This article has been written by Kavita Chandra, a student of Vivekananda Institute Of Professional Studies, affiliated to Guru Gobind Singh Indraprastha University, Delhi. She has discussed the provisions relating to the Constitution of criminal courts under the Code of Criminal Procedure, 1973.
The judicial system in India is one of the most efficient judicial systems in the world and it has been established in such a way so that it caters to the need of every person in the country. The Indian Judiciary is well established with quite a lengthy and complex hierarchy of courts. The judicial system is in the form of a pyramid, with the Apex Court being at the top of the hierarchy. The courts have been created in such a manner that even a person from a remote area can approach the courts to get their disputes resolved.
Functionaries under the CrPC
The functionaries which are empowered to exercise the powers and discharge duties under the Code of Criminal Code, 1973 are the police, prosecutors, courts, Defence Council, Prison Authority and Correctional Services. Amongst these the role of Magistrates and Court is pivotal while others are in a way accessories to it.
Roles and functions of these types of machinery
There is no provision in the code that creates the police or police officers. It assumes the existence of police and arms them with various responsibilities and powers.
The Police Act, 1861 establishes the police force. The Act says that “the police force is an instrument for the detection of crime and its prevention.” The Director-General of Police is vested with the overall administration of police in an entire state, however, in a district, under the general control and directions of District Magistrate, administration of police is done by DSP (District Superintendent of Police).
A certificate is provided to every police officer and by virtue of such certificate, he is vested with the functions, privileges and powers, of a police officer. Such certificate will cease to be in effect once he/she is no longer a police officer.
Powers and functions under CrPC
The Code confers upon the police officers certain powers such as the power to investigate, search and seizure, make an arrest and investigate the members enrolled as police officers. Extensive powers are conferred to the officer in charge of a police station.
A crime is a wrong that affects the whole society and because of this reason the state represents the society as a whole and is represented by lawyers called Public Prosecutors. In a criminal court, prosecution of all the offences is conducted by Public Prosecutors.
As per Section 24 of Cr.PC Central and State, the government is empowered to appoint Public Prosecutors at state and district levels to conduct appeal and prosecution under High Courts and Subordinate Courts. The Section further provides that Additional or Assistant Public Prosecutor shall be appointed and they shall work under the directions given by Public Prosecutor.
Further, it specifies the rules for appointment of Public Prosecutor as “if a person has been practising as an advocate for 7 years or more then such person shall be eligible to be appointed as Public Prosecutor of District Court or High Court. The Court in Phool Singh v. State of Rajasthan held that “ if the victim requests the State to appoint a Special Public Prosecutor in a case, then the State shall appoint the same and such Special Public Prosecutor shall be paid by the victim.
Powers and Functions
The Code provides that every trial before a Session’s Court shall be conducted by the Public Prosecutor. His goal is not merely to produce a conviction but to help the court in arriving at a just decision. Section 301 empowers a Public Prosecutor or Assistant Public Prosecutor to appear before any criminal court and conduct prosecution without any written authority. Thus, he has the right to conduct the prosecution. As per Section 321, if the court allows, a Public Prosecutor can withdraw from conducting prosecution against any person.
In Md. Mumtaz v. Nandini Satpathy, the Apex Court explained the role of Prosecutors under CrPC and observed that it is the duty of a Public Prosecutor to aid the court by placing all the evidence in his possession in front of the court even if it is in favour of the accused. In the machinery of justice, a very responsible role is assigned to the public prosecutor, thus he shall be personally indifferent towards the result of the case.
The setup of criminal courts in India is of 2 types i.e. District and Metropolitan areas.
The setup of criminal courts in district areas is at 3 levels: –
At the lower level of the judiciary the courts are called courts of Judicial Magistrate which are of 3 types: –
- Judicial magistrate
- Judicial magistrate second class
- Special magistrate court
At the middle level of the judiciary, the courts at the sessions level include: –
- Court of sessions
- Additional courts of sessions
- Assistant courts of sessions
- Special courts
At the higher level of the judiciary, there are High Court and Supreme Court.
The courts at the session’s level are referred to as metropolitan courts and they are of 2 types: –
- Metropolitan magistrate courts
- Special Metropolitan Magistrate
Chief Judicial Magistrate/Chief Metropolitan Magistrate exercises supervisory authority or administrative authority of all the magistrates in sessions/division or metropolitan areas.
In most of the cases an accused person is a layman and is not aware of the technicalities of law, therefore, as per Section 303, an accused person shall have a right to be defended by a counsel of his own choice. As the accused or his family employs the pleader to defend the accused against the alleged charges, such a pleader is not a government employee. For ensuring a just and fair trial it is essential that a qualified legal practitioner presents the matter on behalf of the accused.
Therefore, Section 304 provides that if the accused does not have sufficient means to hire a counsel, a pleader shall be assigned to him by the court at the state’s expense. There are various schemes through which an accused who does not have sufficient means to hire a pleader can get free legal aid, such as the Legal Aid Scheme of State, Legal Aid and Service Board, Supreme Court Senior Advocates Free Legal Aid society and Bar Association. The Legal Services Authorities Act, 1987 provides needy people with free legal aid.
PRISON AUTHORITIES AND CORRECTIONAL SERVICES
The court does not create but presupposes the existence of prison authorities and the Prison. As per Section 167 Magistrates and judges are empowered by the code to order the detention of under-trial prisoners in jail during the pendency of the proceedings. The courts have the power under the Code to impose imprisonment sentences on convicted persons and to execute such sentences send them to prison authorities.
However, the Code does not provide specific provisions for working, creation and control of such machinery. The Prisons Act 1894, The Probation of Offenders Act 1958 and The Prisoners Act 1900 deals with such matters.
Territorial divisions under the code
The entire territory of India consists of states and Section 7 of the Code states that “the basic territorial divisions of the State are the districts and the Sessions Divisions”. Considering the special needs of big cities like Bombay, Calcutta, Madras, etc. the Code has recognised them as metropolitan areas and each such area shall be considered as a separate sessions division and district. According to this territorial demarcation, the criminal courts of India include the Supreme Court of India, High Courts, Court of Session in every Session Division and Courts of Judicial Magistrates in every district.
Classes of criminal courts
Section 6 of the Cr.P.C provides for the classes of criminal courts in every State apart from the High Courts and the Supreme Court, namely –
- Court of Session
- Judicial Magistrates of the first class and, Metropolitan Magistrates in any metropolitan areas
- Judicial Magistrates of the second class; and
- Executive Magistrates
Hierarchy of Criminal Courts
The hierarchy of the Criminal Courts in India can be understood through the following chart:
The Supreme Court of India – The Supreme Court Of India being the apex court of India was established under Article 124 of the Constitution of India.
The High Courts – Article 141 of the Constitution Of India governs the High Courts and the High Courts are bound by the judgment of the Apex Court.
Lower Courts of India have been classified as follows:
- Chief Metropolitan Magistrate
- First Class Metropolitan Magistrate
- Sessions Court
- First Class Judicial Magistrate
- Second Class Judicial Magistrate
- Executive Magistrate
Separation of Judiciary from the Executive
The Code under Section 3(4) separates the judiciary from the executive and states that, subject to the provisions of the Code:
- Judicial Magistrate shall exercise the functions relating to matters in which appreciation or shifting of evidence is involved or which involve the formulation of any decision by which any person is exposed to a penalty or punishment or detention in custody, inquiry or trial.
- Executive Magistrate shall exercise the functions regarding the matters which are executive or administrative in nature, for example, the granting or suspension or cancellation of a license, withdrawing from prosecution or sanctioning a prosecution.
Court of Session
Section 9 of the Cr.PC empowers the State Government to establish the Sessions Court and such court would be presided over by a Judge appointed by the High Court. The Additional and Assistant Sessions Judges are also appointed by the High Court to exercise jurisdiction in the Court of Session. The Sessions Court ordinarily sits at such place or places as ordered by the High Court, but if in a case, the Court of Sessions decides to cater to the general convenience of the parties and witnesses, then, it may, with the consent of the prosecution and the accused preside its sittings at any other place. As per Section 10 of the Cr.P.C, the assistant sessions judges are answerable to the sessions judge.
Court of Judicial Magistrate
Section 11 of the Cr.P.C states that in every district (not being a metropolitan area), the State Government after consultation with the High Court has the power to establish courts of Judicial Magistrates of the first and second classes. If the High Court is of the opinion that it is necessary to confer the powers of a Judicial Magistrate of the first or second class on any member of the Judicial Service functioning as a Judge in a civil court, then the High Court shall do the same.
Chief Judicial Magistrate and Additional Chief Judicial Magistrate
As per Section 12 of the Code in every district other than metropolitan areas, Judicial Magistrate of the first class shall be appointed as the Chief Judicial Magistrate. The High Court is also empowered to designate Judicial Magistrate of First Class as Additional CJM and by such designation, the Magistrate shall be empowered to exercise all or any of the powers of a Chief Judicial Magistrate.
Sub-Divisional Judicial Magistrate
In a sub-division, the judicial magistrate of the first class may be designated as the Sub-divisional Judicial Magistrate. Such magistrate shall be subordinate to the Chief Judicial Magistrate and will thus work under its control. Further, the Sub-divisional Judicial Magistrate shall control and supervise the work of the Judicial Magistrates (except the Additional CJM) in that subdivision.
Special Judicial Magistrates
By Section 13 the High Court is empowered to confer upon any person who holds or has held any post under the Government, the powers conferred or conferrable by or under this Code on a Judicial Magistrate of first or second class. Such Magistrates shall be called Special Judicial Magistrate and shall be appointed for a term not exceeding one year at a time. In relation to any metropolitan area outside the local jurisdiction of a Special Judicial Magistrate, he may be empowered by the High Court to exercise the powers of a Metropolitan Magistrate.
Local Jurisdiction of Judicial Magistrate
According to Section 14, the Chief Judicial Magistrate shall define the local limits of the areas within which the Magistrates appointed under Section 11 or under Section 13 may exercise all or any of the powers with which they may be vested under this Code. The Special Judicial Magistrate may hold its sitting at any place within the local area for which it is established.
The jurisdiction in case of Juveniles (Section 27)– This section directs that a juvenile (person below the age of 16) can not be given a death penalty or a punishment of imprisonment for life. Chief Judicial Magistrate or any other Court specially empowered under the Children Act, 1960 (60 of 1960) tries such type of cases.
Subordination of judicial magistrate
Section 15(1) provides that a Sessions Judge shall be superior to the Chief Judicial Magistrate and the Chief Judicial Magistrate shall be superior to the other Judicial Magistrate. This can be clearly understood by the above-mentioned diagram explaining the hierarchy of courts.
Courts of Metropolitan Magistrate
They are established in every metropolitan area. The presiding officers shall be appointed by the High Court. The jurisdiction and powers of such Metropolitan Magistrates shall extend throughout the metropolitan area. The High Court shall appoint Metropolitan Magistrate as the Chief Metropolitan Magistrate.
Special metropolitan magistrates
The High Court may confer upon Special Metropolitan Magistrates the powers which a Metropolitan Magistrate can exercise in respect to particular cases or particular classes of cases. Such Special Metropolitan Magistrates shall be appointed for such term, not exceeding one year at a time.
The Special Metropolitan Magistrate may be empowered by the High Court or the State Government to exercise the powers of a Judicial Magistrate of the first class in any area outside the metropolitan area.
Subordination of Metropolitan Magistrate
Section 19 of the Code provides that the Sessions Judge shall be superior to the Additional Chief Metropolitan Magistrate and Chief Metropolitan Magistrate and other Metropolitan Magistrates shall be subordinate to the CMM.
The Chief Metropolitan Magistrate has the power to give special orders or make rules regarding the distribution of business among the Metropolitan Magistrates and allocation of business to an Additional Chief Metropolitan Magistrate.
As per Section 20, in every district and in every metropolitan area, Executive Magistrates shall be appointed by the State Government and one of them shall be appointed as the District Magistrate. An Executive Magistrate shall be appointed as an Additional District Magistrate and such Magistrate shall have such of the powers of a District Magistrate under the Code.
As executive magistrates are supposed to execute administrative functions they were neither given power to try accused nor pass verdicts. They are mainly concerned with administrative functions. The executive magistrates have the power to determine the amount of bail according to the provisions of the warrant issued against the accused, pass orders restraining people from committing a particular act or preventing persons from entering an area (Section 144 Cr.P.C), they are the authority to whom people are taken to when they are arrested outside the local jurisdiction, the executive magistrates are the only one with the power to disperse a crowd or an unlawful assembly, further, they are authorized to use force while doing the same according to the gravity and requirements of the situation. Executive Magistrates are assisted by the police while executing their functions.
As per Section 21, Special Executive Magistrates shall be appointed by the State Government for particular areas or for the performance of particular functions.
Local jurisdiction of the executive magistrate
Section 22 of the CrPC empowers the District Court to define the areas under which the Executive Magistrates may use all or any of the powers which are exercisable by them under this code but under some exceptions, the powers and jurisdiction of such Magistrate shall extend throughout the district.
Subordination of executive magistrate
As per Section 23, the Executive Magistrates would be subordinate to the District Magistrate however Additional District Magistrate shall not be subordinate to the District Magistrate. Every Executive Magistrate but, the Sub-divisional Magistrate shall be subordinate to the Sub-divisional Magistrate.
The executive magistrates shall follow the rules or special orders given by the district magistrate, regarding the distribution of business among them. The district magistrate also has the powers to make rules or special orders relating to the allocation of business to an Additional District Magistrate.
Hierarchy of Executive Magistrate
Sentences which can be passed by the various courts
- Sentences passed by the High Courts and Sessions Judges (Section 28):
- Any sentence which is authorised by law can be passed by the High Court.
- A Sessions or Additional Sessions Judge can pass any sentence authorised by law. But, while passing death sentence prior confirmation from High Court is required.
- An Assistant Sessions Judge has the authority to pass any sentence of imprisonment for more than 10 years other than a death sentence or life imprisonment
- Sentences passed by the Magistrates (Section 29) –
- The Court of Chief Judicial Magistrate can pass any sentence of imprisonment for more than seven years but not a death sentence or life imprisonment.
- The Judicial Magistrate of first class can pass a sentence of imprisonment for a term, less than three years, or a fine less than ten thousand rupees or both.
- The Judicial Magistrate of second class may pass a sentence of imprisonment for a term, less than one year, or a fine less than five thousand rupees.
- The Chief Metropolitan Magistrate has the same powers as that of a Chief Judicial Magistrate and of MM, in addition to the powers of the Magistrate of first class.
One of the main constitutional goals is proper administration of justice has to be in consonance with the expectations of the society. The goal can be achieved if the citizens living in our country can easily knock the doors of the courts whenever a dispute arises.
The criminal courts are constituted in such a way that every citizen can access it for justice. Citizens are also empowered to appeal to higher authorities if they feel that justice is denied to them by lower courts. Therefore, through this system, it has become easy for the citizens to approach the Judiciary.
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