Powers of

Magis

trates.

the five classes of Criminal Courts other than the High Courts1 and other Courts created by special enactments 2, (b) with territorial divisions, (c) with Courts outside the Presidency-towns, (d) with the Courts of the Presidency Magistrates, (e) with Justices of the Peace, and (f) with the suspension and removal of Judges, Magistrates and Justices of the Peace, The provisions of the Police Act (V of 1861), section 6, have been incorporated in this chapter, section 14. The Local Government has been empowered (sec. 16) to make rules for the guidance of Magistrates' Benches. This will result in uniformity of practice wherever such uniformity is desirable. Assistant Sessions Judges have been declared (sec. 17) subordinate to the Sessions Judge in whose Court they exercise jurisdiction. This precludes a doubt which had been raised on the subject.

The second chapter treats of the powers of Judges and Magistrates, Judges and the description of offences cognisable by each Court, the sentences which may be passed by Courts of various classes, and the mode of conferring powers on the latter. The changes of the law here made are little more than verbal, save that Magistrates of the first class are forbidden (sec. 29) to try offences under special or local laws which are punishable with imprisonment for more than seven years: such grave cases should be tried by a higher Court.

It is desirable that the police powers which magistrates can exercise in investigating offences should be clearly defined. In section 40 (Act X of 1872, section 56), as to the continuance of powers of an officer transferred to another local area, words have been introduced to show that powers conferred by one Local Government do not accompany an officer when he is transferred to a province under another Local Government (2 Cal. 117).

In connection with section 33, as to power to sentence to imprisonment in default of payment of fine, the Council passed simultaneously with the Code a short Act amending section 67 of the Penal Code, by inserting a declaration that such imprisonment shall be simple.

Section 35 declares, in accordance with a decision of the Bombay High Court (1 Bom. 223), that, for the purpose of confirmation or appeal, a combined sentence, in case of simultaneous convictions for several offences, shall be deemed to be a single sentence.

1 As to these, see 24 & 25 Vic, c. 104, and the Acts constituting the Chief Court of the Panjab, the Judicial Commissioners of Oudh, the Central Provinces and Burma, and the Recorder of Rangoon.

9 Courts Martial (44 & 45 Vic. c.

58: Act V of 1869): the Vice-Admiralty Courts (26 & 27 Vic. c. 24, etc.) the Court for the trial of Bengal pilots (Act XII of 1859): and the Bombay Court of Petty Sessions (Rule, Ordinance and Regulation I of 1834, title 2, articles 1, 2, 5, 6, 7, 8).

III.—GENERAL PROVISIONS.

Part III contains certain general provisions which it seemed convenient to group together and which, to avoid forward references, must stand near the beginning of the Code. They relate to the following matters: aid and information to the Magistrates, the police and persons making arrests: arrest, escape and retaking: processes to compel appearance, processes to compel the production of documents, etc., and processes for the discovery of persons wrongfully confined. Here, again, the changes in the law are little more than verbal. But to the offences which the public are Aid and inbound to assist in preventing, have been added (sec. 42) attempts to formation. injure public property, railways, canals, and telegraphs. The section (45) requiring village-headmen, etc., to report, has, for obvious reasons, been extended to escaped convicts and proclaimed offenders, and (to provide for villages in hill-passes through which bands of dacoits habitually proceed) also to cases where the criminal merely goes through the village.

Nothing in the whole course of criminal procedure is so produc- Arrests. tive of vexatious proceedings and serious consequences as Arrests. The utmost care therefore has been taken in framing the sections on this subject so as to make them clear and precise. The wording of section 178 of the Code of 1872, which empowered the police to use all means necessary to effect the arrest' of a person forcibly resisting or attempting to escape, was dangerously wide. The present Code (sec. 46) accordingly explains that this power does not give the right to cause the death of an arrested person who is not accused of an offence punishable with death or with transportation for life. In England, if the offence with which the runaway is charged is a treason or a felony (which includes manslaughter, robbery, rape and even larceny), or a dangerous wound given, the homicide is justifiable, and so under the New York Code of Criminal Procedure, section 174. In Scotland, however, the killing is justifiable only when he is charged with a capital offence1. The Code here, as settled by the Select Committee, followed the law of Scotland, which, in Mr. Mayne's opinion, is in India the safer rule. The words 'or with transportation for life' were afterwards introduced in Council chiefly to enable the police to cope with the well-armed and desperate bands of dacoits who from time to time infest some of the districts of the North-Western and the Central Provinces. These outlaws will not surrender unless the only alternative be that of death, and if the police are not allowed to meet them on at least equal terms, the attempt to arrest them may be abandoned.

1 See Alison's Principles of the Criminal Law of Scotland, pp. 36, 37

Service of

The section (46) authorising, in the case of forcible resistance, the use of necessary means to effect arrests, has been extended to meet the case of attempts to evade them. Power has been given (sec. 49) to break open the doors of a house for the purpose of liberating persons who have lawfully entered for the purpose of making arrests therein. Persons making arrests have been expressly empowered (sec. 53) to take from the person arrested any offensive weapons which he may have about him. The police have been authorised (sec. 54) to arrest, without warrant, deserters from the Navy; and sections (66, 67), equivalent to Act XXV of 1861, section 112, have been inserted to provide for the retaking of persons escaping or rescued from lawful custody.

The period for which a person arrested without warrant may be detained by the police is carefully limited by section 61.

The power to arrest without warrant persons against whom a hue and cry has been raised1 is omitted, as that obsolete common-law process is unknown in India. The section authorising masters and mates to arrest deserters from ships is also omitted, as the matter is sufficiently provided for by the Merchant Shipping Act. Under the Code of 1872, section 153, summonses issued by summons. Magistrates were ordinarily served through a police-officer': the present Code (sec. 68) provides that, subject to rules to be made by the Local Government, they may also be served by an officer of the Court. Provision is made (secs. 73, 74) for the service of a summons outside the local jurisdiction of the Magistrate who issues it, and for the proof of such service.

Warrant

Section 75 requires that all warrants of arrest, whether issued of arrest. in the Presidency-towns or the Mufassal, shall be sealed. Act IV of 1877, section 56, did not in such cases require a seal. Warrants of arrest issued by a Bench of Magistrates may be signed by any member of the Bench. This legalises what probably was the practice.

Attachment.

Sub-divisional Magistrates have been empowered (sec, 78) to direct warrants to landholders, etc., for the arrest of escaped convicts. This extension is in harmony with the large powers generally possessed by Magistrates in charge of subdivisions.

Section 87 clears up a doubt as to the commencement of the period provided in the corresponding section (171) of Act X of 1872, for the appearance of a person absconding against whom a warrant has been issued.

The Code of 1872 did not provide how attachment of debts 1 Act X of 1872, sec. 92, cl. 3.

2 Act I of 1859, sec. 86,

and other moveable property is to be effected. Provision has, therefore, been made (sec. 88) for this purpose; and the powers, duties and liabilities of receivers have been declared by reference to the Code of Civil Procedure.

of docu

A person required merely to produce a document will (as Production under the Civil Procedure Code, section 164) be deemed to have ments. complied with the requisition, if he causes the document to be produced instead of attending personally to produce it (sec. 94). This amendment obviously tends to save time and expense, and thus to diminish the unpopularity of our Courts.

Section 100 gives Presidency Magistrates, Magistrates of Searchthe first class, and Sub-divisional Magistrates, power to issue warrants. warrants to search for persons wrongfully confined. No such power, though needed, was supposed to exist in India, except, of course, in the Presidency-towns, where the High Courts issued, under Act X of 1875, directions of the nature of a habeas corpus. Provision is made (sec. 103) for making a list, signed by witnesses, of things found in execution of a search-warrant beyond the jurisdiction of the Court issuing it. The requirement of the signature of the witnesses tends to check the irregularities which sometimes occur in the course of searches.

IV.—PREVENTION OF OFFENCES.

Part IV, which relates to the prevention of offences, comes, it is considered, properly before Part VI, which relates to their prosecution. It comprises six chapters dealing respectively with security for keeping the peace and for good behaviour; the dispersion of unlawful assemblies; suppression of nuisances; disputes as to immoveable property; and, lastly, the preventive action of the police. Nothing is here said as to the prevention of intended offences by personal resistance. For the Penal Code (secs. 96-106) contains rules as to the cases in which such resistance is lawful and the degree to which it may be carried.

the peace.

Chapter VIII. In the chapter relating to security for keeping Security the peace, and for good behaviour, the section (106) dealing with for keeping security for keeping the peace on conviction has been extended to cases in which the accused is convicted of criminal intimidation by threatening injury to person or property. This is an offence of the same nature as taking unlawful measures with the intention of committing a breach of the peace, and should therefore, as regards the taking of security, be placed on the same footing. When the conviction is set aside on appeal or otherwise, the bond will become void. On this the Code of 1872 was silent.

In section 110 (=sections 505, 506 of the Code of 1872) the words which give the Magistrate power to demand security from persons of notoriously bad livelihood or of a 'dangerous character' have been omitted. It was objected that these words were vague, and that the powers which they placed in the hands of the police were liable to great abuse,

In 1882, there was in the North-Western Provinces a class of bad characters who habitually extorted money from respectable persons by threatening to insult or beat them. Section 110 contains a provision (inserted at the suggestion of the Local Government) enabling Magistrates to protect the public against such a system of extortion. It should also be extended so as to apply to habitual protectors or harbourers of thieves and to habitual aiders in the concealment or disposal of stolen property.

The Magistrate is empowered (sec. 112) to make an order as to the character and class of the sureties required. This, it is hoped, will prevent certain persons making a trade of becoming sureties. The object of the law is not merely to provide a moneysecurity, but also to obtain respectable persons as guarantees for the good behaviour of the criminal concerned.

For the purposes of the section (117) as to enquiring into the truth of the information upon which a Magistrate has acted under this chapter, the fact that a person is an habitual offender may be proved by evidence of general repute.

The Code of 1882 contains no provision corresponding to sections 499 of the Code of 1872 and 211 of the Presidency Magistrates' Act. If, before the expiration of the term of the original bond, it appears to the Magistrate unsafe to release the obligor at the end of that term, in justice to the obligor fresh proceedings should be instituted.

Security Some change has been made (sec. 117) in the manner of confor good behaviour. ducting inquiries regarding security for good behaviour. They are under the present Code made as in warrant-cases, instead of as in summons-cases, which was formerly the practice. Where the person who would otherwise be ordered to give security is a minor, the bond (section 118) will be executed only by his sureties. It has been made clear in section 126 that a Presidency Magistrate, District Magistrate, Sub-divisional Magistrate, and Magistrate of the first class can cancel a bond on the application of a surety. Sub-divisional Magistrates are empowered (sec. 109) to require security for good behaviour.

Dispersion Chapter IX, on dispersion of unlawful assemblies, contains the of unlawful rules for calling out and employing the military, in aid of the

assemblies.