Law

Criminal Justice Administration

Functionaries of Criminal Justice Administration
including Hierarchy of Courts

1
 Role Name Affiliation
Principal Investigator Prof. (Dr.) Ranbir Singh Vice Chancellor, National Law
University, Delhi
Co-Principal Investigator Prof. (Dr.) G.S. Bajpai Registrar, National Law
University Delhi
Paper Coordinator Mr. Neeraj Tiwari Assistant Professor, National
Law University Delhi
Content Writer/Author Dr. Balakrishnan K. Associate Professor, National
University of Advanced Legal
Studies, Kochi
Content Reviewer Prof. B.B. Pande Chair Professor, Criminal Law,
National Law University Delhi

DESCRIPTION OF MODULE

Items Description of Module

Subject Name Law
Paper Name Criminal Justice Administration
Module Name/Title Functionaries of Criminal Justice Administration
including hierarchy of courts
Module Id LAW/CJA/III
Objectives Learning Outcome:

 To acquaint the reader about the organisational

and procedural aspects of criminal justice
administration
 To create awareness about the diverse
functionaries
 To appreciate the functions assigned to diverse
functionaries
 To understand what may constitute abuse of
process at the time of actual work by the
functionaries

Prerequisites General understanding of the provisions of Constitution

of India, Code of Criminal Procedure, Probation of
Offenders Act, Juvenile Justice (Care and Protection of
Children) Act, Police Act
Key words Functionaries of criminal justice administration,
hierarchy of criminal courts, crime investigation, public
prosecutor, correctional justice, juvenile justice, legal
aid

2
1. Introduction:
The identification of functionaries of criminal justice administration requires us first
to flag the activities that form part of the larger canvas of such an administration.
Criminalisation of conduct involves the coming into play the functions performed by
diverse functionaries that define, investigate and prosecute crime; conduct trial and
sentence convicted person; and administer post conviction imprisonment. The
multiple functionaries come to play their assigned roles in various stages including
investigation, prosecution, trial and post conviction. The Code of Criminal Procedure
1973 in Chapter II gives a detailed elaboration and rules relating to formal
functionaries in the pre-trial and trial process.

2. Concept of crime:
Every social order is confronted by the task of designating certain forms of harmful
behaviour as crimes. There are two theories explaining the concept of crimes. The
first, described as the consensus theory, treats that ‘crime is a harmful human conduct
that sovereign desires to prevent by punishment inflicted after following criminal
procedure.’ The assumption of consensus theory is that the society, by and large,
agrees with the sovereign’s conceptualization of crimes. The second, described as
conflict theory, treats crime as an instrument in the hands of the dominant sections.
Therefore, crime relates to behaviour that the dominant sections decide to prohibit in
their own interest. While consensus theory may explain traditional forms of crime
appropriately, conflict theory explains crimes committed by the marginalised section
in a better way. Whether under consensus or conflict theory, the State in modern
societies assumes a pivotal role in conceptualisation of crime. In the nineteenth
century the dominant rationalization was morality that preferred to distinguish
between mala in se (malicious from inception) and mala prohibitum (malicious
because of prohibition) crimes. Mala in se crimes were those that involved an
inherently wrongful or malicious act such as kidnapping a girl from the custody of
parents. However, in complex and modern societies, Russell’s definition, propounded
in his treatise Russell On Crime, appears to reflect a more balanced view of crime,
described thus: ‘Criminal offences are basically the creation of the criminal policy,
adopted from time to time by those sections of the community who are powerful or

3
astute enough to safeguard their own society and comfort by causing the sovereign
power in the state to repress conduct which they feel may endanger their position.’1 In
India, the Indian Penal Code, the basic criminal code, along with many other modern
statutory measures, constitute the total framework for criminalisation of diverse kinds
of behaviours. The fact that the State, with all its might, takes over the prosecution
requires that the standards to be achieved are different for criminal trials, proving the
case beyond all reasonable doubts.2

3. Competence of Diverse Criminal Justice Functionaries:

The Code of Criminal Procedure 1973 assigns different functions to diverse
functionaries including Police, Prosecutor, Magistrates, Courts, Defence Counsels and
refers to Witnesses, Correctional administrators and Prison administration.

Professor Herbert L. Packer has made the following four approximations about the
definitional function relating to crime:(a) No one may be subject to criminal
punishment except for conduct; (b) conduct may not be treated as criminal unless it
has been so defined by appropriate law makers before it has taken place; (c) this

1
Pande, Prof. B. B., Is Criminal Justice System a Worthwhile Cause? 11 Journal of the National
Human Rights Commission 11 (2012); See Turner, J.C. Cecil (Ed.), Russel on Crime, 12th Edn.
Stevens & Sons, London; Nigam, R.C, Law of Crimes in India 25-37 (1965);
2
Babu Singh v. State of Punjab [1964] 1 Cri L J 566; Kali Ram v. State of HP (1973) 2 SCC 808;
Shivaji Sahabrao Bobade v. State of Maharashtra (1973) 2 SCC 793

4
definitional role is assigned primarily and broadly to the legislature, secondarily and
interstitially to the courts, and to no one else;(d) in order to make these prescription
material and not merely formal, the definitions of criminal conduct must be precisely
enough stated to leave comparatively little room for arbitrary application.3

Packer insists that each of

the functionaries is
expected to perform this
function as per allocated
competence, neither more
nor less. Therefore the
functions of defining crime,
defining conditions of
exemptions and awarding
sentence after conviction is
primarily to be performed by the legislature and secondarily by the courts, but in no
case the Police or Prosecutors can play this definitional role. The Code of Criminal
Procedure provides elaborate rules for the allocation of different functions for fair and
just criminal justice administration. William J Stuntz describes criminal procedure as
a regulatory system, which unlike the non-constitutional law of civil procedure does
the following prominent things:

(a) it skews every errors in defendants favour, as by requiring proof of guilt

beyond a reasonable doubt;
(b) constitutional criminal procedure limits the judges flexibility;
(c) the law extensively regulates the conduct of various actors ranging from
Police and Prosecutors to Defence Attorneys and court personnel.4

4. Police as a specialized Crime Investigating Agency:

Every conventional criminal incident has to pass through the investigation stage,
which generally gets initiated the moment information about crime is reported to the

3
The Limits of the Criminal Sanctions, Stanford University Press, 1973, p. 73
4
“The Uneasy Relationship Between Criminal Procedure and Criminal Justice”, 107 Yale LJ 1, p.12
(1997-98)

5
Police(FIR in case of cognizable offences).Police can undertake investigation on
receiving information about crime from the victim or public or can act suomotu on the
basis of information received through its own resources.5The Code deals in detail with
the investigative powers of the police. The police can initiate an investigation on its
own only if the allegation appears to be that of a cognizable offence.6 Their powers
under the Code extend to proceeding to the scene of crime, gathering information
from the witnesses, effecting arrest,7 conducting search, collecting evidence, seizing
incriminating material, recording of statements, getting confession or statement
recorded by Magistrate, file police report/charge sheet and other powers incidental to
conducting a proper investigation as prescribed in the Code.8

The role of the police does not necessarily end with the filing of the final report as
they continue to play a crucial role in trial leading to the judgment. Since
investigation of crime is exclusively an executive function, to be performed by
appropriate Police officer, even the judiciary is not supposed to direct the Police about

5
Ramesh Kumari v. NCT of Delhi (2006) 2 SCC 677; Rajendra Singh v. State of UP AIR 2007 SC
2786; Lalita Kumari v. Government of UP AIR 2014 SC 187
6
S. 156, CrPC
7
See Joginder Kumar v. State of UP AIR 1994 SC 1349; DK Basu v. State of WB AIR 1997 SC 610;
Bhavesh Jayanti Lakhani v. State of Maharashtra (2009) 9 SCC 551
8
Chs V, XII, CrPC

6
the ways of conducting investigation or a particular outcome of investigation.9While
the police investigate into an alleged crime, a Magistrate is always kept in the picture
but he is not authorised to interfere with actual investigation or to direct the police as
to how an investigation is to be conducted.10

Police have primarily two roles – maintenance of law and order and investigating
alleged crimes. Under the constitutional scheme, the police come under the State
subject as a part of maintenance of law and order.11 The law also envisages the
constitution of special police force whose jurisdiction may go beyond a State.12 They
are a force under the control of the executive wing of the government, the District
Magistrate, usually the Collector of a district. Under the Code of Criminal Procedure
very wide powers are given to the officer in charge of a police station (station house
officer) and imposes onerous duties on him like detection, investigation and
prevention of offences. A police officer, whatever be his rank, exercises the powers
of the station house officer under the Code of Criminal Procedure.13

The Police functionaries that play a key role in the investigation of crime are known
to the general public in the form of local State Police(deriving legal authority from the
Indian Police Act,1861 and several State Police Acts), the Central Bureau of
Investigation (deriving legal authority from the Delhi Special Police Establishment
Act,1946), the National Investigation Agency (deriving legal authority from the
National Investigation Agency Act,2008) and the Special Armed Forces (based on
respective Armed Forces legislations).In addition to the Police Acts and other special
legislation, the source of Police investigatory power lies in sections 154 to173 of the
CrPC.Chapter XII gives an elaborate scheme of how the investigatory powers of the
police are to be exercised with respect to collecting evidence, effecting arrest, when to
arrest,examining witnesses, filing of ‘closure’ report or chargesheet etc. However, of
late, the functioning of Police has increasingly come under media and public

9
MC Abraham v. State of Maharashtra (2003) 2 SCC 649; Divine Retreat Centre v. State of Kerala
(2008) 3 SCC 542; Kedar Narayan Parida v. State of Orissa (2009) 9 SCC 538
10
Law Commission of India, 41st Report, 1969, Vol. 1, p.167
11
Item 2, List II; Criminal law and procedure are Items 1 and 2 in List III, VII Schedule to the
Constitution
12
The Police Act 1888
13
S. 36, CrPC

7
criticism, a reason for considerable pressure seeking Police reforms. A line of
thinking has found the recognition of the Supreme Court in the Prakash Singh v.
Union of India which lays down that Police investigatory function ought to be
performed by a distinct set of people, who need not be given law and order and
security duties.14

5. Prosecutorial Functions and District Prosecution System:

Logically the prosecution stage begins only after investigation is over. But due to
considerable overlap between the two stages and close linkage between Police and
Prosecutors the prosecution stage has remained by and large, less clearly demarcated.
Public prosecutors at the lower court level are supposed to play the dual function of
helping the Police to collect the best evidence and organising best proof, and also help
in performing the public justice function to ensure fair, impartial and quality justice.
In this way prosecutor performs a quasi judicial/judicial function too.

The Criminal Procedure Code 1973 for the first time provided statutory measures for
constituting separate and distinct prosecution cadre by enacting section 24 and 25 that
envisages detailed rules for appointment and qualification of Public Prosecutors and
Assistant Public Prosecutors. The provisions try to ensure that prosecutors ought to be
appointed out of a pool of qualified Advocates of seven years and ten years standing,
a regular cadre of prosecutors is to be developed and that as far as possible no Police
officer shall be eligible to be appointed as an assistant public prosecutor. The
separate and distinct prosecution policy has received additional boost because of
addition of Section 25A that empowers the State Government to set up a Directorate
of Prosecution consisting of a Director of Prosecution and Deputy Directors of
Prosecution.15 To be eligible to be a Director the person should have more than ten
years practice as an Advocate and shall be appointed with the concurrence of the
Chief Justice of the High Court. But the Director of Prosecution shall function under
the administrative control of the Head of the Home Department of the State. Further
Section 25A envisages that Director of Prosecution, Deputy Directors of Prosecution,

14
(2006) 8 SCC 1
15
The Code of Criminal Procedure (Amendment) Act 2005

8
Public Prosecutors and Assistant Public Prosecutors would constitute a hierarchy for
the purposes of functional command.

Though the law envisages a fair degree of independence and autonomy for Public
Prosecutors, in actual practice prosecutors play a very marginal role in the
administration of criminal justice. The Police file its report under section 173(2)
directly to the Magistrate and, on the basis of the charge-sheeted facts and materials,
the court goes ahead to frame charges, if satisfied. Prosecutor is neither officially kept
in the loop by the Police, nor mandatorily consulted by the Court. But the normative
scheme envisages that the Police ought to know on what documents should be
adduced or which witnesses would be examined by the prosecution.16Similarly,
section 226 envisages that the Prosecutor ought to be appraised of the charges against
the accused and the evidence on the basis of which the guilt is sought to be proved.
Section 321 gives exclusive powers to the prosecutor to move for withdrawal from
prosecution. All these provisions clearly indicate that under our criminal procedure
the legislative intent is to assign positive role to the prosecution, which rarely gets
reflected in practice. Thus, to transform the reality there is a need to amend the law by
obligating the Police to file a Police report through the prosecution or at least give a
copy of police report to prosecution. The prosecution should be empowered to direct
the Police to collect evidence or witnesses. Much more than the law the attitudes and
pro-executive fixation of the prosecutors must also undergo a change.17

The Code envisages the appointment of Public Prosecutors, Additional Public

Prosecutors, Assistant Public Prosecutors and Special Public Prosecutors.18 They are
the counsels for the State representing the society in a criminal trial. They are not to
appear on behalf of the accused.19 The duty of the Prosecutor in a criminal trial is not
merely to secure conviction at all costs but to place before the court whatever
evidence is possessed by the prosecutor, whether it be in favour of or against the
accused, and leave it to the court to decide the question whether the offence is proved

16
S.173 (5) (a) & (b) CrPC
17
R Sarala v. T Velu AIR 2000 SC 1731
18
Ss. 24 and 25, CrPC
19
Sunil Kumar Pal v. Phota Sheikh AIR 1984 SC1591

9
as charged.20 This is so, as the object of criminal trial is find out the truth and to
determine the guilt or innocence of the accused. He may advice the State on the
matter of prosecution of a person or appeal where his opinion is sought. Public
Prosecutors generally appear in cases instituted on police reports. In cases initiated
on private complaints, the party himself or his counsel may conduct the prosecution.
Even in such cases, if any public interest is involved, the State may appoint a
Prosecutor.21 The Central as well as State governments may appoint Public
Prosecutors, depending upon the offences that are to be prosecuted. They may be
appointed to a court, for a case or for class of cases.22 Generally, the prosecution
work in the Magistrate’s Court is under the directions of the police department and
the prosecution of trial in the Sessions Court is under the general control of the
District Magistrate. Recent amendments to the Code envisage the setting up of
Directorate of Prosecution consisting of Directors and Deputy Directors of
Prosecution functioning under the Home Department. All prosecutorial work is to be
done under the Directorate. This is to encourage active coordination between the
police and the prosecution.

If a party appoints a pleader to conduct prosecution, he can act only under the
directions of the Public Prosecutor and may be permitted by the court to submit
written arguments at the closure of evidence.23 Persons other than prosecutors are
prohibited from conducting prosecution. However, a Magistrate may allow any
person to conduct prosecution, except police officers below the rank of Inspector or
those who have participated in the investigation.24

The Public Prosecutor, as mentioned earlier, can withdraw a prosecution with

the permission of the court. Though the Code does not impose any grounds, it has
been held that the Public Prosecutor, as the court’s Minister of Justice, has a duty to
protect the administration of criminal justice against possible misuse or abuse by the
executive. It is stated that not even the government can compel the Public Prosecutor

20
Ghirrao v. Emperor (1933) 34 CriLJ 1009
21
Mukul Dalal v. UoI (1988) 3 SCC 144
22
S. 24(8) , CrPC
23
S. 301(2), CrPC
24
S. 302 (1) , CrPC

10
to withdraw from prosecution.25 Though it is an executive function, it has also been
described that the functions of the Public Prosecutor are to be categorized as part of
the judicative process and not as an extension of the executive.26

6. Crime Adjudication Function and Courts as Criminal Justice

Functionaries:
6.1. Constitutional scheme of criminal courts and their jurisdiction

6.1.1. Supreme Court:

The Supreme Court has been created under Article 124 of the Constitution.

The right to move the Supreme Court by appropriate proceedings for the enforcement
of the Fundamental Rights conferred by Part III is guaranteed by Article 32, itself
under Part III. The Supreme Court has power to issue directions or orders or writs,
including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto
and certiorari, whichever may be appropriate, for the enforcement of any of the rights
conferred by this Part. The right guaranteed by the Article is not be suspended except
as otherwise provided for by the Constitution.

Article 129 provides that the Supreme Court shall be a court of record and shall have
all the powers of such a court including the power to punish for contempt of itself.
An appeal shall lie to the Supreme Court from any judgment, decree or final order of
a High Court if the High Court certifies under Article 134A that the case involves a
substantial question of law as to the interpretation of the Constitution.27 An appeal
would lie to the Supreme Court from any judgment, final order or sentence in a
criminal proceeding of a High Court if the High Court has on appeal reversed an order
of acquittal of an accused person and sentenced him to death; or has withdrawn for
trial before itself any case from any court subordinate to its authority and has in such
trial convicted the accused person and sentenced him to death; or certifies under
Article 134A that the case is a fit one for appeal to the Supreme Court.28 Parliament
may by law confer on the Supreme Court any further powers to entertain and hear
25
Rajender Kumar Jain v. State (1980) 3 SCC 435
26
Subhash Chander v. State (Chandigarh Admn.) (1980) 2 SCC 155
27
Art 132 (1)
28
Art 134 (1)

11
appeals from any judgment, final order or sentence in a criminal proceeding of a High
Court subject to such conditions and limitations as may be specified in such law.29

Article 134A states that every High Court, passing or making a judgment, decree,
final order, or sentence, referred to in clause (1) of article 132 or clause (1) of article
133, or clause (1) of article 134, (a) may, if it deems fit so to do, on its own motion;
and (b) shall, if an oral application is made, by or on behalf of the party aggrieved,
immediately after the passing or making of such judgment, decree, final order or
sentence, determine, as soon as may be, the question whether a certificate of the
nature referred to may be given in respect of that case.

Article 136, which starts with a non-obstante clause, confers a discretion on the
Supreme Court to grant special leave to appeal from any judgment, decree,
determination, sentence or order in any cause or matter passed or made by any court
or tribunal in the territory of India (except made by any court or tribunal constituted
by or under any law relating to the Armed Forces). It can review its own
judgment.30Where cases involving the same or substantially the same questions of law
are pending before the Supreme Court and one or more High Courts or before two or
more High Courts and the Supreme Court is satisfied that such questions are
substantial questions of general importance, the Supreme Court may withdraw the
case or cases pending before the High Court or the High Courts and dispose of all the
cases itself.31 It may, after determining the said questions of law, return any case so
withdrawn together with a copy of its judgment on such questions to the High Court
from which the case has been withdrawn, and the High Court shall on receipt thereof,
proceed to dispose of the case in conformity with such judgment. The Supreme Court
may, for the ends of justice, transfer any case, appeal or other proceedings pending
before any High Court to any other High Court.

Article 141 prescribes that the law declared by the Supreme Court shall be binding on
all courts within the territory of India, the law of

29
Art 134 (2)
30
Art 137
31
Art 139 A

12
the land. Article 142 enables the Supreme Court to pass any such order as is
necessary for doing complete justice in any cause or matter pending before it, and
order so made shall be enforceable throughout the territory of India in such manner as
may be prescribed by or under any law made by Parliament and, until provision in
that behalf is so made, in such manner as the President may by order prescribe.
Advisory jurisdiction of the Supreme Court is provided for in Article 143 so that,
where it appears to the President that a question of law or fact has arisen, or is likely
to arise, which is of such a nature and of such public importance that it is expedient to
obtain the opinion of the Supreme Court upon it, he may refer the question to the
Supreme Court for consideration and the Court may, after such hearing as it thinks fit,
report to the President its opinion thereon.

6.1.2. High Courts:

Article 214 envisages that there shall be a High Court for each State, which shall be a
court of record and shall have all the powers of such a court including the power to
punish for contempt of itself.32 Under Article, 226 every High Court has the power,
throughout the territories in relation to which it exercises jurisdiction, to issue to any
person or authority, including in appropriate cases, any Government, within those
territories directions, orders or writs, including writs in the nature of habeas corpus,
mandamus, prohibition, quo warranto and certiorari, or any of them, for the
enforcement of any of the rights conferred by Part III and for any other purpose. This
power conferred on a High Court is not in derogation of the power conferred on the
Supreme Court by clause (2) of Article 32. The scope of Article 226 is repeatedly
reiterated to be wider than the jurisdiction envisaged under Article 32 for the Supreme
Court.

By virtue of Article 227, High Courts have superintendence over all courts and
tribunals throughout the territories in relation to which it exercises jurisdiction. It
may call for returns from such courts; make and issue general rules and prescribe
forms for regulating the practice and proceedings of such courts; and prescribe forms
in which books, entries and accounts shall be kept by the officers of any such courts.

32
Article 215, Constitution of India.

13
If the High Court is satisfied that a case pending in a court subordinate to it involves a
substantial question of law as to the interpretation of the Constitution the
determination of which is necessary for the disposal of the case, it shall withdraw the
case and may either dispose of the case itself, or determine the said question of law
and return the case to the court from which the case has been so withdrawn together
with a copy of its judgment on such question, and the said court shall on receipt
thereof proceed to dispose of the case in conformity with such judgment.33

6.1.3. Subordinate courts:

Article 233 requires that appointments of persons to be District Judges in any State
shall be made by the Governor of the State in consultation with the High Court
exercising jurisdiction in relation to such State. Appointments of persons other than
District Judges to the judicial service of a State shall be made by the Governor of the
State in accordance with rules made by him in that behalf after consultation with the
State Public Service Commission and with the High Court exercising jurisdiction in
relation to such State.34 The control over district courts and courts subordinate thereto
are vested in the High Court.35

6.2. Courts as dealt with by the Code of Criminal Procedure:

Among the functionaries in criminal justice administration, the role of Magistrates
and the trial courts are the most important. For the purpose of the Code, the basic
territorial divisions within a State are the Districts and the Sessions Division, and
Metropolitan area in big cities declared to be so.

In a purely adversarial system the prosecutor representing the State and the accused
are contestants and the truth is expected to emerge from the controverted facts
through effective constant challenges. In this situation, the judge is to work as an
umpire between the contestants.36 An adversarial system ensures a proper
reconciliation between the public and private interests. However, in the peculiar

33
Article 228, Constitution of India.
34
Article 234, Constitution of India.
35
Article 235, Constitution of India.
36
Government of India, Ministry of Law, Justice and Company Affairs, Processual Justice to the
People: Report of the Expert Committee on Legal Aid (1974), p.70

14
Indian context, the judge is not to remain passive as an umpire, but play a more
positive and active role for protecting the public as well as individual interests of the
accused persons.37 The active role of the judge is reflected in the fact that, under the
Code, the charge against the accused is to be framed not by the prosecution but by the
court after considering the circumstances of the case,38 the prosecutor cannot
withdraw the case without the consent of the court,39 certain offences cannot be
compounded without the permission of the court,40 the court has been empowered to
examine any person as a witness though such person has not been called by any party
as a witness,41 the court can examine the accused at any time to get an explanation
from him42 and the court has the discretion to accept the plea of guilty,43 among other
powers. After the government makes the first appointment of a judge or Magistrate,
they thereafter work under the control and supervision of the High Court. The courts
are to be independent and impartial for a fair administration of criminal justice.
Separation of judiciary from the executive,44 the requirement of open courts,45 the
requirement that the judge or magistrate should not be personally interested in the
case46 and the provisions for transfer of cases,47 secure independence and impartiality.
For the effective functioning of the criminal courts, it is important that the judges and
Magistrates should be persons with ability and wisdom, duly qualified as to have
good knowledge of law and must be persons of character, integrity and honesty.

The most important component of criminal justice administration relating to a crime

is trial. The Code prescribes four types of trials. They are – trial before a Court of
Sessions, trial of warrant cases, trial of summons cases and summary trials. The first
two modes are prescribed for the warrant cases and the last two for the summons
cases. The reasoning is that for serious offences trial must be elaborate ensuring a
higher degree of justice and fairness. A Court of Sessions cannot directly take

37
Ram Chander v. State of Haryana (1981) 3 SCC 191
38
Ss. 228 and 240, CrPC
39
S. 321, CrPC
40
S. 320, CrPC
41
S. 311, CrPC
42
S. 313, CrPC
43
Ss. 229, 241, 252 etc., CrPC
44
Article 50, Constitution of India; 14th and 37th Reports of the Law Commission of India.
45
S. 327, CrPC
46
S. 479, CrPC
47
S. 407, CrPC

15
cognizance of any offence, unless specifically permitted to do so under certain
circumstances.48 A competent Magistrate may take cognizance of such an offence
and commit the case to the Court of Sessions for trial, if necessary.49 Any party to the
criminal proceedings can take a plea that a court has no jurisdiction to try the case.
The power to take cognizance of an offence may not be confused with the power to
inquire into or try a case. A Court may have power to try a case but not to take
cognizance of the offence; whereas the Magistrate may have power to take
cognizance of an offence but not to inquire into or try the case.50

The territorial demarcation referred to above specifies one category of jurisdiction,

also called local jurisdiction. The other has reference to the competence of the court
to try particular kinds of offences. Provisions of the Code and the Schedule thereto
determine the powers of a court to try specific offences either under the Penal Code or
under any other law (Refer Table). No Executive Magistrate has any power to try an
accused person on the charge of any offence.

Even though the High Court has, under

the Code, power to try any offence, in
practice, the High Court does not conduct
any trial.51 A High Court may, after
considering the importance and
widespread ramification of a case, decide
to try the case itself at the instance of the
government or on its own initiative, in
which case, it follows the procedure
prescribed for Sessions trial.52

Among the superior criminal courts, the

Supreme Court and the High Courts are created by the Constitution. Their
jurisdiction and powers on criminal matters are also laid down in the Constitution.

48
S. 193, CrPC
49
S. 209, CrPC
50
S. 190, CrPC; Chauthmal v. State of Rajasthan 1982 CriLJ 1403
51
S. 26, CrPC
52
S. 474, CrPC

16
The Code of Criminal Procedure makes provision of appeal to the Supreme Court
under certain circumstances.53 It also empowers the Supreme Court to transfer cases
and appeals from one court to another.54 The High Courts have been given
superintendence over the courts of Judicial Magistrates subordinate to it to ensure an
expeditious and proper disposal of cases.55 The High Courts also exercises appellate
and revisional powers.56 The Code invests the High Court with inherent powers to
make such orders as is necessary to give effect to any order, or to prevent the abuse of
the process of any court or otherwise to secure the ends of justice.57

Apart from the High Court, each State has courts including Courts of Session, Judicial
Magistrates of the First Class, Metropolitan Magistrates in a Metropolitan area,
Judicial Magistrates of the Second Class and Executive Magistrates.58 There can also
be Courts constituted under any law other than the Code like under the Juvenile
Justice Act, Panchayati Raj Act or special courts. The Executive Magistrates are
under the control of the government.

6.2.1. Court of Session:

The State Government establishes a Court of Session for every sessions division to be
presided over by a Judge, to be appointed by the High Court.59 The High Court may
also appoint Additional Sessions Judges and Assistant Sessions Judges to exercise
jurisdiction in a Court of Session.60 All their orders and judgments are that of the
Court of Sessions.61 The Court of Sessions shall ordinarily hold its sitting at such
place or places an the High Court may, by notification, specify.62 All Assistant
Sessions Judges shall be subordinate to the Sessions Judge in whose Court they
exercise jurisdiction.63 The Sessions Judges distributes the business among such

53
Ss. 374 and 379, CrPC
54
S. 406, CrPC
55
Article 227, Constitution of India and S.483, CrPC
56
Chs XXIX and XXX, CrPC
57
S. 482, CrPC
58
S. 6, CrPC
59
S. 9(1) and (2), CrPC
60
S. 9(3), CrPC
61
Gokaraju Rangaraju v. State of AP (1981) 3 SCC 132
62
S. 9(6); Kehar Singh v. State (Delhi Admn.) (1988) 3 SCC 609
63
S. 10(1), CrPC

17
Assistant Sessions Judges.64

6.2.2. Courts of Judicial Magistrates:

In every district, the State Government may, after consultation with the High Court,
establish as many Courts of Judicial Magistrates of the First Class and of the Second
Class at such places, as, by notification, specify.65 One or more Special Courts of
Judicial Magistrate of the First Class or of the Second Class may also be established
to try any particular case or particular class of cases for any local area.66 The
presiding officers of such Courts are appointed by the High Courts.67 The High Court
may, whenever it appears to it to be expedient or necessary, confer the powers of a
Judicial Magistrate of the First Class or of the Second Class on any member of the
Judicial Service of the State, functioning as a Judge in a Civil Court.68

64
S. 10(2), CrPC
65
S. 11(1), CrPC
66
Proviso to S. 11(1), CrPC
67
S. 11(2), CrPC
68
S. 11(3), CrPC

18
6.2.3. Chief Judicial Magistrate and Additional Chief Judicial Magistrate:

In every district, the High Court appoints a Judicial Magistrate of the First Class to be
the Chief Judicial Magistrate.69 The High Court may also appoint any Judicial
Magistrate of the First Class to be an Additional Chief Judicial Magistrate.70 The
High Court may designate any Judicial Magistrate of the First Class in any Sub-
Division as the Sub-divisional Judicial Magistrate. Subject to the general control of
the Chief Judicial Magistrate, every Sub-divisional Judicial Magistrate shall also have
and exercise, such powers of supervision and control over the work of the Judicial
Magistrates (other than Additional Chief Judicial Magistrates) in the Sub-Division as
the High Court may specify in this behalf.71 On the request of the Central or State
Government, the High Court may 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, in
respect to particular cases or to particular classes of cases, in any local area.72 Such
Magistrates are called as Special Judicial Magistrates. They are appointed for terms
specified by the High Court, not exceeding one year at a time.

Subject to the control of the High Court, the Chief Judicial Magistrate may define the
local limits of the areas within which the Magistrates may exercise all or any of the
powers with which they may be invested under this Code.73 The Court of a Special
Judicial Magistrate may hold its sitting at any place within the local area for which it
is established. The jurisdiction and powers of every such Magistrate extends
throughout the district. Every Chief Judicial Magistrate is subordinate to the Sessions
Judge, and every other Judicial Magistrate is, subject to the general control of the
Sessions Judge, subordinate to the Chief Judicial Magistrate.74 The Chief Judicial
Magistrate may distribute business among the Judicial Magistrates subordinate to
him.75

69
S. 12(1), CrPC
70
S. 12(2), CrPC
71
S. 12(3), CrPC
72
Ss. 13 and 18, CrPC
73
S. 14, CrPC
74
S. 15(1), CrPC
75
S. 15(2), CrPC

19
6.2.4. Metropolitan areas:
The State Government may, by notification, declare any area in the State comprising a
city or town whose population exceeds one million as a metropolitan area for the
purposes of the Code.76 In every metropolitan area, there shall be established as many
Courts of Metropolitan Magistrates, and at such places, as the State Government may,
after consultation with the High Court, by notification, specify.77 The presiding
officers of such Courts are appointed by the High Court.78 The jurisdiction and
powers of every Metropolitan Magistrate extends throughout the metropolitan area.

6.2.5. Chief Metropolitan Magistrate and Additional Chief Metropolitan

Magistrate:
The High Court, in relation to every metropolitan area within its local jurisdiction,
appoints a Metropolitan Magistrate to be the Chief Metropolitan Magistrate for such
metropolitan area. The High Court may also appoint any Metropolitan Magistrate to
be an Additional Chief Metropolitan Magistrate.79 On request of the Central or State
Government, the High Court may appoint Special Metropolitan Magistrates.80 They
have the powers of a Judicial Magistrate of the First Class. The Chief Metropolitan
Magistrate and every Additional Chief Metropolitan Magistrate are subordinate to the
Sessions Judge, and every other Metropolitan Magistrate shall, subject to the general
control of the Sessions Judge, be subordinate to the Chief Metropolitan Magistrate.81
The Chief Metropolitan Magistrate distributes business among the Metropolitan
Magistrates and Additional Chief Metropolitan Magistrate.82

Under the Indian criminal justice administration courts play a pivotal role. Though
they are not supposed to interfere with the executive in the exercise of investigatory
power, they do enjoy power to order investigation in a non-cognizable case,83 order

76
S. 8, CrPC
77
S. 16(1), CrPC
78
S. 16(2) and (3), CrPC
79
S. 17, CrPC
80
Ss. 13 and 18, CrPC
81
S. 19(1), CrPC
82
S. 19(3), CrPC
83
S. 155 (b), CrPC

20
investigation of cognizable offence case, record confession or statement84 and order
further investigation after the final report is furnished.85 In addition to the above,
Magistrate grants permission to the Police to conduct Test Identification Parade, for
Narco analysis and DNA Tests, receive complaints and take cognizance of the case,
conduct committal, remand andbail proceedings, frame charges, discharge the
accused if evidence is insufficient and finally conduct trial of the accused by hearing
witnesses from the both sides.

6.3 Sentences that Court may pass:

A High Court may pass any sentence authorised by law.86 A Sessions Judge or
Additional Sessions Judge may pass any sentence authorised by law, but any sentence
of death passed by any such Judge shall be subject to confirmation by the High
Court.87 An Assistant Sessions Judge may pass any sentence authorised by law except
a sentence of death or of imprisonment for life or of imprisonment for a term
exceeding ten years.88 The Court of a Chief Judicial Magistrate and a Chief
Metropolitan Magistrate may pass any sentence authorised by law except a sentence
of death or of imprisonment for life or of imprisonment for a term exceeding seven
years.89 The Court of a Magistrate of the first class and a Metropolitan Magistrate
may pass a sentence of imprisonment for a term not exceeding three years, or of fine
not exceeding five thousand rupees, or both.90 The Court of a Magistrate of the
second class may pass a sentence of imprisonment for a term not exceeding one year,
or of fine not exceeding one thousand rupees, or of both.91

84
S. 164, CrPC
85
S. 173 (8), CrPC
86
S. 28(1), CrPC
87
S. 28(2), CrPC
88
S. 28(3), CrPC
89
S. 29(1) read with S. 29(4), CrPC
90
S. 29(2) read with S. 29(4), CrPC
91
S. 29(3) read with S. 29(4), CrPC

21
7. Functionaries relating to correctional justice:
The role of the judiciary ends with the finding of guilt or innocence of the person
charged at the end of trial. If the accused is found guilty, the judiciary shall award an
appropriate sentence and let the executive enforce the same. The prisons and matters
related to imprisonment are covered by separate legislation like the Central and State
Prisons Acts and the Prisoners Acts. In the case of correctional structure without
‘imprisonment’, they may be dealt with under the Probation of Offenders Act, 1958.92
The Probation of Offenders Act envisages the appointment of Probation Officers in an
area to supervise the persons placed under him instead of being sent to jail. The
Probation Officer’s report may also be sought for before a Magistrate or judge decides
the appropriate sentence for an offender after his conviction as a part of pre sentence
hearing.93They play an important role in juvenile justice administration. In some
States, the Probation Officers have also been notified as Protection Officers under the
Protection of Women from Domestic Violence Act 2005.

92
Probation provisions are also included in S. 360, CrPC.
93
S. 14, Probation of Offenders Act 1958

22
The Code invests powers with the executive wing of the State to execute, suspend,
remit or commute a sentence imposed by the Judicial Magistrate or the judge. The
execution of a sentence depends upon the type and nature of the sentence awarded.
The sentence awarded by court may become unjust for various reasons. It may seem,
in future, to be inappropriately harsh or less suitable to a convict who has an early
reformation. It is to cover such situations that the appropriate government has been
given the powers to suspend, remit or commute the sentences.94 It is not necessary
under the Code that the opinion of the sentencing judge be obtained before the
exercise of such powers by the government. It helps in correcting the errors in
judgment or sentencing, if any, and in accelerating and strengthening the
resocialisation process of the offender. But it must be realised that the orders of
suspension or remission does not interfere with the order of conviction passed by the
court but it only affects the execution of the sentence.95 The exercise of this power is
subject to judicial review.96

These powers should not be misunderstood with the prerogative powers conferred on
the President and the Governors by the Constitution to grant pardon, reprieves,
respites or remission of punishments.97 The exercise of these powers is not subject to
any conditions.98

8. Functionaries under the juvenile justice system:

The Juvenile Justice (Care and Protection of Children) Act of 2000 lays down the
scheme of juvenile justice. The presumption of innocence has a different connotation
when it relates to juveniles. The juveniles found to be in conflict with law are in need
of rehabilitation and restoration rather than retribution. The juvenile must not be
subjected to corporal punishment or confinement. The Supreme Court in Bachpan
BachaoAndolan v. Union of India has reiterated importance of measures to protect the

94
Ch XXXII E, CrPC
95
Sarat Chandra Rabha v. Khagendranath AIR 1961 SC 334
96
Laxman Naskar v. State of WB (2000) 7 SCC 626 laid down guidelines
97
Law Commission of India 41st Report; Maru Ram v. UoI (1981) 1 SCC 107; Narayan Dutt v. State
of Punjab (2011) 4 SCC 353
98
State of Haryana v. Balwan (1999) 7 SCC 555; Krishnan Nair v. State of Kerala 1984 CriLJ 87
(Ker)

23
interest of juveniles with relevant recommendations.99 Uses of words or language that
are accusatory are to be avoided.100 Disclosure of identity of a juvenile is a non-
cognizable offence with a fine of Rs. 25000.101Institutionalisation is to be the last
resort. Non-custodial measures are mentioned in the Act.102 Even for heinous crimes
detention prescribed cannot go beyond 3 years. Any disqualification or stigma
attached to conviction is struck down.103 Except for serious offences, the police must
not register an FIR, but must make a general diary entry leading to a Social
Investigation/Background Report by the Probation Officer to be placed before the
Juvenile Justice Board. Apprehension, if at all, should be in the interest of juvenile
for his/her protection. Bail is a right of a juvenile, which can be denied only in
exceptional circumstances provided under section 12. The Juvenile Justice Act
requires establishment of Observation Homes, Special Homes and Places of Safety
under the Women and Child Development Department of the State government.
Juvenile Justice Boards are to be constituted in every district.104 The members are to
be trained in child psychology and child welfare. Every police station must have a
Special Juvenile Police Unit. Child Welfare Officers are to be designated to all police
stations. The Supreme Court has had to step in repeatedly because of lapse in
implementation of Juvenile Justice Act.105 The Supreme Court, in Sampurna Behrua
v. Union of India has issued directions on the matter of juvenile justice
administration, a case still under its consideration for continued supervision.106

9. Private defence counsels and Legal Aid:

The Constitution as well as the Code envisages that a person accused of an offence
before a court or against whom proceedings are initiated under the Code has a right to
be defended by a pleader of his choice.107 This right also extends to getting a

99
(2011) 5 SCC 1
100
Rule 3, JJ Rules 2007
101
S. 27 of the JJ Act
102
S. 15 of the JJ Act
103
S. 19 of the JJ Act
104
S. 4 of the JJ Act
105
Childline India Foundation v. Allan John Water (2011) 6 SCC 261
106
(2011) 15 SCC 232; NALSA has accordingly issued Guidelines for Legal Services in Juvenile
Justice Institutions.
107
Article 22 (1), Constitution of India and Ss. 303 and 304, CrPC

24
reasonable opportunity, if in custody, to communicate with his legal adviser.108 This
right begins from the time of arrest.109 The communication between the accused and
his lawyer is privileged and confidential.110 Such defence counsels are also officers
of the court and are a must for a fair trial in an adversarial system.111 The indigent
accused stands at a risk of denial of fair trial when he does not have an equal access to
the legal services available to the prosecution. It is the constitutional duty of the State
to provide free legal aid in order to ensure that equal opportunities for securing justice
are not denied to anyone by reason of economic and other disabilities.112 Therefore,
for the indigent there are several schemes in place for seeking free legal aid.113Right
to legal aid is guaranteed under Articles 22(1) and 39A of the Constitution and
sections 303 and 304 of the Code of Criminal Procedure 1973. To implement such a
cherished right to equal access to justice legal aid functionaries may be drawn from
amongst the pool of advocates rendering private practice or Student Legal Aid Clinics
or the legal aid NGOs.

10. Miscellaneous:
10.1. Executive Magistrates
In every district and in every metropolitan area the State Government appoints as
many persons as it thinks fit to be Executive Magistrates and appoints one of them to
be the District Magistrate, usually the District Collector.114 Any Executive Magistrate
may be appointed to be an Additional District Magistrate, and such Magistrate shall
have such of the powers of a District Magistrate as directed by the State
Government.115 An Executive Magistrate may be placed in charge of a sub-division

108
Llewelyn Evans, re, (1926) 27 CriLJ 1169
109
Khatri (2) v. State of Bihar (1981) 1 SCC 627
110
S. 126 Evidence Act 1872
111
Government of India, Ministry of Law, Justice and Company Affairs, Processual Justice to the
People: Report of the Expert Committee on Legal Aid (1974), p.70; See also Government of India,
Ministry of Law, Justice and Company Affairs, Report on National Juridicare: Equal Justice - Social
Justice (1977).
112
Art 39A inserted by the Constitution (Amendment) Act 1976 and interpreted to be part of right to
life under Art 21 in Hussainara Khatoon (4) v. State of Bihar (1980) 1 SCC 98.
113
The Legal Services Authorities Act 1987, the legal aid schemes of the State governments, Bar
Associations, Legal Aid and Advice Board, Supreme Court Senior Advocates’ Free Legal Aid Society
and the like.
114
S. 20(1), CrPC
115
S. 20(2), CrPC

25
and he shall be called the Sub-divisional Magistrate.116 The State Government may
confer a Commissioner of Police with all or any of the powers of an Executive
Magistrate in relation to a metropolitan area.117 The State Government may also
appoint Executive Magistrates to be known as Special Executive Magistrates for
particular areas or for the performance of particular functions.118 The District
Magistrate defines the local limits of the areas within which the Executive
Magistrates may exercise all or any of the powers with which they may be invested
under the Code.119 All Executive Magistrates, other than the Additional District
Magistrate, are subordinate to the District Magistrate, and every Executive Magistrate
(other than the Sub-divisional Magistrate) exercising powers in a sub-division are
subordinate to the Sub-divisional Magistrate, subject, however, to the general control
of the District Magistrate. The District Magistrate distributes business among the
Executive Magistrates subordinate to him and to an Additional District Magistrate.120

10.2. Preventive powers:

The system is normally said to be set into motion when there is information on
commission of a crime. In general, anybody can set the criminal law in motion by
giving such information. There are, in certain circumstances, certain preconditions or
limitations for taking cognizance under the CrPC.121 The executive wing of the
government, who has their ears to the ground, are equipped to sense a potential law
and order problem in a given locality by identifiable persons and are required to use
the criminal procedure to prevent the commission of crimes. These are termed as
preventive powers under the Code and are conferred on the police and Executive
Magistrates.122 The police have the power to arrest a person to prevent the
commission of a cognizable offence.123 The Executive Magistrates have judicial
discretionary powers to initiate proceedings and take security from persons, who
cause a reasonable apprehension of conduct likely to lead to a breach of peace or

116
S. 20(4), CrPC
117
S. 20(5), CrPC
118
S. 21, CrPC
119
S. 22, CrPC
120
S. 23, CrPC
121
Ss. 195 to 199 CrPC
122
Chs XI and VIII, CrPC
123
S. 151, CrPC

26
disturbance of public tranquility. Security proceedings by Executive Magistrate
include security for keeping the peace and for good behaviour.124 The exercise of
these preventive powers imposing restriction on the liberty of a person should be
understood as ‘preventive’ and not ‘punitive’. The duration of such restrictions are
small and there are checks and balances in place to ensure its sparse use. It is
generally the revenue authorities that are conferred with these powers by the
government. The only preventive power exercisable by a Judicial Magistrate is while
convicting an offender of certain offences who can be asked to furnish security.125
Powers to order removal of public nuisances, where fraught with potential danger to
peace and tranquility, are conferred on the Magistrate.126 Quick action to deal with
urgent cases of nuisance or apprehended danger disturbing public tranquility is also
envisaged.127 The Executive Magistrate and police are empowered to order dispersal
of unlawful assemblies and such other assemblies that are likely to cause breach of
peace.128 They have also been empowered to use force for this purpose. Prevention
of injury to public property has also been included in the Code. Certain precautionary
steps are envisaged in respect of disputes as regards immovable property not
necessarily affecting the public at large.129

11. Summary:

Different functionaries of criminal justice administration play diverse roles assigned

to them. From the point of initiation of criminal proceedings to the post conviction
handling of convicts, the participants are required to perform their respective roles so
as to achieve the results in a fair and just criminal justice administration. The system
takes a separate note of juvenile offenders for special treatment. There are checks and
balances in place, which enables the functionaries in the hierarchy to ensure that the
violation of cherished rights are avoided and the objectives of justice are met. This is
a must for a democratic State with its roots entrenched in Rule of Law.

124
Ss. 107 - 110, CrPC
125
S. 106, CrPC
126
Ch XB, CrPC
127
Ch XC, CrPC
128
Ch XA, CrPC
129
Ch XD, CrPC

27
Did You Know?

1. A magistrate can ask any person to investigate into an offence as per the Code of criminal
procedure.

2. The court is not bound to accept the draft charges pointed out in the final report.

3. Investigation can be continued even after submission of the final report by the police.

4. Some trappings of inquisitorial system are sought to be introduced into our system, the
directorate of prosecution is an example of this.

5. Legal aid is the duty of the State.

Points to Ponder

1. Should the police be bifurcated to cater to investigatory and law and order functions?

2. Would it be advisable to introduce more features of an inquisitorial system to render

criminal justice?

3. Is the legal aid effective in India?

28
 Supreme Court
Writ, appellate, advisory, reference
Any sentence authorised by law

High Courts
Writ, trial, appellate, reference, revisional, review, inherent power, supervisory
Any sentence authorised by law

Sessions Courts
Trial, Appellate, revisional, supervisory
Sessions Judge and Addl Sessions Judge
Any sentence authorised by law - but sentence of death - subject to
confirmation by the High Court

Cheif Metropolitan Magistrate

Chief Judicial Magistrate
Trial, Supervisory
Trial, Supervisory
Asst Sessions Judge Upto 7 yrs and/or fine
Upto 7 yrs and/or fine
Upto 10 yrs and/or fine

Additional CMM

Addl CJM Sub Divisional Jud Magistrate

Metropolitan
Magistrates
Special MM
JM of First Class JM of Second Class Upto 3 yrs and/or
Upto 3 yrs and/or fine upto Spl JM of First Class Upto 1 yr and/or Spl JM of Second Class fine upto Rs. 10,000
Rs. 10,000 fine upto Rs. 5,000

24