Criminal courts deal with persons accused of committing a crime, deciding whether they are

guilty and, if so, determining the consequences they shall suffer. The prosecution
of alleged offenders is generally pursued in the name of the public (e.g., The People v. …),
because crimes are considered offenses not just against individual victims but also against
society at large. The public is represented by an official such as a district attorney (often
called a prosecutor), procurator, or police officer. Although courts are also agencies of the
state, they are neutral in criminal proceedings, favouring neither the prosecution nor the
defense. The impartiality of the court is strongly reinforced where juries are used to decide
the guilt or innocence of the defendant.
The role of the criminal court in civil-law systems is quite different from its role in common-
law ones. Civil-law countries assign a more active role to the judge and a more passive role
to counsel. Instead of being passive recipients of evidence produced by the prosecution and
the defense, judges in civil-law systems often direct the presentation of evidence and even
order that certain evidence be produced. Thus, procedure in civil-law systems is
considered inquisitorial. Judges in this system have an independent responsibility to discover
the facts. In the common-law courts, adversary procedures tend to prevail; the lawyers for
both sides bear primary responsibility for producing evidence and do most of the questioning
of witnesses. Advocates of the adversarial system hold that a just outcome is most likely to
result when all possible relevant information—good (tending to exonerate) and bad (tending
to incriminate)—is placed before an impartial adjudicator (the judge or the jury). Self-interest
motivates both the defense and the prosecution to provide all possible evidence relevant to its
side of the case. Where the jury system is used, the jury is supposed to constitute an unbiased
sample of ordinary people predisposed to favouring neither the defense nor the prosecution,
and the judge serves as a “legal referee” who ensures that proper legal procedures are
followed (e.g., barring the introduction of illegally obtained evidence, such as coerced
confessions, or other information deemed inadmissible). The adversarial system, and its
associated conception of justice, is a pillar of the common-law tradition, as evidenced in the
U.S., British, and Canadian systems of criminal justice.
If a defendant is found guilty, he is sentenced, again according to lawand within limits
predetermined by legislation. The objective of most punishment is not so much to
wreak vengeance upon the offender as to rehabilitate him and to deter others from
committing similar acts. Hence, the most common sentences are fines, short terms of
imprisonment, and probation (which allows the offender freedom under state supervision). In
extremely serious cases, the goal may be to prevent the offender from committing further
crimes, which may call for a long term of imprisonment (e.g., life in prison without the
possibility of parole) or even capital punishment. During the last third of the 20th century,
however, the death penalty began to disappear from many criminal codes throughout the
world; nonetheless, it remains in effect and is imposed widely in several countries, including
the United States, Iran, and China.
1. The Supreme Court of India:

It is the highest court in the country’s judicial system. So far criminal cases are
concerned, the Supreme Court has only appellate powers that too in rare cases. It may,
however, be stated that there is a move to enlarge the appellate jurisdiction of the
Supreme Court in criminal cases.

There is also a demand that the Supreme Court of India should exercise appellate
jurisdiction over the cases where the accused has been sentenced to a term of
imprisonment for ten years or more. The Supreme Court also has writ jurisdiction for
the enforcement of fundamental rights.

The new trend is that the Supreme Court has started awarding monetary compensation
to the victims of abuse of criminal law process, particularly in cases of custodial torture
or illegal detention or abuse of power by the criminal law administrators violating the
provisions of Article 21 of the Constitution relating to right to life and liberty of the
victims. This is indeed a welcome step in the area of criminal justice system.

Yet another significant development in the functioning of the Supreme Court in

dispensation of criminal case is its activism in warning the erring governments against
abuse of power and authority. Highlighting the activist role of the Supreme Court,
Justice Ganguly of the Court, who was probing into the 2-G spectrum scam case,
observed, “Courts are now widening their jurisdiction and becoming the institutions of
governance and are not merely as arbitrators of disputes.”

Lawyers and judges are making news every day. The Apex Court has to exert-judicial
pressure on the government and its ministers/officials to mend things which are
blatantly wrong and illegal and which are severely embrassing the government. Calling
this expansion of judicial jurisdiction a major “transformation”, Justice Ganguly said
this “development should percolate into law which would help in development of rule of
law in this country.

2. The High Court’s:

There is a High Court for each State or one or more States. It is the highest judicial
institution within the State. The conditions and qualifications for appointment of Judges
of a High Court are contained in Articles 217-222 of the Constitution of India. Each
High Court has original as well as appellate jurisdiction.

The High Court has the power to issue certain writs to any person, authority or even the
Government within its territorial jurisdiction for the enforcement of any of the rights
conferred by Part in of the Constitution of India. The Court also has the power of
superintendence over all subordinate courts and Tribunals situated within its territorial
jurisdiction.

3. The Court of Session:

There is a Court of Session in each District which is presided over by a Sessions Judge
and one or more Additional Sessions Judges. In certain cases, Assistant Sessions Judges
are also appointed to work in the Sessions Court. The Sessions Judge or the Additional
Sessions Judge is empowered to pass any sentence authorised by law but any sentence of
death awarded by him must be confirmed by the High Court to which he is subordinate.

The Assistant Sessions Judges, however, are not competent to award a sentence of
death, imprisonment for life or imprisonment for a term exceeding ten years. The
Sessions Court exercises both original and appellate jurisdiction. The appointments of
the Sessions Judges, Additional Sessions Judges and Assistant Sessions Judges are made
by the High Court of the concerning State with a view to maintaining the independence
of the judiciary.

4. The Courts of Judicial Magistrate:

There are a number of courts of Judicial Magistrates functioning throughout the

District. These Courts are set up by the State Government in consultation with the High
Court. The Judicial Magistrates are appointed by the High Court and by the State
Government. The High Court may, whenever it deems necessary or expedient, confer
the powers of a Judicial Magistrate of the first class or of the second class on any
member of the judicial service of the State functioning as a Judge in a civil court.

In each District not being a Metropolitan area, the High Court shall appoint a Judicial
Magistrate of the first class to be the Chief Judicial Magistrate. The High Court may
also appoint any Judicial Magistrate of the first class as an Additional Chief Judicial
Magistrate in a District.

The High Court may designate any Judicial Magistrate of the first class in any sub-
division as the Sub-Divisional Judicial Magistrate. There are a number of Judicial
Magistrates of the second class as Special Judicial Magistrates functioning under the
Chief Judicial Magistrate for the administration of criminal justice in the Division.

It must be stated that in the Code of Criminal Procedure, 1973, the provisions of the old
Code relating to the Presidency Magistrates in the Presidency Towns of Bombay,
Calcutta and Madras have been retained but in a different form. The Code provides for
the establishment of Courts of Metropolitan Magistrates in Metropolitan areas instead
of Presidency Magistrates.

Metropolitan Area, for the purpose of the Code of Criminal Procedure means any area
in the State comprising a city or town whose population exceeds one million and is so
declared by notification of the State Government, It therefore, follows that a city or
town having its population over one million does not automatically become a
‘Metropolitan Area’ unless it is so declared and notified by the State Government.

The High Court shall appoint a Chief Metropolitan Magistrate in each Metropolitan area. It
may also appoint an Additional Chief Metropolitan Magistrate. The powers and functions of
the Chief Metropolitan Magistrate and Additional Chief Metropolitan Magistrate are
analogous to those of Chief Judicial Magistrate and Additional Chief Judicial Magistrates of
the Districts. Similarly, one or more Special Metropolitan Magistrate may be appointed in the
Metropolitan area who have the same powers as Special Judicial Magistrates of the second
class in the district.

The sentencing powers of the aforesaid categories of Magistrates are contained in

Sections 28 to 35 of the Code of Criminal Procedure, 1973.

Besides the criminal courts mentioned above, the President of India and the Governors
of the State have also been conferred certain judicial powers of sentencing the convicted
persons. They have power to grant pardon, reprieve, respite or remission of punishment
or to suspend, remit or commute the sentence in certain cases.

In addition to the Judicial Magistrates, Executive Magistrates are also appointed by the
State Government in each district. One of the Executive Magistrates is appointed as the
District Magistrate and all the Executive Magistrates except Additional District
Magistrate are subordinate to him.

These Magistrates belong to the executive branch of the Government and therefore,
their appointment is not controlled by the High Court. The functions assigned to
executive Magistrates include trial of offences involving preventive action, disputes
concerning immovable property and offences relating to public nuisance and breach of
peace
Under the Constitution the Supreme Court has also been vested with certain Criminal powers.
Article 134 confers appellate jurisdiction on the Supreme Court in regard to criminal matters
and an appeal lies to it from a judgment in a criminal proceeding of a High Court if the High
Court : (i) has on appeal reversed an order of acquittal of an accused person and sentenced
him to death; (ii) has withdrawn for trial before itself any case from any subordinate court
and has thereafter convicted and sentenced the accused person to death; or (iii) certifies that
the case is a fit one for appeal to the Supreme Court.

Court of Session:

Under Section 9 of the Code the State Government is required to establish a court of session
for every session’s division, which shall be presided over by a Judge to be appointed by the
High Court. The High Court may also appoint (Additional Sessions Judges and Assistant
Sessions) Judges to exercise jurisdiction in a court of session.

Where the office of the Sessions Judge is vacant the High Court may make arrangements for
the disposal of any argent application which may be made or pending before such Court of
Session by an Additional or Assistant Sessions Judge by a Chief Judicial Magistrate, in the
session’s division.

The Sessions Judge of one sessions division may be appointed by the High Court to be also
an Additional Sessions Judge of another division, an in such case he may sit for the disposal
of cases at such place or places in other division as the High Court may direct.

The Explanation apprehended to Section 9, however, provides that for the purposes of the
Code ‘appointment’ does not include the first appointment, posting or promotion of a person
by the Government to any service, or post in connection with the affairs of the Union or of a
State, where under any law, such appointment posting or promotion is required to be made by
the Government.

Under Section 10 of the Code all Assistant Sessions Judges shall be subordinate to the
Sessions Judge in whose Court they exercise jurisdiction. The Sessions Judge may from time
to time, make rules consistent with the Code, as to the distribution of business among such
Assistant Sessions Judges.
The Sessions Judge may also make provision for the disposal of any urgent application, in the
event of his absence or inability to act by an Additional or Assistant Sessions Judge, or if
there be no Additional or Assistant Sessions Judge, by the Chief Judicial Magistrate.

Courts of Judicial Magistrates:

In every district (not being a metropolitan area), there shall be established as many courts of
Judicial Magistrates of the first class and of the second class and at such places, as the State
Government may, after consultation with the High Court, by notification, specify.

The State Government may, after consultation with the High Court establish, for any local
area, one or more special courts of Judicial Magistrate of the first class or of the second class
to try any particular case or particular class of cases, and where any such special court is
established, no other court of Magistrate in the local area shall have jurisdiction to try any
case or class of cases for the trial of which such special court of judicial Magistrate has been
established.

ADVERTISEMENTS:

The presiding officers of such courts shall be appointed by the High Court. The High Court
may, whenever it appears to be expedient or necessary, confer the powers of a Judicial
Magistrate of the first class or of the second class on any member of the Judicial Service of
the State, functioning as a Judge in a civil court. [Section 11]

Chief Judicial Magistrates and Additional Chief Judicial Magistrates:

In every district (not being a metropolitan area) the High Court shall appoint Judicial
Magistrate of the first class to be Chief Judicial Magistrate.

The High Court may appoint any Judicial Magistrate of the first class to be an Additional
Chief Judicial Magistrate, and such Magistrate shall have all or any of the powers of a Chief
Judicial Magistrate under this Code or under any other law for the time being in four as the
High Court may direct.

The High Court may designate any Judicial Magistrate of the first class in any sub-division as
the Sub-divisional Judicial Magistrate and relieve him of the responsibilities specified in this
section as occasion requires.

Subject to the general control of the Chief Judicial Magistrate, every Sub-divisional Judicial
Magistrate shall also have and exercise such powers of supervision and control over the work
of the Judicial Magistrate (other than Additional Chief Judicial Magistrate) in the sub-
division as the High Court may, by general or special order, specify in this behalf. (Section
12).

Special Judicial Magistrate:

The High Court may, if requested by the Central Government so to do, confer upon any
person who holds or has held any post under the Government all or any of the powers
conferred or conferrable by or under this Code on a Judicial Magistrate of the first class or of
the second class, in respect to particular cases or to particular classes of cases, in any local
area, not being a metropolitan area provided that no such power shall be conferred on a
person unless he possesses such qualification or experience in relation to legal affairs as the
High Court may by rules specify.

Such Magistrates shall be called Special Judicial Magistrates and shall be appointed for such
term, not exceeding one year at a time as the High Court may, by general or special order,
direct. The High Court may empower a Special Judicial Magistrate to exercise the powers of
a Metropolitan Magistrate in relation to any metropolitan area outside his local jurisdiction
(Section 13).

Courts of Metropolitan Magistrate:

(1) In every metropolitan area, there shall be established as many Courts of Metropolitan
Magistrate, and at such places as the State Government, after consultation with the High
Court, by notification, specify.

The presiding officers of such Courts shall be appointed by he High Court. The jurisdiction
and powers of every Metropolitan Magistrate shall extend throughout the metropolitan area.
(Section 16)

Chief Metropolitan Magistrate and Additional Chief Metropolitan Magistrate:

The High Court shall, in relation to every metropolitan area within its local jurisdiction,
appoint Metropolitan Magistrate to be the Chief Metropolitan Magistrate for such
metropolitan area. (Section 17).

Special Metropolitan Magistrate:

The High Court may if requested by the Central or State Government so to do, confer upon
any person who holds or has held any post under the Government, all or any of the powers
conferred or conferrable by or under this Code on a Metropolitan Magistrate, in respect to
particular cases or to particular classes of cases, in any metropolitan area within its local
jurisdiction:
Provided that no such power shall be conferred on a person unless he possesses such
qualification or experience in relation to legal affairs as the High Court may by rules specify.
Such Magistrate shall be called Special Metropolitan Magistrates and shall be appointed for
such term, not exceeding one year at a time, as the High Court may direct.

The High Court or the State Government, as the case may be, may empower any Special
Metropolitan Magistrate to exercise in any local area outside the metropolitan area, the
powers of a Judicial Magistrate of the first class (Section 18).

Subordination of Metropolitan Magistrate:

The Chief Metropolitan Magistrate and every Additional Chief Metropolitan Magistrate shall
be subordinate to the Sessions Judge, and every other Metropolitan Magistrate shall, subject
to the general control of the Sessions Judge, be subordinate to the Chief Metropolitan
Magistrate (Section 19).

Executive Magistrate:
(1) In every district and in every metropolitan area, the State Government may appoint as
many persons as it thinks fit to be Executive Magistrates and shall appoint one of them to be
the District Magistrate.

The State Government may appoint any Executive Magistrate to be an Additional District
Magistrate and such Magistrate shall have such of the powers of a District Magistrate under
this Code or under any other law for the time being in force as may be directed by the State
Government (Section 20).

Special Executive Magistrates:

The State Government may appoint for such terms as it may think fit. Executive Magistrates,
to be known as Special Executive Magistrates, for particular areas or for the performance of
particular functions and confer on such Special Executive Magistrates such of the powers as
are conferrable under this Code on Executive Magistrates, as it may deem fit. (Section 21).

The maximum sentences which may be passed by different Courts are noted below:

Supreme Court:
It is the final Court of Appeal which can pass any sentence in accordance with law.

High Court:
Any sentence authorized by law. [Section 28) (1)].

Sessions Judge and Additional Sessions Judge:

Any sentence authorized by law, but a sentence of death passed by them shall be subject to
confirmation by the High Court. [Section 28 (2)].

Assistant Sessions Judge:

Any sentence authorized by law, except a sentence of death or of imprisonment for life or of
imprisonment for a term exceeding ten years [Section 28 (3)].

Chief Judicial Magistrate and Chief Metropolitan Magistrate:

Any sentence authorized by law except a sentence of death or of imprisonment for life or of
imprisonment for a term exceeding seven years. [Section 29 (I)]

First Class Magistrate and Metropolitan Magistrate:

May pass a sentence of imprisonment for a term not exceeding three years, or of fine not
exceeding Rs. 10,000, or of both

Second class Magistrates:

May pass a sentence of imprisonment for a term not exceeding one year, or of fine not
exceeding Rs. 5,000, or of both

POWER OF COURTS TO TRY OFFENCES

Chapter III of CrPC deals with power of Courts. One of such power is to try offences.
Offences are divided into two categories:

1. those under the Indian Penal Code; and

2. those under any other law.

According to Section 26, any offence under the Indian Penal Code, 1860 may be tried by the
High Court or the Court of Session or any other Court by which such offence is shown in the
First Schedule to be triable, whereas any offence under any other law shall be tried by the
Court mentioned in that law and if not mentioned, it may be tried by the High Court or any
other Court by which such offence is shown in the First Schedule to be triable. This Section is
a general Section and is subject to the other provisions of the Code.

Power of the Court to pass sentences

Sentences which may be passed by the criminal have been mentioned under section 28 & 29
of the criminal procedure code.

1. Sentences which High Courts and Sessions Judges may pass

According to Section 28, a High Court may pass any sentence authorised by law. A Sessions
Judge or Additional Sessions Judge may pass any sentence authorised by law, but any
sentence of death passed by any such judge shall be subject to confirmation by the High
Court.

An Assistant Sessions Judge may pass any sentence authorised by law except a sentence of
death or of imprisonment for life or of imprisonment for a term exceeding ten years. Thus,
Section 26 of the Code enumerates the types of Courts in which different offences can be
tried and then under Section 28, it spells out the limits of sentences which such Courts are
authorised to pass.

2. Sentences which Magistrates may pass

Section 29 lays down the quantum of sentence which different categories of Magistrates are
empowered to impose. The powers of individual categories of Magistrates to pass the
sentence are as under:

 The Court of a Chief Judicial Magistrate may pass any sentence authorised by law except a
sentence of death or of imprisonment for life or of imprisonment for a term exceeding seven
years.
 A Magistrate of the first class may pass a sentence of imprisonment for a term not exceeding
three years or of a fine not exceeding five thousand rupees, or of both.
 A Magistrate of the second class may pass a sentence of imprisonment for a term not
exceeding one year, or of fine not exceeding one thousand rupees, or of both.

A Chief Metropolitan Magistrate shall have the powers of the Court of a Chief Judicial
Magistrate and that of a Metropolitan Magistrate, and the powers of the Court of a Magistrate
of the First class.

3. Sentence of imprisonment in default of fine

Where a fine is imposed on an accused and it is not paid, the law provides that he can be
imprisoned for a term in addition to a substantive imprisonment awarded to him, if any.
Section 30 defines the limits of Magistrate’s powers to award imprisonment in default of
payment of fine.

It provides that the Court of a Magistrate may award such term of imprisonment in default of
payment of fine as is authorised by law provided the that the term:

 is not in excess of the powers of the Magistrate under Section 29; and
  where imprisonment has been awarded as part of the substantive sentence, it should not
exceed 1/4th of the term of imprisonment which the Magistrate is competent to inflict as
punishment for the offence otherwise than as imprisonment in default of payment of the fine.
4. Sentences in cases of conviction of several offences at one trial

Section 31 relates to the quantum of punishment which the Court is authorised to impose
where the accused is convicted of two or more offences at one trial.

(1) When a person is convicted at one trial of two or more offences, the Court may, subject to
the provisions of section 71 of the Indian Penal Code (45 of 1860), sentence him for such
offences, to the several punishments prescribed therefor which such Court is competent to
inflict; such punishments when consisting of imprisonment to commence the one after the
expiration of the other in such order as the Court may direct, unless the Court directs that
such punishments shall run concurrently.

(2) In the case of consecutive sentences, it shall not be necessary for the Court by reason only
of the aggregate punishment for the several offences being in excess of the punishment which
it is competent to inflict on conviction of a single offence, to send the offender for trial before
a higher Court: Provided that-

 in no case shall such person be sentenced to imprisonment for a longer period than fourteen
years;
 the aggregate punishment shall not exceed twice the amount of punishment which the Court is
competent to inflict on a single offence.

(3) For the purpose of appeal by a convicted person, the aggregate of the consecutive
sentences passed against him under this section shall be deemed to be a single sentence.