Section 6 to 24 of the Code of Criminal Procedure deal with the constitution of criminal courts. As a result of the separation of judiciary from executive, now there will be two types of magistrate namely Judicial Magistrates and Executive Magistrates, the former being under control of the High Court while the latter is under the control of the state government. With regards to the function of these two categories of Magistrates, the functions which are essentially judicial in nature will be performed by the Judicial Magistrate while the matters relating to police and administration will be the concern of the Executive Magistrates.
According to Section 6, which lay down the beside the High Court and the courts constituted under any law other than this Code, there shall be in every State the following classes of Criminal Courts, namely –
- Court of Session.
- Judicial Magistrates of the first class and Metropolitan Magistrates in metropolitan areas.
- Judicial Magistrates of second class, and
- Executive Magistrates.
The four types of criminal courts enumerated above are the courts constituted under the Code while the High Court and other courts are constituted by the provisions of the Constitution of India. Each class of courts are distinct from others. Thus a High Court is not a Court of Session, even when it exercising it’s original criminal jurisdiction, nor a Court of Session a Magistrate under any circumstances.
Under the Constitution, the Supreme Court is empowered to deal with certain criminal matters. Article 134 confers appellate jurisdiction to Supreme Court in regards to criminal matters and the appeal shall lie to it from any judgment of High Court in a criminal proceeding within the territory of India if the High Court –
- Has on appeal reversed an order of acquittal of an accused person and sentenced him death, or
- Has withdrawn for trial before itself any case from any subordinate court and has therefore convicted and sentence of death to the accused, or
- Certifies that the case is fit for an appeal to the Supreme Court.
Court of Session (Section 9):
The State Government has to establish a Court of Session for every Session Division. The power to appoint Session Judge, Additional Session Judge and Assistance Judge has been given to the High Court. A Session Judge of one division may be appointed as Additional Session Judge of another Session Division and in such case, he may sit at such place in either Division as the High Court may direct. The power of appointment of Session Judges conferred to the High Courts has been clarified in the explanation which provides that the power of the High Court in the matter of first appointment, posting or promotion arising under this section shall be subject to the provision of any law which requires it to be done by the government.
Courts of Judicial Magistrates:
Under Sub Section (1) of Section 11 of the Code of Criminal Procedure, The State Government in consultation with the High Court may decide and establish the Court of Judicial Magistrate of First Class and Judicial Magistrate of Second class in a district other than in metropolitan areas.
The State Government after consultation with the High Court may also establish one or more Special Court of Judicial Magistrate of first class and second class in any local areas to try any particular case or class of cases, and where there are such of special courts has been established no other Judicial Magistrate shall have the jurisdiction on that particular case or classes of cases for which the Special Court of Judicial Magistrate has been established.
Further Sub Section 3 empowers the High Court to confer the power of judicial Magistrate of any class to any person who is a member of the State Judicial Service functioning as a judge of a Civil Court. However, such power can only be exercised by the High Court on the ground of necessity and expediency.
Under Sub Section (1) of Section 12, the High Court has the power to appoint the Chief Judicial Magistrate amongst the Judicial Magistrate of first class for every district other than in metropolitan areas. Likewise, under the Sub Section (2) the High Court may appoint any Judicial first class as Additional Chief Judicial Magistrate.
The Sub-section (1) of Section 17 provides for the appointment of Chief Metropolitan Magistrate from amongst the Metropolitan Magistrate, the appointing authority is the High Court. Further Section 18 provides that on request of the Central or State Government the High Court may also appoint any Special Metropolitan Magistrate for any Metropolitan areas.
Executive Magistrate:
Section 20 of the Code of Criminal Procedure provides for the appointment of Executive Magistrate. Under Section 20, in every district or metropolitan areas, the State Government may appoint as many person it thinks to be the Executive Magistrate and shall appoint one of them to be the District Magistrate.
Sub Section (4) of Section 20 provides that the State Government may place an Executive Magistrate in charge of a Sub Division and may relieve him of the charge as an occasion requires, and the Magistrate so placed shall be called as the Sub Divisional Magistrate.
Section 20 to 23 of the Code provides for the appointment, jurisdiction and subordination of the Magistrate on the executive sides.
Power of Criminal Courts to pass sentences:
- Supreme Court of India: Any sentence authorized by law.
- High Court: Any Sentence authorized by law.
- Session Court & Additional Session Court: Any sentence authorized by law, but in case of death sentence it is subject to the confirmation of the High Court.
- Assistant. Session Judge: Imprisonment up to 10 years and fine.
- Chief Judicial Magistrate or Chief Metropolitan Magistrate: Imprisonment up to 7 years and fine.
- Metropolitan Magistrate or Special Metropolitan Magistrate: Imprisonment up to three years and/or fine up to Rs. 10,000/-
- Judicial Magistrate of First Class or Special Judicial Magistrate of First Class: Imprisonment up to three years and/or fine up to Rs. 10,000/-
- Judicial Magistrate of Second Class or Special Judicial Magistrate of Second Class: Imprisonment up to one year and/or fine up to Rs. 5,000/-
