CuapTer II CONSTITUTION OF CRIMINAL COURTS AND OFFICES Classes of Criminal Courts. S. 6. Besides the High Courts and the Courts constituted under any law, other than this Code, there shall be, in or crimisa CORES every State, the following classes () Courts of Session; (ii) Judicial Magistrates of the first class and, in any metro- politan area, Metropolitan Magistrates; (iii) Judicial Magistrates of the second class; and (iv) Executive Magistrates. SYNOPSIS. 1. Changes made by the new Code * 37 2. Separation of the Executive from the Judiciary : Executive and Judicial Mi 3. A. Classes of Criminal Courts under the new Code 1. The High Courts 2. Sessions Courts 3. Judicial Magistrates Powers of Judicial Magistrate 4, Metropolitan Magistrates 5. Executive Magistrates 4. 5. 6. B. Courts Constituted under any law other than the Code—‘Courts 37 59 59 59 Cy 60 © a a constituted under any law’ 8 COMMENTS 1. Changes made by the new Code—(a) Abolition of Magistrates of the Third Class. (b) Separation of Judiciary from the Executive, by dividing Magistrates into two classes—Judicial and Executive. 2. Separation of the Executive from the Judiciary : Executive and Judicial Magistrates.—The revised set-up of Criminal Courts and the allocati ister functions between.two. categories of Magistrates, under the new Code, are intended to_ ‘bring about separation of the Judiciary from the Executive, as far as possibe. ~~~ ‘a consequence of the separation there will be two categories of Magistrates, namelgc the Judicial Magistrates and the Executive Magistrates [s. 6), the former being, i538 8.6 Chap. Il—Constitution of Criminal Courts and Offices under the control of the High Court_and the latter under the control of the State ‘Government [ss. 9, 15, 22-23]. Broadly speaki ictions which are essentially judicial ee Ne ae or tee focal Magistrates while functions wich ot “police” or administrative n nature wil be te concer of the Executive Magistrate, erforming terial functions allotted to the Executive (CF. s. 3(4), p. 43, amet noeanl be, in each district, the District Magistrate, the Additional Distt Magistrate (where necessary), the Sub-divisional Magistrates and the other subordinate Executive Magistrates. These last ones will not be classified into First, Second and Third Class Magistrates; they will all be designed as Executive Magistrates [s. 20}; and Special Executive Magistrates [s. 21]. (b) On the judicial side, for each district (other than a Metropolitan area) there will be a Chief Judicial Magistrate (s. 12(1)] who will correspond to the District Magistrate on the Executive side. He will be a senior Magistrate whose important function will be to guide, supervise and control other Judicial Magistrate whose important function will be to guide, supervise and control other Judicial Magistrate in the district. He will himself try important cases (including cases where there are approvers) and will have powers to impose a sentence of imprisonment not exceeding seven years [s. 29(1)]. In addition to the Chief Judicial Magistrate, there will be Magistrate of the First Class and Magistrates of the Second Class on the judicial side, apart from Special Judicial Magistrates [s. 13]. Third Class Magistrates are considered unnecessary,! and have been abolished by the new Code. In determining the number of Courts of Magis- trates and their location, the State Govemment is required to act in consultation with the High Court. The power to define local limits of jurisdiction is conferred on the Chief Judicial Magistrate, subject to the control of the High Courts [s, 14(1)]. The High Court has the power to designate certain Magistrates as Judicial Sub-divisional Magistrates for exercising specified powers of supervision [s. 123)]. . ‘Under the old Code, there were certain special arrangements in respect of the cities of Madras, Bombay and Calcutta, which are called Presidency-towns; magisterial func- tions, mostly of a judicial nature, were discharged by a special category of Magistrates called Presidency Magistrates. Usually, persons appointed to these posts had special Qualifications or experience and are paid higher emoluments, Although the reasons for such special arrangements are historical, the system has been found useful in respect of such big cities, where crimes are sophisticated and the volume of work is heavy requiring quicker disposal of cases. It has since been extended to certain other cities by local law. Agreeing with the Commission, it was proposed not only to continue the system with ‘some modifications but also to enable its extension by any State Government to other big Cities within the State where the population is not less than one million (to be called Metropolitan areas) by means of a notification {s. 8(9)]. The existing designation of Presidency Magistrates will be changed to Metropolitan Magistrates [s. 16(1)]. Under the old Code, in Presidency-towns and certain other cities there were no District Magistrates a of the functions of a District Magistrate were discharged by the Commissioner and some by the Chief Presidency Magistrate. The Commission? recommended that this arrangement should be changed and these cities also should have | ‘magistrates and Sub-divisional Magistrates like other places. This nission was not approved by the Joint Committee,? but Commission’s report and the Bill of 1972 has been solasses of Criminal Courts 8.6 59 assed by Parliament that a metropolitan arca shall also have a District Magistrate [s. Boch) and Sub-divisional Magistrates to discharge executive functions [s. 20(4)] 3, A. Classes of Criminal Courts under the new Code—Criminal Courts are givided into the following categories by the new Code for the purpose of application of its different provisions: 1. The High Courts 1. The High Courts rach of the States in India has a High Court, which, stands atthe. head of the Judiciary in the State a ace igh Cae eee appalate [s. 374(2)], reference Jj revisional jurisdiction [s, 395 et seq] over the inferior Criminal Courts. = thas already been pointed out that under the new Code, the High Court shall have no Ordinary Original Criminal Jurisdiction, e.g., to try a sessions case in. residency towns, The words “High Courts’, in the present section,-therefore,-refer-to-the-extraerdi- y criminal jurisdiction [vide s. 374(1), post] or the Admiralty jurisdiction of the High Suits of Calcutta, Bombay and Madras, under Cls. 24° and 33 of the Letters Patent,® and the jurisdiction fo take over on transfer from any subordinate Criminal Court, for trial before the High Court itself under s. 407(1)(iv) [old s. 526(1)(ii)], apart from their jurisdiction as Courts of appeal or revision (Chapts. XXIX-XXX, post). Under this extraordinary original criminal jurisdiction, for instance, the High Court shall be competent to try a case which has been brought before it by commitment by any Magistrate, which has been reserved By s. 26, post (notwithstanding the abolition ae ‘ordinary original jurisdiction),’ a sessions Case arising Wil ie ie Fi Court (eon the siver Hooghly), which the City Sessions Court has no jurisdiction to ty! ‘The procedure to be followed by the High Court in this extraordinary jurisdiction, is that referred to in 8. 474, post” 2. Sessions Courts Sessions ou Each State is divided into one or more. sessions divisions i Session foreach Givision presided over by a Sessions Judge appointed by the State Gox - The State Government may also-appoint. Additional and Assistant Sessions Ridges to exercise jurisdiction in one or more of such Session Courts [ss.7-9]. according tothe volume of work. _ a e (@) A Sessions Court has.got appellate and revisional jurisdiction over Criminal ‘Courts (ss. 374(3); 397-399; 449(1)]. (b) A Sessions Court has also got original jurisdiction to. try. what _are_known-as “sessions cases” but it has no power to take cognizance of such cases unless they itted to it by a Magistrate [ss, 209(a), 226], excepting where.a Public sor makes. complaints to a-offeice of defaai,bving bes committedby a peison against the President of India_and_other specified ES bot ana aoo kere fcexereies Ts power, under 3 344, summarily try a witness for giving false evidence. the inferiorChap. H—Constitution of Cr - ‘minal Courts 60 4nd oy Mice, 3. Judicial Magistrates _ In every dite, outside the “metropolitan area’ (sce p. 2¢ yy, Judicial Magistrates ofthe fist clas and sevond class fs. T1(n) One Shall Magistrates of the first class shall be appointed the Chief Judicia] Magistrate Jey who shall be subordinate to the Sessions Judge [s. 15(1)]_ te [5 bag “Other categories of Judicial Magistrates shall be: a) The Sub Magisate in-charge ofa sub-division {s. 20)} (b) Special Judicial Nag! Jug second class power, and appointed for a term of one year at atime [s.3) ‘tates, having _ Powers of Judicial Magistrate —See under s, 29, post 4, Metropolitan Magistrates The Metropolitan Magistrate are the Judicial Magistrate ina ‘metropolitan » Commission (370 Rep,, paras 69, 101; 4st Rep., para 2.11) Tecom po Trey The hiuance of the Presidency Magistrates (under the old Code) in the Presidency toys the'ground that ofthe special problems ofthese big cites deserved spas Tent on the name ‘Presidency town” is now a misnomer, owi ing tO @ change in ity hig background, and there isno reason why tis special magistacy shouldp¢" acca three Presidency towns instead of being extended to all big cities, as ng “metropolitan area’ under the new provision ins. 8, read with s.2(k) [p. 28, von eed Section. 16 empowers the High Court to appoint Metropolitan Magistrates, why omespond to Judicial Magistrates in the districts. outside the metrpolie® sate wy tuumber of such Magistrates shall be determined by the State Goverment i Consultation with the High Court [s. 16(1)]. tation Following the pattern of Judicial Magistrates in the districts, Metropolitan 4, {ats lal be sub-divided into the following categories: (a) Chit Meteors Mase, trate“{s- 17(1)]; (b)_ Additional Chief Metropolitan Magistrate [s._17(2)} © Sea Metropolitan Magistrate [s. 18(1)]. Presumably owing to the smallness of a meiropois area, there isno provision for appointing someone as a Sub-divisional Metropolitan Mazistate on the Judicial side, though there is no bar to a subsdiviceny Executive Magistrate being appointed for a Metropolitan area, under s. 20(4), pos 5. Executive Magistrates Since all powers of adjudication, including even the power to tender at Aecomplice (8. 306(1) contra olds. 377(1)} have been vested by the new Cafe in Judicial Muzistrte, complications would obviously be caused by specifinig Magistrates’ as a category of ‘Courts’ in s. 6, particularly because the meen’ defined in the new Code, as in the old. Under the old Code, since Magistrate us perform both judicial and executive functions, it was held’ that a Magistrate was 2 (aa hen acting judicially," o4¢, when taking cognizance of a case nies expec Me reas Codec ugh Powers of tril have been taken away ffom Executive Magis by the new Code, they have been included inthe enumeration of “Cou eensClasses of Criminal Courts ne ol ection. An analysis of the status and powers of Magistrates is accordingly necessary to find out when and for what purposes a Magistrate may be regarded as a Court under the new Code: L. The primary distinction between Judicial and Executive Magistrates lies in the mode of their appointment and responsibility : (i) While Judicial Magistrates are to be appointed by the High Court [s. 11(2)}, Executive Magistrates are to be appointed by the fe ee 20(1)], without even consulting the High Court. _ (ii) While all Judicial Magistrates shall be subordinate to and under tbe sont} of the Sessions Judge, through the Chief Judicial Magistrate (s. 15(1)], am under the ultimate control and. supervision of the High Court, Executive Magistrates shall be subordinate to the Magistrate I. latter being obviously under the administrative the State, Government. ‘Nevertheless, any order made by an Executive Magistrate shall be subject to the revisional jurisdiction of the High Court or a Sessions Judge [Expl. to s. 397(1)]. Il. The powers which are conferred on Executive Magistrates under the new Code are administrative or at best quasi-judicial, e.g, (i) Arrest for offence committed in his presence {s. 44]. (ii) Control over persons arrested without warrant by the P 3s. 58-59]. Gii) Execution of Warrant under orders of Court.and_grant.of bail.{s..81(1)], __Proviso 1 [ss. 78-81] (iv) Power to require the postal authority to deliver any document necessary for investigation, etc. [s. 92]. (v) Issue of search warrant {ss. 93-94, 97]; and to direct search in his presence {s. 103}. 7 ra (vi) Compelling restoration of abducted woman [s. 98]. (vii) Ordering security for keeping the peace in.cases other than on conviction, {ss (07-110; 117]; ordering imprisonment in default of security-[s122¢1)]” release from such imprisonment [s..123}. - Dispersal of unlawful assembly (ss..129-131]; order for removal of public nliisance [s. 133]; or prohibition of its continuance [s, 143]. 7 (ix) Prohibitory orders in.cases-of nuisance. or apprehended danger [s. 144], or. dispute as to immovable property {s. 145]; or dispute relating to land or wae yon kes 7 (9) To hold i {s. 174@4)]. (xi), Power to issue commission for examination of witness [s. 284]. (si) Making complai M read with s. 195 [old ss. 4 quests_into_cases_of suicide, accident_or_suspi is_death 95].Chap. Il—Constitution of Criminal Courts and Offices 6 S.6 (xiii) Affidavits may be sworn before any Judge or Magistrate [s. 297(1)(a)], xii i inspection [s. 310]. (xiv) Power to hold local (xv) Transfer or withdrawal of any case under s, 411 [old . 528). Disposal of property seized by Police which is not produced before a ( eietnal Court ss. 457-459]. (xvii) Discharge of sureties under s. 444 [old s, 502]. Csi) Powe to ur bnd and impose penalty, under; para 2 of s. 446(1), read sions, it would have been more convenient to mri ee taal ae caer least, a Separate heading. feed arveyer tit where We nete CodBere u particular power ae in the Pea © Magistrate (under 8. 145, pos), the exer of that p icial Magistrate will render the Proceeding wat tion anol [see s. 461(i), post].!5 ; eee 4. ‘State’ —This word include General Clauses Act; and also a 8. ‘Criminal ee “Union Te Teason of s. 3(58)(b) of sls a Sap '—I. The word ae isnot defined absence of a general definition, Ei outside such Special provision, the word ‘Cour’ as 5,6 would refer to juice tl ani meaning a place where “justice is jcdiSelin ainisered (Cote on ae ‘and would not, therefore, in Bere pore crete ne judicial functions, 17 Premises criminal proceeding’, cg fovea Te (19) ofthe Coes) MSY At! Civil Court sed jn the Cove, eClasses of Criminal Courts 5.6 63 3. The enumeration of “Criminal Courts’ in s. 6 is exhaustive, so that in the absence of any contrary provision in any special law, any other tribunal set-up by a statute would not be a ‘Criminal Court’ for the purposes of the Code, and no appeal from its decisions would lie to a Court of appeal under the Code.2! 4, But there are certain sections of the Code which use the word ‘Court’ as distinguished from the expression ‘Criminal Court’ which is used and exhaustively enumerated in s. 6. It has been held that a tribunal may be a ‘Court’ within the meaning of s 2g) [inguiry’}, so that preliminary inquiry held by a Civil Court, under s. 340(1) {old s. 476] of the Code would be an ‘inquiry’ governed by the provisions of the Code;” but revision against such order is now specifically barred by new s. 341(2), post. 5. As regards “Executive Magistrates’, they would come within the ambit of the word in particular sections, eg, s. 195(3); s,446(1)+3), imposing penalty on forfeiture of bond executed under ss. 107,23 407,24 482.25 Above all, the utility of calling an Executive Magistrate a ‘Criminal Court’ appears when we turn to judicial subordination of such Magistrates to the Sessions Judge and the High Court for the purposes of revision under s. 397(1), the Explanation to which has made it clear that an Executive Magistrate shall be deemed to be a Criminal Court inferior to the Sessions Judge for the purposes of revision. The power of revision which a District Magistrate and a Sub-divisional Magistrate had under old s. 335(1) has been taken away be new s. 397(1). Thus, it is clear under the new Code, that an order made by an Executive Magistrate under s. 133 or s. 145 shall be revisably by the Sessions Judge, and the District magistrate shall have no power of revision, concurrent2® or exclusive.? But a Magistrate arresting a person under s. 44 would not be acting as a ‘Court’.?8 6. An Executive Magistrate would be an ‘Inferior Court” under s. 6 and other provisions of the Code only when he exercises powers under the Code. In the absence of express provision to the contrary, where he passes an administrative order under a special law, he cannot be treated as an inferior Court for purposes of revision of that order, ¢.g., under s. 16(1) of the Telegraph Act, 1885.2 7. Rent controller appointed under the West Bengal Provinces Tenancy Act, 1956 is, not a Criminal Court because he neither convicts nor acquits but only imposes fine.*° 6. B, Courts Constituted under any law other than the Code—‘Courts cons itmted under any law'—This expression means that besides the Courts specified in s. 6 there may be other ‘Criminal Courts’ if any special law vests them with the jurisdiction to try ‘offences’! as defined in s. 2(n) [p. 29, ante], e.g., a Municipal Magistrate under