UNIT IV – GENERAL RULES ON COURTS1

NOTES
JURISDICTION OF CIVIL COURTS IN INDIA
The CPC does not define the term jurisdiction. In fact, none of the substantive or procedural laws
seeks to define the term “jurisdiction”.
Black’s Law Dictionary defines “jurisdiction” as “A court’s power to decide a case or issue a
decree.” The Calcutta High Court in a full bench judgment in Hirday Nath v. Ram Chandra
sought to explain the term jurisdiction. It stated “… jurisdiction may be defined to be the power
of Court to hear and determine a cause, to adjudicate and exercise any judicial power in relation
to it; in other words, by jurisdiction is meant the authority which a court has to decide matters
presented in a formal way for its decision.”
It went on to clearly demarcate three categories of jurisdiction- subject matter jurisdiction, i.e.
whether the particular court in question has the jurisdiction to deal with the subject matter in
question; territorial jurisdiction, i.e. whether the court can decide upon matters within the
territory or area where the cause of action arose; and pecuniary jurisdiction, i.e. whether the court
can hear a suit of the value of the suit in question.
Before going on any further, it must be mentioned that the jurisdiction of the court is not whether
the court is entitled to pass a particular order or decree in a suit. It is whether the court has the
right to hear the particular case. Further, also the jurisdiction is decided by the allegations made
in the plaint, and not the defence’s arguments.
Section 9 of the CPC reads
“Courts to try all civil suits unless barred- The Court shall (subject to the provisions herein
contained) have jurisdiction to try all suits of a civil nature excepting suits of which their
cognizance is either expressly or impliedly barred.
Explanation 1- A suit in which the right to property or to an office is contested is a suit of a civil
nature, notwithstanding that such right may depend entirely on the decision of questions as to
religious rites or ceremonies.
Explanation II-
For the purposes of this section, it is immaterial whether or not any fees are attached to the office
referred to in Explanation I or whether or not such office is attached to a particular place.”
The section clearly allows for the legislature by statute to expressly bar the jurisdiction of the
Civil Courts. The general rule however is that the presumption would be made in favour of the
existence of a right to sue in a Civil court, the exclusion of the same being an exception.
1
Notes on Unit IV is not exhaustive, you need to separately look at Delhi High Court Rules and Supreme Court
Rules.
The Supreme Court has laid down the rule that the plea of absence of jurisdiction can be raised
and entertained at any stage. In the absence of clarity in the point, the author believes that the
plea of the absence of jurisdiction should be allowed only at any point of the case when in the
Court of First Instance, and not in any appeals subsequent to it. Allowing such pleas in appeal
might be misused by the appellant having lost the suit in the lower court. For instance, the losing
party in the Court of First Instance may raise the plea in the appellate court in case he loses in the
Lower Court, despite the suit commencing on his petition. This would be gross injustice to the
other party and would also be against the principles of natural justice. Hence it must not be
allowed to raise the plea at the appellate court.
Like jurisdiction, there is no definition of a civil suit in any Act. However, Explanation I makes
it clear that the suit in which the principal question relates to a civil right is a civil suit.
In Sanker Naryan Potti v K Sreedevi, the Apex Court held, it is obvious that in all types of civil
disputes civil courts have inherent jurisdiction as per Section 9 of the CPC unless a part of that
jurisdiction is carved out from such jurisdiction, expressly or by necessary implication, by any
statutory provision and conferred on any other tribunal or authority.”
This in itself means that the Legislature, may if it so desires, exclude certain portions of any law,
or any law in to by including a clause or provision in the Act itself.
Hence, the current position regarding the jurisdiction of Civil Courts is that they have inherent
jurisdiction to hear into civil matters unless it is expressly or implied excluded by a statute. The
Supreme Court has held that the burden of proof for the exclusion of the jurisdiction of the court
is on the party contending it. Another important point to make here is that the Supreme Court in
a landmark judgement held that it is the Civil Courts itself that has the power to decide if it has
the power to decide if it lacks, or has the jurisdiction to entertain a particular suit, even if on
investigation, it is found that it does not.
In the case of a statute that bars the jurisdiction of the Civil Courts, the Supreme Court in the
case of State of A.P. v. Manjeti Laxmi Kanth Rao devised a test for determination of the
exclusion of the jurisdiction of Civil courts. First it is to be determined the legislative intent to
exclude the jurisdiction “either explicitly, or by necessary implication”. This means that the
Court must first try to determine the precise reasons for the exclusion of the Civil Courts, and
whether it is justified. However the justification is not open to judicial review. Once the court
satisfies itself of the same, the court needs to determine whether the statute, which bars such
jurisdiction provides for a suitable alternate remedy. An alternate remedy in this respect must be
capable of performing the functions that would have been performed by the civil court in the
absence of such exclusion, and must be empowered to pass any order which the civil court in like
circumstances would have passed. In the absence of such alternate mechanism, the jurisdiction of
the Civil Court cannot be excluded. This view has also been accepted by the High Court at
Calcutta in Bar Council W.B. v. A. Aughstir.
However it was held in Balawwa v. Hasanabi, that the jurisdiction of the Civil Court is ousted in
respect of a tribunal created by a statute only so far as the reliefs that could be granted by the
tribunal in question. The case was particularly in regards the Land Tribunal, but the author
believes, that this is the correct implication and applies to all tribunals under different Acts. In
this respect, it has been held by the High Court at Allahabad in number of cases that a suit is
barred of jurisdiction by the Civil Courts only if the cognizance of the entire suit is barred. This
implies that if a certain suit arises, a part of which is not ordinarily to be tried by the Civil Court,
due to express or implied exclusion, it is not true that the entire suit will be barred. Since the
other points of law or reliefs sought are beyond the tribunal, or even if not beyond the special
tribunal created under the Act, the jurisdiction of the civil court is not ousted and hence still has
inherent jurisdiction to try the suit. It is not exactly clear if the special tribunal under the Act can
pass a judgment in relation to the part of the case in which the jurisdiction of the civil court is
excluded. If it can, does the civil court has to limit itself to the other points and is it limited by
the decision of the tribunal These are questions that are not yet completely clear.

The Supreme Court held that if any statute creates right, which does not pre-exist in Common
Law, and creates a mechanism for enforcement of the same, both the right and the remedy being
created in one breath, excludes the jurisdiction of the Civil Court, even in the absence of an
express provision. This view has been accepted by the High Courts at Calcutta and Gujarat. The
Apex Court in a decision has held that if the right in question is one in Common Law and not the
creation of any statute, the jurisdiction of the Civil Court will not be excluded because the statute
seeks to provide for an exclusive tribunal for the enforcement under the statute.
The jurisdiction of a Civil Court is taken away when the statute in question clearly states that the
decision of the tribunal that the particular statute creates is final. This is subject to the fact that
the tribunal thus created is sufficiently empowered to act as a Civil Court would in a similar
situation. However the Supreme Court has held that there are two limitations to such exclusive
jurisdiction of tribunals under any Act, meaning that the jurisdiction of the Civil Court will not
be excluded in certain circumstances. One such situation would be where the Act states that the
decision of the tribunal will be final for ‘the purposes of this Act’. Another circumstance would
be where the statute does not state that all questions regarding the special right created by the
statute will be determined by the special authority created under the Act.
Apart from being expressly barred by a statute, the jurisdiction of the civil court may also be
impliedly barred. However to be considered as impliedly barred, the jurisdiction of the civil court
must be necessarily barred. The Supreme Court has held in Shri Panch Nagar Parak v. Puru
Shottam Das that in the absence of any express exclusionary provision, the court needs to
examine the purpose, scheme and relevant provisions of the Act in order to determine implied
exclusion of the jurisdiction of Civil Courts.
An example of such implied exclusion would be a suit by a person whose property is attached
under Code of Criminal Procedure, 1898 is impliedly barred from filing a civil suit and can only
invoke clauses under that Act for remedies. However it must be mentioned that the Supreme
Court has held that ouster of the jurisdiction of Civil Court by a statute, whether explicitly or
implicitly does not bar the court from examining whether the provisions of the Act have been
complied with, or if the authority under the Act has acted in accordance with the principles of
natural justice. The High Court at Calcutta went on to explain further that in the event of any of
the above being contravened, the Civil Court has the jurisdiction to strike down all such acts of
the authority.

Further under Article 228, the High Court has the ability to call upon any matter pending in any
lower court to decide it on its own, or to determine the points of law involved in it and return the
same. In the absence of any detailed explanation to this section, it is to be implied that this power
also extends to the Civil matters in lower courts. This implies that the civil jurisdiction of the
High Court can generally not be ousted even in the absence of any express clause. Another
aspect to be considered while determining the jurisdiction of the Civil Court is the concept of
Res judicata. Section 11 of the CPC reads “No Court shall try any suit or issue in which the
matter directly and substantially in issue has been directly and substantially in issue in a former
suit between the same parties, or between parties under whom they or any of them claim,
litigating under the same title, in a Court competent to try such subsequent suit or the suit in
which such issue has been subsequently raised’ and has been heard and finally decided by such
Court.” The principle of Res judicata ousts the jurisdiction of the Civil Courts where the matter
in hand has been entertained in a suit by a competent authority previously. So it might be said
that the jurisdiction of a Civil court is excluded if the suit has been decided earlier by a
competent authority.
POWERS AND HIERARCHY OF CRIMINAL COURTS IN INDIA
Hierarchy of Criminal Courts
The hierarchy of the Criminal Courts in India is as follows

 The Supreme Court of India – The Supreme Court of India, being the apex court of
India, was established under Article 124 of Part V and Chapter IV of the Constitution
of India.

 The High Courts of India–  The high courts are at the second level of the hierarchy.
They are governed by Article 141 of the Constitution Of India and are bound by the
judgement of the Apex Court.

 Lower Courts of India have been classified as follows.

 Metropolitan Courts
  Sessions Court

 Chief Metropolitan Magistrate

 First Class Metropolitan Magistrate

 District Courts

o Sessions Court  

o First Class Judicial Magistrate

o Second Class Judicial Magistrate

o Executive Magistrate

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.