crpc

CHANAKYA NATIONAL LAW UNIVERSITY

PROJECT ON CRIMINAL LAW-II:-

“ROLE AND RESPONSIBILITY OF COURT IN A CRIMINAL TRIAL & POWER OF APPELLATE COURT”

PRESENTED BY: - DEEPAK KUMAR

B.B.A. LLB, 4th SEMESTER, 2nd YEAR

ROLL NO: - 1015

SUBMITTED TO: - FATHER PETER LADIS F

1 | P a g e

ACKNOWLEDGEMENT

I Deepak Kumar would like to express my special thanks of gratitude to my Criminal Law-II teacher FATHER PETER LADIS F who gave me the golden opportunity to do this wonderful project on the topic “Role and Responsibility of Court in a Criminal trial & Power of Appellate Court” and also for his guidance and constant supervision as well as for providing necessary information regarding the project & also for his support in completing the project. I am very grateful to his exemplary guidance.

However, it would not have been possible without the kind support and help of many individuals. I would like to extend my sincere thanks to all of them.

I would like to express my gratitude towards staff members of library for their kind co-operation which helped me in completion of this project.

My thanks and appreciations also go to my colleague in developing the project and people who have willingly helped me out with their abilities.

2 | P a g e

TENTATIVE CHAPTERIZATION

1. INTRODUCTION

2. STRUCTURE AND CONSTITUTION OF THE COURT

i. DISPOSAL OF CRIME BY THE COURT

ii. EFFICACY OF CRIMINAL JUSTICE SYSTEM

3. ROLE AND RESPOSIBILITY OF THE COURT

4. APPELLATE COURT AND THEIR POWERS

5. CONCLUSION, SUGGESTION AND CRITICISM

3 | P a g e

1. INTRODUCTION:

Law is an instrument of social control. It is a rule of conduct. The object of law is to

maintain peace and harmony by avoiding disputes and offences. It is the prime duty of a

State to protect the rights and liberties of its people, to secure the innocent and punish the

guilty. In every civilized society governed by rule of law there is a criminal justice system

in place for this purpose. The Indian legal system derives its authority from the Constitution

of India and is deeply embedded in the Indian political system. The presence of judiciary

substantiates the theory of separation of powers wherein the other two organs, viz.,

legislature and executive stand relatively apart from it. The judiciary is divided into two

parts for dealing with legal disputes and offences viz., courts dealing with civil cases and

courts dealing with criminal cases.

The prosecutors have been appointed by the Government to conduct criminal cases before

Courts of Law. However, disputes relating to property, breach of contracts, wrongs

committed in money transactions, minor omissions etc are categorized as civil wrongs. In

such cases civil suits should be instituted by the aggrieved persons. Courts of law

administer justice by considering the nature of the wrong done. Criminals are convicted and

punished before criminal courts. Civil wrongs are redressed before civil courts by granting

injunctions or by payment of damages or compensation to the aggrieved party1.

We have a four tier structure of courts in India. At the bottom level is the Court of Judicial

Magistrates. It is competent to try offences punishable with imprisonment of three years or

less. Above it is the Court of Chief Judicial Magistrates, which tries offences punishable

with less than 7 years. At the district level, there is the Court of District and Sessions

Judge, which tries offences punishable with imprisonment of more than 7 years. In fact, the

Code specifically enumerates offences which are exclusively triable by the Court of

Sessions. The highest court in a state is the High Court. It is an appellate court and hears

appeals against the orders of conviction or acquittal passed by the lower courts, apart from

having writ jurisdiction. It is also a court of record. The law laid down by the High Court

is binding on all the courts subordinate to it in a state.

1 http://www.indianetzone.com/3/indian_judiciary.htm, retrieved on 26th April, 2015.

4 | P a g e

At the apex, there is the Supreme Court of India. It is the highest court in the country. All

appeals against the orders of the High Courts in criminal, civil and other matters come to the

Supreme Court. This Court, however, is selective in its approach in taking up cases. The

law lay down by the Supreme Court is binding on all the courts in the country.

2. STRUCTURE AND CONSTITUTION OF THE CRIMINAL COURTS

i. STRUCTURE OF THE CRIMINAL COURTS

India has a quasi-federal structure with 29 states further subdivided into about 601

administrative districts. The Judicial system however has a unified structure. The

Supreme Court, the  High  Courts  and  the  lower  Courts  constitute  a  single  Judiciary2.

SUPREME COURT OF INDIA

The Constitution establishes the Supreme Court and defines its jurisdiction and powers3.

The Supreme Court of India is the top of the Indian Judicial System which is situated in

the capital city of our nation the New Delhi. The Supreme Court is presided by the Chief

Justice of India with 25 Judges. Depending upon the nature and technicality of any matter,

the justice is delivered by the Apex Court through various benches, such as the Divisional

benches of 2 and 3 judges; the Full benches of 3 or 5 judges or constitutional bench of 5 or

7 Judges.

HIGH COURT

The Constitution provides establishment of a High Court for each State and generally

defines the jurisdiction of such High Court4The High Court of every state is the highest

court of such state which is immediately below in hierarchy to the Supreme Court of India.

The High Court works under the direct guidance and supervision of the Supreme Court of

India. The High Court is the uppermost court in that state, and generally the last court of

regular appeals. In some states there is only one High Court and at some states there are

Principal benches and circuit benches.

SESSION COURTS- The state is to establish a session court for every session division.

The court is to be presided over by judge appointed by a judge appointed by the High

2 http://www.articlesbase.com/national-state-local-articles/hierarchy-of-indian-judicial-system-3877336.html, retrieved on 26th April, 2015 3 Article 124-145 of the Constitution.4 Article 214-228 of the Constitution.

5 | P a g e

Court. The High Court may also appoint Additional Session Judges to exercise jurisdiction

in the Session Court.

ii. CONSTITUTION OF CRIMINAL COURTS

The Criminal court means and includes every judge or magistrate dealing with Criminal

cases or engaged in judicial proceedings.

Section 6- Classes of Criminal Courts- Besides the High Courts and the Courts

constituted under any law, other than this Code, there shall be, in every State, the

following classes of Criminal Courts, namely:-

i. Courts of Session;

ii. Judicial Magistrate of the first class and, in any Metropolitan area,

iii. Metropolitan Magistrate; Judicial Magistrate of the second class; and

iv. Executive Magistrates.

Section 9- Courts of Session

i. The State Government shall establish a Court of Session for every session division.

ii. Every Court of Session shall be presided over by a Judge, to be appointed by the

High Court.

iii. The High Court may also appoint Additional Sessions Judges and Assistant

Sessions Judges to exercise jurisdiction in a Court of Session.

Section 11- Courts of Judicial Magistrates

i. In every district (not being a metropolitan area), there shall be established as many

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.

ii. The presiding officers of such Courts shall be appointed by the High Court.

Section 12- Chief Judicial Magistrate and Additional Chief Judicial Magistrate,

etc.

i. In every district (not being a metropolitan area), the High Court shall appoint a

Judicial Magistrate of the first class to be the Chief Judicial Magistrate.

ii. 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 Code or under any other law

for the time being in force as the High Court may direct.

Section 13 – Special Judicial Magistrates

6 | P a g e

i. 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 Code on a Judicial

Magistrate[ of the first class or of the second class, in respect to particular cases or

to particular classes of cases, in any local area, not being a metropolitan 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.

ii. 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. The High Court may empower a Special Judicial

Magistrate to exercise the powers of a Metropolitan Magistrate in relation to any

metropolitan area outside his local jurisdiction.

Section 15- Subordination of Judicial Magistrates

Every Chief Judicial Magistrate shall be subordinate to the Sessions Judge; and

every other Judicial Magistrate shall, subject to the general control of the Sessions

Judge, be subordinate to the Chief Judicial Magistrate.

Section 16- Courts of Metropolitan Magistrates

i. In every metropolitan area, there shall be established as many Courts of

Metropolitan Magistrates, and at such places, as the State Government may, after

consultation with the High Courts, by notification, specify.

ii. The presiding officers of such Courts shall be appointed by the High Court.

iii. The jurisdiction and powers of every Metropolitan Magistrate shall extend

throughout the metropolitan area.

Section 17- Chief Metropolitan Magistrate and Additional Chief Metropolitan

Magistrate

i. The High Court, shall in relation to every metropolitan area within its local

jurisdiction appoint a Metropolitan Magistrate to be the Chief Metropolitan

Magistrate for such metropolitan area.

ii. The High Court may appoint any Metropolitan Magistrate to be an Additional

Chief Metropolitan Magistrate, and such Magistrate shall have all or any of the

7 | P a g e

powers of a Chief Metropolitan Magistrate under this Code or under any other law

for the time being in force as the High Court may direct.

Section 18 – Special Metropolitan Magistrates

i. The High Court may, if requested by any 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 Code on a

Metropolitan Magistrate, in respect to particular cases or to particular classes of

cases in any metropolitan area within its local jurisdiction:

ii. 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.

iii. Such Magistrates shall be called Special Metropolitan 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.

iv. The High Court or the State Government, as the case may be, may empower any

Special Metropolitan Magistrate to exercise, in any local area outside the

metropolitan area, the powers of a Judicial Magistrate of the first class.

Section 20- Executive Magistrates

i. In every district and in every metropolitan area, the State Government may appoint

as many persons as it thinks fit to be Executive Magistrates and shall appoint one

of them to be the District Magistrate.

ii. The State Government may appoint any Executive Magistrate to be an Additional

District Magistrate and such Magistrate shall have such of the powers of a District

Magistrate under this Code or under any other law for the time being in force as

may be directed by the State Government.

Section 21- Special Executive Magistrates

The State Government may appoint, for such term as it may think fit, Executive

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 this Code on Executive

Magistrates, as it may deem fit.

8 | P a g e

iii. DISPOSAL OF CRIME BY THE CRIMINAL COURT

It was observed the quantum of IPC cases to be tried by courts and the actual number of

cases tried by courts resulting in conviction etc. during last four decades that the

percentage of cases tried to total cases for trial and percentage of cases convicted to total

cases tried showed a declining trend. These percentages were 28.8% and 62.0%

respectively in the year 1973 which went down in 2013 to 13.2% and 40.2% respectively5.

There were 97, 81,426 cases for trials (including cases pending from the previous years)

during the year 2013 as compared to 93, 28,085 cases during the previous year 2012. The

percentage of cases in which trials were completed has decreased to 13.2% in the year

2013 from 13.4% in the year 2012. 84.8% of IPC cases remained pending for trial at the

end of the year in various criminal courts of the country.

Trials in as many as 1,43,816 violent crime cases were completed by courts during the

year 2013 representing 11.1% of total IPC crime in which trial completed (12,90,148

cases) at all-India level. The details regarding crime head-wise pendency percentage of

IPC cases for trial implies that more than 80.0% of pendency was observed for most of the

IPC crimes during

2013.

The conviction rate i.e. the ratio of cases convicted to the total cases tried (sum total of

cases convicted and cases acquitted or discharged by Courts). Conviction rate of total IPC

crimes in the year 2013 was 40.2% which was more as compared to 38.5% reported in the

year 2012. The crime head – wise analysis revealed that the conviction rate was highest in

cases relating to counterfeiting (37.8%), murder (36.5%) and culpable homicide not

amounting to murder (34.2%) whereas the lowest conviction rate was observed under

crime head cruelty by husband or his relatives (16.0%). The highest percentage of cases

which were either compounded or withdrawn was reported under ‘insult to the modesty of

women’ (4.5%) cases followed by ‘hurt’ (3.9%)6.

5 http://www.indiancourts.nic.in, retrieved on 26th April, 2015.6 http://ncrb.gov.in/CD-CII2013/Chapters/4-Disposal%20of%20cases%20by%20Police%20and%20Courts.pdf, retrieved on 26th April, 2015.

9 | P a g e

iv. EFFICACY OF THE CRIMINAL JUSTICE SYSTEMThe Indian judiciary is often criticized, perhaps justifiably, for the unusual delay in the

disposal of disputes, for the enormous arrears of cases it accumulates year after year and

the poor management of the proceedings showing very little concern for the

consequences to the litigant public and to society at large. One has to have some

understanding of the Court system and its working to be able to appreciate this problem

of delay and arrears. From the above data one can safely conclude that the performance

of Indian judges, quantitatively speaking, is very impressive. It is a fact that though the

disposal of cases in various courts has considerably increased in recent years, the

institution of fresh cases has increased more rapidly making it impossible for the court

system to address the huge pendency of 35 million cases. The fact that most of those

pending cases are less than 2 years old is no consolation for litigants who keep on

knocking the doors of courts in large numbers7.

It is interesting to note that a Government-appointed Committee recently

recommended a system of impact assessment on workload of courts before legislations

are introduced and for making provision in the financial memorandum for the estimated

cost involved in implementing the legislation. If accepted, the situation in respect of

delay and arrears is likely to improve particularly in the subordinate courts. It is a matter

of deep concern that the bulk of cases pending (nearly 60 to 65 percent) relate to criminal

matters.

On the recommendations of the Eleventh Finance Commission, every State had set up

Fast Track Courts to deal with pending sessions cases. These courts have been quite

successful in reducing the arrears. Since most of the arrears are pending in magisterial

courts, efforts are now being made to extend the Fast Track Courts to the magisterial

level as well. Also, evening courts are being established in certain States like Gujarat and

Tamil Nadu to contain the mounting arrears in their jurisdictions. Parliament amended

the Criminal Procedure Code in 2005 making provision for settlement of criminal cases

through the “plea bargaining” process. It is slowly picking up in some states despite

opposition from a section of judges and the bar.

7 PROF. N.R. MADHAVA MENON, LAW AND JUSTICE: A LOOK AT THE ROLE AND PERFORMANCE OF INDIAN JUDICIARY, 2013.

10 | P a g e

3. ROLE AND RESPOSIBILITIES OF THE CRIMINAL COURTi. Role of the Criminal court

The role of the judiciary was reflected in the statement of the then CJI who at the time of

the inauguration of the Supreme Court said thus:

“On the court will fall the delicate and difficult task of ensuring to the citizen the

enjoyment of his guaranteed rights consistently with the right of society and the state8”

Thus the Chief Justice was emphasizing the balancing function of the judiciary while the

constitution envisaged the judiciary to be proactive in achieving justice social, economic

and political (Preamble and Art. 38).

The preconstitutional laws like IPC, Cr.PC, Evidence Act, CPC etc. despite their being

preconstitutional enable the courts to be proactive and to achieve the new role assigned to

them by the constitution. An examination of these statutes indicate that they are court

centric enabling them to play the lead role. This becomes clear if one examines the

application of provisions of IPC, Evidence Act or Cr.PC.

Let us examine, by way of example, the application of IPC provisions in certain fact

situations. In the case of application of mistake of fact as a defence, the concept of

reasonable man comes quite often tainted by the segment of society the judge belongs.

This is so when one applies sudden and grave provocation, insanity defence, right of

private defence etc. This can be brought home by way of an analysis of the decision in

Ram Bahadur Thapa v. State of Orissa9, wherein a Gurkha happened to kill and injure

several persons by way of his knife mistaking them to be evil spirits during night. The

Orissa High Court granted him the defence of mistake of fact saying that he actually by

mistake thought his victims to be evil spirits. Still, the question whether the man exercised

ordinary prudence of a reasonable man’ could be raised against this decision. Similarly, an

analysis of Madhavan v. State of Kerala10, also indicates that the ‘reasonable man’ who is

8 Chinnappa Reddy, ’The court and the constitution”, (2008) 18-19.9 AIR 1960 Ori 161.10 AIR 1966 Ker 258. It was a case where the husband was found to have been suddenly provoked by the throw of the mangal sutra at him by his wife. There could be difference of opinion as to ‘prudent man’ in the same circumstances if the judge is of a different hue and holds different view.

11 | P a g e

suddenly provoked could be different depending upon the segments of society to which

the judge belongs.

It is fruitful to examine the various provisions in the Indian Evidence Act to show that the

Indian System empowers the judge to do justice in criminal cases. Leaving apart the

provisions like S-8, 9 etc, the provision in S-165 declares in unequivocal terms the

supremacy of the Indian trial judge in conducting the trials. It enacts:

Section-16511- Judge’s power to put questions or order production: The judge may, in

order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in

any form, at any time, of any witness, or of the parties, about any fact relevant or

irrelevant; and may order the production of any document or thing; and neither the parties

nor their agents shall be entitled to make any objection to any such question or order, nor,

without the leave of the court, to cross examine any witness upon any answer given in

reply to any such question.

Provided that the judgment must be based upon facts declared by this Act to be relevant,

and duly proved:

Provided also that this section shall not authorize any judge to compel any witness to

answer any question, or to produce any document which such witness would be entitled to

refuse to answer or produce under sections 121 to 131, both inclusive, if the question were

asked or the document were called for by the adverse party; nor should the judge ask any

question which it would be improper for any other person to ask under section 148 or 149

nor shall he dispense with primary evidence of any document, except in the cases

hereinbefore excepted.

Apart from other relevant provisions, section 310 Cr.PC becomes quite relevant while

considering the position of the trial judge in dealing with evidence. Section 310 Cr.PC

enacts:

Section-31012- Local Inspection – (1) Any judge or Magistrate may, at any stage of any

inquiry, trial or other proceeding, after new notice to the parties, visit and inspect any

place in which an offence is alleged to have been committed, or any other place which it is

in his opinion necessary to view for the purpose of properly appreciating the evidence

11 Ram Chander v. State of Haryana, 1981 SCC (Cri.) 683, Indian Evidence Act, 1872.12 State of Himachal Pradesh v. Mast Ram [2004] 8 SCC 660, Criminal Procedure Code

12 | P a g e

given at such inquiry or trial, and shall without unnecessary delay record a memorandum

of any relevant facts observed at such inspection.

(2) Such memorandum shall form part of the record of the case and if the prosecutor,

complainant or accused or any other party to the cases, so desires, a copy of the

memorandum shall be furnished to him free of cost.

Criminal Procedure Code, right from arrest of the accused till the finalization of the case

seems to repose maximum faith on the judicial officer.

Theoretically speaking, a person is restrained from movement by way of arrest when he is

accused of a cognizable case by the police the representative of the society. The accusation

is brought before the magistrate the independent and impartial authority interposed

between the individual and the society. It is therefore the magistrate to resolve the conflict.

The magistrate is also authorized to peruse the records of his arrest, deal with the request

for remand, bail etc. S-44 authorizes the magistrate to effect arrest. It declares thus:

Section-44- Arrest by magistrate: When any offence is committed in the presence of a

magistrate, whether Executive or Judicial, within his local jurisdiction, he may himself

arrest or order any person to arrest the offender, and may thereupon, subject to the

provisions herein contained as to bail, commit the offender to custody13.

Section-5714 makes it obligatory for the arrested person to be brought before the

magistrate within 24 hours of the arrest. In fact this provision reflects Art. 22 of the

constitution which in material part lays down thus:

Art. 22 (1) No person who is arrested shall be detained in custody without being informed,

as soon as maybe, of the grounds for such arrest nor shall he be denied the right to consult,

and to be defended by, a legal practitioner of his choice.

(2) Every person who is arrested and detained in custody shall be produced before the

nearest magistrate, within a period of 24 hours of such arrest excluding the time necessary

for the journey from the place of arrest to the court of the magistrate and no such person

shall be detained in custody beyond the said period without the authority of a magistrate.

Examination of various provisions dealing with initiation of investigation and trial, at

every stage shows the tremendous faith the system reposes on our judiciary. While

13 D.K. Basu v. State of W.B. (1997) 1 SCC 41614 Khatri (II) v. State of Bihar (1981) SCC (Cri.) 228, I.G. of Police v. Prem Sagar (1999) 5 SCC 700.

13 | P a g e

Section-157 requires a copy of the FIR to be forwarded to the magistrate Section-156 (3)

empowers the magistrate to order investigation independently of police. Section-159

authorizes the magistrate to hold investigation or preliminary inquiry. The power for

remand and granting of default bail rests again with the magistrate. While the policy of the

code seems to keep the investigation close to the chest of the police, Section-172 shows its

faith in the impartiality of the judge. For Section-172(2) enacts thus:

“(2) Any criminal court may send for the police diaries of a case under inquiry or trial in

such court, and may use such diaries, not as evidence in the case, but to aid it in such

inquiry or trial”

The report of the investigation is also to be submitted to the court under Section-17315.

The provisions enabling the court to inquire into the cause of death (Section-174) avoiding

presence of the accused from appearing before the court (Section-205) supply of copies of

documents to the parties (Section-207) framing of the charges etc. are to be attended by

the court.

If there is no case found against a person it is for the magistrate to record it and discharge

him. Similarly, on charges being found not sustainable it is for the court to record

acquittal. In the case of trial before a court of sessions also the position of the judge is

above all. It is for him to consider discharge (Section-227), framing of charge (Section-

228) or conviction on plea (Section-229).

In chapter XIX on trial of warrant cases by magistrates it is again the court which plays

the active role. It is for it to see whether supply of copies of documents has been complied

with and to discharge the person if no prima facie case is found (Section-239). If not

discharged, again it is the court which frames the charge (Section-240) and proceeds

further.

The new chapter XXI-A on plea bargaining also emphasizes the role of the court in the

working of the scheme (Section-265 A-265 H).

The court is empowered to summon new witness (Section-311), get the signature or

handwriting samples (Section-311 A), obtain a statement of the accused direct from him

(Section-313) and to examine the accused as a witness if he so desires (Section-315). The

court can also dispense with the presence of accused in certain cases (Section-317).

15 The accused has a right to fair investigation. Manu Sharma’s case, (2010) 6 SCC 1

14 | P a g e

One of the important provisions in chapter XXIV is Section-319 enabling the court to

proceed against other persons appearing to be guilty of offence. Though its dimensions are

yet to be explored it may be stated that this is a very strong provision empowering the

court to initiate criminal proceedings against a person if the court is satisfied about such a

step having regard to the evidence in the case.

In effecting compounding of offences (Section-320) and withdrawal of case also the

court’s role is pivotal. The Cr.PC makes provisions enabling the magistrate not to commit

any mistake as to his jurisdiction for trial or punishment of an offence (Section-323, 324,

326).

The code also provides for the trial and punishment of offense affecting administration of

justice. Under this chapter XXVI also it is the court which has the power to deal with these

offences. Section-344 provides for a summary procedure for trial for giving false

evidence. Section-348 empowers the court to discharge the offender on tendering of

apology whereas Section-349 enables the court to impose punishment for refusing to

answer court’s questions.

Some of the important provisions the court should focus are the sections, dealing with

payment of compensation (Section-357) victim compensation (S-357-A) 16, payment of

compensation for groundless arrest (Section-358)17 and the statutory obligation to consider

release of persons on probation (Section-360 and 361).

In short, the Judiciary has ample powers in all the matters connected with criminal justice

administration. Some of the powers given to the court go to the extent of reposing much

faith on the courts for the protection of the accused. Simultaneously, it is believed that the

court will also look into the interests of the society though the police and public

prosecutors would be primarily taking care of the societal interests. The provisions in the

Cr.PC and Evidence Act are indeed judge centric and therefore the, judge’s role as

protector of the individuals interests and society’s interests assumes importance and

deserves emphasis.

16 Palaniappa Gounder v. State of T.N. (1977) 2 SCC 634.17 Mallappa v. Veerabasappa, 1977 Cri. L.J. 1856

15 | P a g e

ii. Responsibilities of the Criminal court

Subject to the other provisions of this Code, any offence under the Indian Penal Code (45

of 1860) may be tried by the High Court, or the Court of Session, or any other Court by

which such offence is shown in the First Schedule to be triable18. Any offence under any

other law shall, when any Court is mentioned in this behalf in such law, be tried by such

Court and when no Court is so mentioned, may be tried by the High Court, or any other

Court by which such offence is shown in the First Schedule to be triable.

Any offence not punishable with death or imprisonment for life, committed by any person

who at the date when he appears or is brought before the Court is under the age of sixteen

years, may be tried by the Court of a Chief Judicial Magistrate, or by any Court specially

empowered under the Children Act, 1960 (60 of 1960), or any other law for the time being

in force providing for the treatment, training and rehabilitation of youthful offenders.19

A High Court may pass any sentence authorised by law.20 A Sessions Judge or Additional

Sessions Judge may pass any sentence authorised by law; but any sentence of death passed

by any such Judge shall be subject to confirmation by the High Court.

An Assistant Sessions Judge may pass any sentence authorised by law except a sentence

of death or of imprisonment for life or of imprisonment for a term exceeding ten years.

The Court of a Chief Judicial Magistrate may pass any sentence authorised by law except

a sentence of death or of imprisonment for life or of imprisonment for a term exceeding

seven years.

The Court of a Magistrate of the first class may pass a sentence of imprisonment for a term

not exceeding three years, or of fine not exceeding five thousand rupees, or both.

The Court of a Magistrate of the second class may pass a sentence of imprisonment for a

term not exceeding one year, or of fine not exceeding one thousand rupees, or of both.

The Court of a Chief Metropolitan Magistrate shall have the powers of the Court of a

Chief Judicial Magistrate and that of a Metropolitan Magistrate, the powers of the Court of

a Magistrate of the first class

18 Section 26 Code of Criminal Procedure, 197319 Section 27 Code of Criminal Procedure, 197320 Section 28 Code of Criminal Procedure, 1973

16 | P a g e

The Court of a Magistrate may award such term of imprisonment in default of payment of

fine as is authorised by law: Provided that the term is not in excess of the powers of the

Magistrate under section 29; and shall not, where imprisonment has been awarded as part

of the substantive sentence, exceed one-fourth of the term of imprisonment which the

Magistrate is competent to inflict as punishment for the offence otherwise than as

imprisonment in default of payment of the fine.21 The imprisonment awarded under this

section may be in addition to a substantive sentence of imprisonment for the maximum

term awardable by the Magistrate under section 29.

When a person is convicted at one trial of two or more offences, the Court may, subject to

the provisions of section 71 of the Indian Penal Code (45 of 1860), sentence him for such

offences, to the several punishments, prescribed therefore which such Court is competent

to inflict; such punishments when consisting of imprisonment to commence the one after

the expiration of the other in such order as the Court may direct, unless the Court directs

that such punishments shall run concurrently.

In conferring powers under this Code, the High Courts or the State Government, as the

case may be, may, by order, empower persons especially by name or in virtue of their

offices or classes of officials generally by their official titles.22 Every such order shall take

effect from the date on which it is communicated to the person so empowered.

Whenever any person holding an office in the service of Government who has been

invested by the High Court or the State Government with any powers under this Code

throughout any local area is appointed to an equal or higher office of the same nature,

within a like local area under the same State Government, he shall, unless the High Court

or the State Government, as the case may be, otherwise directs, or has otherwise directed,

exercise the same powers in the local area in which he is so appointed.

The High Court or the State Government, as the case may be, may withdraw all or any of

the powers conferred by it under this Code on any person or by any officer subordinate to

it.23 Any powers conferred by the Chief Judicial Magistrate or by the District Magistrate

may be withdrawn by the respective Magistrate by whom such powers were conferred.

When there is any doubt as to who is the successor-in-office of any Magistrate, the Chief

Judicial Magistrate, or the District Magistrate, as the case may be, shall determine by order

21 Section 30 Code of Criminal Procedure, 197322 Section 33 Code of Criminal Procedure, 197323 Section 34 Code of Criminal Procedure, 1973

17 | P a g e

in writing the Magistrate who shall, for the purposes of this Code or of any proceedings or

order thereunder, be deemed to be the successor-in-office of such Magistrate.

4. POWER OF APPELLATE COURT

Section 386-POWERS OF APPELLATE COURT IN DISPOSING OF APPEALS

confers adequate powers on the appellate court for the proper disposal of different kinds of

appeals. This section makes it clear that these powers are to be exercised only after

satisfying two essential conditions24:

The court must examine the record of the case. There must be a clear indication in the

judgment or the order of the appellate court that it has applied its judicial mind to the

particular appeal with which it was dealing. Such an indication will be available when

the appellate court has considered the material on record, which means not only the

judgment and petition of appeal, but also the other relevant materials25.

The appellate court must hear the appellant or his pleader, if he appears, and the Public

Prosecutor, if he appears, and in case of an appeal against the inadequacy of sentence

under Section 377, or of an appeal against acquittal under Section 378, the accused, if

he appears. It is a basic rule of natural justice that before a case is decided by the court,

the parties to the case must be given a reasonable opportunity of being heard.

After the above mentioned conditions are complied with, the appellate court may exercise

any of the following powers in disposing of an appeal:

(1) In an appeal deserving dismissal. - If the appellate court considers that there is no

sufficient ground for interfering, it may dismiss the appeal.

(2) In an appeal from an order of acquittal. - The appellate court may reverse the order of

acquittal and direct that further enquiry be made, or that the accused be retried or

committed for trial, as the case may be, or find him guilty and pass sentence on him

according to law S. 386(a). It may be recalled that an appeal against an order of acquittal

can lie only to the High Court. And if the State does not appeal an acquittal, it becomes

final.26

As to the exercise of the powers of the appellate court, the Supreme Court in Sanwat

Singh v. State of Rajasthan27 has laid down three principles28.

24 R.V. Kelkar, Lectures on Criminal Procedure, 5th eds., Eastern Book Company, pp- 281- 285.25 Shyani Deo Pandey v. State of Bihar, (1971) 1 SCC 85526 E. Balakrisbnamma v. State of A.P., 1993 Cri LJ 2328 (AP).27 AIR 1961 SC 715.28 http://www.samrthbharat.com/judiciary.htm, retrieved on 26th April, 2015.

18 | P a g e

Firstly, the appellate court has full powers to review the evidence upon which the order

of acquittal is founded.

Secondly, the principles which require that the appellate court should give proper weight

and consideration to such matters like the view of the trial judge as to the credibility of

the witnesses, the presumption of innocence in favour of the accused, the right of the

accused to the benefit of doubt, and the slowness of an appellate court in disturbing the

finding of fact arrived at by a judge who had the advantage of seeing the witnesses.

Thirdly, the appellate court in coming to its conclusion should not only consider every

matter on record having a bearing on the questions of fact and the reasons given by the

court below in support of its order of acquittal, but should also express those reasons to

hold that the acquittal was not justified29.

As our criminal jurisprudence requires that the benefit of doubt must be given to the

accused, the view in favour of acquittal must prevail." The Supreme Court has noted that

there is no difference between an appeal against conviction and an appeal against

acquittal except that when dealing with an appeal against acquittal, the court keeps in

view the position that the presumption of innocence in favour of the accused has been

fortified by acquittal and if the view adopted by the High Court is a reasonable one and

the conclusion reached by it had its grounds well set on the materials on record, the

acquittal may not be interfered with.

If the appellate court finds the accused guilty, it may reverse the order of acquittal and

pass sentence on him according to law. But in such a case, as the appellate court is to do

what the trial court ought to have done, it cannot impose a punishment higher than the

maximum that could have been imposed by the trial court. [S. 386, Second Proviso]

Conviction by the appellate court also dates back to the date of acquittal by the trial

court.

(3) In an appeal from a conviction.—It may be noted that the caution the appellate court

exercises in dealing with an appeal against acquittal may not be required in dealing with

an appeal from conviction inasmuch as in the former case, it is presumption of innocence

which has been strengthened by the acquittal." Here the appellate court may choose any

one of the following three courses:

(a) The appellate court may reverse the finding and sentence and acquit or discharge

the accused, or order him to be retried by a court of competent jurisdiction

29 Salim Zia V. State of U.P. (1979) 2 SCC 648.

19 | P a g e

subordinate to such appellate court or committed for trial. [S. 386(b) (i)]. It may be

noted that an order for retrial is made only in exceptional cases.

(b) The appellate court may alter the finding, maintaining the sentence. [S. 386(b) (ii)]

Here "alter the finding" means alter the finding of conviction and not the finding of

acquittal. If the State does not appeal an acquittal, it is final. Where a person is

charged with an offence of murder under Section 302, Penal Code, 1860 (IPC) but

convicted of culpable homicide not amounting to murder under Section 304 IPC,

there is an implied acquittal of the offence of murder under Section 302 IPC. If,

therefore, the accused appeals against the conviction under Section 304 IPC and the

State does not appeal against the acquittal under Section 302, the appellate court

cannot alter the finding under Section 304 IPC into one of conviction for murder

under Section 302 IPC.

(c) The appellate court may with or without altering the finding, alter the nature or

the extent, or the nature and extent, of the sentence, but not so as to enhance the same.

[S. 386(b) (iii)]. A sentence is said to be enhanced when it is made more severe.

Section 386(b) does not entitle the appellate judge to confirm conviction and at the

same time remit to trial court for reconsidering sentence.

(4) In an appeal for enhancement of sentence.—In such an appeal, the appellate court has

got the same powers as in the case of an appeal from conviction as mentioned in sub-para

(3) above. Here, of course, the additional powers to enhance or reduce the sentence have

been given to the appellate court. [ S. 386(c)] As mentioned earlier, the appellate court is

not to inflict greater punishment for the offence, which in its opinion the accused has

committed, than might have been inflicted for that offence by the court passing the order

or sentence under appeal. [S. 386, Second Proviso] Further the sentence shall not be

enhanced unless the accused has had an opportunity of showing cause against such

enhancement. [S. 386, First Proviso]

(5) In an appeal from any other order. The appellate court may in such a case alter or

reverse such order. [S. 386(d)]

(6) Consequential or incidental order. The appellate court may make any amendment or

any consequential or incidental order that may be just or proper. [S. 386(e)]. It has been

pointed out by the Supreme Court that it is a requirement of justice that the High Courts

discuss reasons for their decisions in criminal appeals.

POWERS OF APPELLATE COURT TO GRANT BAIL:

20 | P a g e

Sections 389 and 390 deal with suspension of sentence pending the appeal, release of

appellant on bail, arrest of the accused in the appeal from acquittal and his release on

bail, etc. For granting of suspension of Sentence and bail on admitting appeals, the High

Courts should adduce reasons failing which these orders might be quashed by the

Supreme Court." It may be noted that while the appellate court including the High Court

could exercise the powers under sub-sections (1) and (2) of Section 389 in any case of

conviction, the jurisdiction of the convicting court under Section 389(3) is limited to

cover cases coming under clauses (i) and (ii) alone which are comparatively short-term

sentences. The provisions of Section 389 are also not applicable to appeals to the

Supreme Court.

POWER OF APPELLATE COURT TO OBTAIN EVIDENCE 1. If the appellate court considers that the additional evidence is necessary, it shall record

its reasons and may (a) take such evidence itself, or (b) direct it to be taken by a

subordinate court or a Magistrate. When the additional evidence is taken, the accused or

his pleader shall have the right to be present. The taking of the evidence shall be in

accordance with the provisions of Chapter XXIII, as if it were an enquiry.

2. When the additional evidence is taken by a subordinate court or a magistrate, it or he

shall certify such evidence to the appellate court [Sec. 391]. The power to take additional

evidence should be exercised sparingly and only in suitable cases. The additional

evidence must, of course, not be received in such a way as to cause prejudice to the

accused. It should not be received as a disguise for a retrial or to change the nature of the

case against him. The step to take additional evidence should not be resorted to, if the

prosecution has had a fair opportunity and has not availed of it, unless the requirements

of justice dictate otherwise." The provision to obtain further evidence is not meant to

remedy the negligence for filling the latches left in the prosecution case or for allowing

the prosecution to indulge in fishing for evidence.30

CONCLUSION, SUGGESTION AND CRITICISMIt is the duty of the State to protect fundamental rights of the citizens as well as the right

to property. The State has constituted the Criminal Justice System to protect the rights of

30 Gopi chand v. State, 1969 Cri LJ 1153.

21 | P a g e

the innocent and punish the guilty. The system devised more than a century back, has

become ineffective; a large number of guilty go unpunished in a large number of cases;

the system takes years to bring the guilty to justice; and has ceased to deter criminals.

There is an emerging unequivocal need for a clearly defined legal and regulatory

framework and efficient disposal of cases. Clearly the legal apparatus and infrastructure

have failed to keep pace with the rising population, changing societal structure,

increasing number of laws, and increasing technological activities.

There is no doubt that the judiciary is in dire need of speedy and effective reforms:

ranging from appointing of judges, to instituting a transparent and non-partisan structure

of inquiry free from legislative and judicial interference, to punishing corrupt judges.

Rising pile of pending cases

The backlog of millions of cases in all categories of courts is the most damning evidence

of the inadequacy of the legal apparatus. However, it is only a symptom and the remedy

must go to address the root causes. Raising number of judges, setting up more courts, and

simplifying procedures are always discussed religiously but when it comes to

implementation – it is always too late and too inadequate. The victims are the ordinary or

poor people when they have to deal with courts which are mostly foreign lands for them.

The rich, of course, can buy expensive lawyers and manipulate things in their favour in

the procedural dilemma of Indian judicial system.

Under trials and their hardships

The majority of under trials spend more time in jail during trials than the maximum

sentence that can be imposed upon them. Even if they don’t, the expenditure and agony

of defending themselves during this long ordeal in courts is more painful than serving the

sentence that could be imposed. This agony of under trials in the judicial system provides

an easy way for the police and powerful people, who can have the police at their side, to

harass, intimidate and silence inconvenient persons – particularly the political activists.

Alienation of the Poor

The alienation of the common man in India with the judicial system leads to his feeling

that the court-room is an alien-land where procedures and technicalities, rather than truth

and morality, rule. It is difficult for an ordinary man to get past the complicated

procedures or the middleman exploiting their ignorance to make money.

No connection with society

Judiciary is an integral part of the society and its interaction with the local public is

healthy thing. In fact, its linkages with the society must be strengthened and nurtured. In

22 | P a g e

many countries the system of jury ensures the involvement of common citizens in

judicial decision-making.

But things are different in India. The Indian judiciary still is as an extension of the

colonial regime. The British set up the system as a symbol of imperial power and the

court procedures were meant to make the natives servile. The historic aloofness should

have changed in last six decades, but the judicial officers have failed to come closer to

the ground to meet the common man.

Condition of legal education

The pathetic state of the legal education can be seen everywhere. Getting into a law

curriculum is still the last option for students; after all other gates are closed. It is not

unusual to meet qualified practicing lawyers who cannot even draft an application. They

have to count on the typists sitting in the court premises to draft all documents for them.

And a couple of years staying in the system gives them enough “experience” that enables

them to rise to become senior advocates or even judges. No wonder they have to

maintain their aloofness from the outside world!

Suggestions:

Looking at the lack of transparency and simplicity in our judicial system, it is time for

“We, the people of India” to assert ourselves. After all, the issues of judicial reforms and

accountability cannot remain the sole preserve of politicians, bureaucrats, judges and

advocates. Given the state of current affairs, what is urgently needed is judicial reforms

in general and judicial accountability in particular.

Lower Judiciary: While the activities of higher judiciary affect the common people

indirectly, the lower judiciary under the High Court’s impacts them directly. It is here

that we need to upgrade and expand infrastructure and simplify procedures. Increasing

use of information and communication technology in lower courts will have a very

positive effect by way of eliminating arbitrariness and corruption of petty court

officials.

Encourage Use of Video Conferencing: A lot of crowding in courts and the hassle of

transporting under trials from jails to courts can be saved if e-communication facilities

link courts with jails.

All India Judicial Service: The Government of India should also examine the

feasibility of creating an all India Service for judicial officers in the same manner as

that of IAS and IPS officers. It will also attract talent in judiciary services.

23 | P a g e

The Judicial Commission must not be monopolized by existing or retired judges – and

must include respected members from the legislature and academia, independent

thinkers, and activists.

Role of NGOs and activists: They must exert pressure both on the government and

the judiciary to speed up judicial reforms at all levels. Anna Hazare’s movement has

generated a massive momentum; it must not be allowed to die down.

Right to speedy trial instituted in Right to life and liberty guaranteed by Article 21 of

the Constitution of India should be promoted to public.

With an aim to speed up trials there should be strict adherence of the latest

amendment of Section 309 of the Cr.PC stating that no adjournment should be granted

at the party’s request, nor can party’s lawyer being engaged in another court be

ground for adjournment.

BIBLIOGRAPHY:

1. R.V. Kelkar, Lectures on Criminal Procedure, 5th eds., Eastern Book Company.

24 | P a g e

2. PROF. N.R. MADHAVA MENON, LAW AND JUSTICE: A LOOK AT THE ROLE

AND PERFORMANCE OF INDIAN JUDICIARY, 2013.

3. The Criminal Procedure Code, 1873

4. http://www.indianetzone.com/3/indian_judiciary.htm

5. http://www.indiancourts.nic.in

6. http://www.samrthbharat.com/judiciary.htm

7. http://ncrb.gov.in/CD-CII2013/Chapters/4-Disposal%20of%20cases%20by%20Police

%20and%20Courts.pdf

8. http://www.articlesbase.com/national-state-local-articles/hierarchy-of-indian-judicial-

system-3877336.html,

25 | P a g e