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CONSTITUTION OF CRIMINAL COURTS AND OFFICES

Table of Contents

(Ss. 6 TO 25)

POWERS OF THE COURT

(Ss. 26 TO 35)

QUESTION BANK

Q.1. What are the different Courts exercising jurisdiction under the Code? What sentences can they pass?

Q.2. What are the powers and duties of the Chief Judicial Magistrate and Sessions Judge under the Code?

Q.3. Explain the provisions or the Code relating to the jurisdiction of the criminal Courts in inquires and trials.

Q.4. Explain the constitution of criminal Courts under the Code.

Q.5. What are the powers of punishment of Chief Judicial Magistrate and Additional Sessions Judge?

SHORT NOTES

Sentencing powers of various criminals Courts.
The powers of J.M.F.C.
Power of the High Court.
Metropolitan area.
Supreme Court.
Magistrate.
District Magistrate.
District Judge.
Executive Magistrate.

SYNOPSIS

I] GENERAL

II] CLASSES OF CRIMINAL COURTS (S. 6)

A) JUDICIAL MAGISTRATES (COURTS)

1) Court of Sessions

a) Territorial Division
b) Composition (S. 9)
c) Vacancy in Court (S. 9 (5)
d) Place of sitting
e) Sentence which Sessions Judge may pass (S. 28)

2) Courts of Judicial Magistrate (Ss. 11, 12, 14 & 15)

a) Constitution
b) Presiding officers
c) Defining Jurisdiction
d) Subordination
e) Sentences which Magistrates may pass (S. 29)

3) Metropolitan Magistrates’ Court

a) Metropolitan area means
b) Constitution
c) Presiding officers
d) Subordination
e) Sentences which Metropolitan Magistrate may pass (S. 29)

Hierarchy of Criminal Courts and their powers to pass sentences-

B) COURTS OF EXECUTIVE MAGISTRATE
a) Introductory
b) Constitution (S. 20)
c) Jurisdiction
d) Subordination
e) Functions of Executive Magistrate

Hierarchy of Executive Magistrates

III] ABOUT POWERS OF PUNISHMENT (from above)

a) Imprisonment in default of fine
b) Consecutive and concurrent sentences
c) Juvenile offenders

IV] JURISDICTION OF CRIMINAL COURTS (Ss. 177 to 189).

I] GENERAL:-

This Chapter deals with the constitution of Criminal Courts and the officers (under this Code). The term ‘Criminal Court[1]’ means and includes every Judge (Court) or Magistrate inquiring into or trying any criminal case or engaged in any judicial proceeding. Ss. 6 to 25 provide for the constitution of criminal Courts, while Ss. 26 to 35 provide powers of those Courts. (Criminal Procedure Code or Cr. P. C is called henceforth, for the sake of brevity called as ‘the Code’) The revised Code has separated the judiciary from the executives. The Code now categorises Criminal Courts broadly into (i) Judicial Magistrates (Courts) and (ii) Executive Magistrates. The judicial Magistrate performs a judicial function and is under the control of the High Court. In contrast, the Executive Magistrate performs police or administrative functions and is under the state government’s control.

II] CLASSES OF CRIMINAL COURTS (S. 6):-

The Indian Constitution has constituted each State’s Supreme Court of India and the High Courts. These courts exercise powers endowed under the Constitution of India. But besides these Courts, the Code has constituted the following Courts- viz.

A) JUDICIAL MAGISTRATES (COURTS):-

1) Court of Sessions[2]:-

a) Territorial Division[3]:-

Every state in India is divided into divisions and districts for administrative purposes. The state is divided into Session divisions for judicial purposes, whereas it is divided into districts for revenue purposes. S. 7 of the Code provides that for the purpose of judicial administration, every State shall be divided into one or more sessions. A Sessions Division shall be a district or consist of some districts. Session division may consist of a district or more districts than one, or there may be more session divisions than one in one district. The State Government shall establish a Court of Sessions for every session’s division. The district is meant specifically for revenue administration purposes. The State Government may, after consultation with the High Court, change the number and limits of such divisions and districts. In other words, by consultation with the High Court, the State Government may make new districts, merge existing ones, or change areas between them; it may divide a district into sub-divisions, make new sub-divisions, or change areas between them.

b) Composition (S. 9):-

The High Court shall appoint a Sessions Judge, and it may also appoint Additional and Assistant Sessions Judges. A Sessions Judge of one division may be appointed Additional Sessions Judge of another division, and in such case, he may sit at such place or places as the High Court may direct.

c) Vacancies in Court[4] (S. 9 (5):-

Where the office of the Sessions Judge is vacant, the High Court may make arrangements for the disposal of any urgent application which is or may be made or pending before such Court of Sessions 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 every such Judge or Magistrate shall have jurisdiction to deal with any such application.

d) Place of sitting:-

The Court of Sessions shall ordinarily hold its sitting at such place as the High Court may, by notification, specify: but, if in any particular case, the Court of Sessions is of the opinion that it will tend to the general convenience of the parties and witnesses to hold its sittings at any other place in the sessions division, it may, with the consent of the prosecution and the accused, sit at that place for the disposal of the case or the examination of any witness or witnesses therein.

In Kehar Singh V/s State[5] (Indira Gandhi Assassination Case)

Facts- The trial of Smt. Indira Gandhi murder case was held in Tihar jail in pursuance of a notification issued by the Delhi High Court.

Issue- Whether sitting in Tihar jail is valid?

Held- It was held that the trial in pursuance of such notification for the sittings of the Sessions Court in jail was not illegal. It is proper under S. 9 (6) of the Code.

e) Sentence which Sessions Judge may pass (S. 28):-

A Sessions Judge or Additional Sessions Judge may pass any sentence authorised by law, but any sentence of death passed by any such Judge shall be subject to confirmation by the High Court. An Assistant Sessions Judge may pass any sentence authorised by law except the sentence of death or imprisonment for life or of imprisonment for a term exceeding ten years.

Any offence under S. 376 and S. 376 A to 376 D of the Indian Penal Code shall be tried as far as practicable by a Court presided over by a woman.

2) Courts of Judicial Magistrate[6] (Ss. 11, 12, 14 & 15):-

a) Constitution:-

In every District (not a metropolitan area), the State Government may, after consultation with the High Court, establish as many Courts of Judicial Magistrates of the first class (J.M.F.C) and the second class as necessary. The State Government may also, after consultation with the High Court, establish, for any local area, one or more Special Courts of Judicial Magistrates of the first class or the second class to try any particular case or a particular class of cases. Where any such special Court has been established, no other Court of Magistrate in the local area shall have jurisdiction to try any such case or class of cases (S. 11 (1)).

b) Presiding officers:-

The presiding officers of such Courts, including special Courts, shall be appointed by the High Court. The High Court may also confer powers of judicial Magistrate on any member of the judicial service of the State functioning as a Judge in a civil Court.

The High Court may appoint any Judicial Magistrate of the First Class to be an
Additional Chief Judicial Magistrate and such a Magistrate shall have all or any of the powers of a Chief Judicial Magistrate as the High Court may direct (S. 12(2).

The High Court may designate any first-class judicial magistrate in any subdivision as the sub-divisional magistrate. He will exercise such powers of supervision and control over the Judicial Magistrates in the sub-division as the High Court may specify (S. 12 (3).

c) Defining Jurisdiction:-

Subject to the control of the High Court, the Chief Judicial Magistrate defines the local limits of the area within which judicial Magistrates and Special Judicial Magistrates exercise their powers. However, if the Chief Judicial Magistrate does not so define local jurisdiction and powers, such powers extend throughout the district.

d) Subordination:-

Every Chief Judicial Magistrate shall be subordinate to the Sessions Judge, and every other Judicial Magistrate shall (subject to the general control of the Sessions Judge) be subordinate to the Chief Judicial Magistrate.

e) Sentences which Magistrates may pass (S. 29):-

The Chief Judicial Magistrate or Additional Chief Judicial Magistrate can pass a maximum imprisonment sentence of up to seven years and/or a fine. Judicial Magistrate First Class (J.M.F.C) or Special Judicial Magistrate of First Class can pass sentences of maximum imprisonment of up to three years and/or a fine of up to Rs. 10,000/-. The Judicial Magistrate Second Class or Special Judicial Magistrate of Second Class can pass a maximum sentence of imprisonment of up to one year and/or a fine of up to Rs. 5000/-.

3) ‘Metropolitan Magistrates[7]’ Court:-

a) Metropolitan area means:-

State Government may declare a town or city with a population exceeding one million[8] to be a metropolitan area (S. 8). Bombay, Madras, Calcutta, and Ahmadabad are expressly declared metropolitan areas.

b) Constitution:-

The State Government may establish a sufficient number of Metropolitan Magistrates’ Courts in each metropolitan area.

c) Presiding officers:-

The High Court appoints the presiding officers of such Courts. The jurisdiction and powers of every such Magistrate shall extend throughout the metropolitan area.

In every Metropolitan area, the High Court shall appoint one of the Metropolitan Magistrates as Chief Metropolitan Magistrate. It may also appoint Additional Chief Metropolitan Magistrates, and such magistrates shall generally have all the powers of a Chief Metropolitan Magistrate.

d) Subordination:-

The Chief Metropolitan Magistrate and every Additional Chief Metropolitan Magistrate shall be subordinate to the Sessions Judge, and every other Metropolitan Magistrate shall, subject to the general control of the Sessions Judge, be subordinate to the Chief Metropolitan Magistrate.

e) Sentences which Metropolitan Magistrates may pass (S. 29):-

The power of passing sentence of a Chief Metropolitan Magistrate or an Additional Chief Metropolitan Magistrate is the same as that of a Chief Judicial Magistrate, and the powers of other Metropolitan Magistrates and Special Metropolitan Magistrates are the same as that of Judicial Magistrate First Class.

Hierarchy of Criminal Courts and their powers to pass sentences-

SUPREME COURT

(Any sentence authorised by law)

HIGH COURT

(No original Jurisdiction but in appeal can pass or

set aside any sentence authorised by law)

SESSIONS COURT/ ADDITIONAL SESSIONS JUDGE

(Any sentence authorised by law but the sentence of death is subject to confirmation of High Court)

Assistant Sessions Judge

(Imprisonment up to 10 years or/and fine

Chief Metropolitan Magistrate/ Additional Chief Metropolitan Magistrate

(Imprisonment up to 7 years or/and fine)

Chief Judicial Magistrate / Additional Chief Judicial Magistrate

(Imprisonment up to 7 years or/ and fine)

Sub-divisional Judicial Magistrate (Imprisonment up to 3 years or/ and fine up to Rs. 5000)

Metropolitan Magistrate

(Imprisonment up to 3 years or/and fine up to Rs. 5000)

Special Metropolitan Magistrate

(Imprisonment up to 3 years or/and fine up to Rs. 5000)

Judicial Magistrate or Special Judicial Magistrate of First Class (Imprisonment up to 3 years or/ and fine up to Rs. 5000)

Judicial Magistrate or Special Judicial Magistrate of Second Class

(Imprisonment up to 1 year or/ and fine up to Rs. 1000)

B) COURTS OF EXECUTIVE MAGISTRATE[9]:-

a) Introductory:-

The Code has adopted the policy of separating the judiciary from the executive. The separation is made to ensure the independent functioning of the judiciary free from administrative interference. Therefore, the Code has made provisions for appointing separate categories of magistrates, i.e., executive magistrates, distinct from the Judicial Magistrates Courts. To achieve the objective of separation of judiciary from administrative, the Judicial Magistrates and Metropolitan Magistrates are put under the control of the High Court. At the same time, the Executive Magistrates are kept under the control of the State Government. In other words, functions of a purely judicial nature are kept under the jurisdiction of Judicial Magistrates, and those of ‘police’ or ‘administrative natures are kept with Executive Magistrates.

There are the following types of Executive Magistrates-

1) District Magistrate[10] (Additional District Magistrate)

2) Sub-Divisional Magistrate[11].

3) Executive Magistrates / Special Executive Magistrates[12].

b) Constitution (S. 20):-

The State Government may appoint Executive Magistrates in every district and metropolitan area. It shall appoint one of them to be the District Magistrate (The District Magistrate, in addition, is the Collector). He is also the District officer of the district, in which capacity he has to perform many revenues and administrative functions not covered under this Act). State Government may also appoint an Additional District Magistrate and, for a sub-division, a sub-divisional Magistrate (Who performs other revenue and administrative functions as a Prant). The State Government can also confer power of the Executive Magistrate on the Commissioner of Police in the Metropolitan area. The State Government may also appoint Special Executive Magistrates for particular areas or for performing particular functions. Executive Magistrates perform other administrative and revenue functions as a Tahasildar.

c) Jurisdiction:-

Unless otherwise defined by the District Magistrate, the jurisdiction and powers of every Executive Magistrate extend throughout the district or the metropolitan area as the case may be.

d) Subordination:-

All Executive Magistrates other than the Additional District Magistrate shall be subordinate to the District Magistrate. Every Executive Magistrate exercising powers in a sub-division shall also be subordinate to the Sub-divisional, subject to the general control of the District Magistrate.

e) Functions of Executive Magistrate:-

The Code does not permit the Executive Magistrates to try cases. Their functions are purely administrative in nature. Ss. 107 (taking security for keeping the peace), 133 (order for removal of a nuisance), 144 (issue order in urgent cases of nuisance or apprehended danger), and 145 (conduct proceeding to solve dispute relating to land or water likely to cause a breach of peace) of the Code confers some functions in Executive Magistrates. S. 3 (4) of the Code clarifies Executive Magistrates’ functions. It empowers the Executive Magistrate to perform executive functions such as granting, suspending or cancelling a license, sanctioning or withdrawing prosecution, etc., entrusted by any law other than the Code of Criminal Procedure.

Hierarchy of Executive Magistrates:-

District Magistrate (Additional District Magistrate)

Sub-Divisional Magistrate

Executive Magistrate

Special Executive Magistrate

III] ABOUT POWERS OF PUNISHMENT (from above):-

We have already, from Ss. 28 and 39, discussed the extent of punishment which various criminal Courts can impose. We will discuss some concepts relating to punishment as follows: –

a) Imprisonment in default of fine[13]:-

If the fine imposed on the accused is not paid, the Magistrate may award imprisonment in default of payment of a fine. S. 30 limits the the Magistrate’s power to award imprisonment in default of a fine. It lays down that such imprisonment-

i) cannot be in excess of the Magistrate’s power (as mentioned above), and
ii) cannot exceed one-fourth of the term of imprisonment which the Magistrate is competent to inflict as a substantive sentence.

However, under the Indian Penal Code, if the offence is punishable with a fine only, then a fine of Rs. 50 and below shall be imposed; the default sentence will be up to 2 months. For a fine from Rs. 51 to Rs. 100, the default sentence will be up to 4 months of imprisonment, and in other cases, it will be up to 6 months. In it, the Code has added that imprisonment can only extend to one-fourth of the term for which the Magistrate is competent to sentence.

b) Consecutive[14] and concurrent sentences[15]:-

Often, an accused is convicted at one trial for two or more offences, e.g. while committing theft if the offender has also caused hurt. In such cases, he may be awarded punishment for both the offences, e.g., Imprisonment for 3 years for theft and 1 year for causing hurt, i.e., the accused has to undergo 4 years imprisonment for both these offences. Such punishments run consecutively unless and until directed by the court. Consecutive means one after another. But suppose the court directs punishment to run concurrently. In that case, the lesser sentence merges into, the higher, e.g., in the above case, if imprisonment is to be undergone concurrently, the accused will have to undergo 3 years imprisonment only, and 1-year imprisonment will merge into 3 years imprisonment.

c) Juvenile offenders:-

When a person under the age of sixteen years commits an offence not punishable by death or imprisonment for life, he may be tried by the Court of Chief Judicial Magistrate or by any court specially empowered under the laws for the protection of juvenile offenders.

IV] JURISDICTION[16] OF CRIMINAL COURTS (Ss. 177 to 189):-

Jurisdiction of the criminal courts is of two kinds. The first type of jurisdiction is the power of the Court to try particular kinds of offences (according to punishments as discussed above). The second type of jurisdiction is territorial jurisdiction. S. 177 lays down a general rule that every offence shall ordinarily be inquired into and tried by a court within whose local jurisdiction it was committed. Ss. 178 to 189 embodies provisions in the nature of exceptions or alternatives to S. 177. (For further details, refer following endnote[17]) *****

[1] अधिकार श्रेत्रफैजदारी न्यायालये

[2] सत्र न्यायालय

[3] भौगोलिक विभाजन

[4] न्याधिशांच्या रिक्त जागा

[5] 1989 Cr. Lj. 521

[6] न्यायीक दंडाधिकारी

[7] महानगर दंडाधिकारी

[8] दहा लाख

[9] प्रशासकीय दंडाधिकारी

[10] जिल्हा प्रशासकीय दंडाधिकारी/ कलेक्टर

[11] प्रांत दंडाधिकारी

[12] तहीसलदार /कार्यकारी दंडाधिकारी

[13] आर्थीक दंड न भरल्यास तुरूंगवास

[14] एक संपल्यानंतर दुसरी कारावासाची श्क्षिा सुरू होते

[15] मेठया कारावासच्या शिक्षेत लहान श्क्षिा सामावतात

[16] अधिकार श्रेत्र

[17] 178. Place of inquiry or trial.-(a) When it is uncertain in which of several local areas an offence was committed, or

(b) where an offence is committed partly in one local area and partly in another, or

(d) where it consists of several acts done in different local areas,

it may be inquired into or tried by a Court having jurisdiction over any of such local areas.

Offence triable, where act is done or consequence ensues. -When an act is an offence by reason of anything, 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.
Place of trial where act is an offence by reason of relation to other offence. -When an act is an offence by reason of its relation to any other act which is also offence or which would be an offence if the doer were capable of committing an offence, the first-mentioned offence may be inquired into or tried by a Court within whose local jurisdiction either act was done.
Place of trial in case of certain offences. –(1) Any offence of being a thug, or murder committed by a thug, of dacoity, of dacoity with murder, of belonging to a gang of dacoity or 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 abduction of a person may be inquired into or tried by a Court within whose local jurisdiction the 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 property which is the subject of the offence was possessed by any person committing it or by any person who received or retained such property knowing or having reason to believe it to he 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 offence was committed or any part of the property which is the subject to the offence was received or returned, 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 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.

Offences committed by letters, etc.–(I) Any offence which includes cheating may, if the deception is practiced by means of letters or Tele-communication 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 delivery of property may be inquired into or tried by a Court within whose local jurisdiction the property was delivered by the person deceived or was received by the accused person.

(2) Any offence punishable under section 494 or section 495 of the Indian Penal Code (45 of 1860) may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or the offender last resided within his or her spouse by the first marriage, or the wife by the first marriage has taken up permanent residence after the commission of the offence.

Offence committed on journey or voyage. -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 offence may be inquired into or tried by a Court through or into whose local jurisdiction that person or thing passed in the course of that journey or voyage.
Place of trial for offences 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’ section 219, section 220 or section 221, or

(b) the offence or offences committed by several persons are such that they may be charged with and tried together by virtue of the provisions of section 223;

the offences may be inquired into or tried by any Court competent to inquire into or try any of the offences.

Offence committed outside India.- 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 :

Provided 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.