Vol. 12 · pages 476–480

455THE LAW OF CRIMINAL PROCEDURE IN BRITISH INDIA JUDGE.—Insertion of this word in lieu of the word ‘Court’ in the Code of 1872 makes the disqualification personal and the successor in office of the particular officer can therefore, now hold such trial. MAGISTRATE.—Includes a Presidency Magistrate. 12 C. W. N. 246. Trial includes hearing of an appeal. AS SUCH J UDGE OR M AGISTRATE.—That means he cannot try it in his capacity as a judge or magistrate of the Criminal Court. If the same matter had come before him in another capacity he can try. Sameness of the individual as distinct from the sameness of capacity. The Section is based on sameness of capacity. 16 Cal.776 of B. 18 Bom. 380 of B. Contra.—1 Mad. 305-Disqualification based on sameness of the individual. Section 556 No judge and magistrate shall, except with the permission of the Court to which an appeal lies from his court, try or commit for trial any case to or in which he is a party, or personally interested, and no judge or magistrate shall hear an appeal from any judgement or order passed or made by himself. Explanation.—A judge or magistrate shall not be deemed a party, or personally interested, within the meaning of this section, to or in any case by reason only that he is a municipal commissioner or otherwise concerned in a public capacity, or by reason only that he has viewed the place in which an offence is alleged to have been committed or any other place in which any other transaction material to the case is alleged to have occurred, and made an inquiry in connection with the case. Party Personally interested do not imply mere intellectual interest. It implies something of the nature of an expectation of advantage to be gained, or of a loss or some disadvantage to be avoided, by the person who is said to be interested in the case. 8 Bom. L. R. 947.

456 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES (1) Pecuniary interest A magistrate who is a shareholder of the company which is the complainant in the case, is disqualified from trying the case. 20 Bom. 502. A magistrate should not entertain a criminal case in which persons indebted to him are concerned either as complainant or as accused. Relationship Magistrate who is a servant of the complainant will be disqualified. 7 Cal. 322 : 10 Cal. 194. Magistrate who is master of the complainant will not be disqualified. 9 Bom. 172. Magistrate who is husband of the complainant will be disqualified. 14 Bom. 572. Distinction between 487 and 556 1. Section 487 does not disqualify an High Court Judge. Section 556 does. 2. Section 487 does not disqualify committal. Section 556 does. Distinction between 556 and 526 (transfer) Great deal confusion in cases. Taking cognizance of an offence not of an offender. **** Section 129. Empowers a Magistrate to call in Military Power to disperse an unlawful assembly which cannot otherwise be dispersed when the dispersal of that assembly seems to be necessary for public safety. (II) Powers to pass interlocutory orders in a criminal matter Section 36 1. Ordinary Powers Mentioned in the Third Schedule to the Criminal Procedure Code. They vary with the class of the Magistrate.

457THE LAW OF CRIMINAL PROCEDURE IN BRITISH INDIA 2. Additional Powers Local Government or the District Magistrate may invest any Sub-divisional Magistrate or any magistrate of the 1st, 2nd or 3rd class with certain additional powers. They are mentioned in the Fourth Schedule to the Cr. P. Code. They vary with the class of the Magistrate. A Mode of Exercising such powers. Section 107 (3) When a Magistrate has reason to believe that any person is likely to commit the breach of the peace or disturb the public tranquillity any wrongful act that may probably occasion a breach of the peace or disturb the public tranquillity, and that such breach of the peace or disturbance cannot be prevented such a magistrate may issue warrant for his arrest. He must record his reasons. Courts can inflict such sentences as are authorized by law. If a criminal were to ask the Court to pass upon him a sentence not allowed by law instead of one which the law warrants such a sentence will not be valid. 3B.L.R. 50 Commutation. Section 59 of the Penal Code points out in what cases transportation may be awarded instead of imprisonment. Transportation is only authorized in lieu of imprisonment as a substantive punishment. A sentence of nine years transportation and a fine of Rs. 300 and in default of payment, to three years further transportation, is bad in regard to the latter part of the sentence. 5 Mad. 28. (III) POWERS OF PUNISHMENT The punishment for offences prescribed by Section 53 I. P. C. are : I. DEATH (a) Which may be inflicted Sections 121, 132, 194, 302, 305, 307,396. (b) Which must be inflicted Section 303 (murder committed by a life convict).

458 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES II TRANSPORTATION (i) for life.— (a) Which may be inflicted Sections 75, 125,128. (b) Which must be inflicted Sections 226, 311. (ii) for any term.— (a) Which may be inflicted Sections 121-A, 124-A. (b) Which may be inflicted for not less than seven years and not more than the term for which the offender might be imprisoned. Section 59. III. PENAL SERVITUDE Which must be inflicted whenever a European or American is convicted of an offence punishable with transportation. Section 59. IV. IMPRISONMENT (1) Which may be for any term not exceeding 14 years. (2) It may be simple or (3) It may be rigorous. Repealed by Section 4 of Act XVI of 1921 V. FORFEITURE (I) of all property (a) Which may be inflicted. Section 62. (b) Which must be inflicted. Sections 121, 122. (II) of Specific property (a) Which may be inflicted. Sections 126, 127. (b) Which must be inflicted. Section 169.

459THE LAW OF CRIMINAL PROCEDURE IN BRITISH INDIA REVISIONAL JURISDICTION CIVIL PROCEDURE CODE CRIMINAL PROCEDURE CODE Section 115 Section 435 The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears— (a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction illegally or material irregularity, the High Court may make such order in the case as it thinks fit. (1) The High Court or any Sessions Judge or District Magistrate or any SubDivisional Magistrate empowered by the Provincial Government in this behalf, may call for and examine the record of any proceeding, before any inferior Criminal Court situated within the local limits of its or his jurisdiction for the purpose 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 proceedings of such inferior Court and may, when calling for such record, direct that the execution of any sentence be suspended and, if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record. Explanation.—All Magistrates, whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Session Judge