CONSTITUTION AND POWERS OF

COURTS [SS. 6-35]

Synopsis

I. INTRODUCTION Subordination [S. 19]

II. CLASSES OF CRIMINAL COURTS Offences triable by Metropolitan Magistrate
III. TERRITORIAL DIVISION [S. 7] Quantum of Punishment that may be
Awarded [Section 29(4)]
IV. COURT OF SESSIONS
VII. SPECIAL JUDICIAL MAGISTRATE AND
Establishment
METROPOLITAN MAGISTRATE
Additional/ Assistant Session Judge
VIII. EXECUTIVE MAGISTRATE
Offences Triable by Court of Sessions
Establishment
Subordination [S. 10]
Subordination
Quantum of Punishment that may be
Offences Triable by Executive
Awarded [Section 28(2), (3)]
Magistrate
V. JUDICIAL MAGISTRATE
Order
Establishment
Special Executive Magistrate
Subordination [S. 15]
IX. SUBORDINATION OF CRIMINAL
Offences Triable by Judicial COURTS/HIERARCHY OF CRIMINAL
Magistrate COURTS
Quantum of Punishment that may be X. SEPARATION OF JUDICIAL FROM
Awarded [Section 29] EXECUTIVE MAGISTRATE
VI. METROPOLITAN MAGISTRATE XI. CONCLUSION
Establishment

INTRODUCTION
Administration of justice is the most important function of the state. For this purpose a hierarchy of
courts has been set up. The Supreme Court is the apex body, followed by High Courts which have been
created by the Constitution of India, and their jurisdiction and powers are well defined in the
Constitution itself. In addition to the Supreme Court and the High Courts, certain classes of courts have
been established under the Code of Criminal Procedure, 1973 for the purpose of administration of
criminal justice system.

Chapters II and III of the Code containing Sections 6 to 35 deal with the constitution, powers and
jurisdiction of such criminal courts.
CLASSES OF CRIMINAL COURTS

Apart from the Supreme Court and High Courts, the following criminal courts have been described
under section 6 of Criminal Procedure Code, 1973:-

1. Court of Session
2. Judicial Magistrate of first class and, in any metropolitan area Metropolitan Magistrates
3. Judicial Magistrate of Second Class; and
4. Executive Magistrates
TERRITORIAL DIVISION [S. 7]

Before understanding the constitution, jurisdiction and powers of the classes of criminal courts under
the Cr.P.C., it is important to know about the territorial units established for the purposes of efficient
administration, whether judicial or otherwise. According to Section 7 of the CrPC every state, for the
purpose of Criminal administration shall be divided in the following manner:

State

Sessions Division

District

Sub-Division

COURT OF SESSIONS

ESTABLISHMENT

As per Section 7 of CrPC, every state will have session division and the number of such division will
be decided by State Government after consulting the High Court. Further Section 9 of CrPC states that
the State Government will have to establish a Court of Session for every session division. Such Court
shall be presided by a Judge who is appointed by the High Court. Further, the High Court can also
appoint Additional Session Judge and Assistant Session Judge.

In

Gokaraju Rangaraju v. State of A.P.

It was held that a person appointed as a session judge, additional sessions judge or assistance sessions
judge would be exercising jurisdiction in the Court of Session and his judgments and order would be
those of the Court of Session.

ADDITIONAL/ ASSISTANT SESSION JUDGE

The additional/assistant Session judge exercises the powers of a Court of Session, subject to limitation
by law, but is not an independent Court of Sessions. As per section 10 they are subordinate to the
Sessions Judge in whose Court they exercise Jurisdiction.

OFFENCES TRIABLE BY COURT OF SESSIONS

As per Section 26, a Court of Session can try any offence given under IPC or any other offence which
has shown to be triable by the Court of Session in the First Schedule.

E.g. Under the First Schedule of the Code, in respect of the offence of murder u/s 302 of the IPC, the
entry in the 6th column of the Schedule, that deals with Courts by which offence is triable, states that
the offence shall be triable by the Court of Session. This means that the offence of murder shall be tried
by the Court of Session, or that the Court of Session has jurisdiction in respect of the offence of murder
u/s 302 of the IPC.

SUBORDINATION [S. 10]

The Assistant Session Judge appointed by the High Court will be subordinate to their respective
Sessions Judge who will distribute the work among them. Session Judge can make rules, consistent
with the Code, with respect to the Additional as well as Assistant Session Judges.

QUANTUM OF PUNISHMENT THAT MAY BE AWARDED [SECTION 28(2), (3)]

A Sessions Judge and Additional Sessions Judge can pass any sentence that is authorized by law but,
in case of death sentence confirmation of High Court is required.

An Assistant Sessions Judge can pass any sentence excluding sentence of death or imprisonment for
life or for a term exceeding ten years. In other words, an Assistant Sessions Judge may pass any sentence
not of imprisonment not exceeding a term of ten years.

JUDICIAL MAGISTRATE

ESTABLISHMENT

As per Section 7, each Session Division is divided into Districts. In every district, the State Government
may, after consultation with the High Court, establish as many Courts of Judicial Magistrates of First
Class and Second Class as it may deem fit. The Presiding Officer of such Courts shall be appointed by
the High Court. [Section 11]
In every district a Judicial Magistrate of First Class (JMFC) will be appointed as a Chief Judicial
Magistrate (CJM) under Section 12 of CrPC. The High Court can also appoint any JMFC to be an
Additional CJM or Sub- Divisional Judicial Magistrate.

A CJM, subject to the control of High Court, can define the local limit of the areas within which the
Magistrates appointed under Section 11 or Section 13 can exercise their powers. [Section 14]

SUBORDINATION [S. 15]

As per Section 15, a CJM will be subordinate to the Sessions Judge and the other Judicial Magistrate
will be subordinate to CJM, subject to general control of Sessions Judge. Also, the CJM can make rules
consistent with this Code and can distribute the work among the Judicial Magistrate subordinate to him.

OFFENCES TRIABLE BY JUDICIAL MAGISTRATE

As per Section 26, Court of Judicial Magistrate can try offence which has shown to be triable by the
Court of Judicial Magistrate in the First Schedule. As per Section 27, only the court of Chief Judicial
Magistrate is entitled to try an offence committed, not punishable by with death or imprisonment for
life, by a person under the age of sixteen years.

QUANTUM OF PUNISHMENT THAT MAY BE AWARDED [SECTION 29]

CJM may pass any sentence authorized by law except a sentence of death or of imprisonment for life
or a term exceeding seven years whereas a JMFC can pass a sentence for a term not exceeding three
years or fine not exceeding ten thousand rupees or both. Judicial Magistrate of Second Class can pass a
sentence of imprisonment wherein the term will not be exceeding one year and in terms of fine, the
amount will not exceed five thousand rupees, or of both. [Section 29]

METROPOLITAN MAGISTRATE

ESTABLISHMENT

As in a district every metropolitan area will have almost a parallel setup of Judicial Magistrate. In every
metropolitan area, the State Government may, according to Section 16, after consultation with the High
Court, establish courts of Metropolitan Magistrate at such places and in such numbers as it may specify.

The presiding officers of such courts shall be appointed by the High Court and the jurisdiction and
powers of every such Magistrate shall extend throughout the metropolitan area. Likewise, in every
metropolitan area, the High Court shall appoint a Metropolitan Magistrate as Chief Metropolitan
Magistrate. It may similarly appoint Additional Chief Metropolitan Magistrate and such Magistrate
shall have all or any powers of a Chief Metropolitan Magistrate as the High Court may direct.
 SUBORDINATION [S. 19]

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 Session Judge be subordinate to the Chief Metropolitan Magistrate.

OFFENCES TRIABLE BY METROPOLITAN MAGISTRATE

By the virtue of Section 26 a Metropolitan Magistrate can try any offence under IPC or any other law,
as long as such offence is shown in the First Schedule to be triable.

QUANTUM OF PUNISHMENT THAT MAY BE AWARDED [SECTION 29(4)]

According to Section 29 (4) the court of 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. Thus, CMM may pass any sentence authorised by law except that of death
or life imprisonment or imprisonment exceeding 7 years and Metropolitan Magistrate may pass a
sentence not exceeding 3 years of imprisonment and fine up to Rs. 10,000/-.

SPECIAL JUDICIAL MAGISTRATE AND 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 the Code on a Judicial Magistrate of the First Class or of the Second Class or on a
Metropolitan Magistrate. Such persons are known as Special Judicial Magistrate or Special
Metropolitan Magistrate.

They are to be appointed for a term or exceeding one year.

EXECUTIVE MAGISTRATE

ESTABLISHMENT

Under Section 20, the State Government in every district and in every metropolitan area will appoint as
many Executive Magistrates as it thinks fit and shall appoint one of them as District Magistrate (DM).
The State Government can also appoint any Executive Magistrate as an Additional District Magistrate
(ADM) who will have same power as that of a DM.

The DM subject to the control of State Government will define the local limits in which the Executive
Magistrate can exercise their power.

SUBORDINATION

Every Executive Magistrate other than ADM will be subordinate to the DM and every Executive
Magistrate exercising power in a Sub-division shall also be subordinate to the Sub-Divisional
Magistrate, subject to the general control of DM. [Section 23]
 OFFENCES TRIABLE BY EXECUTIVE MAGISTRATE

As per Section 3(4)(b), the matters which are administrative or executive in nature will be exercisable
by an Executive Magistrate.

ORDER

The order that can be passed by an Executive Magistrate will be either administrative or executive in
nature and hence it will depend on the facts and circumstances of the case.

SPECIAL EXECUTIVE MAGISTRATE

Section 21 empowers the State Government for the appointment of such executive magistrates which
are to known as Special Executive Magistrate and confer such powers as conferrable on Executive
Magistrate under the CrPC.

SUBORDINATION OF CRIMINAL COURTS/HIERARCHY OF CRIMINAL COURTS

The structure of the administration of criminal justice in India is divided into various territorial levels,
and various courts have been constituted for each such level. The subordination of courts depends upon
the territorial level at which a court has been established. Thus based on the territorial division of a State
into Sessions, Sessions into Districts and Districts into Sub-Divisions, the hierarchy of the Executive
Magistrates and the criminal courts in India is as follows –

Hierarchy of Executive Magistrates

District Magistrate
(and Additional
District Magistrate)

Sub-Divisional
Magistrate

Special Executive
Executive Magistrate Magistrate
 Hierarchy of Criminal Courts and their Powers to Pass Sentences

Supreme Court
(Any sentence authorised by law)

High Court
(any sentence authorised by law)

Sessions Court
(Sessions Judge, Additional
Sessions Judge - Any sentence
authorised by law; sentence of
death is subject to confirmation
by High Court)

Chief Metropolitan or Additional Chief Judicial Magistrate or

Assistant Sessions Judge
Chief Metropolitan Magistrate Additional Chief Judicial
(Imprisonment upto 10 Magistrate
(Imprisonment up to 7 years
years and/or Fine)
and/or fine) (Imprisonment up to 7 years
and/or fine)

Metropolitan Magistrate Special Metropolitan

(Imprisonment up to 3 Magistrate
years and/or fine up to (Imprisonment up to 3 Sub-divisional Judicial Magistrate
Rs. 10,000) yeats and/or fine up to (Imprisonment up to 3 years and/or
Rs. 10,000) fine up to Rs. 10,000)

Judicial Magistrate or Special Judicial

Magistrate of First Class
(Imprisonment up to 3 years, and/or fine
up to Rs. 10,000)

Judicial Magistrate or Special Judicial

Magistrate of Second Class
(Imprisonment up to 3 years, and/or
fine up to Rs. 10,000)

SEPARATION OF JUDICIAL FROM EXECUTIVE MAGISTRATE

In criminal trial, as the State is the prosecuting party, it is of special significant and importance that the
judiciary is freed of all suspicion of executive influence or control, direct or indirect. Therefore, Section
6 of the Code classifies the courts of Executive Magistrates as a separate category distinct from the
court of Judicial Magistrate. This marks the adoption of the policy of the separation of the judiciary
from the executive.

Formerly, most of the Magistrates used to perform both judicial and executive duties. They were
appointed, supervised and otherwise controlled by higher authorities and ultimately by the State
Government. Our Constitution has directed that the State shall take steps to separate the judiciary from
the executive in the public services of the State. Accordingly, some states tried to implement direction
in their own ways. However, the implementation of the Constitutional direction was neither full nor
uniform. In its 41st Report the Law Commission also provided for the separation of the judiciary from
the executive on all-India basis in order to achieve uniformity in this matter.

Thus for the proper separation of the judiciary from the executive, the Code of 1973 has contemplated
two categories of Magistrates- Judicial Magistrates and Executive Magistrates. The former is under the
control of the High Court, while the latter are under the control of State Government. The functions of
a Judicial Magistrate are essentially of judicial nature whereas of Executive Magistrate are
administrative in nature.

The real purpose of this reform of separation is to ensure the independent functioning of the
judiciary. It is implicit in such separation that no Judge or Judicial Magistrate would be in any way
connected with the prosecution nor would be in direct administrative subordination to anyone connected
with the prosecution.

The new Code therefore fulfils the directive principle contained in Article 50 of the Constitution, which
states that the State shall take steps to separate the Judiciary from the Executive in the public services
of the State. In the case of

Sukhdev Singh Dhindsa v. State of Punjab

The Petitioner challenged the validity of the Code of Criminal Procedure (Punjab Amendment) Act,
1983. The Amendment Act provided that notwithstanding anything contained in the Code an Executive
Magistrate shall, to the exclusion of any other Magistrate, have power to take cognizance of and to try
and dispose of cases relating to specified offences. However it was held that since the 1973 Code
contemplates separation of judiciary from the executive, the law enacted u/s 4 of the Amendment Act
is unconstitutional and shall be struck down

CONCLUSION

Besides the criminal courts mentioned above, the High Court has the power to pass any sentence
authorized by the law. The Supreme Court of India is the highest Court of appeal for the aggrieved
parties. 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.