"(e) make rules regulating the control and supervision over different classes of Magistrates and the control, supervision and inspection of different classes of Courts:".
72. In sub-section (2) of section 559, for the words "the District Magistrate outside such towns", the words "else- -where the District Magistrate in the case of Executive Magistrates and the Sessions Judge in the case of Judicial Magisirates" shall be substituted.
73. In section 5611, for the words "District Magistrate", wherever they occur, the words "Sub-divisional Judicial Magistrate" shall be substituted.
74. In the proviso to sub-section (1) of section 562,- 0 for the word "Magistrate" wherever it occurs, the words "Judicial Magistrate" shall be substituted;
after the words "State Government", the words "in consultation with the High Court" shall be inserted; and for the words "Sub-divisional Magistrate", the words "Sub-divisional Judicial Magistrate" shall be substituted.
6
75. In section 565,—
(1) in sub-section (1), for the words. "District Magistrate, Sub-divisional Magistrate or Magistrate of the first class, such Court or Magistrate", the words "Sub-divisional ' Judicial Magistrate or Judicial Magistrate of the first class, such Court or Judicial Magistrate" shall be substituted;
and in sub-section (3), after the words "Government may", the words ", in consultation with the High Court," shall be inserted.
(2) 42) 21 The West Bengal Separation of Judicial and Executive Functions Act, 1968.- [President's Act
76. After section 565, the following Schedule shall be:
inserted, namely:- "SCHEDULE I (See section 6A) FUNCTIONS IN RELATION TO DIFFERENT CLASSES OF MAGIS- TRATES (SUBJECT TO SPECIFIC PROVISIONS IN THE CODE).
Explanation.-Magistrate does not include a Presidency Magistrate.
1. Exclusive to the Judicial Magistrates.
2. Exclusive tc the Executive Magistrates.
3. Concurrent to both the Judicial and Executive Magistrates.
Sections, 4(1)(h), 28, 29, 29B, 30, 32,.
33, 34, 35, 57, 106, 155, 156,.
157, 158, 159, 165, 166, 170- 173, 175, 186, 187, 190, 191, 193, 200-265, 291, 337, 338,.
339A, 346, 347, 348, 349, 350A, 352, 380, 387, 389, 408, 409, 411, 412, 413, 414, 428, 433, 436, 437, 439, 442, 464, 466, 467, 468, 469, 471, 473, 475„ 476, 478, 479, 479A, 482, 484, 487, 488, 489, 490, 512,.
518, 532, 556, 557, 561, 562,-
565.
45(3), 107-153, 7174, 176, 190(/A) 191(2), 196A(2), 196B, 492(2), 549(2).
4(1)(k), 4(1)(l), 8, 22A, 22B, 42'- 44, 45(1), 54, 60-65, 68-105A, 126A, 164, 167, 169, 192, 197,- 344, 350, 354-364, 367, 406• 406A, 425, 435, 438, 485, 495,- 497, 498, 502, 503.506, 508A, 509, 514, 514A, 515, 516, 523, 524, 525, 528, 529, 530, 533, 539, 539A, 539AA, 539B, 540A, 541, 552, 553, 559.".
77. In Schedule II,---
(i) to the "Explanatory Note", the following shalt be added, namely :- `The words Magistrate or Presidency Magistratewherever they occur in the entries in the eighth column of this Schedule under the heading "By what court triable" shall mean a Magistrate or- Presidency Magistrate, as the case may be, appointed in consultation with the High Court.' ;
The 47 ekt-ghuVal Separation of Judicial and "26 Executive- Funations Act, 1968.
3 of 1968.]
(ii) in column 8, in the entries under the heading "By what court triable",—
(a) against the entry "124A" in column 1,—
(i) for the words "District Magistrate", the words "Sub-divisional Judicial Magistrate" shall be substituted; and
(ii) after the words "State Government in this.
behalf", the words "in consultation with the High Court" shall be inserted; and
(b) against the entry '4'376" in column 1, .for the words "District Magistrate", the words "Subdivisional Judicial Magistrate" shall be , substituted.
78. For Schedule III, the following Schedule shall be substituted, namely:
"SCHEDULE III (See section 36) sape.10128 w siomOd bowl°
Explanation.—Magistrate does not include_ a Presidency Magistrate.
a A.—Judicial Magistrates P—Ordivary Powers of a Judicial Magistrate of the Third.
Class
(1) Power to arrest or direct the arrest of, and commit to custody, a person committing an offence in his presence, section 64.
(2) Power to arrest, or direct the arrest in his presence ef„ an offender, section 65.
(3) Power to endorse a warrant, or to order the removal of any accused person arrested under a warrant, sections 83, 84 and 86.
(4) Power to issue proclamations in cases judicially before him, section 87.
(5) Power to attach and sell property and to dispose of claims to attached property in cases judicially before him,.
section 88.
26 The West Bengal Separation of Judicial and Executive Funations Act, 1968.
[President's Act
(6) Power to restore attached property, section 89.
(7) Power to require search to be made for letters and telegrams, section 95.
(8) Power to issue search-warrant, section 96.
(9) Power to endorse a search-warrant and order delivery 'of thing found, section 99.
(10) Power to order detention (not being detention in the custody of the police) of a person during a police-investigation, section 167.
(11) Power to postpone issue of process and inquire into case himself, section 202.
(12) Power to detain an offender found in Court, section 351.
(13) Power to issue commission for examination of • witness, section 503.
(14) Power to apply to Sub-divisional Judicial Magistrate to issue commission for examination of witness, section 505(3).
(15) Power to recover forfeited bond for appearance before Magistrate's court, section 514, and to require fresh security, section 514A.
(16) Power to make order as to custody and disposal of property pending inquiry or trial, section 516A.
(17) Power to make order as to disposal of property, section 517.
(18) Power to sell property of a suspected character, -section 525.
(19) Power to require affidavit in support of application, section 539A.
(20) Power to make local inspection, section 539B.
11.—Ordinary Powers of a Judicial Magistrate of the Second Class.
(1) The ordinary powers of a Judicial Magistrate of the 'third class.
(2) Power to order the police to investigate an offence in -eases in which the Magistrate has jurisdiction to try or commit for trial, section 155.
(3) Power to postpone issue of process and to inquire into a case or direct investigation, section 202.
The West Bengal Separation of „Judicial and f 27 Executive FungticinS Act, -1968.
it of 1968.]
111.—Ordinary Powers of a Judicial Magistrate of the First Class
(1) The ordinary powers of a Judicial Magistrate of the -Second Class.
(2) Power to direct warrant to landholders, section 78.
(3) Power to issue search-warrant otherwise than in course .of an inquiry, section 98.
(4) Power to issue search-warrant for discovery of persons - wrongfully confined, section 100.
(5) Power to require execution of the bond, section 106.
i6) Power to discharge surety, section 126A.
(7) Power to record statement or confession, section 164.
(8) Power to authorize detention of a person in the custody .of the police during a police-investigation, section 167.
(9) Power to commit for trial, section 206.
(10) Power to stop proceedings when no complaint, seclion 249.
(11) Power to tender pardon to accomplice during inquiry into case by himself, section 337.
(12) Power to make orders of maintenance, sections 488 .and 489.
(13) Power to recover penalty on forfeited bond, section -514.
(14) Power to require fresh security, section 514A.
(15) Power to recall case made over by him to another Magistrate, section 528(4).
(16) Power to make order as to first offenders, section 562.
(17) Power to order released convicts to notify residence, -section 565.
1V.---Ordinary Powers of a Sub-divisional Judicial Magistrate appointed under section 134 0 (1) The ordinary powers of a Judicial Magistrate of the first Class.
(2) Power to try juvenile offenders, section 29B.
(3) Power to order police investigation into cognizable -cases, section 156.
(4) Power to receive report of police officer and pass order, section 173.
(5) Power to issue process for person within local inns- -diction who has committed an offence outside the local jurisdiction, section 186.
28 The West Bengal,- SCparation of Judicial and Executive Functions Act, 1968.
[President's Act
(6) Power to entertain complaints, section 190(/)(a).
(7) Power to receive police-reports, section 190(1)(b).
(8) Power to entertain cases without complaint, section 190(/)(c).
(9) Power to transfer cases to a Subordinate Magistrate, section 192.
(10) Power to try summarily, section 260.
(11) Power to pass sentence on proceedings recorded by a Subordinate Magistrate, section 349.
(12) Power to make enquiry, section 436.
(13) Power to order commitment, section 437.
(74) Power to report case to High Court, section 438.
(15) Power to sell property alleged or suspected to have been stolen, etc., section 524.
(16) Power to withdraw cases, and to try or refer to them for trial, section 528.
(17) Power to compel restoration of abducted females, section 552.
B.—Executive Magistrates I.—Ordinary Powers of an Executive Magistrate of the Third Class.
(1) Power to arrest or direct the arrest of, and to commit tb custody, a person committing an offence in his presence, section 64.
(2) Power to arrest, or direct the arrest in his presence of, an offender, section 65.
(3) Power to endorse a warrant, or to order the removal of an accused person arrested under a warrant, sections 83, 84 and 86.
(4) Power to issue proclamations in cases judicially before him, section 87.
(5) Power to attach and sell property and to dispose of claims to attached property in cases judicially before him, section 88.
(6) Power to restore attached property, section 89.
(7) Power to require search to be made for letters and telegrams, section 95.
(8) Power to issue search-warrant, section 96.
(9) Power to endorse a search-warrant and order elivery of thing found, section 99.
Tr The West Bengal Separation of Judicial_and Executive Functions Act, 7968.
8 of than
(10) Power to command unlawful assembly to disperse, section 127.
(11) Power to use civil force to disperse unlawful assembly, section 128.
(12) Power to require military force to be used to disperse unlawful assembly, section 130.
(13) Power to order detention (not being detention in the custody of the police) of a person during a police-investigation, section 167.
(14) Power to issue commission, section 503.
(15) Power to apply to District Magistrate for examination on commission, section 505(1).
(16) Power to recover forfeited bond for appearance before Magistrate's court, section 514 and to require fresh security, section 5141.
(17) Power to make order as to disposal of property, sect'on 517.
(18) Power to sell property of a suspected character, section 525.
(19) Power to require affidavit in support of appli8ation, section 539A.
(20) Power to make local inspection, section 539B.
B.—Ordinary Powers of an Executive Magistrate of the Second Class The ordinary powers of an Executive Magistrate of the Third Class.
111,—Ordinary Powers of an, Executive Magistrate of the First Class
(1) The ordinary powers of an Executive Magistrate of the Second Class.
(2) Power to issue search-warrant otherwise than in course of an inquiry, section 98.
(3) Power to issue search-warrant for discovery of persons wrongfully confined, section 100.
(4) Power to require security to keep the peace, section 107.
29 • 30 The West Bengal Separation of Judicial and Executive Functions Act, 1968.
[President's Act
(5) Power to require security for good behaviour, section 109.
(6) Power to discharge sureties, section 126A-
(7) Power to make preliminary orders as to local_ nuisances, section 133.
(8) Power to make preliminary orders in possession cases, sections 145, 146 and 147.
(9) Power to record ,statements and confessions during:
a police-investigation, section 164.
(10) Power to authorize detention of a person in the, custody of the police during police-investigation, section
167.
(11) Power to hold inquest, section 174.
(12) Power to recall case made over by him to another Magistrate, section 528(4).
IV.—Ordinary Powers of a Sub-divisional Executive- Magistrate, appointed under section 13
(1) The ordinary powers of an Executive Magistrate of the First Class.
(2) Power to direct warrants to landholders, section 78_
(3) Power to require security for good behaviour, section 110.
(4) Power to make order prohibiting repetitions of nuisances, section 143.
(5) Power to make orders under section 144.
(6) Power to depute subordinate Magistrate to make local inquiry, section 148.
(7) Power to take cognizance of offences otherwise than on police-reports, section 190(1A).
(8) Power to transfer cases to a subordinate Magistrate, section 192.
(9) Power to sell property alleged or suspected to have been stolen. etc., section 524.
(1o) Power to withdraw cases, usation 52S.
The West Bengal Separation - of Judicial and Executive Fundtions Act, 1.968.
8 of 1968.]
31 V.—Ordinary Powers of a District Magistrate
(1) The ordinary powers of a Sub-divisional Executive Magistrate.
(2) Power to require security for good behaviour in case of sedition, section 108.
(3) Power to discharge persons bound to keep the peace, section 124.
(4) Power to cancel bond for keeping the peace, section
125.
(5) Power to order preliminary investigation by police-- officer not below the rank of Inspector in certain cases, section 196B.
(6) Power to call for records, section 435.
(7) Power to report case to High Court, section 438.
(8) Power to appoint person to be Public Prosecutor in.
particular case, section 492(2).
(9) Power to compel restoration of an abducted female,.
section 552.".
79. For Schedule IV, the following Schedule shall substituted, namely •— "SCHEDULE IV (See sections 37 and 38) ADDITIONAL POWERS WITH WHICH MAGISTRATES MAY BE INVESTED
Explanation.—Magistrate does not include a Presidency Magistrate.
PART IA POWERS WITH WHICH JUDICIAL MAGISTRATES MAY BE INVESTED BY THE STATE GOVERN- MENT IN CONSULTATION WITH THE HIGH COURT
1.—Powers with which a Judicial Magistrate of the First Class may be invested
(1) Power to try juvenile Offenders, section 29B.
(2) Power to issue process for person within loos I jurisdiction, who has committed an offence outside the local.
jurisdiction, section MO.
IsrliikitSiient0:1L— '"514N-SaW'.,r.V.`" ' 32 The Wes,t "Bengal Separation. of. Judicial and EWecative F-unotions Act; 1968..
[President's Act
(3). Power to lake cognizance of offences upon complaint, section 190(1)(a).
(4) Power to take cognizance' of offences upon policereports, section 190(1)(b).
(5) Power to take cognizance of offences without complaint, section 190(2)(c).
(6) Power to try summarily, section 260.
(7) Power to sell properties alleged or suspected to hair° been stolen, section 524.
(8) Power to try cases under section 124A of the Indian Penal Code.
II.—Powers with which a Judicial Magistrate of the Second Class may be invested
(1) Power to try juvenile offenders, section 29B.
(2) Power to record statements and confessions, suction
134.
(3) Power to- authorize detention of a person in Ike custody of the police during police-investigation, section
167.
(4) Power to take cognizance of offences upon complaint, section 190(/)(a).
(5) Power to take cognizance of offences upon policereports, Section 190(/)(b).
(6) Power to take cognizance of offences without complaint, section 190(1)(c).
(7) Power to commit for trial, section 206.
(8) Power to make order as to first offences, section 562.
I11.—Powers with which a Judicial Magistrate of the Third Class may be invested
(1) Power to try juvenile offenders, section 29B.
(2) Power to take cognizance of offences upon complaint, section 190(1)(a).
(3) Power to take cognizance of offences under policereports, section 190(1)(b).
IV. —Powers with which a Sub-divisional Judicial Magistrate may be invested Power to call for records, section 435.
r- O irT - The West fep.aratioJudicial and 3 tive ituskettans, - •
PART TB' Powers with which Judicial Magistrates may be invested by the Sessions Judge
1.—Powers with which a' Judicial Magistizate of the First Class may be invested
(1) Power to take cognizance of offences upon complaint;
section 190(/)(a).
(2) Power to take cognizance of offences upon pollee, reports, section 190(1)(b).
(3) Power to transfer cases; section 192.
II.—Powers with which a Judicial Magistrate of the Second Class may be invested
(1) Power to take cognizance of offences upon complaint, section 190(1)(a).
(2) Power to take cognizance of offences 'upon police- . reports, section 190(1)(b).
III.—Powers with which a Judicial Magistrate of the Third Class may be invested
(1) Power to take cognizdnce of offences upon complaint, section 190(/)(a).
(2) Power to take cognizance of offences upon policereports, section 190(7)(b).
PART I1A .
Powers with which Executive Magistrates may be invested by the State. Government I.—Powers with which an Executive Magistrate of the First Class may be invested
(1) Power to require security for good behaviour in case of sedition, section 108..
(2) Power to requite security for good behaviour, section 110.
(3) Power to make orders prohibiting repetitions of nuisances, section 143.
(4) Powsr to make order; ander section 144.
The West Bengal Separation of Judicial and Executive Functions Act, 1968.
[President's. Act
(5) Power to take cognizance of offences otherwise than on police-reports, section. 190(14).
(6) Power to sell property alleged or suspected to have been stolen, etc., section 524.
II.—Powers with which an Executive Magistrate of the Second Class may be inflated.
(1) Power to make orders- prohiliting repetitions ct nuisanees,'section 143.
(2) Power to make orders under section 144.
(3) Power to record statements and confessions during a poline‘inyestigation, section 164.
(#).Power .to take cognizance of offences otherwise ,than on police-reports, section 190(14).
.111.—:Powers with which an Executive Magistrate of the Third Class may be invested
(1) Power to make orders prohibiting repetitions of nuisances, section 143.
(2) Power to hold inquest, section 174.
TV.—Powers with which a Sub-divisional. Raiecutive Magistrate may be invested Power to call for records, section 435.
PART •IIB Powers with, which Executive Magistrates may be invested by the District Magistrate I.—Powers with which an Executive Magistrate of the First Class may be invested
(1) Power to make orders prohibiting repetitions of nuisances, section 143.
(2) Power to make orders under section 144.
(3) Power to transfer cases, section 192.
11.-2-Powers with which an Executive Magistrate of the Second Class may be invested
(1) Power to make orders prohibiting repetitions of nuisances, section 143.
(2) Power to make orders under section 144.
(3) Power to hold inquest, section 174.
111.—Powers with which an- Executive Magistrate of the Third Class may be invested
(1) Power to make orders prohibiting repetitions . of nuisances, section 143.
(2) Power to hold inquest, section 174.".
C The West Bengal Separation of Judicial and Executive runotions Aet, 1968:
0 - 8 01 1988.]
Reasons for the enactment With a view to give effect to the directive principle in thick 50 of the Constitution to separate the Judiciary from the Executive in the public services of the State of West Bengal, the Governor of West Bengal promulgatO the West Bengal Separation of Judicial and Eiecutive Functions Ordinance, 1968 (West Bengal Ordinance VII of 1968) on the 26th. January, 1968. The salient provisions_ of the Ordnance are as under:
(7) Magistrates are claSsified into two classes, that is to say, those who are appointed in consultation with the High Court referred to as the Judicial Magistrates and those who are appointed withoutsuch consultation, referred to as :the Executive Magistrates. The Judicial Magistrates will primarily deal ' with cognizance, investigation, inquiry into and trial of any offence under the Indian Penal C6de or under any other local or special law, While the Executive MagistrateS will be mainly concerned with prevention of offences and other executive and administrative functions.
(ii) The functions of the two classes of Magistrees arc separated mainly by amending the Code .of Criminal Procedure, 1898 in its application to the State of West Bengal. Subject to the provisions of the Code of Criminal Procedure, the functions of the different classes of Magistrates are categorised as exclusive functions -of the Judicial Magistrates or exclusive functions of the Execu, tive Magistrates and the concurrent functions of both the classes of Magiitrates without specifically amending the body of the Code of Criminal Procedure either as' Judicial or Executive Magistrate except where necessary.
(tiii) So far as he Presidency Magistrates are concerned the Chief Presidency Magistrate, ,A.duitional Chief Presidency Magistrates and other trying Presidency Magistrates will be appointed in consultation with the High Court and they will discharge all the functions assigned to them or extended to them under the provisions of the Code of Criminal Procedure, 1898, but the State • -Government can also appoint Presidency Magistrates without consulting the High Court and such Presidency Magistrates may perform other functions of Presidency Magistrates under the Code of Criminal Procedure, 1898 excluding those relating to cognizance, investigations, inquiry into or trial of any offence.
36 Tito litiagal SOPPArnon „Iiivectitsve Anatvans el "'aria( and [Piesideall Act 8 of 1138 .)
(iv) Though the functions relating to prevention, of offences have been allotted to . the Exeffutive -Magistrates, provision has been made fOr appeal-sand revision against orders passed by such 3-Inglistrates to the Seisions Judge or to the High Court , provided the order is passed -in a proceeding - under the Code of Criminal Procedure, 1898.
(v) The post of Additional -Distriet Magistrate (Judicial) has seer, eliminated and while some powers exercisable by him have been assigned to' the Seshions Judge, some of - minor powers have been allotted to the 8 ubdivisional J aliciai • Magistrate.
(vs) Suitable provision has been made for proper control • and supervision by the Sessions Judge or the Additional Sessions Judgek, over the Judicial ' Magistrates in the district or sessions division,
(vii) Though the Ordinancee- primarily seeks to amend the • Code of Criminal Procedure, 1898, yet, section 29 -- of that Code has been so amended that Judicial Magistrates alone can try a case of any offence whether under the Indian Penal Code or under any other special or • local laW where the term "Magistrate" has been used without amending those laws passed or administered by the Union or the State Government.
2. The proposed - measure seeks to replace the West Bengal Separation of Judicial and Executive Fumtions .
Ordinance, 1968 (West Bengal Ordinance VII of 1968).
- 3. As it is not practicable to refer the present legislation io the- Consultative Committee of Parliament on West Bengal legislation, -it has been decided, in view of the urgency of the matter, to enact the present legislation without such reference.
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