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Constitution of Criminal Courts in India

The document summarizes the constitution of criminal courts in India and their powers. It discusses the hierarchy and jurisdiction of various courts - the Supreme Court at the top, followed by High Courts, Sessions Courts and Magistrate Courts. It describes the appointment and powers of judges in these courts. The Sessions Court is presided over by a judge appointed by the High Court. Magistrate judges are usually appointed by the High Court. It also outlines the sentencing powers of different courts, with higher courts able to impose longer sentences or capital punishment compared to lower courts.

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0% found this document useful (0 votes)
382 views11 pages

Constitution of Criminal Courts in India

The document summarizes the constitution of criminal courts in India and their powers. It discusses the hierarchy and jurisdiction of various courts - the Supreme Court at the top, followed by High Courts, Sessions Courts and Magistrate Courts. It describes the appointment and powers of judges in these courts. The Sessions Court is presided over by a judge appointed by the High Court. Magistrate judges are usually appointed by the High Court. It also outlines the sentencing powers of different courts, with higher courts able to impose longer sentences or capital punishment compared to lower courts.

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MAnu PAndit
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© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Constitution of Criminal Courts in India

1. The Sessions Judge– Section 9 of the CrPc talks about the establishment of the
Sessions Court. The State Government establishes the Sessions Court which has to be
presided by a Judge appointed by the High Court. The High Court appoints Additional
as well as Assistant Sessions Judges. The Court of Sessions ordinarily sits at such
place or places as ordered by the High Court. But in any particular case, if the Court of
Session is of the opinion that it will have to cater to the convenience of the parties and
witnesses, it shall preside its sittings at any other place, after the consent of the
prosecution and the accused. According to section 10 of the CrPC, the assistant
sessions judges are answerable to the sessions judge.
2. The Additional/ Assistant Sessions Judge- These are appointed by the High Court of
a particular state. They are responsible for cases relating to murders, theft, dacoity,
pick-pocketing and other such cases in case of absence of the Sessions Judge.
3. The Judicial Magistrate– In every district, which is not a metropolitan area, there
shall be as many as Judicial Magistrates of first class and of second class. The
presiding officers shall be appointed by the High Courts. Every Judicial
Magistrate shall be subordinate to the Sessions Judge.
4. Chief Judicial Magistrate- Except for the Metropolitan area, the Judicial Magistrate
of the first class shall be appointed as the Chief Judicial Magistrate. Only the Judicial
Magistrate of First Class may be designated as Additional Chief Judicial Magistrate.
5. Metropolitan Magistrate- They are established in Metropolitan areas. The High
Courts have the power to appoint the presiding officers. The Metropolitan
Magistrate shall be appointed as the Chief Metropolitan Magistrate. The Metropolitan
Magistrate shall work under the instructions of the Sessions Judge.
6. Executive Magistrate- According to section 20 in every district and in every
metropolitan area, an Executive Magistrate shall be appointed by the State
Government and one of them becomes District Magistrate.

Powers of Criminal Courts

1. The  Apex Court

The Supreme Court is the ultimate court, at the top of the Judicial system. It has the supreme
judicial authority in our country.

 Federal Court– Article 131 gives the power of original jurisdiction to the Supreme


Court, to resolve the dispute arising between the Centre and the States or between two
States.
 Interpretation of the Constitution- Only the Apex Court has the power to settle a
question based on any issue related to the Constitution.
 Power Of Judicial Review (Article 137)- All the laws enacted are subjected to scrutiny
by the Judiciary.
 Court of Appeal – The apex court is the highest court for appeal in India. It has the
power to hear appeals from all the cases lying in the various High Courts and
subordinate courts of our country. A certificate of the grant is to be provided according
to Article 132(1), 133(1) and 134 of the Constitution with respect to any judgment,
decree or final order of all cases of the High Court involving the question of law.
Appeals to the Supreme Court can be made under the following categories:-
 Constitutional Matters
 Civil Matters
 Criminal Matters
 Special Leave Petition

2.  The High Courts

 Original Jurisdiction – In some issues, the case can be directly filed in the High Courts.
This is known as the original jurisdiction of the High Court. E.g., In matters related to
fundamental rights, Marriage and Divorce cases.
 Appellate Jurisdiction- The High Court is the Appellate Court for the cases coming up
from the trial court.
 Supervisory Jurisdiction- This refers to the power of general superintendence of the
High Court over the matters of all the subordinate courts.
The powers of the various courts have been highlighted in the Constitution of India. Apart from
these courts, the power and functions of the subordinate criminal courts have been provided
under the Code Of Criminal Procedure, 1973, as mentioned under section 6.

  Court of Session
  First Class Judicial Magistrate and, a metropolitan magistrate in  any metropolitan area
  Second Class Judicial Magistrate
 Executive Magistrates

The power of the various subordinate courts is mentioned from section 26-35, under the Code of
Criminal Procedure, which has been described below.
Section 26 mentions the list of Courts which are eligible to try offences – According to Section
26, any offence mentioned under the Indian Penal Code may be tried by:

 the High Court


 the Court of Session
 any other Court as specified in the First Schedule of the Code of Criminal Procedure
Although it has to be ensured that any offence committed under section 376, section 376A,
section 376B, section 376C, section 376D and also section 376E of the Indian Penal Code, be
tried by a woman judge.

3. The Sessions Court

The State Government establishes the Sessions Court which has to be presided by a Judge
appointed by the High Court. The High Court appoints Additional as well as Assistant Sessions
Judges. The Court of Sessions ordinarily sits at such place or places as ordered by the High
Court.

4. The Magistrate Court

The Magistrate judges are usually appointed by the High Court.

The jurisdiction in case of Juveniles (Section 27)– Any person who is below the age of sixteen
years, who is a juvenile is exempted from the death penalty and punishment for imprisonment for
life. The Chief Judicial Magistrate, or any other Court specially empowered under the Children
Act, 1960 (60 of 1960) or any other law for the time being in force which provides for the
treatment, training and rehabilitation of youthful offenders, are eligible for trying such cases.

Miscellaneous Powers

 Mode of Conferring Powers – Section 32 states that the High Court or the State
Governments have the power by virtue of an order to empower people by their titles.
 Withdrawal of Powers- According to Section 33, the High Court or the State
Government, have the power to withdraw the powers conferred by them under this
code.
 Powers of Judges and Magistrate exercisable by their successors-in-
office- According to Section 35, subject to the other provisions of this Code, the
powers and duties of a Judge or Magistrate may be exercised or performed by their
successors-in-chief.
Sentences which can be passed by the various courts

1. Sentences which the High Courts and Sessions Judges (Section 28) can pass


the following sentences.

 Any sentence authorised by law can be passed by the High Court. 


A sessions or additional sessions Judge has the authority to pass any sentence authorised
by law. But, while passing death sentence prior permission from High Court is
required. 
 An Assistant Sessions Judge has the authority to pass any sentence which has been
authorised by law. Such judge cannot pass a death sentence, life imprisonment or
imprisonment for more than 10 years. 

2. Sentences passed by the Magistrates (Section 29) – The Court of Chief Judicial


Magistrate is authorised to pass any sentence approved by law except for death
sentence, life imprisonment or imprisonment for more than seven years.

 The first class Magistrate is eligible to pass a sentence of imprisonment for a term of
not more than three years, or fine not exceeding ten thousand rupees or both.
 The Second Class Magistrate may pass a sentence of imprisonment for a term not more
than one year, or fine or both. The fine imposed cannot exceed five thousand rupees.
 The Chief Metropolitan Magistrate has the powers of that of a Chief Judicial
Magistrate as well as that of a Metropolitan Magistrate, in addition to the powers of the
First Class Magistrate.

3. The sentence for default of fine (Section 30)–  According to this section, the Magistrate has
the power to pass imprisonment for default of payment of fine as specified by law. But the
following conditions need to be satisfied.

 The term should not go beyond the ambit of the powers of the Magistrate (under section
29).
 The term should not exceed one-fourth of the term of imprisonment which the
Magistrate is competent to award only if imprisonment awarded, is a  part of the
substantive sentence as punishment for the offence.
 The imprisonment sentenced under this section may be in addition to a substantive
sentence of imprisonment for the maximum term awardable by the Magistrate
under section 29.
 The sentence in cases of conviction of several offences at one trial (Section
31)– According to this section, when a person is convicted for two or more offences, at
one
 trial, the Court may sentence him for such offence in one trial, subject to the provisions
of section 71.
 The court also has the power to award several punishments. Such sentences of
imprisonment may commence after the expiration of other punishments. Unless courts
direct such punishments run simultaneously with each other.  In the case of succeeding
sentences, it is not necessary for the Court to send the offender before High court. If
the aggregate punishment for several offences exceeds the power of the court to inflict
the punishment for a single offence. Provided that.
 The imprisonment should not exceed a term of fourteen years.
 the aggregate punishment also shall not exceed twice the amount of punishment which
the Court is competent to inflict for a single offence.
For appeal, the aggregate punishment passed against him under this section is normally assumed
as a single sentence.

Arrest and Rights of Person Arrested

introduction –
As per the Blacks Law Dictionary, the word Arrest means “To deprive a person of
his liberty by legal authority”
,The word arrest has not been defined in the Code of Criminal Procedure or in any
other major substantive laws, The word arrest which is generally used, means to
deprive a person of his or her personal liberty. In a legal sense, the word arrest
means taking a person in custody by the authority of law, for the purpose of
holding him to answer a criminal charge or preventing the commission of the act,
punishable by law.
In the Landmark judgment of R.R. Chari v. State of Uttar Pradesh  the honourable
apex court defined the term arrest as “the act of being taken into custody to be
formally charged with a crime”.
Why Are Arrest Made?

It is one of the essential features of a free and fair trial that, trial proceeding takes place in the
presence of the accused and after the trial, if the accused is found guilty, he should be present to
receive the punishment, his presence could not be ensured by any other way other than arrest and
detention. 

There are several objectives behind the arrest, which are tried to be satisfied by making an arrest,
as –

1. To secure the presence and attendance of the accused during the trial.
2. To obtain the correct name, address and details of the accused.
3. The arrest is also made as a preventive measure.
4. To retake a person in lawful custody who has or who has tried, to escape.
5. To remove obstructions and hindrances in an investigation by police.
6. To secure a free and fair trial and eradicate chances of evidence tampering.

Types of Arrest as Per Code of Criminal Procedure -:

1. Arrest without a warrant. (Section 41 & 42)


2. Arrest with a warrant.
3. Arrest made by a private person (Section – 43)
4. Arrest by Magistrate (Section – 44)
Arrest with Warrant –

An arrest warrant is issued by Magistrate and in Cognizable cases, arrest warrant is


not required, during the course of an investigation of cognizable offences police
officers can arrest without warrant, but in non-cognizable cases, the arrest can only
be made once the warrant is issued by the magistrate. In non-cognizable cases, it is
required to be analyzed whether the case is summon case or a warrant case, the
general rule is, in summon cases first the summon is issued to the accused to
require his attendance in court and only on failure to comply with summon, a
warrant is issued. In warrant cases, warrant could be directly issued to ensure the
presence of the accused in a court of law. In special circumstances, magistrate may
depart from the general rule.

Arrest without Warrant –


There are situations and circumstances in when to restrain and refrain a person
from doing any illegal act by arresting him, immediate approval of magistrate and
warrant is neither desirable nor feasible
In Section – 41 of C.r.P.c, Nine situations are enumerated in which a person could
be arrested by a police officer without a warrant, and they are –

1. Any Person actually concerned or is reasonably suspected to be concerned in


a cognizable offence.
2. Any person found without any lawful excuse in possession of any
implement of the house- breaking.
3. A person who is proclaimed offender.
4. Any person who is in the possession of property reasonably suspected to be
stolen and who may be reasonably suspected to have committed the offence
with reference to such property.
5. Any person obstruction police officer in the discharge of his official duty or
who has escaped from lawful custody.
6. A person who is a deserter from any of the armed forces of the union.
7. Any person who is concerned or who is reasonably suspected to be
concerned with any act committed outside of India, if it would have been
committed in India, would be punishable as an offence and would have been
liable to be apprehended or detained in custody of India.
8. Any person who is released is convicted of committing a breach of any rule
made under sec – 356(5) of C.r.P.c.
9. Any person for whose arrest requisition has been received from another
police officer, is authorized to arrest him without a warrant

Arrest Made By Private Person -


As per Section – 43 of the Criminal Procedure Code, any private person may arrest
without warrant, when any person –

1. Commits a non-bailable and cognizable offence in his presence or


2. The person is a proclaimed offender

This particular provision in the law is to assist the forces responsible for
maintaining law and order and help the law, along with ensuring immediate safety
of people and security of property

Arrest By Magistrate -
Any magistrate either it’s Executive or Judicial magistrate, may arrest or can order
any other person to make arrest if

1. An offence is committed in his or her presence


2. An offence is committed in his local jurisdiction.

This provision of Criminal law gives special power to magistrates and it is highly
desirable in the hands of magistrates.
There is an exception to the general rule of arrest, that is Sec – 42 of Code of
Criminal procedure Code, as per sec – 42 of C.r.P.c, if a non-cognizable offence is
being committed in presence of a police officer and their person committing the act
or omission refuses to give his personal details as name and address, the police
officer could arrest the person without warrant, with a view to ascertain his name
and address. 
Rights of Person Arrested.
There are several rights of a person who is arrested and that lays an obligation on the other party
with whom they have to exercise their right.

1. Informed about grounds of arrest - Person arrested to be informed of his ground of


arrest and right to bail – As per Sec -50, every person who is arrested without a warrant
should be informed about his ground of arrest and observance and compliance of this
section is mandatory in nature.
2. No Unreasonable Restraint - The person arrested should not be made subject to any
unreasonable restraint. The police officer making an arrest will not use more restraint
than what is required for restricting him from escaping or eloping. If the arrest is without
a warrant then special order for handcuffing is to be taken from the magistrate,

3. Information to a nominated person - It is obligatory for the person making an arrest to


inform about arrest to a nominated person by the person arrested as per requirement of
Sec. 50-A.
4. Right to have Medical Examination - The person who is arrested could get
himself/herself examined by a Medical Practitioner as per Sec – 54 of C.r.P.C and in
Sheela Barse v State of Maharashtra, (1983) the Supreme Court said that it is the duty of
magistrate to inform the person arrested about his right of Medical Examination, as per
sec – 54(2) the report of such examination shall be furnished by registered by the medical
practitioner either to arrested person or to the person nominated by that arrested person.
5. Information about Right to Bail – A police officer arresting a person other than in non-
bailable offence is required to inform to person arrested about his right to bail, that the
person arrested is entitled to bail and may arrange for sureties on his behalf.
6. No detention beyond 24 hours – It is provided in Sec – 56 that person arrested should
be presented before a magistrate without any delay in sec – 57 of Code of Criminal
procedure the person arrested should be presented before the 
7. Consultation with Legal Practitioner – The constitution of India as well as the Code of
criminal procedure, both recognize the right of consultation with a legal practitioner of
his own choice and this right is available from the moment of arrest.
D.K. Basu's Case and Rights of Arrested Person
In 1996, a landmark judgment was passed in the D.K. Basu v. State of West Bengal case,
provided for certain guidelines which were to be necessarily followed in all cases of arrest and
detention. This case additionally discussed certain rights which have been provided to the
arrested or detained person. This was done so as to eliminate the incidences of police
aristocracies and cases of custodial deaths. Some of the important points which were held by the
court while deciding upon this case have been listed below:

Right to be informed:
As Per Section 50 of the Criminal Procedure Code and Article 22 of the Indian Constitution
which provides certain rights to detained persons, the right to be informed about the grounds for
arrest is a basic right. It is the police officer's responsibility to notify and tell the arrested person
whether the offense is bailable or not.

Essentials of a warrant:
In non-cognizable offenses, an arrest is made with a warrant, and the arrested person has the
right to read the warrant under Section 75 of the CrPC. A warrant of arrest must satisfy specific
conditions, including being in writing, signed by the presiding officer, and bearing the seal of the
court, as well as the accused's name and address and the offense for which the arrest is made. If
any of these are absent, the warrant is invalid and illegal.

Memo of Arrest:
The police officer must wear a distinct and legible identification allowing for simple recognition.
At the moment of arrest, a memo of arrest must be written, which must be certified by at least
one witness, who might be a family member or a member of the local area where the arrest is
made and countersigned by the detained individual.

Right to choose an advocate:


Under section 41D and section 303 CrPC, the arrested person has been given a right to meet an
advocate of his choice during the course of interrogation.

Right to Inform Relative:


Under section 50 of CrPC, an arrested person has a right to inform a family member, relative, or
friend about his/her arrest.

Right to be not Detained more than 24 Hours:


To avoid illegal arrests, arrested persons have the right not to be kept for more than 24 hours
without being produced before a magistrate. It is a basic right conferred by Article 22 of the
Indian Constitution and backed by Sections 57 and 76 of the CrPC.

Right to be Medically Examined:


Under Section 55A and 54 of CrPC, an Arrested person has been given the right to be medically
examined by a medical officer when he is produced before a magistrate or at any time while in
custody, with a view to establishing that the offense with which he is charged was not committed
by him or that he was subjected to physical torture.

Right to Remain Silent:


Under Section 20(3) of the Indian Constitution, an arrested individual has the right to remain
silent, so that the arresting authority cannot elicit self-incriminating statements from him against
his will or without his agreement.

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