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Powers of the Criminal Courts in India granted by THE CODE OF CRIMINAL PROCEDURE, 1973

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Crime is a highly complex phenomenon that evolves across cultures and across time. Increase in population, technological advancements and heightened competition for economic and social resources have brought about change in crime and its pattern. Hence, posing new challenges to the law enforcement agencies.

Crime is manifestation of complex factors. People commit crimes due to the process of socialization that does not develop strong sense of right or wrong and ever-increasing desires act as strong stimulus for taking to crime to fulfill these desires. The genesis of crime can be traced to various social, economic, demographic, local and institutional factors. The presumption that crime occurs because of the failures of police therefore exhibits a lack of mature understanding of the theories of criminal behavior

India is a diverse subcontinent with a population of around 140 crores. A country so vast needs a proper functioning of the courts, especially the criminal courts. They help in establishing peace and order in the society. The National Crime Records Bureau in its publication ‘Crime in India’ report contains detailed analysis of statistics pertaining to various aspects of crime in the country. These have been presented in a very comprehensive manner to assist stakeholders for policy formulation, crime analysis and designing mitigating strategies. As of this date the latest publication is of the year 2021 which is their 69th edition of the annual ‘Crime in India’ report.

As per the above report, a total of 60,96,310 cognizable crimes comprising 36,63,360 Indian Penal Code (IPC) crimes and 24,32,950 Special & Local Laws (SLL) crimes were registered in 2021. It shows a decline of 5,04,975 (7.6%) in registration of cases over 2020 (66,01,285 cases). Crime rate registered per lakh population has declined from 487.8 in 2020 to 445.9 in 2021. During 2021, registration of cases under IPC has declined by 13.9% whereas SLL crimes have increased by 3.7% over 2020. Percentage share of IPC was 60.1% while percentage share of SLL cases was 39.9% of total cognizable crimes during 2021. Though in hindsight we may notice a decrease of 7.6% compared to 2020, the numbers are still mammoth. These figures are more than enough to at the lease gauge the amount of work, efforts and toil involved in the criminal courts in our country.

Chapter III of the Code of Criminal Procedure 1973 mentions provisions with respect to the POWER OF COURTS. This Chapter ranges from section 26 to 35. In this article I attempt to breakdown all mentioned provisions so that this could act as a guide with respect to powers of the courts to try a matter.

Section 26. Courts by which offences are triable

As per this provision offences can be categorized into two types. First, offences under the Indian Penal Code. Second, Offences under any other law. The Courts which are competent to try the above offences are the High Court or The Court of Sessions or by any other Court by which such offence is shown in the first schedule to be triable.

By referring to the screenshot of the First Schedule of the CrPC it is easy to understand that the final column states the court by which an offence is triable with respect to the second column of the offences. This Schedule also depicts the nature of the offence and the nature of the bail as well. Thus, making it an important tool in the process of understanding criminal laws.

It is important to note that an offence bring allowed to try by any other Court does not limit or restrict the jurisdiction of the High Court or the Court of Sessions. But that does not mean their reach can run riot. As per the Judgement in the case of Harsishchandra Vs. Kavindra Narain Sinha (1937) AIR 1936 All 830, it is stated that the High Court cannot straight away take cognizance of an offence and try the accused, instead it has to follow the procedure enshrined by the Code. 

This section also states that sexual offences as mentioned in the below table, shall be tried as far as practically by a court presided over by a women.

Offences mentioned in the Indian Penal Code:

376 Punishment for rape.
376A. Punishment for causing death or resulting in persistent vegetative state of victim.
376B Sexual intercourse by husband upon his wife during separation.
376C. Sexual intercourse by a person in authority.
376D. Gang rape
376DA. Punishment for gang rape on woman under sixteen years of age.
376DB. Punishment for gang rape on woman under twelve years of age.
376E. Punishment for repeat offenders.

 Section 27 Jurisdiction in case of Juveniles

This section is not applicable to sentences where the offence is punishable with death or imprisonment for life. Juvenile here means, offence committed by any person who at the date when he/she appears or is brought before the Court is under the age of sixteen years, may be tried by the Court of a Chief Judicial Magistrate, or by any Court specially empowered under the Children Act, 1960, or any other law for the time being in force providing for the treatment, training and rehabilitation of youthful offenders.

The section 28-31 widely covers the powers of various courts to pass sentences.

Section 28. Sentences which High Courts and Sessions Judges may pass.

High Court has the authority to pass any sentence authorized by law.

The Sessions Judge or Additional Sessions Judge can pass any sentence authorized by law but any sentence of death passed by any such Judge shall be subject to confirmation by the High Court.

Assistant Sessions Judge is authorized to pass any sentence authorized by law except a sentence of death or of imprisonment for life or of imprisonment for a term exceeding ten years.

The philosophy behind deciding a sentence being rendered can be observed in the case State of U.P. v. Kishan 2005 Cr LJ 333(S.C), the Supreme Court held that the object of awarding sentence is to protect society and to deter the criminal. Taking liberal attitude by imposing meagre sentence or taking too sympathetic view merely on account of lapse of time will be result-wise counterproductive. Punishment awarded should conform to and be consistent with atrocity and brutality with which crime has been perpetrated. It should respond to the society’s cry for justice against criminal.

It was held in State of Madhya Pradesh v. Ghanshyam Singh (2003) Cri.L.J. 4339 (S.C.), that in view of the purpose for which a sentence is imposed, it cannot be laid down as a general rule of universal application that long passage of time in all cases would justify minimal sentence. Long pendency of a matter by itself could not justify lesser sentence. It was observed that undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats.

It becomes the duty of the Court to award appropriate sentence having regard to the nature of the offence and the manner in which it was committed. After giving due consideration to the facts and circumstances of each case, for deciding just and proper sentence to be awarded for an offence, the aggravating and mitigating circumstances in which a crime has been committed are to be delicately balanced on the basis of relevant circumstances in a dispassionate manner by the Court.

Section 29. Sentences which Magistrates may pass

The Court of a Chief Judicial Magistrate can pass any sentence authorized by law except a sentence of death or of imprisonment for life or of imprisonment for a term exceeding seven years.

The Court of a Magistrate of the first class is authorized to pass sentence of imprisonment for a term not exceeding three years, or of fine not exceeding ten thousand rupees, or of both.

The Court of Magistrate of the second class is authorized to pass a sentence of imprisonment for a term not exceeding one year, or of fine not exceeding five thousand rupees, or of both.

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

The court under this section may pass within its discretion sentence for any period within the maximum it has power to pass. The Penal Code or other criminal statutes generally lay down the maximum punishment that may be imposed in case of different offences. In some cases a minimum is also provided by the statute. It is important for the courts to acknowledge their limitations whilst exercising their powers. The Magistrate of first or second class can pass a sentence within the limit prescribed by this section. A Magistrate may try such cases where a punishment more than what he/she can award is prescribed but in such a case he/she cannot award a punishment more than what he/she is empowered to. But, if such a magistrate feels that the accused deserves more severe punishment than it is within his powers to give, he/she can take recourse to Section 325 (Procedure when Magistrate cannot pass sentence sufficiently serve)  and forward the accused to Chief Judicial Magistrate.

The below table summarizes the power of various courts:

COURT

MAXIMUM SENTENCE
High Court  A High Court may pass any sentence authorized by law.
Sessions Judge or Additional Sessions Judge Any sentence authorized by law. A Sentence of Death passed by such Court shall be subject to confirmation by the High Court.
Assistant Sessions Judge It can only pass any sentence for imprisonment for a term not exceeding 10 years.
Chief Judicial Magistrate It can only pass any sentence for imprisonment for a term not exceeding 7 years.
Judicial Magistrate Ist Class  It can only pass any sentence for imprisonment for a term not exceeding 3 years or fine not exceeding 10,000/-
Judicial Magistrate 2nd Class  It can only pass any sentence for imprisonment for a term not exceeding 1 years or fine not exceeding 5,000/-
Chief Metropolitan Magistrate Chief Metropolitan Magistrate shall have sentencing powers of a Chief Judicial Magistrate.
Metropolitan Magistrate  Metropolitan Magistrate shall have sentencing powers of Judicial Magistrate of 1st Class.

Section 30. 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 further term. Such sentence of imprisonment can be ordered in addition to the substantive imprisonment awarded. This provisions contained under section 30 are only applicable to a Magistrate. It must not exceed the powers of a Magistrate mentioned u/s. 29.

The imprisonment for such a default should not exceed one fourth of the term of imprisonment awarded for the substantive offence. A default sentences cannot run concurrently.

As per the case Bashiruddin Ashraaf v. State of Bihar, A.I.R. 1957 S.C. 645. it is established that when an offence is punishable by fine only and does not provide for imprisonment and if default of payment of fine occurs, imposition of simple imprisonment for any such default will be justified under this section.

Section 31. Sentence in cases of conviction of several offences at one trial.

The section applies only when more than one offence is tried at the same trial. Such a sentence can be executed in two was, them being:

  • Consecutive Sentence: one sentence ordinarily operates at the expiration of another.
  • Concurrent Sentence: all the sentences so awarded shall run all together. The lesser sentence will be merged in the greater sentence.

In case the Court does not direct the sentence to run concurrently, the sentences shall be assumed to run consecutively. It is at the discretion of the court to award sentence in the above manner.

The Courts must comply with few conditions while exercising this provision. The aggregate punishment shall not exceed twice the amount of punishment which the Court is competent to inflict for a single offence; and in no case such person shall be sentenced to imprisonment for period more than 14 years.

In Muthuramalingam v. State, 2016 Cr. L.J. 4165 (4169) SC, it was held that if multiple sentences for imprisonment for life, the life sentences so awarded cannot be directed to run consecutively. Such sentences would however, be super imposed over each other so that any remission or commutation granted by the competent authority in one does not if so facto result in remission of the sentences awarded to the prisoner for the other.

 

Section 32 – Section 35 of this code talks about the various powers to CONFERRING & WITHDRAWING POWERS by the High Court or the State Government:

  • Section 32 states the provisions regarding the powers of the High Court or the State Government, as the case may be, may, by order, empower persons specially by name or in virtue of their offices or classes of officials generally be their official titles.
  • Section 33 states the various powers of officers appointed as so.
  • Section 34 is regarding the withdrawal of power by the High Court or the State Government, of the powers conferred by it. Any powers conferred by the Chief Judicial Magistrate or by the District Magistrate may be withdrawn by the respective Magistrate by whom such powers were conferred.
  • Section 35 is concerned about the powers of Judges and Magistrates exercisable by their successors-in-office.

Conclusion:

With this the chapter of the power of the courts comes to an end. As stated in the beginning, crime is a highly complex phenomenon that evolves across cultures and across time. The procedures laid down in this code helps to find a path to navigate through the process of litigation.

References:

 

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Article by Aditya G S

 

                       

 

 

 

 

 

 

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