors to grant pardons, reprieves and respites, which is analogous to the sover reign's prerogative of mercy in England. This is described as follows by a writer1 on English constitutional law :--

"Thel Sovereign, acting in this country by the Home Secretary, may pardon offences of a public nature which are prosecuted by the Crown. A pardon may generally be granted before or after conviction. No pardon may be pleaded as a bar to impeachment (Act of Settlement, 1700),? although some scottish lords impeached for the rebellion of 1715 were pardoned after conviction; nor may the Crown remit the penalties prescribed by the Habeas Corpus Act, 1679, for sending a prisoner out of the realm; and .the Crown cannot by a pardon deprive a third party of his rights?

A pardon is either free or conditional. An example of the latter is where a death sentence is commuted to a term of imprisonment for life. The Home Secretary acts either on a recommendation to mercy by the Judge who passed the sentence, or on a petition from the criminal or others on his behalf. In considering whether to advise a pardon the Home Secretary is responsible to the Sovereign and not to Parliament. The practice whereby the decision is made by the Home Secretary and not by the Sovereign dates from the beginning of Queen Victoria's reign.

The Crown may also grant a reprieve, which tempo- rarily suspends the execution of sentence; or (within statu- tory limits) may remit the whole or part of the penalty."

10. Hood Phillips. Constitutional Law (1962). 1). 256. 2C1'. Danby's case (1679) 11 St. Tr. 599. 'Thomas v. Sorrell, (1674) Vaughan 330, »' ,__ 249 29.3. In India, as in England,1 "the effect of a pardon, or what is sometimes called a 'free pardon' is to clear the person from all infamy and from all consequences of the offence for which it is granted and from all statutory or other disqualiﬁca- tions following upon conviction. It makes him, as it were, a But the satne effect does not follow on a mere new man.

remission which stands on a different footing altogether. An order of remission does not wipe out the offence; it also does not wipe out the conviction. All that it does is to have an effect on the execution of the sentence. x x x 'The judicial power and the executive power over sentences are readily distinguishable', observed Justice Sutherland. To render a judgment is a judicial function. To carry the judgment into effect is an executive funcion. To cut short a sentence by an act of clemency is an exercise of executive power which abridges the enforcement of an the judgment but does not alter it qua judgment.

29.4. In connection with the grant of "free pardon" to a convicted person, we have considered a suggestion of the Minis- try of Home Affairs that the Government should be required to consult the appropriate court before granting pardon. In this suggestion it is stated that where pardon is proposed to be grant- ed on the ground of miscarriage of justice or discovery of new evidence, the practice in England is to consult the Judges and a reference has been made to section 19 of the Criminal Appeal Act, 1907.2 This section, however, does not go to the length of providing that a reference must be made in every case but leaves it entirely to the discretion of the Secretary of State. We are not aware whether it is invariably the practice in England to refer the whole case or particular points to the Court of Appeal before exercising the prerogative of mercy. However that may be, since the power to grant pardons is derived from the Con- stitution, it would, in our view, be hardly appropriate to lay down by statute the procedure for the exercise of the: power, even if it were constitutionally permissible, a matter about which we have some doubts Nor do we see any compelling need to do so. It will be noticed that, even in regard to suspensions and remissions of sentences, prior consultation of the court is not mad? compulsory under section 401(2) of the Code. And it is very seldom, if ever, that the Government seeks the opinion of the nresiding judge of the court under this section.

'Sara! Chandra Rahha v. Khagendrartath, (1961) 2 S.C.R. 137, 138.

'-' This section. as recently amended by the Administration of Justice Act. l960, reads--

Act shall affect the prerogative of mercy. but on an_application made to him by a Derson con- o_r without any such application. may, if be either-

"Nothing in this the Secretary of State.

victed on indictment thinks ﬁt at anv time.

ta) refer the whole case to the Court of Criminal Appeal and the case should then b: treated for all purposes as an appeal to that court by the person convicted; or

(b) If he desires the assurance of the Court of Criminal Appeal on any point a ising in the case, refer that point to the Court of Criminal Appeal for their opinion thereon. and the Court shall con-

-ider the point so referred and furnish the Secretary of State with 'their opinion thereon." \ Effect of granting don.

Consulting the Court before granting pardon.

Nature of the other powers.

Scope of Section 401 not to be en-

larged.

General sion as to provi-

effect of remission or commutation of sentence desirable.

not

251) 29.5. As mentioned earlier, Articles 72 and 161 of the Con- stitution ﬁrst refer to the power to grant pardons, reprieves, respites or remissions of punishments, and then, to the power to suspend, remit or commute the sentence, of any person con- victed. of any oil-ence. "Reprieve" means to take back or with- draw a seiiteriee for a time, the effect being simply to suspend the CX€C'.lil0l1 of the sentence. It is no more than a temporary postponement and, in England, is used as the first step in com- niuténg a death sentence. The term "respite" means delaying the punishment, specially in the ease of a death sentence, and means much the same as a reprieve. It would seem that grant- in;: a reppieve or respite of punishment is practically indistin- guishable from suspending the execution of the sentence award- ed by a court for a temporary period. "Remission" originally meant a pardon under the Great Seal and 3 release but latterly it came to mean the same as a reduction of' the quantum of punishment (e.g., amount of the ﬁne imposed or term of im- prisonment awarded) without changing its character. "Com- mutation" means the alteration of a sentence of one kind into a sentence of less severe kind, as indicated in section 402 of the Code.

29.6. The use of these two sets of expressions in Articles 72 and 161 of the Constitution is traceable to section 295 of the Government oi' India Act, 1935. Sub--section (1) of this section referred to the power of the Governor-General--in-Council to suspend, remit or commute the sentence of any person convicted by a Court, while sub-section (2) referred to the right of the Crown to grant pardons, reprieves, respite-s or remissions of punishments. The Constitution has lumped together both these powers and placed them on thcl same footing. The over- lap that obviously exists does not harm. There is, however, no need to enl:xrge the scope of section 401 of the Code so as to cover expressly pardons, reprieves and respites besides sus- pensions and re-missions.

29.7. The question of inserting in the Code a provision on the lines of section 69 of the Criminal Justice Act, 1948, was raised during the discussions before us. his section pro- vides that "where Her Majesty pardons any person who has been sentenced to death on condition that he serves a term of imprisonment, that person shall be deemed to have been sen- tenced by the Court before which he was convicted to imprison- ment for the said term. It was suggested for example that if a person was sentenced to imprisonment for a term by the court and a part of this sentence was remitted bv the State Govern- ment. or the sentence was commuted to one of ﬁne. the con- vict::l person should be deemed to have bee. sentenced to the Sl'l0]'a'»',1' .*.~€'.'.'l'n of imprisonment or. as the case may be, to ﬁne only by the Court. This could be of practical importance be- ('.,£l1l_~".4j many Acts provide for collateral disqualiﬁcations in the case of :1 person convicted for an oﬁience and sentenced to imprisonment for a speciﬁed minimum term. We have. how- ever. come to the conclusion that the gravity of the offence for which the law provides such disqualiﬁcation should depend on the sentence awarded by the Court and not on the View which the State Government may take while remitting or commuting K 251 the sentence. In any event, this is essentially a question of policy and if such an arneridment is considered desirable in the context of :1 pztrticiilzir sp:-22.1; law. it may more appropriately be made in that law.

.".:,'~).E<. Anoilrer suggcstioii was that there should be a pro- for "general amnesty" which would relieve the appropriate .nent from the necessity of passing separate orders of l'.:i'1il",lOIl zmri re-lea.»-e in every individual case. In our opinion, an amendment of the Code for this purpose is not necessary. Once the pol€cy of granting a "general amnesty" for certain cate-- gories of convicted prisoners is decided upon by the Govern- ment. it is hardly desirable that the Government should pass a general order and leave it to be applied to individual cases by inc prison authorities.

29.9. Sub-:,eetio'i (4:--\) was inserted in section 401 by the

-'\mendment Act of 1923 "to make it clear that the power to remit sentences conferred by section 401 can be exercised in the case of Orders of a penal nature, e.g., under section 565 of the Code."1 It covers also sentences passed by tribunals constituted under i-trgiilzitions and ordinances.'-' Though a literal or s.i-it .".;3t')li.'atT~: of the provisions of sub--sections (1) to (4) to the cases mentioned in sub-section (4A) may not always be satisf:ie:or_v, it lias not created any practical diiliculty. We do not think any clariﬁeatory amendment of sub-section (4A) is i'eqi2i:'ctl.

'=.":'e ﬁnd that a='-- Uttar Pvadcsli amendment of 1948 has adcled . "or oth:-r authority" after the words "criminal court"

.\':(:?:lOI1 (4A) in order to confer power on the State GO\'CI'»".i;'.Cl'l1 to modify orders passed by quasi--iudicial or exe- entiv:- zmthorities under other laws. In our opinion, however, the 'Code the proper place to make such a provision. It ouid be more appropriate to provide for it in the special law u"1d-er which the other authority can pass orders restraining the lEbe:'ty of a person or imposing a liability on him.

29.10. Stb--~;:ction (1) of section 402 enables the impro- priate Government to commute -sentences without the consent of ' -son sentenced. This eeneral provision has, however. to be read with section 54- and 55 of the Indian Penal Code which contain special provisions in regard to commutation of sentences of death and of imprisonment for life. The deﬁnition of "appro- priate Government" contained in sub-section (3) of section 402 substantially t'i':r3 same as that contained in section 55A of the indian Penal Code. It would obviously be desirable to ren1o'-.'e this dtiplication and to state the law in one place. In the gnretzent deﬁnition of "appropriate Government" in section 403(3). the reference to the State Government is somewhat ainbi<z;ions. " will be noticed that clause (b) of section 55A of the Indian 'Penal Code speciﬁes the particular State Govern- ment which is competent to order commutation as "the Govern- ment of the State within which the offender is sentenced".

3 Statement of Objects and Reasons, dated 16th February, 1921. '-'Report of the Select Committee, dated 26th June, 1922.

Provision for general amnesty not necessary.

Section 401 (4A).

Power to com-

mute sentences.

Section' 402 re-

vised : sections 54, 55 and 55A of I.P.C. to be omit-

ted.

Power to com- f mute SCIHLCDCC.

252

29.11. We, therefore, propose that section 54, 55 and 55A may be omitted from the Indian Penal Code and their substance incorporated in section 402 of the Criminal Procedure Code. This section may be revised as follows :----

"402. (1) The appropriate Government may, without the consent of the person sentenced,--

(a) commute a sentence of death, for any other punish-

ment provided by the Indian Penal Code;

(b) commute a sentence of imprisonment for life. for imprisonment of either description for a tern; not exceeding fourteen years or for fine;

(c) commute a sentence of rigorous imprisonrnent. for simple imprisonment for any term to Wll1Cl1 that person might have been sentenced or for ﬁne;

(d) commute a sentence of simple imprisonment, for ﬁne.

(2) In this section and in section 401, the expression "appropriate Government" means--

(a) in cases where the sentence is for an offence against, or the order referred to in sub-section (4A) of section 401 is passed under, any law relating to a matter to which the executive power of the Union extends, the Central Government; and

(b) in other cases, the Government of the State within which the offender is sentenced or the said order is passed."

29.12. The power to suspend or remit sentences under sec- tion 401 and the power to commute sentences under section 402 are thus divided between the Central Government and the State Government on the constitutional lines indicated in Articles 72 and 161. If, for instance, a person is convicted at the same trial for an offence punishable under the Arms Act or the Explosives Act and for an offence punishable under the Indian Penal Code and sentenced to different terms of imprisonment but running concurrently, both Governments will have to pass orders before the sentences are effectively suspended, remitted' or commuted. Cases may occur where the State Government's order simply mentions the nature of the sentence remitted or com- muted and is tre-ated as sufficient warrant by the prison autho- rities though strictly under the law, a corresponding order of the Central Government is required in regard to the sentence for the offence falling within the Union List. The legal provisions are, however, clear on the point and we do not consider that any clariﬁcation is required.

29.13. It has been suggested that there are a few types of cases in which the Central Government is vitally concerned though the offence is against a law relating to a matter to which the executive power of the State Government extends and as such the authority to suspend, remit or commute the sentence is the State Government. 'Important instances are offences investigated by the Delhi Special Police Establishment, offences 253 involving misappropriation or destruction of, or damage to, Central Government property and offences committed by Central Government servants in the discharge of their ofﬁcial duties. If a State Government chooses to take a lax view of these olfences and to exercise its powers of remission and commuta- tion unduly liberally, it is bound to create difficulties of adminis- tration for the Central Government. We feel it desirable that in such cases where the, Central Govrnment is obviously con- cerned in the proper enforcement of the penal provisions, including the execution of sentences awarded by Court, the State Government should be required to exercise its powers of remis- sion and commutation only in consultation with the Central Government.

29.14. We, therefore, propose that a new section 402B may be added in this Chapter.

"402B. The powers conferred by secti-ons 401 and 402 upon the State Government to remit or commute a sentence shall, in any case where the sentence is for an offence---

(i) which was investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946, or

(ii) which involved the misappropriation or destruction of, or damage to, any property belonging to the Central Government, or

(iii) which was committed by a person in the service of the Central Government while acting or purporting to act in the discharge of his oﬂicial duty, be exercised by the State Government only in consultation with the Central Government."

Central Govern-

ment to be con-

sulted in case of certain sentences.

Section 403 and article 20.

Section 403 (2).

Section 403 (5).

CHAPTER XXX PREVIOUS ACQUITTALS OR CONVICTIONS 30.1. The rules of criminal process, known to lawyers as autrefois acquit and autrefois convict, ﬁnd their verbal expression in our Code in section 403 and are considered so important that a separate Chapter is assigned to them. The principle on which the rules rest is that "a man may not be put twice in jeopardy for the same offence". This principle is recognised in our Constitution in article 20. The rule does not rest on any doctrine of estoppel.

Broadly stated the rule is that a person once; acquitted or convicted of an offence may not again be tried for the same offence. Article 20 does not in terms maintain a previous acquittal; but section 403 does, and goes on to explain in detail the full implications of the expression "same offence". Seven illustrations accompany this section explaining in concrete terms the diﬁerent situations which the Courts may have to deal with. No particular diﬂiculty in understanding the meaning of these pro- visions appears to have been felt and we do not, therefore, suggest any change in the language. Nor is any change neces- sary in the general scheme employed in section 403.

30.2. Sub-section (2) of section 403 permits a person acquitted of any offence to be afterwards tried for any distinct offence for which he might have been separately charged at the former trial under section 235(1). This is as it should be. A suggestion has, however, been made that the second trial should be held within some speciﬁed period of limitation so that the accused is not kept under suspense for ever. We do not think any idea of limitation can be safely introduced into criminal trials, and public interest demands that an offence should be ordinarily punishable whenever the offender can be conveniently tried. We are not, therefore, accepting the suggestion.

30.3. Sub--section (5) of section 403 says: "Nothing in this section shall affect the provisions of section 26 of the General Clauses Act, 1897". This section provides that when an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted under either or any of these enactments, but shall not be liable to be punished twice for the same offence. It has been said in certain decided cases1 that since prosecution under "either enactment" is permit- ted under this general provision, it follows that the acquittal of a person under one enactment would not be a bar to his trial under the second enactment, even when the facts constituting the offence were the same. We think these observations go too far, as the intention of section 403 obviously is to prevent the trial of a person twice on the same facts. However, out of the 1RnsJoI, A.I.R. 1959 Mvs. 136: K. B. Prabhu v. Emp., A.I.R. 1944 Mad. 369; Abdul Ahmad, A.I.R. 1952 All. 957. 599.

255

cases we have mentioned, two were actually decided on other grounds, and do not create any hindrance in the Way _of the View we have expressed. We are not, therefore, proposing any change in the language of sub-section (5) which does not inter- fere with the main principle underlying section 403.

30.4, The Explanation added to the section says that "the dismissal of a complaint, the stopping of proceedings under section 249, the discharge of the accused or any entry made upon a charge under section 273 is not an acquittal within the meaning of this section". A suggestion has been made1 for modifying the explanation by excluding an order of discharge made by a Court after enquiry on the merits, the argument being that if the whole evidence has been considered and found in- sufficient to sustain a conviction, it is not very different from an order of acquittal and ought, in law, to rank with it. The difficulty about this suggestion, however, is that while the line between a discharge and an acquittal unmistakable, no such line can be drawn between an order of discharge made "on the merits" and an order of discharge made otherwise; and should the consideration of the whole evidence be made the test, then a controversy will arise in most cases whether the "whole evi- dence" was or was not considered. The prevailing practice is. that if an order of discharge has been made after full and proper consideration of the evidence, the Courts will not permit a re- opening of the same matter; and that practice should, in our opinion, be suﬂicient to prevent any unnecessary harassment. We do not, therefore, recommend any change in the Explanation as regards discharge of the accused. Since we are proposing'-' the omission of section 273, the words "or any entry made upon a charge under section 273" will have to be omitted from the Expl an ation.

30.5. In a case dccided3 by the Supreme Court in 1956. certain observations were made lending support to a statement of the Privy Council that the maxim res _iurz'icaza pro veritare accipitur is no less anplicable to criminal than to civil proceed- ings. The decision of the case did not depend on any such rule, but those observations have been repeated in a few subsequent cases.'-5 it has therefore been suggested to us " that the Supreme Court has perhaps introduced sorncthinr: new into section 403, Cr.P C. which is not justified and that the Code should in terms forbid the use of the doctrine of res judicara or, as it is some- times called "issue estoppel", in criminal cases. Alternatively, it has been suggested that the View expressed in Pritam Singh':

case should be codiﬁed and put into section 403.

30.6. We think that section 403 has nc-thing to do with any question of estoppel, and it must stand by itself. That does not, however, rule out the possibility of putting into the Code some 1F. 3(2)/56-L.C. Part HT, 3. No. 52 (Suggestion of a High Court).

3-3.9: para. 23.1 above.

3PriIam Singh V. The Srare A.I.R. 1956 S.C. 415, 422. '1Manipz/r Administration v. Bira Singh, A.I.R. 1965 S.C. 87. 5M0hinder Sing}: V. Slate of Punjab, AIR. 1965 S.C. 83, 86. Ju';eF). 3(2)/55-L.C. Pt. II, S. No. 33(a) (Suggestion of a High Court Explanation to Section 403.

Issue estoppel in criminal cases.

Should issue es-

toppel be provided in the Code?

256

rule of "issue estoppel" if it be otherwise desirable. We feel however that legislation on such a matter would at present be unwise. We ﬁnd from the reported cases that our Supreme Court and our High Courts have not had proper opportunity yet of considering all' the implications of the rule, and any hasty legis- lation may by its rigidity create diﬂiculties. We may, in this connection, mention what Lord Devlin recently said in the House of Lords :1 "The truth is that for estoppel on issues to work satis- factorily the issues need to be formulated with some pre- cision. In civil suits, this is usually done as a matter of record : in criminal process, it is not. If issue estoppel is going to be introduced into the criminal law, the proper basis for it is a syste-m of special verdicts on separate issues. But that would be to introduce a profound change into the working of our law which I am not prepared at present to countenance_ Then since estoppel is available to both parties in civil law, there is the question whether it should be made avail- able to the prosecution in criminal law. No one so far has advocated that it should. But is it necessary in the interests of justice to give the defence unreciprocated advan- tage? The defence rightly enjoys the privilege of not having to prove anything; it has only to raise a reasonable doubt. Is it also to have the right to say that a fact which it has raised a reasonable doubt about is to be treated as conclusively established in its favour?"

These considerations have not yet been weighed in our Courts, and it is we think too early to say what kind of rule would be useful for our conditions. We cannot therefore at present accept either suggestion.

1 Cormelly v. Director of Public Pruecutions. (1964) AC. 1254; (1964) 2 All ER. 401.

Y. CHAPTER XXXI APPEALS 31.1. Section 404 lays down the general principle that 'no appeal shall lie except as provided for by the Code or any other law for the time being in force. No change is needed here.

31.2. Section 405 provides that an appeal from an order rejecting an application under section 89 of the Code shall lie to the court to which appeals ordinarily lie from sentence of the court passing the order. No change is indicated here also.

31.3. Under section 406, a person who has been ordered imder section 118 to give security for keeping the peace or for good behaviour may appeal, if such order is made by a Presidency Magistrate to the High Court, and if made by any other Magistrate to the Court of Session. It was suggested that a proviso to this section, omitted by the amendment in 1955, to the effect that in any district speciﬁed by the State Government appeals from the orders under section 118 made by a Magistrate other than the District Magistrate or Presidency Magistrate shall lie to the Dis- trict Magistrate (and not to the Court of Session) should be re- enacted "for the effective control of criminal administration". The suggestion cannot, however, be accepted. It is not in con- formity with the scheme of separation to vest appellate powers in the District Magistrate. We do not therefore recommend any change in this section.

31.4. Section 406A provides that "any person aggrieved by an order refusing to accept or rejecting a surety under section 122 may appeal against such order,

(a) if made by a Presidency Magistrate, to the High Court;

(b) if made by the District Magistrate, to the Court of Session; or

In clause (a), the formal substitution of "Metropolitan Magis- trate" for "Presidency Magistrate" will have to be made. While no change is necessary in clause (b), we think that in clause

(c) also, the appellate authority should be the Court of Session, and not the District Magistrate.' The hearing of the appeal is a purely judicial function, and after separation this function. ought to be vested in the Court of Session. We accordingly recommend that clauses (b) and (c) should be combined (as in section 406) to read----

"(b) if made by any other Magistrate, to the Session."

31.5. Section 407 which was repealed in 1955, provided for an appeal to the District Magistrate from a conviction by a magis- trate of the second or third class. Now, under the amended Court of 1 The same recommendation was made by the Law Commission in in 14th Report; see Vol. 2, page 798, para 2.

Section 404.

Section 405.

Section 406.

Seetion;406A.

Section 487 (Re-

pealed .

) Section 409.

Section 409(2).

258

section 408, such appeals lie to the Court of Session. We think that these appeals could well be heard by the Chief Judicial Magis- trate of the district. This would not only relieve the Court of Session or a certain amount of less important work but also help the Chi/-f Judicial Magistrate in supervising the work of the junior tnagistrates} 31.6. 35 tion 408 provides that an appeal from a sentence (including a sentence or order under section 380) passed by an Assistant Sessions Judge. District Magistrate or any other Magis- trate, sh "l lie to the Court of Session. he section is subject to two provisos. One lays down that where an Assistant Sessions Judge or a Magistrate empowered under section 30 passes a sen- tence of imprisonment of over 4 years; the appeal shall lie to the High Court; and the other that where a Magistrate convicts a person for sedition under section 124A 0; the lndian Penal Code the appeal shall lie to the High Court.

In our opinion, all appeals from sentences passed by Assistant Sessions Judges, or Section 30 Magistrates, irrespective of the severity of the sentences, should lie to the Court of Session. There is no need for the special provision that where the sentence passed is one cf imprisonment for more than 4 years, the appeal will lie to the High Court, The load on the High Court will be lightened to a small extent by transferring these appeals to the Court of Session. (There will be no Magistrates empowered under section 30 under our scheme).

The second proviso regarding appeal from a conviction by a Magistrate for sedition may also be omitted. Trials for sedition are rare and the appeals in question would be rarer still. in any event thcre is no good reason why they should not lie to the Court of Session.

Th-: rt.-Xerence in the section to appeals from seﬁtences passed by Di:;':':ct lw'ia;;isti'::te:: should be omitted as under the proposed scl'.er:r.= at "-paration District Magistrates will not hold any trials. Tm; let'; me to section 380 should be replaced by a rcf~:rence to section 562 as it is now proposed to coinbine section 380 with S£'.CllO31 562.

31.7. Under section 409(1) an appeal to a Court of Session may heard by an Assistant Sessions Judge if it is from a con- viction on a trial held by a Magistrate of the second or third class. In viiw of our proposal that all such appeals should lie to the Chief Judicial Magistrate and not the Court of Session, the referezice to the Assistant Sessions Judge should be omitted from section 49.

Under section 409(2), an Additional Sessions Judge hears only such apoeals as the State Government directs or as the Sessions _.Tud.<J.e makes over to him. Instead of the State Govern- nreat. the High Court should be substituted, as control over subor- dinate courts is vested in the High Courts by the Constitution.

1 A similar recommendation was made by the Law Commission in its 14th Report: see Vol. 2. page 802. para 16.

259

31.8. Section 410 provides that any person convicted by a Sessions Judge or Additional Sessions Judge may appeal to the High Court. No changes are necessary here.

31.9. Under section 411, any person convicted by a Presi- dency Magistrate may appeal to the High Court if the sentence is one of imprisonment exceeding six months or of ﬁne over Rs. 200,/-. This limit of non--appealable sentences has come in for considerable criticism. It appears to equate Presidency Magis- trates with the High Court for whom also the prescribed limit is six months and Rs. 200/- under section 413, and to place them much above the Sessions Judge for whom the limit is fixed at one month and Rs. 50/--. The historical background of this anomalous situation as well as other aspects of the question have been considered by the Commission in an earlier Report} wherein it was recommended that in this respect a Presidency Magistrate should be equated with a Sessions Judge and not with a High Court. We entirely agree with this view. In our opinion, the limit in both cases should be imprisonment not exceeding three months and/or fine not exceeding Rs. 200/-.

One of the suggestions received by us is to the effect that ap- peals from Presidency Magistrates should lie to the Chief Presi- dency Magistrate, while another recommendation is that appeals from sentences passed by Presidency Magistrates upto a certain limit of imprisonment and ﬁne should be to the City Sessions Court. The main idea behind these suggestions is to reduce the number of criminal appeals to the High Court. We are however unable to accept either suggestion since it would mean making a radical change in the character and 'status of the Presidency Magistrate's courts which does not seem desirable.

31.10. Section 411A deals with appeals from convictions and acquittals by a High Court in the exercise of its original criminal jurisdiction. Though it is proposed to abolish the ordinary ori- ginal criminal jurisdiction of High Courts, this section, if retained, will continue to apply to trials held by a High Court in the exer- cise of its extraordinary jurisdiction. Since such trials are extremely rare, we feel that, in the interests of ﬁnality to the pro- ceedings, appeals should lie direct to the Supreme Court and not to another bench of the same High Court, Instead of the present elaborate rules, we would recommend arsirnple provision to the effect that an. appeal shall lie to the Supreme Court from a conviction in a trial held by a High Court on fact as well as law, but there will be no appeal in" the event of an acquittal. If the State wishes to appeal from an acquittal by a High Court, it will have to seek leave to appeal under article 136 of the Constitution.

31.1]. Under section 412, there is no appeal by a person who is convicted on a plea of guilty by Courts mentioned in the section. "except as to the extent or legality of the sentence". The rationale behind the section is that a person who deliberately pleads guilty cannot be aggrieved by being convicted. The 114th Report, Vol. 2, pages 800-801, para 11.

Section 410..

Section 411.

Section 411A.

Section 412.

Section 413.

260

principle is sound. We would go further. In our view, where a High Court convicts and sentences a person on a plea of guilty, an appeal should not be allowed, even as regards the extent or legality of the sentence. It can hardly be contemplated that the judgment of a High Court would suﬁer from a serious inﬁrmity in. respect of the extent or legality of the sentence, We recommended an amendment of the section to bar an appeal in such cases.

31.l2. Section 413 provides that there shall be no appeal in the following ca-ses :--

(i) where the High.Cou_rt passes a sentence of imprison-

ment not exceeding six months or a ﬁne not exceeding Rs. 200/-;

(ii) where the Court of Session passes a sentence of impri- sonment not exceeding one month; and

(iii) where a Court of Session or District Magistrate or other Magistrate of the ﬁrst class passes a sentence of ﬁne not exceeding Rs. 50/~.

The Explanation to the section is to the effect that no appeal shall lie from a sentence of imprisonment passed by such Court or Magistrate in default of payment of ﬁne when no substantive sen- tence of imprisonment has also been passed.

In our view, there should be a general upward revision in the non-appealable limit as regards ﬁne in view of the change in the value of the rupee, and also because it would be a recogni- tion, though indirect, of the modern tendency to consider ﬁne as a good deterrent punishment and a means of compensating the victim of the offence. We recommend that the non-appealable limit of ﬁne be raised from Rs. 200/- to Rs. 1,000/- in the case of High Courts and from Rs. 50/- to Rs. 200/- in the case of Sessions Judges and Magistrates of the ﬁrst class. (Rs. 200/- is now the limit under section 411 in the case of Presidency Magistrates).

As regards the non-appealable limit of imprisonment the present term of six months in the case of a High Court does not call for any change. But the limit of one month in the case of a Court of Session should be raised to three months. We have recommended under section 411 that the non-appealable limit of imprisonment in trials by a Presidency Magistrate should be re- duced from six months to three months.

We are further of the View that there should be no appeal where there is a combination of imprisonment and ﬁne within the limits prescribed in section 413. That is to say, if a sentence of imprisonment upto the period speciﬁed in section 413 is com- bined with a sentence of ﬁne upto the amount speciﬁed in that section, there should be no appeal.

It was suggested that there should also be no appeal when the accused person though convicted is not sentenced but re- leased on a bond or probation under the' provisions of section 562 of the Code. We are unable to accept the suggestion. No

-doubt, being released on bond or on probation may not be as 261 serious a matter as a sentence; nevertheless, the conviction does cast a stigma, and that is suﬂicient justification for permitting an appeal. Some of the offences to which section, 562 applies are serious, and may involve moral turpitude. The person convicted may, therefore, like to clear his reputation, by appealing to a higher Court.

31.13. Under section 414, no appeal lies from a sentence of ﬁne not exceeding Rs. 200/-- passed in a summary trial by a ﬁrst class Magistrate. No change in substance is needed here.

31.14. Under section 415, an appeal may be brought against any sentence referred to in sections 413 and 414 whereby any punishment mentioned in those sections is combined with any other punishment. The language is cryptic, and has caused some difﬁculty in interpretation} For instance, it does not seem to apply to a case where two sentences of ﬁne which together do not exceed the limit mentioned in section 413 are awarded. In such a case, one has to fall back on section. 413, but that section itself is not clear enough on this point, nor does one get any help from section 35(3) which covers only sentences of imprison- ment. The position therefore requires to be made clear.

31.15. In the light of the foregoing discussion, we recom- mend that sections 408 to 415 be revised and replaced by the following sections :--

"Appeals from convictions 408. (1) Any person convicted on a trial held by a High Court . . . . ..may appeal to the Supreme C0urt . . . . . . . . . . . .

(2) Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge or a Metropolitan Magistrate may appeal to the High Court.

(3) Any person convicted on a trial held by an Assistant Sessions Judge. . . .or a Magistrate of the ﬁrst class, or any person sentenced under section 349 or in respect of whom an. order has been made or a sentence has been passed under section 562 by any Magistrate, may appeal to the Court of Session.

(4) Any person convicted by a Magistrate of the second class may appeal to the Chief Judicial Magistrate.

No appeal in certain cases when accused pleads guilty. 409. Notwithstanding anything hereinbefore contained, where an accus- ed person has pleaded guilty and has been convicted on such plea, there shall be no appeal--

(a) if the conviction is by a High Court; or

(b) if the conviction is by,a Court of Session, Metropolitan Magistrate or Magistrate of the ﬁrst class, except as to the extent or legality of the sentence.

1 See discussions or case-law in Banwari v. Rex A.I.R. 1949 All, 216.

Section 414.

Section 415.

Revision of Section *'408 to 415 recommended.

Section 415A.

Section 417 An-

peals against acquittal.

262

No appeal in petty cases. 410. Notwithstanding anything contained in section 408 there shall be no appeal by a convicted person in any of the ;'0l1oi«,'ir1q cases, namely 2--

(a) where a High Court passes only a sentence of imprison- i;i.:nt ,so:' (2 term not exceeding six months or of ﬁne not erceezlirzgg one thousand rupees, or of both such irnpi'1'.«,onnz€nt and fine;

(b) where a Court of Session or a Metropolitan Magistrate passes oxzly a sentence of imprisonment for a term not exceeding three months or of ﬁne not exceeding two hundred rup€c's, or of both such im;Jrisor1ment and fine;

(d) where, in a case tried suinmarily. a Magistrate em- pou.'::re(l to act under section 260 passes only a sen- tence oi? ﬁne not exceeding tuvo hundred rupees 2 Provided that an appeal may be brought against any such sentence if any other pu.li5l1i'Il€'.l'lt is combined with it, but such sentence shall not be appealable merely on the ground----

(i) that the person convicted is ordered to furnish security to keep the peace; or

(ii) that a diiecti-on for imprisonment in default of payment of ﬁne is [IlC1lld£'([ in the sent.:°nc»re,- or

(iii) that more than one sentence of fine is passed in the case, if the total amount of fine irnposed does not ex- cew' !.'1r-' amount liereinbcforc speciﬁer] in respect of the case.

Appeals to Courts of Session how heard. 411. (1) Subject to the provisions of sub--section (2), an appeal to the Court of Session or Sessions Judge shall be heard by the Sessions Judge or by an Additioiial Sessions Judge...

(2) An Additional Sessions Judge _ shall hear only such appeals as the Sessions Judgeof the division may, by general or sprecial order, make over to him or as the .'--!ig/1 Court may, by special order, direct him to hear."

31.16. No change is required in section 415A.

31.17. Section 4l7 deals with appeals in case of acquittal sub-section (1) gives the State Government unrestricted right of appeal against aux' order of acquittal whether original or appel- late. and a similar power is given to the Central Government by siib--scction (2) in cases investigated by the Delhi Special Police Establishment. The Courts expect. however. that these powers will be exercised with restraint. and since the Courts are as a 'nterfere with acquittal orders. such appeals rule reluctant to 1 _ _ are in fact ﬁled after a good deal of scrutiny. Sub--secti0n (3) permits a private complainant in a case instituted on complaint to appeal against acquittal, but only after obtaining special leave from the High Court ' all the appeals under section 417 lie to the High Court. The provisions for acquittal appeals are, in a sense, unusual, but experience shows that in the existing set up I.-can 263 .

of our Courts they are necessary to avoid miscarriage of justice, and that is why the Code requires that all such appeals must be heard by the High Court. The suggestioril that Sessions Judges could be entrusted with the responsibility of deciding such appeals has not attracted us, as it is, we think, only in» the High Courts that a uniform standard for dealing with such appeal can be niaintaincd.

lt has also been suggested that, apart from the State and the complainant in complaint cases, other interested persons such as the first informer to the police? or the victim of a crime?' or his relatives may be given a right of appeal, in suitable cases. We are unable to agree, as in criminal proceedings we do not want to recognise any interest except that of the public, and of course, to some extent, that of a complainant who actually initiates the proceedings in court. It is, therefore, not necessary to expand the scope if section 417 in that direction.

31.18. Sub-section (5) of section 417 says that if an appli- cation for special leave by a complainant has been refused by the High Court, no appeal by the State in that same cases will lie, -- and quite properly, for while considering the application for special leave, the High Court will have examined the judgment under appeal and presumably found it good. It has been suggested' that there should be an express provision for the converse case, namely, that when an appeal by the State has been dismissed, no application for special leave by a complainant should be compe- tent. This, however, is already a necessary consequence, for, if an appeal has been dismissed, no question of admitting or consi- dering another appeal on the same matter can arise, and it is unnecessary to burden the code with any express provision to that effect.

31.19. Another suggestion for our consideration is a pro- posal5 (in a Private Member's Bill), that in case a single Judge of a High Court accepts an appeal against acquittal and convicts the respondent, he should have a right to appeal to" two Judges of the same High Court. The idea here is to introduce what in civil case is called :1 "Letters patent" appeal. We are not convinced that any useful purpose will be served by making any such pro-vision in the Code. It is quite simple for any High Court to provide by rule that acquittal appeals should be heard by the Judges, and the object behind this proposal can be amply served by that arrange- ment.

. 31.20. The time allowed for an acquittal appeal by the State 1S now ninety days". Some time ago, it was six months. It has been suggested7 that the period should be extended, but we are unable to ﬁnd any justification for it.' 1F. 3(2)/55~L.C., Part II, page 231, S. No, 30(t), (Suggestion of a Collector).

'-'F.3(2)/55, Part III, S. No. 69 and F.3(2)/55, Part I. S. No. 72.

3F. 3(2)/S5. Part I. S. No. 49.

4F. 3(2)/55-L.C.. Part III, S. No. 52 (Bar Council of Madras).

5Bill of Shri K. V. Raghunath Rcddy (No. 11 of 1963) clause 8, and Rajya Sabha Debates, 3-9-1965, col. 162. 182-184, 207.

"Article 114, Limitation Act, 1963 (Old article 157).

7F. 3(2)/55-L.C., Part III, S. No. 50(b). [One I. G. Police]. L33HA/69 Section 417 (5).;

Further appeal to Bench from decision of a single Judge not necessary.

Limitation need not be extended.

Provision for appeal to en-

hance sentence.

"Appeal by the Government against sentence.

Section 418- Omission recou-

_ mended.

kction 419, 420 421 Jail appeals and appeals pre-

sented through pleaders.

' 264 3121. it will be noticed that although section 417 permits the State Government to appeal against an order of acquittal, it does not permit any appeal against a conviction when the punishment imposed may be grossly inadequate. Any error in sentencing can be rem;-ui=;d only by the exercise of the revisional powers of the Higgii Court. This is soniewhat unsatisfactory. There seems no

- _' the State Cs'over:';tnent should not be able to appeal '1 inadequate '_-EHICBCC, nor why such an appeal cannot be by [110 ordinary court of appeal. Cases of inadequate sente;'iee;, are frequently ccurring, and we consider the ordinary court of appeal should, in each case where the State considers it proper to lodge an appeal, be able to deal with it. We, there- iore, ;;ropo:::: to add a new section in this Chapter as section 417A, thus 1 LL» "4l7A. (l) The State Government may, in any case of conviction on a trial held by any Court other than a High Court, direct the Public Prosecutor to present an appeal against the sentence on the ground of its inadequacy.

(2) If such conviction is in a case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946, the Central Government may also direct the Public Pro-

secutor to present an appeal against the sentence on the ground of its inadequacy.

(3) An appeal under this section shall lie to the Court to which an appeal by the person convicted in the case would lie under section 408."

31.22. Section 418 contains provisions which will be entirely superﬂuous with the abolition of jury trials. The Statement with which the section opens, namely, that an appeal may lie on a matter of fact as well as a matter of law, derives relevancy from the exception that follows to the eﬁect that, in the case of :1 jury trial. the appeal shall lie only on a matter of law. The explanation is again with reference to jury trials, making it clear that there could be an appeal in such trials for reducing the sentence on the footing that the alleged severity of the sen- tence shall be deemed to be a matter of law. Sub-section (2) applies only to trials by jury. We recommended the ornission of the entire section 418.

31-23. An appeal has to be presented either by the appellant or his pleader as section 419 requires, but in case the appellant is in jail, he can present it to the olﬁeer in charge of the jail who has to forward it to the appellate court as is provided in section 420. Such appeals are usually called "jail appeals". Section 421 pro- vides that the appellate court may, after reading the petition of appeal and the copy of the judgment accompanying it, ﬁnd that there is no ground for interference and on that the court can dis- miss the appeal summarily, but before doing so, the Court must afford Opportunity to the appellant or the pleader to be heard ex- cept in the case of a jail appeal. In other words, a jail appeal can be summarily dismissed without hearing any one, but an appeal pre- sented in person or through a pleader cannot be so dismissed.

265

31.24. It is obvious that the right vested in the appellant is :o l3f~;;re',lt one appeal, although there are dilierent. methods oi sresentinu it. and strictly speaking, if one method lS availed 0t and one opeal cilhsr under section 419 or section 420 is presented, no other ppeti! can be .'ot§g;d.

N-ractie-:. however, it appears that frequently both teat-gri and are ealt with as two appeals about '1 us, an appellant in jail sends an appeal

- ll.2l;C1ld£).'-'ll and later a pleader instructed on :~. another appeal against the same order. No pru:-that - J .:.i;e;<. it, as is normally the case, both the app' . are dealt with at the same time. Sometimes, however, through 0'-Jﬁrfélgllf. one appeal is dispo.ed of and then the other appeal comes up for disposal, causing considerable emharrassinent to the appellate Court.' At times a jail appeal is summarily dis- missed and then an appeal ﬁled through counsel comes up for hearing when some arguable question is raised, and the Court is not certain if it can proceed with the appeal, If the appeal is in the High Court, its inherent jurisdiction can perhaps be invoked,' but a large number of appeals lie to the Court of Session where no such solution is available.

appcxus 22"

me same zna. er.

thi'ougw the jail ' his bcz'. L 31.26. ln a recent case, the Supreme Court-" has ruled that if a jail appeal under section 420 is summarily dismissed, then after the dismissal of that appeal, no appeal under section 419 is com- petent. In that particular case, the second appeal was presented after the jail appeal had been dismissed; but it is not unlikely that the Courts will apply the same rule to a pending appeal and hold that if a jail appeal is dismissed summarily, no other appeal, although pending at that time. can be heard. This, we think, may lead to hardship. If we were satisﬁed that a jail appeal received the some attention by the appellate Court as any other appeal, we would have been content to leave the matter as it stands, hoping that aooellzxte Courts will so arrange their work that such two appeals are always heard torgether. We have information, however, that except nerllzms in the High Courts, "jail appeals" are not considered with particular care. and in many cases, the trronnds of appeal drafted in jail do not attract sufﬁcient attention and. even if there be any point in the appeal, it is liable to be missed. Our law. entitles an accused person to obtain legal assistance a"d pre- sent his case in Court throuqh a competent pleeder} and we are anxious that the spirit of this rule should be preserved.

31.27. We therefore propose to make a legal provision that a jail appeal must not be summarily dismissed till the time for ﬁling an ordinary appeal has expired. This will ensure that an apps-l'ant. wishing to avail of lerzal assistance will have presented an' appeal under section 419 before his appeal, if any, presented under sec- tion 420 comes up for disposal. We are further providing that, if in spite of this. a jail anneal happens to be dismisccd qummm-i1y_ that would not debar the Court from considering an appeal under 1('f. .S'unr:'.nr Ia], ALR. 1968 All. 32') '-'Sec'ion 56lA.

3Prnmr) Single, (1961) 2 S.C.R. 509. 512; A.I.R. 196! s,c_ 533, 'Section 340.

Right to present one appeal only.

Position when two appeals are presented.

Supreme Court':

ruling and poni-

ble hardship therefrom.

Recommendation Reason for sum-

mary dismissal to be recorded.

Provision of sec-

tion 421 recom-

mended.

Section 422.

266

section 419 on the merits,_prov_ided such appeal is otherwise duly presented and the Court is satisﬁed "that the interests of ]LlStlCe require that it should be heard".

31.28. It will be noticed that section 421 authorises the appel- late Court to summarily dismiss an appeal without stating its reasons. In the case of High Courts, this causes no difficulty; but in the case of Sessions Courts, it does, as their orders are liable to be revised by the High Court, and it would be very helpful if their reasons existed on the record. We suggest therefore that an appellate Court, other than a High Court, should record its reasons.

31.29. Section 421 may accordingly be revised as follows :-

"Summary dismissal of appeal. 421. (1) If upon exam- ining the petition of appeal and copy of the judgment received under section 419 or section 420, the Appellate Court. . .. considers that there is no sufficient ground for interfering, it may dismiss the appeal summarily 2 Provided that--

(a) no appeal presented under section 419 shall be dis-

missed unless the appellant or his pleader has had a reasonable opportunity of being heard in support of the same; and

(b) no appeal presented under section 420 shall be dismissed summarily until the period allowed for preferring such appeal has expired.

(2) Before dismissing an appeal under this section the Court may call for the record of the case, but shall not be bound to do so.

(3) An Appellate Court other than the High Court dis- missing an appeal under this section shall record its reasons for doing so.

(4) Where an appeal presented under section 420 has been dismissed summarily under this section and the Appellate Court ﬁnds that another petition of appeal duly presented under section 419 on behalf of the same appellant has not been considered by it, that Court may, notwithstanding any- thing contained in section 430, if satisﬁed that it is necessary in the interests of justice so to do, hear and dispose of such appeal in accordance with law."

31.30. Section 422 provides that if an appeal is not dismissed summarily, the Court shall give notice of the appeal to the appel- lant or his pleader and to the Public Prosecutor, and in case of an appeal under section 41 lA(2) or section 417, to the accused. If the Public Prosecutor applies, he will be furnished with a copy of the grounds of appeal; but nothing is said about the accused being given such a copy. No mention is made of a private com- plainant who may have instituted the proceedings in the trial Court. We think it proper that in such cases, he should be entitled to appear. It would also be proper to provide that, along with the notice of hearing, a copy of the grounds of appeal should be 1' r'& '-\

51. Appeal acquittal against convic-

tion for a diffe-

rent oilencc.

Power to order re-hearing appeal.

of 268 (3) Where the only ground for appeal from a convictimf is the a./:'v'>2rl severity of the sentence, the appellant shall not, l the leave of the Court, urge or be heard in sup- : :3.» i,»tf:er gr0zi;:d."

53.3%. Ci1lLl:u;':. (:1) and (b) of section 433(1) deal _with appeals from acquittal and appeals from conviction respectively, and it Will e.: co' .'e4iient to deal with thee two clauses separately. Under clause (:1) in an appeal from acquittal, the Appellate Court cat}, 1'. His, find the at.cu~-:ed guilty. This power is not iicd L) 3'3?"

(x the accused guilty of the particular offence ot ._ ml was cliazjged or acquitted. Subject to an im- gnor int ti:nita_.ion (to be presently noticed), this power is wide cnou,:i'i to enable the Appellate Court to find accused guilty ol :1 ditl';::*;r;t <;.'ie.;;';.' _ " To iite ca" ; lint ll'.-3 ,--"\pp¢:l--

. r rhoull be e .press!y restricted to convicting the £1CCli~;a.'"'s of t '~.'\-'Dr: charged, is not acceptable to us. because, as pointed out by the Supreme Court in the case noted 'eel w,3 sections 236 and 237 control the exercise of Appel- late Con. ' powers also. That court cannot convict the accused of an f)"?l1'Cl§7 CllliC!,'€'i':[ offence, whether the appeal is against acquittal or against conviction.

31.35. The powers of the appellate court, in an appeal from an order of acquittal, are to "reverse such order and direct that further inqi.'z'ry be made, or that the accused be r(:zn'ed or commit- ted for trial, as the case may be, or ﬁnd him guilty, and pass sen- tence on him accordi='2g to law." In this connection, the question arises whether the appellate court can, in cases where the appeal is from an appellate order of acquittal, direct a re--hearing of the appeal '? The answer depends on the nieaninc of the expressions "inquiry" and "re--tried". Where the defect isnot in the proceed- ings of the trial court. but in those of the first appellate court, the question bCCO"|lCS material. There is a suggestion of the Madras Bar Counclt for the insertion of a provi~ion enabling the High Court to direct a i'e--he;:rinq of the appeal, so as to save the time of the trial court and avoid unnecessary harrassrnent of the accu:'.er.l_ when the !T1l"--,f8.l(C lies with the anpellzite court, owing to its :1 wronf: order.

Some decisions hold that the power to 'ts even unzl-er "as '}'€tE,F_"i"l "

1?. are «ion to the contrary." .

erred to 'out not decided, and the order '<:-:1 of a C..:.::

In a D32:

vvac, i sect" 57:?! with clauses (a), (c) ' T' (rl) oi Thu': e Viol: Court can do so in excr " o" it: . . sion Ti-C ...:.2ht«::l.'--'* The l'll'»Zl". Court C in " V:'l«"|l'l 2isft'~2 tn:

apr>e'l:ite c 'lTI' of acunittal and direct a rc--hearin<_: of the appeal xvithout or "

9 "re--tri<=l" the r~ri<:i'=:'l »-'.'e 'e. v'T'75>i.: 37'?' It "3"":

. I'. r' 252 H -e ' 'l')."'-'23 T? 5?...

. . . Cl', l..7. 3 .°;.=» '7'. 'I 'lo 5:» n vs 2"", W839) I.l-.R. 13 Rom. 50:'-. 515: C/iaiidra Sing/1, »' * 5. /37 (I,:>.'1'.

°Emn. U/Knzloe, AIR. 1936 Rang 369, 370.

7Pu/2l'C P;-meet/rnr v Raver Uniziri. A.l.R, 1914 Mad. 50_ 51, 3Ra:>lv'(nnIl1 v. Pan' Ram, A.l.R. l937 Nan. 394. 396. 93- .»'?."/':(.I Sirwh V. Barr/:n('lza_ A.l.R. 1925 Oudh 321.

269

Such (ilrC<:ti(J;':5 to the lower appellate court to re-hear an appeal are ls':LlL'(l only in those rare cases where there is a pronounced tendency on the part of the Court to deny to the appellant a reason- able oprortunity of being fully heard or to write sl.:p.«he=;; ,=u,:.l;;'«.- nier.t.», xx V " '1 «sing all the questions of law and fact that niay a.i,;: I 'rent under appeal. We do not Consider " nary for this purpose. This may be that a.: .

leit to th. Jgn Court.

"'7ll5 ;= *e.h1:t convictions, the powers of the 'd mainly by clause (b) of sub--section . in th.;; clause, the powers mentioned in sub- ) are important.

L» \.a Ca U4 .3 '2 pinder «us-clau:: (l) the Appellate Court reverses the 'v- i-..,"'-

zmtl sentence, it two courses opens it may acquit or the accu.~;ed, or it may order the accused to be re--tried .ed for trial. in a:? important judgment of the Supreme was held that the character of the appellate proceedings scope and e:;te:;t are determined by the nature of the Jreferred before the Appellate Court. if an appeal is ad against the acquittal, and no appeal is filed against the . ;:tion, it ie only the of acquittal which is considered by the Apfiellate Court. On the other hand, if the order of conviction is chzziienged and the order of acquittal is not challenged, T: is only the order of conviction which is considered by the Appellate Court.

Further, the Supreme Court held that except under section 429, it not open to the High Court, in an appeal against convic- tion, to order re--trial of the accused on charges of which the accused had been acquitted by the trial Court, though it could reverse the con'v'icti-on and order a re--trial for the offence of which the accused had been convicted.

31.? 7. As rewards sub--elause (2) also, in the same jtitlnnient cine Court, the meaning of the expression "alter the :.as. been discussed at length, and the con:=:tr:J/ttion on it is that the power to alter the ﬁnding is conﬁned to , -

.. ' a far which the accused could have been convicted under 7 to ?..'~,?§. Sine? c'=*1use (bl begins with the v,'ni:d'~: "En mom a conviction". the cxarrssion "alter the i'i:'c ' ', means "alter the ﬁnding of conviction".

. .. L lt do-cs, rm: confer a. power to reverse a ﬁnding of not guilty becaus.:: eals from acquittal are dealt with separately in clause

(a). We ..t.°.ve referred to the judgment of the Supreme Court in dc ail because it lias set at rest the previous conflict of deci- sicns 3'~ Situatic-.*'s also arise in which the accused is convicted , . - less crave than that for which he was prosecuted. cases. the '-ac taltezt is that he is deemed to have been a cu' the gzraver o[T**1ce. Thus. where a person is charged :1 302 but convicted under section :1 there i; an implied acquittal of the 7.91/2 3 u. _«....:z ]'.'(:ra_\'t'm, AIR. 1962 SC. 240; (1962) 2 S.C.R. 904.

3.'See 6.9. Bawa Sing]: V. Emp. l.L.R. (1942) Lab. 129; A.l.R. 1941 Lah. 4:5 '.F.B.) and Zumer Qairim v, Emp., A.I.R. 1944 All. 137, 155, 156 (F.B.).

Appeal against conviction-

Reversing ﬁnding and ordering re-

trial.

Meaning ' of "al-

tering the ﬁnding".

Appeal from con-

viction for less serious otfenoes implied acquittal of offence char-

ged.

Section 423 (IA) enhancement of sentence of Appellate Courts other than the High Court.

Power to appeal for enhancement of sentence.

_Limit of sentenc-

ing powers of the Appellate Court.

270

first offence} If, therefore, the accused appeals against the con- viction and the State does not appeal against the acquitta1,_the Appellate Court cannot "alter the ﬁnding" into one of conviction- under section 302, Indian Penal Code.

31.39. As a general rule, the Appellate Court hearing an appeal against a conviction has no power to enhance the sen- tence. But an exception was made by the amendment of 1955. Under sub-section (lA), as inserted by that amendment, where the High Court is the Appellate Court, it can enhance' the sentence after giving notice to the accused. The High Court can also enhance the sentence under its revisional jurisdicti0n.3 During our consideration of section 423(1A), the question of giving power to the Sessions Judge (when hearing appeals) to enhance the sentence was raised. It was stated that Magistrates often award very lenient sentences. When the Session Judge, while hearing an appeal from a conviction, especially for an anti- social offence, ﬁnds that the sentence is grossly inadequate, he is required to refer the question of enhancement to the High Court, causing undue delay and additional expense to the parties concerned.

It may be mentioned here, that in the 14th _Report,4 while proposing widening of the revisional jurisdiction of the Sessions Judge, petitions against acquittal and petitions for enhancement of sentence were speciﬁcally excluded from the scope of the pro- posal. But, it appears to us that the arguments set out in that Report for widening the revisional jurisdiction of Sessions Judges apply as much to the enhancement of sentence as to the widen- ing of revisional jurisdiction. Power to hear appeals against acquittal is an extraordinary power, and it is understandable that it may not be proper to give it to a lower court. But the power of enhancement of sentence does not stand on the same footing. Sessions Judge and Chief Judicial Magistrates may be safely en- trusted with this power, and the High Court need not be troubled by frequent references.

We recommend that sub-section (1A) of section 423 may be omitted and clause (b) of sub-section (1) amended, conferring on all appellate courts a power to enhance the sentence after giving the accused an opportunity of showing cause against such enhancement.

31.40. We have proposed above5 the insertion of a new section under which the State Government may, where there is a conviction, appeal on the ground of inadequacy of the sentence. The powers of the Appellate Court in such appeals should be the same as in appeals from a conviction. Accordingly, clause (b) of section 423(1) should begin with the words "in an appeal from a conviction or for enhancement of sentence."

31.41. While on the question of sentence, we may refer to the recent judgment of the Supreme Court where it was held"

that the Appellate Court cannot impose a higher sentence than '_rY'I(>l"'}Iall Singh v. En}; 55_i.7xf-3-90/;!\.*L".RT"5o /xijl1.4722;3i A.I.R.r192l3_ P.C. 254.

2 Tara 'C/mnd v. The State, A.I.R. 1962 S.C. 130. 131 paragraph 5. 3 Section 439(6). K 4 5'lS::teh p§{rel:1po3r'§..2}(ol. 2, p. 826, paragraph 6. SC" Jagat Bahadur v. State of M.P., (1966) S.C.R. 322; AIR. 1966 . . 945.

'1 271 the Court of the first of an express provision to this decision in order by the lower appellate that which could have been inﬂicted by instance. We recommend the insertion in the section giving statutory recognition that the point may not be lost sight of courts.

31.42. Sub-section (2) of section 423 may be omitted, as it relates to trials by jury.

31.43. Section 423 may accordingly be revised as follows :-

"423. After hearing the appeal, the Appellate Court may, if it considers that there is no sufficient ground for interfer- ing, dismiss the appeal, or may----

(a) in an appeal from an order of aquittal, reverse such order and direct that further inquiry be made, or that the accused be retried or committed for trial as the case may be, or ﬁnd him guilty and pass sentence on him accord-

ing to law;

(b) in an appeal from a conviction or for enhancement of sentence--

(i) reverse the ﬁnding and sentence and acquit or discharge the accused, or order him to be retried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or alter the ﬁnding, maintaining the sentence, or with or without altering the ﬁnding, alter the nature, or the extent, or the nature and the extent, of the sentence, whether so as to enhance or to reduce the same :

(c) in an appeal from any other order, alter or reverse such order;

(d) make any amendment or any consequential or inci-

dental order that may be just or proper;

Provided that in an appeal from a conviction, the sentence shall not be enhanced under sub-clause (iii) of clause (b) unless the accused has had an opportunity of showing cause against such enhancement;

Provided further that the Appellate Court shall not inﬂict greater punishment for the oﬂence which in its opinion the accused has committed, than might have been inﬂicted for that oﬂence by the Court passing the order or sentence under appeal.

31.44. With reference to section 424, we considered the question whether an order under section 421 dismissing an appeal summarily is or is not a "judgment" for the purposes of section 424. In a Supreme Court decision1 relating to section 439(6), the majority view was that the order under section 421 was a "ﬁnal order", while S.R. Das J. (as he then was) described it as a "judgment". In another Supreme Court decision? holding that the summary dismissal of a jail appeal was a bar to hearing a represented appeal, the dismissal of an appeal under section 421 was described as an "order", and held to be "ﬁnal" within the meaning of section 430. In yet another Supreme Court case3, holding that a high Court was not bound 1 U. J. S. Chopra, (1955) 2 S.C.R. 921; A.I.R. 1955 S.C. 633 (Bhag-

win' and Immam 1]) (Das I. contra).

9Pratap Singh, (1961) 2 S.C.R. 509, S12; A.I.R. 1961 S.C. 586, 588. 'Chittaranian, AIR. 1963 SC. 1696, 1700.

(ii)

(iii) Section 423(2).

Revision of sec-

tion 423 recom-

mended.

Powers of Appel-

late Court in dis-

posing of appeal.

Section 424 Is order dismissing appeal summarily a judgment Section 424, pro-

viso.

Section 425.

Section 426.

272

to give reasons for the summary dismissal of an appeal, section 421 did not fall to be considered The question whether, in the case of a dismissal of an appeal under section 421, a "judgment" should be recorded by Courts other than High Courts, has not yet been settled by the _Supreme Court. There has been in the past a sharp cunﬁict of judicial opinion1 as to whether an order under section 421 was a "judgment" or not. lt is, however, unnecessary to discuss them at length, since the amendment we have suggested above? in section 421 (requiring every Appellate Court, other than a. High Court, to record reasons for the order) will render the question academic.

31-45. It was suggested by a High Court Judge" that the proviso to section 424 should be amended requiring the appel- lant to remain in attendance in court on the date on which the appetite judgment was delivered. It was said that this would facilitate his recommittal to jail promptly if his appeal was dismissed. We do not, however, consider it necessary to make such an amendment. The proviso to section 424 is in the nature of an exception to the general rule enacted in section 366(2). It is always open to the Appellate Court to direct the attendance of the appellant on the date ﬁxed for the judg- ment or to dispense with his attendance if it is not required. The existing law is thus quite suﬂicient to meet the purpose.

31.46. Section 425(1) requires the order of the High Court on appeal to be certiﬁed to the lower court when it is that of a Magistrate, through the District Magistrate. No amendment in this respect has been made by the Bombay and Punjab Acts by which separation was introduced, but it seems to be desir- able that where the order appealed against was recorded or passed by a judicial Magistrate, the order of the High Court should be sent through the Chief Judicial Magistrate and where it was by an Executive Magistrate, the High Court's order should be sent through the District Magistrate. The second sentence of s. 425(1) may be revised to read as follows :--

"IF the ﬁnding, sentence or order was recorded or passed bv :: Judicial Magistrate, other than the Chief Judicial Magistrate. or by an Executive Magistrate, other than the District Maﬁstrate, the certiﬁcate shall be sent through the Chief Judicial Magistrate or the District Magistrate, as the case may be."

31.47. No changes are needed in sub-sections (l) and (2) of section 426.

'Rash Behari Das [vii-Bul gaféal, (l839£i),7ghI..'l?E 21 Cal. 92!:

. Bh' . (1894) . .R 1 cm. 7 . : mperor v. a v .

'El9l(-')'mi'?I,.).¢.'R. 38 All. 393, 394'; State V. Kala. A.I.R. 1952 Marlyn Bharat 81. 90.

"See paras; 31.28 and 31.29.

'F. 3(2)/55-L.C. Part II. S. No. 33(1). D. 126.

273

With re»'erence to sub--section (2A), the following sugges- tion' of the Ministry of Home Affairs was duly considersd by us :--

" been brought to the notice of the Government of the ;::neml:ne.1t 0? 426(2A) in 195?: that o'. «:ot:;':~; respect of grant of rail is rcstricted .,.:2?.:ii::';e oﬂences. This o/{ten leads to anomalous =C..>L:rt wl'='c'". sentences an accused. to two " ixO!'iI]'_CT'li. for cheati 1}. l'.':-'s rowel' on In}? pending (.".'Ll€I'S o Artpellate no pow»;:r to release on bafl an 1iCC!.!F.€(l t'.'ou.gh the sentence may be only V - Case of persons accused of non-

cour,+_ has discretion to release an v th: offence is one punishable life imprisonment. It has been rat: :,.an1:.~ di erction should be allowed to courts e.~;:rcisin_-._z powers; under sec. 426(_2A). matter was «zonsidered when the Code was b-sin}: amended in 7955. and it was considered that sub--seCtion ?.'A) of section 426 the amended with a View to authorise the con- victing court to release the convicted person on bail for a short rgeriorl. not exceeding 14 days, in order to enable hint to appeal and obtain an order of bail from the Appel- late Court provided that--

_ \

i)I"f}'il.'.

......

(1) such a convicted person was on bail on the date of hit: conviction; and (2) his sentence of imprisonment is not more than two '38 TS oorgal however did not find a place ' Tire proposal is reierred to tor t eir consideration.

"fro been pointed out that the worcling; of the (2A') is somewhat ambiguous. :11: it refers to ;: .:,n'.::ncc:l to imprhsonmeiit and nothin; is: saicl .t the r:«7r~;c-nt. :i:r.t~:n:cd to ﬁne and imprisonment. It n stati:-d that some courts have interpreted that the ::ot 2'::i:~'rv to cases in whicl P. Ker-'en is .3 arizl imririsonment. The ,.'.:w CoIn=ni>.~ no £lO'.!l?'. consider whether ary an?-:n.r'::~* .=it.< are i'»:5'A.i='r>'l to tlt: section to remove thit an1E:'"=iit<,'."

_ 4 that Gtter conviction there is no _iust?.'..<:z:'sion for rmkin.-r di:finc' - l'.et\-/L-cit bailable and non--bailable off~:nce~ ..;(2T'.il that for the piirposes 0-' sub- sect?o* 2- " nombailable offences should be d'~alt i:.'."/'~'.":'.T].'3 in-'itinr*. We are. further, of the view that ?il-'.7LZl",l rvppy only where iinprisonmzrnt unto .7 7.:-rot} »fwh~t'nv:r for a bailable or non- ailable 7 3 two years' limit (suggested by the Home Minis- try) ii. our view. unduly high, An Appellate Court would 1Govt, of India. Ministry of Home Affairs. F.3(2)/55-L.C., S. No. 27, Home Ministry File No. 14/8/57-Judl. II.

Section 426(_2B).

Application section 426 security cases.

of to 274 not ordinarily release the appellant on bail, where he has been sentenced to imprisonment for two years. We recommend that the npening clause of the sub-section may be amended to read---

"When any person **** is sentenced by a Court to imprisonment for a term not exceeding one year, and an appeal hes from that sentence . ."

In our View this sub-section does not exclude cases where in addition to imprisonment, a sentence of fine also IS awarded and hence we suggest no alteration in that respect.

31.48. Sub~section (2B) was inserted in 1945, when special leave could be granted only by the Privy Council which was far away. The Adaptation Order of 1950 substituted "Supreme Court" for "Privy Council" without considering whether there is any practical need for the provision. The Supreme Court is not far away, and when the party has taken the trouble and incurred the necessary expense in obtaining special leave from the Supreme Court, he could easily request that Court, while granting special leave, to give appropriate interim relief. We recommend the omission of the sub-section (2B).

We have also considered the suggestionslé' to amend sub- section (2B) enabling the High Court to grant interim relief to a person during the interval between the date of the dismissal of his appeal by the High Court and the date of grant of special leave by the Supreme Court. In our view any such widening of the scope of the sub-section is neither necessary nor desirable. With the quick means of transport available nowadays, it should not be diiﬁcult for a party to approach the Supreme Court and obtain appropriate interim relief without delay.

31.49. There is a sharp conﬂict of judicial opinion as regards the applicability of section 426 to persons who have been directed to execute bonds for keeping peace or maintaining good behaviour under sec. 118 and to those who have been committed to prison on failure to execute such bonds. The cases" noted below may be seen. It is unnecessary to discuss the relative merits of those decisions. An order under sec. 118 undoubtedly aﬂects the liberty of a subject, and we consider it proper that during the pendency of an appeal against that order, the Appellate Court and the High Court should have power to stay the execution of the order and. if the appellant is in custody, to direct his release on bail. It is true, as pointed out by a High Court Judge' that there should be some safeguard for keeping peace or maintaining good behaviour when the appellant is on bail. This can be provided by requiring 1 Gore Lal v. TS/ale, A.I.R. 1958 All. 657. 672. '~'F.3(2)/55--I..C.. S. No. 8, 26. (Home Ministry ﬁle No. 16/16/56- J.II). (Suggestion of the Ministry of Home Affairs regarding grant of bail to person to whom certiﬁcate of ﬁtness for application has been granted).

3Ja_.<,7ir Singh v. Emp. A.I.R. 1930 Lah. 529 (Tapp J.); C/iaran Mahto v. Emp., A.I.R. 1930 Pat. 274. (Macpherson and Dhavle IJ.): Katwaroo v. Emp.. A.I.R. 1932 All. 680; Ram Nath v. Nanak Chand, A.I.R. 1932 All. 686; Darsu V. Emp. I.L.R. 57 All. 264; A.I.R. 1934 All. 845 (Bennett 1.): Ema. v. Masuria. A.I.R. 1936 All. 107. 109. 'F. 3(2)/55-L.C. Part II. S. No, 33(a).

. ..-- \,.,'--_ 275 the interim bail bond in such cases to be of the same type as Forms X and XI of Schedule V, with slight alterations so as to provide also for his appearance on the date ﬁxed by the Appellate Court. It is, however, expected that before accepting such bail bond, the Court will satisfy itself not only about the solvency of the bailor and the sureties but also about their power, to control the actions of the appellant.

We recommend the addition of a sub-section to section 426 as follows :--

"(4) When any person is ordered to give security for keeping the peace or for rnaintaining good be/zczviour under .vection 118, the provisions of sub--sections (1) and (2) shall, so far as may be, apply in relation to such person as they apply in relation to a person convicted of an offence."

31.50. No change is needed in section 427 except the omis- sion of the reference to "section 411A, sub--section (2)".

31.51. With reference to section 428, it was pointed out that the Sessions Judge. sitting in appeal from a judgment of the Assistant Sessions Judge, has no power to direct the latter to record additional evidence. He can either record it himself, or direct a Magistrate to do so. We do not think that the position requires any change. Such instances would be rare, and there is no anomaly if the function of recording evidence is entrusted to a Magistrate. Moreover Magistrates are available in many outlying places where an Assistant Sessions Judge is not posted. It will be more convenient and less expensive to the parties if they are required to bring their witnesses before the nearest Magis- trate rather than before the Assistant Sessions Judge.

31.52. Section 429 is intended to provide for a contingency where a Bench of two Judges of a High Court are equally divided in their opinion regarding an appeal heard by' them. The "case" is required to be laid before a third Judge, and the judgment or order shall follow his opinion. There is a sharp difference of judicial opinion regarding the true scope and content of the word 'case'. Does it include the entire appeal or is it restricted only to» those charges in respect of which difference of opinion has arisen? Is it restricted only to those convicted or acquitted per- sons regarding whom the Judges have differed? Will it also apply to those instances where, though the two Judges may agree about the ﬁnal order to be passed, yet they may differ in respect of the ﬁndings ? Thus, one Judge may desire to acquit the accused on the ground that he exercised the right of private defence, whereas his colleague may be inclined to acquit on the ground that the prosecution has failed to establish its case beyond reasonable doubt. The Allahabad and Calcutta decisions, where these questions have been discussed, are cited below} 31.53. We are unable to accept a suggestion? that an Ex- planation should be inserted to clarify that the expression "case" means only the points in respect of which the Judges are divided.

1Sz.'bedar v. State, A.I.R. 1956 All. 529. 538, 539 Subedar Singh v. Emp., A.I.R. 1943 All. 272 Nemai v. State, A.I.R. 1966 Cal. 194.

=F.3(2)-55-L.C. Part II, S. No. 33(a)--Suggestion of a High Court Judge.

Section 427 Section 418 Section 429 Meaningtof the "case."

Explanation of term not desir-

able.

Is third Judge bound to accept concurrent View of referring Judges on other poirm '.' Possible anomaly 'ncerrain cases.

276

In our view, it is better to leave this question to the discretion of the Bench hearing the case, rather than enact a rigid statutory piovésion on L1 subject which primarily pertains to, and can be more satisiactorily dealt with by, the pI'clC'.lL3C or the High Courts.

3i.;'>'--'L-. ln some cases there has been a discussion hs to whether the third Judge ought to consider hiinselr bound by the views exjﬁresscd Uy the two reterring Judges, on points on which there was no tiitierence between the two Judges. Ashutosh Mookerjee J. had observed in o-ne easel, that the term "ca=e" in section 429 is the case or the prisoner as to whom the Judges are equally divided opirrion, and not merely the point or points on which they are divided. But in a later Calcutta casef Woodroffe J. had expressed the view (obiter) that the third Judge could not ditlcr with the two Judges on a point agreed upon by them, un- less there were strong reasons for doing so. Our attention was also _Zi'aw;":, in this connection, to the corresponding provisions in the Letters Patent} and in the Code of Civil Procedure,' under which the View of the majority of all the Judges, including those who first heard the case, is to prevail.

The subject is one in respect of which a general rule appli- cable to all cases may not be advisable. The position in criminal cases is diﬁcrent from that in civil cases, where clearcut issues can be framed, and a demarcation of the points of difference can be done more easily. This is not practicable in most of the criminal cases where the ﬁndings are closely inter--mixed and not easily severable. The position as now understood is that the third Judge brings to hear his independent opinion.5 As was observed by the Supreme Court,' it is for the third Judge to decide on what points he shall hear arguments if any, and this postulates that the third Judge is completely free in resolving the difference as he thinks ﬁt.

In our view, no change in the Code is needed on this point. It should be left (as at present) to the discretion of the third J udjte to decide how far he will or will not disturb the view ex- p1'esserl unanimously by the two Judges on particular points.

31.55. But there is one aspect of the matter which requires consideration. if the opinion of the third Judge is to prevail, an anomalous position may occasionally be created. For example, in an appeal against conviction, Judge A may be for acquitting the accused; Judge B may be for convicting the accused for a lesser offence; Judge C (the third Judge to whom the matter is referred under section 429), may be for maintaining the convic- tion. in such cases, the third Judge's View would be really a minority view, and yet would prevail.

1S.r1raI Chandra V. Emp., (1911) I.L.R. 38 Cal. 202. '-'Gmm1e Venkata Ramam v. Corvorafioﬂ Of' Calcutta. A.I.R. 1919 Cal. 862.

3 See clause 36_ Letters Patent of Bombay. Calcutta and Madras High Courts.

4Section 98. Code of Civil Procedure, 1908.

5 Cf. Repana, A.I.R. 1961 A.P. 70.

6Dharnrn Sinqh V. State, (1962) Suppl, 3 S.C.R. 769, 772. 782. 783 see also Babu V. State, A.I.R. 1965 S.C. 1467, 1470, 277 31.56. it may be noted that efforts have been made in the past to amend section 429. A Bill was introduced in 1914 to substitute, in: spctic»: i-'+29, the following s.:ction----

"Wl2e:i the .iut.E;:es 'C'?li7..":OSliig tne Court of Appeal are equally di-./ided in opinion, the case shall be ,"t7/wart! />ef<)re z/:.:=7z ;,:=:ti ano'-'i:r Judge of Lhe Court, and the judgment or ' ' ' ow the or .3011 11.1: ruzijority of the Judges so 1':-hc:tri.'-3 the c:::se."' in: ;'.'a_;r.::'-;<. i':;r .£:: .iilT1.'f§d111Cl'it were thus stated :

"At present when the Judges composing the Court of Appcai in the ligzh Court are equally divided in opinion the v.tSC is laid beiore a third Judge. In order to prevent the possibility of the third Judge interferring with the unani- $110115 decision of the previous two on any point of the case, it is provided that the whoie case should be re--hcard before a third Judge and the judgment given in accordance with the opinion of the majority." This matter was consi- dered by the Lowndes Committee which suggested? that, instead 0.' the amendment mentioned above, the following proviso be added to section 429 :--

"Provided that, if either of the Judges composing the Court of Appeal so require, the appeal shall be re--heard before them and another Judge, or if the Chief Justice or the Judicial Commissioner so directs, before three other Judges and the judgzment or order shall follow the opinion of the majority of the Judges so re--hearing the case."3 The Committee stated that they would prefer to retain section 429 in its existing form, but would add a proviso on the lines of the amendment proposed by them to section 378 and for the same reasons.' This amendment, however, was not accepted by the Select Committee which considered the Bill in 1922. "In view of the fact that the diﬂiculty which the amendment is intended to meet is probably of rare occurrence", they preferred to leave the law as it was."

3157. Subsequent experience" has, however, shown that the problem is not so rare as was thought in 1922. While in most cases, the procedure laid down in section 429 is satisfactory, it has led to difiicttlties in special cases. We think it is desirable to provide that if either of the Judges ﬁrst hearinn the appeal so requires, or if after reference the third Judge so requires, the case should be re-heard and decided by a Bench of three or more Judges. It will be, for the Chief Justice to decide who will 1Gazette of India. (1914). Part V. page 111. 3Gazette of India, (1914). Part V. page 111. 3Gazette of India (1917). Part V. page 107. 4 See para. 27.9 above.

5 Gazette of India, (1922), Part V, pages 263 and 264; Report of the, Select Committee, under cl-auses 99 and 113.

293312: thc case-law discussed in Subedar v. The State, A.I.R. 1956 A11, Amendment of section 429 con-

sidered in the Past.

Amendment recommended.

Procedure where judges of court of appeal are equally divided Section 430---

Meaning of "Final"

Cross appeals.

278

constitute the fuller Bench. We recommend that section 429 be amended on exactly the same lines as section 378,1 to read as follows :--

429. When any such appeal is heard before a Bench of two Judges, and they are . . . divided in opinion, the appeal with their opinions shall be laid before another Judge of the same Court, and that Judge, after such hear-

ing . . . . as he thinks ﬁt, shall deliver his opinion, and the judgment or order shall follow that opinion:

Provided that if either of the Judges c0nstt'tuting the Bench, or where the appeal is laid before another Judge under this section, that Judge, so requires, the appeal shall be re-heard and decided by a Bench of three or more Judges.

31.58. Section 430 reads as follows :--

"Judgments and orders passed by an Appellate Court upon appeal shall be ﬁnal, except in the cases provided for in section 417 and Chapter XXXII."

The exact scope and signiﬁcance of the provision that judg- ments and orders shall be "ﬁnal" has been the subject of interest- ing discussion in courts, and much ingenuity has gone into its interpretation. Primarily, the object of the provision would appear to be to make it clear that there is no further appeal from an appellate decision, re--emphasising the principle of section

404. But section 430 has apparently been regarded as of some relevance in emphasising also that a review or reconsideration of an appellate decision is not permissible, though the language of section 430 is different from that of section 369 which is the main provision prohibiting a review. Section 430 has also been construed as emphasising that the summary disposal of an appeal bars the matter being re-opened, at least where no question of jurisdiction is involved?

3159. Though section 417 has been expressly mentioned in section 430, controversy has arisen as to whether the ﬁnal dis- posal of an appeal against conviction bars the hearing of an appeal against acquittal arising out of the same case. The decisions of the Punjab High Court and the Gujarat High Court noted below may be seen.3--4 It is desirable to clarify the law by inserting an explanation. In view of the new provision we have recommended giving the Government a right to appeal against the inadequacy -of sentence.5 to provide that the disposal of the appeal of the accused against his conviction shall not bar the hearing of the appeal of the Government regarding sentence. Further, it is necessary to make 1Sez= paras 27.6, 27.7.

'3 Sec discussion as to section 421.

3State v. Mtmsha Singh. A.I.R. 1958 Punjab 233 (F.B.),

4.S'ta1.2 v. Diwanji, A.I.R. 1.963 Gujarat 21. 27. paragraphs 13. 15 and 16 (D.B.).

5Section 417A (Proposed).

This explanation has also' 279 it clear that section 30 does not affect the new provision' proposed by us whereunder, notwithstanding the summary dis- missal of a jail appeal, the power of the appellate court to hear a represented appeal is saved.

31.60. Section 430 may be re--drafted as follows :--

"430. Judgments and orders passed by an Appellate Court upon an appeal shall be ﬁnal, except in the cases provided for in section 417, sub-section (4) of section 421 and Chapter XXXII.

Provided that notwithstanding the ﬁnal disposal of an appeal against conviction in any case, the Appellate Court may hear and dispose of, on the merits--

(a) an appeal against acquittal under section 417, arising out of the same case, or

(b) an appeal for the enhancement of sentence under sec.

tion 417A, arising out of the same case, except where the question of enhancement has already been consi- dered by the Court in the appeal against conviction."

31.61. Section 431 deals with the abatement of appeals. The section deals in the ﬁrst part with appeal against acquittals, and in the second part with other appeals under the Chapter, but excluding an appeal from a sentence of ﬁne. The ﬁrst class of appeals abates on the death of the accused, and presents no diﬂi- culty. The second class of appeals ﬁnally abates on the death of the appellant, except an appeal from a sentence of ﬁne. A sen- tence of ﬁne does not abate on the death of the person sentenced, as it is not a matter which affects a person only, but affects his property. This principle was enacted in the section to override an ea_rlier decision of the Bombay High Court3 on the Code of 1882, holding that the appeal of the person sentenced by the Sessions Judge to imprisonment and ﬁne abated on his death during appeal.

31.62. In an appeal to the Supreme Court under article 136 of the Constitution in respect of a sentence of imprisonment for life, the appellant died during appeal and his legal representatives sought leave to continue the appeal. The Supreme Court refused to grant leave, on the principle that such a sentence would not affect his property.4 Though section 431 did not apply in terms to the case, the Court said that it would not recognise a kind of interest which the legislature had not recognised. The English rule that law courts do not recognise any interest other than pecuniary interest seems to be the basis of this decision. Though in a majority of cases, where the appellant, who is sentenced 1 Section 421(4).

2 See section 423(l)(b).

I )3 In re Nai;i Shah_ (1894) I.L.R. 19 Born. 714 (Jardine and Ranade 4 B. Gajapathi Rao v. State of Andhra Pradesh, A.I.R. 1964 S.C. 1645, 1647, 1653, paragraphs 3, 4, 5, 18; (1964) 7 S.C.R. 25. 33M of HA/69 Amendment recommended.

Finality of judg-

ments and orders on appeal.

Section 43l--

Principle under-

lying.

Decision of Supreme Court following the English rule.

Amendment suggested in a private Member's Bill.

Amendment ' recommended. g 280 to imprisonment, dies during the pendency of the appeaL the interest of his legal representatives in the appeal may be purely sentimental, there are exceptional cases, where the interest may also be pecuniary. Thus, if the conviction is on a charge of murder of a near relation, whose heir or one of whose heirs is the alleged murderer, he (if the conviction is not set aside) will be disqualiﬁed from inheriting his property}-2 If he dies during the pendency of the appeal, his heirs have a pecuniary interest in prosecuting the appeal. If the appeal succeeds, their right of inheritance to the property of the deceased through the appellant will be Saved.

So far as revision is concerned, it has been held by the Supreme Court3 that the High Court can exercise the power of revision in respect of an order made against the accused person even after his death. The decision of the Madras High Court' cited below may not be correct in view of the decision of the Supreme Court which does not appear to have been cited before that High Court.

31.63. An amendment to section 431 was suggested in a private Member's Bill5 as follows :--

"11. Section 431 of the principal Act numbered as sub-section (1) thereof and--

shall be re-

(i) in the sub-section as so renumbered, after the words "except an appeal from a sentence of ﬁne" the words and ﬁgures "and an appeal under section 417" shall be inserted;

after the section as so re-numbered, the following sub-section shall be inserted, namely,--

"(2) On the death of the appellant, an appeal under sub-section (3) of section 417 may be prose-

cuted by any aggrieved person with the permission of the court to which an appeal lies."

the reasons for the amendment were elaborately explained by the mover of the Bill", but we need not quote them in full.

31.64. The main object of the amendment was to provide a machinery whereby the children or the members of the family of a convicted person who dies during appeal could test the con- viction and get rid of the odium which would otherwise attach to them. We think that the principle of the amendment is eminently sound, and recommend that the law should be amend- ed accordingly. We would, however, give the right to continue

(ii) 1 Section 25, Hindu Succession Act, 1956.

2 As to Muslim law, see Mulla, Muhammadan Law, article 58.

3State of Kerala v. Naravam' Amma, (1962) Supp. (I) S.C.R. 63; A.I.R. 1959 S.C. 144, 148, para 7.

4BaIasubramania Mudaliar v. Doraikannu Ammal, A.I.R. 1966 Mad.

154. 5 Shri K. V. Raghunatha Reddy's Bill (The points made in the Bill have been referred to the Law Commission).

3Raiva Sabha Debates. 3rd Sentember. 1963. columns 185 to 187.

(15th Edn.) 281 the appeal not to an "aggrieved person" (as was proposed in the amendment), but to near relatives, viz. the parents, spouse, children, brother and sister of the deceased appellant.

We would also provide a time-limit within which the near relative should seek the leave of the appellate court to continue the appeal. The new section1 recommended by us as to appeal by the Government for enhancement of sentence, may also be included in the proposed amendment. Reference to section 411(2) may be omitted, as it is unnecessary now."

Section 431 may, in the light of the discussion above, be amended to read as follows :--

"431. (1) Every appeal under . . section 417 or section 417A shall ﬁnally abate onlthe death of the accused.

(2) Every other appeal under this Chapter (except an appeal from a sentence of ﬁne) shall ﬁnally abate on the death of the appellant:

Provided that where the appeal is against a conviction and sentence of imprisonment and the Appellant dies during the pendency of the appeal, any of his near relatives may, within thirty days of the death of the appellant, apply to the appellate court for leave to continue the appeal; and if leave is granted, the appeal shall not abate.

ExpIanati0n--In this section, "near relative" means a parent, spouse, lineal descendent, brother or sister."

31.65. Before ﬁnishing with this Chapter on appeals, we have to consider a suggestion with reference to Article 134(1) (a) of the Constitution. This provides that an appeal shall lie to the Supreme Court from any judgment, ﬁnal order or sentence in a criminal proceeding of a High Court if the High Court has on appeal reversed an order of acquittal of an accused person and sentenced him to death. In a Private Member's Bill3 recently introduced in Parliament, it is proposed that this very limited jurisdiction of the Supreme Court should be enlarged to cover cases where the High Court has, after reversing an order of acquittal, sentenced a person to imprisonment for life or for ten years or more. This Bill also proposes an identical enlarge- ment of the appellate jurisdiction of the Supreme Court under Article 134(1) (b).

31.66. A study of the Constituent Assembly Debates on article 134 of the Constitution shows that initially the idea of the Constitution--makers was not to confer on the Supreme Court any right of appeal in criminal matters except by special leave. The Supreme Court was to have only the jurisdiction which the Privy Council used to have in criminal matters, namely, to inter- vene when it felt there was a miscarriage of justice, and to exer- cise this jurisdiction on the basis of a special leave to appeal. Subsequently, two exceptions were made and incorporated in 1Section 417A.

2See para 31.10 above.

3Bill No. 81 of 1968 by Shri Anand Narain Mulla. M.P. Abatement of appeals Appeals to the Supreme Court under Article 134 of . the Consti-

tutxon.

Constituent Assembly Debates on Arti-

cle 134.

Commission's View on proposed enlargement of Supreme Court's jurisdiction.

New section pro-

posed.

282

sub-clauses (a) and (b) of clause (1) of the article. Though a number of suggestions were made that the Supreme Court should have a considerable appellate jurisdiction over the High Courts in criminal matters, they were all turned down by the Consti- tuent Assembly. It decided to leave any such proposal to Parliament to consider in due course and, if necessary, to legis- late under clause (2) of the article.

31.67. The High Court has thus been made the ﬁnal court in criminal matters subject to two very limited exceptions. The ﬁrst is that if the High Court on appeal reverses an order of acquittal of an accused person and sentences him to death, he has a right of appeal to the Supreme Court. The obvious inten- tion is to restrict such appeals broadly to capital oﬂence cases. Even where the man has been acquitted by the trial court of a capital offence and on appeal the High Court ﬁnds him guilty but sentences him to imprisonment for life instead of death, article 134(1)(a) does not give him a right of appeal. We feel that this further limitation is too stringent and not easily justiﬁ- able and that the convicted person sought to have a right of appeal in such cases. It has to be remembered that their number is bound to be much larger than the number of cases in which the death sentence is passed by the High Court after setting aside an order of acquittal by the Court of Session.

We, however, do not think it would be wise to extend further this right of appeal to cases where the High Court after revers- ing an order of acquittal sentences the accused person to imprison- ment for ten years or a longer period. Oﬁences for which the law prescribes a punishment of ten years' imprisonment or more are quite numerous, and if the proposal in the Bill is to be accepted, it will certainly lead to a large increase in the number of appeals to the Supreme Court making it, more or les_s, an ordinary court of second appeal in criminal matters. In our opinion, the High Courts' position as the ﬁnal court in all criminal matters, subject to appeal only in exceptional circum- stances should be maintained. We may mention here that in an earlier Report1 the Law Commission did not agree with a proposal to extend the appellate jurisdiction of the Supreme Court to all cases where the death sentence had been awarded and conﬁrmed by the High Court. They stated that "for over a century such cases have been dealt with by the High Courts subject to the superintendence of the Privy Council under its special leave jurisdiction and there is no reason why the High Court should not continue to deal with such cases in the same manner."

31.68. We accordingly propose the following new section :--

"417B. Where a High Court has on appeal reversed an order of acquittal of an accused person and sentenced him to imprisonment for life, he may appeal to the Supreme Court."

114th Report, Vol. I, page 52.

283

31.69. Cases of the type mentioned in article 134(1)(b) -Vuljisdiction under are of such rare and infrequent occurrence that, apart from a"'°1°134(1)(b)- principle, it will not make any material diﬁerence whether its scope is widened to include cases where the High Court sen- tences the accused to imprisonment for life or for a long term or even for a short period. We have, therefore, recommended above that any person convicted in a trial held by a High Court may apeal to the Supreme Court unless the sentence pass- ed by the High Court is one of imprisonment for a term not exceeding six months or of ﬁne not exceeding one thousand rupees.

1See paras 31.10 and 31.12 above.

Introductory.

Section 432(1).

Section 432 (2).

Reference' by High » Court to Supreme Co not necessary.

CHAPTER XXXII REFERENCE AND REVISION 32.1. Ordinarily, the judgment or order of a criminal court is open to correction only appeal; but all such orders are not under the law appealable, and to avoid the possibility of any miscarriage of justice, in such cases, another process called 'revision' has been devised by the Criminal Procedure Code, and detailed rules governing the exercise of the reversional power are contained in sections 435 to 440.

32.2. Before, however, considering those powers, it is necessary to mention two other provisions contained in section 432 which enable an inferior court to consult the High Court on a matter of law in certain circumstances. Sub-section ( 1) of that section provides that if a criminal court (not being a High Court) has to decide whether a particular enactment is consti- tutionally valid, and feels that it is not, but ﬁnds that neither the High Court to which the court is subordinate nor the Supreme Court has pronounced on that enactment, the court should make a reference to the High Court for the decision of that question. The intention here is that the validity of laws possibly in conﬂict with the Constitution should be decided authoritatively and quickly. This is a satisfactory method, although of course not many occasions arise for the adoption of this course.

32.3. Sub-section (2) of section 432 provides that a Prui- dcncy Magistrate may refer any question of law arising before him to the High Court for decision. Other Magistrates and courts have no such power to consult the High Court. The reasons for conﬁning this method to the Presidency Magistrate are that their judgments are directly appealable to the High Court and many judgments are not appealable at all; and, apart from this, these courts are located in the same place as the High Court. It has been said that this distinction between Presidency Magistrates and others should discontinue, the suggestion being that all courts should have the power of consulting the High Court on questions of law. We are satisﬁed that such a course would place too heavy a burden on the High Courts, without any corresponding advantage. The reference to "Presidency Magistrate" will be replaced by "Metropolitan Magistrate".

32.4. Another suggestionl requiring more careful considera- tion is that a High Court should be empowered to refer a question of law to the Supreme Court if the High Court ﬁnds that other I-Iigh Courts have, on that question expressed different views. It does, of course, happen,--and not infrequently--

that a particular provision of law is understood by one High 1 Suggestion of Shri B. C. Sen, Retired Public Prosecutor, Calcutta;

299- F.3(§'))655-L.C. Part II, S.No. 11, and his book "Criminal Trials", pages .

285

Court in one sense and by another High Court in a different and possibly opposite sense; and since there are a number of High Courts, differences of opinion on such matters are bound to arise. The argument behind the present suggestion is that conﬂicting opinions of different High Courts make the law uncertam, and the uncertainty should be quickly resolved.at the instance _of the High Court itself and not left to the initiative of the parties who may or may not be disposed to approach the Supreme Court. It is, of course, desirable that the law should be certain; but it is even more important that the law should be settled in a satisfactory manner. Our High Courts are competent enough to settle the most dilﬁcult questions of law that may arise, and there is no reason to think that they need the assis- tance of the Supreme Court at every step. That diﬁerent High Courts may, on occasions, entertain different views on the same matter is inevitable; but we do not consider it such a calamity as the suggestion seems to assume. On the other hand, the entertainment and expression of different views leads to a clari- ﬁcation of the real problem to be solved, and the Supreme Court should be allowed the advantage of considering all the different views when a sufficiently important case actually arises and one or other of the parties feels suﬂiciently interested to move the Supreme Court. Meanwhile, of course, the law in each State or area subject to the jurisdiction of a High Court remains clear and certain. » Looking at the suggestion from the practical point of view, we feel that, if accepted, it might well ﬂood the Supreme Court with references of this kind, which may have to be decided hastily and somewhat unsatisfactorily. We are, therefore, not disposed to accept the suggestion.

32.5. In section 433 the reference to "the Magistrate" should be replaced by reference to "the Court".

32.6. We then come to the revisional powers. In general terms, the scheme for the exercise of revisional powers, is this. Under section 435, the High Court, the Sessions Judge and the District Magistrate have concurrent power to call for and examine the record of proceedings before a Magistrate, and see if any illegality or impropriety has been committed. (The sec- tion also mentions the Sub-divisional Magistrate, but he is now to be deleted from the scheme). If it is found that any com- plaint has been wrongly dismissed under section 203 or any accused person wrongly discharged, then a further inquiry into the case can be ordered by the examining authority (section

436). Further, if it is found that any accused person should have been committed for trial to the sessions court but has been wrongly discharged, the authority examining the record can order a committal to be made (section 437). In case the illegality or impropriety is of some other kind, the matter has to be con- sidered by the High Court (section 438), and the High Court can make any order it thinks proper. The powers of the High Court under section 439 are very wide; it has all the powers of a court of appeal and may enhance the sentence. The only restriction is that is cannot change an acquittal into a conviction. although of course it can order a re-trial. There is little doubt Section 433.

Scheme of revi-

sional secnonsjﬁs o

439. Suggestion to vest powers in Sesslon Courts C_ommission's 286 that it is necessary that the High Court should have these wide revisional powers, and experience shows that they are being exercised with care and in the interest of justlce.

32.7. It has been suggested that some of these powers can be safely entrusted to the Session Courts and that would relieve some of the congestion of work in the High Courts. In the 14th Report,' the Law Commission said:

"A further measure which will relieve congestion in this Category of work needs consideration. Could some of the revisional powers now being exercised by the High Courts be entrusted to sessions judges ? The Judicial Reforms Committee of Uttar Pradesh2 recommended that sessions judges should be given full powers to hear and determine all criminal revisions except revisions against orders of acquittal and revisions for enhancement of sen- tences.

The evidence before us generally favoured the grant of revisional jurisdiction to this extent to the sessions judge. There was general agreement that in most petty matters a party applying for revision labours under a disadvantage in that he has to take the matter to the High Court. The view was also expressed that there was no reason why sessions judges who are entrusted with the trial of every important case and are competent to impose even the penalty of death should not be empowered to deal with minor matters in revision and be required to submit them to the High Court for its ﬁnal orders. It is anomalous that a sessions judge should be able to deal with and dispose ﬁnally an appeal from a sentence passed by a ﬁrst class magistrate, but that he should not be competent to revise an order passed by a third class magistrate.

We are, thereﬁore, of the view that sessions judges may well be invested with powers to pass ﬁnal orders in revision in all matters other than petitions against orders of acquittal and for enhancement of sentence."

32.8. Somewhat similar views have been expressed in some suggestions received by us. 3-4-5 We have given a good deal of thought to this matter, and considered in detail the implications of the recommendation, but we have considerable. doubt its prac- tical value. As we have said, the revisional power given to the High Courts is wide; not only are the judgments and ﬁnal orders subject to examination, but also interlocutary decisions. The High Court is able to maintain one single standard for inter- ference in such matters; but if this power descends to the courts 114th Report, Vol. 2, page 826.

2.Report of the U.P. Judicial Reforms Committee, (1950-51), page 63.

3 Report of the U.P. Committee for Investigation into the Causes of Corruption (1963), page 55 and pages 242-243.

4F.3(2)/55-L.C, Pt. II, E.No. 33 and 35 (Suggestion of two State Governments) .

I d5 l)".3(2)/55-L.C. Pt. III, S.No. 49(a) (Suggestion of a High Court u ge .

La:

287

doubtful if a uniform standard can be maintained. There is, then, the plain fact that the High Court can and does, by its prestige, make its decisions acceptable _to a large number of people, which would not be the case with the courts of session. At the same time, we think that if 86551011 courts are allowed to interfere with the proceedings in the magistrates' courts while they are pending, the result would be large number of revision petitions for that purpose. It is true, that a sessions court can, on appeal, reverse the decision of a magistrate of the ﬁrst class but cannot revise the decision of the third class magistrate. This seeming anomaly, however, loses its point when it is remembered that the decision of a court of session is still open to correction by the High Court, as is the judgment of the Magistrate of the third class. The fact _is, that a party who can aﬂord the expense, is generally not satis- ﬁed till it has obtained the verdict of the High Court, and the delegation of any power of the High Court to the sessions court might merely mean that the same work will have to be

-done twice over at two levels. It has to be remembered that no statutory provision can bar the right of a party to approach the High Court for doing justice in a criminal matter; and if, at present, that power of the High Court under articles 226 and 227 of the Constitution is not freely invoked, it is because the revisional power under section 439 of the Code of Criminal Procedure vests in the High Court, and is enough for practical purposes. Nor are we satisﬁed that criminal revisions form

-such a large part of the congestion of work in the High Courts that some relief in that respect would justify disturbing the present scheme, which is not shown to have worked unsatis-

factorily.

32.9. Because of the separation of the judiciary from the executive, some changes have to be made in the revisional powers of the courts. The Chief Judicial Magistrate will, of course, in respect of the judicial magistrates exercise the powers now vesting in the District Magistrate; but in respect of exe- cutive magistrates exercising certain judicial functions, power must remain with the District Magistrate, and we are providing for that. It is not, however, proper that the Magistrate, who will now be an executive officer only, should have the power to ﬁnally decide anything. His power will be limited to send- ing a report to the High Court for decision, with his recom- mendation. The Sessions Judge, however, will have power in respect of all Magistrates. In the result, section 435 will have 'to be revised as follows :--

"435. (1) The High Court or any Sessions Judge or Chief Judicial Magistrate may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purposes of satisfying itself or himself as to the correctness, legality or propriety of any ﬁnding, sentence or order recorded or passed. and as to the regularity of any pgoceedings of such inferior Court and may, when calling for such record, direct that the execution of any sentence or order be suspend- ed, and, if the accused is in conﬁnement, that he be released on bzgl or on his own bond pending the examination of the recor .

of session, it is very Changes neces-

sary in_ View of separation of judi-

c1a.ry.

Power to for records ofinferlor Courts.

Revision of order ' ' g a com-

plaint.

288

Explana'ti0n--AlI Magistrates, whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub-section and of section 437.

(2) If an application under sub-section (1) has been made either to the Session Judge or to the Chief Judicial Magistrate, no furtheriapplication shall be entertained by the other of them.

(3) The District Magistrate shall have and may exer- cise all the powers of the Sessions Judge under sub-section (1) in respect of any proceeding before an Executive Magistrate.

(4) If an application under this section has been made either to the Sessions or to the District Magistrate, no fur-

ther application shall be entertained by the other of them.

32.10. One suggestion made to us regarding section 436 was that, before an order dismissing a complaint under section 203 is disturbed, notice should go to the accused person so that he can urge what he likes in support of the dismissal order. This was sought to be supported by the principle of natural justice. We do not, however, see how such an accused person can be called a "party to the proceedings" at that stage, and the Supreme Court has ruled1 that it is hardly proper to permit him to intervene in the proceedings. Further, in a number of cases, it will happen that notice to him will mean unnecessary trouble and expense to a person who may be wholly innocent. It a Magistrate has, on considering the facts, found that there is no ground for proceeding against any person and therefore dismissed the compliant summarily, there is hardly any reason for the revising Court to call any one to Court as an accused or as a respondent until of course, after a further inquiry has been made, and that inquiry justiﬁes the issuing of process.

32.11. Only a few formal amendments are section 436, 437 and 438, as follows :--

(i) In section, 436, for the words "District Magistrate"

the words "Chief Judicial Magistrate" shall be substituted.

(ii) In section 437, for the words "District Magistrate"

the words "Chief Judicial Magistrate" shall be substituted; for the words "committed for trial" the words "committed to the Court of Session for trial"

shall be substituted; and in the proviso for the words "why the commitment should not be made"

the words "why the order should not be made" shall be substituted.

(iii) In section 438(1), after the words "Sessions Judge"

the words "Chief Judicial Magistrate" shall be inserted. ' required in 1Chundre Deo, A.IR. 1963 1430; (1964) 1 S.C.E., 639.

"1 /\ ' . ./' 289 32.12. Section 439 empowers to revise any order made by a Criminal Court, and to do so not only if moved by a party or by the Sessions Judge or the District Magistrate, but also on its own motion irrespective of how the order may have come to its notice. Sub-section (3) provides that the Hlglh Court may not impose any sentence heavier than might have been inﬂicted by a ﬁrst class Magistrate, unless the sentence under revision was passed by a Magistrate acting under section 34, in which case there is no such limitation. The ordinary rule in respect of an appellate court is that it cannot impose a sentence heavier than the trial court could have done'; and we think that the same limitation should apply when the revisional power of the High Court is exercised. We propose to do this by deleting sub-section (3) from section 439, and thus leaving the High Court with the ordinary powers of an Appellate Court. As all such Courts will have the power to enhance a sentence on proper appeal,' the words "and may enhance the sentence" will be omitted from section 439(1).

32.13. Sub-section (6) of section 439 says that a person required to show cause why his sentence should not be enhanced is entitled to show that his conviction is unsustainable although he may not have appealed against his conviction. The principle underlying this rule is sound; but as we are separately providing for "enhancement of sentence" through an appeal," this sub- section would be redundent, and we, therefore, propose to omit it.

There was a suggestion' that the High Court should have power under section 439 to convert an order of acquittal into one of conviction. We do not think that that would be at all proper. An order of acquittal is, on appeal, capable of being altered to an order of conviction5, and that is suﬂicient for dealing with erroneous acquittals.

No other change is necessary in the scheme of revisional powers.

32.14. Section 440 may be ﬁnally revised to read as follows :--

"440. Save as otherwise expressly provided by Code no party has any right to be heard either personally or by pleader before any Court when exercising its powers of revision but the Court may, if it thinks ﬁt, when exer- cising such powers, hear any party either per- sonally or by pleader . . . . . . . . . ."

32.15. Section 441-442 need no change.

llagat Bahadur, A.I.R. 1966 S.C. 945, 947; (1966) 2 S.C.R. 822. 2See para 31.39 to 31.43 above.

3See para 31.39 to 31.43 above.

4Home Ministry File No. F. 27/3/55-Judl. II, A . 1, lion 76 s -

gestion of the Inspector General of Police, Orissa). pp ( H' 5 Section 417.

secti 439(3) t on_tted 0 Section 439(6)'to be omitted. ' Section' 440 ﬁnally revised.

this option of Court to hear Parties.

Sections 441-442.

Section 464 to

468. Procedure in case of person tried High Court being appeal against ﬁnding of unﬁt-

ness to plead con-

CHAPTER XXXIV LUNA'I'ICS 34.1. Chapter XXXIV comprising sections 464 to 475 deals with the case of lunatics accused of crime. The procedure to be followed where the accused is unﬁt to stand trial due to unsoundness of mind is laid down in sections 464 to 468 and 473, while the case of accused persons who are ﬁt to stand trial but has been insane at the time of committing the crime is dealt with in sections .464 to 471. The remaining two sections 474 and 475 contain provisions common to both cases.

34.2. No» changes of substance are required in the ﬁrst ﬁve sections. In section 465, the reference to "commitment" and "jury" will have to be omitted. This section may be revised as follows :--

"465. (1) If at the trial of any person before a Court of Session or a High Court, he appears to the Court to be of unsound mind and consequently incapable of making his defence x x x, the Court shall, in the ﬁrst instance, try the fact of such unsoundness and incapacity, and if x x x the Court, x x x is satisﬁed of the fact, it shall record a ﬁnding to that effect and shall postpone further proceedings in the case x x x.

(2) The trial of the fact of the unsoundness of mind and incapacity of the accused shall be deemed to be part of his trial before the Court."

34.3. A question of some importance which arises for con- sideration in this connection is whether the accused should be given the right to appeal from a ﬁnding that he is unﬁt to stand trial due to insanity.

A plea of insanity is usually taken by the accused. But such a plea can be taken by the prosecution also and if the court upholds the plea, the result may be detention of the accused under section 466. It was suggested before us that in such a case, it is desirable that the accused should be given a right of apeal. It is seen that in England, a recommendation for giving the accused a right of appeal, in such a situation was made by the Criminal Law Revision Committee} and has been carried out by the Criminal Procedure (Insanity) Act of 1964.

In our opinion, however, thereis no need for such a provi- sion in India. Almost invariably the plea of insanity is taken by the defence and it can have no grievance if its plea is accepted by the Court. In the rare event of such a plea being raised by the prosecution, and accepted by the Court, the general power of revision provided in the Code will be suﬂicient to safeguard the interest of the accused. We, therefore, do not recommend any provision for appeal in this matter, 1 3rd Report of the Criminal Law Revision Committee/-- "Criminal Procedure (Insanity)" (1963). Cmd. 2149. page 12. Dara 29.

.-a-n__....-i .._..., 1 -

291

34.4. Section 469 deals with inquiries and trials before Magistrates of an accused person who, though ﬁt to stand trial, is found to have been insane at the time he committed the crime, while section 470 lays down that when such a person 15 acquit- ted on the ground of insanity, the ﬁnding shall state speciﬁcally whether he committed the act alleged. Here also, the question whteher the accused should be given a right of appeal against such a ﬁnding has to be considered. Where the accused. is declared guilty but insane, he cannot appeal against the ﬁnding, because he is acquitted. It was suggested to us that the accused should be given a right of appeal against such a ﬁnding. It was stated that there are two special considerations to be borne in mind in this connection. The ﬁrst is that though the plea of insanity is ordinarily taken by the accused (in which case he would not appeal when the decision is in his favour), it is possi- ble that the prosecution may take the plea, and in such a case, the absence of a right of appeal against the ﬁnding of "guilty but insane" may mar his whole life. Secondly, the defence might take not only the plea of insanity, but also a plea of in- nocence on the merits; and if the plea of insanity succeeds, the accused cannot appeal even if he has been found guilty on the merits.

Our attention was drawn, in this connection, to a number of English decisions' and it was stated that similar situations can occur in India also. The Criminal Law Revision Committee in England had recommended? giving the right of appeal to the accused in such cases and the recommendation has been carried out by the Criminal Procedure (Insanity) Act, 1964.

In our opinion, the power of revision given by the Code is wide enough to cover such cases, and a change in the law is not needed. As we have already stated, cases where courts enter a ﬁnding of insanity against the accused except on his own plea are too rare to merit any special provision to cover them.

34.5. Under section 471(1), when a person is acquitted on the ground that he was insane at the time of the commission of the offence and the ﬁnding states that the accused did commit the act alleged, the Magistrate or Court shall order such person to be detained in safe custody in such place and manner as the Magistrate or Court thinks ﬁt, and shall report the action taken to the State Government. Under the proviso to the section the detention of the accused in a lunatic asylum must be in accord- ance with rules made by the State Government.

An order of the Court delivering the accused to the custody of his relatives appears to be illegal3 as the law stands at pre- sent. The contrary view taken in an earlier case,4 was based 1Felstead v. R., (1914) A.C. 534 (H.L.); R. V. Duke, (1963) 1 Q.N. 120; (1961) 3 All Eng. Report 737, 738, 739 (C.C.A.); R. v. Jefferson, (1908) 1 Criminal Appeal Reports 95; R. V. Larkins, (1911) 6 Criminal Appeal Reports 194; 55 S.J. 501.

5'Criminal Law Revision Committee, Third Report, "Criminal Proce- dure (Insanity)", (1963), Cmd. 2149, page 5, paragraph 9.

5Superintendent and Legal Remembrancer v. Srish Chandra, I.L.R. 56 Cal. 308; A.I.R. 1928 Cal. 653, 654; Public Prosecutor v. Kandaswami, I.L.R. 1952 Mad. 485; A.I.R. 1953 Mad. 355.

4 A. B. Muhammad v. Emp., A.I.R. 1922 Mad. 54, 55.

Section 469 and

470. Section 471.

Person acquitted on such ground to detained safe custody.

in 292 on the language of the section as it stood then, where the word "kept" was used. The word now used is "detained" and imphes curtailment of liberty} It has been suggested that if the person found guilty is sane at the time of acquittal, his friends and relatives should be allowed to keep him, after executing a bond with suitable con- clusion for keeping the peace for ﬁve years thereafter. Delivery of the convicted person to the relatives is a matter which can, at present, be dealt with under section 475 by the State Govern- ment only. The Court can, no doubt, state in its report, that it will be safe to release the accused? But even if the accused is sane throughout the trial, he cannot be released under section

471. In England, the Criminal Law Revision Committee3 while observing that the Home Oﬂice is in a better position than a Court to investigate questions relating to treatment of the accus- ed, and that in such matters uniformity of practice was desirable, nevertheless recommended that in both cases i.e-, when there is a "special verdict" (guilty but insane), and when there is a ﬁnding of unﬁtness to plead, the Court should have a discretion not to make an order for detention if it considers on medical evidence that it is safe for the public to order the immediate release of the accused.

We feel that the recommendations of the English Committee are applicable to Indian conditions also. At least, the manda- tory provision in section 471 should be replaced by a provision which would leave some discretion to the Court. The primary object of the detention order under section 471 is rehabilitation of the accused (now acquitted) and to prevent any trouble if he should relapse into insanity. It cannot be denied that the accused will receive more personal attention and care from his own relatives and friends than in a public lunatic asylum; and where his relatives or friends are ready to look after him and also undertake to ensure that he causes no injury to himself or others, there seems no reason why the accused should not be released to their custody. It can, no doubt, be said in favour of the present provision that if it is found after observation in the hospital that the person concerned is not a danger to others, he would be released under section 475. Even then, there should be no objection to a discretion being given to the Court.

We recommend that sub-section (1) of section 471 be revis- ed and ampliﬁed, and sub-section (2), which contains a provi- sion common to sections 466 and 471, be made into a separate section, as follows :--

"47 1. (1) Whenever the ﬁnding states that the accused person committed the act alleged, the Magistrate or Court before whom or which the trial has been held, shall, if such 1Public Prosecutor v. Nallyyappa, I.L.R, (1948) Mad. 827; A.I.R. 1948 Mad. 291.

2Provisional Government v. Krishna Gopal Maratha, I.L.R. 1945 Nag.

551; A.I.R. 1945 Nag. 77, 78.

3Crimina1 Law Revision Committee, Third Report, "Criminal Proce-

dure (Insanity)", Cmd. 2149, pages 13, 14, paras. 30-34.

x..-

~_.._..

293

act would, but for incapacity found, have constituted an oifence,--

(a) order such person to be detained in safe custody in such place and manner as the Magistrate or Court thinks ﬁt; or

(b) order such person to be delivered to any relative or friend of such person.

(2) No order for the detention of the accused in a lunatic asylum shall be made under clause (a) of sub-sec-

tion (1), otherwise than in accordance with such rules as the State Government may have made under the Indian Lunacy Act, 1912.

(3) No order for the delivery of the accused to a reltb tive or friend shall be made under clause (b) of sub-.sec- tion (I) except upon the application of such relative or friend and on his giving security to the satisfaction of the Magistrate or Court that the person delivered shall--

(a) be properly taken care of and prevented from doing injury to himself or to any other person; and

(b) be produced for the inspection of such officer, and at such times and places, as the State Government may direct.

(4) The Magistrate or Court shall report to the State Government the action taken under sub-section (1).

471A. The State Government may empower the offi- cer in charge of the jail in which a person is conﬁned under the provisions of section 466 or section 471, to discharge all or any of the functions of the Inspector General of Prisons under section 473 or section 474."

No changes are required in the remaining sections of this Chapter.

Power of State Government to empower oﬁcet in charge to dis-

charge.

Analysis of chap-

tel'.

CHAPTER XXXV PROCEEDINGS IN THE CASE OF CERTAIN OFFENCES AFFECTING THE ADMINISTRATION OF JUSTICE 35.1. Chapter 35 of the Code deals with proceedings relat- ing to certain offences affecting the administration of justice. Having already provided that1 a criminal court shall not take cognizance of certain offences except on a complaint made by the court concerned, the Code now lays down what procedure the court concerned should adopt when such on offence appears to have been committed. There are, broadly speaking, three types of procedure provided in the Chapter for these offences :--

(i) complaint by the court concerned, dealt with in sec-

tions 476, 476A, 476B, 479A and 482;

(ii) commitment to the High Court or Court of Session, after inquiry by the court concerned, provided in sections 478 and 479; and

(iii) punishment by the Court itself, dealt with in sec-- tion 480, 481, 485, 485A and 486.

As regards the last type of procedure, the speciﬁc provisions on the subject are followed by a general rule,2 providing that in other cases, no criminal court (other than a Judge of a High Court) shall try any person for any offence referred to in sec- tion 195, when such offence is committed before itself or in contempt of its authority or is brought under its notice etc. in the course 'of a judicial proceeding.

It may also be noted that punishment of the offender is not obligatory, and the court is not bound to carry to its conclusion A a proceeding initiated under these types of procedure. In cer- tain cases,-3 the court may, in its discretion, discharge the offender or remit the punishment, on his submission to the order or re- quisition of such court or on apology being made to its satisfac- tion.

For certain purposes, registering oﬂicers appointed under the Indian Registration Act can also be given powers of civil courts' under the speciﬁed sections.

The offences to which the Chapter applies are, broadly speaking, of three types--(i) perjury; (ii) forgery; and (iii) dis- obedience to orders of the court or other species _of contempt of the authority of the court. Of the three types of procedure which we have mentioned above, the ﬁrst--complaint to a criminal court--is permissible in all cases, while the second _and third types of procedure are permissible for certain speciﬁed 1 Section 195(1). Clauses (b) and (c).

2 Section 487.

3 Section 484.

4 Section 483.

295

oﬁences--depending upon the gravity of the oﬂEence,1 nature of the oﬁence--i.e. need for prompt action so as to remove obstructions which hinder the progress of the case? or the C11'- cumstances in which the oﬂence is committed,3 rendering im- mediate punishment necessary in order to maintain the dignity and prestige of the court--for example, where offences consti- tuting certain types of contempt are committed in the view or presence of the court.

Bearing the scheme of the Chapter in mind, we shall now consider the changes needed in each section.

35.2. Section 476 is intended to be complementary to sec- tion 195. The scope should, therefore, be neither wider nor narrower than that of clauses (b) and (c) of sub-section (1) of section 195. But there is a discrepancy between the word- ing of section 195 and section 476; and this has led to a contro- versy as to the exact scope of section 476; and this controversy has given rise to another controversy whether the presiding oﬂicer of a court can make a complaint under section 476 in cases not strictly falling within the earlier section. We propose certain verbal changes in section 476 in order to emphasise that this section 476 applies only to the oﬂences to which clause (b) or clause (c) of section 195(1) applies. We also think it desirable that section 476 should speciﬁcally cover abetment etc. of those offences, since section 195 applies to them also-.3 Section 476 speaks of "a civil, revenue or criminal court", while section 195 uses the expression "court", and defines it.4 We propose to use the expression "court" in section 476 also, and to provide that it has the same meaning as in section 195.

The last paragraph of section 476(1) provides that for the purposes of sub-section (1), a Presidency Magistrate shall be deemed to be a Magistrate of the ﬁrst class. This can be pro- vided for brieﬂy and more directly in the main paragraph. We recommend a drafting change for the purpose.

Under the proviso to section 476(1), the complaint in the case of a High Court is to be signed by such oﬂicer as the High Court may appoint. In the case of other courts, the complaint is to be signed by the presiding oﬂicer as provided in section 476(1), main paragraph. We wish to deal with both these matters in one sub--section, as they relate to the same subject. We recommend a verbal alteration to achieve this object.

35.3. Under section 476(2), the Court to which a complaint is made under section 476 shall proceed "as if upon complaint under section 200". It was suggested during our discussions that since a complaint is made under section 476 by a respon-

'E. G. section 478, applicable to offences exclusively triable by the High Court or Court of Session.

9E.G. sections 485 and 485A.

3Section 480 and 482.

3 See section 195(4).

4Sce section 195(2).

Section 476.

Section 475 (2) Section 476 (3).

Section 476A.

Section 476B-

right of appeal should remain.

296

sible judicial oﬂicer (and after inquiry in most cases), the Courtto which the complaint is-made need not and should not hold another inquiry under Chapter 16 but should issue process under section 204. It was urged that when a superior Court had made a complaint, it 'was inappropriate that a Magistrate should again hold an inquiry or dismiss it under section 203. We, however, felt that there was no justiﬁcation for totally dis- pensing with an inquiry under section 202. The Court making the complaint under section 476 may not have made a thorough inquiry, and the Court taking cognizance of the oﬁence under section 195 might like to have more materials before issuing process. The nature of the jurisdiction to be exercised by the Magistrate under sections 202 and 203 is not always similar to the nature of the proceedings held by the complaining Court under section 476. For instance, under section 202, further "Investigation" may be ordered, whereas an "inquiry" under section 476 is of a limited nature. It would not be correct to assume that one will serve the purpose of the other in every case.

35.4. Under section 476(3), the trying Magistrate has a dis- cretion to adjourn the case if there is an appeal in the main case. Some delay is caused by such stay; but we think that the nature of the proceedings under section 476 is such that such delay is inevitable. We do not recommend any change in this respect. It has even been suggested1 to us that stay should be mandatory in case of appeal but we would not like to substitute such a rigid provision either.

35.5. No change of substance is required in section 476A.

35.6. Section 476B provides for an appeal when a court makes or refuses to make a complaint under section 476. It has been suggested? by a High Court Judge that the right of appeal should be taken away. We are unable to accept the suggestion. We recognise that the existing provision may cause some delay. Nevertheless, it is a salutary one, and should not be disturbed. Abolition of the provision relating to appeal3 may lead to an anomalous position. If, for example, a court makes a complaint under section 476 to the eﬂect that a document pro- duced in evidence before the court was a forged one, and the appellate court, after hearing the appeal in the main case, comes to the conclusion that it was not a forgery, then the position of the appellate court would be helpless, if its power to direct a withdrawal of the complaint already made under section 476 is taken away (as proposed). Complaint of forgery is an offshoot of the main case, and its fate will in most cases depend on the View taken on the merits in the main case. This position is inescapable. We are conscious of the fact that where the olfence of forgery is alleged to have been committed in a civil suit, that suit may take a decade for its ﬁnal disposal, and till then the complaint ﬁled after an inquiry under section 476 may have to be kept pending. However unfortunate the effect of prolonged proceedings may be on the effective punishment of 'F. 3(2)/55-L.C. Part XIII, S. No. 808 (Suggestion of a High Court Judge).

2F. 3(2)/55-L.C. Part II, S. No. 33(a) (Suggestion of a High Court Judge).

3Section 476B.

297

the offender, the diﬁiculty is inherent in the nature of the offence and in the procedure contemplated by section 195. 'I_'he only satisfactory solution seems to be to speed up the hearing of civil appeals and revisions.

35.8. It has been held by the Supreme Court1 that an appeal lies under section 476B to the Supreme Court from an order of a division bench of the High Court directing a com- plaint under section 476. In our view, this position should be altered by excluding the High Court from the scope of section 476B. So far as the High Court is concerned, there is no need for an independent right of appeal against its decision to make a complaint.

35.9. Orders under section 476, 476A and 476B are, at present, regarded as subject to revision. In our view, the right of appeal confered by section 476B is enough, and there should be no further proceeding by way of revision against such orders. An order under section 476 or under section 476A should be ﬁnal, subject to the appeal provided for by section 476B; and an order under section 476B should be ﬁnal, being itself an order passed on appeal. It is also necessary to set at rest the controversy as to whether the provisions of the Code of Civil Procedure or of the Code of Criminal Procedure will apply where the order of a Civil Court passed under section 476 is challenged in revision.

35.10. We accordingly propose that section 476, 476A and 476B should be recast as follows :-----

"476. (1) When, upon an application made to it in this behalf or otherwise, any . . . . . . Court is of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in sub-section (1) 0r sub-secti0n (4) of section 1952 which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary---

(a) record a ﬁnding to that eﬂect;

(b) make a complaint thereof in writing;

(c) send it to a Magistrate of the ﬁrst class havingijuris-

diction;

((1) take suﬂicient security for the appearance of the accused before such Magistrate, or if the alleged offence is non-bailable and the Court thinks it necessary so to do, send the accused in custody to such Magistrate;

(e) bind over any person to appear and give evidence before such Magistrate.

1M. S. Sheriﬁ, (1954) S.C.R. 1144, 1147; A.I,R. 1954 S.C. 397. '«'The reference is to the revised section 195: see para 15.101 above, Section 4763 and appeals to Sup-

reme Court.

Section 476 and revision.

Sections 476, 476A and 4763 recast.

Procedure in cases mentioned in Section 195.

Appeal.

Procedure of Magistrate taking cogmzance.

Power to order costs.

298

(2)1 The power conferred on a Court by sub-section (1) in respect of an oﬂence may, in any case where that Court has neither made a complaint under sub-section (1) in respect of that offence nor rejected an application for ' the making of such complaint, be exercised by the Court to which such former Court is subordinate within the meaning of sub-section (2) of section 195_ _ (3)2 A complaint made under this section signed--

(a) where the Court making the complaint is a High Court, by_ such oﬁicer of the Court as the Court may appoint; and

(b) in any other case, by the presiding officer of the Court.

(4) In this section, "Court" has the same meaning as in section 195.

476A. (1)3 Any person on whose application any Court other than a High Court has refused to make a complaint under sub-section (1) or sub-section (2) of section 476 or against whom such a complaint has been made by such Court, may appeal to the Court to which such former Court is subordinate within the meaning of sub-section (2) of section 195, and the superior Court may thereupon, after notice to the parties concerned, direct the withdrawal of the complaint or, as the case may be. . make the complaint which such former Court might have made under section 476, and if it makes such complaint, the provisions of that section shall apply accordingly.

(2)4 An order under this section, and subject to any such order, an order under section 476, shall be ﬁnal, and shall not be subject to revision.

476B. (1)5 A Magistrate to whom a complaint is made under section 476 or section 476A shall proceed to deal with it in the manner provided in Chapter XVI, (2)3 Where it is brought to the notice of such Magistrate, or of any other Magistrate to whom the case may have been trans- ferred, that an appeal is pending against the decision arrived at in the judicial proceeding out of which the matter has arisen, he may, if he thinks ﬁt. at any stage adjourn the hearing of the case until such appeal is decided."

35.11. A Bombay Amendment' of the Code makes a useful provision conferring power to award costs in proceeding under shall be 1cf. Section 476A.

2 cf. Proviso to section 476(1).

3c)'. section 476B.

4 New provision.

5cf. sections 476(2) and 482(2).

3cf. section 476(3).

7Section 476-C, inserted by Bombay Act 46 follows :-- . _ "476-C. A Criminal Court dealing with an application made to it for ﬁling a complaint under section 476 or 476A, and a Court dealing with an appeal under section 476B and the High Court dealing with an application in revision shall have power to make such order as to costs as may be iust: _ Provided that no such order shall be made against the Govemment or any public servant acting on behalf of the Government.

of 1948, reads as 299 section 476 and connected sections. We propose to adopt it with a few modiﬁcations. The new section which should come next after section 476A may be as follows :--

"476AA. Any Court dealing with an application made to it for ﬁling a complaint under section 476 or with an appeal under section 476A shall have power to make such order as to costs as may be just."

35.12. Sections 478 and 479, which deal with commitment by civil courts, may be omitted. These sections are rarely resort- ed to. The Civil Court can make a complaint to the Magistrate even where the offence is triable exclusively by the Court of Session.

35.13. Section 479A was inserted in 1955 with the object of "eradicating the evils of perjury". The section has brought into being a procedure for making a complaint in case of perjury-- a procedure which excluded1 that provided by section 476. Ever since its introduction the section has been a source of trouble. First, there was a controversy as to whether it was exclusive of section 476 or merely provided an additional alternative. That the former is the correct view is now well-settled. But the main question which naturally arises is whether this section marks an improvement over section 476. If speedy punishment of perjury is the aim, then the section does not go far enough, because, though it bars an appeal against a complaint made by the court, it does not give power to the court itself to punish perjury.

Moreover, action under the section cannot be taken after judgment is pronounced. Where a complaint "can be" made under the section, action cannot be taken? under section 476, so that if the court, by reason of forgetfulness or insufficient material, does not make a complaint on the termination of the proceedings, action cannot be subsequently taken under section 476, and the offender escapes unpunished--a result hardly intended by the legislature. This is a positive harm done by this section.

35.14. A mere repeal of the section, however, without some provision for punishing perjury will not be a satisfactory solution. Some provision whereby perjury of a ﬂagrant and unchallengable type could be effectively punished summarily without seriously-

prejudicing a fair trial of the person concerned, is desirable. Adopting the recommendation made by the Commission in the 14th Report,3 for the insertion of a section for punishing perjury committed by a witness making contradictory statements on oath On two different occasions, we propose the insertion, in place of section 479A, of a different section the salient features of which are as follows :

(i) any criminal court, other than that of a Magistrate of the second class should have power to punish summarily the offence of giving false evidence committed by a wit-

ness who makes contradictory statements on oath;

1 See section 479A(6).

2 Section 479A(6).

'3 14 Report, vol. 2, page 833, paragraph 5.

Power to order costs.

Section 478 and 479_omitted.

Section 479A un- satisfactory.

New provision for ﬂagrant per-

Jury proposed.

Summary proce-

dure for punish-

ment for giving false evidence by making contra-

dictory statements.

300

(ii) maximum punishment should be 6 months' imprisonment or ﬁne up to 500 rupees or both;

(iii) the court's order should be appealable;

(iv) the new procedure should be without prejudice to action under section 476;

(v) it should be limited to contradictory statements on oath made on two different occasions and should not cover contradictions between statements made in exami- nation and cross-examination.

We are not unaware of the risks involved in giving power to punish perjury to the very Court before which it is committed. The original section 477 (deleted in 1923) gave a power to the Court of Session to punish perjury. The Select Committee in 1922 deliberatelyl omitted this section on the ground that it is not desirable that a court which has instituted the proceed- ings should dispose of the case itself. The provision which we recommend is of a very limited character, being conﬁned to obvious cases of perjury and authorising a small punishment. Even this procedure will be discretionary, so that where the Court is of opinion that perjury, even though committed by contradictory statements on oath, is likely to raise complicated questions, or deserves more serious punishment than that per- missible under the proposed section, or is otherwise of such a nature that the ordinary procedure" is more appropriate, the court will not proceed under the proposed section.

It may also be noted that the proposed section is conﬁned to contradition between the statement on oath of the witness in court at the trial and his previous statement on oath recorded under section 164 or section 200 or section 202 in the same case. It was suggested in our discussion that various other kinds of statements, such as statements made in the aiﬁdavit in the same case under section 145 or in the course of additional evi- dence recorded under the orders of the Appellate Court, etc. might also be covered, but in our view these contradictions should be left to be dealt with by the ordinary procedure for punishment of perjury by way of complaint under Section.

We accordingly propose the following revised section 479A-- punishment of perjury by way of complaint under section 476.

"479A. (1) If in any trial before a Court of Session or of a Magistrate of the ﬁrst class, a witness makes on oath a statement which contradicts his previous statement on oath recorded under section 164 or section 200 or section 202 and it appears to the Court that the witness has, by making such contradictory statements, committed an offence punishable under section 193 oﬁ the Indian Penal Code, it may, if satisﬁed that it is expedient in the interests of justice that the witness should be tried summarily for the offence, take cognizance of the offence, and, after giving the oﬁender an opportunity of showing cause Why he should 1 Report of the Select Committee (26th June, 1922) under clause 126. 2 Section 476.

301

not be punished under this section, sentence him to impri- sonment for a term not exceeding SIX months or ﬁne not exceeding ﬁve hundred rupees or both.

(2) In every such case the Court shall follow, as nearly as may be practicable, the procedure prescribed for sum-

mary trials.

(3) Nothing in this section shall affect the power of the Court to make a complaint under section 476 for the offence where it does not choose to proceed under this section."

35.15. Sections 480 to 482 which prescribe the procedure for punishing contempt when committed ex facie curiae do not require any changes or comments.

35.16. Section 483 empowers the State Government to direct that any Registrar or Sub--rcgistrar shall be deemed to be a Civil Court for the purposes of sections 480 to 482. It was suggested that similar power should be given to the State Governments to apply sections 480 and 482 to all Tribunals. We are unable to accept this suggestion. If such a provision is considered neces- sary, it should be included in the special law constituting such Tribunals.

35.17. No change is needed in section 484.

35.18. In section 485, the words "and in the case of a Court established by Royal Charter, shall be deemed to be guilty of a contempt" occurring at the end may be deleted. The power of a State High Court to ptmish for contempt is governed by article 215 of' the Constitution and need not be provided for again in this section.

35.19. In section 485A(2) the words "in which an appeal lies" may be omitted in view of the changes which we propose1 in section 263.

35.20. In section 486(1), which provides for appeals from convictions for contempt, we propose to exclude the High Courts but add a reference to the proposed new section 479A_ In regard to sub-sections (3) and (4) we are of the view that appeals from all the authorities mentioned therein should lie to the Court of Session. Although City Sessions Courts in the presi- dency towns are not ordinarily vested with appellate jurisdiction, we think that in this particular case the power should vest in them instead of in the High Courts.

Section 486, amended on the above lines, will read as follows--

"486. (1) Any person sentenced by any Court other than a High Court under section 479A, section 480, section 485 or section 485A may, notwithstanding anything herein- before contained, appeal to the Court to which decrees or orders made in such Court are ordinarily appealable.

(2) The provisions of Chapter XXXI shall, so far as they are applicable, apply to appeals under this section, and 1 See para 22.8 above.

Sections 480 to

482. Section 483.

Section 484.

Section 485.

Section 485A amended.

Section 486 ro-

vised.

Appeals from conviction: in contempt cases.

302

the Appellate Court may alter or reverse the ﬁnding, or reduce or reverse the sentence appealed against.

(3) An appeal from such conviction by a Court of Small Causes. . _ _ shall lie to the Court of Session for the sessions division within which such Court is situate.

(4) An appeal from such conviction by any. . . . Regis- trar or sub--Reg1'strar deemed to be a civil court by virtue of a direction issued under section 483 shall lie to tlze Court of Session for the sessions division within which the office of such Registrar or Sub-Registrar is situate."

Section 487 35.21. In sub-section (1) of section 487, a reference to the amen proposed new section 479A may be added. In View of the aboli- tion of commitment proceedings, sub-section (2) is not necessary and may be omitted.

CHAPTER XXXVI MAINTENANCE OF WIVES AND CHILDREN 36.1. The primary justiﬁcation for placing in the Criminal IntroductofY- Procedure Code provisions relating to maintenance of wives and children, which is a civil matter, is that a remedy more speedy and economical than that available in civil courts is provided for them. It may also be said that these provisions are aimed at preventing starvation and vagrancy leading to the commission of crime.

36.2. As the functions of Magistrates under section 488 are S°°ti°ﬂ 483 (1)- of a judicial character, the reference to the District Magistrate and Sub-divisional Magistrates in sub-section (1) may be omitted.

36.3. Section 488(1) speaks of neglecting or refusing to Does.-child» maintain the "wife" or "child". Some controversyl exists as to meanaminor '2 whether the expression "child" means a minor, or whether it includes any son or daughter unable to maintain himself or herself. It has been suggested2 that a daughter or son of what- ever age should be entitled to maintenance under section 488.

No doubt, the right under section 488 will, if this view is adopted, be wider than that enjoyed under personal law. For example, under the Hindu Adoptions and Maintenance Act, 19563 a child can claim maintenance only so long as the child is a minor. This was also the rule of Hindu Law regarding sons.4 According to Muslim law also, a father is bound to maintain his sons until puberty and daughters until marriage, but not adult sons unless disabled by inﬁrmity or disease." But, having regard to the primary object of section 488-namely, pre- vention of vagrancy--a wider view on the subject is desirable. The emphasis should be on the inability to maintain itself and not on the age of the child.

In fact, the existing wording amply supports a wider inter- pretation. The position was lucidly explained in the under- mentioned Patna case" with which we agree. Other cases on the subject are also noted7 below.

1 See Saraswati v. Madhavan, A.I.R. 1961 Ker. 297 (reviews case-law).

2 Amendment Bill introduced by Shri Ajit Singh Sarhadi. (Lok Sabha Bill 41 of 1959) introduced on 14th August, 1959. (Discussed in Lok Sabha on 2-12-1961 and referred to the Law Commission, F.3(2)/55-L.C. Part II, S.No. 39).

3See section 20(2).

4Irevalyan. Hindu Law, (1912). Dage 200; Chanviragavda v. District Magistrate, A.I.R. 1927 Bom. 91, 92; Bhoopazi v. Basant Kumari, (1936) I.L.R. 63 Cal. 1098, 1111.

5Mu1la, Mahamedan Law, (1961), page 303; Fyzee, Outlines of Mohammadan Law, (1963), page 205.

6K/tidani v. Legan Singh, A.I.R. 1921 Pat. 379(1).

7 Bhagat Singh v. Emp., (1910) 26 P.R. 1910 Cr.; 6 I.C. 960; 11 Cr. LJ. 427; Krishnaswamy Iyer v. Chandravadana, (1918) I.L.R. 37 Mad. 565; 25 M.L.I. 349; Thambuswamy Pillay v. Ma Louse, (1917) 9 L.B R. 37 I.C. 311; 10 Bur. LT. 209.

Married daughters.

Aged parents.

Appeals.

304

36.4. Another question that has arisen is, as to how far section 488 applies to married daughters. According to one view, a person who can claim maintenance from another source cannot apply under section 4881. On this reasoning, a married daughter cannot claim maintenance from her father. But a con- trary view has been taken in a Bombay case," in which a married daughter of 15 years was awarded maintenance against the father under section 488. The Bombay case cites other cases to the same effect?' Here again, we think that the controversy should be set at rest by amending section 488(1) so as to ensure that a married daughter can claim maintenance from her father. No doubt, she has got her rights against the husband. A Hindu Wife is entitled to be maintained by her husband during her life-time.' Under Muslim law5 also, the husband's duty to maintain com- mences when the wife attains puberty. Section 488 also gives her a right against her husband. But there may be hard cases where' the husband is not willing to maintain her, and a power to make an order against the father is desirable to meet such hard cases.

36.4. A suggestion" has been made to the effect that a provi- sion for maintenance of parents should be made in cases where they are unable to maintain themselves. It is true, that under section 20(1) of the Hindu Adoptions and Maintenance Act, 1956, a Hindu is bound to maintain his or her aged or inﬁrm parent so far as the parent is unable to maintain himself or her- self out of his or her own earning of other property. Under the Muslim law also'', there is an obligation to maintain one's parents (subject to certain exceptions not material here). We are, how- ever, of the view that the Criminal Procedure Code is not the proper place for such a provision. There will be considerable diﬂiculty in the amount of maintenance awarded to parents apportioning amongst the children in a summary proceeding of this type. It is desirable to leave this matter for adjudication by Civil Courts.

36.5. Several persons have suggested that an order under section 488 should be made appealable. A right of appeal will, however, result in unduly protracted proceedings and defeat the primary object of this section, which is to provide a speedy for destitute wives and children. The aggrieved party has the remedy of moving the Civil Court to get the order modiﬁed or variﬁed'. Hence, a right of appeal is not desirable.

1Chandita/z v. Chakkayayyan, I.L.R. 39 Mad. 957; A.I.R. 1917 Mad.

275. 2Banchhod Das V. Emp., A.I.R. 1949 Bom. 36, 37 (Jabagirdar and Sen JJ.).

3A.I.R. 1925 Mad. 491; I.L.R. 48 Mad. 503 (Girl of 14 years).

4)Section 18(1), Hindu Adoptions and Maintenance etc. Act (78 of 1956 .

5Mulla, Mahomedan Law, (1961), page 238; Fyzee, Outlines of Mohammadan Law. (1964). page 202.

°Suggestion of Shri Aiit Singh Sarhadi, vide his Amendment_ Bill intr_o- duced on 14th August, 1959 (Lok Sabha Bill 41 of 1959) discussed In gok Sagagia and referred to the Law Commission, F.3(2)/55-L.C. Pt. II.

.No. .

7Mulal. Mahomedan Law. (1968). Daras. 371. 372: FY2286. Outline! of Mohammadan Law. (1964). Dam 206.

8Section 489(2).

305

36.6. In the light of the above discussion, sub-section (1) of section 488 may be amended to read as follows :--

"(1) If any person having suﬂicient means neglects or refuses to maintain his wife or his legitimate or illegitimate child of any age unable to maintain itself, whether the child be married or unmarried, a Magistrate of the ﬁrst class may (rest as in the present sub-section)."

36.7. It has been suggested by two High Court Judges with reference to section 488(3), that if the husband suffers from any contagious venereal disease it should be considered just ground for the wife's refusal to live with him, and this should _be ex- pressly mentioned in the section. We do not consider it neces- sary or desirable to enumerate exhaustively the various grounds which would justify a wife's refusal to live with her husband. These may be left to the decision of the courts. The Madras decisionl noted below may be seen in this connection.

36.8. A suggestion has been made? that the words "or if they are living separately by mutual consent" occurring in section 488(4) should be omitted, but we do not think this can be accepted. If the parties are living separately by mutual consent, they may be expected to make the necessary arrangement regard- ing their maintenance, and if the husband does not carry out the arrangement, the remedy in the Civil Court should be suﬂicient.

In section 488(4), the words "living in adultery" have been almost uniformly interpreted as indicating an adulterous course of life, as distinguished from a single lapse from virtue. It has been suggested3 that a single act of adultery should be enough to disentitle the wife to maintenance. We are unable to accept the suggestion. Hardships are bound to arise if the wife is totally debarred from the remedy under this section because of a single lapse from virtue. Further, to deprive her of maintenance for an occasional lapse may force her to lead a sinful life and give her no chance to redeem herself.

39.9. Section 488(5) requires the Magistrate to cancel his order in certain contingencies. The question whether in a case where the wife has obtained an extra-judicial divorce sanctioned by custom, the Magistrate can cancel his order at the instance of the husband has arisen. Conﬂicting decisions of High Courts on this point are mentioned below'. To resolve this controversy, we suggest that the Magistrate should decide the question under section 488(5). For this purpose after the words "live with her husband" in this section, the words "or has been lawfully divorced by her husband otherwise than by order of a Court"

may be inserted.

1Sellammal v. Muthuvira, A.I.R. 1943 Mad. 647. Ayyar J.) 2 Suggestion of Shri S. S. More, received through the Home Ministry.

3 Amendment Bill introduced by Shri Ajit Singh Sarhadi (Lok Sabha Bill 41 of 1949); introduced on 14th August, 1959 (referred to Law Commission, F.3(2)/55-L.C. Pt. II, S.No. 39).

4Shah Abu v. Ulfat Bibi, (1896) I.L.R. 19 All. 50. 55 (F.B.): In re Punjalal A.I.R. 1928 Born. 224; Janni Bibi, A.I.R. 1955 Andhra Pradesh i; In re Mohammed Rahimulla. A.I.R. 1947 Mad. 46; Mohamed Ismail v. Sarammal, A.I.R. 1960 Ker. 262.

(Kuppuswamy Section 488( 1) amended.

Section 488 (3).

Section 488 (4).

Section 488 (5)..

Section 488 (8.) 306 36.10. Under sub-section (8), the place where the wife resides after desertion by the husband is not material as regards the venue of the proceedings, though the place where the hus- band resides----even temporarily--is relevant. Often deserted wives are compelled to live with their relative far away from the place where the husband and wife last resided together. They would be put to great harassment and expenditure, unless the venue of the proceeding is enlarged so as to include the place where they may be residing on the date of the application.

With reference to sub-section (8), there is the following controversy. Is it suﬂicient if the husband resides in the district in which the proceedings are taken, or is it further necessary that the court in which the proceedings are instituted must itself be one having jurisdiction over the place where the husband resides? The Bombay view1 is, that a proceeding under section 488 insti- tuted in any competent court within the district in which the husband resides, or is, or in which he last resided with his wife. This is also the Patna view? and the Kerala view3. The Madras High Court' has, however, taken a different view. In our opinion, the Bombay view is correct, as the wording of the sub-section does not seem to justify the addition of any further restriction. We think thatgthe language is clear and needs no amendment on this point.

Sub--section (8) of section 488(8) may be redrafted as follows :--

"(8) Proceedings under this section may be against any person in any district--

taken

(a) where he is, or

(b) where he or his wife resides, or

1Shantabaz' V. Vishnupant Atmaram, A.I.R. 1965 Bom. 107, 108, paragraph 4 (Kotval J.).

2Baleshwari Devi v. Bikram Singh, A.I.R. 1968 Pat. 383, 384, para-

graph 2 (K. K. Dutta J.).

3I.L.R. (1961) 2 Ker. 702: (1962) 1 Cr. L.J. 40. 41. 4Sakuntala v. Thirumalayya, (1966) 2 Mad. L.J. 326_ X»?

CHAPTER XXXVII DIRECTIONS OF THE NATURE OF A HABEAS CORPUS

37. 1. Chapter 37 consists of a single section which confers on the High Courts the power to issue directions of six different types, all of them being in the nature of a habeas corpus. The section, as originally enacted in 1898, conferred the power only on "the High Courts of Judicature at Fort William, Madras and Bombay" and the territorial limits within which any of these three High Courts could exercise the power were "the limits of its ordinary original civil jurisdiction" which coincided with the limits of the presidency-towns. The scope of the section was considerably widened by the Criminal Law Amendment Act, 1923. Instead of only the three High Courts at Calcutta, Madras and Bombay, all the High Courts in British India were conferred the power of issuing these directions. Furthermore, instead of being restricted ir1 territorial extent to the limits of the ordinary original civil jurisdiction of the High Court, the power was made exercisable within the limits of its appellate criminal jurisdiction, i.e., within the limits of the Province or Provnces over which the High Court had authority, 37.2. The ﬁrst two of the six directions which may be issued under section 491 (1) correspond to the well--known writ of habeas corpus and are described in clauses (a) and (b) of the section as follows :--

"(a) that a person within the limits of its appellate criminal jurisdiction be brought up before the Court to be dealt with according to law;

(b) that a person illegally or improperly detained in public or private custody Within such limits be set at liberty;"

The next three clauses (c), (d) and (e) describe the circum- stances in which, and the purposes for which, prisoners detained in any jail within the jurisdiction of the High Court could be directed to be brought up before the High Court itself or before some other Court or authority. The last clause (f) empowers the High Court to direct "that the body of a defendant within such limits be brought in on the Sheriff's return of cepi corpus to a writ of attachment".

37. 3. It will be noticed that article 226 of the Constitution confers wide and comprehensive powers on the High Courts of States "to issue to any person or authority, including in appro- priate cases any Government, directions, orders or writs, in- cluding writs in nature of habeas corpus, mandamus, prohibi- tio, quo warranto and certiorari" for any purpose. In view of this provision, clauses (a) and (b) of section 491(1) have been practically rendered superﬂuous and can be safely omitted.

History of sec-

tion 491.

'I_'ypes of direc-

tions under£seo-

tion 491.

Clauses (21) and

(b) rendered super-

tzlilgus by article 308 "Clan!!! (C), _(d) 37.4. We have another Reportl considered in detail the pro-

g (') °1;§"°n visions of clauses (c), (d) and (e) relating to the production of ' mm" ' prisoners in Court for various purposes and recommended that these clauses (and also section 542 of the Code) should be omitted and more detailed provisions on the lines of those con- tained in the Prisoners (attendance in Courts) Act, 1955, should be included in this Chapter as section 491A.

37.5. Clause (f) which is couched in archaic and obscure language relates to "a writ of attachment" which the High Court may have issued and in regard to which the Sheriﬁ of the presi- dency-town has submitted "a return of cepi corpus". This writ of "attachment" is really a writ of arrest in execution of a civil decree directed to the Sheriﬂ, requiring him to arrest a person named in the writ and to have the "body" of the person produced before the Court on a given date. On this writ the "return" by the Sheriﬂ sets forth what has been done by him under it. The literal meaning of cepi corpus is "I have taken the body"; and in its full form cepi corpus et paratum habeo, it means "I have taken the body and have it ready"? Since the power of arrest in exe- cution of a civil decree is exhaustively dealt with in the Civil Procedure Code and since the original civil jurisdiction of the three Presidency High Courts has been practically abolished, the power under clause (f), section 491(1), is seldom, if ever, required to be used.

Chapter 37 to be 37. 6. We, therefore, propose that section 491 be omitted replaced by a and in its place provisions for securing the attendance of prisoners dlﬂbrent Chapter- in Criminal Courts be included in this Chapter as recommended in the 40th Report. The existing Chapter XXXVII may be re- placed by the following Chapter :--

CHAPTER XXXVII ATTENDANCE OF PERSONS CONFINED OR DETAINED IN PRISONS Clause (f) to be omitted.

"491. In this Chapter,--

(a) 'detained' includes detained under any law providing for preventive detention;

(b) 'prison' includes-

(i) any place which has been declared by the State Government, by general or special order, to be a subsidiary jail; and

(ii) any reformatory, Borstal institution or other institution of a like nature.

Deﬁnitions.

491A. (1) Whenever, in the course of an inquiry, trial _ or poweg-uo require other proceeding under this Code, it appears to a Criminal attendance of Court,---

prisoners. - - -

(a) that a person conﬁned or detained in a prison should be brought before the Court for answering to a charge of an oﬂence, or 1 40th Report on the Law relating to Attendance of Prisoners in Courts.

paaras 27 et seq.

2See Jowitt's Dictionary of English Law, 1959, Vol. I, p. 332.

309

(b) that it is necessary for the ends of justice to examine such person as a witness, the Court may make an order requiring the oﬁicer in charge of the prison to produce such person before the Court for answering to the charge or, as the case may be, for giving evidence.

(2) Where an order under sub-section (1) is made by a Magistrate of the second class, it shall not be forwarded to, or acted upon by, the oiﬁcer in charge of the prison unless it is countersigned by the Chief Judicial Magistrate to whom such Magistrate is subordinate.

(3) Every order submitted for countersigning under sub- section (2) shall be accompanied by a statement of the facts which in the opinion of the Magistrate, render the order neces- sary, and the Chief Judicial Magistrate to whom it is submitted may, after considering such statement, decline to countersign the order.

491B. (1) The State Government may, at any time, having regard to the matters speciﬁed in sub-section (2), by general or special order, direct that any person or class of persons shall not be removed from the prison in which he or they may be conﬁned or detained, and thereupon, so long as the order remains in force, no order made under section 491A, whether before or after the order of the State Government, shall have effect in respect of such person or class of persons.

(2) Before making an order under sub-section (1), the State Government shall have regard to the following matters, namely :--

(a) the nature of the oﬁence for which, or the grounds on which, the person or class of persons has been ordered to be conﬁned or detained in prison;

(b) the likelihood of the disturbance of public order if the person or class of persons is allowed to be re-

moved from the prison; and

491C. Where the person in respect of whom an order is :-made under section 491A--

(a) is by reason of sickness or inﬁrmity unﬁt to be removed from the prison; or

(b) is under committal for trial or under remand pend- ing trial or pending a preliminary investigation; or

(c) is in custody for a period which would expire before the expiration of the time required for complying with the order and for taking him back to the prison in which he is conﬁned or detained; or is a person to whom an order made by the State Government under section 491B applies,

(d) the otﬁcer in charge of the prison shall abstain from carrying out the Court's order and shall send to the Court a statement of reasons for so abstaining:

Provided that where the attendance of such person is required for giving evidence at a place not more than twenty-ﬁve kilometres léower of State overnmem to exclude certain personsfrom o_pe-

1:;t1icAn_of section Oﬁcenin charge of_ prisomto abs-

tain from carry-

ing out order in certain cases.

Prisoner to be brought to Court in custody.

Power to issue commission for examination of witness in prison.

310

distant from the prison, the oﬂicerin charge of the prison shall not so abstain for the reason mentioned in clause (b).

491D. Subject to the provisions of section 491C, the oﬂicer in charge of the prison shall, upon delivery of an order made under sub-section (1) of section 491A and duly countersigned, where necessary, under sub-section (2) thereof, cause the person named in the order to be taken to the Court in which his attend- ance is required, so as to be present there at the time mentioned in the order, and shall cause him to be kept in custody in or near the Court until he has been examined or until the Court authorises him to be taken back to the prison in which he was conﬁned or detained.

491E. The provisions of this section shall be without pre- judice to the power of the Court to issue under section 503 a commission for the examination, as a witness, of any person con- ﬁned or detained in a prison; and the provisions of Chapter XL shall apply in relation to the examination on commission of any such person in the prison as they apply in relation to the examina- tion on commission of any other person."

IL-II ------u:. .. «quasi:

CHAPTER XXXVIII THE PUBLIC PROSECUTOR 38.1. The appointment and functions of the Public Prose-

cutor are dealt with in this short Chapter consisting of only 4 sections. The Chapter does not give any indication of the actual organisation of the prosecuting agency in the districts. Under section 492, there could be any number of Public Prosecutors; some appointed by the Central Government, others by the State Government, and yet others by the District Magistrate or, subject to his control, by the Sub-divisional Magistrate. Then under section 495, any Magistrate inquiring into or trying a case may permit the prosecution to be conducted by any person who may do so personally or by a pleader.

38.2. In practice, however, there is in every district an oﬂicer appointed by the State Government who is designated the Public Prosecutor and who, with the assistance of one or more additional Public Prosecutors, conducts all prosecutions on behalf of the Government in the Court of Session. These senior Public Prose- cutors are under the general control of the District Magistrate. Prosecution in the magisterial courts is, generally speaking, in the hands of either the police--oﬁicers or of persons recruited from the bar and styled Police Prosecutors or Assistant Public Prose- cutors all of whom work under the directions of the Police Department.

38.3. In an earlier Chapter} we have recommended that in every district a separate prosecution department should be con- stituted and placed in charge of a Director of Public Prosecutions, or, if this is not considered feasible, of the Public Prosecutor of the district who should be given a greater authority, a higher status and a wider range of functions than he has at present, and approximating to those envisaged for the Director. Now, section 492 provides for the appointment of several Public Prosecutors in a district all of whom can apparently function at the same time. No qualiﬁcations are laid down in the law for a Public Prosecutor and the Government is empowered to appoint any one it likes to be a Public Prosecutor. We think that the Code should provide a better frame-work for organising the prosecuting agencies in the district in a systematic way, and for this purpose, we propose the following two sections in place of section 492 :--

"492. (1) For every district the State Government shall appoint a Public Prosecutor. It may also appoint one or more additional Public Prosecutors for the district.

(2) A person shall only be eligible to be appointed a Public Prosecutor or Additional Public Prosecutor under sub-section (1) if he has been for not less than seven years an advocate and is recommended by a High Court for appointment."

3 See paras. 18.24 and 18.25 above. ' 'Cf. art. 233(2) of the Constitution.

Introductory.

%:'i:.".."'......,"'°'i°.r C the districts.

Secdonwz.

Appointment of Assistant Public Prosecutors.

Section 493 amended.

Appearance by Public _ Prosecu-

tors.

Section 494 with-

drawal Etom pro-

secution only by Public Prosecu-

tor in charge of case.

312

(3) The Central Government or the State Government may appoint, for the purposes of any case or class of cases, an advocate of not less than ten years' standing as a Special Public Prosecutor.

_ zt92.A(l) The State Government shall appoint in every district one or more Assistant Public Prosecutors for conducting prosecutions in the Courts of Magistrates.

(2) No po7;ice--oilicer shall be eligible to be Assistant Public Prosecutor under sub-section (1).

( 3) _Where no Assistant Public Prosecutor appointed under Sub-S8CtlOf1.(l.) is available for the purposes of any particular case, the District Magistrate may appoint any other person to be the Assistant Public Prosecutor in charge of that case:

appointed as Provided that a police-oﬂicer shall not be so appointed---- (:2) if he has taken any part in the investigation into the oﬁence with respect to which the accused is being prosecuted; or

(b) if he is below the rank of Inspector."

The Public Prosecutors appointed under section 492 will ordinarily conduct cases on behalf of Government in the Sessions Court, while the Assistant Public Prosecutors appointed under section 492A will be for conducting cases in the Courts of Magistrates. Although it is not expressly provided in the latter section that Assistant Public Prosecutors should be legally quali- ﬁed, we have no doubt that the present trend of appointing, as far as possible, qualiﬁed legal practitioners as Assistant Public Prose- cutors or Police Prosecutors or Police Prosecutors will be main- tained in all States and the provision made in sub-section (3) above (corresponding to sub-section (2) of section 492) will be resorted to less and less in future years.

38.4. Section 493 does not require any change of substance, but an express reference to the Assistant Public Prosecutor besides the Public Prosecutor will be necessary. The section may be modiﬁed to read as follows :--

"493. (1) The Public Prosecutor or Assistant Public Prose- cutor in charge of a case may appear and plead without any written authority before any Court in which that case is under inquiry, trial or appeal.

(2) If in any such case any private person instructs a pleader to prosecute any person in any Court, the Public Prosecutor or Assistant Public Prosecutor in charge oi the case shall conduct the prosecution, and the pleader so instructed shall act therein under his direction."

38.5. Section 494 seems to authorise any Public Prosecutor to withdraw from the prosecution with the consent of the Court. The Supreme Court has held1 that the reasonable interpretation to be placed on this section is that it is only the Public Prosecutor who is in charge of a particular case and is actually conducting 1State of Punjab v. Surjit Singh, (1967) 2 S.C.R. 347; A.I.R. 1967 S.C. 1214.

313

the prosecution that can file an application under this section seeking permission to withdraw from the prosecution. If a Public Prosecutor is not in charge of a particular case and is not con- ducting the prosecution, he will not be entitled to ask for with- drawal from prosecution of that case under section 494. If any Public Prosecutor who has nothing to do with a particular case is held entitled to file an application under section 494, the result will be anomalous. The contrary view viz., that the section gives uriquaﬁﬁed right to any mrson who, in law, is a "Public Pro- secutor" to file an application for withdrawal from prosecution was, it appears, strongly urged in the case supported by a few ecisions of High Courts. That view was negatived by the Supreme Court.

38.6. We have elsewhere referred to a conﬂict of interests that may possible arise between the Central Government and the State Government in the matter of remitting or commuting sentences} A similar conflict of interests can arise under section 494 in respect of withdrawal of prosecutions. A State Public Prosecutor appointed by the State Government can, if he is in charge of the case, withdraw from the prosecution, though the Central Govern- ment may be much concerned in the prosecution of the offenders. This could happen where the offence relates to a matter to which the executive power of the Union extends, or was investigated by the Delhi Special Police Establishment, or involved the misappro- priation of destruction of, or damage to, Central Government pro- perty, or was committed by a Central Government servant in the course of his oiﬁcial duty.'-' We are of the View that in such cases it is desirable that the consent oi the Central Government should be obtained before the Public Prosecutor seeks permission of the Court to withdraw from the prosecution. We recommend the insertion of a proviso to that effect in section 494.

38.7. Section 494 may accordingly be revised to read as follows :--

"494. (1) The Public Prosecutor or Assistant Public Prose- cutor in charge of a case may, with the consent of the Court, at any time before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried; and, upon such withdrawal,--

the

(a) if it is made before a charge has been framed, such accused shall be discharged in respect of offence or offences;

if it is made after a charge has been framed, or when under this Code no charge is required, he shall be acquitted in respect of such oﬂence or offences:

Provided that where such oﬂence--

(b)

(i) was against any law relating to a matter to which the executive power of the Union extends, or 1 See paragraph 29.13 above.

2Cf. revised section 402B proposed in para. 29.14 above.

Previous consent of Central Government pro-

vided for in cer-

tain cases.

Section N 494 re-

vised. ' Withdrawal from prosecution.

Section 495 re-

vised.

Permission to qonduct prosecu-

tion. A 314

(ii) was investigated by the Delhi Special Police Establishment under the Delhi Special Police Establishment Act, 1946, or

(iii) involved the misappropriation or destruction 0!, or damage to, any property belonging to tho Central Government, or

(iv) was committed by a person in the service of the Central Government while acting or purporting to act in the discharge of his oﬂicial duty, and the prosecutor in charge of the case has not been appointed by the Central Government he shall not withdraw from the prosecution without the previous permission of the Central Government."

38.8. In view of the new section 492A regarding Assistant Public Prosecutors and the changes made in section 494, section 495 may be revised as follows :--

"495. (1) Any Magistrate inquiring into or trying a case may permit the prosecution to be conducted by any person other than a police-officer below the rank of Inspector, but no person, other than the Advocate-General or Government Advocate or a Public Proecutor or Assistant Public Prosecutor, shall be entitled to do so without such permission:

Provided that no police-oﬂicer shall be permitted to conduct the prosecution if he has taken part in the investigation into the offence with respect to which the accused is being prosecuted.

(2) Any person conducting the prosecution may do so per-

sonally or by a pleader."

CHAPTER XXXIX BAIL 39.1. The broad principles adopted in the Code in regard to bail are----

(i) bail is a matter of right, if the offence is bailable;

(ii) bail is a matter of discretion, if the offence is non- bailable;

(iii) bail shall not be granted by the Magistrate if the offence is punishable with death or imprisonment for life; but if the accused is a woman, or a minor under the age of 16 years, or a sick or inﬁrm person, the court has a discretion to grant bail;

the Court of Session and the High Court have a wider discretion in granting bail, even in respect of offences punishable with death or imprisonment for life.

39.2. Under section 496, the right to bail is absolute in case of bailable offences. It has been suggested1 that where at person released on bail has absconded or has failed to appear before the Court on the date ﬁxed, he shall not be entitled to bail, when brought to court on any subsequent date. We recommend the acceptance of this suggestion, and further recommend that refusal of bail under such circumstances shall be without prejudice to any action that may be taken under section 514 for forfeiture of the bail bond.

Accordingly, section 496 may be re--numbered as sub-section (1), and the following sub--section may be added as sub-section (2) :--

"(2) Notwithstanding anything contained in sub-section (1), where a person who having been released on bail, has failed to comply with the condition 'of the bail bond as regards the time and place of attendance, the court may refuse to release him on bail when, on a subsequent occa-

sion in that case, he appears before the Court or is brought in custody. Any such refusal shall be without prejudice to the power of the Court to call upon any person bound by such bond to pay the penalty thereof under section 514."

393. With reference to section 497(1), a State Government' has suggested that the words "there appears sufﬁcient ground for inquiry into his guilt" be substituted for the words "if there appear reasonable grounds for believing" (that he has been guilty of an offence punishable with death or imprisonment for life). The reason given was, that persons accused of serious offences again committed serious offences during release on bail. We cannot accept the suggestion. It would be unduly restrictive of the power

(iv) 1 F.3(2)/55-L.C, Pt. II, S. No. 36, page 178 (Suggestion of! Shri A. K. Roy, Additional Sessions Judge, Asansol).

2F.3(2)/S5-L.C. Pt, II, S. No. 28 (Amendment Bill proposed by the Government of U.P.).

Broad principles regarding bail.

Section 496 per-

son breaking bail bond not to be released on bail.

Section 497 (1).

Section 497 (3A) Grant of bail with conditions new sub-section (IA) in section 497.

316

to grant bail. If the test of "suiﬁcient ground for inquiry" is substituted, it would amount to denial of bail in almost every case. If in a particular case, a person released on bail was re- ported to have committed a fresh offence, or otherwise misused his liberty, the court may be moved to cancel his bail bond.

A Bar Association' has suggested that section 497(1) should be made more liberal by providing that if the offence is not punishable with death, bail ought to be granted. We are afraid that this would be a radical and undesirable change in the law. Offences punishable with imprisonment for life are serious enough to justify the present provision.

Another suggestion" is to the eﬁect that in section 497(1), for the words "he may be released on the bail", the following words may be substitutcd--"he shall be released on bail unless the Court for reasons recorded in writing otherwise directs". We are unable to accept this suggestion either. Its acceptance would practically amount to an abolition of the distinction between bail- able and non--bailable offences.

39.4. It has been stated in certain suggestions?' sent to us that sub-section (3A) of section 497 has created diﬂiculties and should be deleted. This sub-section was inserted in order to avoid hardship to accused persons in non--bailable cases where the proceedings are prolonged beyond a certain period (sixty days). in such cases, the sub-section provides, that the accused shall be released on bail (unless the Magistrate otherwise directs). Having regard to the fact that this provision was inserted only in 1955, we think that much more experience of its working is required before its deletion on the ground of practical difliculties can be recommended.

39.5. Cases often arise under section 497, where, though the court regards the case as ﬁt for the grant of bail, it regards the imposition of certain conditions as necessary in the circumstances. In an earlier Report* the Commission examined the position as to whether such a power exists now and recommended an amend- ment of section 497 for the purpose. We agree with the recom- mendation and propose that the following sub-section may be added in the section after sub-section (1) :--

"( 1A) When a person accused or suspected of the com- mission of an offence punishable with "imprisonment which may extended to seven years or more or of an offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code, or of the abetment of, or conspiracy or attempt to commit, any such olfence, is released on bail under sub-

1 F.3(2)/55-L.C. Part II, S. No. 34(a) (Delhi Bar Association). 2Horr'1e Ministry File No. 27(5)/54--Judl. App. IV, Item (8).

3F.3(2)/55-L.C. Pt. I, S. No. 17 (Views of certain Inspector Gare- rals of Police as summarised in the consolidated note sent by the Intelli- gence Bureau, Ministry of Home Aﬁairs).

436th Report on sections 497 and 498 of the Code and grant of beli- with conditions.

V'.

',\s.

317

section (1), the Court may impose any condition which it considers necessary--

(a) in order to ensure that such person shall attend in accordance with the conditions of the bond executed under this Chapter, or

(b) in order to ensure that such person shall not commit an offence similar to the oﬂence of which he is accused or of the commission of which he is suspected, or

(c) otherwise in the interests of justice."

39.6. It has been suggested1 that a sub--section should be inserted in section 497 to the effect that where the investigation is delayed beyond 60 days, the accused (in non--bailable cases) should be released on bail. We may, in this connection, point out that where the investigation is delayed2, the question of the detention of the accused will come up for review automatically before the Court; the Court will be free to pass such orders as it thinks fit, and is not precluded from ordering release on bail if that is an appropriate course in the circumstances of the case. We do not think that a rigid provision is necessary on this subject.

39.7. Section 497(5) and section 498 relate to similar mat- ters, and can be considered together. Further, section 498 is a composite section in which two distinct maters, which are not closely connected, have been put in one sentence. In the interests of clarity3 a re-casting of these provisions appears to be desirable. The main ideas found in section 497(5) and section 498 are----

(i) power of a Court which has released a person on bail to direct his arrest and to commit him to custody------ section 497(5), in part;

(ii) special powers of the High Court and Court of Session----

(:1) to order release of any person section 498(1), second part; and

(b) to order that a person released on bail under section 497 or section 498(1) be arrested and to commit him to custody--earlier part of section 497(5) and section 498(2);

(iii) amount of the bond not to be excessive, and power of the High Court or Court of Session to reduce the bail required by a police oﬂicer or a Magistrate-- section 498(1), in part.

It will be noticed that the first is a general power conferred on all courts; the second is a special power of the superior courts; and the third is an ancillary power.

1_F.3(2)/55--L.C. Pt. III, S. No. 21 (Suggestion of Himachal Pradcsh Administration) .

'See discussion relating to section 344.

3_Cf. criticism of section 498 in Amir Chand. ALR. 1950 E.P. 53, in the Judgment of Xhoela J.

Delay in Investi-

gntion.

Section 497 (5.

and section 498) 318 We propose to put the ﬁrst as section 497(3A), so that it will appear immediately after the first three sub-sections,--the sub--sections which relate to release on bail. [In consequence, existing sub--section (3A) will require re-numbering as sub- section (3B)].

The second will, in view of its importance, form a separate section------section 497B.

The third may be retained in section 498.

Along with this re-arrangement of the provisions, some changes in their content are also desirable.

First, as regards the power of a court to cancel bail granted by it, the relevant part of section 497(5) is obviously intended to apply to the High Court or Court of Session also, when bail is granted by that Court. The words "every other Court", however, create a contrary impression, and we propose to substitute the words "any court" in their place, to correct this impression. ' As regards the second proposition stated above, the power of the superior courts fails under two heads-

(a) power to direct release on baf' and

(b) power to direct arrest of a person released on bail.

The power under head (a) above is expressed in section 498(1) where it says that "the High Court or Court of Session may, in any case whether there be an appeal on conviction or not, direct that any person be admitted on bail". The words "in any case" are, apparently, intended to emphasise that the power is wide enough to embrace both bailable and non-bailable offences. We think that the language should be made more precise. The power is meant to apply to a person accused of an offence and in custody, and the words "admit to bail" have been Eilcllicially construed as having the same meaning as "release on '11".

Lastly, the words "whether there be an appeal on conviction or not" are unnecessary and confusing, and should be omitted.

The power under head (b) is now contained partly in sub- section (5) of section 497, where it authorises the superior courts to "cause any person who has been released under tlis section to be arrested" and "to commit him to custody"-- partly in sub--section (2)--where it authorises the superior court:

to "cause any person who has been admitted to bail (under section 498) to be arrested" and "to commit him to custody". Together, these two cases cover cancellation by a superior courts of the bail granted to a person--

(i) released on bail by an inferior court? in a case relating to non-bailable offence; or 1See discussion in Amir Chand, A.I.R. 1950 E.P. 53.

2 Section 497(5), in so far as it relates to cancellation of bail by the court which granted it, has been already dealt with.

319

(ii) released on bail in a case where the release was ordered under its special power by the superior court itself.

They do not cover concellation of bail granted in a case relating to a bailable offence1 under section 496.

Now, it is well-established that the Court has power to cancel bail even where it was granted in a case relating_to

8. bailable offence. The existence of this POWCI Of T_11_€ High Court has been put beyond doubt by a series of decisions of the Supreme Court2, and of the High Courts'*. The absence of an express provision in this respect was described as a "lacuna" in one of the judgments of the Supreme Court', and we think that, instead of leaving the matter to the inherent powres of the High Courts, it should be expressly provided for in this Chapter, and the power could be given to Courts of Session as well. For this reason, release under section 496' is expressly proposed to be _mentioned in the amendment which we suggest regarding section 498.

As regards the third proposition--amount of bail and reduc- tion thereof--no changes are necessary in the substance of the powers as provided in section 498(1).

A suggestion has been made by two High Court Judges' to the effect that the trial court should also have power to cancel bail at the close of arguments, even if the bail was granted by a superior court. We presume that the object behind the sug- gestion is to cover cases where, at the close of the arguments, the court considers it very likely that it will sentence the accused to imprisonment. We would, however, prefer to leave the law as it is. When the judgment is pronounced, the accused will be required to attend the court to hear the judgment pro- trounced." Ordinarily, no serious mischief could be caused by the accused remaining on bail in the interval.

Where a Court 'A' grants bail in a case and the case is subsequently transferred to Court 'B', can Court 'B' cancel the bail granted by court 'A' ? This question arose in a Bombay case', where the High Court approved of the cancellation by the transferee court. But the judgment lays stress on the in- herent power of the court, and it was suggested to us that this leaves the position doubtful, and that some clariﬁcation may be desirable. We do not, however, think it necessary to suggest an amendment. As a general rule, it is implied that a trans-

1The scope of section 496 is somewhat wider, as it applies to "any person other than a person accused of a non-bailable offence". But we are concerned here with a person accused of a bailable offence.

'-'Talab, (1958) S.C.R._1226; A.I.R. 1958 S.C. 376; Ratilal Bhanji A.I.R. 1967 S.C. 1639 (judgment of Bachawat 1.).

Pampapathy (1967) 1 S.C.R. 115; A.I.R. 1967 S.C. 286 (Judgment of Ramaswami J .

3See for example Panna Lal AIR 1967 All. 394, 397.

4Talab (1958) SCR 1226; AIR 1958 SC 376.

5F.3(2)/55-L.C. Pt. II. S, No. 33 b , 137, S t' High Court Judges). ( ) page ( ugges ion of two 6 Section 366(2).

7 Emp. v. Routmal, I.L.R. 1941 Born. 38; A.I.R. 1940 Born. 41.

Revised sections 497 (3A), 498 and 498A.

Special wers of High utt or Court of Sessions regarding bail.

Amount of bond and reduction thereof.

Anticipatory bail.

320

feree court can deal with the case in the same manner as the original court, and this implication need not be expressed.

39.8. in the light of the above discussion, we recommend that in section 497, after sub-section (3), the following sub- section be inserted :--

"(SA Any Court which has released a person on bail under sub-section (1) or sub--section (2) may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody."

Existing sub--section (3A) may be renumbered as sub-section (3B) and existing sub--section (5) may be omitted. Instead of section 498, we may have the following sections-

"498. (1) A High Court or Court of session may dircct----

(a) that any person accused of an offence and in custody be released on ball; or

(b) that any condition imposed by the Magistrate when releasing any person on bail be set aside or modiﬁedl, or

(c) that any person who has been released on bail under clause (a) or under section 496 or section 497 be arrested and commit him to custody.

(2) V 'hcn a person accused or suspected of the commission of an offence punishable with imprisonment for a period which may extend to seven years or more or of an offence under Chapter Vi, Chapter XVI or Chapter XVII of the Indian Penal Code, or of the abetrnent of, or conspiracy or attempt to com- mit, any such offence, is released on bail under sub-section (1) by the High Court or Court of Session, that Court may impose any condition which itconsiders necessary--

(a) in order to ensure that such person shall attend in accordance with the conditions of the bond executed under this Chapter, or

(b) in order to ensure that such person shall not commit an offence similar to the offence of which he is accused or of the commission of which he is suspected, or

"498A. (1_) The amount of every bond executed under this Chapter shall be ﬁxed with due regard to the circums- tances of the case and shall not be excessive.

(2) The High Court or Court of Session may direct that the bail required by a police oﬂicer or Magistrate be reduced."

39.9. The suggestion for directing the release of a person on bail prior to his arrest (commonly known as "anticipatory 1 See 36th Report.

3 See 36th Report. . .

.,4/2;.'-' ' Direction for grant of bail tn person apprehend-

ing arrest.

321

bail") was carefully considered by us. Though there is a con- ﬂict of judicial opinion about the power of a Court to grant anticipatory bail, the majority view is that therp is no such power under the existing provisions of the Code. ~. The necessity for granting anticipatory bail arises mainly because sometimes inﬂuential persons try to implicate their rivals in false causal for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. In recent times, with the accentuation of political rivalry, this tendency is show- ing signs of steady increase. Apart from false cases, where there are reasonable grounds for holding that a person or' an offence is not likely to abscond, or otherwise misuse his liberty while on bail, there seems no justification to require him first to submit to custody, remain in prison for some days and then apply for bail.

We recommend the acceptance of this suggestion. We are further of the View that this special power should be conferred only on the High Court and the Court of Session, and that the order should take effect at the time of arrest or thereafter.

in order to settle the details of this suggestion, the following draft of a new section is placed for consideration :--

"497A. (1) When any person has a reasonable appre- hension that he would be arrested on an accusation of luv- ing cornniizted a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section. That Court may, in its discretion, direct that in event of his arrest, he shall be released on bail.

(2) A Magistrate taking cognizance of an offence against that person shaEl, while taking steps under section 204(1), either issue summons or a bailable warrant as in-

dicated in the direction of the Court under sub--sect.ion (1).

(3) If any person in respect of whom such a direction is made is arrested without warrant by an officer in charge of a police station on an accusation of having committed that offence, and is prepared either at the time of arrest or at any time while in the custody of such oﬂicer to give bail, such person shall be released on bail."

We considered carefully the question of laying down in the statute certain conditions under which alone anticipatory bail could be granted. But we found that it may not be practicable to exhaustively enumerate those conditions; and moreover, the laying down of such conditions may be construed as [xe- judging (partially at any rate) the whole case. Hence we would leave it to the discretion of the court and prefer not to fetter such discretion in the statutory provision itself. Supetix Courts will, undoubtedly, exercise their discretion properly, and not make any observations in the order granting anticipatory bail which will have a tendency to prejudice the fair trial of the accused.

Section 499.

Sections 500 to 502.

322

39.10. With reference to section 499, various suggestions'-2 have been received by us regarding the procedure for veriﬁca- tion of sureties, e.g., that in every case the court must make an inquiry regarding suﬂiciency of the sureties; or that house tax and income tax receipts should be enough to vouch for solvency of the sureties. In our opinion, these are matters which can be more conveniently dealt with by rules and practice rather than by elaborate provisions in the Code. We do not, there- fore, suggest any amendment in this respect.

In consequence of the recommendation3 regarding grant of bail with a condition, it is desirable to add the following sub- section in section 499 :--

"(1A) Where any condition is imposed for the release of any person on bail, the bond shall also contain that condition.

39.11. No changes are needed in sections 500 to 502.

1 Suggestion of the Intelligence Bureau, Home Ministry F.3(2)/55-L.C. Pt. IV, S. No. 122.

2F.3(2)/55-L.C. Part II, S. No. 33. page 99 (Suggestion of the Government of U.P. ) .

3See para. 39. above.

CHAPTER XL COMNIISSIONS FOR THE EXAMINATION OF WITNESSES 40.1. Chapter 40 lays down the procedure for issuing com- missions for the examination of witnesses and for the execution of such commissions. Different provisions are made in the Chapter for witnesses in the territories to which the Code extends, witnesses in areas in India but outside those territories and witnesses outside India. It also provides for the execution in India of foreign commissions.

40.2. Section 503 is the main section under which a com- mission may be issued when the examination of a witness is necessary for the ends of justice and his attendance cannot be procured without an amount of delay, expense or inconvenience which under the circumstances of the case, would be unreason-

able. It has been suggested1 that the following proviso may be added to section 503 :--

"Provided that the accused's counsel is present and the expenses of the same are borne by the prosection or the Government."

As regard presence of the pleader, the Code already contains a provision? As regards expenses, while we do not think that an order for paying expenses should be made a condition prece- dent to the issue of a commission in every case, we do appre- ciate that the Court should have a discretion to require payment by the prosecution of such expenses-" as the Court considers reasonable to enable the accused and his counsel to participate in the examination on commission. Such payment should however be conﬁned to cases where a commission is issued for the exami-

nation of a prosecution witness. We recommend the addition of a sub-section (2) as follows :--

"(2) The Court may, when issuing a commission for the examination of a witness for the prosecution, direct that such amount as the Court considers reasonable to meet the expenses of the accused, including the p1eader's fees, be paid by the prosecution."

40.3. While the issue of a commission is discretionary under the main paragraph of section 503, the proviso makes it manda- tory where "the examination of the President or the Vice-Presi- dent or the Governor of a State as a witness is necessary for the ends of justice." The principle on which the proviso seems to be based is that the head of the State should not be summon- ed in Court. The proviso is mandatory. Even if the President, the Vice-President or the Governor wishes to be examined in 1Home Ministry File No. 25/5/54-Indl. Appendix II, Item 43 (Sag- gestion of Shri P. S. Sundarayya).

3 Section 506(2).

3For the present law as to costs, see Abdul. Aziz, A.I.R. 1958 Ray'.

27. ' ' ' 'I Introductory.

Section 503 pro-

vision for pay-

ment of expenses of accused.

Section 503, prov so.

Section 504.

Section 505 revised.

Execution '- of commission.

Sections 506 to 508A.

324

the Court, that cannot be done. The proviso was enacted in 1954 to override the View taken in a Punjab case1 in which reiusal by a special judge to issue a commission for the exami- nation of a GOVC1'.".OI' was upheld by the High Court. No change is necessary in the proviso.

40.4. Sub-section (1) of section 504 provides that a com- ;:ii;<sion for the examination of a witness in the territories to whic the Code extends shall be directed to the District Magis- trate or Chief Prejdency Magistrate within the local limits of whose jurisdiction the witness is to be found. In view of the ~:e-naration of powers such commissions should be issued to the Chief Judicial Magistrate. Even in the very rare cases in which no llrecutive Magistrate thinks it proper to issue a commission, it can be addressed to the Chief Judicial Magistrate. Subsection (1) may be Ill en/.'l:d to read as follows :-----

"(l) If the witness is within the territories to which this Code extends, the commission shall be directed to the Chief Metropolitan Magistrate or Chief Judicial Magistrate, as the case may be, within whose local jurisdiction the witness is to be found."

No amendments are needed in sub-sections (2) and (3) of the section.

40.5. In section 505(1), which relates to the execution of commissions, for "District Magistrate", it will be necessary to substitute "Chief Judicial Magistrate", as a consequence of the change proposed' to section 504(1). There seems to be no need for a slightly diﬂerent wording in sub~section (2) and the two sub-sections may be combined.

Accordingly, section 505 may be follows :--

"SOS. Upon receipt of the commission, the Chief Metropolitan Magistrate or Chief Judicial Magistrate, or such Metropolitan or Judicial Magistrate as he may appoint in this behalf, shall summon the witness before him or pro- ceed to the place where the witness is, and shall take down his evidence in the same manner, and may for this purpose exercise the same powers, as in trials of warrant cases under this Code."

The remaining sections of this Chapter do not call for any comments or amendments.

revised to read as 1State v. Krishnaswami, A.I.R. 1954 Punjab 294. 9 Sec para. 40.4 above.

+ ii CHAPTER XLI SEECEAL RULES OF 41.1. The framers of the Code were aware that the evidence of certain experts in the service of Government would be tre- qucntly required in criminal courts, and if these experts were to be treated as ordinary witnesses whose sworn statement in court alone could be legal evidence, they would be spending most of their time giving evidence. Also, the number of such experts was so small that they could not be always conveniently spared for attending the courts. Special rules of evidence were therefore framed for them. They are placed in Chapter 41 of the Code.

In framing them, the cardinal rules of evidence have been kept in view and the number of experts kept at the minimum. Thus, according to section 509, a civil surgeon or other medical witness is now exempted from appearing in the Court of Session if he has given evidence in the committing court; and his recorded statement in that court is by a special rule made evidence at the trial, the safeguard being that the trial court (i.e., the Court of Session) can, if it thinks ﬁt, summon and examine the witness. By section 510, the report of a Chemical Exarn1-er is made evidence without the Chemical Examiner being at all called to give evidence in Court, again the safeguard being that he can at the discretion of the Court be called and examined. The same rule applies to the report of the Chief Inspector of Explosives, the Director of Finger Print Bureau or an ofﬁcer of the Mint. Various suggestions have been made to include other experts in this list. It is, we think, necessary that we proceed in this direction with some caution, for, although past experience does not show any abuse of these special provisions, it would be unwise to make them general.

41.2. Regarding section 509, which enables the Court of Session to accept as evidence the statement of a medical witness made in the committing court, it has been suggested1 that the time of such experts could be further saved, if the report could be treated as evidence without the expert's appearance in Court. We do not think there is anything to be gained by such a procedure. In a serious case, medical evidence can be all important, and a court will rarely ﬁnd it unnecessary to call the medical witness to court to give oral evidence. On the other hand, there is consi- derable danger that the opinion of such experts may in such cir- cumstances become some-what irresponsible. An extreme sugges- tion? made is that the report of a medical witness should be made conclusive evidence, a suggestion not worthy of serious considera- tion.

1 Suggestion received through the Home Ministry----F. 3(2)/55-L.C. Pt. V, C. No. 200.

2Suggestion received through the Home Ministry---F. 3(2)/55-L.C. Pt. V. C. No. 200.

Introductory.

Section 509.

Suggestions a to include reports of other experts in section 510.

Recommendation in 25th Report.

326

41.3. Regarding section 510, the main suggestion is that many other experts could with advantage be included, so that they could be saved the need of appearing in Court. Thus, suggestions have been received for adding the following oﬂicers to those mentioned in section 510(1) :--

(i) Technical staﬂ of the Veterinary College, Mathural (in relation to reports as to whether ﬂesh is of a cow or other animal with reference to the Prevention of Cow Slaughter Act);

(ii) Government handwriting experts2 and Government medical oiiicers3 (the latter in relation to injuries report and post mortem report);

(iii) Director--General of Central Forensic Laboratories and Directors of State Forensic Laboratoriesf' (It is stated that though the term "Chemical Examiner" may include a good portion of the work of the Director of Forensic Labo-

ratory, there may be other investigations like ballistics, phy-

sics or biology, which may not call for chemical examina- tion);

(iv) Director and other technical experts of the Haﬁkeins Institute?'

(v) Any expert of the Finger Print Bureau, instead of only the Director.

41.4. As we have said", it would not be wise to make this special provision applicable to every expert. The present provision takes in only those experts who, because of their small number and situation, require special treatment, and we are satisﬁed that this consideration alone would justify it. In the prese-nt list are :--

(i) any Chemical Examiner or Assistant Chemical Examiner;

(ii) the Chief Inspector of Explosives;

(iii) the Director of the Finger Print Bureau; and

(iv) any oﬂicer of the Mint.

The report of any of these experts on any matter duly submitted to him for examination or analysis is good evidence. We think that responsible ofﬁcers in the Government Security Press and the oﬁice of the Controller of Stamps stand in a very similar position. The Commission has, in an earlier Report,7 recommended that a new section (section 509A) should be inserted in the Code, 1 Suggestion of Government of U.P., received through the Home Ministry--F.3(2)/55-L.C. Pt. VI, S. No. 308.

2F. 3(2)/55-L.C. Pt. II, S. No. 33, page 99.

3Suggesti0n of Shri S. K. Sengupta District Prosecutor, Bihar. F. 3(2)/55-L.C. Pt. I, S. No. 72.

4Resolution of Conference of Inspectors-General of Police and com- ment of the State Government of Madhya Pradesh thereon (received through the Home Ministry). , 5Suggestion of the Government of Bombay, received through the Home Ministry---F. 3(2)/55-L.C. Pt. I, S. No. 3.

45See para. 41.1. above.

725th Report (Report on Evidence of Otﬁcers about forged stamps, currency notes etc. ) .

A .P_ 327 covering the case of such ofﬁcers. The need for a separate sec- tion arose because the Commission felt it necessary to provide that if any such expert is called to court, he should not be com- pelled to disclose any conﬁdential information on which the report might be based, the resaon being that the disclosure of such infor- mation may facilitate the forging of currency notes or revenue stamps. The same consideration applies to the officers of the Mint.

41.5. We propose that the new section 509A should be in the following terms :--

"SOQA. (1) Any document purporting to be a report under the hand of any such gazetted oﬂicer of the Mint or of the India Security Pressl (including the office of the Con- troller of Stamps) as the Central Government may, by noti- ﬁcation in the Otlicial Gazette, specify in this behalf, upon any matter or thing duly submitted to him for examination and report in the course of any proceeding under this Code, may be used as evidence in any inquiry, trial or other pro- ceeding under this Code, although such oﬂicer is not called as a witness.

(2) The Court may, if it thinks ﬁt, summon and examine any such officer as to the subject-matter of his report:

Provided that no such oﬂicer shall be summoned to produce any records on which the report is based.

(3) Without prejudice to the provisions of sections 123 and 124 of the Indian Evidence Act, 1872, no such ofﬁcer shall, except with the permission of the Master of the Mint, the Controller of the India Security Press or the Controller of Stamps and Stationery, as the case may be, be permitted----

(a) to give any evidence derived from any unpublished records on which the report is based; or

(b) to disclose the nature or particulars of any that appli-

ed by him in the course of the examination of the matter or thing."

41.6. Section 510 will deal with other expert reports where security is not a consideration. We propose to add two more experts in that list, namely,----

(i) the Director of the Haﬂkeins Institute, Bombay; and

(ii) the Director of the Central Forensic Laboratory.

We are not convinced that handwriting experts employed by Government should be treated in the same way. Their evidence is almost always subject to controversy and no special value can be attached to their reports merely because the expert is employed by Government. Nor can we justify the extension of this provi- sion to cover ordinary medical or veterinary experts. The pro- cedure here is very special and must be conﬁned to special experts.

1'I'he Controller 01' Stamp: who is in charge of distribution is a part of the India Security Press. Printing of stamps is also done there.

33MofHA/69 New section 509A proposed.

Evidence of oli-

cers of Mint etc. Section 510 rc-

vised.

Reports of cer-

tain Government scientiﬁc experts.

Section 510A and

511. Section 512.

amended.

3'28 In an earlier Report', the Commission noted that section 510(2), as amended in 1955, makes it obligatory for the Court to summon the Chemical Examiner or other oﬂicer mentioned in sub- section (1), if either party so desires. The Commission regarded this provision as unsatisfactory and recommended that it should be left to the discretion of the court to summon such oflicers. We agree with this recommendation and are suggesting an amendment to implement it.

Section 510 may be revised to read as follows :--

"S10. (1) Any document purporting to be a report under the hand of a Government scientiﬁc expert to whom this section applies, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code, may be used as evidence in any inquiry, trial or other proceeding under this Code.

(2) The Court may, if it thinks ﬁt, summon and examine any such expert as to the subject-matter of his report.

(3) T his section applies to the following Government Scierttiﬁc experts, n.amcIy,----

(a) any Chemical Examiner or Assistant Chemical Exa-

miner to Government;

(b) the Chief Inspector of Explosives;

(d) the Director, of the Haﬁkeins Institute, Bombay,-

41.7. No change is needed in sections 510A and 511.

41.8. Section 512 deals with a case which cannot be tried because. the accused person has absconded and there is no prospect of his arrest in the near future. A Magistrate competent to try or commit him for trial can, in such circumstances, record the evidence produced by the prosecution; and that evidence can be later used at the trial of the accused when he is arrested, in case the witness who made that statement is not available to give evi- dence. This provision has proved useful. and does not need amendment.

The situations in which evidence recorded under sub--sections (1) and (2) of section 512 can be later utilised are described in different terms in each sub-section, but it appears that the distinc- tion is deliberate. Sub-section (2) is meant for a case where the offender is unknown and the offence is a Serious one. We do not propose to disturb the distinction, We propose, however, that in sub--section (1), the words "cannot be found" be added after the words "if the deponent is 1 14th Report, Vol. 2, pages 848-849, para, 26.

1'-There are, at present, three Central Forensic Science Laboratories at New Delhi, Calcutta and Hyderabad, and State Forensic Science Laboratories at several places.

1195! V... _.

dead or is incapable of giving evidence", in order to make the provision comprehensive', and also, for the word "attendance", the word "presence" be substituted. These two amendments will bring the wording of this provision into conformity with that of section 33 of the I§\.'iCl<:n~:e Act.

It was further suggested to us that the situation where the deponent is kept out of court by an adverse party should also be covered by this provision. It would obviously be difficult to determine who is an adverse party and there would be allega- tions and counter--allegations which are bound to create diﬁiculties.

This suggestion was therefore not accepted.

Introductory.

Section 514(1) CHAPTER XLII BONDS 42.1. Chapter 42 of the Code contain provisions for bonds, or rather for the forfeiture of bonds, while the provisions for the execution of bonds of various kinds are to be found scatter- ed all over the Code. The main provision regarding forfeiture is in section 514, which, in substance, says that if a bond is fer- feited to the satisfaction of the court concerned, the penalty mentioned in the bond may be recovered from the party liable to pay it, and the mode of recovery mentioned is attachment and sale of movable property, and, failing that, by sending the party concerned to civil iail for six months.

42.2. Sub-section (1) of section 514 empowers the Court by which a bond has been taken or a Presidency Magistrate or Magistrate of the ﬁrst class, to order its forfeiture, if satisﬁed that its terms have been violated; and when the bond is for appearance before a Court, the Court has similar powers. A doubt has sometimes arisenl whether, in the case of a bond for appearance in a particular Court, that Court alone can for- feit it or whether any Magistrate of the ﬁrst class has the power. As a matter of policy, we think that this power should, in the case of a bond for appearance before a Court, be conﬁned to that Court, as that Court is in the best position to judge the gravity of the breach of condition causing forfeiture. Occasion- ally, some doubt has also arisen? whether a bond for appearance before a Court can be forfeited by the order of a Court to which the Case was later transferred. It is only proper that the transferee Court should have the same power to deal with such :1 bond as the ﬁrst Court had when the case was in that Court. We propose to clarify both these points by a suitable amend- ment.

It has been suggested?' that, apart from the bonds mentioned in the Code----and they are mainly for appearance in Court or for good behaviour or for keeping the peace----a provision should be made to authorise the police to take a bond for the production of movable property in Court in case the property, because of its bulk or other reason, cannot conveniently be removed from where it happen to be. The normal procedure' is that the police seizing any property must report the seizure to a Magistrate who can then make such order as he thinks ﬁt. It may, however, happen in certain circumstances that the pro- perty cannot be at once seized in a physical sense, and it may 1Hardwari La! v. The State, A.l.R. 1959 All. 751.

3l\1m"taqi-Mud-Din. A.l.R. 1926 All. 297; Bnllahh Das. A.l.R. 1943 Born. 178, 179 (D.B.); Karali Cliaran Chatrerjee. A.I.R. 1949 Fat. 196,

197. 3Suggestion of the Government of Madhya Pradesh received through the Home Ministry [F. 3(2)/55-L.C. Pt. IV, S. No. 65].

4 See section 523.

331

be useful to provide that the police may let it remain in the ct:st..,,.' of a surety on his executing a bond to produce the pro- perry in Court when asked to do so. Once such a provision is made, it would be quite simple to provide for the forfeiture of the bond. We suggest, therefore, that section 523 should be suitably amended to provide for such a bond. As far as section 514(1) is concerned, any such bond should be equated to a bond for appearance before a Court.

We may mention two more suggestions which we have not found it necessary to adopt. One is1 that a provision should be made for the forfeiture of a bond which Government some- times takes under section 401 from a person whose sentence Government decides to suspend or remit. Such a bond is not mentioned in the Code, nor is it taken by a Criminal Court, and it wouid be hardly proper to provide for its forfeiture through a Criminal Court. The second suggestion is that the liability or :1 surety in respect of a bond should not be enforced if the principal has in respect of that bond paid the penalty." We do not think. however. that the ordinary rule?' that the liability of a surety should be co-extensive with the principal's liability should be applied to criminal jurisdiction, where the object of a bond is different.

42.3. We note that a Maharashtra amendment' of the Code has replaced the existing sub--sections (2) and (3) of section 514 by a simple provision which equates the procedure for recovery of the penalty under a forfeited bond with the procedure for the recovery of a ﬁne imposed by a Court. We propose to adopt this amendment in the Code.

42.4. We propose accordingly that sub--scctions (1), (2) and (3) of section 514 be replaced by the fo1lowing:-----

"(1) Where a bond under this Code is for appearance, or for production of property, before a court and it is proved to the satisfaction of that Court, or of any Court to which the case has subsequently been transferred, that the bond has been forfeited, or where, in respect of any other bond under this Code, it is proved to the satisfaction of the Court by which the bond was taken, or of any Court to which the case has subsequently been transferred. or of the Court of any Magistrate of the first class, that the bond has been for-

feited, the court shall record the grounds of such proof, and may call upon any person bound by such bond to pay 1M, Ham' v. Deputy Commissioner, A.I.R. 1953 Pat. 302, 305. The case went up to the Supreme Court on appeal: A.I.R. 1955 S.C. 478; (1955) 2 S.C.R. 78; but this point was in issue. As to another case in \Vl'!1§l'l) such a bond was taken, see Sohan Singh, A.I.R. 1955 Punj. 156 (D. . .

'~'See Narain Sahai v. Emp., A.I.R. 1946 All. 333, 336, which conﬂicting decisions on the point are discussed.

3 See section 128, Contract Act.

4 See Maharashtra Act 22 of 1960, section 2.

(F.B.) in Section 514, (2) and (3).

Revised sub-seo-

tions (1) and (2).

Section 514 (4).

Section 515.

332

the penalty thereof or to show cause why it should not be paid.

}':'.x'p;':maz;'0n.---A condition in a bond for appearnace, or for production of property, before a Court shall be construed as including a condition for appearance, or as the case may be, for production of property, before any Court to which the case may subsequently be transfer- red.

(2) if sufficient cause is not shown and the penalty is not paid, the Court shall proceed to recover the same as it' such penalty were a ﬁne imposed under this Code."

42.5. Sub-section (4) of section 514 provides that if the penalty is not paid and cannot be recovered by attachment and sale of property, the Court may order the person, who is bound under the bond, to imprisonment in civil jail for six months. We feel that imprisonment in these circumstances is out of accord with modern thinking and propose to omit sub-section (4.7.

42.6. Section 515 provides for appeals against orders passed under section 514 by Magistrates. These are, at present, made appealable to the District Magistrates, but in view of the sepa- ration of the judiciary we consider that all such appeals should lie to the Session Judge.

Section 51.5 may accordingly be revised to read as follows :---

"$15. All orders passed under section 514 by any Magistrate shall be appealable to the Sessions Judge, or, if not so appealed, may be revised by him."

Y CHAPTER XLIII DISPOSAL OF PROPERTY 43.1. Regarding the disposal of property, Chapter 43 pro- vides tor the passing of interim orders for the custody and disposal oi the property pending inquiry or trial and of ﬁnal orders at the conclusion of the inquiry or trial.

The property in respect of which such orders can be passed may be--(i) property regarding which an offence appears to have been committed, or (ii) property which appears to have been used for the commission of an offence, or (iii) any property or document produced before the court or in its custody.

There are detailed provisions in regard to property seized by the police. Such property, again, may be of various classes, such asl, articles found upon search of a person arrested? pro» perty alleged or suspected to be stolen, or~"- property found under circumstance which create suspicion of the commission of an offence.

The modes of disposal of the property are, again, numerous, and the particular mode is, for obvious reasons, left to the discretion of the court. Thus "disposal" of the property may be by destruction. conﬁscation delivery to any person claiming to be entitled to possession of the property. restoration to per- son dispossessed, or sale. etc. 43.2. Section 516A provides that when any property regard- ing which an offence appears to have been committed or which appears to have been used for the commission of any offence, is produced before any Criminal Court during any inquiry or trial, the court may make such order as it thinks ﬁt for the proper custody of the property pending the conclusion of the inquiry or trial. The court is empowered to make such interim order because, in some cases, it becomes necessary to preserve the property either as evidence' or in order to make a proper order after the case is over. ' 43.3. In a sugg-:stion5 received by us, it is stated that some- times property attached (tie. property seized) in crirninalcases of cheating. criminal breach of trust etc. is attached by civil courts aiso and appropriated in execution of decrees collusively obtained lfiee sections 51. 53 and 153(2).

25cc sections 51, 54(1), fourthly, 94(1), 98(1), 165(1) read with M3 and 551'}. The chronoiogical order is sections 54. 51, 550 and 528. Sec cliscussion in Kasruri Ln], .1-'\.l.R. 1965 SC. 1039, 1043, (1965) 1 FLOR. 375. As to procedure. see section 103(2).

3'?cc- srrctizms 94?!) to 99A, 165 and 554. As to procedure see wcction l(l3. ..

1' See i?nfr.*rzdra \.', .'-'0-'rig. A.l.R. 1931 Cal. 455, 456 (Rankin CJ. and Costello 1.).

5F. 4(2)/S5-L.C. Part I, S. No. 59 (Suggestion of District Govern- ment Counsel. Moradabad).

Introductory.

Section 516A.

Suggestion to bar attachment by civil court in cer-

tain cases.

Documentary and material exhibits in_ the inquiry or trial.

Amendment section 516A.

Section 517(1).

Disposal of money.

of 334 against the accused. It is suggested that it is necessary to pro- tect such money from attachment by civil courts, and for this purpose provision should be made in section 516A, that pend- ing the conclusion of the inquiry or trial, such property shall not be liable to attachment under orders of a civil court, and alter the conclusion of the trial, it shall be subject to the orders of the criminal court.

We are not in favour of the suggestion. The correct pro- cedure in such cases would be for the complainant or inform- ant (or other person claiming to be the owner) to ﬁle a claim or objection under the Code of Civil Procedure} in the pro- ceeding for attachment. There is no need to amend section 516A, for the purpose.

43.4. Section 516A does not cover all property that comes into possession of the Court for the purposes of an inquiry or trial. For instance, property which is produced merely as evidence of crime is not covered. In many States, express provision for the disposal of such property is not necessary since the High Court Rules provide for interim custody and ﬁnal disposal of all documents and articles produced before any Court for the purpose of evidence. These are marked as documentary exhibits or material exhibits. But it will be noticed that this class of property is expressly mentioned in section 517(1). There may be some States where the High Court Rules do not provide for the custody and disposal of such property. We therefore suggest that section 516A should be made comprehensive so as to include material and docu- mentary exhibits in the case which may not have been used for the commission of the offence or regarding which no offence may appear to have been committed.

43.5. The opening clause of section 516A may accordingly be amended to read----"When any property is produced before any criminal court during any inquiry or trial".

43.6. Section 517 empowers the Court to make, at the conclusion of an inquiry or trial, orders for the disposal of any property or document (i) produced before it, or (ii) in its custody, or (iii) regarding which any offence appears to have been committed, or (iv) which has been used for the commission of any oﬂence. The terms of the section are wider than those of section 516A. The four classes of property are listed disjunctively, so that, provided the inquiry or trial has come to an end, and the property falls within any one of the four categories, the Court has jurisdiction to pass orders under this section?

43.7. Diﬁiculties arise in practice when a Criminal Court has occasion to pass orders under section 517 for the disposal of money, e.g. bank notes or currency notes. Where there is doubt as to who is really entitled to possession, and the Criminal 1 See Order 21, Rule 58, Code of Civil Procedure, 1908.

2 See Bhimii v. Emp., A.I.R. 1944 Nag. 366, 367. The history of the section is traced in "Disposal of Property" (1903) 8 C.W.N. (Journal) 43, which criticizes Surendra V. Rai Mohan, I.L.R. 30, Cal. 690, 692.

335

Court makes an order to the best of its judgment leaving the doubtful cuestion of title to be decided by the Civil Court, the property may disappear before an effective decision of the Civil Court is obtained. To quote from a judgment1 of the Andhra Pradesh High Court :--~ "In cases like the present. where it is extremely doubt- 1'ul whether the petitioner and his §o--accu::.ed are really entitled to possession of the currency notes, if they should be, in pursuance of the normal rule, allowed to take back 'these notes, the persons who might really be entitled there- to may, even if they succeed in the Civil Court, be unable to recover the property from the petitioner. The property may, in the meanwhile, vanish into thin air. It is doubtful even it' the Civil Court could direct the dis- posal of these moneys with it, pending adjudication of the right to them.

Ithink it is desirable that the Criminal Procedure Code should make a provision applying to cases like this one, for instance. enabling a Magistrate to keep the pro- perty with him for a deﬁnite period of time, pending the filing of a civil suit relating to it, and direction him to deliver the property to the Civil Court on being asked by that Court, after the institution of the suit. There may alternatively be a provision placing it at the dsposal of the Government, pending a suit. If very valuable movable property is, under the general rule, returned to persons who may not be really entitled to it, serious loss may result to the true owners, because it can disappear very easily."

In that case, the High Court rejected the argument that such a power already existed, and dissented from the cases? cited in support of that argument.

43.8. A Bar Council has suggested that section 517 to 520 should be simpliﬁed on the following lines. In cases of convic- tion of the accused, the property should be directed to be hand- ed over to the owner. If there is a dispute as to ownership, the court should hold a summary inquiry and, if unable to come to a decision, refer the matter to a civil court whose decision will be followed. If the trial ends in acquittal, the property should be handed over to the person from whose possession it was taken. But if such person was an accused and he disclaims any ownership of property, the property should be handed over to the owner. In such a case security should be taken from the party to whom it is given. The appellate or revisional court may be statutorily required to pass an order either of conﬁrmation or reversal of the order passed by the trial court when such court disposed of the main criminal case. A right of appeal may be given to the party aggrieved by the __. -,.__-A 1TenaIi Sitialr V. State, A.I.R. 1957 A.P. 1024, 1026 paragraph 11 (Bhimasankaran I.) 9Muttiah v. Vairaperumal A.I.R. 1954 Med. 214; Kedar Nath V. Mohamed Siddiq A.I.R. 1924 Cal. 455, 456.

Suggestion _ by a Bar Council.

Principles regard-

ing disposal.

C0mmission's V'lcV\ 5.

Section 517 (2).

336

order, in case no appeal or revision petition is ﬁled against the conviction or acquittal of the accused.

43.9. The principles to be deduced from reported decisions regarding the Court's power under this section may be sum- mariscd as follows :--

(i) The ordinary rule is, that if the accused is acquitted 0; an otfencc regarding property, the court must restore the property to him if it was recovered from his possession.' The criminal court should not enter into questions of title in respect of pro-

petty.

(ii) The rule is the same as regards cash and currency notes."

(iiii) Ordinarily, the court would not be justified in de- taining the property till the decision of the Civil Courts?

(iv) An order for indeﬁnite detention in court custody or in the custody of one of the parties conditional on a civil suit. would not be desirable.' The various possible courses to be adopted were analysed in a Madras caseﬁ

(v) Even a conditional order of restoration does not seem to be contemplated in ordinary cases. The contrary view was. however, taken in one case.' 43.10. In our opinion, it is not advisable to insert a pro- vision as suggested in the Andhra Pradesh case. Such a pro-

vision would go against the scheme of the Code, which con-

templates ﬁnal orders as to disposal by the criminal court either under section 517 or under section 518 read with section 523. It may be left to the discretion of the aggrieved party to move the civil court and obtain interim protection of the property, till ﬁnal adjudication about its title. For the same reason we 'rc not in favour of the radical revision of the existing section suggested by the Bar Council.

43.11. Sub-section (2) of section 517 provides that when a High Court or a Court of Session makes an order under sub- section ( 1) cannot deliver the property to the person entitled through its own oﬂicers, the Court may direct the order to be carried into effect by the District Magistrate. Since a 1Sat/ar A/i V. Afzal Mnhammed, (1927) I.L.R. 54 Cal. 283, 285; AIR. 1927 Cal. 532; Srirzivaramoorllii v. Nnrasimhulu Naidu, (1927) l.L.R. 50 Mad. 916. 919: A.I.R. 1927 Mad. 797. 798.

3P1z5/ikar Sfngh v. State, A.'i.R. 1953 SC. 508; In re Pandlmriah, Y.L.R. 40 'Rom. I86; A.l.R. 1915 Born. 265, distinguished in Akshov Kumar v, Nay;-z Iﬁwrizar AIR. 1940 Cal. 346.

3Ka.s':'rrmz V. Mak/zunji Dwain'-:41 Pra.md_ A.I.R. 1937 Pat. 591, 592. Kmilluz Ma! v. Hinlaclml Pradesh Adniirzirrration, A.I.R. 1963 H.P. 45 «Reviews case--law).

467. Obszervations in Mr)/zrl. Yusuf v. Kris/1:11! Fvloluzn. A.I.R. 1938 Cal, 17, 2-').

5Mutr'u'ali V. Vairrtperunzu/, A.l.R. 1954 Mad. 214, 215 (Reviews case-law).

6Ch(?n,t,7tZ Reddi V. Ramaswamv. A.I.R. 1915 Mad. 588.

337

High Court seldom tries a case itself and the ordinary original jurisdiction of High Courts is to be completely abolished, this provision is practically unnecessary for them. A Sessions Court also should have no dilliculty in getting its order for the delivery of property to a speciticd person effected through its own officers. We therefore promise to omit sub-section (2).

43.12. In section 517(3), the period of one month may 1»: increased to two ':=iontl'.s, since the period of limitation is now more than one n*io.1t'n for certain criminal appeals. Though in s1'-me case: it is ')8 days, an increase to two months will sttllicc to enable :1 party aggrieved by an order passed under ~et 2 527(1) 0 obtain stay or modiﬁcation from the appellate or rewisiorial Court. The appeal mentioned in section 517(3) will include an independent appeal against the order regarding disposal of property as well as an appeal in the main case. No elaboration in this respect is necessary here. in view of the re- «_:ratt of section we are proposing below.

43.13. Subwzcction (4) is put in a negative form and states; that nothing in this section shall be deemed to pro- hibit any Court from delivering any property etc. The object is to enable a Cour: t) deliver the property to any person on his furnishing sutﬁcient security to produce the property if and when required. it appears. desirable to put this in the positive tom). Since an order made under sub-section (1) is liable to be modiﬁed or set aside in revision as well as on appeal, the words "or in rcviscn" should he added at the end.

43.14. Section 518 empowers a Court, instead of inquiring into the matter and passing a deﬁnite order under section 517 (1), to send on the property to the district Magistrate or to Ll Sub--divisional Magistrate, and the latter is authorised to dis-- pose of the property in the manner provided in sections 523 to 525. Funcllt'-{ls under the latter sections are at present exercisable by ExecU.ti'.'e as well as Judicial Magistrates, but since these are c:sseiitialYy judicial functions, we are proposing that the police should report any seizure of property to the appropriate Judicial Magistrate and not to an Executive Magis-

trate. Consequently. the delegation under section 518 should also he to the Chief Judicial Magistrate instead of "to the District Magistrate or to a Sub--divisional Magistrate". With this change it i: clear that the delegation should be available only to a Court of Session and not to any subordinate Court. Instead o." a scnarate section, this provision for delegation should properly he maﬁa in section 517 itself.

-*§3.l5. It is nccoxlingly proposed that sections 517 and 518 iiigxjy ire C0i'Ilbl?'..".l and revised as follows :---~ "5l7. (l l Wlit;-n an inquiry or 3 trial in any Criminal Court is concluded. the Court may make such order as it thinks ﬁt for the disposal, by destruction. conﬁscation or delivery to any' oerson claiming to be entitled to possession thereof or othezrvrise, 0." 'any property or document pro- duced before it or in its custody, or regarding which any offence appears to have been committed. or which has been used for the commission of any offence.

Section 517 (3).

Section 517 (4).

Section 518. M. Section 517 and 518 combined and revised.

Order for dispo-

sal of property at conclusion of trial.

Section 519.

Section 520 con-

ﬂict of decisions.

Commissions' view-independent right of appeal necessary.

338

(2) An order may be made under sub-section (1) for the delivery of any property to any person claiming to be entitled to the possession thereof, without any condition or on condition that he executes a bond, with or without surities, to the satistaction of the Court, engaging to res- tore such propcriy to the Court if the order made under 'sub-section (if; is modiﬁed or set aside on appeal or revision.

(3) A Court of Session may, instead of itself making an order under sub-section (1), direct the property to be delivered to the Chief Judicial Magistrate who shall there- upon deal with it in the manner provided in sections 523, 524 and 525.

(4) Except where the property is livestock or is sub- ject to speedy and natural decay, or where a bond has been executed in pursuance of sub-section (2), an order made under sub-section (1) shall not be carried out for two months. or when an appeal is presented, until such appeal has been disposed of.

(5) in this section, the term "property" includes, in the case of property regarding which an offence appears to have been committed, not only such property as has been originally in the possession or under the control of any party, but also any property into or for which the same may have been converted or exchanged, and anything acquired by such conversion or exchange, whether imme- diately or otherwise."

43.16. No changes are required in section 519.

43.17. The language of section 520 is somewhat ambiguous, and there is a conflict of judicial decisions1 on its interpretation. One view is that no independent right of appeal is conferred on any party against an order passed under any of the three preceding sections, but where a regular appeal is ﬁled against the judgment of the trial court, the appellate court, while dis- posing of the appeal, may exercise the powers conferred on the trial court by those sections. The other view is, that section 520 confers an independent right of appeal on a party aggrieved by an order passed under those sections. irrespective of whether the judgment of the trial court is or is not challenged in appeal. There is a similar conﬂict of decisions? on the interpretation of section 522(3).

43,172.. Y!' there was no intention to confer an independent right of appeal on an aggrieved party, there would have been no necessity to make -an express provision as in section 520. Every appellate court has the power to pass consequential and incidental orders by virtue of clause (d) of sub-section (1) of 1S'hnrfI((1'dz',»v V, Siraiud(I't'n. AIR. 1961 Orissa 121, 123. (Reviews cases): S/ieodrzc v. Pir Dan, A.I.R. 1963 Pun. 167. 168 (Reviews cases):

Shantaram v. State. A.}.R. 1961 M.P. 1, 2; Ram Abhilakh V. The State. A.I.R. 1961 All. 96.

2SavIarnm v. Dhyaneshwar, A.I.R. 1942 Born. 148 (Reviews cases); Suhramania Ganesan, A.I.R. 1950 Mad. 665 (Reviews cases); Han' Sahu, A.I.R. 1951 Orissa 30 (Reviews cases).

339

section 423. Similarly, a court of revision, by virtue of section 439(1), has the same powers as an appellate court; and hence where the main judgment of the trial court is challenged by way of revision, that court also may pass consequential and inicidcntal orders for disposal of the property, even though such orders may involve modifying or altering the order of the trial court passed under section 517.

Apart from these considerations, we think that an indepen- dent right of appeal must be given, because the party aggrieved by an order under section 517, 518 or 519 may not be the same as the party aggrieved by the main judgment. Thus, if in a prose- cution under section 411 of the Indian Penal Code, the case ends in acquittal and the trial court directs the alleged stolen property to be returned to the accused, the State may not care to prefer an appeal against the order of acquittal. But the informant may desire to chailcngc the order for disposal of property on the ground that it was his property and wrongfully taken away from his possession. Unless an independent right of appeal under section 517 is conferred on him, he will be without any direct remedy. Then again, there may be instances where, apart from the informant or complainant and the accused, there may be a third party who may be entitled to possession of the property or to compensation as provided in section 519. He may be aggrieved by the order passed by the trial court under any of the three preceding sections, and he will be without any remedy unless an express right of appeal is conferred.

43.18. We therefore propose that section 520 should be altered, conierring a right of appeal on any person aggrieved by a court's order under section 517 or 519. This appeal should lie to the court to which appeals ordinarily lie from convictions by the trial court, and on such appeal, the Appellate Court should have the powers now speciﬁed in section 520.

At the same time. if the main judgment or ﬁnal order in the original case goes up in appeal or in revision or in a death sentence case for conﬁrmation by the High Court, the Court of appeal, conﬁrmation or revision should obviously have the same powers. [From the practical point of view, it does not seem necessary that a Court of reference should be included in section 520 or in sub--section (3) of section 522].

43.19. In making this proposal we are conscious of the awkwardness involved in two courts dealing with the same subject which may happen in some cases. Thus, when an appeal against the main judgment is pending before the appellate court and the aggrieved party also ﬁles an appeal under section 520 against the order passed under section 517, it is to be expected that both the appeals will be heard and disposed of by the same court at the same time. This will avoid conflict of ﬁndings on the main issues involved in the case. But it may sometimes happen that the appeal under section 520 is heard after the main appeal is disposed of. In the former appeal, the court will be concerned solely with the correctness or otherwise of the order for disposal of the property, and not with the ﬁndings of the trial court in the main case. In any event, the appellate Court's order for disposal of the property under section 517 or 519 cannot affect the ﬁnality of the order of acquittal or conviction passed in Proposal for _ altering section

520. Possibility of two courts dealing» with the matter.

Section 520 revised Appeal against orders under sec-

tion 517 or 519.

Section 521.

Section 522 not to apply where dis-

possession is not by force.

Power to res-

tore possession after evicting by force.

340

the main case either by the trial Court or by the Court of appeal, conﬁrmation or revision.

Where a first class Magistrate passes an order of acquittal and an order ior disposal of property under section 517. appeal against the order of acquittal will be to the High Court, whereas the appeal against the latter order will be to the Court of Session. Again, where the Magistrate passes a non-appealable sentence, it may be challenged in revision in the High Court, whereas the order under section 517 will be challenged before the Court of Session. In such contingencies, it should be left to the discre- tion of the superior court concerned, (whether moved by the parties or not), to pass appropriate orders with a view to avoid- ing prejudice to any party till the ﬁnal disposal of all matters in controversy. There are decided cases where principles have been laid down for meeting these contingencies, and it will be inadvis- able and also impracticable to incorporate them in section 520.

43.20. We accordingly propose that the existing section 520 be replaced by the following :--

"520. (1) Any person aggrieved by an order made by a Court under section 517 or section 519, may appeal against it to the Court to which appeals ordinarily lie from convictions by the former Court.

(2) On such appeal, the Appellate Court may direct the order to be stayed pending disposal of the appeal, modify, alter or annul the order and make any further orders that may be just.

(3) The powers referred to in sub--section (2) may also be exercised by a Court of appeal, conﬁrmation or revision while dealing with the case in which the order referred to in sub--section (1) was made."

43.21. No changes are required in section 521.

43.22_ Under section 522 the Criminal Court is empowered to restore possession of immoveable property to any person who has been dispossessed of it by force, show of force or criminal intimidation, A suggestion has been made to us that in many cases possession is taken without use of force in the absence of the original owner and consequently he cannot get the speedy remedy provided for in section 522. We, however, consider that the essential requirements laid down in the section before a Cri- minal Court could order restoration of possession of immoveable property ought not to be interfered with. because we feel that any whittling down of these requirements is likely to result in the misuse of the power.

43.23. While section 522 enables the Criminal Court to order restoration of possession to the person who has been forcibly dispossessed of the property, it does not indicate how exactly this order is to be carried out. In the absence of an express power to evict by force, if necessary, the person in actual pos- session of the property, it appears that the order of the Court under this section may remain ineﬁective. We think this defect should be removed by a suitable amendment.

341

43.24. Sub-section (3) of section 522 provides that an order under sub-section (1) may be made by any Court of appeal, conﬁrmation, reference or revision. This is to meet cases where the trial court has failed to make an order under sub-section (1) and It appears to the Court of appeal or revision that such an order ought to be made in the interests of iustice. There IS a conﬂict of decisions as _to whether. the period oi one month from the date of the conviction which is mentioned in sub-section (1) also applies to the Court of appeal or revision} This conﬂict should be set at rest by a slight i'e--wording of_ sub-section (3) indicating; that the Court of appeal, conﬁrmation, reference or revision may make such an order while disposing of the appeal, reference or revision, as the case may be.

43.25. As in the case of orders for the disposal of property under section 517 and 519, it is desirable that an independent right of appeal should be conferred upon any person aggrieved by an order made under section 522(1); so also the Court of appeal, conﬁrmation or revision dealing with the main case should have the power to modify. alter or annul an order made by the trial court under this section.

43. 26. We accordingly propose that section 522 be revised 3.\ follows :--

"S22. (1) Whenever a person is convicted of an offence attended by criminal force or show of force or by criminal intimi- dation, and it appears to the Court that by such force or show of force or intimidation any person has been disp0ss°ssed of any immoveable property, the Court may, if it thinks ﬁt, order that possession of the same be restored to that person after evicting by force, if necessary any other person who may be in possession of the property.

Provided that no such order shall be made by the Court more than one month after the date of the conviction.

(2) Where the Court trying the offence has not made an order under sub--section (1), the Court of appeal, conﬁrmation or revision may, if it thinks ﬁt, make such order while disposing of the appeal, reference or revision, as the case may be.

(3) Where an order has been made under s:ub--section (1).

the provisions of section 520 shall apply in relation thereto as they apply in relation to an order made under section 519."

43. 27. Section 523(1) deals with two different matters. First it lays down that seizure of property by a police-oﬂicer shall be forthwith reported to a Magistrate in certain circumstances. and then it goes on to provide for the disposal of such property by the Magistrate.

Seizure of property is to be reported by the police-oﬁicer when it is either under section 51 upon searching an arrested person, or under section 550 which empowers any police-officer to seize any property which may be alleged or suspected to have 1(a) Ifari Sn/iu. A.l.R. 1951 Orissa 30;

(b) Krishmm v. Krisliiiakizthy, A.l.R. 1960 Kerala 348 cases).

( Reviews When Court of appeal may order under sub-section i' 3).

Independent right of appeal desir-

able.

Section 522 vised.

TC-

Power to restore possession of immovcable pro-

P¢fY)'-

Section 523 Section 524 amended.

Section 525.

342

been stolen or which may be found under circumstances which create suspicion of the commission of any offence. There are various other sections in the Code which also empower the police to seize property, e.g., during the investigation of an offence, and most of these provisions contain the requirement that the police- Oﬁicer shonfd report the seizure to a Magistrate. It would there- fore be better section 523(1) generally referred to all cases where the seizure of property by a police-officer is reported to a Magistrate and not only to seizure under sections 51 and 550. Where such property is produced before any Criminal Court during an inquiry or trial, it will be dealt with under sections 516A to 522. This class of property may be excluded from the scope of section 523(1). This sub-section may accordingly be revised as follows :--

"(1) Whenever the seizure of property by any police-

ofﬁcer is reported to a Magistrate under the provisions of this Code, and such property is not produced before a Criminal Court during an inquiry or trial, the Magistrate may make such order as he thinks ﬁt respecting the disposal of such property or the delivery of such property to the person entitled to the poasession thereof, or if such person cannot be ascertained, respecting the custody and production of such property."

43. 28. Sub-section (1) of section 524 provides that where no person is able to establish his claim to the pro erty or where the person in whose possession the property was ound is unable to show that it was legally acquired by him, the property shall be at the disposal of the State Government and may be sold under the orders of the Magistrate. Sub-section (2) further provides that every order passed under this section shall be appealable. From the wording of Sub-section (2) it seems that it is the order of the Magistrate directing sale of the property that is made appealable; whereas it is really the implied and antecedent direc- tion of the Magistrate placing the property at the disposal of the State Government that is, and has to be. appealable. After the Magistrate has made a lawful order that the property shall be at the disposal of the State Government, there is no need to pro- vide expresslv that it may be sold under the orders of a Magistrate. It is accordingly proposed that section 524 may be revised as follows :--

"S24. (1) If no person within such period establishes his claim to such property, and if the person in whose posses- sion such property was found is unable to show that it was legzallv acquired by him, the Magistrate may bv order direct that such property shall be at the disposal of the State Gov- ernment.

(2) An appeal shall lie against any such order to the Court to which appeals ordinarily lie from convictions by the Maaistrr1te."

43.29. No changes are required in section 525.

CHAPTER XLIV TRANSFER OF CRIMINAL CASES 44.1. Sub-section (1) of section 526 sets out elaborately the circumstances in which a High Court may order transfer of a case or appeal from one subordinate Court to another or from any subordinate Court to itself. In contrast, the analogous pro- vision made in section 527(1) empowering the Supreme Court to transfer criminal Cases and appeals is very simple: it may direct transfer whenever it is "expedient for the ends of justice". Of the ﬁve clauses in section 526(1), clause (c)--"that a view of the place in or near which any offence has been committed may be required for the satisfactory inquiry into or trial of the same"---- would seem to be a minor and unimportant matter, and in any event covered by the more general provision in clause ((1). By way of simpliﬁcation, clauses (c), (d) and (e) may be combined as follows :--

"(c) that an order under this section is required by any provision of this Code, or will tend to the general con-

venience of the parties or witnesses, or is expedient for the ends of justice".

With reference to clause (i) of sub-section (1), which en-

ables the High Court to order that any offence be inquired into or ~ tried by any Court not empowered under section 177 to 184, a controversy exists1 as to whether the High Court can order transfer of a case from a Court which does not have jurisdiction under those sections. There, however, seems to be no need to alter wording of clause (i). In view of the abolition of commit-

, men: proceedings as such, clause (iv) may be formally amended to read--

"(iv) that any particular case be committed for trial to a Court of Session."

While no changes of substance are required in sub-sections (IA) to (7) of section 526, a few drafting changes and a more logical re-arrangement of the provisions seem desirable. Sub- sections (1) to (7) may be revised as follows :--

"526. (1) Whenever it is made to appear to the High Court--

(a) that a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate thereto, or

(b) that some question of law of unusual difficulty is likely to arise, or

(c) that an order under this section is required by any provision of this Code, or will end to the general convenience of the parties or witnesses, or is expe-

dient for the ends of justice, 1Pokker, A.I.R. 1950 Kerala 53 (Reviews cases). 33HA/69 Section 526-|ub-

sections (1) to (7) formally reviled.

Power of High Court to transfer cases and appeals.

844

it may order-

(i) that any offence be inquired into or tried by any Court not qualiﬁed under sections 177 to 184 (both inclusive) but in other respects competent to inquire into or try such oﬁences;

(ii) that any particular case or appeal, or class of cases or appeals be transferred from a Criminal Court sub- ordinate to its authority to any such Criminal Court of equal or superior jurisdiction;

(iii) that any particular case be committed for trial to a Court of Session; or

(iv) that any particular case or appeal be transferred to and tried before itself.

(2) The High Court may act' either on the report of the lower Court, or on the_application of a party interested, or on its own initiative:

Provided that no application shall lie to the High Court for transferring a case from one Criminal Court to another Criminal Court in the same sessions division, unless an application for such transfer has been made to the Sessions Judge and rejected by him.

(3) Every application for an order under sub-section (1) shall be made by motion, which shall, except when the applicant is the Advocate General, be supported by aﬂidavit or aﬂirmation.

(4) When such application is made by an accused person, the High Court may direct him to execute a bond, with or without sureties, for the payment of any compensation which the High Court may award under sub-section (7).

(5) Every accused person making such application shall give to the Public Prosecutor notice in writing of the application, together with a copy of the grounds on which it is made; and no order shall be made on the merits of the application unless at least twenty-four hours have elapsed between the giving of such notice and the hearing of the application.

(6) Where the application is for the transfer of a case or appeal from any subordinate Court, the High Court may order that, pending the disposal of the application, the proceedings in the subordinate Court shall be stayed, on such terms as the High Court may think ﬁt to impose:

Provided that such stay shall not affect the subordinate O0urt's power of remand under section 344.

(7) Where an application for an order under sub-section (1) is dismissed, the High Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the application such sum not exceeding one thousand rupees as it may consider proper in the circumstances of the circumstances of the case.

345

(8) When the High Court orders under sub--section (1) that a case be transferred from any Court for trial before itself, it shall observe in such trial the same procedure which that Court would have observed if the case had not been so transferred.

(9) Nothing in this section shall be deemed to affect any order Government under sub-section (2) of section 197."

44.2. Section 526(8) is a peculiar provision whereby a subor- dinate Court is obliged to stop all proceedings on the more inti- mation by an interested party that he intends to apply to the High Court for a transfer of the case. The principle that if an accused person has reasonable cause to believe that he may not receive a fair trial at the hands of a particular Judge, he should have the right to have his case transferred to another Court is unob- jectionable, as also the corollary that the proceedings should not be continued while such an application for transfer is pending before a higher Court. However, the provision for a mandatory stay of the case on his mere intimation to the Court that he in- tends so to apply has been subject to gross abuse.

44.3. This provision has come in for scrutiny and criticism on several occasions. As far back as 1916, the Lowndes Com- mittee which scrutinised the 1914 Bill to amend the Code observed :-- ' "There is no doubt that some of the provisions of section 526 are subject to constant abuse, and that a party, against whom a criminal case is apparently going, will frequently apply for a transfer on manifestly insuﬂicient grounds. We are also satisﬁed that advantage is frequently taken of the section to obtain an adjournment which would otherwise be refused, without the least intention of making any applica- tion to the High Court. It is reported to us, for instance, that in the Dacca Division during three years, adjournments were obtained in no less than 125 cases in which no attempt was made to move the High Court."

That Committee was of the opinion that "pena1ising an im- proper application" would put an end to the widespread abuse of the provision.

44.4. This criticism by the Lowndes Committee was endorsed by the Select Committee on the 1921 Bill to amend the Code. It observed :--

"We have found section 526 somewhat difficult to deal with. One class of opinions presses for greater safeguards against frivolous, vexatious or dilatory applications for transfer. Another class depreciates any measure which makes a transfer more dilﬁcult to obtain. We think it is un- avoidable to retain in the Code some provision for the com- pulsory adjournment of a case when an intention to apply for a transfer has been notiﬁed. But we recognise that the pro- visions of the section, as they stand, have lent themselves to gross abuse, and, therefore, we feel that greater safeguards are necessary."

Section 526 (8) compulsory adjournment on application for transfer.

Lowndes Committee':

criticism of the provision.

Select Committee's vlews.

Further ment in 1932.

amend-

Sub-sections (8), (9) and (10) to be omitted.

Section 526 A to be omitted obsolete.

as 346 The section was amended in 1923 whereby a new sub-section, (6A) was added giving the High Court power to order costs if the application for transfer was found to be frivolous or vexa- tious.

44.5. However, the expected improvement did not take place, and a further amendment had to be resorted to in 1932. The Statement of Objects and Reasons for the 1932 Bill mentioned that "the practical working of this new procedure has been care- fully observed by Government over a considerable period, and they have come to the conclusion that it lends itself to grave abuse and is calculated to defeat the ends of justice." In a judgment1 of the Calcutta High Court, in was forcefully observed :--

"The position created by section 526(8) is truly amazing, one effect being that no accused person can be convicted except with his own consent. No discretion is given to the Court by the section. If the accused notiﬁes his intention to make an application to the High Court for transfer, the trial must be adjourned immediately. There is no limit to the number of such notiﬁcations which may be given during the course of any trial, X X X The abuse of process which sub- section (8) makes possible obviously may be aggravated to almost any extent, where there is a joint trial and each accused person is represented by a different pleader."

The provision was amended is 1932, whereby sub-section (8) was re-cast in more or less its present form and sub-section (6A) was amended providing for payment of compensation not exceed- ing Rs. 250/- to the opposite party if the application for transfer was found to be frivolous or vexatious. ' 44.6. These changes also have failed to improve the situation. In fact, the amendment of 1955 giving the power of transferring cases to Sessions Judges has naturally _led to an increase in the number of transfer applications and consequent delay in the dis- posal of a larger number of cases. Instances where after securing adjournment applications for transfer are either not made or not seriously pressed have not decreased in number. We are, there- fore, of the opinion that sub-sections (8), (9) and (10) of section 526 which provide for a mandatory stay in trials and appeals should be deleted. In their place, power should be given to the Court hearing the application for transfer to stay the proceedings in the lower court pending the disposal of the application. This should not lead to any practical difficulties since, after the 1955 amendme-nt, most applications for transfer are ﬁled in the Sessions Courts and stay could be obtained without delay. We would also recommend that the maximum compensation that can be awarded by a High Court under sub-section (6) should be raised from Rs. 250/- to Rs. 1000/, and that a Sessions Court should be empowered to award compensation upto Rs. 250/-.

44.7. Section 526A requires the High Court to transfer the case for trial to itself, where any person subject to the Naval Discipline Act, the Army Act or the Air Force Act is accused of any such offence as is referred to in proviso (a) to section 41 of 1Neamat Shah, I.L.R. 59 Ca'.-. 482.

347

the Army Act, and the Advocate-General applies for such trans- 'fer. The three Acts mentioned in this section are Acts of the British Parliament which governed the British personnel serving in India. The section has become obsolete after independence and should be omitted. , 44.8. Section 527 deals with the transfer of cases by the Sup- reme Court. Sub-section (3) provides that the court to which a case has been transferred under this section may act on the evidence already recorded by the former court unless the accused demands a re-trial. We do not think that any such special provi- sion is required. Sub-section (3) may be omitted, so that the position as regards re-trial of the case after a transfer by order of the Supreme Court will be exectly the same as in a transfer under any other provision of the Code.

We considered the question whether a provision similar to section 25(2) of the Code of Civil Procedure (about the law applicable to the transferred proceedings) should be inserted in section 527. Since it is fairly clear that the substantive law ori- ginally applicable to the case will continue to apply, no express provision is necessary.

44.9. Under sub-section (1) of section 528 any Sessions Judge may withdraw any case, or appeal from, or recall any case or appeal which he has made over to, any Assistant Sessions Judge subordinate to him. Earlier in this Report1 we have recommend- ed that Assistant Sessions Judges need not exercise any appellate jurisdiction. The mention of "appeal" in this sub-section may, therefore, be omitted.

44.10. Sub-section (lC), inserted by the Amending Act of 1955, confers on Sessions Judges the power to transfer cases from one Criminal Court to another Criminal Court in the same sessions division whenever "expedient for the ends of justice." The Sessions Judge may, however, act only on an application made to him in this behalf by an interested party. The sub-section does not con- tain any details of procedure similar to those contained in section

526. We consider it desirable that a Sessions Judge should be authorised to transfer cases, not only on the application of an interested party, but also on the report of the lower Court or on his own initiative. The procedural provisions contained in sec- tion 526 should be applicable mutatis mutandis to applications for transfer made to a Sessions Judge, should have the power to order payment of compensation when he ﬁnds that the application for transfer was frivolous or vexatious. The maximum amount of such compensation may, however, be Rs, 250 instead of Rs. 1,000.

We have in an earlier Chapter proposed? that appeals from ~conviction_s'by Magistrates of the second class should lie to the Chief Judicial Magistrate. In View of this proposal, it is desirable that the Sessions Judge should have the power to transfer a parti-

1See para. 31.7 above.

-2 See para. 31.5 above.

Section 527 sub-

section (3) omit-

ted.

Section 528 (1).

Section 5282(1c).

Section 528 (2).

Section 528 (5).

Section 528 (6).

Section '528 re-

vised and split into ﬁve sections.

Power of Sessions Judge to transfer cases and appeals 348 cular appeal from the Court of the Chief Judicial Magistrate to himself, and decide the appeal.

44.11. Sub--section (2) of section 528 has to be read with section 192 which empowers a District Magistrate or a Sub-divi- sional Magistrate to transfer a case after taking cognizance of it to another Magistrate subordinate to him. In our discussion1 of the earlier section, we have recommended that section 192 should be conﬁned to making over of cases relating to offences and pro- vision for transferring other kinds of cases should be« placed elsewhere. The proper place for such a provision would appear to be in section 528.

44.12. Sub--section (5) of section 528 provides that a Magis-

trate making an order under this section shall record his reasons-

in writing for making the same. We consider that this provi- sion, which is sound in principle, should apply equally to orders of :1 Sessions Judge recalling, withdrawing or transferring a case or appeal under this section.

44.13. Sub--section (6) of section 528 provides that the head? of a village under the Madras Village--police Regulation, 1916, or the Madras Village--police Regulation, 1821, is a Magistrate for the purposes of this section. It appears that this provision is prac- tically obsolete and can be omitted.

44.14. Section 528, as it stands, is a composite provision dealing with dilferent classes of Courts and with two or three diffe- rent matters. It is desirable to split it up into ﬁve sections as- follows :--

"S28. ( 1) Whenever it is made to appear to a Sessions Judge that an order under this sub-section is expedient for the ends of justice, he may direct----

(a) that any particular case be transferred from one Cri-

minal Court to another Criminal Court in his sessions division;

(b) that any particular appeal be transferred from the court of a Chief Judicial Magistrate in his sessions division to his own court. ' (2) The Sessions Judge may act either on the report of the lower Court, or on the application of a party interested, or on his own initiative.

(3) The provisions of sub-sections (3), (4), (5), (6), (7) and (9) of section 526 shall apply in relation to an application to the Sessions Judge for an order under sub-section (1) of this section as they apply in relation to an application to the High Court for an order under sub-section (1) of section 526, except that sub-section (7) of that section shall so apply after substitut- ing for the words "one thousand rupees" occurring therein, the words "two hundred and ﬁfty rupees".

1See Dara. 15.83 above.

349

528A (1) A Sessions Judge may withdraw any case from, or recall any case which he has made over to, any Assistant Ses- sions Judge subordinate to him.

(2) At any time before the trial of the case or the hearing of the appeal has commenced before the Additional Sessions Judge, a Sessions Judge may recall any case or appeal which he has made over to any Additional Sessions Judge.

(3) Where a Sessions Judge withdraws or recalls a case or appeal under sub-section (1) or sub-section (2), he may either try the case in his own Court or hear the appeal himself, of make it over in accordance with the provisions of this Code to another Court for trial or hearing, as the case may be.

528B. (1) Any Chief Judicial Magistrate may withdraw any case from, or recall any case which he has made over to, any Magistrate subordinate to him, and may inquire into or try such case himself, or refer it for inquiry or trial to any other such Magistrate competent to inquire into or try the same.

(2) Any Judicial Magistrate may recall any case made over by him under sub-section (2) of section 192, to any other Magistrate and may inquire into or try such case himself.

528C. Any District Magistrate or Sub-divisional Magistrate may--

(a) make over any case, of which he has taken cogni- zance, for inquiry to any Magistrate subordinate to him;

(b) withdraw any case from, or recall any case which he has made over to, any Magistrate subordinate to him, and inquire into such case himself or refer it for inquiry to any other such Magistrate.

528D. A Sessions Judge or Magistrate making an order under 2 section 528, 528A, 528B or 528C shall record his reasons for making it."

Withdrawal of cases and appeal! by Sessions Judges.

Withdrawal of cases by Jutﬂcinl Magistrates.

Making over or withdrawal of cases by Execu-

tive Magistrates.

Reasons to be recorded.

Introductory.

Section 529.

Section 530.

' Section 531.

Section 532 omitted.

Section 533 nature of evidence that may be taken, CHAPTER XLV IRREGULAR PROCEEDINGS 45.1. Chapter 45 deals with the. effect of irregularities in pro- cedure on the validity of the proceedings in which they occur. The Code recognizes the principle that is-not every deviation from, or neglect of, procedural formalities and technicalities that would vitiate the proceedings of a Court. Broadly speaking, only irregu- larities that have caused substantial prejudice to the accused will render the proceedings invalid, whila minor or inconsequential errors or omissions are considered curable. The Chapter contains speciﬁc provisions saving irregularities on certain matters, as also a residuary provision saving irregularites in general. At the same time, there are certain provisions of the. Code which are considered so vital that their disregard must vitiate a fair and proper trial and, therefore, destroy the validity of the proceedings.

45.2. Section 529 enumerates the irregularities committed by a Magistrate which do not vitiate the proceedings, where the Magistrate erroneously, but in good faith, takes a proceeding though not empowered to do so. No changes seem to be neces- sary in this section. Though the speciﬁc enumeration of certain proceedings naturally leaves out others, and may occasionally cause diﬂiculties, it does not appear to be desirable to insert a blanket provision saving all irregularities where no injustice has, in fact beem caused.

45.3. Section 530 enumerates the irregularities which, when committed by a Magistrate not empowered by law to do a particu- lar thing, vitiate the proceedings. The section seems to need no change. .

45.4. Section 531 saves the validity of a proceeding held in a wrong place unless the error has in fact occasioned a failure of justice. No changes are necessary in the section.

45.5. Section 532 validates irregular commitments in certain circumstances. 'In view of the proposed abolition of commitment proceedings, this section will be rendered unnecessary and may be omitted.

45.6. Section 533 provides that if the Court before which a statement or confession of the accused person purporting to be recorded under section 164 and section 364 is tendered in evi- dence, ﬁnds_that any of the provisions of such sections have not _been complied with by the Magistrate recording the statement, it shall "take evidence that such person duly made the statement _recorded''. This expression seems to have created some difﬁculty in interpretation, as is evidenced by the conﬂicting decisions of the various Courts.

One has to distinguish between two questions, (1) whether the confession or_ other statement was "duly made", that is to say, made after giving the necessary warning and after putting the re-

\ 35 1

-quired questions under section 164, and (ii) whether the confes- sion or other statement, duly made, was properly recorded.

In the: first case, section 533 should not apply, because, to apply the section in such cases would defeat the very object of 'sections 164 and 364, thereby depriving the accused of a bene-

ﬁcial provision on a matter on which the law has always shown its anxious concern. It is only the second kind of defect----defect in recordingv--that should be curable. The Magistrate should have complied with the substantial provisions of section 164, and there can be no saving for a non-compliance on that account. If such compliance is not apparent from the record, it can be proved «otherwise. That is all that section 533 is intended to provide for.

As observed by the Supreme» Court'------

"Now a statement would not have been 'duly made' unless the procedure for making it laid down in section 164 had been followed. What section 5 33 therefore does is to permit oral evidence to be given to prove that the procedure laid down in section 164 had in fact been followed when the Court ﬁnds. that the record produced before it does not show that that was so. If the oral evidence establishes that the procedure had been followed, then only can the record be admitted. Therefore, far from showing that the procedure laid down in section 164 is not intended to be obligatory, section 533 really emphasises that that procedure has to be followed. The section only permits oral evidence to prove that the procedure had actually been followed in certain cases xvliere the record which ought to show that does not on the face of it do so."

45.7. We would, therefore. recommend that sub--section (1) of section 533 be amended as follows to clarify that the evidence given should relate to the apparent non-compliance with the statu_ tory provisions :--

"(l) If any Court before which a confession or other statement of an accused person recorded or purporting to be recorded under section 164 or section 364 is rendered or has been received in evidence ﬁnds that any of the provisions of either of such sections has not been complied with by the Magistrate recording the statement. it may notwithstanding anything contained in section 91 of the Indian Evidence Act, 1872, take evidence in regard to such non-compliance, and may, if satisﬁed that such non-compliance has not injured the accused in his defence on the merits and that he duly made the statement recorded, admit such statement."

' 45.8. It may be noted in this connection that the effect of irregularities in the recording of a confession on its admissibility in evidence is also dealt with in section 29 of the Evidence Act. This section which saves inter alia the omission to warn the accus- ed as provided for in» section 164 of the Code seems to run counter to the principle underlying section 533 as explained above, 1StaIe of U.P. v. Singhara Single, (1964) 4 S.C.R. 385; A.I.R. 1964 'S. C. 358 at page 362.

Sub-section (1) amended to cla-

rify the position.

\ Section 533 of the Code andsec-

tion 29 of the Evidence Act.

Section 535 ex-

panded and re-

vised.

Eﬁect of omission to frame, or absence of, or error in, charge.

352

This has given rise to some diﬂiculty in deciding the admissibility of such confessions, resulting in a number of conflicting de- cisionsl. The cause of the trouble may be traced to the omission to amend section 29 of the Evidence Act when section 164(3) of the Criminal Procedure Code was amended in 1923. The matter will have to be considered when the Evidence Act comes.

up for revision.

459. Section 535 deals with the effect of omission to frame a charge while clause (b) of section 537 deals with the effect of "any error, omission or irregularity in the charge, including any misjoinder of charges". The same matter is also dealt with in section 232 which provides that if any appellate Court or the High Court in the exercise of its powers of revision or conﬁrma- tion is of the opinion that the absence of a charge or an error in the charge has misled the accused in his defence, it shall order a- re-trial. The section also provides that if the facts proved in the case are such that no valid charge can be proved against the accused, the Court shall quash the conviction. We recommend that sections 232, 535 and 537(b) which deal with the same sub- ject, should be combined into one. We are also of the opinion that a re--trial should not be mandatory as at present. In several' reported cases, Courts have» in the interests of justice refrained from ordering a re-trial, as for instance, when the accused had already undergone sufficient punishment2 or when the evidence was considered insufﬁcient to support a conviction.3 It would be better to make the provision for ordering retrial discretionary so that a Court could pass an order appropriate in the particular circumstances of a case.

Section 535 may accordingly be ampliﬁed and revised as follows :---

"535. (1) No ﬁnding, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charger including any misjoinder of charges unless, in the opinion of the Court of appeal, conﬁrmation or revision, a failure of justice has in fact been occasioned thereby.

(2) It the Court of appeal, conﬁrmation or revision is of opinion that a failure of justice has in fact been occasion-

ed, it may,---

(a) in the case of an omission to frame a charge, order that a charge be framed and that the trial be re--- commenced from the point immediately after the framing of the charge;

(b) in the case of an error, omission or irregularity in the charge, direct a new trial to be had upon a charge framed in whatever manner it thinks ﬁt;

1 Rangappa v. State, A. I. R. 1956 Bombay 285; Bala Majhi v. State, A. I. R. 1951 Orissa 168; Karurhambi, A. I. R. 1951 Madras 579; Vella, Mauji, A. I. R. 1932 Madras 431.

9See Hdsseni Sardar v. Kalu Sardar (1902), I. L. R. 29 Cal. 481, 482 3Nemain Adak v. State, A.I.R. 1966 Calcutta 89. .

353

Provided that if the Court is of opinion that the facts of the case are such that no valid charge could be. preferred against the accused in respect of the facts proved, it shall quash the conviction."

45.10. Section 536 which relates to jury trials may be deleted.

45.11. Section 537 is a general provision regarding irregula- rities in complaints, summons, Warrants, orders, judgments and other proceedings. Clauses (c) and (d) which relate to jury trials may be deleted. Clause (b) has been incorporated in the revised section 535(1). The rest of section 537 may be revised as follows :--

"537. (1) Subject to the provisions hereinbefore con- tained, no ﬁnding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, conﬁrmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby.

(2) In determining whether any error, omission or irre-

gularity in any proceeding under this Code has occasioned a failure of justice, the court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings."

_ 45.12. Section 538 provides that no attachment shall be illegal on account of any defect in the proceedings. No change is necessary here.

Section 536.

omitted.

Section 537 Finding or sen-

tence when re-

versible by rea-

son of error, omission or irre-

gularity.

Section 538, introductory.

Sections 539 and .539 AA(1).

'Section 539A and section 539AA(2) CHAPTER XLVI MISCELLANOUS 46.1. The last Chapter of the Code is a real hotch-potch and deserves the title 'Miscellaneous'. A number of provisions rele- gated to this Chapter could more appropriately and quite easily have been put in earlier Chapters along with connected or ana- logous sections.

46.2, Section 539 lists the persons before whom aﬂidavits and aﬂirmations to be used before any High Court or any oﬂicer of a High Court may be sworn or affirmed, Then section 539AA(1) provides that an aﬂidavit to be used before any Court, other than a High Court, under section 510A (evidence of a formal charac- ter) or under section 539A (evidence regarding conduct of public servants), may be sworn or affirmed in the manner prescribed in section 539 or before any Magistrate.

According to one view,1 section 539A(1) does not cover affidavits under section 145 since they are not of a formal cha- racter so as to fall under section 510A, A Magistrate also does not seem to possess a general power to administer oath to any person who wishes to swear an aﬂidavit before him. The provi- sions of section 4 of the Indian Oaths Act, 1873, do not confer such a power? In an earlier Report,3 the Law Commission has suggested an amendment of this Act for this purpose. We see no good reason why section 539AA(1) should be limited in its scope, nor why there should be two separate and slightly different provisions for the High Court and other Courts on this sub- ject As regards the authorities referred to in section 539, the Clerk of the State, Commissioners to administer oaths in England or Ireland and Magistrates authorised to take afﬁdavits or aﬂir- mations in Scotland should obviously be omitted. On the other hand, it is desirable to add notaries as they have been expressly authorised by law to administer oaths.' We note that a sugges- stion to add notaries in the Code of Civil Procedure was rejected by the Law Commission in its earlier Report5 on that Code on the ground that the matter should be left to be dealt with 'by the High Court under section 139 of that Code. We would, how- ever, prefer to mention notaries expressly in the Code of Crimi- nal Procedure.

46.3, While no change is required in sub-section (1 )of section 539A (regarding afﬁdavits in proof of the conduct of public servants), there is no reason why the provisions in sub-section 1Hemdan V. State, A.I.R. 1966 Rai. 5.

2 Wahid v. State AIR. 1963, All. 256; Nandlal Ghose V. Emperor 354. A.I.R. 1944 Cal. 283.

328th Report on the Oaths Act. page 25.

'4 Section 8(1)(a), Notaries Act, 1952 (53 of 1952).

527th Report, page 125.

3*"

355

(2) prescribing the essential requirements of an aﬂidavit should be limited to this class of atﬁdavits. Similarly, the provision in section 539AA(2) that the Court may order any scandalous and irrelevant matter to be struck out or amended should be applic-

able in rclation to all aﬂidavits and all Courts. These _two general provisions relating to aﬂidavits may be put together In the same section.

4-6.4. We propose accordingly that sections 539, 539A and 539AA be combined and revised as follows :--

"539, (1) Aﬁidavits to be used before any Court under this Code may be sworn or aﬂirmed before----

(a) any Judge or Magistrate;

(b) any Commissioner of Oaths appointed by a High Court; or (C) any notary appointed under the Notaries Act, 1952.

(2) Aﬂidavits shall be conﬁned to, and shall state sepa-

rately, such facts as the deponent is able to prove from his own knowledge and such facts as he has reasonable ground to believe to be true, and in the latter case, the deponent shall clearly state the grounds of such belief.

(3) The Court may order any scandalous and irrelevant matter in the affidavit to be struck out 'or amended.

539A. When any application is made to any Court in the course of any inquiry, trial or other proceeding under this Code, and allegations are made therein respecting any public servant, the applicant may give evidence of the facts alleged in the application by affidavit, and the Court may, if it thinks ﬁt, order that evidence relating to such facts be so given."

These two sections should be put in the Chapter relating to the taking of evidence.

46.5. Sub-section (1) of section 539B empowers any Judge or Magistrate to visit and inspect any place "for the purpose of properly appreciating the evidence given at the inquiry or trial". Whenever he does so, he is required to record without delay "a memorandum of any relevant facts observed at such inspection". While it may not always be possible to draw a sharp distinction between "relevant facts" and impressions or opinion formed by a Judge at a local inspection, the requirements of the section are fairly clear. The purpose of the inspection, as indicated in the sub--section, is neither unduly restrictive nor unduly lax. No change is required in the sub--section, 46.6. The proviso to section 539B(2) relating to jury trial will have to be omitted. .

46.7. With reference to section 540A, it was suggested during our discussion that there should be a provision for continuing the proceedings in the absence of the accused in cases where he persistently disturbs the proceedings and has therefore to be kept out. If such an accused is represented by. counsel, it is possible Authorities be-

fore whom aili-

davits may be sworn.

Affidavits in proof of conduct of public servants.

Section 539B(l).

Section 539B(2).

Section 540A.

Section 541(3).

Section 542.

Section 543.

Section 544.

Section 545.

Section 546 A 356 for the Court, even under the present section, to proceed with the inquiry or trial in the absence of the accused person. Cases of extreme contumacious behaviour on the part of accused per- sons are extremely rare and we do not therefore think it necessary to make a special provision for those cases.

This section and the two preceding sections could well be included in the Chapter on general provisions as to inquiries and trials.

46.8. In section 541(3), the references to sections 341 and 342 of the former Code of Civil Procedure should be replaced by "section 58 of the Code of Civil Procedure, 1908, or section 23 of the Provincial Insolvency Act, 1920, as the case may be."

46.9. We have earlier in this Report recommended1 that this section may be omitted.

46.10. Section 543 which lays a, duty on every interpreter to interpret truthfully is a general provision relating to the taking and recording of evidence and should be included in the appro-

priate Chapter.

46.11. No change is required in section 544 which provides for payment by Government of the reasonable expenses of com- plainants and witnesses. As a general provision relating to in- quiries and trials, this section could be put in Chapter 24.

46.12. Under clause (b) of sub-section (1) of section 545, the Court may direct "payment to any person of compensation for any loss or injury caused by the oﬂence when substantial compensation is, in the opinion of the Court, recoverable by such person in a, Civil Court". The signiﬁcance of the require- ment that compensation should be recoverable in a Civil Court is that the act which constitutes the offence in question should also be a tort. The word "substantial" appears to have been used to exclude cases where only nominal damages would be recoverable, We think it is hardly necessary to emphasise this aspect, since in any event it is purely within the discretion of the Criminal Courts to order or not to order payment of compensa- tion, and in practice they are not particularly liberal in utilising this provision. We propose to omit the word "substantial" from the clause.

46.l2a. Section 546A applies only to complaint cases where the accused is convicted of a non-cognizable oﬂence. In such cases, the Court may, in addition to the penalty imposed on the accused, order him to pay to the complainant the fee paid on the petition of complaint and the process fee for summoning witnesses and the accused. These fees are small amounts com- pared to the total expenses properly incurred by the complainant in prosecuting the offender. We consider that the Court should have the power to award full costs. Sub-section (1) of section .546A may be revised to read as follows 2--

"(1) Whenever any complaint of a non-cognizable offence 'is made to a Court, the Court, if it convicts the accused, lsee paragraph 37.4 above.

357

may in addition to the penalty imposed upon him, order him to pay to the complaint in whole or in part the cost incurred by him in the prosecution, and may further order that in default of payment, the accused shall suffer simple imprisonment for a period not exceeding thirty days. Such costs may include any expenses incurred in respect of process fees, witnesses and pleader's fees which the Court may consi- der reasonable.''1 » 46.13. Section 549(1) refers to "the Army Act, the Naval Discipline Act, the Indian Navy (Discipline) Act, 1934, and the Air Force Act", all of which are no longer in force. This may be substituted by "the Army Act, 1950, the Navy Act, 1957 and in the Air Force Act, 1950" which are relevant Acts now in force, The sub--section refers to "commanding olﬁcer of the regi- ment, corps. ship or detchment, to which he (the accused) belongs". As suggested by the Ministry of Defence, it is proposed that after the word "ship" the word "unit" should be added in order to include the basic organisation of the Air Force.

The Ministry of Defence have also suggested that an expla- nation be added to the effect that Court-martial includes a dis- ciplinary Court constituted under section 95 of the Navy Act, 1957 and also a summary trial by the commanding oﬂicer of the ship under section 93(2) of that Act. This suggestion appears to proceed on a misconception of the object of section 549. Every offence triable under the Navy Act may, according to section 93(1), be tried and punished by Court--martiall; and under sec- tion 549(1) of the Code the Central Government has the power to make such rules as may be appropriate for the Navy con- sistent with the provisions of the Navy Act. No change ap- pears to be necessary in section 549 on this point.

46.14. In our Report? on the law relating to attendance of prisoners in Courts we had recommended that clause (d) of sec- tion 491(1) be omitted and the provision incorporated in a modi- ﬂed form in section 549. The following sub-section may accord- ingly be added to this section---

"(3_) A_High Court may direct that a person detained in any Jail within the State be brought before a Court-martial for trial or to be examined touching any matter pending before the Court-martial."

46.15. We have in an earlier Chapter3 recommended that sections 550 and 552 should be put in Chapter VII of the Code as sections 104A and 100A respectively.

46.16. Section 553 provides for compensation to "persons groundlessly given in charge in presidency-toWns". Where any person causes a police-oﬂicer in a presidency--town to arrest an- other person and it appears to the Magistrate by whom the case is heard that there was no sulﬁcient ground for causing the arrest, 1 Cf. section 148(3).

2Fortieth Report, para. 29.

'See paras. 7.9 and 7.10 above.

Section 549 (1) amended.

Provision for securing atten-

dance of a priso-

ner before a Court-martial.

Sections 550 and

552. Section 553.

Section 554 omit-

ted in view of Article 227.

Section 555 amended.

Section 557.

Section 558.

Section 559(2).

358

the Magistrate can order payment of compensation as provided in the section. The section is at present conﬁned to arrests in presidency--towns but we think that it is a salutary provision and should be extended to all places. Accordingly sub-section (1) of section 553 may be amended by omitting the words "in a presi- dency-town".

46.17. The subject-matter of section 554 is fully covered by clauses (2) and (3) of Article 227 of the Constitution under which every High Court has power to call for returns, mak: and issue general rules and prescribe forms for regulating the practice and proceedings of courts etc. This Article applies also to Courts of Judicial Comrnissioners} ection 554 is therefore redundant and may be omitted.

46.18. Consequentially, in section 555, the reference to sec- tion 554 may be omitted.

46.19. Section 557 prohibits a pleader practising in a crimi- nal court from "sitting as a Magistrate" in that court or in any court subordinate to that court. Practically this prohibition is in relation to pleaders appointed as honorary Magistrates. The section enables a pleader practising in the civil courts to accept such an appointment and function as a Magistrate. The words "in a prgsidency-town or district" are superﬂuous and may be omitted from the section.

46.20. Under section 558, the State Government may deter- mine whit shall be the language of each Criminal Court in the State other than a High Court (not being the Court of a Judicial Commissioner), The analogous provision of Civil Courts is con- tained in section 137 of the Civil Procedure Code. Some States have issued notiﬁcations under section 558 determining the lan- guage of subordinate Criminal Courts. Although article 345 of the Constitution specially empowers the legislature of a State to determine by law what language shall be used for all or any of the official purposes of the State, there does not appear to be any real conﬂict between that article and section 558 of the Code. As a pre-existing law, this section has been continued in force by article 372 of the Constitution "until repealed, altered or amend.d by a competent legislature". No change of substance is necessary in the section, but as a formal amendment, for the words "territories administered by such Government", the word "State" may be substituted.

46.21. Sub-section (2) of section 559 requires to be formally revised as follows :--

"(2) When there is any doubt as to who is the successor in office of any Metropolitan Magistrate, Judicial Magistrate or Executive Magistrate, the Chief Metropolitan Magistrate, the Chief Judicial Magistrate or the District Magistrate, as the case may be, shall determine by order in writing the Magistrate who shall, for the purpose of this Code or of any proceedings or order thereunder, be deemed to be the succes-

sor in office of such Magistrate."

'1--9510See the Judicial Commissioners (Declaration as High Courts) Act, ».i\ 359 46.22. Section 561 contains two special provisions with res- pect to the oftence of rape where it is committed by a man on his wife. Under sub-section (1) only a Chief Presidency Magis- trate or District Magistrate is oompetent to take cognizance of the offence and to commit the man for trial, if necessary, to the Court of Session. Under sub-section (2), when a police investi- gation is ordered, no police--oﬂicer of a rank below that of a police-inspector may take part in the investigation. The object of these special provisions appears to have been to prevent harass- ment by uniriendly neighbours, but considering that prosecutions for this olfence have been extremely rare, these special provi- sions appear to be practically unnecessary We propose that the section may be omitted.

46.23. Section 561A recognises the inherent power of the High Court to do real and substantial justice between parties. Assuming its existence, the section provides that nothing in the Code shall be deemed to limit or affect the inherent power of the High Court to give effect to any order under the Code (whether made by itself or by a subordinate Court) or to prevent abuse of the process of any Court (including subordinate Courts) or otherwise to secure the ends of justice.

In an earlier Report} the Law Commission observed 1-

"This statutory recognition, however, extends only to the inherent powers of the High Court. One may compare it with the recognition of the inherent powers of all civil courts by section 151, Civil Prfocedure Code.

In a number of decisions before and after the enactment of section 561A, various High Courts have also recognised the existence of such power in subordinate Courts? We would, therefore, recommend a statutory recognition of such inherent power which has been recognised as vesting in all subordinate criminal courts.

However, the general principle of law is that the inherent power of a court can be exercised only to give effect to orders made by it or to prevent abuse of its own processes."

We agree with this recommendation. We do not, however, consider it necessary or desirable to go further and recognise an "inherent power" in Courts of Session and other Courts of Appeal to pass appropriate orders to prevent the abuse of the process of any subordinzttc Court.

We pmpos: that the section may be expanded as follows :--

"56lA. Nothing in this Code shall be deemed to limit or aﬁect 'the inherent powcr----

oi' the High Court to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice, or ffti';

K-'I 1 Fourteenth Report, Vol. II, page 829.

2 Ac/iambit Mondal v. Mahatab Singh and others, A. I. R. 1915 Cal. 119; Nagen Kundu v. Emperor, 61 Cal. 498; Krushna Malian v. Sudhakur Dass, A. I. R. 1953 Orissa, 281. ' Section 561.

Section 501A.

Saving or inhe-

rent Dowers ol Criminal Courts.

Section 562 (1), 360

(b) of any other Criminal Court to make such orders as may be necessary to prevent abuse of its process or otherwise to secure the ends of justice."

46.24. With reference to the provE:~:;> ta s..:tioz1 532(1) we :'i"',';Vi358'3 c:"_$_f:§jl have in an carli-.-r Chapter' recommended that section 380 may " "" "be acidcd to this prut-use wi.h which i: is ir.*.r.'.:di.iteEy c=.1:meeted_ Section 562 (IA) amended.

Section 565.

The reference to ;

have to he omit: : .9 'Ti:.:: proviso ma;: .3.

' '=:Lra»*.cs of the t':.i=-.i c. ; E ; the p:'.,=.:i;g wiii ......;: this cl';s= ;' I~.'ic--E. t.-.:'..:: is to be abolished. revised to r=:z::i as i'u?;ows :--

"Provider! that where any li:'-;:t nit":'r 3:: is convi:;::d by a Magistrate of the second c!'.:ss not sore ﬂy empower:-.:.i by the High Court in this behalf, and the .'.:':;:,:i rat: is of up'a%on that the powers conterred by this section s.».o:.-1;! be exerr.:ised,-----

(a) he shall record his opinion to ='.i:it effect and submit the proceedings-to a Ma_e,istr.i:e of the ﬁrst class, forwarding the accused to, or taking bail for his appearance before, such Magistrate; and such Magistrate may thereupon pass such sentence or make such order as he might have passed or made if the case had originally been heard by him, and, if he thinks further inquiry or additional evidence on any point to be necessary, he may make such inquiry or take such gvidence himself or direct such inquiry or evidence to be made or taken." ' 46.25. Under sub-section (IA) of section 562. it is permis-

sible to release a ﬁrst offender after admonition only in the case of certain offences punishable under the Indian Penal Code. It has been stated' that Courts very often release ﬁrst oﬁenders after admonition in tty cases under various laws other than the Indian Penal Code, a though this is not strictly covered by section 562. In principle, however; "there is no reason why section 562 should not apply also to other laws. We accordingly propose that the words "under the Indian Penal Code" may be omitted from sub- section (IA).

Occasionally doubts have been raised whether an offence punishable only with ﬁne is covered by the . expression "any offence punishable with not more than two years' imprisonment". Although the Courts' have answered this question in the aftirma- tive, it seems desirable' to make the position clear by adding the words "or with ﬁne only" after the words "not more than two years' imprisonment".

46.26. Section 565 empowers the Courts to order previously convicted offenders to notify their place of residence and any change of, or absence from, such residence after their release. As the section is at present worded, it has been held' that it does not apply to persons convicted of attempts. abetments and con- spiracies to commit any of the otfences listed». in clause (a) of 15:: non. 21.11 ' S. _No. 11(Shri N. C. Glaﬂcﬂﬂ. Ghole Lnlﬂu

(b) above.

9 F.3(2)/S5-LC. Pt. IL Cnlcllth). ' , _ , use; Emperor v. Manchcrdnw,,A.I.l,L 1935 Born. I56. 4Do:uiaviuny, A. I. L 1942 Mad. 521., 361 section 565(1). It is obviously desirable that the section should -

apply also to such persons. Clause (b) of the section is prac- tically obsolete because of lapse of time and may be omitted. ?u'b-section (1) cl section 565 may accordingly be revised as olows :-

"(l) When any person having been convicted by a Court in India of an offence to which this section' applies is again 'convicted of any such offence by any Court other than that of a Magistrate of the second class, that Court may, if it thinks ﬁt, at the time of passing sentence of imprisonment on . such person, also order that his residence and any change of, or absence from, such residence after release be notiﬁed as hereinafter provided for a term not exceeding ﬁve years from the date of the expiration of such tence.

(IA) This section applies to any of the following oﬁenccs, namely :--

(i) any oﬁence punishable under Chapter XII or Chapter XVII of the Indian Penal Code with imprisonment for a term of three years or upwards;

(ii) any offence punishable under section 215, 489A, 4893, 489C or 489D of the same Code;

I 1 (iii) an abeunent of, or attempt to commit, 0f'c0nspiracy to commit, any of the aforesaid offences.' I Five-fold classiﬁction under the Second Schedule.

Omission of columns 4 and 6 recommended.

Cognizabllity of otfences under column 3.

Offences against State to be cog-

nizable, Oifence under section 324 should be cogmzable.

CHAPTER XLVll CLASSIFILKXTION OF OFFENCES IN SCHEDULE THE SECOND

47.}. The Second Schedule to the Code classiﬁes offences under the lndian Penal Code and also offences against other lavas; from five stand--points. The Schedule has to be referred to for ascertaining----

(ii whether an offence is cognizable or non-cognizable (column 3);

(ii) whether a summons or a warrant shall ordinarily issue in the ﬁrst instance (column 4);

(iii) whether an offence is bailable or not (column 5);

(iv) whether an offence is compoundable or not (column

6); and (V) by what Court an offence is triable (column 8).

47.2. We have recommended1 in Chapter 17, while discussing section 204, that column 4 of the Second Schedule may be dis- pensed with by providing in section 204 itself that in all sum- mons-cases, a summons should ordinarily issue in the first instance and in at warrant-case, a warrant. We consider that since the correct position regarding the compoundability of an oﬂence can be readily ascertained by looking up section 345, there is no need for repeating this information in a tabular form in column 6 of the Second Schedule. The ommission of these two columns will simplify the Schedule to some extent.

47.3. Column 3 of the Schdeulc indicates the offences for which the police may arrest without warrant and the offences for which a warrant of arrest must be obtained by them. On a detailed scrutiny of the Schedule we ﬁnd the present classiﬁcation to be generally sound in principle, and have few changes to propose.

47.4. One such change is in regard to offences against the State speciﬁed in Chapter VI of the Indian Penal Code. It is curious that. in spite of the fact that all of them are grave offences punishable with heavy sentences and, except in two cases, triable exclusively by the Court of Session, they are made non--cognizable under the Schedule. We are unable to see any real justiﬁcation for this and recommend that, with these two exceptions (viz., sedition punishable under section 124A and the minor offence punishable under section 129), offences under this Chapter

-:.hould he cogznizable.

47.5. it has been suggested that the offence of voluntary Causing hurt by dangerous weapons or means punishable under section 324 of the Code need not be a cognizable offence since it is compoundable with the permission of the Court and the-

1 See para 17.3. above.

Y 363 maximum punishment for it is only three years' imprisonment. The actual injury caused might not be serious, but having regard to its potentialities, it is clearly an oﬂfence for which the police should have the power to act promptly to prevent serious con- sequences. in our opinion, the offence is rightly made cogniz~ able.

47.6. We have e-sznsidered a suggestion from :1 lTlCl'C;%.l1tl1C Association of Calcutta that the fraudulent disposals of property punishable under setsiions 421 and 422 of the Indian Penal Code should be made cogziizzzivle. lt is said that these oflcnces are steadily increasing and persons purchasing goods on credit are taking undue advantage of the system of sale on credit and defrauding their creditors. While there may be a case for increas- ing the punishment provided in the Penal Code (now two years punishment or ﬁne or both), we do not think business morality is likely to be improved merely by making the offence cognizablc. The offences are in the nature of things difficult to investigate by the ordinary police and the result of making them cognizable may well be a spate of false or exaggerated complaints and undue harassment by the police at the instance of jealous business rivals. For similar reasons, we consider that the offences of forgery and counterfeiting trade and property marks described in sections 465 to 477A of the Code should remain non-ccgnizable.

47.7. The offence of enticing away a married woman for illicit purposes punishable under section 498 of the Indian Penal Code is, in our view, quite rightly a non-cognizable offence. It stands on a diﬁerent footing from kidnapping or abduction which are cognizable offences.

47.8. A State Government has suggested that the offence of intentionally insulting the modesty of a woman by word or gesture punishable under section 509 of the Penal Code, should be made cognizable so that in the changed social circumstances of the day, when women are coming out in larger numbers and taking greater part in various professional and business acti- vities, they may have a sense of security. The States of Madhya Pradesh, Maharashtra and Mysore have already amended this item in the S:cond Schedule making the offence cognizable. We agree that the amendment should be made in the Code so as to be of all--l'ndia application.

47.9. The classiﬁcation in column 5 of the Second Schedule is of bailable and non-bailable offences. We do not think that any changes are required in this column.

47.10. The last column of the Schedule shows the Court by which 5:1 offence is triable. It will be noticed that against a number of oitences, the entry in column 8 reads, "Court of Session, Presidency Magistrate or Magistrate of the first class", and evzn "Court cf Session. Presidency Magistrate or Magistrate of the ﬁrst or second class". Since it is clear from section 28 that any offence under the Indian Penal Code may be tried by the Court of Sessions, whether it is expressly mentioned in column 8 or not, it is suﬂicient to mention the Court of Session Fraudulent dis-

position of pro-

perty, forgery and counterfeiting trade and pro-

perty marks to remain non-cog-

nizable.

Offence under section 498 should be non-cognizable Offence under section 509 to be cogmzablc.

No change in column 5.

Nature of changes proposed in column 8.

364

in that column against those offences which are triable exclu- sively by that Court. After a careful scrutiny of the Schedule we have considsrably reduced the number of entyies in which the Court of Sesdon ﬁgures in the last column. This will have the effect of transferring some of the work which now goes up to the Sessions Court on commitment to the Courts of Magistrate which, under our proposals, will have enlitrnscd powers of punishment. We have also deleted all rsfereaces to Presidency Magistratc.;, since in metropolitan areas, the Mcimpolitan Magis- tratcs will be competent to try all offences triab'e by any Judicial Magistrate, whether of the ﬁrst class or of the second, in a district.

47.11. The changes proposed by us are indicated below:

Section 120B--The first entry in column 8 should read, "Court by which abetment of the offence which is the object of conspiracy is triable"; and the second entry should read "Magistrate of the ﬁrst class".

Section 124A----Since the offence of sedition is not only serious but also likely to involve complicated questions of law and fact, we propose that it should be triable exclusively by the Court of Session.

Sections 161 to l69----All these offences may be triable by a Magistrate of the first class. It is not necessary to bring the Court of Session for offences under sections 161 to 164. A second class Magistrate should not be authorised to try offences under sections 165 and 166.

Section 193---First part triable by Magistrate of the ﬁrst class and second part by any Judicial Magistrate.

Sections 196 to 200---Triable by "the Cﬁurt by which the offence of giving or fabricating the false evidence is triable".

Section 20], 3rd paragraph--Triable by the Court by which 'the offence is triable. "Presidency Magistrate or Magistrate of the ﬁrst class" to be omitted_ Sections 212 to 2l6-----May be triable by a Magistrate of the ﬁrst class in all cases. Even where a capital offence is involved, since the maximum punishment for the offence is 7 years, it need not be triable exclusively by the Court of Session.

Sections 246 to 263------Court of Session may be omitted for offences in this group where the maximum punishment is 7 years. The offence under section 251 which is punishable with 10 years' imprisonment may be triable exclusively by the Court of Session.

Section 26'3A------May be triable by any Magistrate since the offence is punishable with ﬁne of Rs. 200.

Section 292--Any Magistrate should have jurisdiction to try this offence. No doubt, it is sometimes difficult to decide whether a publication is obscene; but in the bulk of cases 365 instituted there is no doubt about the nature of the publica- tion.' -

S.':t.'tion 2=)5--An;.- Magistrate should have jurisdiction to tr;.- this offence which is punishable with 2 years' imprison- m-. Ell.

S;-ction 2')5A--At present, triable by "Court of Ses~ion or l'.-.-sidency .\l.:'_=i~'.-.ttc". Should be tri'.:b'e bv ".\lag|s'r.-te oi the lirst class."

actions 3|? am! 3l8--Th:se may be triable by Magis- t.r::._- oi the first class. Reference to the Court of Session will be omitted.

Sections 333. 345 and 346---Considering 'he nature these oife.:.:cs and the punishment provided for them triable by Magistrate of t':..: lirs-. class only.

Section 363:1, first pan--Court of Sessicn may be omitted, and the offence may be triable by Magistrate of the first class.

.51-t.'tt'un 3(~';'--Court of Session or Magistrate of the first cla- . accordin; as the offence of kidnapping or abduction is t i.b!c, should have jurisdiction.

.'.':-'t'tt'0n 37'] and 373--Thcse two grzlve offences should be t:'.:=.b!c cxci.:~.ivclv by the Court of S-:.~:.~i.'"..

S' ction 375. I'i.'.v: part-- The off.-race «!mul.l be made triable ex.-:..»ively by the Court of Session t_ like the iilfer-:e u-:der the 4.-cond an-.! third parts of the sccti-in), even thnugh the ni:::imum' punishment is 2 years only.

.S"'cti0n 377--Cou't of Session may be omitted. Though the maximum punishment is l0 years. only a light punish- meat is nw.trd:d in practice.

Sections 386 to 389--These are non-ccgnizzbfe offences, and a'though the punishment is 7 years or 10 years and in two ir~t:mces: may be impri~onment for lif:, we propsse that the-: m -._v be tried by Magistrate of the ﬁr~t cl.:ss (ordinarily th-.- ("xicf J-.:.l':i,rl Magistrate) instead of the Court of '7 --tinn.s- 406 and 408----Shou|d be triable by Magi .trate of =' .- .'i.rs:'. c':tss only.

_<.' rsions J30 and 432--Should be triable by Magistrate of the .":-st cla ~; --nlv, second class Magistrates mav be omitted.

8' r.'.'n.-z 4.'-l--l'ir.t part should be triable by any Magis- tr :- .md seennd part. for which the punishment may go up to .5'! rears. b-.' -'=f:r.'i~"rntc of the first class.

-21- I--- !)iw.m (':--».m n |al"s siIi.;_r:oost:.t I-vi I:-'e"seI:=t Ci»:-

nittee 5'. 1;: Sahh:-J an-.l Select Committee. Lot Sahha (lst May. I969) isl'.m:=--' under sc.;ion 292 is to be raisezl to 2 years for the cor.'-Llion and 5 year: for a subsequent conviction. The olfenee will be eic usively triabie by the Hiﬂt Court a' Court of Senion. The Bill is pending.

.nicnccs

c)tl1:r'Ea»rs gnder 366 Section 457, second part--Second class Magistrate may be omitted, in view of the gravity of the offence.

Sections 465 to 477A----Most of the ollenccs are triable exclusively by the Court of Session, but they are non--cogniz- able. In order to reduce the pressure on the Court of Session, we propose that all offences under this Chapter may be triable by Magistrate of the first class. Serious or compli- cated cases will be tried by the Chief Judicial Magi:tr::t3.

5ec'I1'0rz 505------May be triable by any .'vlagistr2.t:, since the punishment is only 2 years.

Section 509---As the maximum punishment is one year, any .\/lagistrate should be competent to try it.

47.12. The latter part of the Schedule dealing with otfences under other laws puts them in four groups according to the severity of the punishment prescribed for the olfence. Since the third Class of Magistrates is to be abolished, the last two groups will have to be combined. In the third group, offences punish- able with more than one ycar's but less than three years' impri- sonment, the Court of Session is mentioned as one of the Courts competent to try the offence. We propose to omit the mention of Court of Session here. Under section 28, the Court of Session does not get automatic jurisdiction so far as Offences under other laws are concerned, but this would not be material in practice.

In the first group, we propose, to exclude offences punishable with imprisonment which may extend to seven years. These would go into the next group, so that they might be rriable either by a Court of Session or a Magistrate of the first class. The last group of os"erices----those punishable with imprisonment for less than 3 years or with ﬁne only--w0uld be txiable by any Magistrate.

In the second group of offences under column 5 (whether bailable or not), we propose to omit the exception which reads "except in cases not relating to ﬁre arms under the Indian Arms Act, 1878, section 19, which shall be bailable". The proper place for this exception is in the Arms Act, 1959, which has replaced the Arms Act of 1878.

,--. \ CHAPTER XLVIII C£)IVCK,USiON 4%.'. We haw: cnizie to the end of our deta'-led study of the {TM-.. in the course of which we have made rtiiiierous recom- ions for its impmvement, raiiging from V'C:'i'=3l changes EiCLi to remove zi:r¥:)ig.tuitie.s and cl:n'ifyin_i__r iizitlcrlyiiig ideas. . ..t;mtial changes in pmcedu;'v.- with a view to its Sin'1pllC£1- tion ar-.d the avoidance of delay. The object of the Code is to ensure that an accused person gets a full and 'fair trial along eatznt; weli--:stahlishe(_': and -.veli-understood line» that accord with our notions. of natural iustice. it mav be said that by iziying down detailed rules of proeedure for meeting every possible contingency. the Code m21l('_'f~' one lose sight of the main objec- tive, but it is olyviouslv not so. As observed iij.' Justice Vivian Bose the Supreine Court.' "The Code is cmphatie that whatever the irregu- lnrity, it is not to be regarded as fatal unless there is prejudice. It is the substance that we must seek. Courts have to administer justice. and justice in- cludes the pttnislzment of guilt just as much as the protection. of innocence. Neither can be done if the shadow is mistaken for the substance and the goal is lost in a labyrinth of unsubstantial technicalities. Broad vision is required, a nice balancing of the rights of the State and protection of society in gene- ral against 'J'Ct('CfiOY1 from harassment to the indivi- dual and 172:' risks of unjust conviction."

revising the We have kept t' '3j:tttives in View while Code.

-48.2. We do wit suninnry of all the ~:3lEl3t' it necessary to give a complete ~; inmendations made in the foregoing pages. We have indie: ' in each Chapter of this Rcnort. corres- ponding' to a Chapter ' the Code, the provisions which should be made in lieu of, or in addition to. the existins: provisions, and also the amendments. both mziior and minor. to be made in them. The znain changes proposed by us are set out below in broad outline :---

(1) The extent clause should state the factual position, viz., that the Code extends to the whole of India except the State of Jammu & Kashmir, the State of Nagaland and the Tribal Areas in the State of Assam.

(2) Steps should be taken to have the sitrne Penal Code and Criminal. Procedure Code operating in Iammu & Kashmir as the rest of India.

(3) The jurisdiction of Criminal Courtd in relation to territorial waters should be clariﬁed.

/i-liiililie (William) Slaney v. The State of Mtidlzya Prades.hi,W(l955) 2 SCR. 1140. 1168.

Ob}'CC.ll\ 9 0 ;'c.

'vi<.ion Summary oi main changes proposed.

_ ,,,:,, ,'..7F,,,-Yv:

(4-)= The revised Code should, while client to the\ separation of the executive from judiciary in the administration of icrilninal justice, provide for uniformity in the set-up of Criminal Courts, the distinction' between .Executive and Judicial Magistrates and their respective functions under the Code.

(5) All Judicial Magistrates should be under the control ' '7 of the I-lighcourt and organised in two elasser ' Magistrates of the third class being aboiiaied under ii." a Chief Judicial Magistrate for In F: -districts with large subdivisions and a "concentra-

gi tion of Judicial Magistrates at sub-divisioiial i ' quarters,; Additional Chief Judicial Magistrates

5.' pr should be appointed to do theiwtirk of c0-0!'(lI1I?- C tion and supervision nag i_done';'l!y_ E. '. ' C Magistrates. ' ' " -

(6) Ehzéecutive lMz:E;_sr,isti;tratSets; ham' t ontro o te vemtnent org as as presexi unpd.'e1-'a'-*Di,strict Magistrate, Additional -.1 a' District » tes necessuy) and Su "' divisional" iviagistrstes. mere is not need for putting - _ C Executive ,Mag'istrates in" two or 1 'three dilferent "

ﬁliasses aeeording t0'tlI§ powers euelcilabie by i r em. ' (7) The institution of ° Mediates should be i-ﬂlaitlliliﬂﬁl Since " C . ',3 iﬁnmeared from ;the poiitiool mam dwlndia. % ago. these Magistrates should be designated Metropolitan Maézistretes and the out in whi:-.li:-iﬁey exercke iurisdiction, viz., the ' " of Bombay,-'iilllcutta atithﬂldras I1"? city_ :' Ahmedabud, should be 'called tan tltelji ;

The institution e C _e,of beiﬁ (11) (12) (13) (14) (15) (16) (17) (18) (19) (20) (21) 369 arrested by the police without warrant, he should be informed immediately of the grounds of his arrest and, if the arrest be for a ba?:l:.ble ollciucc. of his right to be released on bail.

When a person is culd be made for service by post of addressed to witnesses.

P': ovisiort 5:7;

sun1n1on.~,cs In Chap-.er 8, security proceedings under section 107 only shou'.d be the concern of Executive Magistr:it:s, and those under section 108, 109 and 110 shoulgl be handled by Judicial Magistrates.

In re;;az'd to abatement of public nuisances under Che : 10. power should be with the Executive Ma; "ates. Assistance by jury provided for in section 138 should be dispensed with.

Executive l'»lagist1'ates alone should have the power to take action under sections 144, 145 and 147.

In regard to proceedings under sections 145 and 147 (disputes as to immoveable property), the position existing prior to the amendments made in 1955 should be restored.

In section 161 relating to the examination of witnesses by the police, two changes should be made: first. persons shall be bound to answer truly questions put to them, and secondly when the statement of a literate person is reduced to writing, he should be allowed to read and sign the state- ment so recorded.

Section l67(2) should be amended to provide for rernands in custody during an investigation for a period not exceeding 15 days at a time and 60 days in the whole.

The duty of furnishing copies of police report, statements of witnesses and documents to the accused under section 173(4) should be assigned to the Magistrate taking cognizance of the offence.

In regard to petty offences adequately punishable by a small ﬁne. provision should be made for the offender to send a plea of guilty and the proposed ﬁne instead of appearing before the Court.

Commitment proceedings in sessions cases should be abolished. When the case is instituted on police report, the Magistrate taking cognizance will only do the preliminary work of supplying the accused with copies of the police report. statements of witnesses, documents etc.. and then send the case to the Court of Session. When the case is instituted otherwise than on a police report, the Magistrate should make a preliminary inquiry as provided in section. 202, and then commit the case to the Court of Session.

124)

5.) 'J1 ¢

726) £27) (28?

(29)

(30 it (31) (32) (33) 370 All provisions relating to trial by jury should be ommitted.

Provision should be made that when the accused is convicted in a sessions. case or a warrant-case he "'.Otliti be heard r:_r_ the question of sentence before it is passed. 1 Section 250 should be liberalised so that the Magistrate mav award compensation up to the maximum zzmrnmt of ﬁne he is empowered to impose. when he is satisﬁed that there was no reasonable g:ound for rérzkinsz the accu<.":tion.

The procedure to be followed in a case where an izyeorporated company or other body corporate or a .\OClCl\' registered under the Societies Registration Act. 1860, is an accused. should be laid down in detail.

The right of an indigent accused person to assign- ment of counsel at State expense should be recog- nised in the Code. at least in all sessions cases in the tirst instance. with provision for extending it to other serious cases tried by Magistrates.

In order to avoid unnecessary commitment of cases to the Court of Session. provision should be made for subordinate Magistrates to submit cases to the Onief Judicial Magistrate for imposing adequate punish- ment.

The provisions reiating to the mode of recording evidence and the language of the record in different classes of cases should be systematised.

In regard to judgments in capital cases. the Judge shOUl(l be required to state his reasons for award- ing the particular sentence whether it be a sentence of death or one of imprisonment for life.

Pro'~.ésion f:;h0uld be made for postponement of execution of a death sentence in case of appeal to the Supreme Court.

Section 386(1) should be amended to authorise the recovery of ﬁne by the Collector as an arrear of land revenue.

In cases where the Central Govemment is imme- diately concerned, the State Government should exercise its power to remit or commute the sentences only in consultation with the Central Government.

The right of appeal to the Supreme Court conferred by article l34(l)(a'; of the Constitution should be extended to cases where a High Court has on appeal reversed aniorder of acquittal and sentenced the accused to imprisonment for life. There should also be a right of appeal when a person is convicted ex (34) % 9;

(36:

(37) (40)

(413 (43) 371 on a trial held by a High Court and sentenced to imprisonment for more than six months or to fine exceeding Rs. 1,000, o Provision. should be made for appeal by the Government against sentence on the ground of its inadequacy.

in order to combat perjury of a blatant kind, a summary procedure is recommended for punishing a person who gives contradictory statements on oath in the same case. ' Provisions for securing the attendance in Criminal Courts of persons conﬁned or detained in prisons. whether for answering to a charge or for giving evidence. should be included in the Code.

The Public Prosecutor of the district should be given a greater authority, a higher status and a wider range of functions than he has at present, approximating to those of a Director of Public Prosecutions. He should be an advocate of not less than seven years' standing and should have been recommended by the High Court for appointment.

The Code should provide the frame work for orga- nising the prosecuting agencies in the district in a systematic way.

In order to prevent any conflict of interests bet- ween the Centre and the State in the matter of withdrawal from prosecutions, the State Public Prosecutor in charge of a case of substantial con- cern to the Central Government should obtain its previous permission before withdrawing from the prosecution.

Provision shouldbe made enabling a person to obtain "anticipatory bail order" from the High Court or Court of Session in certain circumstances.

The provision in section 526(8) which obliges a subordinate Court to stop all proceedings on the mere intimation by a party that he intends to move the High Court for transfer has lent itself to gross. abuse and should be repealed.

Section 561A which recognises the "inherent"

power" of the High Court should be expanded to cover the inherent power of other Criminal Courts to prevent abuse of their process or to secure the ends of justice.

The Second Schedule which classiﬁes offences from ﬁve stand--points should be simpliﬁed. The number of offences tiiable exclusively by the Court of- Session should be reduced. .

«Ir-7-r".w-u Enactment new Code .t:omm.-nded.

of Re-

372

48.3. It was observed by Sir James Stephen in 1872 when the Code was being ﬁrst revised that eon:-ta»-it revision and re-

enaetment'was "as necessary as repairs are nee:-ssaqr to a railway. I do not think any Act of iinpaz-mace ought to last for more than ten or twelve yeasts. '-4.. 11: chi oi U152: :'.:n-2 it should be care- fully examiaed frra:11 e :2 r.-. *2 '-;.! \\:'-.2. .1; as much as possible of its general frarn:-x=.'~:'i; : -' are ='=:1"i "cl, it should be improved and <.-:_~.rr~=.--::t:-.i at ewry ; :'=.-. '.vi.i:;ia neziencc has shown that it =.'e:,uired imgroverncna a L cnrre E031 "' Seventy years hm elagsed air.-'.:e the Code v.':.'.;:, .5111: :'e\'i:sc-:i 1:1 rvenacted. and during llti-: 7--.1i;rd it has |:s::-:n 5: . :Ll to '.'::i'Ei.*i1.S'i'e'-3 amend- ments on several ueeayions. The c':a= :ecemme".ded by us. are both so substantial aad numerous that "an Act further to «

-amend the Code of Criminal Procedure, 1893'', as the draitsman will crisply call the patchwork legislation, will not be satisfactory We recommend that the Code should he ieruaced by 21 new Cri- minal Procedure Code. and annex a draft for the purpose.

Chairman . K, V. K. SUNDARAM.

nun Members N

- _S. S. DULAT.

. MRS. ANNA CHANDI,

4. R. L. NARASIMI-IAM,*

5. S. BALAKRISI-INAN,* '43 Secretary P. M. BAKSHI.

New Delhi, 'The 24th September, 1969.

1Guzette of India Supplement, May 4, 1872, page 534. Quoted in the 14th Report. Vol. 2. File 700. » , 'Shri R. L. Nnrasiinhain and Shri 'S. Balakrishnnn have signed the 'Report. abject In the note Iupended. ' Note of Dissent I't"..'-'.'ll'diIl_lg -The proposed Amvtzzlments to sections 161(3) and 1.625 €.:'»..IiT-lilkli -" ':'-::4:zlI.r'»" 'l".i'~ ' W !II'§:-'.'r-'6 Shri R- L. i"\':.l.T.»'='-=5z'tl'5I:?'.:: :1-Id . tn The existing :3; :'-vi-*'' Cede have been ﬂu"; ' the Cntrts and t'-."-.{: ii;

tial chaavpss in the if". .:a_ _ sion 'out we two TL".E'::..'l our l""..

tions of the maissrilv neg"

' 1 Procedure .3-.:. the Bar.

= 3: substan-

ail :='f us is the Commis-

litv tw as-r -~ --,=;.'.1 the recnmmenth- t;_-.1 ting ;'-.'-.19; r antendmer-ts in sec- tion 'i:i1(3) and l('-;.'.. in :11-_r op.':._;E;"1. th-: p.. posed amendments _do not solve any fa? the 4:'-l:~s~.mvn di?'.'vc-rZ;E»:s arr] anomalies that exist at present. Nor do t'-13V deal with the root of the problem. On the contrary the Di'Fp.:bCd ame:.:drnents may create further diﬂiculties and anomalies.

2. The fundamental anomaly in the existing provisions of section 162 is that though the statute arohihits the use of the statement made to the police during in.vc.*.tiga1i-:n for the purpose of corroboration (on the basic assumption that the police cannot be/trusted in this regard and that being scT-serving statements they cannot be relied upon), ncvertl1._l:ss p:rmits their use for contradicting prosecution witnesses. Obviously, the earlier state- ment to the police should have been Ci'-i'l.'CCi.i'I.' recordcdeven for contradicting witnesses. If such statements can be considered to be correctly recorded for the limited purpose of contradicting the witness when he deposes in court, it seems to be wholly illogical to say that they cannot be relied upon as accurate for the purpose of corroboration. A record cannot at the same time be correct and incorrect.

3. The second anomaly is that the use of these statements for contradiction is permitted only for pro:-.ccution witnesses and not for defence witnesses. There is no basis for this differentiation. During police investigation no one can say whether a person examined by the police will eventually ﬁgure as a prosecution wit- ness or a defence witness. If the statements made before the police by a person, who becomes a witness for the defence during the trial. cannot be relied upon to contradict him, it is diﬂicult to understand how the same statement can be relied upon if the person is examined as a prosecution witness. The maiority opinion appears to be that it is not desirable to allow a witness to be contradicted by a record prepared by the opposite party. With great respect there appears to be an erroneous assumption that a witness questioned by the police could at that stage" he categorised either as a witness for the prosecution or as a witness for the defence. Under section 161(1) the police may generally question all persons, who are supposed to be acquaintedxwith the facts and circumstances of the case. It will not be proper to assume that when a witness makes a statement to the police which ' is not favourable to the prosecution storv as given in the F.I.R., the police, at the time of recording his statement would anticipate that he may become' a defence witness during subsequent. trial, and delibera v_ malcean. incorrect record ,w!th,_a viewto discredit him when he" becomes mdefence. If:-the tnmagasng 374 police Ofﬁcer's record cannot be trusted so far as this class of witnesses is concerned, how can it be trusted as regards the state- ments of the other class of witnesses?

4. Again there is considerable diﬁerence of opinion as to what is meant by "contradiction". The Supreme Court has no doubt settled that a "material omission" may amount to a con- tradiction, but there will always be controversy as to whether a particular omission is "material" or not. In our opinion, the occasion for the revision of the Code should be taken to remove all doubts on the matter. The recommendations of the majority would necessitate the continuance of the existing provisions and would. therefore, perpetuate the difﬁculties. ' 5 . According to the recommendations of the majority section 16143) is proposed to bc amended so as to permit a literate wit-

ncss to Sign his statemezit as recorded by the police. The existing prohibition in secti-in 162 against the police taking the signature of any person examined by them is proposed to be deleted. In our opinion. this would make matters much worse than at present. With the removal of the statutory ban on the police to get the sig- natures of witnesses. there is nothing to prevent the police from compelling a witness, either literate or illiterate, to sign or to give his thumb impression on what purports to be the statement of' the witness. A signed statement will certainly discourage even a truthful witness from departing from it even if he wishes to tell the truth before the court. At present he can at least say that what is recorded by the police is not what he stated. But if he were to sign the statement, this stand would be very difficult for him to take and he has to sacriﬁce truth at the alter of con-

sistency :

6. We are, therefore, of opinion that the recommendations of the maiority would not improve matters and we, therefore, have an alternative suggestion in this regard, which is explained fully in the succeeding paragraphs.

7. At the outset it is desirable to refer to some sections of the Indian Evidence Act which have a bearing on police investiga-. tion. Section 157 of that Act enables a party to corroborate the testimony of its witness by proof of a former statement made by him before an officer authorised to investigate a fact. Section H5 read with section 155(3) of that Act enables the adverse party to discredit that witness by proof of previous statements in- consistent with his deposition in court. These provisions have been made with a view to ensure fair trial--t'air both for the party producing that witness and for the adverse party. In a criminal case the prosecution is. therefore, entitled to show that the version. as put forward by a witness before the court is not a belated ver- sion but that it was put forward at the earliest opportunity dur- ing investigation. Similarly, the defence is entitled to bring out contradictions between the deposition of that witness in Court and his earlier statements for the purpose of discrediting him. These two rights of the rival parties should be carefully. borne in. mind by the authorities enga edin revising Chapter.XIV of the; Criminal Procedure Code. t is true that the Legislature can take away or abridge these rights conferred by the Evidence Act:

/5 875 but as the primary objective of a Cnninsl Procedure in any country (where the rule of law p_rcva_1l-S) 18 t0_°l}S11'¢ fair trial of an accused, it is clear that nothing in the Criminal Pro- cedure Code should substannally take away or _abridge_ these rights. For the proper exercise of these rights it is essential that the earlier statement of a witness should be recorded accurately. The agency employed for the purpose and the mode of recording the same should be such as to ensure the accuracy of record.

8. A word of caution is necessary at stage. Merely by providing for an accurate record of the earlier statement of a witness the framers of the Code cannot obviously guarantee its truth. A witness may consistently prejure on oath whereas a truthful witness may make inconsistent statements on two occa- sions, but when an opportunity is given, he may be able to explain the inconsistency to the satisfaction of the Court. The truth or otherwise of the statement of a witness will have to be judged by the Court concerned not only on the basis of his consistency, or contradictions, but also on other considerations such as the inherent improbabality of the story, the divergent versions put forward by different witnesses, the interestedness or enmity of the deponent and such other factors. It is not the function of the framers of the Code to deal with these in the Code. They must be left to be decided by the Court in each case.

9. For the same reason, it is not the function of the framers of the Code to provide for complete elimination of all inﬂuences when a witness makes his statement on oath. It may be that his earlier statement during police investigation is made under police inﬂuence, or else it may be given voluntarily or under the in- ﬂuence of the informant's Darty. Similarly, his subsequent depo- sition in Court may be made when the inﬂuence mentioned in the proceedingsentence continues to persist, or else it may be made under the inﬂuence of the accused who has gained him over to his side. These again are matters for the Court to consider while judging about the credibility of the witness. The revision of the Criminal Procedure Code should not be mixed up with these irre- levant considerations which tend to confuse the real issues,

10. It is true that confessions made under police inﬂuence are held to be inadmissible in law but the Criminal Procedure Code while providing for the record of a confession in section 164 has made adequate provisions for removal of such inﬂuen¢¢_ Thc Evidence Act nowhere says that the statement of a witness is in- admissible in law merely because it is made either under the in- ﬂuence of the police or of the informant or of the accused and hence these matters should be ignored while revising the Code for this purpose.

11. Police investigation unde Ch t XIV divided into the following two ..,§..,. a:p °r my b° b'°"'"5'

(a) tracing out of the culprit a d th 11 ' rials to be used against bin: durin:oti'i2'l:lt:o:ngf mate-

(b) ariﬁpgreatgfonaiéifora aisleesord dl:i1'ing'iingieaslt.igaﬁon which 376

12. Under the am will come the F.I.R., the tracing out and questioning of the witnesses whose statements would lead _to.the detection or' the criminal, the search and recovery of incrimina- tory articles and the preparation of the search list etc. Under the second will come the facts observed by the 'police oﬂicer_at the spot during investigation, the work done by him every _day mc1u_d-- ing the dates on which the various witnesses were examined by and a summary of their statements made to him.' The F.I.R. is admissible as corroborative evidence under section 157 of the Evidence Act when the informant comes to Court and repeats the version given in the F.LR, It may also be used PY thc ad' verse party to contradict him if there is a material discrepancy. Similarly, the search list is admissible in Court as corroborative evidence if the oﬂicer conducting the search comes forward as a witness and proves the search and recovery of the incriminat- ing articles. These two documents, namely, the F.I.R. and the search list, are prepared by the investigating police otﬁcer but the Code contains adequate safeguards to ensure their accuracy. Thus section 154 requires the F.I.R. to be recorded verbatim in the very language of the informant (as far as possible), to be read over and explained to him and to be signed by him. In some States the Police Manual further requires the Investigating Oﬁicer to get the F.I.R. attested by some respectable witnesses who may be present at the time of the lodging of the F.I.R. Sec- tion 157(1) further requires the I.O. to send the F.I.R. at once to the Magistrate taking cognizance on police report. Hence, though subsequent interpolations in the F.I.R. are not unknown, nevertheless the aforesaid provisions, to a large extent, ensure their accuracy. Similarly, the search list is required to be pre- pared in the presence of two respectable witnesses who are re- quired to attest the same. A copy of it must be sent forthwith to the nearest Magistrate taking cognizance on police report and the occupier of the house searched is required to be given a copy of the same [section 165(4) read with sub-section (3) and (4) of section 103].

. 13. The most unsatisfactory section in Chapter XIV is sec- tion 162. The 1.0. is authorised to record the statement of a .witness without even disclosing to the witness what he has written. The witness is not required to sign the same nor is a copy required to be_ sent to the nearest Magistrate with a view to prevent inter- polation. In consequence, there is no_ guarantee of the accuracy of _the record of the statement of a witness as made by the 1.0. It is a notorious fact (which has been admitted by almost all the persons examined by us) that the statement of a Witness recorded under sections 161 and 162 is not necessarily what the witness actually said but is a record of what the 1.0. wants the witness to say. Indeed, cases were brought to our notice in which so called statements were recorded without examining the witness at 311, The 1.0. is enabled to do so by the language of the section Moreover, while such statement is considered unreliable for the purposes of corroboration, it suddenly becomes and is treated as reliable for the 'vurpose of contradiction l Even if a witness speaks the truth before the court. his evidence becomes unworthy °ffﬁc°T°d°n°e If What he Says in court contradicts what the police 0 er chose to record as a so-called statement.

371

14. 'There is a well recognised charge thatthe non-gmtted police staff is generally corrupt. To quote the Report of the Delhi Police Commission, 1966-68, Vol. I, at page 490 :--

"Corruption to a large extent is to be found among the non-gazetted staff of the Delhi Police. Among the higher staff there is lack of proper supervision, C0ntf01 and dim?' line. To this must be added the dist1'e_ssin2 tact. that_thou2h the improbitv of the subordinate police and the i_nis.deme- anours committed by the lower ranks are fully Wlthlﬂ the knowledge of the senior oﬂicers of the department, no really effective or determined effort to eradicate this evil is being made."

The Police Commissions of other States also have observed on similar lines. But strangely enough the deﬁnition of an "oﬂicer incharge" of the police station in the Criminal Procedure Code refers to the Sub-Inspector of Police and hisesubordinates who are all non-gazetted police oliicers. Thus, under the existing provi- sions of the Code, the preparation of the earliest record of the statement of a witness is left in the hands of an agency whose integrity is highly doubtful and the mode of recording as provided in section 162 does not ensure the accuracy of the record. It is well known that many good cases are spoilt by the insidious in- correct entries made in the diary by the 1.0. at the instance of the accused and it is also well known that many innocent persons are sent up along with the guilty of the 1.0. is gained over by the informant's party.

15. In Western Europe it is generally considered an essen- tial guarantee of the impartiality _of the preliminary investigation that it be conducted independently of the prosecuting arm and subiect to the control of the courts. This means that the French judge d' instruction of the German Untersuchungsrichter is (theoretically, at least) not subiect to the inﬂuence of the prose- cuting arm in determining whether or not to indict; it also means that any abuses of the rights of the accused by the judge d' ins- truction or Untersuchungarichter may be appealed to the courts. (See Soviet Criminal Law and Procedure by Harold J. Berman, p. 75). In Russia, however, investigation is controlled not by the iudiciary but by a quasi-iudicial independent body under the con- trol of the Procurator-General and his subordinate staff who are also independent of the executive. In India, at present, it may not be practicable to adopt wholly either the French or the Ger- man system or the Russian system of controlling investigation. Nevcftheless, an important step towards effective control of in- vestigation may be made if the preparation of the record of the statement of witnesses during investigation is taken out of the police and entrusted with the Magistracy.

16. In our opinion the most satisfactory solution for the pre- sent diﬂiculties and anamolies would be to amend section 164 so as to make it mandatory for the 1.0. to send to the nearest Magis- trate all material witnesses questioned by him during the course of investigation and have their statements recorded on oath 'by ' ate is the.l\/Iaigistrate taking cogni-

that magistrate. If the Magis V zance on police report he keep the depositions along 319 must have been received by him '"3551' 5°°ﬁ°"

t1h;7F1'I).jl|{'ar[1'tlvhai1:ilait further report from the 1.0. such as charge- sheet or ﬁnal report under section 173. He should also be re- quired to grant copies of the depositions to the 1.0. (so that his papers mav be complete) and also to dcponents and other parties who mav ask for the same. If, however, he is not the Magistrate taking cognizancg on police report but some other Magistrate. he should be required to send the depositions after record to {ht former Magistrate for further action. The necessifv for making this provision arises because some of the places of the commis- sion of crime though somewhat distant from. the DlaCc_ Whcfc thﬁ Magistrate taking cognizance on police report is stationed, mav be more proximate to another Magistrate stationed close bv. The witness should not be harrassed bv being required to proceed to a longer distance than is absolntelv necessafv. With Quick mean? of transport available nowadavs. it will be practicable to produce the witness before the Magistrate within a dav or two after their questioning bv the police so that the record of the statement under section 164 mav be made at the earliest opportunitv. It will be a statement made on oath in open court recorded bv the Magis- trate in his own hand. read over and explained to the witness and after having been admitted as correct. signed bv him. Its accu- racv therefore will be bevond question.

17. There can reallv be no obiection to this suggestion on principle because section 164 even now enables the recording of statements of witnesses bv a Maoistrate during investigation. All that we suggest is that the Dfcvisinns of this section should be resorted to in respect of all material witnesses instead of leav- ing it to the sweet will of the police to choose the witnesses who should be examined under section 164.

18. It mav. however. be urged that instead of sending the witnesses to the nearest Magistrate if section 162 is amended and the language of section 154 is adopted. accuracv of the record mav be ensured. But, the number of witnesses examined during investigation of a case is sulﬁcientlv large and if in respect of every such witness the 1.0. is required to record his statement in his own language. read it over and explain it to him and obtain his signature and if possible to get the same attested bv two witnesses, considerable time will be taken bv the 1.0. for this purpose and to some extent investigation will be hampered. Moreover, the record bv the 1.0. is not made in public as is done by a Magistrate and there will alwavs be reasonable grounds to suspect that the record as prepared bv him is not a true record especiallv where the witnesses are illiterate, An alternative sug- gestion has been made thatagazctted police oﬂicer mav be re- quired to record the statements of witnesses during investigation. It is true that the gazetted police ofﬁcers' reputation for integritv is much higher than that of the non-gazetted staff but we consider that it is much better to have the statements recorded bv Magis- trates as this will ensure greater conﬁdence in the public. The statements before the Magistrates are made on oath and they are recorded in open court whereas even before gazetted police om- ccrs these salutarv checks will be lacking.

19. One of the distinct advantages of our recommendation 3 thatapersonaoeusinginoﬁerpersonaftheeomnissionote 379 eognisable offence is required to make his statement on oath in public. It is on his statement along with other materials collected by the police during investigation that the latter person is placed on trial. Under modern conditions the mere placing on trial of a person on a criminal charge causes great harrasment, mental agony, loss of reputation and heavy expenditure to that person. His subsequent acquittal after trial is not suﬂicient consolation.or adequate compensation for the trouble and expenditure to which he is put in defending himself. It is, we think very unfair that a person should be put in ieopardy of his liberty by having to face a trial unless his accuser is prepared to incriminate him on oath in public. At present enemies of an innocent person may give his name along with the names of the guilty to the police during investigation and their statements will be recorded conﬁdentally by the police under section 162. If they can induce the police to believe their statements, that innocent person also will have to face trial, Thus the existing provisions of the Code encourage the placing on trial of a person on mere conﬁdential information given to the police by persons who at that stage are not required to make their accusation on oath. This type of harrasrnent of a person on the basis of conﬁdential information is in the nature of a stab in the back and should be avoided.

20. It is true that the investigation and the tracing out of a culprit should be facilitated and the sources of information given to the police should not be disclosed as otherwise many crimes can not be detected. But it is also necessary that until the cul- prit is traced out and accused of the commission of an offence his accuser must be prepared to say so before a Magistrate prior to his being placed on trial to prevent irresponsible statements to the Police.

21. This principle has been recognised in the Code in respect of a non-cognisable_offence. On a mere complaint of an non- cognisable offence, the Magistrate will not summon the accused. Under section 200 the complainant is required to substantiate his statement on oath. The witnesses, if any, brought by him to the Magistrate are required to be examined on oath. Even there- after if the Magistrate entertains some doubt, a iudicial enquiry is made under section 202 where other witnesses of the complain- ant are examined on oath. It is only then that the accused is summoned to face a trial. Thus, when for a minor non-cognis- able oﬂence the Code requires the accuser to make his statement on oath before the accused is placed on trial, it seems grossly unfair that for serious cognisable offences a person should be asked to face a trial on the basis of confidential information given to the police during investigation. This inconsistency will be re- moved if our suggestion is accepted.

_ 22. We may now refer to possible criticism against the sugges- tion and meet them. Firstly, it may be urged that during investi- gation it will be very difficult to know who are the material wit- nesses and the I.0_. will have to be given Wide discretion in pick- ing out and choosing those persons who should be sent to the Magistrate under section 164. By "material witnesses" is meant those witnesses who either by direct evidence or circumstantial evidence incriminate an accused. They need not 'necessarily be 380 eye witnesses to the actual commission of the crime. We agree that some discretion would necessarily remain with the 1.0., but, with a view to prevent the 1.0. from deliberately 'withholding those witnesses who may not support his view of the prosecution case, provision may be made in section 164 to enable anyone, other than those sent up by the 1.0., to aDD€81'. Of his OW"

accord, before the Magistrate and state on oath what he knows about the crime and the offender. Secondly, it' may be urged that by requiring the witness to make his statement on oath at the time when he is under police inﬂuence his mouth is, as it were. sealed and if the earlier statement is an untrue statement made under police inﬂuence, he will ﬁnd it diﬁicult to speak out the truth during the trial because of the threat of prosecution for periury. This argument assumes that a statement on oath made while under police inﬂuence is untrue and that the subsequent deposition of the witness in Court is true. Such an assumption is not wholly iustiﬁed. In a large number of instances the earliest statement of a witness whether under police inﬂuence or other- wise is true and his subsequent deposition in Court is untrue having been brought about by the inﬂuence of the accused. In any case, the question whether the ﬁrst or the second statement is the correct one, should be decided by the Court. If in some of the cases the trying court ﬁnds that the earlier statement is an untrue statement made under police inﬂuence it will refuse to prosecute him for periury. These questions must be left for the consideration of the trying court and should not weigh with the framers of the Code. Thirdly, it may be urged that the witnesses who are taken to a Magistrate for recording their statements would be overawed by the police and compelled to say that the police want them to say. Our attention was also drawn to the observa- tions of the Supreme Court on the need to exercise utmost caution in using statements under section 164. We are quite alive to all these but would point out that even now section 164 is there on the statute book and no one has suggested its deletion on the grounds stated above. Further, we are not for a moment suggest- ing that the statement under section 164 would have any more Dmbative value than what it has today.

23. Fonrthly. it may be urged that investigation will be very much hampered if the Investigating Police Oﬂicer is required to take the material witness every time to the nearest Magistrate for recording his statement under section 164. This objection seems to have Weighed to some extent with the maiority of our colleagues. With great respect, however, We would point out that it is not always necessary for the Investigating Police Oﬂicer to personally escort the material witnesses to the nearest Magistrate and there- by interrupt his investigation. It is suﬂicient if he either directs them to appear before the Magistrate or gives them assistance such as Police escort and reasonable expenses so that they may arrive at the Court of the Magistrate as soon as possible. He may send a conﬁdential note to the Assistant Public Prosecutor or Police Prosecuting Agency who are nowadays stationed in» all courts so that during examination of these witnesses under section 164 they may be questioned by such an agency while their state- ment is being recorded by the Magistrate. With a view to com- pel these witnesses to appear before the Magistrate under section 164 provision may be made in that section on lines similar to 33! section 160 requiring their appearance before the Magistrate if so intimated by the I.O. Provision may be made for the pay- ment of his reasonable expenses including transport charges.

24. The other objections against the aforesaid suggestion are all of an administrative nature. Diﬂiculties of transport, cost of bringing the witnesses to the Magistrate's Court, the extra labour that will have to be put in by the Magistrate, are all referred to. But, in our opinion, these diﬂiculties are not insurmountable and they should not, stand in the way of the Code fulﬁlling one of the essential requirements of a fair trial, namely, the preparation of an accurate record of the earliest statement of a witness. It is true that in one sense the record of the statement made under section 164 is not the earliest statement of a witness, that state- ment having been made earlier before the Investigating Police Oﬁicer. But the interval between the two statements will not exceed a day or two in a large number of instances as pointed out in paragraph 16. The statement recorded by the police should be made wholly inadmissible for any purposes of the Code and hence the earliest statement for the purposes of the Code may be held to be the statement recorded under section 164.

25. To sum up, the main advantages of our recommendations are :-

i. An accurate record of the earliest statement of a witness is made available for both the prosecution and the defence.

ii. A person who makes a statement accusing anybody of the commission of a cognisable offence is required to make his accusation on oath in public. This prevents stabbing people in the dark as is now possible.

By making a statement on oath at the earliest opportunity the witness is put under some check with a view to discourage him from making a different statement on oath during trial under the inﬂuence of the accused. It is true that there are some harden-- ed perjurers whom no threat of perjury would deter a larger num- ber of witnesses having made statements on oath would not agree to go back on those statements at the instance of the accused. It is not unlikely that the police may welcome such a suggestion. Allegations that diaries are manipulated, that the police officer writes what he wants to write in the diary etc. will no longer be made and the police will be free to complete the investigation and decide on submitting ﬁnal report or chargesheet on the basis of the statements on oath made by witnesses and other facts and circumstances such as recovery of incriminating articles, facts observed during local inspection, presence of injury on the ac- cused and other corroborative pieces of evidence.

26. We shall now brieﬂy mention the various sections of Chapter X_IV which will have to be amended for implementing the suggestion :

(1) In section 161, sub-section (3) should be omittcd, (2) Section 162 should be recast by omitting th ' to sub--section (1). Sub-section (2) should be retained': proviso NoTE:--This exception in favour of dying declarations and section 27 of the Evidence Act is by way of neces.

"Y- . . _ list"; C 392 F (3) Section 164 should be recast so as to make it obﬁgatnfil for the lnvestigating Police Oﬂicer to send. up to the Magistrate all material witnesses examined by him during investigation. Pro-

vision should also be made requiring those witnesses if summoned by the l.O. to appear before the Magistrate mentioned in the Notice. There will also be a further provision to the effect that apart from witnesses either sent up or summoned to appear be- fore the Magistrate, any person will be entitled to appear before the Magistrate, and make his own statement as regards the offence under investigation and the identity of the culprit.

(4) If the Magistrate is the Magistrate taking cognisance on police report of the oﬁence under investigation, he should lifter recording the statements of the witnesses on oath send copies of the same to the investigating police Officer and also grant S copies to the deponent and other persons who may ask for the same. He should keep the original depositions along with the original F.I.R. sent to him under section 157(1). If, however, he is not the Magistrate taking cognisance on police report in respect of the offence under investigation, he should, after record- \1 ing the statements, forward the same to that Magistrate. 5 5 (5) In section 172 it should be expressly provided that the ..

statements of witnesses if recorded by the police during investiga- tion shall not form part of the diary mentioned in this section and no court or any party will be entitled to call for the same. That record must remain a conﬁdential paper accessible only to the superior police oﬁicers who may supervise the investigation made by the 1.0. and also to the Police Prosecutors and the A.P.Ps and P.Ps., if they so desire.

(6) Consequential amendment should be made to sub-section (4) _of section_ 173. As all material papers will be with the Magistrate taking cognizance on police report, the duty of grant- ing copies must be left with him and not with the 1.0.

27. Many other sections of the Code may have to be amended as a consequential step but it is not necessary to refer to them in this Note.

R. L. NARASIMHAM Member

8. BALAKRISHNAN Member 'issitAns-cm-. A

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The Code Of Criminal Procedure ,1898-Vol 1