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Dr.

RAM MANOHAR LOHIA NATIONAL


LAW UNIVERSITY LUCKNOW

CODE OF CRIMINAL PROCEDURE


FINAL PROJECT
ROLE AND RESPONSIBILITY OF COURT IN A CRIMINAL TRIAL &
POWER OF APPELLATE COURT

Submitted to:- Submitted by:-

Prof. Dr.Prem Kumar Gautam Amit Singh

Roll no. 12

Section -A

B.A. LL.B.(Hons.)- Vth semester

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ACKNOWLEDGEMENT
I Amit Singh would like to express my special thanks of
gratitude to my Criminal Law teacher Prem Kumar Gautam
Sir 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.

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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

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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.

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

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

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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 powers 3.
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
Court. The High Court may also appoint Additional Session Judges to exercise jurisdiction
in the Session Court.

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.

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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
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

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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
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.

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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.

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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.

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iv. EFFICACY OF THE CRIMINAL JUSTICE SYSTEM
The 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.

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3. ROLE AND RESPOSIBILITIES OF THE CRIMINAL
COURT
i. 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.

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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- Judges 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

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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-57 14 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 416
14
Khatri (II) v. State of Bihar (1981) SCC (Cri.) 228, I.G. of Police v. Prem Sagar (1999) 5 SCC 700.

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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 Sharmas case, (2010) 6 SCC 1

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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


courts 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
courts 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, judges role as
protector of the individuals interests and societys 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

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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, 1973
19
Section 27 Code of Criminal Procedure, 1973
20
Section 28 Code of Criminal Procedure, 1973

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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

21
Section 30 Code of Criminal Procedure, 1973
22
Section 33 Code of Criminal Procedure, 1973
23
Section 34 Code of Criminal Procedure, 1973

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

24
R.V. Kelkar, Lectures on Criminal Procedure, 5 th eds., Eastern Book Company, pp- 281- 285.
25
Shyani Deo Pandey v. State of Bihar, (1971) 1 SCC 855
26
E. Balakrisbnamma v. State of A.P., 1993 Cri LJ 2328 (AP).

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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.
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

27
AIR 1961 SC 715.
28
http://www.samrthbharat.com/judiciary.htm, retrieved on 26th April, 2015.
29
Salim Zia V. State of U.P. (1979) 2 SCC 648.

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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
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

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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:
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

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

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CONCLUSION, SUGGESTION AND CRITICISM
It 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
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 dont, 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.

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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
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 Courts 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.

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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.
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 Hazares 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 partys request, nor can partys lawyer being engaged in another court be
ground for adjournment.

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BIBLIOGRAPHY:

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

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