Code of Criminal Procedure Law: Chapter 3- Powers of Courts [Section 26-35]

Chapter-3

Code of Criminal Procedure Law: Chapter 3- Powers of Courts [Section 26-35]

Courts by which offences are triable [Section 26 & 27]:

Section 26 provides that offences under the Indian Penal Code maybe tried by the High Court or Court of Session or any other court by which such offences is shown to be triable in the First Schedule e.g., Section 420 I.P.C. is triable by First Class Magistrate which is mentioned in the First Magistrate of the Cr.P.C. Section 420 I.P.C. provides for 7 years imprisonment but a First Class Magistrate who conducts the trial as per First Schedule can award imprisonment only up to 3 years or/and Rs. 10,000 fine. This contradiction is explained by the fact that 7 years imprisonment which has been mentioned in section 420 has been done in order to have a deterrent effect of the punishment, but generally in a section 420 case punishment awarded is 3 years and not 7 years because first-class Magistrate is conducting the trial and he cannot award more than 3 years of punishment.

Similarly, under Section 138, Negotiable Instruments Act the punishment is double the amount stated in the dishonored cheque. Such cases are triable by the First Class Magistrate who again cannot award more than Rs. 10,000 fine. Therefore, in such cases the maximum fine imposed is Rs. 10,000 and not double the amount stated in section 138. Magistrates generally award compensation for the dishonored cheques if a separate civil suit is filed.

Ques. If out of one transaction different offences are made out and these different offences are triable by different courts. What is the way out in such cases?

Ans. Take, for example, Section 323/376 I.P.C. 323 which is offence of voluntarily causing hurt is triable by any Magistrate and Section 376 which is the offence of rape, is triable by a Court of Session. In this both, the offences would be tried by the Session Court simultaneously.

Under Section 193 Cr.P.C. cases are committed by the Magistrate to the Sessions Judge only is they are triable by the Sessions Judge as provided in the first schedule and not otherwise. We do not have to go by the enormity of the punishment mentioned but by the First which decided the jurisdiction of different courts for different offences. The police is barred from directly approaching Sessions Court for cases that are directly triable by the Sessions Judge. Even for such cases police have to first approach the Magistrate with the investigation report as specified in Section 173, who then verifies the documents and then asks the accused to check the same for himself, and then only the case would be committed to the Sessions, Judge. Recently, the Punjab and Haryana High Court acquitted one accused on the technical second. In such cases, the question arises as to whether the accused will have to spend a three-year a prison sentence, or whether both sentences convictions should run concurrently, in which case he will spend only two years in prison. If the terms of imprisonment suffer one after another, the sentence of imprisonment is said to run consecutively. If, on the other hand, the terms of imprisonment suffer simultaneously, these types of sentences are called concurrently. In the latter case, the lesser sentence merges into the greater.

In every case, the hon’ble court has to decide whether two sentences passed against the same accused are to be run concurrently or consequently. The general rule is that every such sentence, imprisonment run consequentially, and that it is a court order, the court in a given case that sentences are to spend concurrently.

Section 27 defines that any offence (other than punishable with death or life imprisonment) committed by a juvenile offender ( a person below the age of 16 years) may be tried by the Court of Chief Judicial Magistrate or by any court specially empowered under the Children Act, 1960, or any other law for the time being in force relating to youthful offenders. The age of 16 years is taken into account on the date an offender either appears or is brought before the court.

Sentences which Courts may pass [Section 28-31]

  1. High Court- Any sentence authorized by law [Section 28(1)].
  2. Sessions Judge or Additional Sessions Judge- Any sentence authorized by law can give any sentences but a sentence of death is subjected to confirm by the High Court [Section 28(2)].
  3. Assistant Session Judge- Any sentence authorized by law, except a sentence of death or life-imprisonment or imprisonment exceeding 10 years [Section 28(3)].
  4. Chief Judicial Magistrate/Chief Metropolitan Magistrate- Any sentence authorized by law, except a sentence of death or life imprisonment or imprisonment exceeding 7 years [Section 29(1)].
  5. First Class Magistrate/Metropolitan Magistrate- Any sentence of imprisonment not exceeding 3 years, or of the fine not exceeding Rs. 10,000, or both [Section 29(2)].

Section 29(2) has been amended by the Cr.P.C. Amendment Act, 2005 to enhance the sentencing power of the First Class Magistrate to impose fine from Rs. 5,000 to Rs. 10,000.

  1. Second Class Magistrate- Any sentence of imprisonment not exceeding 1 year, or of fine not exceeding Rs. 5,000 or both [Section 29(3)].

Section 29(3) has been amended by the Cr.P.C. Amendment Act, 2005 to enhance the sentencing power of the Second Class Magistrate from Rs. 1,000 to Rs. 5,000].

These limits show the maximum sentence which can be passed by a court; they have nothing to do with the maximum penalty provided for an individual offence. Power of the appellate court (viz. High Court) to pass ‘any sentence’ must be measured by the power of the court from whose judgement an appeal has been brought before it [Jagat Bahadur Vs. State AIR 1966 SC 945]. There is a limit to the power of Magistrate to award fines, but the powers of a Sessions Court/High Court are ‘unlimited’, through the fines cannot be excessive.

Sentencing is always a matter of judicial discretion subject to any mandatory minimum prescribed by law. It has been held that a long passage of time would not justify minimal sentence in all cases and cannot become a universal application. The court has to award proper sentence having regard to the nature of offence and the manner of its commission.

In the case of [State of M.P. vs. Ghanshyam Singh (2003) Cr.L.J. 4339 (SC)], Hon’ble court held that an undue sympathy to impose inadequate sentence would do more harm to the justice system and undermine the public confidence in the efficacy of law

A Magistrate can pass a sentence within the limits prescribed by Section 29. He may try such cases whereof a punishment more than what he can award is prescribed but in such a case he cannot award a punishment more than what he is empowered to. However, if he feels that the accused deserves more severe punishment, he can take recourse to Section 325 and forward the accused to CJM.

Sentence of Imprisonment in Default of Fine

Where a fine is imposed on the accused, and it is not paid, he can be given a further term of imprisonment in addition to the one already awarded. Section 30 defines the limit of a Magistrate’s power to award such imprisonment, and lays down that such imprisonment:-

(a)  Cannot be in excess of the Magistrate’s power under Section 29, and

(b) Cannot exceed one-fourth of the term which the Magistrate is competent to inflict as punishment for the offence, otherwise than as imprisonment in default of payment of the fine.

The provisions of Indian Penal Code should also be noted in this regard (1) where an offence is punishable with imprisonment and fine, the imprisonment in default of fine can only extend to one-fourth of the maximum imprisonment that can be imposed (Section 65) where the offence is punishable with fine only, the imprisonment in default can be simple only, and must conform to the following scale, viz. for the fines up to Rs.  50 (imprisonment for 2 months), for fines from Rs. 51-100 (imprisonment for 4 months), and for fines of Rs. 101 and above (imprisonment for 6 months) (Section 67). To this limitation the Code of Criminal Procedure Law has added on more, that the imprisonment can only extend to one-fourth of the period of imprisonment which the Magistrate is competent to sentence.

Thus, if for an offence the maximum imprisonment provided is 4 years, or fine, or both—Under the I.P.C. in default of payment of fine. A may be sentenced to a period up to year (i.e. one-fourth of 4 years, the maximum imprisonment provided for the offence). But under the Code of Criminal Procedure Law, the maximum period for which A may be imprisonment for non-payment of fine, cannot exceed 9 months i.e. one-fourth of 3 years, which is the maximum imprisonment that can be awarded by a First Class Magistrate).

Consecutive and Concurrent Sentence

At times, a person is convicted, at one trial, of two or more offence, and, he may be awarded imprisonment of 2 years for one crime and 1 year imprisonment for the second. If the terms of imprisonment are to be suffered one after the other, the sentences of imprisonment are said to run consecutively (thus, an aggregate of three years in prison0. If the terms are to be suffered together, the sentence are said to run concurrently, and the lesser sentence merges into the greater 9thus, an imprisonment for 2 years).

In all cases, it is for the court to decide whether two sentences passed against the accused are to run concurrently or consecutively. The general rule is that such sentence run consecutively, and it is for the court to decide, in a given case, that the sentences are to run concurrently [Section 31]. It may be noted that passing of separate sentences is not obligatory; it is only optional. The provisions of Section 31 are subject to the substantive law provisions of Section 71, I.P.C.

Section 31 further lays down that merely because the sentences are to run ‘consecutively’, and the aggregate punishment is in excess of the punishment which the court is competent to inflict for a single offence, the court need not send the offender to trial before a higher court. However, for the purposes of appeal, the aggregate of all the consecutive sentences passed against an accused is deemed to be a single sentence.

Two further limitation are also imposed by Section 31 on a court awarding ‘consecutive’ sentence viz.

(a)  A person cannot be sentenced to imprisonment for more than 14 years.

(b) The aggregate punishment cannot, in any case, exceed twice the amount of punishment which the court is competent to inflict for a single offence.

Any sentence of imprisonment awarded for default in payment of fine will be in excess of and not concurrent with any other sentence of imprisonment awarded to the accused. The court is not empowered to make various sentences of imprisonment in default of payment of fine concurrent with each other [Mritunjoy Bose AIR 1967 Pat 286]. If a statute provides for minimum punishment which must be imposed for an offence, in the absence of any saving clause, it is not open to the court to award a punishment less than the minimum so prescribed [State of T.N. Rangaswami, 1981 CrLJ 694 (Mad)].

Mode of conferring powers [Section 32)

  1. By authorizing the High Court or the State Government, by order, as the case may be, by referring to the powers under this Code, persons are officially empowered by their official titles based on the name or classes of their offices or officers.
  2.  Every such order shall be effective from the date on which it is communicated to the person.

Powers of officers appointed [Section 33]

Whenever a person holding a position in the service of the Government, who has been invested by the High Court or State Government in any local area with any powers under this Code, is appointed to an equal or higher of the same nature within local area under the same state government, unless the High Court or the State Government, as the case may be, may direct or otherwise direct to exercise the same powers in the same area in which he is appointed. .

 

Withdrawal of powers [Section 34]

  1. The High Court or the State Government, as the case may be, may be withdrawn all or any of the powers conferred by it under this Code on any person or by any officer subordinate to it.
  2. Any powers conferred by the Chief Judicial Magistrate or District Magistrate may be withdrawn by the Magistrate concerned by whom such powers were conferred.

 Powers of Judges and Magistrate exercisable by their successors in Office [Section 35]

This section aims at to make provision in regard to the powers and duties of a Judge Magistrate to be exercised or performed by his successor-in-office. In this connexion sub-section(2) declares that in case of doubt as to whom is the succession-in-office of any Additional or Assistant Session Judge, the Session Judge should determine, who should be deemed to be the successor-in-office of such Additional or Assistant Session Judge. In the like manner sub-section (3) declares that in case of doubt as to who is the succession-in-office of any Magistrate, the Chief Judicial Magistrate, or the District Magistrate should determine, who should be deemed to be successor-in-office of such Magistrate.

Power to give punishment in the Hierarchy of Courts

1.     High Court

Any sentence authorised by law.

2.     Session Judge and Additional Judge

Any sentence authorised by law, but sentence of death is subject to the confirmation by the High Court.

3.     Assistant Session Judge

Imprisonment up to 10 years and or fine authorised by law.

4.     Chief Judicial Magistrate and Chief Metropolitan Magistrate

Imprisonment up to 7 years and or fine authorised by law.

5.     First Class Judicial Magistrate and Metropolitan Magistrate

Imprisonment up to three years and or fine up to 10,000 rupees authorised by law.

6.     Second Class Judicial Magistrate Special Judicial Magistrate, Special Metropolitan Magistrate

Imprisonment up to one year and or fine up to 5,000/- rupees authorised by law.

Qualification of the Prosecutors

1. Director of Prosecution or Deputy- Director of Prosecution

Worked at least 10 years as on Advocate

2. Public Prosecutor or Additional Public Prosecutor

Worked at least seven years as an Advocate

3. Special Public Prosecutor

Worked at least 10 years as an Advocate

4. Assistant Public Prosecutor

As may be prescribed



Previous Year Question

  1. What is the maximum sentence that can be passed by a Session Judge?
  2. What maximum sentence can be passed by a Session Judge?
  3. Which courts have jurisdiction to try Juveniles?
  4. A Sessions Judge leaves his Sessions division. Who can dispose of urgent application and under what circumstances?
  5. What is the maximum sentence that can be passed by a Chief Judicial Magistrate?
  6. What must a court do when it finds that an accused before it who is less than 16 years of age, is found guilty of an offence punishable with a maximum sentence of seven years rigorous imprisonment.
  7. A gives Z ten strokes with a stick. Whether A can be punished for each blow separately.
  8. What sentence can be passed by a Chief Judicial Magistrate?
  9. To what extent an Assistant Sessions Judge can pass a sentence?
  10. To what extent a Magistrate and a Session Judge can pass sentence in default of payment of fine?
  11. To what extent a Chief Judicial Magistrate can pass a sentence?
  12. What is the limit of the term for which the court may direct the offender to be imprisoned in default of payment of fine, if the offence be punishable with imprisonment as well as fine?
  13. What sentences can be awarded by a Session Judge?
What sentence can be passed by magistrates in criminal cases?

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