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CRIMINAL COURTS: Part-3: Chapter III (Power of Courts), CODE OF CRIMINAL PROCEDURE, 1973

CHAPTER III: POWERS OF COURT

SYNOPSIS:

  • SECTION 26: Offence wise power.
  • SECTION 27: The particular special Court, jurisdictional power in a juvenile case.
  • SECTION 28: The High Court and the Sessions Judge, the power to pass sentence.
  • SECTION 29: The Magistrates, the power to pass sentence.
  • SECTION 30: The Court of a Magistrate, the power to pass sentence of imprisonment in default of fine.
  • SECTION 31: The competent Court, the power to pass sentence of several offences at one trial.
  • SECTION 32: The High Court or the State Government (as the case may be), the power to confer power.
  • SECTION 33: Power of appointed officer (whose power is invested by The High Court or the State Government [as the case may be])
  • SECTION 34: The High Court or the State Government (as the case may be), the power to withdraw power.
  • SECTION 35: Judges and Magistrates power, exercisable by their successor-in-charge.

SECTION 26: COURTS BY WHICH OFFENCES ARE TRIABLE

Concerning other provisions of this Code-

(a)Any offence under Indian Penal Code, 1860, may be tried by:

  • The High Court, or
  • The Court of Session, or
  • Any other Court, under First Schedule;

(b)Any offence under any other law:

  • When, any Court is mentioned- tried by such Court.
  • When, no Court is so mentioned, may be tried by:
    • The High Court, or
    • Any other Court, under First Schedule.

SECTION 27: JURISDICTION IN THE CASE OF JUVENILES

  • Any offence, not punishable with:
    • death, or
    • imprisonment for life;
  • committed by, any person:
    • under the age of 16 years,
    • at the date he appears or brought before the Court;
  • may be, tried by:
    • the Court of the Chief Judicial Magistrate, or
    • any Court specially empowered, under-
      • the Children Act, 1960, or
      • any other law for the time being in force, for the youthful offenders-
        • treatment,
        • training, and
        • rehabilitation.

SECTION 28:  SENTENCES WHICH HIGH COURTS AND SESSIONS JUDGES MAY PASS

(1)The High Court may pass any sentence authorized by law.

(2)A Sessions Judge or Additional Sessions Judge may pass any sentence authorized by law,

  • EXCEPT- Sentence of death, which should be confirmed by the High Court.

(3)An Assistant Sessions Judge may pass any sentence authorized by law,

  • EXCEPT- Sentence of:
    • Death, or
    • Imprisonment for life, or
    • Imprisonment for a term exceeding 10 years.

SECTION 29: SENTENCES WHICH MAGISTRATES MAY PASS

(1)The Court of a Chief Judicial Magistrate may pass any sentence authorized by law,

  • EXCEPT- Sentence of:
    • Death, or
    • Imprisonment for life, or
    • Imprisonment for a term exceeding 7 years.

(2)The Court of a Magistrate of the first class may pass a sentence of imprisonment, fine or both,

  • EXCEPT- Sentence of:
    • Imprisonment for a term not exceeding 3 years, or
    • Fine not exceeding 5000 rupees, or
    • Both.

(3)The Court of a Magistrate of the second class may pass a sentence of imprisonment, fine or both,

  • EXCEPT- Sentence of:
    • Imprisonment for a term not exceeding 1 year, or
    • Fine not exceeding 1000 rupees, or
    • Both.

(4)The Court of a Chief Metropolitan Magistrate shall have the powers of the Court of a Chief Judicial Magistrate and

  • The Court of a Metropolitan Magistrate shall have the powers of the Court of a Magistrate of the first class.

SECTION 30: SENTENCES OF IMPRISONMENT IN DEFAULT OF FINE

(1)The Court of a Magistrate may award such term of imprisonment as authorized by law.

PROVIDED-

The term (of imprisonment, in default payment of fine):

(a)should not excess of the powers of the Magistrate under section 29,

(b)SITUATION: Imprisonment awarded as part of the substantive sentence,

CONSEQUENCE: Imprisonment should not exceed, one-fourth of the term of imprisonment, magistrate is competent to inflict,

  • apart from, imprisonment in default of payment of fine.

(2)The imprisonment awarded under this section, may be:

  • in addition to a substantive sentence of imprisonment,
  • for the maximum term awardable by the Magistrate under section 29.

SECTION 31: SENTENCES IN CASES OF CONVICTION OF SEVERAL OFFENCES AT ONE TRIAL

(1)SITUATION: A person is convicted at one trial of 2 or more offences.

  • CONSEQUENCES: The competent Court may sentence him for such offences to the several punishments, subject to section 71 of the Indian Penal Code, 1860,
    • such punishments (consisting of imprisonment), is to commence 1 after the expiration of the other in such order as the Court may direct,
    • unless, the Court directs to run the punishments concurrently.

(2)CASE: In consecutive sentence

  • CONSEQUENCE: It shall not be necessary for the Court to send the offender before a higher Court for trial,
    • for reason only, of aggregate punishment for several offences being excess of the punishment,
    • punishment which, the Court is competent to inflict on conviction of a single offence.

PROVIDED-

  • such person’s sentence of imprisonment shall not exceed longer than a period of 14 years,
  • the aggregate punishment shall not exceed twice the amount of punishment which the Court is competent to inflict for a single offence.

(3)The aggregate of the consecutive of the consecutive sentences,

  • passed against the convicted person under this section,
  • shall be deemed to be a single sentence,
  • for the purpose of appeal by a convicted person.

SECTION 32: MODE OF CONFERRING POWERS

(1)While conferring powers under this Code,

  • The High Court or the State Government, as the case may be,
  • empower persons, through-
    • SPECIAL ORDER: By name or in virtue of their offices or classes of offices and
    • GENERAL ORDER: By their official titles.

(2)Every such order shall, take effect from the date of its communication to the person so empowered.

SECTION 33: POWERS OF OFFICERS APPOINTED

SITUATION: Any person holds office, throughout any local area-

  • in service of Government, by the High Court or the State Government,
  • invested with power under this Code.
  • appointed to an office:
    • equal or higher,
    • of same nature,
    • within a like local area,
    • under the same State Government.

CONSEQUENCE: He shall exercise the same powers in the local area in which he is so appointed,

  • unless, the High court or the State Government (as the case may be), may otherwise directs or directed.

SECTION 34: WITHDRAWAL OF POWERS

(1)The High Court or the Stat Government (as the case may be) may withdraw, all or any of the powers, conferred by-

  • it, under this Code on any person , or
  • any office subordinate to it.

(2)Any powers-

  • conferred by:
    • the Chief Judicial Magistrate, or
    • the District Magistrate,
  • may be withdrawn by the respective Magistrates, by whom such powers were conferred.

SECTION 35: POWERS OF JUDGES AND MAGISTRATES EXERCISABLE BY THEIR SUCCESSORS-IN- OFFICE

(1)The powers or duties of a Judge or Magistrate,

  • may be exercised or performed by his successor-in-charge,
  • subject to other provisions under this Code.

(2)SITUATION: Any doubt, who is successor-in-charge, of any:

  • Additional Sessions Judge, or
  • Assistant Sessions Judge.
    • CONCLUSION: The Sessions Judge-
      • for the purpose of this Code or any proceedings or order thereunder,
      • by written order,
      • shall determine the Judge, who shall be deemed to be such successor-in-charge.

(3)SITUATION: Any doubt, who is successor-in-charge, of any Magistrate.

  • CONCLUSION: The Chief Judicial Magistrate or the District Magistrate (as the case may be)-
    • for the purpose of this Code or any proceedings or order thereunder,
    • by written order,
    • shall determine the Magistrate, who shall be deemed to be such successor-in-charge.

WITH THIS PART, THE ‘CRIMINAL COURTS’ SERIES COMES TO AN END.

CRIMINAL COURTS, Part- 2: Chapter II (Constitution of Criminal Courts and offices), CODE OF CRIMINAL PROCEDURE, 1973

CHAPTER II: CONSTITUTION OF CRIMINAL COURTS AND OFFICES, Code of Criminal Procedure, 1973

SYNOPSIS:

  • SECTION 6: Classes of Criminal Courts
  • SECTION 7 and 8: Territorial description
  • SECTION 9 and 10: (i) Class of Criminal Court- Court of Session
  • SECTION 11 – 15: (ii) and (iii) Class of Criminal Court- Court of Judicial Magistrates
  • SECTION 16 – 19: (ii) Class of Criminal Court- Court of Metropolitan Magistrates
  • SECTION 20 – 23: (iv) Class of Criminal Court- Executive Magistrates

SECTION 6: CLASSES OF CRIMINAL COURTS

  • Other than-
    • the High Courts and
    • the Courts constituted under any law
      • except: under this code
  • in every State, there shall be the following classes of Criminal Courts-
    1. Courts of Session;
    2. Judicial Magistrates of the first class and Metropolitan Magistrate (in Metropolitan Area);
    3. Judicial Magistrates of the second class; and
    4. Executive Magistrates.

SECTION 7: TERRITORIAL DIVISIONS

    (1)Every State shall be or consists of sessions divisions and

  • Every Sessions division shall be or consists of districts.
  • For the purpose of this Code.
    • PROVIDED:
      • Every Metropolitan area shall be separate-
        • Sessions division and
        • District.
      • For the said purpose (this Code).

(2) The State Government may, after consultation with the High Court-

  • alter the limits or the number
  • of such divisions and districts.

(3) The State Government may, after consultation with the High court-

  • DIVIDE: any district into sub-divisions and
  • ALTER: the limits and the number, of such sub-division.

(4)At the commencement of this Code-

  • Following existing in a State:
    • Sessions divisions;
    • Districts; and
    • Sub-divisions,
  • deemed to have been formed under this section.

SECTION 8: METROPOLITAN AREAS

(1)The state Government, by notification (specifying date of applicability),

  • shall declare, any area in the State (comprising a city or town)= population, exceeding 1 million= metropolitan area,
  • for the purpose of this Code.

(2) As, from the commencement of this Code:

  • Presidency towns-
    • Bombay,
    • Calcutta and,
    • Madras.
  • the city of Ahmadabad,
  • shall be deemed to be declared metropolitan area, under section- 8(1).

(3) The limits of metropolitan area by notification of the State Government may be-

  • extended,
  • reduced and,
  • altered.
    • Exception- such reduction and alteration should not be made to reduce population of such area to less than 1 million.

(4) SITUATION: An area declared or deemed o be declared metropolitan area fall short on population of 1 million.

  • CONSEQUENCE: The State Government may, by notification cease it to be a metropolitan area.
    • Exception-such cease meant to be not taken place,
      • if, such cease’s, any-
        • inquiry,
        • trial, and
        • appeal,
      • is pending immediately:
        • before such cease and
        • before any Court or Magistrate in such area.

(5) SITUATION: The limits of any metropolitan area, has reduced or altered under section-8(3), by the State Government.

  • CONSEQUENCE: Any such inquiry, trial or appeal,
    • pending immediately before such reduction or alteration, before any Court or Magistrate,
    • shall continue to be dealt with under this Code, as if no such reduction or alteration has taken place.
    • EXPLANATION: “population”- that relevant figure, published, at last preceding census.

SECTION 9: COURT OF SESSION

(1)The State Government shall establish a Court of Session for every session’s division.

(2)Every Court of Sessions shall be presided over by a Judge, appointed by the High Court.

(3)The High Court may, to exercise jurisdiction in a Court of Session, appoint-

(i) Additional Sessions Judges and

(ii) Assistant Sessions Judges.

(4) CASE: The High Court may, appoint Sessions Judge, of one session’s division,to be also an Additional Sessions Judge, of another division.

  • CONSEQUENCE: Sessions Judge, for disposal of such cases,
    • may sit at such place or
    • as, the High Court may direct, at places in other division.

(5) SITUATION: The office of the Sessions Judge is vacant.

  • CONSEQUENCE: The High Court may, make arrangements for disposal of any urgent application,
    • application, which is or may be made or pending before such Court of Session,
    • by, Additional Sessions Judge or Assistant Sessions Judge, if there is none of them, then by Chief Judicial Magistrate, in the session’s division,
    • every such Judge or magistrate shall have jurisdiction to deal any such application.

(6) SITUATION: Court of Session shall originally, hold its sitting at such place or places, which may be specifically notified by the High Court.

  • CASE: According to Court of Session, it will be in general convenience of parties and witnesses, to hold sitting at any other place in the session’s division.
  • CONSEQUENCE: The Court of Session may, with the consent of prosecution and accused, sit at that place for:
    • disposal of case or
    • examination of witness(s).

EXPLANATION-“appointment” does not include:

  • first appointment, posting or promotion of a person,
  • by the government (required under any law),
  • to any service or post, relevant to the affairs of the Union or a State.

SECTION 10: SUBORDINATION OF ASSISTANT SESSIONS JUDGES

(1)All Assistant Sessions Judge:

  • shall be subordinate to and exercise their jurisdiction in the Court of,
  • the Sessions Judge.

(2) The Sessions Judge may, make rules,

  • from time to time, consistent with this Code,
  • for distribution of business among such Assistant Sessions Judge.

(3) SITUATION: In the event of Session Judge’s, absence or inability to act.

  • CONSEQUENCE: The High Court may, make provision, for disposal of any urgent application,
    • by, Additional Sessions Judge or Assistant Sessions Judge, if there is none of them, then by Chief Judicial Magistrate, in the session’s division,
    • every such Judge or magistrate shall have jurisdiction to deal any such application.

SECTION 11: COURTS OF JUDICIAL MAGISTRATES

(1)There shall establish,

  • as many Courts of:
    • Judicial Magistrate of the first class and
    • Judicial Magistrate of the second class.
  • in place, as:
    • every district (not being metropolitan area) and
    • at places, which the State Government may, with consultation with the High Court, specifically notify.

PROVIDED:

  • CASE: The State Government may after consultation with the High Court,
    • establish, special Courts of, Judicial Magistrate of the first class and Judicial Magistrate of the second class,
    • for any local area,
    • to try any particular case or class of cases.
  • SITUATION: Same local area for as such established Special Court and Court of Magistrate.
  • CONSEQUENCES: No other Court of Magistrate, shall have jurisdiction to try any case or class of cases,
    • the trial for which such Special Court of Judicial Magistrate has been established.

(2) The High Court shall, appoint, the presiding officers of the Court of Judicial Magistrate.

(3) The High Court, when it appears expedient or necessary.

  • may confer the powers of Judicial Magistrate of the first class or Judicial Magistrate of the second class,
  • on any member of Judicial service of the State, functioning as Civil Court, Judge.

SECTION 12: CHIEF JUDICIAL MAGISTRATE AND ADDITIONAL CHIEF JUDICIAL MAGISTRATE, etc

(1)The High Court shall appoint, Judicial Magistrate of the first class to be the Chief Judicial Magistrate.

  • in every district (not being a metropolitan area).

(2)The High Court may, appoint any Judicial Magistrate of first class, to be Additional Judicial Magistrate,

  • Such Additional Judicial Magistrate, shall have all or any of the powers of a Chief Judicial Magistrate under:
  • this code or
  • any other law, for the time being in force, as the High Court may direct.

(3)(a)The High Court, may designate any Judicial Magistrate of the first class, in any sub-division, as Sub-divisional Judicial Magistrate,

  • such sub-divisional Judicial Magistrate, relieved with responsibilities, as under this section, as required occasion.

(b)Subject to the general control of the Chief Judicial Magistrate,

  • every Sub-divisional Judicial magistrate, shall also have power to exercise supervision and control,
  • over the work of the Judicial Magistrates,(other than Additional Chief Judicial Magistrate), in the sub-division,
  • as the High Court may, specify in this behalf, by general or special order.

SECTION 13: SPECIAL JUDICIAL MAGISTRATES

(1)The High Court may, confer all or any power conferred or conferrable, by or under this code, on:

  • Judicial Magistrate of the first class and
  • Judicial Magistrate of the second class.

PROVIDED:

  • No such power, shall be conferred on a person,
  • unless he possesses such qualification or experience, regard to legal affairs,
  • as the High Court may, specify by rules.

(2)Such Magistrate shall be:

  • called Special Judicial Magistrate and
  • appointed for term not exceeding 1 year, at a time, as the High Court may direct by general or special order.

(3)The High Court may, empower Special Judicial Magistrate,

  • to exercise the powers of a Metropolitan Magistrate,
  • in relation to any metropolitan area, outside is local jurisdiction.

SECTION 14: LOCAL JURISDICTION OF JUDICIAL MAGISTRATES

(1)Subject to the control of the High Court, exercise all or any of the powers, respectively invested under this Code,

  • Chief Judicial Magistrate may define, local limits of the areas within Magistrates appointed under:
    • section 11 or
    • section 13.

PROVIDED-

  • Court of Special Judicial Magistrate may, hold its sitting, at any place within local area, for which it’s established.

(2)Except, Chief Judicial Magistrate’s above definition, for Magistrate appointment under section 11 or 13,

  • the jurisdiction and power of every such Magistrate shall extend throughout the district.

(3)SITUATION: Local jurisdiction, of Magistrate,

  • appointed under:
    • Section 11,or
    • Section 13, or
    • Section 18,
  • cases may be, in which he ordinarily holds Courts under this Code:
    • Court of Session,
    • Chief Judicial Magistrate, and
    • Chief Metropolitan Magistrate.
  • extends to any area beyond:
    • District or
    • Metropolitan area.
  • CONSEQUENCE: Such Magistrate, shall be construed, exercising jurisdiction, to said district or metropolitan area,
    • throughout the area within local jurisdiction, as referred to Court of Session, Chief Judicial Magistrate and, Chief Metropolitan Magistrate,
    • unless the context otherwise required, as the case may be.

SECTION 15: SUBORDINATION OF JUDICIAL MAGISTRATES

(1)Every Chief Judicial Magistrate shall be subordinate to Sessions Judge,

  • every other Judicial Magistrate shall, subject to general control of the Sessions Judicial, be subordinate to Chief Judicial Magistrate.

(2)Chief Judicial magistrate may, make rules or give special orders,

  • from time to time, consistent with this code,
  • for distribution of business among Judicial Magistrate, subordinate to him.

SECTION 16: COURTS OF METROPOLITAN MAGISTRATES

(1)There shall establish as many Courts of Metropolitan Magistrates,

  • In places:
    • ever metropolitan area,
    • at places, which State Government may with consultation with the High Court, specifically notify.

(2)The High Court shall, appoint the presiding officers of Court of Metropolitan Magistrates.

(3)The jurisdiction and power of every Metropolitan Magistrate shall extend throughout the metropolitan area.

SECTION 17: CHIEF METROPOLITAN MAGISTRATES AND ADDITIONAL CHIEF METROPOLITAN MAGISTRATES

(1)The High Court shall, in relation to every metropolitan area, within its local jurisdiction,

  • appoint Metropolitan Magistrate, to be Chief Metropolitan magistrate,
  • for such metropolitan area.

(2)The High Court may, appoint any Metropolitan Magistrate, to be an Additional Chief Metropolitan Magistrate,

  • such Additional Chief Metropolitan Magistrates shall have all or any powers of Chief Metropolitan Magistrates, under:
    • this code or
    • any other law, for the time being in force, as the High Court may direct.

SECTION 18: SPECIAL METROPOLITAN MAGISTRATES

(1)The High Court may confer all or any of the powers, if required by the Central or State Government,

  • upon person, who holds or held any post under the Government,
  • powers conferred or conferrable, by or under this Code on a Metropolitan Magistrate.

PROVIDED:

  • No such power shall be conferred on a person,
  • unless he possesses such qualification and experience, regarding legal affairs,
  • as the High Court may, specify by rules.

(2)Such Magistrate shall be:

  • appointed for term not exceeding 1 year at a time, as the High Court may direct, by general or special order,
  • called Special Metropolitan Magistrate.

(3)The High Court or State Government, as case may be empower Special Metropolitan Magistrate,

  • to exercise, the power of Judicial Magistrate of first class,
  • in any local area, outside the metropolitan area.

SECTION 19: SUBORDINATION OF METROPOLITAN MAGISTRATES

(1)Chief Metropolitan Magistrate and every Additional Chief Metropolitan Magistrate, shall be subordinate to Sessions Judge;

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

(2)The High Court may, define the extent of subordination,

  • of the Additional Chief Metropolitan Magistrate to the Chief Metropolitan Magistrate,
  • for the purpose of this Code.

(3)The Chief Metropolitan Magistrate may, make rules or give special orders,

  • from time to time, consistent with this Code,
  • for distributing business among the Metropolitan Magistrates and allocating business to an Additional Chief Metropolitan Magistrate.

SECTION 20: EXECUTIVE MAGISTRATES

(1)In every district and every metropolitan area, the State Government:

  • may appoint as many persons as it thinks fit to Executive Magistrates, and
  • shall appoint one of the Executive Magistrate to be the District Magistrate.

(2)The State Government may, appoint any Executive magistrate to be an Additional District Magistrate,

  • such Additional District Magistrate shall have powers of a District Magistrate under:
    • this Code or
    • any other law for the time being in force, as the State Government may direct.

(3)SITUATION: The office of a District Magistrate become vacant,

  • CONSEQUENCE: Any officer temporarily succeeding to the executive administration of the district,
    • shall exercise all conferred powers and perform all imposed duties by this Code on the District Magistrate.

(4)The State Government may, place any Executive Magistrate, in charge of a sub-division,

  • such Magistrate:
    • may be, relieved with charge as occasionally required and
    • shall be called Sub-divisional Magistrate.

(5)Nothing in this section shall preclude, the State Government,

  • from conferring all or any of the powers of an Executive Magistrate on a Commissioner of Police,
  • in relation to a metropolitan area,
  • under any law, for the time being in force.

SECTION 21: SPECIAL EXECUTIVE MAGISTRATES

  • The State Government may appoint Executive Magistrate, to be known as Special Executive Magistrates,
  • for such term as it may think fit,
  • at particular areas,
  • to perform particular functions,
  • confer on such Special Executive Magistrate, powers conferred under this Code on the Executive Magistrate as it may deem fit.

SECTION 22: LOCAL JURISDICTION OF EXECUTIVE MAGISTRATES

(1)Subject to the control of the State Government, the District Magistrate,

  • may define the local limits of the areas,
  • within which Executive Magistrate may exercise, all or any of the powers they may be invested under this Code.

(2)Except, the above definition jurisdiction and powers of every such Magistrate shall extend throughout the district.

SECTION 23: SUBORDINATION OF EXECUTIVE MAGISTRATES

(1)All Executive Magistrate (other than Additional District Magistrate) shall be subordinate to the District Magistrate,

  • every Executive Magistrate (other than sub-division magistrate), exercise power in sub-division, subject to general control of District Magistrate, shall be subordinate to the Sub-divisional Magistrate.

(2)The District Magistrate may, make rules or give special orders,

  • from time to time, consistent with this Code,
  • for distribution of business among the Executive Magistrate subordinate to him and allocating business to an Additional District magistrate.