CHAPTER II

CONSTITUTION OF CRIMINAL COURTS AND OFFICES

6. Classes of Criminal Courts : –

Besides the High Court and the Courts constituted under any law, other than this Sanhita, there shall be, in every State, the following classes of criminal Courts, namely :-

(i) Courts of Session;

(ii) Judicial Magistrate of the first class;

(iii) Judicial Magistrate of the second class; and

(iv) Executive Magistrates.

COMMENT

Section 6 relates t classes of criminal Courts.

It provides that besides the High Courts and the Courts constituted under any law, other than this Sanhita, the criminal Courts are established, namely, Courts of Session; judicial Magistrate of the first class; Judicial Magistrates of the second class; and Executive Magistrates.

CORRESPONDING OLD LAW

This section corresponds to section 6 of criminal procedure code 1973.

7. Territorial Divisions : –

(1) Every state shall be a sessions division or shall consist of sessions divisions; and every sessions divisions shall, for the purposes of this Sanhita, be a district or consist of districts.

(2) The state Government may, after consultation with the High Court, alter the limits or the number of such divisions and districts.

(3) The state Government may, after consultation with the High Court, divide any district into sub-divisions and may alter the limits or the number of such sub-divisions.

(4) The sessions division, districts and sub-divisions existing in a state at the commencement of this Sanhita, shall be deemed to have been formed under this section.

COMMENT

Section 7 relates to Territorial divisions.

It provides that every State shall be sessions division or shall consist of sessions divisions; and every sessions divisions shall, for the purposes of this Sanhita, be a district or consist of districts.

CORRESPONDING OLD LAW

This section corresponds to section 7 of criminal procedure code 1973.

 

8. Court of Session : –

(1) The State Government shall establish a Court of session for every sessions division.

(2) Every Court of Session shall be presided over by a judge, to be appointed by the High Court.

(3) The High Court may also appoint Additional Sessions Judges to exercise jurisdiction in a Court of Session.

(4) The Sessions Judge of one sessions division may be appointed by the High Court to be also an Additional Sessions Judge of another division, and in such case, he may sit for the disposal of cases at such place or places in the other division as the High Court may direct.

(5) Where the office of the Session Judge is vacant, the High Court may make arrangements for the disposal of any urgent application which is, or may be, made or pending before such Court of Session by an Additional Session judge or if there be no Additional Session Judge, by a Chief judicial Magistrate, in the session division; and every such Judge or Magistrate shall have jurisdiction to deal with any such application.

(6) The Court of Session shall ordinarily hold its sitting at a such place or places as the High Court may, by notification, specify; but, if, in any particular case, the Court of session is of opinion that it will tend to the general convenience of the parties and witnesses to hold its sittings at any other place in the sessions division, it may, with the consent of the prosecution and the accused, sit at that place for the disposal of the case or the examination of any witness or witnesses therein.

(7) The Session Judge may, from time to time, make orders consistent with this Sanhita, as to the distribution of business among such Additional Session Judges.

(8) The Sessions Judge may also make provision for the disposal of any urgent application, in the event of his absence or inability to act, by an Additional Session Judge or if there be no Additional Sessions Judge, by the Chief Judicial Magistrate, and such Judge or Magistrate shall be deemed to have jurisdiction to deal with any such application.

Explanation :- For the purposes of this Sanhita, “appointment” doses not enclose the first appointment, posting or promotion of a person by the Government to any Service, or post in connection with the affairs of the Union or of a State, where under any law, such appointment, posting or promotion is required to be made by the Government.

COMMENT

Section 8 relates to Court of Session.

It provides the State Government shall establish a Court of Session for every sessions division, presided over by a Judge, to be appointed by the High Court.

It further explains the term “appointment”.

CORRESPONDING OLD LAW

This section corresponds to section 9 of criminal procedure code 1973.

9. Courts of Judicial Magistrates : –

(1) In every district there shall be established as many Courts o Judicial Magistrates of the first class and of the second class, and at such places, as the State Government may, after consultation with the High Court, by notification, specify;

Provided that the state Government may, after consultation with the High Court, establish, for any local area, one or more Special Courts of Judicial Magistrates of the first class or of the second class to try any particular case or particular class of cases, and where any such Special Court is established, no other Court of Magistrate in the local area shall have jurisdiction to try any case or class of cases for the trial of which such Special Court of Judicial Magistrate has been established.

(2) The presiding officers or such Courts shall be appointed by the High court.

(3) 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.

COMMENT

Section 9 relates to courts of Judicial Magistrates.

It provides in every district there shall be established as may Courts of Judicial Magistrates of the first class and of the second class, and at such places, as the State Government may, after consultation with the High Court, by notification specify.

CORRESPONDING OLD LAW

This section corresponds to section 11 of criminal procedure code 1973.

10. Chief Judicial Magistrate and Additional Chief Judicial Magistrate, etc. :-

(1) In every district, the High Court shall appoint a Judicial Magistrate of the first class to be the Chief Judicial Magistrate.

(2) The High Court may appoint any Judicial Magistrate of the first class to be an Additional Chief Judicial Magistrate, and such Magistrate shall have all or any of the powers of a Chief Judicial Magistrate under this Sanhita or under any other law for the time being in force as the High Court may direct.

(3) The High Court may designate any Judicial Magistrate of the first class in any sub-division as the Sub-divisional Judicial Magistrate and relieve him of the responsibilities specified in this section as occasion requires.

(4) 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 by general or special order, specify in this behalf.

COMMENT

Section 10 relates to chief Judicial Magistrate and Additional chief Judicial Magistrate.

It provides in every district the High Court shall appoint a Judicial Magistrate of the first class to be the chief Judicial Magistrate.

CORRESPONDING OLD LAW

This section corresponds to section 12 of criminal procedure code 1973.

11. Special Judicial Magistrates :-

(1) The High Court may, if requested by the Central or State Government so to do, confer upon any person who holds or has held any post under the Government, all or any of the powers conferred or conferrable by or under this Sanhita 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:

Provided that no such power shall be conferred on a person unless he possesses such qualification or experience in relation to legal affairs as the High Court may, by rules specify.

(2) Such Magistrates shall be called special Judicial Magistrates and shall be appointed for such term, not exceeding one year at a time, as the High Court may, by general or special order, direct.

COMMENT

Section 11 relates to special Judicial Magistrates.

It provides the High Court may, if requested by the Central or state Government, 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 this Sanhita 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 and such Magistrates shall be called Special Judicial Magistrates.

It also provides that no such power shall be conferred on a person unless he possesses such qualification or experience in relation to legal affairs as the High Court may, by rules, specify.

CORRESPONDING OLD LAW

This section corresponds to section 13 of criminal procedure code 1973.

12. Local Jurisdiction of Judicial Magistrates :-

(1) Subject to the control of the High Court, the Chief Judicial Magistrate may, from time to time, define the local limits of the areas within which the Magistrate appointed under section 9 or under section 11 may exercise all or any of the powers with which they may respectively be invested under this Sanhita:

Provided that the Court of Special Judicial Magistrate may hold its sitting at any place within the local area for which it is established.

(2) Except as otherwise provided by such definition, the jurisdiction and powers of every such Magistrate shall extend throughout the district.

(3) Where the local jurisdiction of a Magistrate appointed under section 9 or section 11 extends to an area beyond the district in which he ordinarily holds Court, any reference in this Sanhita to the Court of session or Chief Judicial Magistrate shall, in relation to such Magistrate, throughout the area within his local jurisdiction, be construed, unless the context otherwise requires, as a reference to the Court of Session or Chief Judicial Magistrate, as the case may be, exercising jurisdiction in relation to the said district.

COMMENT

Section 12 relates to local jurisdiction of Judicial Magistrates.

CORRESPONDING OLD LAW

This section corresponds to section 14 of criminal procedure code 1973.

13. Subordination of Judicial Magistrates :-

(1) Every Chief Judicial Magistrate shall be subordinate to the Sessions Judge; and every other Judicial Magistrate shall, subject to the general control of the Session Judge, be subordinate to the Chief Judicial Magistrate.

(2) The Chief Judicial Magistrate may, from time to time, make rules or give special orders, consistent with this Sanhita, as to the distribution of business among the Judicial Magistrate subordinate to him.

COMMENT

Section 13 relates to subordination of Judicial Magistrate.

It provides Chief Judicial Magistrate shall be subordinate to the Sessions Judge; and every other Judicial Magistrate shall, subject t the general control of the Sessions Judge, be subordinate to the Chief Judicial Magistrate.

It also provides that the Chief Judicial Magistrate may, from time to time, make rules or give special orders, consistent with this Sanhita, as to the distribution of business amongst the judicial Magistrates subordinate to him.

CORRESPONDING OLD LAW

This section corresponds to section 15 of criminal procedure code 1973.

14. Executive Magistrates :-

(1) In every district, the State Government may appoint as many persons as it thinks fit to be Executive Magistrate and shall appoint one of them to be the district Magistrate.

(2) The State Government may appoint any Executive Magistrate to be an Additional District Magistrate, and such Magistrate shall have such of the power of District Magistrate under this Sanhita or under any other law for the time being in force as may be directed by the state Government.

(3) Whenever, in consequence of the office of a District Magistrate becoming vacant, any officer succeeds temporarily to the executive administration of the district, such officer shall, pending the orders of the state Government, exercise all the powers and perform all the duties respectively conferred and imposed by this Sanhita on the District Magistrate.

(4) The state Government may place an Executive Magistrate in charge of a sub-division and may relive him of the charge as occasion requires; and the Magistrate so placed in charge of a sub-division shall be called the sub-divisional Magistrate.

(5)  The state Government may, by general or special order and subject to such control and directions as it may deem fit to impose, delegate its powers under sub-section (4) to the District Magistrate.

(6) Nothing in this section shall preclude the state Government from conferring, under any law for the time being in force, on a Commissioner of Police all or any of the powers of an Executive Magistrate.

COMMENT

Section 14 relates to Executive Magistrates.

It provides that in every district, the state Government may appoint as many persons as it thinks fit to be Executive Magistrates.

CORRESPONDING OLD LAW

This section corresponds to section 20 of criminal procedure code 1973.

15. Special Executive Magistrates :-

The State Government may appoint, for such tem as it may think fit, executive Magistrates or any police officer not below the rank of Superintendent of Police or equivalent, to be Known as Special Executive Magistrates, for particular areas or for the performance of particular functions and confer on such Special Executive Magistrates, as it may deem fit.

COMMENT

Section 15 relates to special Executive Magistrates.

It provides that the state Government may appoint, for such term as it may think fit, Executive Magistrates or any police officer not below the rank of superintendent of Police or equivalent, to be known as Special Executive Magistrates.

CORRESPONDING OLD LAW

This section corresponds to section 21 of criminal procedure code 1973.

16. Local Jurisdiction of Executive Magistrates :-

(1) Subject to the control of the state Government, the District Magistrate may, from time to time, define the local limits of the areas within which the Executive Magistrate may exercise all or any of the powers with which they may be invested under this Sanhita.

(2) Except as otherwise provided by such definition, the jurisdiction and powers of every such Magistrate shall extend throughout the district.

COMMENT

Section 16 relates to local Jurisdiction of Executive Magistrates.

It provides the district Magistrate may, from time to time, define the local limits of the areas within which the Executive Magistrate may exercise all or any of the powers with which they may be invested.

CORRESPONDING OLD LAW

This section corresponds to section 22 of criminal procedure code 1973.

17. Subordination of Executive Magistrates :-

(1) All Executive Magistrates shall be subordinate to the District Magistrate, and every Executive Magistrate (other than the Sub-divisional, Magistrate) exercising powers in a Sub-division shall also be subordinate to the Sub-divisional Magistrate subject to the general control of the District Magistrate.

(2) The District Magistrate may, from time to time, make rules or give special orders, consistent with this Sanhita, as to the distribution or allocation of business among the executive Magistrate subordinate to him.

COMMENT

Section 17 relates to subordination of Executive Magistrates.

It provides all Executive Magistrates shall be subordinate to the District Magistrate and every Executive Magistrate (other than the sub-divisional Magistrate) exercising powers in a sub-division shall also be subordinate to the sub-divisional Magistrate. Subject to the general control of the district Magistrate.

CORRESPONDING OLD LAW

This section corresponds to section 23 of criminal procedure code 1973.

18. Public Prosecutors :-

(1) For every High Court, the Central Government or the State Government shall after consultation with the High Court, appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors, for conducting in such Court, any prosecution, appeal or other proceeding on behalf of the Central Government or the State Government as the case may be:

Provided that for National capital Territory of Delhi, the Central Government shall, after consultation with the High court of Delhi, appoint the Public Prosecutor or Additional Public Prosecutors for the purposes of this sub-section.

(2) The Central Government may appoint one or more Public Prosecutors for the purpose of conducting any case in any district or local area.

(3) For every district, the state Government shall appoint a public Prosecutor and may also appoint one or more Additional Public Prosecutors for the district:Provided that the Public Prosecutor or Additional public Prosecutor appointed for one district may be appointed also to be a Public Prosecutor or an Additional Public Prosecutor, as the case may be, for another district.

(4) The District Magistrate shall, in consultation with the Sessions judge, prepare a panel of names of persons, who are in his opinion fit to be appointed as Public Prosecutors or Additional Public Prosecutors for the district.

(5) No person shall be appointed by the State Government as the Public Prosecutor or Additional Public Prosecutor for the district unless this name appears in the panel of names prepared by the District Magistrate under Sub-section (4).

(6) Notwithstanding anything in sub-section (5), where in a State there exists a regular cadre of Prosecuting Officers, the State Government shall appoint a public Prosecutor or an Additional Public Prosecutor only from among the persons constituting such cadre:

Provided that where, in the opinion of the State Government, no suitable person is available in such Cadre for such appointment, that Government may appoint a person as Public Prosecutor or Additional Public Prosecutor, as the case may be, form the panel of names prepared by the District Magistrate under sub-section (4).

Explanation :- For the purposes of this sub-section,-

(a) “regular Cadre of Prosecuting Officers” means a cadre of Prosecuting officers which includes therein the post of public Prosecutor, by whatever name called, and which provides for promotion of Assistant Public Prosecutors, by whatever name called, to that post;

(b) “Prosecuting Officer” means a person, by whatever name called, and appointed to perform the functions of a Public Prosecutor, special Public Prosecutor, Additional Public Prosecutor or Assistant Public Prosecutor under this Sanhita.

(7) A person shall be eligible to be appointed as a Public Prosecutor or an Additional Public Prosecutor under sub-section (1) or sub-section (2) or sub-section (3) or sub-section (6), only if he has been in practice as an advocate for not less than seven years.

(8) The Central Government or the State Government or the State Government may appoint, for the Purposes of any case or class of cases, a person who has been in practice as an advocate for not less than ten years as a Special Public Prosecutor:Provided that the Court may permit the victim to engage an advocate of his choice to assist the prosecution under this sub-section.

(9) For the purposes of sub-section (7) and sub-section (8), the period during which a person has been in practice as an advocate, or has rendered (whether before or after the commencement of this Sanhita) service as a Public Prosecutor or as an Additional Public Prosecutor or Assistant Public Prosecutor or other Prosecuting Officer, by whatever name called, shall be deemed to be the period during which such person has been in practice as an advocate.

COMMENT

Section 18 relates to appointment of Public Prosecutors, Additional Public Prosecutor and Special Public Prosecutor.

It further explains the terms “regular Cadre of Prosecuting Officers” and “Prosecuting Officer”.

CORRESPONDING OLD LAW

This section corresponds to section 24 of criminal procedure code 1973.

19. Assistant Public Prosecutors :-

(1) The State Government shall appoint in every district one or more Assistant Public Prosecutors for Conducting prosecutions in the Courts of Magistrates.

(2) The Central Government may appoint one or more Assistant Public prosecutors for the purpose of conducting any case or class of cases in the Courts of Magistrates.

(3) Without prejudice to provisions contained in sub-section (1) and (2), where no Assistant Public Prosecutor is available for the purposes of any particular case, the District Magistrate may appoint any other person to be the Assistant Public Prosecutor in charge of that case after giving notice of fourteen days to the State Government:

Provided that no police officer shall be eligible to be appointed as an Assistant Public Prosecutor, if he-

(a) has taken any part in the investigation into the offence with respect to which the accuse is being prosecute; or

(b) is below the rank of Inspector.

COMMENT

Section 19 relates to appointment of Assistant Public Prosecutors.

CORRESPONDING OLD LAW

This section corresponds to section 25 of criminal procedure code 1973.

20. Directorate of Prosecution :-

(1) The State Government may establish,-

(a) a Directorate of Prosecution in the State consisting of a Director of Prosecution and as many Deputy director of Prosecution and as many Deputy Directors of Prosecution as it thinks fit; and

(b) a District Directorate of Prosecution in every district consisting of as many Deputy Directors and Assistant Directors of Prosecution, as it thinks fit.

(2) A person shall be eligible to be appointed,-

(a) as a Director of Prosecution or a Deputy Director of Prosecution, if he has been in practice as an advocate for not less than fifteen years or is or has been Sessions Judge;

(b) as an Assistant Director of Prosecution, if he has been in practice as an advocate for not less than seven years or has been a Magistrate of the first class.

(3) The Directorate of Prosecution shall be headed by the Director of Prosecution, who shall function under the administrative control of the Home Department in the State.

(4) Every Deputy Director of Prosecution or Assistant Director of Prosecution shall be subordinate to the Director of Prosecution; and every Assistant Director of Prosecution shall be subordinate to the Deputy Director of Prosecution.

(5) Every Public Prosecutor, Additional Public Prosecutor and Special Public Prosecutor appointed by the State Government under sub-section (1) or sub-section (8) of section 18 to conduct cases in the High court shall be subordinate to the Director of Prosecution.

(6) Every Public Prosecutor, Additional Public Prosecutor and Special Public Prosecutor appointed by the State Government under sub-section (3) or sub-section (8) of section  18 to conduct cases in District Courts and every Assistant Public Prosecutor Appointed under sub-section (1)  of  section 19 shall be subordinate to the Deputy Director of Prosecution or the Assistant Director of Prosecution.

(7) The power and functions of the Director of Prosecution shall be to monitor cases in which offences are punishable for ten years or more, or with life imprisonment, or with death; to expedite the proceedings and to give opinion on filing of appeals.

(8) The power and function of the Deputy Director of Prosecution shall be to examine and scrutinise police report and monitor the cases in which offences are punishable for seven years or more, but less than ten years, for ensuring their expeditious disposal.

(9) The functions of the Assistant Director of Prosecution shall be to monitor cases in which offences are punishable for less than seven years.

(10) Notwithstanding anything contained in sub-sections (7) (8) and (9), the Director Deputy Director of Assistant Director of Proceedings under this Sanhita.

(11) The other powers and function of the Director of Prosecution, Deputy Directors of Prosecution and Assistant Directors of Prosecution and the areas for which each of the Deputy Directors of Prosecution or Assistant Directors of Prosecution have been appointed shall be such as the State Government may, by notification, specify.

(12) The provisions of this section shall not apply to the Advocate General for the State while performing the functions of a Public Prosecutor.

COMMENT

Section 20 relates to Directorate of Prosecution.

It provides that state Government may establish Directorate of Prosecution in the State consisting of a Director of Prosecution and as many deputy directors of Prosecution and a District Directorate of Prosecution in every district consisting of as many Deputy Directors and Assistant Directors of prosecution, as it thinks fit and appointment, powers and functions thereof.

CORRESPONDING OLD LAW

This section corresponds to section 25A of criminal procedure code 1973.