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]
- High Court- Any sentence
authorized by law [Section 28(1)].
- 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)].
- Assistant Session Judge- Any
sentence authorized by law, except a sentence of death or
life-imprisonment or imprisonment exceeding 10 years [Section 28(3)].
- 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)].
- 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.
- 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)
- 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.
- 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]
- 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.
- 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
- What is the maximum sentence
that can be passed by a Session Judge?
- What maximum sentence can be
passed by a Session Judge?
- Which courts have jurisdiction
to try Juveniles?
- A Sessions Judge leaves his
Sessions division. Who can dispose of urgent application and under what
circumstances?
- What is the maximum sentence
that can be passed by a Chief Judicial Magistrate?
- 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.
- A gives Z ten strokes with a
stick. Whether A can be punished for each blow separately.
- What sentence can be passed by
a Chief Judicial Magistrate?
- To what extent an Assistant
Sessions Judge can pass a sentence?
- To what extent a Magistrate and
a Session Judge can pass sentence in default of payment of fine?
- To what extent a Chief Judicial
Magistrate can pass a sentence?
- 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?
- What sentences can be awarded
by a Session Judge?
What sentence can be passed
by magistrates in criminal cases?
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