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CHAPTER XII- INFORMATION TO THE POLICE AND THEIR POWERS TO INVESTIGATE (Section 154- 176), Part A- REGISTRATION (Section 154- 158), The Code of Criminal Procedure, 1973

FIRST INFORMATION REPORT (FIR) – Introduction

The report first recorded by the police relating to the commission of a cognizable case is the first information report, giving first information of the cognizable crime.

The term ‘first information report’ has not been defined in the Code of Criminal Procedure. But, in substance, it is that information which is given to the police-‘first in point of time.’

MADE TO-

  • Officer-in-charge of a police station.

MADE BY-

  • The complainant, or
  • Someone on his behalf

DRAFTING-

  • FIR is not an encyclopedia
  • It is not necessary that it should set out the minutest details of the occurrence. 

WHAT A FIR CONSTITUTES OF?

To constitute any statement as FIR, following 2 conditions must be fulfilled:

  • It must be something in the nature of a complaint or accusation or at least information of a crime to set the machinery of the police in motion.
  • It must be something in the nature of a complaint or accusation or at least information of a crime to set the machinery of the police in motion.
  • It must be related to a cognizable offence on the face of it.

PURPOSE TO MAKE FIR

  • To provide information (as its title suggests)
  • To set the police in motion.
  • For protection of society.
  • To corroborate or contradict, the maker of it.

OBJECT OF FIRST INFORMATION REPORT

The legal position as to the object, value and use of the first information report is well settled. As-

  • The principal of the FIR, from the point of view of the investigation authorities is to-
    • obtain information about the alleged criminal activity, so as to be able to take suitable steps for tracing, and
    • bringing to book the party.
  • Its important, as conveying the information regarding the occurrence, cannot be doubted,
    • even though, FIR does not constitute substantive evidence.
  • FIR, only be used as a previous statement for the purpose of:
    • either corroborating its maker under section 157, Indian Evidence Act, or
    • contradict him under section 145, Indian Evidence Act.

(it can by no means be utilized for contradicting or discrediting the other witnesses.)

  • Consider FIR to be- ‘first in point of time’-
    • so that the prosecution case cannot be thrown out on the ground that in the first information report an altogether different version was given by its makers.

COGNIZABLE AND NON-COGNIZABLE OFFENCES

SECTION 2(c): “cognizable offence”

“Cognizable offence means an offence for which and “cognizable case” means a case in which, a police officer may, in accordance with the first schedule or under any law for the time being in force, arrest without warrant.

To bring an offence within the definition of “cognizable offence” under section 2(c) of the Code, the offence by itself should be such for which the offender can be arrested without a warrant of arrest.

A “non-cognizable offence” means an offence for which, and “non-cognizable case” means a case in which, a police officer may not arrest without warrant.

CASE: Joginder Kumar V Sate of U.P. and Others 1994 (4) SCC 260.

Section 2(c) of the Code defines ‘cognizable offence’ as an offence for which a police officer may arrest indicates that arrest is not a must in every cognizable case. It is the discretion of the police officer to arrest or not to arrest and the discretion cannot be an arbitrary one but must be guided by the principles laid down in this case.

 SECTION 154: INFORMATION IN COGNIZABLE CASES

(1)Every information relating to:

  • the commission of a cognizable offence,
  • to an officer in charge of  a police station (if given orally, shall be reduced to writing by him or under his direction and be read over to informant),
  • shall be signed by the informant (whether the report given is in writing or reduced to writing as aforesaid),
  • the substance thereof shall be entered in a book (station diary), to be kept by such officer in such prescribed form in this behalf by the State Government.

PROVIDED:

(a)SITUATION: If the information is given by the woman who is temporarily or permanently mentally or physically disabled, and

  • against whom an offence under Indian Penal Code, 1860 (45 of 1860) under section 326A, 326B, 354, 354A, 354B, 354C, 354D, 376, 376A, 376B, 376C, 376D, 376E, or 509 is alleged to have been committed or attempted.

CONSEQUENCE: Such information shall be:

  • recorded by a police officer,
  • at the:
    • residence of the person seeking to report such offence or
    • at a convenient place of such person’s choice,
  • in the presence of an interpreter or a special educator, as the case may be.

(b)the recording of such information shall be video graphed,

(c)the police officer shall get the statement of the person recorded by a Judicial Magistrate under clause (a) of sub-section (5A) of section 164 as soon as possible.

(2) A copy of the information as recorded under section 154(1), shall be given forthwith, free of cost, to the informant.

(3) SITUATION: If officer in charge of a police station refuse to record the information referred under section 154(1).

CONSEQUENCE:

  • An aggrieved, may send the substance of such information:
    • in writing and by post,
    • to the concerned Superintendent of Police.
  • The concerned Superintended of Police shall-
    • either investigate the case himself (if, satisfied that such information disclose is the commission of the cognizable offence), or
    • direct ban investigation to be made by any police officer, in the prescribed manner in the code.
  • The police officer shall have all the powers of an officer in charge of the police station on relation to that offence.

(Section 154(1), regulates the recording of FIR, relating commission of cognizable offence.)

CASE: State of Haryana V Ch. Bhajan lal and Others AIR 1992 SC 604

In regard to section 154(1):

  • Condition which is ‘sine qua non’ for recording FIR- information,
  • information, disclosing a cognizable offence, (satisfying condition under section 154(1)),
  • officer in charge of police station, has no other option except to substance thereof,
  • enter, is to say register a case on the basis of such information.

In regard to section 154(3):

  • Concerned police officer cannot:
    • embrace upon an inquiry, as to whether information lay by informant (reliable or genuine), or
    • otherwise, refuse to register case on ground that the information (not reliable or credible).
  • On other hand, officer in charge statutorily obliged:
    • to register case, first and
    • then, to proceed with investigation,
    • investigation, if he has reason to suspect the commission of an offence which he is empowered under section 156 (subject to section 157).
  • SITUATION: Officer in charge of police station refuses to exercise jurisdiction vested in him to register case on information of commission.
    • CONSEQUENCE: such officer in charge statutory duty cast upon him under section 154 (3).

SECTION 155: INFORMATION AS TO NON-COGNIZABLE CASES AND INVESTIGATION OF SUCH CASES

(1)Entering the substance of the information.

SITUATION:

  • When information of the commission of a non-cognizable offence,
  • is given to an officer-in-charge of a police station, when the limits of which the offence has been committed.

CONSEQUENCE:

  • The officer in charge of police station shall-
    • enter or cause to enter the substance of the information, in a book:
      • to be kept by such officer,
      • in such form may prescribed by the State Government, and
      • refer the information to the magistrate.

(2)Any police officer shall not-

  • Investigate a non-cognizable case, without the order of a magistrate,
  • magistrate, having power to:
    • try such case, or
    • commit the case for trial.

A police officer-receiving such order of a Magistrate, may then-

  • Exercise the same powers as an officer in charge of a police station may exercise in cognizable……
  • except, the power to arrest without warrant,
  • in respect of the investigation.

A deemed cognizable case:

SITUATION: A case relates to 2 or more offences, of which at least 1 is cognizable.

CONSEQUENCE: The case shall be deemed to be cognizable case, notwithstanding that the other offences are non-cognizable.

CASE: Chattar Singh V The State of Haryana 1980 Cri. L.J. 315, P&H High Court

  • If one of the many offences that the FIR disclosed is cognizable,
  • then it is open to the police officer, to investigate even in the non-cognizable offence.

SECTION 156: POLICE OFFICER’S POWER TO INVESTIGATE COGNIZABLE CASE

(1)Any officer in charge of a police station-

  • may investigate any cognizable case, which a court is having jurisdiction over the local area, within the limits of such station, which would have power to inquire into or try under provision of chapter XIII,
  • without the order of a magistrate.

(2)In any case, at any stage, any proceeding of a police officer shall not be in question, on the ground that-

  • the case was one which such officer was not empowered under this section to investigation.

(3)Any magistrate, empowered under section 190,

  • may order such an investigation, as above mentioned.

The legal propositions that emerge are:

  • Where a magistrate orders investigation by the police before taking cognizable under section 156(3) of the Code and receives the final report from the police, he has power to issue notice to the complainant, record his statement band the statements of other witness and issue process under section 204 of the code.
  • A magistrate can order investigation under section 156(3) only at the pre-cognizance stage, that is to say, before taking cognizance under section 190, 200, 204 and where a magistrate decides to take cognizance under provisions of chapter 14, he is not entitled in law to order any investigation under section 156(3) though in cases not falling within the proviso to section 202 he can order an investigation by the police which would be in the nature of an enquiry as contemplated by section 202 of the Code.
  • Where a magistrate chooses to take cognizance, he can adopt any of the following alternatives:
    • He can peruse the complaint and if satisfied that better are sufficient grounds for proceedings, he can straightway issue process to the accused but before he does so, he must comply with the requirements of section 200 and record the evidence of the complainant or his witnesses.
    • The magistrate can postpone the issue of process and direct an enquiry by himself.
    • The magistrate can postpone the issue of process and direct an enquiry by any other person or an investigation by the police.
  • In case the magistrate after considering the statement of the complaint and the witnesses or as a result of the investigation and the enquiry ordered is not satisfied that there are sufficient grounds for proceeding, h can dismiss the complaint.

CASE: Tula Ram V Kishore Singh AIR 1977 SC 2401

Where a magistrate orders investigation by the police before taking cognizance under section 156(3) of the Code and receives the report thereupon, he can act on the report and discharge the accused or straightway issue process against the accused or apply his mind of the complaint filed before him and take action under section 190 of the Code.

SECTION 157: PROCEDURE FOR INVESTIGATION

SITUATION: An officer in charge of a police station empowered under section 156, to investigation, if:

  • has reason to suspect the commission of an offence,
  • from information received or otherwise.

CONSEQUENCE:

  • Such officer in charge shall:
    • forthwith stand a report of the same to the magistrate, empowered to take cognizance of such offence upon a police officer, and
    • proceed to the spot, to investigate (the facts and circumstances of the case):
      • in person or
      • shall depute, one of his subordinate officers not being below such rank as the state Government may, by prescribed general or special order in this behalf and
    • take measures for the discovery and arrest of the offender.

PROVIDED: Exceptions to investigation-

SITUATION 1: When information as to the commission of any such offence is:

  • given against any person by name, and
  • the case is not of a serious nature.

CONSEQUENCE: He (officer in charge of a police station) need not proceed to make an investigation on the spot:

  • in person, or
  • deputy a subordinate officer.

SITUATION 2: It appears to the officer in charge of a police station, that there is no sufficient ground for entering on an investigation.

CONSEQUENCE: He shall not investigate the case.

PROVIDED FURTHER:

  • The recording of the victim, in relation to an offence of rape shall be conducted:
    • at the residence of the victim or on the place of her choice,
    • by a woman police officer, ad far as practicable,
    • in the presence of her parents, guardian, near relatives, or social workers of the locality.

(2)The officer in charge of the police station shall-

  • State in his report, his reasons for not fully complying with the requirements of section 157(1) for its proviso clause (a) and (b), and
  • forthwith notify to the informant (in any in the prescribed manner by the State Government), the facts that the he will not investigate the case or cause it to be investigated.

CASE 1: Lal Singh V State 1980 Cri.LJ NOC 51 Raj.

  • Section 157 Cr.P.C. required reports contemplated by the section to be sent forthwith by the police officer concerned to a magistrate empowered to take cognizance of such offence.
  • This is really designed to keep the magistrate informed of the investigation of eth cognizable offences and to give appropriate direction, if necessary, under section 159 Cr.P.C. Where the copy of the FIR war received by the magistrate after two days from the day on which the alleged the fairness and genuineness of the police proceedings.

CASE 2: Govind Shanwar Chatal V Dattatraya Waman Bhanushali and another 1992 Cri.L.J. 1228, Bom.

Power of police to investigate does not flow from lodgment of the FIR. The police can undertake investigation from information received.

CASE 3: Dr. Vinod Narain V State of U.P. and others 1996 Cri.L.J. 1309 Alld. F.B.

  • Once disclosure of cognizable offence is made, arrest of the accused or suspect is a ”must”, for there is no other known method by which he may be brought before the court for trial.
  • The word “if necessary” in section 157 may at best make available a discretion to an investigating officer in a given case to defer arresting an accused or suspect if there is reasonable doubt about the identity.

CASE 4: Atique Ahmed V State of U.P. 2002 Cri.L.J. 132 (All)

  • Constitution of India, Articles 14, 19, 21, and 226- Writ of mandamus.
  • When police investigation violates rights of petitioner, a political leader, under article 14, 19, and 21 of Constitution, then judicial review under Article 226 of Constitution is permissible.

SECTION 158: REPORT HOW SUBMITTED

  • Every report sent to magistrate under section 157, if the State Government so directs,
    • shall be submitted through such superior officer of police (as the State Government appoint by general or special order, in that behalf).
  • Such Superintendent Officer:
    • may give such instructions to the officer in charge of the police station (as he thinks fit), and
    • shall, transmit the same without delay to the magistrate after recording such instructions on such report.

THIS (FIRST) PART OF THE SERIES ON THE FIR, CONSISTS OF INTRODUCTION TO THE CONCEPT OF FIR, AND REGISTRATION AND PROCEDURE OF FIR OF COGNIZABLE AND NON-COGNIZABLE OFFENCES BOTH.

NEXT PART CONSISTS OF POWERS EXISTS UNDER THIS FIR CONCEPT TO THE VARIES BODIES, EMPOWERED TO PROCEED.

CHAPTER VI: PROCESSES TO COMPEL APPEARANCES (Section 61- 90), Part A.- SUMMONS (Section 61-69), The Code of Criminal Procedure, 1973

INTRODUCTION

To meet the ends of justice, it is critical to produce the accused and other witness or related parties before the court whenever needed.

If the accused is found guilty at the conclusion of the trial, he must be present in person to receive the sentence. Also, his presence is necessary if imprisonment is to be enforced.

There are 6 ways to compel a person to appear in court-

  • Summon, (A-chapter VI: CrPC)
  • Warrant, (B-chapter VI: CrPC)
  • Warrant in lieu of summon,, (D-chapter VI: CrPC)
  • Proclamation of an absconder, (C-chapter VI: CrPC)
  • Attachment of his property, and, (C-chapter VI: CrPC)
  • Bond, with or without sureties to appear before a court on a certain date., (D-chapter VI: CrPC)

A.- SUMMONS (Section 61- 69)

It is a document issued from the office of a court of justice, calling upon the person to whom it is directed to attend, before:

  • a Judge, or
  • officer of the court.

Called “summons” in plural form because it’s meant to keep in duplicates in order to serve them to the concerned party.

  • Summons case relates to less serious offences, thus undertaken for a milder form of process:
    • For enforcement the appearance of the accused or of witness, and
    • For production of a document or a thing.

SECTION 61: FORM OF SUMMONS (written summons)

  • Every summons issued by a Court under this Code, shall be:
    • in writing,
    • in duplicate,
    • signed by-
      • presiding officer of such Court, or
      • such other officer as High Court may direct (from time to time, by rule),
    • bear the seal of the Court.
  • Get more clarity of this section by checking:
    • Forms of Summons: Schedule-II Form No.1 and Form No. 30.

CASE: Emperor V Rananjai Singh AIR 1928 All. 261

  • A summons must clearly show:
    • the name and address – of the person summoned,
    • the place, date and time – at which the person summoned is to attend, and
    • the place, date and nature – of the offence committed.
  • In the absence of such particulars, the proceedings taken thereon:
    • are invalid and
    • can be objected to by the person summoned.

Section 62: SUMMONS HOW SERVED

(1) Served by-

  • Every summons shall be served by:
    • a police officer, or
    • an officer of the Court:
      • one, who’s issuing the summon, or
      • other public servant (subject to such rules as the State Government may make in this behalf).

(2) Served on-

  • The summons shall (if practicable) be:
    • served personally,
    • on the person summoned,
    • by delivering or tendering to him,
    • on the duplicates of the summons.

(3)Summons proceedings-

  • Every person on whom a summons is so served shall:
    • sign a receipt therefore on the back of the other duplicate,
    • if so required by the serving officer.

CASE: Maqsood Ahmad V Must. Arifa Khatoon, 1983 All. L.J. 493

Fact:

  • In proceedings under section 126, CrPC magistrate committed illegality,
  • by restoring to postal service method for effecting service of service of summons upon the petitioner,
  • instead of issuing summons in accordance with provision under section 62, CrPC and onward.

Held:

  • Service by registered post could not effected,
  • it is obvious that the endorsement of ‘refuse’ made by the postman upon the postal cover,
  • cannot lead the court to the conclusion, that the summons was personally served upon the petitioner.

SECTION 63: SERVICE OF SUMMON ON CORPORATE BODIES AND SOCIETIES

Service of summons on a corporation may be effecting by-

  • Serving it on:
    • the secretary, local manager or other principal officer of the corporation, or
  • Letter sent (where the service shall be deemed to have been affected when the letter would arrive in ordinary course of post):
    • by registered post,
    • addressed to the chief officer of the corporation in India.

Explanation: In this section, “corporation” means-

  • an incorporated company or other body corporate, and
  • a society, registered under the societies Registration Act, 1860 (21 of 1860).

SECTION 64: SERVICE WHEN PERSON SUMMONED CANNOT BE FOUND

SITUATION: Where, the person summoned cannot be found, by the exercise of due diligence.

CONSEQUENCE: The summons may be served by;

  • Leaving 1 of the duplicates,
  • with some adult male member of his family residing with him,
  • for him (the person summoned).

(If required by the serving officer, the person with whom the summons is so left shall sign a receipt therefore on the back of the other duplicate.)

Explanation: (Exception)

  • A servant is not a member of a family within the meaning of this section.

SECTION 65: PROCEDURE WHEN SERVICE CANNOT BE EFFECTED AS BEFORE PROVIDED

SITUATION: If service cannot be exercised of due diligence, as provided under section 62, 63 or 64, be effected.

CONSEQUENCE: The serving officer shall:

  • affix one of the duplicates of the summons,
  • to some conspicuous part of the house or homestead in which the person summoned, ordinarily resides.

(Thereupon, the Court after making such inquiries (as it think fit), may either:

  • declare that the summons has been duly served, or
  • order fresh service (in a proper manner).)

SECTION 66: SERVICE ON GOVERNMENT SERVANT

(1) SITUATION: Where, the person summoned is in the active service of the government.

CONSEQUENCE: The court, issuing the summons shall,

  • ordinarily, send it in duplicate,
  • to the head of the office, in which such person in employed.

(Thereupon, such head shall:

  • cause the summons to be served (in the manner provided under section 62), and
  • return it to the Court:
    • under his signature (which, shall be evidence of due service (66(2)),
    • with endorsement (required by that section))

SECTION 67: SERVICE OF SUMMONS OUTSIDE LOCAL LIMITS

SITUATION: When a court desires that a summons issued by it shall be served at any place outside its local jurisdiction.

CONSEQUENCE: Court shall:

  • ordinarily, send such summons in duplicate,
  • to a Magistrate, within whose jurisdiction, the person summoned-
    • resides, or
    • is, to be there served.

SECTION 68: PROOF OF SERVICE IN SUCH CASES AND WHEN SERVING OFFICER NOT PRESENT

(1) SITUATION: When a summons issued by a court is served outside its local jurisdiction, and

  • in case, where the officer who has served a summons is not present at the hearing of the case.

CONSEQUENCE: An affidavit and duplicate of the summons, shall be-

  • admissible in evidence and
  • the statements made therein shall be-
    • deemed to be correct,
    • unless and until the contrary is proved.
  • (An affidavit, to be made before a Magistrate,
    • purporting that such summons has been served.
  • A duplicate of the summons,
    • purporting, to be endorsed (in manner provided by section 62 or section 64) by the person:
      • to whom it was delivered or tendered, or
      • with whom it was left.)

(2) (The affidavit mentioned in this section, may be-

  • attached to the duplicate of the summons, and
  • returned to the Court.)

SECTION 69: SERVICE OF SUMMONS ON WITNESS BY POST

  • (1) Notwithstanding, anything contained in the preceding sections of this chapter,
  • a court issuing a summons a witness may-
    • direct a copy of the summons (in addition to and simultaneously with the issue of such summons)
    • to be served, by registered post, addressed to the witness at the place, where he-
      • ordinarily resides, or
      • carries on business, or
      • personally works for gain.

(2) SITUATION: An acknowledgement purporting to be signed by the witness or an endorsement purporting to be made by a postal,

  • employee, that the witness refused to take delivery of the summons,
  • summons, which has been received.

CONSEQUENCE: The Court issuing the summons may declare that the summons has been duly served.

FIRST PART OF THE SERIES ON CHAPTER 6 OF CODE OF CRIMINAL PROCEDURE, 1973 CONSISTS OF SUMMONS, AS PART-A, IN THE CODE and SECOND PART CONSISTS OF PART-B, OF THE CODE WHICH IS WARRANT.

THE PAYMENT OF WAGES ACT, 1936, Bonus Part- DO YOU KNOW?

Under the Constitution, LABOUR falls under the Concurrent List (or List-III (Seventh Schedule) is a list of 52 items (though the last subjects are numbered 47) given in the Seventh Schedule to the Constitution of India) which means the Union government and states have joint jurisdiction.

Parliament has recently passed 4 labor Codes to simplify and modernize labor regulations.

Under the new plan, 29 central laws will be subsumed into four broad codes:
I. Code on Wages;
II. Industrial relations;
III. Occupational Safety, Health and Working conditions (OSH) and
IV. Social Security Code.

These Codes got introduced on the recommendations of the Second National Commission on Labour (2002).

In subject to the Payment of Wages Act, 1936, let’s get into the “Code of Wages”

I. INTRODUCED:
The Code on Wages was passed by Parliament in 2019 while the three other codes got clearance from both the Houses in 2020.

II. REPLACEMENT:
The Code on Wages replaces 4 existing Laws:
(a) Minimum Wages Act, 1948
(b) Payment of Wages Act, 1936
(C) Payment of Bonus Act, 1965
(d) Equal Remuneration Act, 1976.

III. AIM:
It aims to regulate wage and bonus payments in all employments (industry, business, trade, and manufacture).

IV. APPLICABILITY:
This Code will apply to all the employees. Wage relevant decisions will be made accordingly-
➡The Central Government: For the people employed in mines, railways, and oil fields. ➡the State Governments: For all other employments.

V. WAGES:
There will be one definition of ‘wages’:
The Wages in this Code include salary, allowance, or any other monetary component excluding the bonus and traveling allowance among others.

VI. PAYMENT OF WAGES:
The employer can fix the wage period as daily, weekly, fortnightly, or monthly. The payment will be made in coins, currency notes, through an electronic medium, cheque, or by a credit to the bank account.

VII. PROHIBITING GENDER DISCRIMINATION:
The Code prohibits discrimination based on gender in matters associated with wages and recruitment of employees for the same work or work of similar nature.

VIII. DEDUCTIONS:
The employer has the right to deduct wages on the following grounds: fines, absence from duty, accommodation provided by the employer, or the advance payment made to the employee.
It is to be noted that the deductions should not be more than 50% of the employee’s total wage.

IX. OFFENCE:
The Code specifies penalties of the offense committed by an employer in cases where any provision of the Code is contravened or employees’ are paid less than the minimum wages.
As per the Code, the maximum punishment for the said offenses is three-month imprisonment along with a fine of Rs. 1 lakh.

WITH THIS ‘DO YOU KNOW?’ PART, WE COME TO AN END TO THIS SERIES ON THE PAYMENT ACT, 1936.

THE PAYMENT OF WAGES ACT, 1936, Part- 4: AUTHORITIES FOR CLAIMS (Section 15)

CLAIMS ARISING OUT OF DEDUCTIONS FROM WAGES OR DELAY IN PAYMENT OF WAGES AND PENALTY FOR MALICIOUS OR VEXATIOUS CLAIMS

Section 15:

Empowers the appropriate government to appoint some person as the authority (for any specific area),

  • to hear and decide all claims arising out of-
    • deductions from the wages, or
    • delay in payment of the wages of person employed or paid in that area, including all matters incidental to such claims.

Section 15(1):

The appointment shall be made by notification in the Official Gazette,

Following may be appointed as the authority as aforesaid:

(a)Any commissioner for workmen’s compensation, or

(b)Any officer of the bCentral Government exercising functions, as-

  • Regional Labor Commissioner, or
  • Assistant Labor Commissioner (with at least 2 years experience), or

(c)Any officer of the State Government (with at least 2 years experience),

  • not below the rank of assistant commissioner, or

(d)A presiding officer of any labor Court, or Industrial Tribunal constituted under-

  • the Industrial Disputes Act, 1947 or
  • any corresponding law relating to the investigation and settlement of industrial disputes in force in the State, or

(e)Any other officer with experience as a –

  • Judge of a Civil Court, or
  • Judicial Magistrate.

PROVIDED:

  • The appropriate Government may appoint more than 1 authority for any specific area where it is considered necessary to do so.
  • It may be general or specific order to provide for the distribution or allocation of work to be performed by them under this Act.

CASE 1: Marute M. Mullik V Polson Ltd. (1970) Lab. I.C. 308

  • The scheme of Payment of Wages Act is the all claims arising out of:
    • deductions from wages, or
    • delay in the payment of wages,
  • are to be decided by the authority appointed by the appropriate Government under section 15 and not by a Civil Court.

CASE 2: Authority Sabastian Almenda V Taylor R.M. [AIR (1956) Bom. 737]

The authority under Payment of Wages Act constitutes a court or tribunal of summary jurisdiction.

CASE 3: Rameshwar Lal V Jogender Dass [AIR (1970) Ori. 76]

  • The clear object of the legislature in settling up this court or tribunal,
    • is to give facilities to the to recover his wages as expeditiously as possible.

POWERS OF AUTHORITIES APPOINTED UNDER SECTION 15

Section 18:

Every authority appointed under section 15 shall have all the powers of a Civil Court under the Code of Criminal Procedure, 1908, for purpose of:

  • taking evidence and enforcing the attendance of witnesses, and
  • compelling the production of documents.

Further, every such authority shall be deemed to be a Civil Court for the purposes of Section 195 and of Chapter XXVI, Code of Criminal Procedure, 1973.

APPLICATION FOR CLAIMS

Section 15(2): Who may file application?

An application for claims arising under the Act may be filed by:

  • the person employed himself, or
  • any legal practitioner, or
  • any legal practitioner, or
  • any official of a registered trade union authorized in writing to act on his behalf, or
  • any inspector under the Act, or
  • any other person acting with the permission of the Authority, appointed under section 15(1).

Application to be filled within 12 months-

Section 15(2) provides:

Proviso 1: Every application for claims under the Act shall be presented within 12 month from the date on which:

  • the deduction from the wages was made, or
  • the payment of the wages was due to be made.

Proviso 2: An application may also be admitted after 12 months if the applicant satisfies the authority that-

  • there was a sufficient cause for not making the application within 12 months.

PROCEDURE (Section 15(3))

SITUATION: When any application for claims under the Act is entertained.

CONSEQUENCE:

  • The Authority shall hear or give an opportunity of being heard to:
    • the applicant, and
    • the employer or other persons responsible for payment of wages under section 3.
  • The Authority shall:
    make such further inquiry as may be necessary.
  • The Authority may, direct-
    • the refund to be made to the employed person of:
      • the amount deducted or
      • the payment of the delayed wages.
    • together with such compensation as it may think fit.
  • The compensation shall not exceed:
    • Case 1: Improper deduction: 10 times of the amount improperly deducted.
    • Case 2: Delayed wages: Rs. 3000, but not less than Rs. 1500.

(SITUATION: Where the deducted or delayed wages are paid before the disposal of the application.

CONSEQUENCE: The Authority, may direct the payment of such compensation as it may think fit. )

PROVIDED:

No direction if the Authority is satisfied:

SITUATION: Delayed wages.

CONSEQUENCE: No direction for the payment of compensation shall be made if the Authority is satisfied that the delay was due to:

  • a bona fide error or dispute, or
  • the occurrence of an, emergency or the existence of exceptional circumstances, or
  • the failure of the employed person to apply for or accept payment.

MALICIOUS OR VEXATIOUS APPLICATION (Section 15(4))

SITUATION: If the Authority hearing an application is satisfied.

 CONSEQUENCE:

Case 1: The application was malicious or vexatious.

Consequence: The Authority may direct a penalty not exceeding Rs. 375, by the person presenting the application to be paid to:

  • the employer, or
  • other person responsible for payment of wages.

Case 2: Where, the applicant ought not to have been compelled to seek redress under section 15.

Consequence: The Authority may further direct that a penalty not exceeding Rs. 375by they employer to be paid to-

  • the State Government, or
  • other person responsible for the payment of wage.

FINE DECISION OF THE AUTHORITY (Section 15(4-A))

SITUATION: Where there is any dispute as to:

  • the person, or
  • person being the legal representative or
  • representative of the employer or of the employed person.

CONSEQUENCE: The decision of the Authority on such dispute shall be final.

DEEMED JUDICIAL PROCEEDING (section 15(4-B))

Any inquiry under section 15 shall be deemed to be a judicial proceeding within the meaning of section 193, 219 and 228, Indian Penal Code, 1860.

RECOVERY OF AMOUNT (Section 15(5))

Any amount directed to be paid under section 15-

  • Case 1: If the Authority is a Magistrate.
    • Consequence: the amount, may be recovered by the Authority,
      • as if it were a fine imposed by him as a Magistrate, and
  • Case 2: If the Authority is not a magistrate.
    • Consequence: the amount, may be recovered by any magistrate to whom the Authority makes application in this behalf,
      • as if it were a fine imposed by such magistrate.

FOURTH PART CONSISTS OF AUTHORITIES FOR CLAIMS (Section 15), AS FIRST PART CONSISTS OF NEED, OBJECTIVE AND DEFINITIONS, and SECOND PART CONSISTS OF RULES FOR PAYMENT OF WAGES (Section 3-6),and THIRD PART CONSISTS OF DEDUCTIONS FROM WAGES (Section 7-13).

THE PAYMENT OF WAGES ACT, 1936, Part -3: DEDUCTIONS FROM WAGES (Sections: 7- 13),

DEDUCTIONS WHICH MAY BE MADE FROM WAGES (Sec. 7)

Section 7(1): The wages of an employed person shall be paid to him without deductions,

Except- deductions authorized by or under the Payment of Wages Act, 1936.

DEEMED OR NOT TO BE DEEMED DEDUCTIONS [Explanations under section 7(1)]

Deemed deduction (Explanation: 1)

  • Every payment made by the employed person to the employer or his agent,
    • shall be deemed to be deduction from wages for the purpose of this Act.

Not to be deemed deduction (Explanation: 2)

  • Any loss of wages, for good and sufficient cause,
  • resulting from the imposition, upon an employed person of any of the following penalties, namely-
    • the withholding of increment or promotion, (including the stoppage of increment at any efficiency bar), or
    • the reduction to:
      • a lower post or time-scale, or
      • lower post in a time-scale, or
    • suspension,
  • shall not be deemed to be a deduction from wages.
  • CASE: Where the rules, framed by the employer, for the imposition of any such penalty.
    • CONSEQUENCE: The rules are in conformity with the requirements, if any,
      • requirements, which may be specified by the State Government by notification in the Official Gazette.

KINDS OF DEDUCTIONS (authorized as aforesaid) [Section 7(2), 8, 9, 10, 11, 12, 13]

Deductions referred under section 7(1), from wages of an employed person, may be of the following kinds only, namely-

I.DEDUCTIONS FOR FINES (Sec. 7(2)(a) and 8)

Exception to the deduction:

(1)Section 8(1): No fine shall be imposed:

  • with the previous approval of appropriate government or prescribed authority,
  • on an employed person,
  • if, he has not committed such act or omission which may have specified by notice by employer, for fine may be imposed.

No fine shall be imposed on an employed person, until:

  • Sec. 8(3): he has been given an opportunity of showing cause against the fine.
  • Sec, 8(5): he has completed the age of 15 years.

Exhibition of the notice:

Notice (specifying the act or omissions, for which fines may be imposed) shall be exhibited:

  • in prescribed manner,
  • on the premises in which employment is carried on.

(and in case of persons employed upon a railways at prescribed place or places.)

Fine limit:

Sec. 8(4): Total amount of fine, which may be imposed:

  • in any one wage period,
  • on any employed person,
  • shall not exceed 3% of wages payable to him, in respect of that wage-period.

Time barred recovery:

Sec. 8(6): Such imposed fine shall not be recovered from the employed person;

  • by installments or
  • after, expiry of 90 days from the days on which, it was imposed.

Implied imposition of fine:

Sec.8(7): Every fine shall be deemed to have been imposed on the day of act or omission,

  • in respect of which it was imposed,
  • record and purpose of fine:

Record and purpose of fine:

Sec. 8(8):

I.RECORD: All fines and realizations thereof,

  • shall be recorded in a register (in prescribed form),
  • to be kept by the responsible for payment of wage.

II.PURPOSE: All realizations of fines,

  • shall be applied only to the purposes, beneficial to persons employed in the factory.

II.DEDUCTION FOR ABSENCE FROM DUTY (Section 7(2)(b) and 9)

Deduction for being absent.

Sec. 7(2)(b): Deductions may be made:

  • on account of absence of an employed person from duty,
  • from the place or places where he is required to work,
  • by the terms of his employment.

“absence” means :

Sec. 9(1): The absence may be:

  • for the whole or any part of the period,
  • period, during which he is so required to work.

Amount of deduction:

Sec. 9(2): Ratio between amount of such deduction and the wages payable,

  • shall not exceed the ratio between the period of absence and total period within such wage period.

Case: K.S.R.T. Employees’ Association V General manager, K.S.R.T. (1985) Lab. I.C. 552(Ker.)

  • In a strike by workers in a public utility like transport service,
  • if, employees absent for a part of the day without notice,
  • deduction of full day’s wages would not be unjustified or illegal.

Absence from concert.

Sec. 9(2): Provided-

  • SITUATION: If 10 or less employed persons acting in concert absent themselves without die notice and reasonable cause.
  • CONSEQUENCE: Deduction may:
    • include, such amount not exceeding his wages for 8 days.
    • be due, to employer in lieu of notice.

Deemed absence.

  • SITUATION: Employed person refuses to carry out his work in pursuance of stay-in –strike, or any other cause (non-reasonable in circumstances).
  • CONSEQUNECES: He shall be deemed to be absent from the place (where he is required to work).

III.DEDUCTIONS FOR DAMAGE OR LOSS (Section 7(2)(c),(m),(n) and (o) and 10)

Amount of deduction.

Sec. 7(2)(c) and 10(1):

  • A deduction for:
    • loss of (or damage to) goods expressly entrusted to employed person for custody,
    • loss of money for which he is required to account,
  • shall not exceed the amount of damage or loss caused to the employer.,
  • for loss, caused by neglect or default of the employed person.

(same is the case regarding losses sustained by railway administration on account of any rebates or refunds incorrectly granted by employed person.)

Opportunity of showing cause.

Sec. 10(1-A): The deduction shall not be made, until:

  • employed person has been given a opportunity of showing cause against deduction.

(similar opportunity, shall also be given to employed person)

In case of deductions for recovery of losses sustained by railway administration on account of:

 Sec. 7(2)(m): Acceptance by employed person of counterfeit, base coins, mutilated, or forged currency notes.

Sec. 7(2)(n): Failure of employed person:

  • To invoice, bill, collect, or account,
    • for appropriate government, due to railway administration.
  • Loss may relate to:
    • Fares, freight, demurrages, wharfage,
    • in respect of-
      • sale of goods, in catering establishments,
      • sale of commodities in grain shops or otherwise.

Sec. 7(2)(o):  Any rebates or refunds incorrectly granted by the employed person,

  • where such loss is directly attributable to his neglect or default.

Register record.

Sec. 10(2): All deductions and realizations regarding damage to or loss of goods,

  • shall be recorded in register to be kept by the person responsible for the payment of wages under section 3.

IV.DEDUCTIONS FOR SERVICES (Section 7(2)(d),(e) and 11)

Conditions to impose deduction.

CASES:

  • Sec. 7(2)(d): deduction for house accommodation,
  • Sec. 7(2)(e): such amenities and services supplied by employer as have been authorized by appropriate government.

CONSEQUENCE: The deduction shall not be made from the wages of employed person,

  • unless, such services have been accepted by him as:
    • a term of employment, or
    • otherwise.

Power to impose conditions.

Sec. 11: In case of deductions regarding services and amenities,

  • the appropriate government may impose conditions.

V.DEDUCTIONS FOR RECOVERY OF ADVANCES (section 7(2)(f) and 12)

Conditions to recover advances as deductions:

Sec. 12:

SITUATION 1: An advance of money given before employment.

CONSEQUENCE: recovery shall be made-

  • from the first payment of wages in respect of complete wages period,
  • except- no recovery can be made of such advance given foe traveling expenses.

SITUATION 2: An advance of money given after employment.

CONSEQUENCES: Recovery shall be subject to-

  • such conditions as the appropriate government may impose.

SITUTION 3: Advances of wages not already earned.

CONSEQUNECES: Recovery shall be subject to :

  • any rules made by the appropriate government in this regard,
  • appropriate government may regulate:
    • the extent to which such advances may be given and
    • the installments by which they may be recovered.

“advance” includes:

Sec. 7(2) (f): The advances may be of any nature including:

  • advances for travelling allowances and conveyance allowances and the interest due in respect thereof, or
  • adjustment of over payment of wages.

Cases: M.G.Koshi V A.D.Cotton Mills (AIR (1959) Ker. 332)

  • Deductions for adjustment of overpayment of wages is authorized under section 7(2)(f) of the Act,
  • But there is no provision in the Act limiting the period within which employer should make deduction for adjustment of over-payment of wages.

VI.DEDUCTIONS FOR RECOVERY OF LOANS (Section 7(2) (fff) and 12-A)

Deduction regarding granted loans:

Sec. 7(2)(fff): Deduction for loan granted for;

  • house building or other purposes and
  • the interest due I respect thereof.

Regulating authorities:

Sec. 12-A: Deduction for recovery of loans, approved by the appropriate government, which shall be subject, to the rules made by it, regulating-

  • the extent to which such loans may be granted and
  • the rate of interest payable thereon.

VII.DEDUCTIONS FOR PAYMENTS TO CO-OPERATIVE SOCIETIES AND INSURANCE SCHEME (Section 7 (2)(j) and (k) and 13)

These deductions include:

Sec. 7(2)(j): Deductions for payments to:

  • co-operative societies appropriate by the appropriate government or
  • a scheme of insurance maintained by the INDIAN POST Office.

Sec. 7(2)(k): Deductions made with written authorization of the person employed for-

  • payment of any premium on his life insurance policy to Life insurance Corporation, India, or
  • purchase of securities of:
    • the Government of India , or
    • any State Government, or
  • depositions in any Post office saving Bank furtherance of any savings scheme of any such government.

Power to impose conditions:

Sec. 13: These deductions shall be subject to such conditions,

  • as the appropriate government may impose.

OTHER DEDUCTIONS

Deductions not got covered under the headings of section 8, 9, 10, 11, 12, and 13 are;

I.Section 7(2)(g): Deduction of Income tax payable by the employed person.

II. Section 7(2)(h): Deduction required to be made by order of a court or other authority competent to make such order.

III.Section 7 (2)(i): Deduction for subscription to or payment of advances from any provident fund:

  • to which the Provident Funds Act, 1925 (19 of 1925) applies, or
  • ‘as defined in clause (38) of section 2 of , the Income Tax Act, 1961 (43 of 1961), or
  • approved in this behalf, by the appropriate government.

IV.Section 7(2)(l): Deduction for payment of insurance premia on Fidelity Guarantee Bonds.

V.Sec. 7(2)(m): Deduction for payment of losses sustained by a  railway administration:

  • recovery on a account of acceptance by the employed person and
  • losses on account of counterfeit or base coins or mutilated or forged currency notes.

VI.Section 7(2)(p): Deductions made with written authorization of the employed person,

  • for contribution to funds as:
    • Prime Minister’s National Relief Fund, or
    • such other fund, as may be specified by the appropriate government.

(this clause was added by the Payment of wages (Amendment) Act, 1976)

VII.Section 7(2)(q): Deductions for contributions to any insurance scheme:

  • framed by the appropriate government,
  • for the benefit of it’s employees.

(this clause was added by the payment of Wages (Amendment) Act, 1977)

LIMIT ON DEDUCTIONS (Section 7(3))

The total amount of deductions which may be made under section 7(2), in wage-period from the wages of any employed person, shall not exceed:

  • 75% of such wages:
    • in case where, such deductions are wholly or partly made for payments to co-operative societies under section 7(2)(j),
  • 50% of such wages:
    • in any other case.

PROVIDED:

SITUATION: Where the total deductions authorized under section 7(2) exceed 75% or as the case may be, 50% of the wages.

CONSEQUENCE: The excess may be recovered in such manner as may be prescribed.

CRUX (Section 7(4))

  • This section shall be understood as preventing (construed as precluding) the employer from:
    • recovering from the wages of the employed person, or
    • otherwise, any amount payable by such person under any law for the time being in force (other than the Railways Act, 1989 (24 of 1989).

THIRD PART CONSISTS OF DEDUCTS FROM WAGES (Section 7-13) as FIRST PART CONSISTS OF NEED, OBJECTIVE AND DEFINITIONS, and SECOND PART CONSISTS OF RULES FOR PAYMENT OF WAGES (section 3-6), and FOURTH (and the last part) PART CONSISTS OF AUTHORITIES.

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.

CRIMINAL COURTS- Part 1: Hierarchy of courts, CODE OF CRIMINAL PROCEDURE, 1973

INTRODUCTION

Hierarchy of courts is an organization of courts that forms a pyramid. Here, criminal courts are assembled as per there:

  • competency to try case and
  • power to pass sentence.

Criminal courts under Indian justice system, constitutes of powers and duties, where it:

  • attempts to mitigate crime by upholding social control and
  • sanction penalties and rehabilitation measures to the offenders.

HIERARCHY OF CRIMINAL COURTS IN INDIA

  • The Supreme Court
  • High Courts
  • Sessions Court
    • It consists of-
      • Sessions Judge and Additional Sessions Judge
      • Assistant Sessions Judge
  • Magistrate Courts
    • Categorized as-
      • Chief Metropolitan Magistrate (or Additional Metropolitan magistrate)
        • Metropolitan Magistrate
        • Special Metropolitan Magistrate
      • Chief Judicial Magistrate (or Additional Judicial Magistrate)
        • Sub-divisional Judicial Magistrate
          • Judicial Magistrate of first class
          • Judicial Magistrate of second class

I.THE SUPREME COURT

  • The Supreme Court is the Apex Court of India, established under Article 124 of the Indian Constitution.
  • Holding the top most slot in the hierarchy of criminal courts, it possesses power:
    • As final court of appeal and
    • To pass any sentence, authorized by law.

II. HIGH COURTS

  • High courts are established under Article 214 of the Indian Constitution.
  • Duty bound to administer justice in:
    • The State,
    • Group of states and
    • Union Territories.
  • Possess power under section 28(1), Code of Criminal Procedure, 1973:
    • To pass any sentence authorized by law.

III. SESSIONS COURT

  • Session Courts are established:
    • By, State Government under section 9, Code of Criminal Procedure, 1973.
    • In, every session division, as-
      • Division, prescribed over by a Judge,
      • Judge, appointed by High Court of the state,
      • State in which Session Court is established.

POWERS TO SESSIONS COURT JUDGES:

 (a).Sessions Judge and Additional Sessions Judge-

  • May pass any sentence authorized by law.
  • Exception- section 28(2), Code of Criminal Procedure, 1973:
    • Death sentence, subject to the High Court confirmation.

(b).Assistant sessions Judge-

  • May pass any sentence authorized by law.
    • Exception- Section 28(3), Code of Criminal Procedure, 1973:
      • Assistant Sessions Judge cannot pass:
        • Death sentence or
        • Imprisonment for life or
        • Imprisonment for a term exceeding 10 years.

IV. MAGISTRATE COURTS

  • Magistrate Courts are categorized as per metropolitan areas.
  • Magistrate Courts are established:
    • By, State Government after consultation of the High Court.
    • For proceedings to take place by-
      • Metropolitan Magistrates: In metropolitan areas under section 16, Code of Criminal Procedure, 1973.
      • Judicial Magistrates: In areas other than metropolitan areas under section 11, Code of Criminal Procedure, 1973.
  • All forms of magistrate Courts are categorized in 4 categories, for better understanding of there working:

(i) COURT OF CHIEF METROPOLITAN MAGISTRATE (or Addl. MM) and COURT OF CHIEF JUDICIAL MAGISTRATE (or Addl. JM)

  • Under section 29(4), Code Criminal Procedure, 1973:
    • Chief Metropolitan Magistrate (or Additional Metropolitan Magistrate) and Chief Judicial Magistrate (or Additional Judicial Magistrate), possess same power.
  • Under section 29(1), Code Criminal Procedure, 1973:
    • The Chief Judicial Magistrate can pass any sentence authorized by law, except-
      • Death sentence or
      • Imprisonment for life or
      • Imprisonment for a term exceeding 7 years.

(Following section 29(4), Chief Metropolitan Magistrate even possess this power and bound by its following exception.)

(ii) SUB-DIVISION JUDICIAL MAGISTRATE

  • Being subordinate to Chief Judicial Magistrate:
    • Judicial Magistrate for first class may be delegated as sub-divisional Judicial Magistrate.
  • Sub-divisional Judicial Magistrate, possess power to control and supervise work of Judicial Magistrate:
    • Except- Additional Chief Judicial Magistrate.

(iii) COURT OF METROPOLITAN MAGISTRATE and COURT OF JUDICIAL MAGISTRATE of first class

  • Under section 29(4), Code Criminal Procedure, 1973:
    • Court of Metropolitan Magistrate and Court of Judicial Magistrate of first class possess the same power.
  • Under section 29(2), Code Criminal Procedure, 1973:
    • Court of Judicial Magistrate of first class can pass any sentence authorized by law, of-
      • Imprisonment for a term not exceeding 3 years or
      • Fine, not exceeding 10, 000 rupees or
      • Both.

(Following section 29(4), Chief Metropolitan Magistrate even possess this power and bound by its following exception.)

(iv) SPECIAL METROPOLITAN MAGISTRATE

  • Special Metropolitan Magistrate possesses power:
    • Granted by-
      • The High Court or
      • The State Government.
    • To, exercise power of Judicial Magistrate for first class.
    • In, any area outside the metropolitan area.

(v) COURT OF JUDICIAL MAGISTRATE of second class

  • Possess power under section 29(3), Code Criminal Procedure, 1973:
    • Can pass any sentence of-
      • Imprisonment for a term not exceeding 1 year or
      • Fine, not exceeding 5000 rupees or
      • Both.