The article is written by Varun Garg, he is a LawSikho student and is currently practising in Punjab and Haryana High Court and District and Sessions Court, Mansa, Punjab.
Table of Contents
Introduction
The Code of Criminal Procedure,1973 deals with the procedure relating to the enforcement of the substantive offences under the Indian Penal Code, 1860 and other offences provided by any other law for the time being in force subject to the special provisions in such laws which provide for the investigation, inquiry, trial of such offences. The same code also provides for the constitution of the criminal courts and offices and their powers under the Chapter 2 and 3 of the Code which will be the main thrust of this article.
Chapter 2 of the Code provides for the Constitution of the Criminal Courts, formation of such courts, appointment of the presiding officer of such courts as well as provisions relating to Public Prosecutors and Directorate of Prosecution. Whereas, chapter 3 provides for the Powers of such courts.
Classes of Criminal Courts
Section 6 of the Code says that Besides the High Courts and any other courts established under any other law in force currently, there shall be following classes of criminal courts in every state:-
- Courts of Session
- Judicial Magistrate First Class, and Metropolitan Magistrate, in metropolitan areas
- Judicial Magistrate Second Class
- Executive Magistrates
Now we are going to discuss each type of criminal courts in detail one by one along with their formation, appointment of officers and their subordination.
High Court
The expression High Court is defined in Section 2(e) of the Code of Criminal Procedure, 1973. It is the highest criminal appellate authority of the state.
Formation – The High Court is established under Article 214 of the Constitution of India which says that “There shall be High Court for each state.”
Appointment – The Judges of the High Court are appointed by the President under Article 217 of the Constitution of India after consultation with the Chief Justice of India, Governor of that state and in case of appointment of puisine judge, the Chief Justice of the High Court.
Subordination – There is nothing written about subordination of the High Court in Constitution of India or any other law for the time being in force; being a Constitutional Court, the High Court enjoys the substantial autonomy but all the decisions of the High Court passed by it under exercise of criminal appellate jurisdiction are challenged in the Supreme Court of India, so it can be said that High Courts are subordinate to the Supreme Court of India.
Powers – The section 28 of the Code of Criminal Procedure, 1973 says that the High Court can pass any sentence authorised by the law.
Sentences which are authorised by the law in respect of offences under the Indian Penal Code,1860 are given under section 53 of the Indian Penal Code, 1860 which are as following:-
- Death Penalty
- Imprisonment for life
- Imprisonment for term, both rigorous and simple
- Forfeiture of property
Court of Session
Court of Session is the highest criminal court of the district. It has original as well as criminal appellate jurisdiction depending upon the nature of the cases. Generally the heinous offences like murder, culpable homicide, rape, etc. are tried by the Court of Session. Section 9 of the Code of Criminal Procedure, 1973 lays down the provision relating to the Court of Session.
Formation- Section 9 says that the State Government shall establish Court of Session in every Sessions Division. The State is generally divided into the various Sessions Division for the effective administration of criminal justice delivery system. Section 7 of the Code lays down that Sessions Division shall consist of district or districts. Even there can be one sessions division for whole state, However, in my opinion the same is meant for states which are smaller in size.
Appointment– The Court of Session consists of the Session Judge who is appointed by the concerned High Court of that state. However, the High Court can also appoint the Additional Session Judges as well as Assistant Sessions Judges to exercise the jurisdiction in the Court of Session.
Generally, the High Court appoints the Additional Sessions Judges, and in some cases, Assistant Sessions Judges also in the Court of Session so that the burden on the Sessions Judge can be reduced and cases can be disposed of at faster pace.
Sessions Judge can also be appointed by the High Court as the Additional Sessions Judge of the another Court of Session in some other sessions division.
Subordination – The Code of Criminal Procedure, 1973 is silent on this issue. The Code or any other law for the time being in force, nowhere mentions that the Judges of the Court of Session are subordinate to the High Court. However, Section 10 of the Code says that the Assistant Sessions Judge is subordinate to the Sessions Judge in whose court he exercises jurisdiction.
Powers – The Sessions Judge as well as the Additional Sessions Judge can pass any sentence authorised by the law. However, in case they pass the sentence of death, in that case, the death penalty would be subject to the confirmation of the High Court which means if the High Court confirms the death penalty awarded by the Court of Session, in that case only the death penalty can be given to the offender and not otherwise.
However, the Assistant Sessions Judge can pass any sentence authorised by the law except the death, life imprisonment and imprisonment for the term exceeding 10 years.
Do the Additional & Assistant Sessions Judges are part of the Court of Session?
Yes, the Additional Sessions Judges are part of the Court of Session in which they exercise their jurisdiction, because, Section 9 of the Code which relates to the Court of Session includes the provision relating to the appointment and exercise of the powers by Additional and Assistant Sessions Judges in that Court of Session. Further, this question was also answered in the reference given by the Additional Sessions Judge-cum Special Magistrate to the Honourable Rajasthan High Court.
The Honourable Rajasthan High Court in the reference titled as State of Rajasthan v/s Fakir Mohammad alias Fakira (2000 Cr.LJ 4289 ) has answered the question.
In the above stated case, the question “Whether Sessions Judge, acting under Section 439, Cr.P.C, can entertain an application for bail in a matter in which the Additional Sessions Judge, trying a case, has already decided the bail application under Section 439, Cr.pc.”
In the Paragraph no. 9 of the said judgment authored by Justice G L Gupta, the Honorable Rajasthan High Court observed that the ‘Court of Session’ comprises not only a Court which is presided over by a Judge appointed under Sub-section (2) of Section 9 but also the Courts presided over by the Judges viz. Additional Sessions Judges or Assistant Sessions Judges appointed under Sub-section (3). In other words, all the Courts established in a sessions division viz. the Court presided over by the Sessions Judges, or the Courts presided over by the Additional Sessions Judges, or the Courts presided over by the Assistant Sessions Judges, constitute one Court i.e., a Court of Session.
Further, answering to the reference it was held that the Sessions Judge can not entertain the bail application under section 439 of the Code whose bail application has already been entertained and decided by the Additional Sessions Judge under section 439 of the Code.
Similarly, In Abdul Rehman v. State of West Bengal AIR 1996 SC 905
Honourable Apex Court also held in paragraph no.4 that the Sessions Judges include the Additional Sessions Judge under this Code.
Full Bench of the Patna High Court in District Bar Association Patna v/s The State of Bihar 2017(1) RCR 335 has also held that the expression “Court of Session” includes the Additional and Assistant Sessions Judges. However, where the expression “Sessions Judge” appears, in that case, it only means the Sessions Judge of Court of Session only and not the Additional and Assistant Sessions Judges.
Thus from above said decisions it is clear that the Court of Session of sessions division not only include the Sessions Judge but also the Additional and Assistant Sessions Judge.
Court of Judicial Magistrate First Class
The Court of the Judicial Magistrate First Class plays very important role in the administration of the criminal justice system. Majority of the offences in the Indian Penal Code are triable by the Judicial Magistrate 1st class. In the cases which are exclusively triable by the Court of Session, the initial proceedings of the case from presentation of the accused before court till the committal of the case to Court of Session takes place in the Court of Judicial Magistrate First Class only. So we can say that he is the backbone of the criminal justice delivery system.
Formation- Section 11 of the Code says that the State Govt. shall establish courts of Judicial Magistrate 1st Class in every district except in the metropolitan area, after consultation with the High Court. Similarly, it can also, after consultation with the High Court, establish the special courts of Judicial Magistrate First Class to try the special cases or class of cases and if that is the case, all the other courts of Judicial Magistrates in that area will be barred from trying such type of particular case or class of cases.
Appointment– Section 12 of the Code says that the presiding officer of the courts of Judicial Magistrate First Class shall be appointed by the High Court. The High Court can also confer the power of the Judicial Magistrate First Class on any member of the Judicial Service of the State exercising the powers of the Civil Judge.
One of them who is senior-most is appointed as the Chief Judicial Magistrate and Additional Chief Judicial Magistrate of the District.
Subordination – Section 15 of the Code says that the Judicial Magistrate First Class is subordinate to the Chief Judicial Magistrate of the district in which he is exercising the jurisdiction subject to the general control of the Sessions Judge.
However, in case the Judicial Magistrate First Class is posted in the sub division, then in such case either he will exercise, by virtue of Sub-Divisional Judicial Magistrate, supervisory functions on other JMs 1st class working in such sub-division or will be subordinate to the Sub-Divisional Judicial Magistrate in whose sub division he is exercising the powers of Judicial Magistrate First Class.
Similarly, It is the Chief Judicial Magistrate which make rules or special orders from time to time consistent with this Code, as to distribution of the business among the Judicial Magistrates and defines the local limits of areas within which the Judicial Magistrates may exercise the power conferred on him by this Code.
Powers – The Court of Chief Judicial Magistrate can pass any sentence authorised by the law except the death, imprisonment for life or for term exceeding seven years.
Similarly, the court of Judicial Magistrate First Class can pass sentence of imprisonment for the term not exceeding the three years or of fine not exceeding 10,000 Rupees or of Both.
Court of Metropolitan Magistrate
The metropolitan areas for the purposes of the Code are those areas which have population of minimum one million people and is declared by the State Govt. as the metropolitan area. Such metropolitan areas have courts of metropolitan magistrate. Delhi, Mumbai, Chennai, Ahmedabad , Kolkata are some of the examples of the metropolitan areas having the courts of metropolitan magistrate.
Formation – Section 16 says that Courts of metropolitan magistrate are to be established by the state after consultation with the High Court.
Appointment – The presiding officer of the Court of Metropolitan Magistrate are appointed by the High Court. One of them who is senior most, is appointed by the High Court as the Chief Metropolitan Magistrate of the Metropolitan area. The High Court is also empowered to appoint one of them as the Additional Chief Metropolitan Magistrate also.
Subordination – The Metropolitan Magistrates, subject to the general control of the Sessions Judge, are subordinate to the Chief Metropolitan Magistrate. Similarly, the Chief Metropolitan Magistrate as well as the Additional Chief Metropolitan Magistrate are subordinate to the Sessions Judge.
Powers – The Court of Chief Metropolitan Magistrate can pass any sentence authorised by the law except the death, imprisonment for life or for term exceeding seven years.
Similarly, the Court of Metropolitan Magistrate can impose punishment of the imprisonment for term not exceeding three years or fine not exceeding 10,000/- rupees or Both.
Court of Judicial Magistrate Second Class
The Courts of Judicial Magistrate second Class has its own role to play. Generally the new entrants in the judicial services of the state are conferred with the power of the JM second class though exceptions are there, for example, In the States of Punjab and Haryana, the new entrants are conferred straightaway with the powers of the JM first class. This court can try the offences which are shown as triable by any Magistrate in the Schedule 1 of the Code of Criminal Procedure, 1973.
Formation – Section 11 of the Code says that the State Govt. shall after consultation with the High Court, establish the courts of JM 2nd Class. The state govt. can also establish after consultation with the High Court, special courts of JM 2nd class who shall try the particular case or the class of cases.
Appointment – The JM 2nd Class are appointed by the High Court. As earlier said, generally the new entrants in the judicial service of the state are conferred with this power. The High Court can also confer the power of the JM 2nd class on any person who is the member of the state judicial service and is exercising the powers of the Civil Judge.
Subordination – Section 15 clearly says that the JM 2nd Class, subject to general control of Sessions Judge, is subordinate to the Chief Judicial Magistrate. However, if he is posted as JM 2nd class in any sub-division then, subject to the general control of the Chief Judicial Magistrate, he is subordinate to the Sub Divisional Judicial Magistrate.
Similarly, It is the Chief Judicial Magistrate which make rules or special orders from time to time consistent with this Code, as to distribution of the business among the Judicial Magistrates and defines the local limits of areas within which the Judicial Magistrates may exercise the power conferred on him by this Code.
Powers – Section 29 of the Code says that the Judicial Magistrate Second Class may impose punishment of imprisonment for a term not exceeding one year or fine not exceeding 5,000/- rupees or both.
Court of Executive Magistrate
The Executive Magistrates is the last class of the criminal court under the code of 1973. Generally their duty is to maintain the law and order in the society and for this, the code of criminal procedure code,1973 grants them special powers by exercising which they can enable the peace in the society.
Appointment – Section 20 says that the state Govt. may appoint in district, as many persons as executive magistrate as it thinks fit and shall appoint one of them as the District Magistrate.
State Govt. may also appoint one of such person as the Additional District Magistrate.
Subordination – All the executive magistrates, section 23 says, except the Additional District Magistrate are subordinate to the District Magistrate. Similarly, in the sub division, all the executive magistrate are subordinate to the Sub-Divisional Magistrate.
Similarly, it is the District Magistrate who make rules or gives special order as to the distribution of the business among the Executive Magistrate subordinate to him and as to the Additional District Magistrate.
Conclusion
To conclude, the effective criminal justice delivery system is a necessity for every welfare state in this world. The success of the nation depends not only upon the policies of the state but also on the efficiency and effectiveness of the criminal justice delivery system as welfare policies will be of no use if the criminal justice delivery system of the state is ineffective and lax. The current criminal justice delivery system in India has great potential to serve this country provided it is implemented in its letter and spirit.
