Object, Extent and Scope Purpose of criminal procedure 1 The essential object of criminal law is to protect society against criminals@laz>y and lawbreakers, For this purpose the law poke rehash ete ments to prospective lawbreakers as well as attempts to. make the actual offenders suffer the prescribed punishments for their crimes. Therefore, criminal law, in its wider sense, consists of both t law and the procedural (or adjective) criminal law. law defines offences and prescribes punishments for the same, while the procedural criminal law is to administer the substantive law, Sm potonre The Penal Code, 1860 (IPC), together with the other penal laws like of, the Prevention of Food Adulteration Act, Protection of Civil Rights Act, Dowty Prohibition Act, etc., constitute our substantive criminal law. Conn Law. Obviously, this substantive criminal law by its very nature, cannot be self- ~~ operative. A person committing an offence is not automatically stigmatised and punisheds nor would the offender be, generally speaking, interested in confessing his guilt and receiving the sentence. Itis for this reason that the procedural criminal law has been designed to look after the process of the administration and enfor f the subs law. Tn the i absence of procedural law, the substantive criminal law would be almost worthless. Because, without the enforcement mechanism, the threat of punishment held out to the lawbreakers by the substantive criminal law ‘would remain empty in practice. Empty threats do not deter, and without deterrent effect, the law of crimes will have hardly any meaning or justi- fication, If “thieves” and “murderers” are not detected, prosecuted, and punished, what is the use of meticulously defining the offences of “theft” and “murder” and prescribing “deterrent” punishments for them. Our law of criminal procedure is mainly contained in the Criminal Procedure Code, 1973 (CPC) which has come into force fro Scanned with CamSeanner2° Chapter 1 Object, Extent and Scope 1.2 13 give adequately wide powers to make the Processes strong, effectiv judiciat officers. This oft 1974. It provides the machinery for the detection ote of suspected criminals, collection of evidence, ti or innocence of the suspected person, and the 3 ishment on the guilty person. In addition, the Cc tion of offences; [Ss. 106-2 2 si " shildren and parents; Ss. 12528) and public muisane %@Nce net The CrPC also controls and regulates the *S. (Ss, i > "i oe Me Working of phew 33~43} up for the investigation and trial of offences, On the one hari land estigative and Me, a et > @bpr, determinarins? rey MPOsiton of 0 hep Ode also deafe abe sit < 144-53] als with Pa ny, ind efficient, and to take precautions against errors oF indes ‘to provide safeguards against probable abuse of owers lancing of co involves “a nice bal; siderations, a delicate weighing of Opposing nition, and the extremely difficult task predominate”,! claims clamourin, f deciding Special importance of criminal procedure The basic importance of criminal procedure has to be borne itis the procedure that spells much of the differ and rule by whim and caprice.? In addition, the Procedure Code is based on three other special rence between mportance of a Criming] considerations:} (i) Teis more constantly used and affects ‘than any other law. (i) The nature of its subject-matter is such that human vales ae involved in it to a greater degree than in other laws (ui) As the law of criminal procedure is complementary of the substan tive criminal law, its failure would seriously affect the substantne criminal law which in turn would considerably affect the Protec: tion that it gives to society. Therefore it has been rightly said that too much expense, delay and uncertainty in applying the law of criminal procedure would render even the best penal laws usees and oppressive. 4 greater number of persons Basic considerations in the formulation of the Code of sei x While formulating the CrPC, the following considerations were therefor kept in views! 1. 57th Report, p, 1. SCC (Cri) 78 2: Iba! Ismail Sodawala v, State of Maharashtra (1973) 3 SCC 140: 1974 SCC 5 LONG 50 Se, 57th Repors, pp iz ; 4. Statement of Objects and Reasons, para, 53 also see, observations ofthe Raghava Nadar Reghu v, State, 1988 Cri L} 1364 (Ker), 1373: Kerala High OOO" piel Seanned with CamSeannerTerritorial Extent 3 o ae __ accused person should get a fair trial jn accordance with the coved principles of natural justice; 7 @ xe hould be made to avoid delay in investigation and ery effort s! every ° a shich is harmful not only to the individuals involved butal to the utmost extent possible, ensure fair s of the community, ‘o society and ‘procedure should i) the p fi) i | to the poorer sec errtorial extent va Territora Cds c the whole of India excep the Sete o-famma-and qhe CPC ete “bal areas This has been provided by sub-section (2) 2ehjon 1 5 flO: v jaarensto the whole of IndineweepesheSteteetfemmirand Kashe Shor il, extent and seeded thatthe provisions of this Code, other than those relating to commena Peon, X and XI thereof, shall not apply— Chaput’ che State of Nagaland, {h) to the tribal areas, but the concerned State Government may, by notification, apply such provi- aaeiive any of them to the whole oF part of the State of Nagaland or such tral areas, as the ease may De, W ith such supplemental, incidental or conse~ ial modificat 1s may be specified in the notification. oa aia section, “tribal areas” means the territories which immediately before the 2st day of January 1972, were included in the tribal cof Assam, as referred to in Paragraph 20 of the Sixth Schedule to the .¢ within the local limits of the municipality of areas Constitution, other than thost Shillong. Considering the social conditions prevailing in the Stare of Nagaland and the tibal areas mentioned above, it has not been considered desirable, at least for the time being, to extend to these areas the sophisticated provi- sions of the CxPC. These territories are having their own simple rules forthe administration of criminal justice. Moreover the provisions of the Code relating to Chapters VI 1 keeping the peace and for ’ good behaviour), X (Maintenance of public order and tranquillity), XT Preventive wetion of the police) have been made applicable to the State of Nagaland and the tribal areas. Further, the concerned State Government has been empowered to apply any or all of the provisions of the Code to any part of the State or such tribal area, According to the Supreme Court, since the Code is not in force in these areas, the procedure to be followed is according to the spirit of the Code and not strictly according = terms of its provisions. The Supreme Court has reiterated that the L peesilky of the provisions of the CrPC in the above areas is of lit- ah pues because in the context of Nagaland it has been held that fer e the provisions of the CrPC are not applicable in certain dis the State of Nagaland, it only means that the rules of the CrPC | : Seanned with CamSeannerF 4 Chapter 1 Object, Extent and Scope would not apply but the authorities w ‘ould be Boverng, of these ules. It has abo to satisty the stag’ OF faite gy vf in Article 21 of the Constitution, « se a [—~ In the case of the State of Jammu and Kashi, Part |e to legislate Limited because ofthe special aon ven mms & eee Article 370 of the Constitution. At present, Paciamene 8S “ to legislate for that State in respect. of Chimay Procedure, et poy ve eon. jurisdiction of the Code has not been extend, that pang D Basta? might create anomalies in certain situsei 8, but consideriny (ia relationship of the State of Jammu and ie ashmic wi 8 the that seems rather unavoidable, Scope of the applicability of the Code Pr th the rest of rs € Generally speaking, the CrPC is applica in S83 ofthe nga ¥ inquiry ot trial of every offence uiider th Substantive cp minal oe “| ether such offence is punishable under she in Funder any «Nee | local law! However, the rule is not undot; 'Bid. If the exigench® one i subject-matter or of the local conditions Fequite a special Procedine 4 allowed in respect of certain offences, the ¢ ‘de makes room fo shen 4 cial law and procedure and gives i precedes over the normal proce { Provided by the C:PC. This is clear from Sections 4 ands which a follows: 6 | Trial of offences £ {0 All offences under the Indian Penal Cove 45 OF 1860) shall be under the Indian Penal pated, inquired into, tried, and otherwise dealt with Code and other laws Sions hereinafter contained, (2) All offences under tried, and otherwise dealt toany any other law sha wit enactment for the tin investigating, ing s- Nothing contain, tothe contrary, affe any special jurisdictio prescribed, by When disciplinary Proceedings were i? Tespect of an offence, CrPC to such department “otherwise dealt with” h according to being in force din this Code shall, in it was attem, al inquiry. It was, in Section 4 refer t pted 0 $: Mow x. Supt, Special Jai (x 13 SCC 936: 1972 Pani 89721 4SCCIN) ase ag) goes (Cri) 247, 241 pradesh, (1988) « SCC 56: sys9 cc (Cri) 889: 1988 Crit for Huan Rights . Union of India, (1998) » SCC x & Zarzoliana v. State of Mizoram, 7 Khatri (4) v, State 1981 Cri L} 1736, x 1) 2 SCC 495; 1981 79) 4 SCC 229: 1979) a Robras . Stato of Seanné ing into, trying or atherwi: taken against | be investigated, inquired ima, 1 PrOvisioy lating the 1 se de: the sam ns, but subject os @ government servant the provisions of the however, held that the words ‘0 dealings with the offences 0 apply SCC (Cri) 2845 Saptawna v. State of 8; Srinivas Gopal v. UTof Arana LJ 1805; Naga People’s Movement 109 cri L975 SCC (Cri) 503, 507: 1981 Se SCC (Cri) 963, 9652 1979 Cri — | ed with CamSeannerApplicability of the Code 5 the Code which are apart from investigation, inquiry or trial ofthe uve, and nt 0 such disciplinary proceedings the CPC does not apply to contempt of court proceedings as contempt afcoutt is not an offence within Section (2). Further, ifthe contempt contempt or seedings are aken by the High Court under the Contempt of Courts 9 oeee proceedings are in the exercise of “special jurisdiction” within Ur ing of Section 5 and hence the provisions of the CrPC are not under the mean applicable 0 such proceedings rie jurisdiction given to ordinary criminal courts under Section 4(r) vould be excluded only when a special Act applies and the jurisdiction + courts to try particular cases under the IPC is specifically or ipded under chat Act by vesting such jurisdiction exclusively in the Gpewal Tribunals established under the Act." When no special or difer- ent procedure is provided by the special Act, the procedure provided by be followed." cof the reg! he Code is to yor investigating ‘or inquiring into an offence under the Bombay Prevention of Gambling Act 1887 a special procedure has been provided ee the Act. In case of such offence, Section 4(2) is applicable and the lure prescribed by the Act would prevail over the normal procedure provided by the Code." It has been ruled by the Supreme Court that Foreign Exchange Regulation) Act, 1973 (FERA) being a special law, containing provisions for avestigation, inguiry, search, seizure, trial and imposition of pun- shinent for offences under FEMA, Section 5.CrPC is not applicable in respect of offences under FEMA." al “The Juvenile Justice (Care and Protection of Children) Act, 2000 pre- scribes special procedure while dealing with offences committed by deine quent children, Such special procedure, according to Section 5, would prevail over the procedure prescribed by the CrPC. Section 27 of the prec which, inter alia, enables certain courts to try children for certain offences is only an enabling provision. As such, in relation tothe Haryana Childeen Act, 1974, it cannot be said to be a specific provision tothe con trary within the meaning of Section 5 of the Code.! Therefore that sec: tion does not affect the provisions of any State or Central Children Act. special proce ih Kairon, (1964) 1 iL} 2242 AIR 1964 SC 1137 (The decion ‘Code which corresponds to S. 4 oFthe Code of 1973) 9. State Padma Kant Malviya, AIR 1954 All 523 (FB) 10, Subhdov Singh Sodbi . Tea Singh x954 Cri L] 46e: AIR 1954 SC 186- 1. Bhim Sen v. State of U.P,, 195 Cri L} xoxo: AIR 955 SC 435, 12 Sal amar tie, Corp of Galettas (925-26) 30-CWN 598) Vista Pea Fahl Nintpal Corp AIR raz AP 4995 Badrinanan Sate, AIR 96 Nal 485 _Nihatan Sina. Lakshnd Narayan Ram Nios, (0968) Ci om AIR 1965 SC 1 13, Emperor Kaiten Dunning Fernad, LR (1907) 31 Bom 438 Ferman Fernando, AIR 1a ap Mad do The case wa under he Atha and Opi Aa, State of Rajasthan, (1996) 9 SCC 735: 1996 SCC (Cn) 1990, ae ar Ce arts So cal umes HTS 8. RP. Kapur v, Pratap was under . 5 ofthe old Seanned with CamSeannerbihmmi | | 16 Saving of inherent otters of High Court 6 Chapter 1 Object, B tent and Scope Inrespec of eteces passed by cone Marl onder th vig Amy As, the et off of preconvicton detention ung Secyg 8 the Ar held not applicable, The conflict among the High "4 Fe ics toon resolved by the Supreme Court in Ainge op Lallarrarael Consequent upon this dessin Sectign Ming aaa Seton 428 of the Code hasbeen enacted. A thi, spjo anlage the beneltof st offs available those sentence a Act, 1950. ‘ Bese Conroe ce sar Setsn {354 ofthe Cada, be applicable to those sentenced under the Army Actas theres ng nea or contrary provision covering the same area ine ik The Supreme Court has ruled that Section 37 Narcotic Dp Pagehotopic Substances Act, 1985, dealing with sran of special enactmen, general provision of Section 430 het ode has read subject to Section 37 in view of Section 4 of the Codes 8S ang ail, bing be Code how far exhaustive The Code has obviously tried to make iself exhaustive and comply every respect; and it has generally succeeded in this attempt, Hower if the court finds that the Code has not m ide ee the exigencies of any situation, the courr i owe the procedureto-enabe itso pass such orders asthe end of justice Ry require.” It has, however, been declared by the Supreme Court that te Subordinatecourts do not have any inherent power * The High Court ha inherent powers and that has been given partial Statutory recognition by enacting Section 482 which says: ade specific prov has inherent po 482. Nothing inthis Code shall be deemed to limit or ers of the High Court to make such orders to any order under this Code, or t (or otherwise to secure the ends of affect the inherent pow. 48 may be necessary to give eles © prevent abuse of the process of any cout justice, ie Daa ew held by the majority ofthe Full Bench of the High Court of Madhya Pade C Devin v. State of MP, 1978 Cay 85 (FB) (MD) has been held by the Supreme Court as erroneous. Ibid, $23. Soe fib0, Rohtas . Sate of Haryana, (1979) 4 SCC 3 SCC (GH 965 965:1978 Crit] a365, 1: Seoranotien 0.6. Armored Sen Workshop, 1979 Cri LJ 617 (Ker, Bu secon fou betta Clif of ir Staff ore ce LJ 65 (Del) 1.5, Romani, Supt of ro, ie 1984 Cri LJ 892 (Mad), ab 388 42-2587 SCICeH 9: agp Cr Uy 8>9, 18. Union of india v. Sadho ‘Singh, (1999) 8 SCC 375. 4999 SCC (Cri) 1442. Gi 1. Narcotics Conrol Bureaus ki al (a9g1) x SCC 705: a991 SCC (Ce) 2651991 654, 20. Akhil Bandbu Ray thakor Sadi AR '5t; Nagen Kundu v. Emperor, ILR (1934) 61 Cal 498-40 5 Gemyat Seton usr sue Cine en Ee PS ewes SN, Than toa SCC 709; 1986 SCC (Cri) 24g: 1986 Cri 1074 pte (3938) 39CtiL] 596 AIR 1938 Cal gh Kruhna Mohan 983 Ori 2, Seanned with CamSeanner | 1 1 t 1 aChapter 2 Constitution of Criminal Courts The functionaries under the Code a The functionaries exercising powers and discharging duties under the Criminal Procedure Code, 1973 (CrPC) ate: 1) the police; 2) the prosecu- tors; 3} defence counsel 4) Magistrates, and judges of higher courts; and™ 4) the prison authorities and Correctional Services Personnel-Rinongst these the role of the Magistrates and courts is pivotal the other function- ares ar, in a way, accessories only, Tes therefore expedient to consider ftst,the Constitution and hierarchy of the criminal courts, thee terit rial jurisdictions, and theit powers, Territorial divisions 2.2 Iris obviously expedient to have suitable territorial units for the purposes of administeation whether judicial or otherwise, The size and the number of such units would depend upon the needs of the administration. The entite territory of India consists of States, and for the purposes of the Code, the basic territorial divisions of a State are the districts and the Sessions Divisions. According to Section 7, every State shall be a Sessions Division or shall consist of Sessions Divisions ied easy SeSmonS DOE shall, for the purposes of this Code, be a district or consist of disttets, Further, after consultation with the High Court, the State Government can divide any district into sub-divisions, and can also alter the limits or the number of such Sessions Divisions, districts, or the sub-divisions of any district, __ The Code has also considered the special needs of big cities like Bombay, aleutta and Madras and has recognised such cities as separate territorial (nits and designated them as metropolitan areas, For the purposes of the {ode each metropolitan area is to be considered as a separate Sessions sion and distriet,! For the metropolitan areas, the Code has envisaged 1 Se proviso osu) of. Seanned with CamSeannerg Chapter Constitut 23 rion of Criminal Courts a set-up of courts dif ret ro thon died othe oth ga ‘ ° ha “the administration ofcimigh tf Stage It Has bee ce of special treatment. The magic ey large cities req gualifed and more competent to deal expe tie CE aes, particulacly in the socio-economic fg th SE ee Dresiency-sones of Bombay, Caleta and My vorresesal work was inthe hands of special category of Magi’ Lae te Presidency Magistrates. Usually persons anpcined as pepper es Eig quolifcarions x: expetaice and were pe se Se sccens. The procedure followed by these Magisans oie The apne bavog been found useful in reaps of aga ci, nas adopted for he ty of Ahmedabad by aa a Ng Code sapere othe metopoian areas. er dear eh fhe Peserey toss of Bos Coleus and age andthe iy of Abmedsbad a a meropolan area and fader en th Sa Goneramen ro desare hat a en the Saeco 4 ciy or town whote population exceeds one millon shall bee politan area for the purposes of the Code. The section also empowers the Sat to extend, reduce, or ater the limits of such area but nr ee dace the population of such rea ess than one millon I heron ton ofa metropolitan are in fac falls below one milion, suck ora shall cease to be a metropolitan area on the date specified in this behalf by the State Government concerned, Classes of criminal courts The Supreme Court of India and a High Court for each State have been zeae by the Constitution and their jurisdictions and powers—incldig those in respect of criminal matters—are well defined in the Constcuton {eel In addition, the CxPC makes provision of appeal to the Suprene Gourtundescertan circumstances, andalso enables the Supreme Crarte transfer, in the interests of justice, cases and appeals from one High Court CaMtter High Courtor fom one criminal court subordinate to one High lurt to another criminal court subordinate to another High Court.t The tution, Article 227, provides that every High Court shll have ce over all courts and tribunals throughout the ter ‘Htories in relatic : ises jurisdiction. The CrPC further Provides that every Hi : - Seanned with CamSeanner eeues xe 2 SSS FLPR RSE sif ain anaesClasses of Criminal Courts 9 _custed every High Court with au jevery Hig merous powers a! ies i > relating to appeals and revisions. meee Supreme i 3 Se et ourt and High Courts the following classes ¢s have been described by Section 6 which is as follows: h Courts e s and the Courts constituted under any law, other sere shall be, in every State, the following classes of Criminal, “res of the first class and, in any metropolitan area, the second class; and = courts constituted under any law, other than this Codd | include court lke the Children’s Courts under the Juvenile ysrice (Cate and Protection of Children) Act, 2000, or the courts called ~ oe “Panchayati Adalats” constituted under the i Raj Acts, or the speciatcourts established under | Law Amendment Acts. crn Executive Magistrate is one of the classes of courts, that aoa xe functions administratively and nor judicially s a court.® adiciary from the executive ns the courts of Executive Magistrates a5 separate cat- earn the courts of Judicial Magistrates This marks the ation of the judiciary ftom the exee ne policy of the separ ¢ the Magistrates used 4 to perform both judicial They were appointed, superv’s and of atte sevies and ubsmately by the State Our Constitution has directed that che State sball take steps “he judiciary from the execonve in the public services of the cordingly some States ried £0 implement the direction in theie However, the jimplementation of the Constitutional direction eaher full nor uniform: The ‘Code, in accordance with the recom: dations of the Law Commission,® executive on an al Reference f0 separate courts “sh Court's comple separation of j tion 6 mentic . Forme d axecutive duties higher executive aut jy, mostot Government own ways. the judiciary from the ity in this matter. as constituting quent rovisions relating to the PBN A. 3 ‘would indicare the aniformi Magistrates trol over the Judicial Magistratt® ofthe judiciary from the execu & Mammoov. State of Kerala, 1980.8 ry cnoo) 75 (K © Aer goat the Consirtion of nda: gist Report, p14 BEE 2° Classes of Criminal Courts 24 ‘Seanned with CamSeanner10 Chapter? courts criminal CO" ono sttuti or eparation ne of this form oF SEPOFAION ist gy The rel PoP ofthe juicy. It is implicit in the et the joning ¢ ould be in any way - pendent futon ate wot an WAY connee Ja uld be in direct administrative subocding po judge oF Jue recution HOF a ake prosecuti with ene d { wit it is of special significance and ; te jon. In a criminal trig} proseciton Las th ne conne prosecuting partys nortan the dof all suspicion of executive influenge ‘anys fre iudiciary_is Fi sparation incidentally ensures ¢ the The separa t indirect bs ie entire devote their tim £ jency in the administra 0 fon fair deal to the accuse tion co ensuring he quality an su impo a A alifed an | trained taaistraces would be legally qualified and trained cose siecision of the High Court ith For proper separation of the judiciary from the execu two categories “of rect 0 Ithas be ation of justice separation as provideg speed of disposal peed of disposal, 1 earl s mentioned earlier has contemplated, as mentic we q = agistrates, and the Executive Magistrates, The. trates—Judicial Magistrat rates. Thea 1 Court, while the latter are un der th are under the control of the Hi control of the Stare Government. essentially judicial in nature are the concern of th while functions which are “police” or administrative in n concem of the Executive Magistrates." adly speaking, function whig he Judicial Ma 2.5, Court of Session For every. Sessions Division the State which shall be presided over by a judge to be appointed (his dow at refer to the first appointment) by the High Court. [S. 9(2), (3); The High Court may also appoint Additional Sessions Judges and Assistant Sessions udges to exercise jurisdiction in a Court of Session [S- 9(3}f; The Coat of Session shall ordinarily hold its sitting at such place or places asthe High Court may, by notification, specify." [S. 9(6)]; A person appointed shall establish a. Court of Sse a. Sessions Judge, Additional Sessions Judge or Assistant Sessions Judes } would be exercising jurisdiction in the Court of Session and his udgmens ‘and orders would be those ofthe Cours of Session," 1 The Additional Sessions Judge (or the Assistant Sessions Judge) exe i cise th x E sctibed bef @ Court of Session, subject to the limitations pe 7#2W, but isnot an independent Court of Session. All Assist 10 th Repory, Vo, 850, para, 2 Noten tof Objects and Reason ara. 4 Seanned with CamSeannerSeanned with CamSeanner aa1p chapter? © a 2 28 29 a6 GH nstiution of C minal Courts cial Magistrates ; control other Judicial Magistrates in the Aistricg ‘ise and Ct i supervis eh ; cases. hy important Magistrate — also try nal Chief Judicial M ee High " (9 Addition a1 Magistrate of the First Class tg be an pty a oe Bo algise, and a Magiat a have aly “ Chief Juaien Chief Judicial Magistrate as the 8h Court me *y vers of a Chiel May 4 the powers 0! 7 Ming, [5.220] Magistrate —The High Co, Divisional Judicial Ma J th al Magisate of the ies Chin ay subg ops alJudiial Magistrate Sabject tothe general eye jisiona Ma g _ eae dial Magistrate, such Sub-Divsional Magia an ee sch powers of supervision and contol over the Hoty 5 cial Magistrates other than Additional Chief Judicial ‘k Judi | Magic , ais the subdision asthe High Court may specify. 6. 13/9 i of te Local jurisdiction of Judicial Magistrates Subject to the control ofthe High Court, the Chief may, from time to time, define the local limits of the areas With whi the Judicial Magistrates may exercise all or any ofthe power hich thy night be invested under the Code. But ifthe jurisdiction and powers oy Judicial Magistrate are not so defined, they shall extend throughout de district. (S. 14) Judicial Magia Subordination of Judicial Magistrates vey Chief Judicial Magistrate shall be subordinate to the Sessions lad; and every other Judicial Ma gistrate shall, subject to the general conini of the Sessions Jui ge, he subordinate to the Cl rief Judicial Magista IS ss(0] The Sub-Divsional Judicial Magistrate also, subject to tie aera control ofthe Chief Judicial Magistrate, shall have nl ee Akh powers of supervision and control over the work of the Jui Magistrates (other than Additional Chief Judi : icial Magistrate) in his sib division as the High Coure may specify. [S. 12(3)] Courts of Metropolitan Magistrates Asina distri feb every metropolitan area will have almost ap trates. In every metropolitan area, the State cone ee cmsultation with the High Court, establish oe Topolitan, lagistrates ar h umber as it sis ran at such places and in such nui oe Presiding ofcersofsach courts shall e appoint ur, and the juris cand throughout the ita Mazistrate as Chie diction and powers of every such a metropolitan aes, |S. 63), (3 Like area, the High Court shall appoint a Metrop® a Politan Magistrate. It may similacy appoit, Seanned with CamSeannerMetropolitan Magistrate and such Magistrate shall have rs of 2 Chief Metropolitan Magistrate as the High ugh the Code makes a specific special provision other than a metropolitan area) for the establish- +s of the Judicial Magistrates to try any particular it does not likewise provide for the establishment tropolitan Magistrates. Subordination of Metropolitan Magistrates 2.10 f 1 Magistrate and every Additional Chief © ate shall be subordinate to the Sessions Judge; amc politan Magistrate shall, subject to the general control of ¢ subordinate to the Chief Metropolitan Magistrate. ‘poses of the Code, the High Court may define the , of the Additional Chief Metropolitan Metropolitan Magistrate. [S. x9(2)] special Judicial Magistrates and Special Metropolitan Magistrates The High Court may, if requested by the Central or Stare Goverament soto do, confer upon any person who holds or bas 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 che Fisse Class or oft Class or on a Metropolitan Magistrate, as the case may be, in respect 10, particular cases or to particular classes of cases, in any district or metro politan area, as the case may be. It may, however, be noted thar no such power shall be conferred on a person unless he possesses such qualifi- cation or experience in relation to legal affairs as the High Court may, by rules, specify. [Ss. 13 & 18] The persons on whom the powers of @ Judicial Magistrate or of a Metropolitan Magistrate have been conferred are to be called as Special Judicial Magistrates or Special Metropolitan Magistrates, as the case may be-————_~ . (b) Special Magistrates could be appointed by the State G even under the earlier Code of 1898. These Magistrates pendiary and were called as Honorary Magistrates. It was that the appointments of such Magistrates were ma n extraneous considerations and not on the basis also widespread criticism against the working of th Magistrates. In some States the practice of ap a therefore given up. However, in certain od appointing retired government officers as Specia "Se supra, ara, 26a proviso oS. 1) Seanned with CamSeannerof criminal Courts with advantage. Tt has that, “The Honorary cen adored ae Ose im as such, I chy = relief to the stipendiary Magistrates i their work 4 ve reli is of «petty eve which does noe rg ficial officer and which would y ases had be syste! in favour © ro gi ork entrusted in jud . by a trained ‘ : : et" Magistrates. The institution ofthe Te Ong js also ethod of associating the pubic vs al administration. Further, it has been pointed gg nd naccessible Localities OF 7 with thin populate’ : ay nor justify *Re ar Moet ea practice in some States to confer the 2 focal officer of Government, like the vinal eases arising in such areas. This will ys ho otherwise would have to travel aloe intended of the W wid be de: clog the files Magistrates criminal judic of Stipendial helpful as a me ial ppointment of a full-time Magi sin rem tra available work ™: ations a at a ub Regi In such sit of a Magistrate om o dispose of the few ct to he lcalinabitans wh? OP distance to reach & Magistrate's Court iq For these reasons, the nabling provisions contained in Section and 18 have been enacted, and the system of Honorary Magistrates by a Mnodified form. It may be noted that according : been continued in 3 1 4 vthe persons 0 be appointed as Special Magis Sections 13 and sect ether persons in- government SEV F those who have retired from government-services i) the persons 70 be appointed as Speci Magistrates must have the qualifications and experience-as prescribed y che High Cours) the appointment is 10 be made by the High Court apd eee by the State Government; iv) the appointment is 10 be for a period na ‘Exceeding one year ata tint v) according to Section 13(3) the High Count ‘hay empower a Special Judicial Magistrate to exercise the powers of Metropolitan Magistrate in relation to ‘any metropolitan area; 1) in fly agcordng to Section 18(3) the High Court or the State Governet aatke case may be, may empower any Special Metropolitan Magia oeverise, in any focal area outside the metropolitan area, the power Judicial Magistrate of First Class. It is rather difficult to understand why “the State Government has heen authorised, along with the Hig uty h Court, K under this sub-section. This is unlike the abovesaid Section x3(3) and Sipairsto be somewhat inconsistent with the scheme of separation of iudiciary from the executive. a 2.12 Executive Magistrates () Executive Magistrates are appointed for petfrming mage functions allotted to the executive. This becomes essential while imple meting the plc of separation of the juiiry from th executive: 9 ery district and in every metropolitan area, the State Governmem ns 19. r4th Report, Vol. 11, 20, Jot Commies Repos, pi, Se Seanned with CamSeannerExcoutive Magistrates 15 ont as manty persons as it thinks fit to be Executive Magistrates and vit one of them to be the District Magistrate, |S, 20(t)] The nent may also appoint any Executive Magistrate to be an Tudo District Magistrate who shall have such powers of a District tauistrate as may be directed by the State Government. (S. 26(2}] Further, the state Government may place an Executive Magistrate in charge of a sub-division and such Magistrate shall be called as the Sub-Di Magistrate. {S. 20(4)] The State Government's power to deploy State Gover ional ecutive Atasistrates as it) charge of sub-divisions can now be delegated to the District Magistrates facilitating quick deployment of magistrates at local lec, New subsection 4-A has been incorporated enabling the State Governments to do so. jh Iinsome States, particularly in some metropolitan areas, the practice + conferring on. Commissioner of Police some magisterial powers of an oSeutive nature has already been in vogue, The Supreme Court had occa- se to dwell on the powers of the State Governments, to appoint District Magistrate for the purposes of the Immoral Traffic (Prevention) Act, 1956. Kealing sub-section (1), (2) and (3) in conjunction, the Supreme Court in AN. Roy v. Sttesh Shant Singh®, held that the State has power to, spain the Commissioner of Police of Birhan, Mumbai, which isa met- ropolitan area as an Executive ‘Magistrate and to further appoint him as an Additional District Magistrate who shall have the powers of a District Magistrate. This well-established and smoothly operating arrangement, if author- ised by iny local law, has been allowed to continue by sub-section (5) of Section 20. But where this is not done, and also for discharging other functions of the Executive District Magistrate, each metropolitan area shall have au Executive District Magistrate as provided by sub-section (1) of Section 20. Special Executive Magistrates Section 21 provides: si. The State Government may appoint, for such term as it may think fit, Frecutive Magistrates, to be known as Special Executive Magistrates, for particular areas or for the performance of particular functions and confer ‘on such Special Executive Magistrates such of the powers as are conferrable under chis Code on Executive Magisteates, as it may deem fi. 21. Vide subs (4A) incorporated by the Code of Criminal Procedure (Amendment) Art 2095 (het 25 F008) 22. See, AN. Roy ¥. Suresh Sham Singh, (2006) 5 SCC 745+ (2006) 3 SCC (CA) 75, 23, M Nerayanasamy w State of TN. 1984 Ci kJ 1583 (Mad) See alto, Kadra Pahadsa State of Biba, (1997) 4 SCC 387: 197 SCC (Cai 553+ 2.13 Special Executive Magistrates Seanned with CamSeannersferred by the Court of can be made under Section Sub-Divisional Magistrate is subordin 216 Sentences which the courts may pass (a) AHigh Cou (b) A Sessions Jude sentence authorised by law. judge shal be subject to conf (An Assis lawexce essions Judge may pass a sentence of death or of im ‘nent for a term exceei W excepia sentence ¢ waren 26, Sa of Cot ke Scanned with CamSeannerSentences Which the Courts May Pass he First Ch s ora Metropolitan Magistrate ence of imprisonment for a term not exceeding three years, eatceet five thousand rupees, or of both. [Sv a9(a) read” : ate of the second class may pass a sentence of not exceeding one year, or of fine not exceeding va cupees or bork, [S>zo¢s) react with S. 29(4)] , Divisions [Ss. 12), 7&8 ABLE t nan citar a separate Civon nd Ost) TABLE 2: Hicrarchy of criminal courts Sessa Courts 3. Atal Sess ade ats Chet Merogeltan (het ia Magitate Magstate et Metropolitan Nagas) 1 Special Metropolitan agitate Honda) (bition Chi dial Magtate) Sat Divisional dil Magistrates, Pee ~ ‘Special Judicial Judicial ‘Special usical Nagas Nagottesot Nagas at First lass, ‘Second Cass, ‘Second Class Seanned with CamScanner v: of Criminal Courts + Constitution of CH ; yg. chapter? TABLE 3: Semence whic a supreme Court High Court i Assistant Sessions , _ vu * Yea Chief util Moa | om B10 a Chie Metropoita : : er | = MUP rei i ine upto soon fe Vides 5 lodeot inital Pred x ft TABLE 4: Hierarchy of Executive Ma " agitate a Special rect Magistie —d Seanned with CamSeannerChapter 3 Police, Prosecutors, Defence Counsels, Prison Authorities ‘The police Having considered che constitution and jurisdiction of criminal courts in the preceding chapter, it is proposed ro discuss in this chapter the other functionaries under the Code, namely, the police, the prosecutors, the defence counsels, and the prison authorities as well as the correctional services person : The ordinary criminal courts originate from the provisions of the Criminal Procedure Code, 1973 (CrP). In the case of the police force it is somewhat different, The Code presupposes the existence of the po and police officers; and ir only arms them with certain powers and them to discharge certain duties. Function and organisation of the police: The Police The police force is an instrument for the prevention crime.’ Every State Government establishes its own police: formally enrolled. The force consists of such number and is constitured in such manner as the State 1 The Paice Ace, Eats 6, Pree Seanned with CamSeanner33 5, Prison Authorities i General of Police (oF Dey Inspector PULY 0 4 ‘¢) and the District Superintendery i : Defence Counsel athe Is J of Polic i isu Superintendent of Police) receives istrict Horm by virtue es of police returned forth 8 certie, Ole ica of which he is vested with the pow officer. The certificate shall ceayp ith when the poli Assistant prescribed and privileas ana shall be police office 5, fun toh f beef, officer ceaye Other Police a rhe Police Act, 1 Te ebringatsof00 mre States and extend Pr cof such district the powers and jurisdiction of a police fore py pat of te specie by the Central Government, Ths, of gar Fron only with the concurrence oft State Governme The Police Act, 1949 creates a police force forthe following the patern ofthe Police Act, 1861 The reorganisation of police has been on the agenda of the Stay Governments and Central Government for quite sometime in fe commissonscommittes have gone into this question and made man recommendations. Despite the lapse of several years no action wast by the Central Government or the State Governments, The Suen Court was therefore approached by way of a public interest litigation compelling the government to act. Thus in Prakash Singh v. Union India, the Supreme Court issued some guidelines as to the police and directed the States and the Centre to reorganise their police setapss envisaged in its judgment. Several States are however yet to reorganistie police accordingly. The Delhi Special Police Establishment Act, 1946 has played an inp tant leading roe in police operations in recent years. The Act provides fr the constitution ofa special force in Delhi for the investigation of ces specified offences inthe Union Territories and also provides for theese sion ofthe operation of this police force to other parts of India with te concurrence of the State Governments concerned. The image of Cental Bureau of Investigation’s (CBI) impartiality and independence has os made the public to demand investigation by it in preference to inestie> tion by State police. And bypassing the inherent restrictions in Section 3 fant 5 ofthe Act, the judiciaty used to order investigation by the Hshas been ruled to be valid by the Supreme Court.° 8 enables the Central Government to crea COU, MRS concer ion Terie 4 id 8 Seal, up. of Police, Duar Das f579) 3 SCC ry: AIR 91 SOH $2006) 8 SC 1: (2006) 5 SCC (Cri) 5 Se ee. ont i Rech Za Sania Pry, gs SC a: gy CL 68H se a9t CLS 425 (De, ‘ona SO WB. v, Committee f ete) $0c (a on mt or Protection of Democratic Rights Scanned with CamSeannerat of ordering reinvestigation by the Stare police after withdraw- ‘en to the CBI earlier under Section 6 of the Act. The xj that the withdrawal of consent to enable the State her investigate into the case was patently invalid as the CBI «to further investigate into the case.? ‘wv providing for investigation into the corruption igher-upsin theadministration has made the Supreme «comprehensive legislation making provision for free- * Accordingly the Central Vigilance Commission 33) reconstituting the Central Vigilance Commission to force. Pole under the Code 34 conters specific powers, for example, « members of the police force who are enrolled as police 4 vowers have been given to police officers who are in sce stations. Such station-house offices are also required to ae ee Government, t0 bea police The ordinary meaning of the words “officer in Jon” has been purposely broadened by clause (0) oF 7 behalt™ Jel. (s) of ge of police s tion 2 which says 2. 0) “otfiver in charge of a police station” includes, when the officer in charge Definitions ofthe police station is absent from the station-house or unable from illness or other cause fo perform his duties, the police officer present atthe station= ; fase wh next in tank to such officer an is above the rank of constable 2 oe, when the State Government so directs, any other police officer so present; This only shows the importance of the duties of the station-house officer and the concern of the Code for their prompt discharge. Police officers above the rank of a station-house officer are invested with the powers of the station-house officer but over larger local limits. Section 36 of the Code says: 36. Police Ocerssperioe in rank 1 an ofcetia cease a SE may exercise the same powers, throughout the local area to which they are_ appointed, as may beesuce by soc ofr within mis of Hs sao 2K. Chandetha State of Keil) 5 SEC Vineet Narain. Indias Seanned with CamSeannera Is, Prison Authoriti Counse es , Defence n by the Code to hows the key role given | ; le tO Dolice g 7 gain shows prevention of crime on, soe xe ofthe word “80 General, Vigilance. the fy Te Ue ficers. If the Inspector-G ice seach th of Se of polie "cto an officer in charge of a police station, Could jn Tipe rior in tM exercise the powers of an officer in charye Of a pop Yay Seetion the local area to which he has been pointed jn hee throughoue the lo entire Bihar State ic Prosecutors Public Prose against the individual Aetime isa wrong. not only oy victim ut agg society alge. Ii because ofthis consideration thar Sa ranting the people in their collective eapacity, Participates in I: i ginst the person accused of crime more para an cule “resi trial as party theerime ia cognizable offence. The Public Prosecutor gf ake Assisten Public Prosecutor is the counsel for the State in such eng His digi mainly consist in conducting prosecutions om behalf of State, Public Prosecutor also appears as State Counsel in crime appease so and sh oer mates the Sess Cinta he te a The Public Prosecutor should not, however, appear on belt of accuse The Publie Prosecutor or the Assistant Public Prosecutor hag authority any court in any case entrusted to him, 50 appear and plead before With the consent of the court he can withdraw from the Prosecitog against any person. (S. 321] He can give advice to the police o other poy ernment departments with regard to the Prosecution of any person ifhis advice is so sought According to the pattern set by the CrPC, while Public Prosecutors (including Additional Public Prosecutors and Special Publie Prosecutors) areto conduct prosecutions and other criminal proceedings in the Sessions Courtsandthe High Courts, Assistant Public Prosecutors are appointed fr “Conducting prosecutions in the Magistrates’ Courts, According to thepre Yailing practice, in respect of cases initiated on police reports, the prosec: tion is conducted by the Assistant Public Prose tutor and in cases initiated ona private complaint, the prosecution is cithe conducted by the complain Ant himself or by his duly authorised counsel. In such cases also the State {un appoint prosecutors if the cause has Public interest."" According to the formal definition given by clause (u) of Section 2, Public Prosecutor means any Person appointed under Section 24, and includes any person acting Under the directions of a Public Prosecutor”, Assistant Public Prosecutors 72, 281-821 1980 9, Sta ie eof Bihar, J.A,C, Saldanha, (1980) x SOC 554: 1980 SCC (Cri soi 9 10. Sunil Kumar Paty, hota Sheikh (1984) 4 SCC 5331 1985 SCC (Cri) 18: AIR 1984515? also, Kannappan v, Abb i" anv. Abbas, 1986 LJ 1022 (Mad), Mukul Dalal y, Union of india, (1983) 5 § 1C 1442 1988 SCC (Cri) 566. Seanned with CamSeannerPublic Prosecutors 23 1 covered by this definition as they are not appointed under are not eae same time they have not been defined separately Section » Public Prosecutors and Additional Public Prosecutors for 3.6 High Courts Fs gomnection the following points may be noted: Intl 4 person shall be eligible to be appointed in High Court as Public Prosecutor if he has been in practice as an advocate for not less than seven years; (S-24(7)] however, it has been clarified by svarion 24(9) that the period during which a person has been in ractice a8 a pleader, or has rendered (whether before or after the Priamencement of the Code) service as any prosecuting officer, by whatever name called, shall be deemed to be the period during ‘hich such person has been in practice as an advocate. jy The appointing authority can-make the apporntment only after consultation with the High Court. (S. 24(1)] i) The Central Government shall appoint a Public Prosecutor and nay also appoint one or more Additional Public Prosecutors for conducting in a High Court any prosecution, appeal or other pro- ) 3 SCC 279: 987 SCC (Cri) 7521987 Call} 7785 ‘Sheonandan Paswan . State of Bibar, (1987) x SCC 288: 1987 SCC (Cai) 82: 1987 Ca] 7935, Shrilekha Vidyarthi 1 ¥, State of U.P, (agys) x SCC 2122 199x SCC (LCS) 74% State of TN. ¥. Le Ganesan 1958 GtiL) 9849 (Mad); Manu Sharma v State (NCT of Delhi) (2070) {6SCC 1: (2010) 2 | (Cri 585: AIR 2010 SC 2352. Seanned with CamSeanner