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NOTE ON HIERARCHY OF CRIMINAL COURTS, THEIR JURISDICTION AND FUNCTIONS OF COURT IN THE CRIMINAL JUSTICE SYSTEM

ABOUT THE AUTHOR

Adv Sanjay Johnson is an associate member of Chartered Institute of Arbitrators UK , practicing in High-court of Kerala.

CHAPTER I

HIERARCHY OF CRIMINAL COURTS AND THEIR POWER TO PASS SENTENCES

SUPREME COURT

[ ANY SENTENCE AUTHORISED BY LAW]

I

HIGH COURT

(ANY SENTENCE AUTHORISED BY LAW)

I

SESSIONS COURT

(SESSIONS JUDGE AND ADDITIONAL SESSIONS JUDGE-ANY SENTENCE AUTHORITIES BY LAW, DEATH SENTENCE SUBJECT TO CONFIRMATION BY THE HIGH COURT)

I

ASSISTANT SESSIONS JUDGE

(IMPRISONMENT UPTO 10 YEARS AND FINE)

I

CHIEF JUDICIAL MAGISTRATE

(IMPRISONMENT UPTO 7 YEARS AND FINE)

JUDICIAL MAGISTRATE OFJUDICIAL MAGISTRATE
OF THE FIRST CLASSTHE SECOND CLASS
(IMPRISONMENT UPTO 3 YEARSIMPRISONMENT UPTO I YEAR
Rs. 10,000AND FINE UPTO RS. 5000/-

Note: Courts established under Special laws are not depicted in the above chart.

CHAPTER II

POWERS AND FUNCTIONS OF THE COURTS UNDER CRIMINAL

JUSTICE SYSTEM

We are aware of the fact that India follows the common law system of jurisprudence, akin to most other countries which adopts the system, follows an adversarial system in its criminal justice dispensation, characterized by separation of the Judiciary from the Executive.

The basic framework of the criminal justice system as it stands todays is as laid down in the Code of Criminal Procedure, 1973 (hereinafter referred to as the code)[1].All Courts in the said system except the Supreme Court, High Courts and Courts established under special statutes derive their existence from the Code and are therefore bound to follow the procedure prescribed in the Code while performing its functions. The powers and function of the Courts are discussed below.

SUPREME COURT OF INDIA

The Hon’ble Supreme Court of India is the Apex Court in the Country and derives its existence from the Provisions of the Constitution of India[2]. The Supreme Court shall be the Court of Records and shall have the power to punish for its contempt[3]. The Constitution of India, also provides in itself the Criminal Jurisdiction of the Supreme Court[4]

The Hon’ble Supreme Court exercises Appellate Jurisdiction from any Judgment, Final Order or Sentence in a criminal proceedings of a High Court. It can be exercised by the Hon’ble Supreme Court in Criminal Matters on the following[5]:-

  1. High court has reversed an Order of acquittal of an accused person and sentenced him to death or
  2. High Court has withdrawn for trial before itself any case from any court inferior to it, convicted the accused and sentenced him to death or
  3. When the High Court had granted a Certificate under Article 134 A of the constitution that it is a fit case for Appeal to the Supreme Court.

Hon’ble Supreme Court also has Jurisdiction to entertain an Appeal preferred by any person convicted on a trial held by High Court in its extraordinary original criminal jurisdiction[6]. Further if the Hon’ble High Court has reversed an Order of acquittal, Convicted any person and sentenced him to death, undergo imprisonment for Life or to imprisonment for a term of ten years or more, a right to Appeal to the Apex Court accrues. Apart from the above an appeal can be preferred to the supreme court after attaining a Special Leave to Appeal[7].Consequent to the insertion of Article 134 A of the Constitution8. The Supreme Court is also vested with the power to Transfer cases pending before any High Courts to itself and may even go to the extent of disposing the case itself or to transfer cases pending before any High Court to any other High Court.

HIGH COURTS

The Constitution provides that there shall be a High Court in every State[9]. Similar to the Supreme Court, the High Courts are also Court of Records [10].The Criminal Jurisdiction of the High Court Primarily include includes the following

  1. Original Jurisdiction to try any offence under the IPC[11]
  2. Appeals from Judgments and Orders of the inferior Courts
  3. Confirmation of sentence of death Passed by the Sessions Court.[12]
  4. Revisionary Powers[13]
  5. Supervisory Jurisdiction of the High Court[14]
  6. Inherent Power of the High Court[15]
  7. Transfer Jurisdiction[16]

VII.     Bail Plea’s both Anticipatory and Regular[17]

VIII..   Criminal Contempt

COURT       OF     SESSIONS, ADDITIONAL        SESSIONS AND ASSISTANT SESSIONS

Code of Criminal Procedure provides that every state shall be a Sessions Division or shall consist of several Sessions divisions and every Sessions division shall be a district or shall consist of districts[18].Proviso to the section says that every metropolitan area shall be a separate Sessions division or district

The Code provides for the establishment of Court of Sessions as well the Court of the Additional Sessions Judge[19]. The Court of Sessions is vested with the jurisdiction to try all types of Sessions trials in the Revenue District on the Original side. The Additional Sessions court may exercise all Powers vested on the Sessions Courts on the Judicial Side. The Code of Criminal Procedure by virtue of Section 10 Provides for subordination of Assistant Sessions Judges to Sessions Judges. Jurisdiction of the Court is also limited to Imprisonment upto 10 years and fine[20].

The Court also exercises Appellate jurisdiction Under Chapter XXIX of the code. The

Appellate Jurisdiction of the Court can be broadly classified as below: I.      Appeal against conviction[21]

II.     Appeal by State Government against Sentence[22]III.          Appeal against acquittal[23].

The Sessions Court may decide the case by calling for records from the Court below and if the question is only on the legality of sentence the court may dispose of the Appeal without calling for the same. Powers of the court while exercising the Appellate Jurisdiction following the procedure envisaged in the code[24]

Revisionary Jurisdictions as against Judgments and Orders passes the Magistrates Courts[25]. The Court is also vested with the Power to call for Records from inferior courts within Its Jurisdiction[26] and may Exercise such powers envisaged under Section 401 to the High Court[27]. Further by virtue of Section 408 of the code the Court of Sessions is vested with the power to transfer a case from one Criminal Court to another in its Sessions division. Sessions Court also hears Bail pleas arising out of its own Jurisdiction and also of those rejected by the Magistrates Court

COURT OF A CHIEF JUDICIAL MAGISTRATE

The High Court may require a Judicial Magistrate of the First Class to be appointed as Chief Judicial Magistrate[28] and as Additional chief Judicial Magistrate[29]. A chief Judicial magistrate may pass any sentence authorised by law except sentence of death or imprisonment for life or imprisonment for a term exceeding seven years[30].

COURT OF A JUDICIAL MAGISTRATE

The High Court may require appointment of as many courts of Judicial Magistrate of the First Class and Second class as required. Judicial Magistrate of the First Class may pass a sentence of imprisonment for a term not exceeding three years and fine not exceeding ten thousand rupees or both[31]. Judicial Magistrate of the Second Class may pass a sentence of imprisonment for a term not exceeding one year and fine not exceeding five thousand rupees or both.

Apart from trial and sentencing the Magistrates Court exercises various crucial functions in the Criminal Justice Mechanism such as taking I. cognizance on complaints[32],

  1. Considering bail pleas[33],
  2. considering pleas on custody of property[34],
  3. Committing Criminal Matters to the concerned Courts for Trial[35], V.          Considering Applications for Remand[36],

VI.      Considering Applications for Maintenance[37].Etc.

2.2.7 Special Courts and Tribunals

Criminal Jurisprudence had to develop rapidly to keep pace with the Challenges faced by the criminal justice system. As a result Amendments to the current codes and enactment of special laws were necessitated. Furthermore most of the Special laws are aimed at expediting the justice system consequently most of the statutes provide for setting up of Courts and Tribunals separate from the penumbra of conventional Justice delivery system. The Courts so set up for Trial of the following:-

  1. Try offences involving Child in Conflict with law i.e. Juvenile Justice Boards[38]
  2. Trial of Sexual offences against Minors i.e. POCSO Special Court.[39]
  3. Trial of offence committed against marginalized sections of the society i.e. SC/ST Special Court[40]
  4. Trial of Scheduled Offences investigated by Central Agencies i.e. Special Courts in matters investigated by NIA [41].
  5. Trial under Preventive detention laws i.e. Advisory board under COFEPOSA[42]
  6. Fast Track Courts for hearing Criminal cases against present and Prior Legislators i.e. MP/MLA Courts[43].
  7. Trial of corruption against public functionaries i.e. under Lokayukta Act[44]
  8. Court for trial of white collar crimes i.e. under PMLA[45].

VILLAGE COURTS

Effectiveness of a Justice delivery system directly influenced by

the ability of a wide cross section of people to access it and be part of it. With this sole aim in mind the 11th Law commission headed by Mr. Justice D. A.

Desai through the 114th law commission report advocated for access to justice at the grass-roots level, the Law Commission of India, in its 114th report[46], requested the Central government to establish village courts. Though the report recommendations were made in August 1986, The Gram Nyayalayas Bill was passed by the Parliament on 22nd December 2008 and the Gram Nyayalayas Act came into force with effect from 02nd October, 2009. The Act extends to the whole of India, except to the States of Nagaland, Arunachal Pradesh, Sikkim and to the tribal areas specified in Parts I, II, IIA and III of the Table below paragraph 20 of the Sixth Schedule to the Constitution of India within the States of Assam, Meghalaya, Tripura and Mizoram,

respectively.[47]The gram Nyalayas has jurisdiction to try the following offences:-

  1. Offences specified in Part I of the First Schedule; and
  2. Try all offences and grant relief, if any, specified under the enactments included in Part II of that Schedule.[48]

The provisions of the act shall have overriding effect over the Provisions of the Code of Criminal Procedure in the aforesaid matters and Gram Nyayalayas shall be deemed to be a Court of Judicial Magistrate of the first class[49]. The Gram Nyayalayas shall follow a summary trial procedure in accordance with chapter XXI of the Code50. A person accused of an offence has the right to file a petition seeking plea bargaining in accordance with Chapter XXI A of the Code[51].

An Appeal shall lie to the Court of Sessions from a Judgment, Sentence or Order of the Gram Nyayalayas unless it is cases where an accused was sentenced on his plea of guilt or a sentence of not exceeding thousand rupee was imposed[52]. The statute prescribes that the appeal may be disposed by the sessions court within 60 days from the date of filing[53].The Gram Nyayalayas shall not be bound by the rules of evidence provided in the Indian Evidence Act, 1872 but shall be guided by the principles of natural justice subject to any rule made by the High Court.

CHAPTER III

CONSEQUENCE OF FAILURE TO FOLLOW THE RULES REGARDING LOCAL JURISDICTION

Jurisdiction of criminal courts is of two kinds. The first has reference to power to try particular type of offences[54]. This jurisdiction goes to the root of the matter; and if the court which is empowered to to try a particular offence does try that offence, the entire trial shall be void[55].

Chapter XIII of the code of criminal Procedure encompassing Sections 177 to 188 deals with Jurisdiction of the Criminal Courts in Inquiry and Trial. If these rules are not complied with trial or other proceedings shall not be set aside as void, unless it appears that such non compliance has in fact occasioned a failure of justice[56]. Section 462 of the Cr.P.C deals with proceedings in wrong place:-

-No finding, sentence or order of any Criminal Court shall be set aside merely on the ground that the inquiry, trial or other proceedings in the course of which it was arrived at or passed, took place in a wrong sessions division, district, sub-division or other local area, unless it appears that such error has in fact occasioned a failure of justice. The hon’ble High Court of Kerala held in Abhay Lalan vs Yogendra Madhavlal57 The lex fori or law of jurisdiction in which relief is sought controls as to all matters pertaining to remedial (i. e. procedural) as distinguished from substantive rights. If the question of jurisdiction is raised, the trial can be commenced only after deciding that question.

However the Hon’ble High court of Punjab and Harriyana held in Sukhdev Singh And Ors. vs Sukhvinder Kaur58 that the above principle only applies in cases where trial has proceeded to its termination and the court is satisfied that no failure of justice has been occasioned by the trial having taken place in a wrong court, but where the objection as to jurisdiction has been taken up before or at the time of the commencement of the trial, no shelter can be taken the provision.

The reason for such a difference in the result of a case being tried by a Court not competent to try the offence and by a Court competent to try the offence but having no territorial jurisdiction over the area where the offence was committed is understandable. The power to try offences is conferred on all Courts according to the view the Legislature holds with respect to the capability and responsibility of those Courts. The higher the capability and the sense of responsibility, the larger is the jurisdiction of those Courts over the various offences. Territorial jurisdiction is provided just as a matter of convenience, keeping in mind the administrative point of view with respect to the work of a particular Court, the convenience of the accused who will have to meet the charge levelled against him and the convenience of the witnesses who have to appear before the Court59.

CHAPTERIV

Extra-Territorial Jurisdiction

Jurisdiction is by nature territorial, for no state allows other states, as a general rule , to exercise powers of government within it. But operation of law may extend to persons and things and acts outside India. Extra-territorial Operation means ‘the effect to be given in the courts and within territory of enacting states as against a person without state or in respect of property situated or transactions happening abroad.

An Indian Citizen may be prosecuted in India for any offence committed beyond the territorial limits of India, if it is an offence under any Indian enactment though it may not be an offence at the place of commission.

Section 188 Cr.P.C deals with Offence committed outside India.—When an offence is committed outside India—

  • by a citizen of India, whether on the high seas or elsewhere; or
  • by a person, not being such citizen, on any ship or aircraft registered in India, he may be dealt with in respect of such offence as if it had been committed at any place within India at which he may be found:

Provided that, notwithstanding anything in any of the preceding sections of this Chapter, no such offence shall be inquired into or tried in India except with the previous sanction of the Central Government.”

Hon’ble Supreme Court has held in Sartaj Khan vs State of Uttarakhand60 that In terms of Section 188, even if an offence is committed outside India, (a) by a citizen whether on the high seas or anywhere else or (b) by a non-citizen on a ship or aircraft registered in India, the offence can still be tried in India provided the conditions mentioned in said Section are satisfied. The Section gets attracted when the entirety of the offence is committed outside India; and the grant of sanction would enable such offence to be enquired into or tried in India.

Honble Supreme Courts in Thota Venkateswarlu v. State of A.P. and Another61 ‘held that “upto the stage of taking cognizance, no previous sanction would be required from the Central Government in terms of the proviso to Section 188 Cr.P.C. However, the trial cannot proceed beyond the cognizance stage without the previous sanction of the Central Government. The Magistrate is, therefore, free to proceed against the accused in respect of offences having been committed in India and to complete the trial and pass judgment therein, without being inhibited by the other
alleged offences for which sanction would be required.”

6

CHAPTER V

LEARNING OUTCOME AND TOPICS THAT MAY NEAD FURTHER RESEARCH

The effort made in this note is to put together the functioning and powers of various courts in the Criminal Justice System. Towards the end of the note a collection of special courts established for furthering the purposes of the act is also made. Making reforms in the current court structure and establishment of new Courts vis a vis Special Courts are considered to be the solution for challenges faced by the current system. However there seems to be criticism from among the legal fraternity and the general public alike that the special statute and courts are failing to achieve the very purpose for which it was set up.

Though the reasons cited for the criticisms are many, there is no solid research done, let alone empirical research to assess the effectiveness of the statutes or Courts. In addition to this in practice though the special statute prescribes for setting up of special courts the administration in most cases only designates or assigns existing courts with the additional duty of hearing matters specified in the statute over and above the jurisdiction the Court already exercises[62].

Besides there is a serious criticism that allocation of courts and allocation of resources are not in proportion to the general interest of the public. It is understood that there is much scope for research in this area.

As new statutes enter the fray, legal scenarios that are ambiguous also arise, giving way to settlement of the legal Position by way of Judicial Pronouncements. These principles range from those impacting law of evidence such as reverse burden to those impacting Constitutional rights of the accused such as in preventive detention[63]and imposition of a twin test in considering bail plea [64].

REFERENCE

[1] Act 2 of 1974 came into force on 1974.

[2] Established by Virtue of Article 124 of the Constitution of India

[3] Article 129 of the Constitution

[4] Articles 132(1) and Article 134 of the Constitution.

[5] By virtue of Article 134 of the Constitution,

[6] Section 374 of Code of Criminal Procedure 1973

[7] Under Article 136 of the Constitution

[8] the Constitutional amendment

[9] Article 214 of the Constitution

[10] Article 215 of the Constitution

[11] Section 26of the CrPC

[12] Section 366 of the CrPC

[13] Section 366 of the CrPC

[14] Article 227 of Constitution of India

[15] Section 482 of the CrPC

[16] Section 407 of the CrPC [1] Secttion 439 and 438 of the CrPC

[17] Secttion 439 and 438 of the CrPC

[18] Section 7 of the CrPC

[19] Section 9 of the CrPC

[20] Section 28(3) of the CrPC

[21] Section 374(3) of the CrPC

[22] Section 377 of the CRPC

[23] Section 378(1)&(3)

[24] Section 385 of the CrPC

[25] Section 399 of the CrPC [1] Section 398 of the CrPC

[26] Section 398 of the CrPC

[27] Section 399 of the CrPC

[28] Section 12(1) of CrPC

[29] Section 12(2) of CrP

[30] Section 28(1) of CrPC

[31] Section 26(2) of CrPC

[32] Section 156(3) r/w Section 190,200 CrPC

[33] Section 437 of the CrPC

[34] Section 451 of the CrPC

[35] Section 209 of the CrPC

[36] Section 167 (2) of the CrPC

[37] Section 125 of the CrPC

[38] Section 4 of Juvenile Justice (Care and Protection of Children) Act 2015

[39] Section 28(1) of the Protection of Children from Sexual Offences Act, 2012

[40] Section 14 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989

[41] Section 11 and 21 of the National Investigation Agency Act 2008,

[42] Section 8 of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974

[43] Formed in Compliance with directionspassed by the Hon’ble Supreme Court in Writ https://sprf.in/special-courts-in-india-an-overview/Petition(Civil) No.699/2016 Ashwini kumar Upadhyay v. Union of India & anr.

[44] Section 35 of the Lokpal and Lokayuktas Act, 2013.

[45] Section 43 of the The Prevention of Money Laundering Act 2002

[46] https://lawcommissionofindia.nic.in/report_eleventh/

[47] https://dashboard.doj.gov.in/gn/introduction

[48] Section 12 of the Gram Nyayalayas Act, 2008.

[49] Section 18 of the Gram Nyayalayas Act, 2008 50 Section 19 of the Gram Nyayalayas Act, 2008.

[50] Section 20 of the Gram Nyayalayas Act, 2008

[51] Section 33 of the Gram Nyayalayas Act, 2008

[52] Proviso to section 33 the Gram Nyayalayas Act, 2008

[53] Section 26 of the Code of Criminal Procedure enlist Courts by which certain offences are triable.

[54] Section 461 enlists irregularities which vitiate the proceedings

[55] . Also see Ram Chander prasad v state of Bihar, (1961) SC 1629 & State of Karnataka v Kuppu Swamygounder, (1987) 2 SCC 74

57 1981 CriLJ 1667

58 1974 CriLJ 229 (P&H)(note; Section 531 in act V of 1998 is as mentioned in the Judgment is incorporated as section 462 of the CRPC Act 2 of 1974)

59.1961 AIR 1589, 1962 SCR (2) 101
60. 2022 LiveLaw (SC) 321-Criminal Appeal no.852 of 2018; march 24, 2022 61 [2011 (9) SCC 527]
61. [2011 (9) SCC 527]
[62]CRIMINAL APPEAL NO. 394 OF 2020 (Arising out of SLP (Criminal) No. 2060 of 2019)

[63] https://sprf.in/special-courts-in-india-an-overview/

[64] Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974

[65] Section 45 of the The Prevention of Money Laundering Act 2002

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