This chapter deals with three topics, viz., (1) Courts by which offences are triable; (2) the sentences which these Courts can pass including passing of sentence in case of conviction of several offences at one trial; and (3) modes of conferring of powers on, and withdrawal of powers from, persons or officials by the High Court and the State Government. The last section of the Chapter deals with exercise of powers of Judges and Magistrates by their successors in office.
Sec 26: Courts by which offences are triable - Subject to the other provisions of this code -
(a) any offence under the Indian Penal Code (45 of 1860) may be tried by
(i) the High Court, or
(ii) the Court of Session, or
any other Court by which such offence is shown in the First Schedule to be triable:
[Provided that any [offence under section 376, [section 376A, section 376AB, section 376B, section 376C, section 376D, section 376DA, section 376DB] or section 376E of the Indian Penal Code shall be tried as far as practicable by a Court presided over by a woman.]
(b) 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 -
(i) the High Court, or
(ii) any other Court by which such offence is shown in the First Schedule to be triable.
COMMENT
Offences have been divided into two categories, viz., offences under the Indian Penal Code and offences under any other law. As far as offences under the Penal Code are concerned, they are triable by the High Court, the Court of Session or any other Court shown in the First Schedule to this Code. When no Court is mentioned for any offence under any law other than the IPC to try such offences, the High Court has been empowered. However, reading it with section 4(2) of the Code, it is clear that the legislative intent is not that the High Court can take cognizance of such an offence directly and try the accused itself, without following the procedure laid down in the Code.
Hierarchy of Courts - The criminal jurisprudence of the country proceeds on the basis that a person is innocent and the burden rests on the prosecution to prove beyond all reasonable doubts as regards the guilt of the accuse persons. It is with this background that the Code of Criminal Procedure (CrPC) has conferred on to the hierarchy of the Courts specific powers to deal with the matter as may seem to be just and proper. There is no scope for arbitrary exercise of powers because they are circumscribed and have to be exercised in accordance with the provisions of law and not dehors the same. Even discretionary powers have to be exercised in a manner consistent with the known principles of law and not otherwise.
Legislative Changes - Sec 26 of the Code has been amended vide the Criminal Law (Amendment) Act, 2018. The 2018 Amendment Act has substituted to words, "Section 376A, section 376AB, section 376B, section 376C, section 376D, section 376DA, section 376DB" for the words, "Section 376A, Section 376B, Section 376C, Section 376D" in the proviso to section 26(a). The change has been made to bring the newly inserted sections 376AB, 376DA and 376DB of the Indian Penal Code, within the purview of section 26.
Sec 27- Jurisdiction in the case of Juveniles - 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 or any other law for the time being in force providing for the treatment, training and rehabilitation of youthful offenders.
Juvenile Courts - Earlier Juvenile Justice Act, 1986 laid that offenders below 16 years if male, and under 18 years if female shall be treated as juveniles in conflict with law Vide amendment in 2000, Juvenile Justice Act, 2000, was brought which made the age uniform as 18 years irrespective of the gender. In 2015, the Act has been amended further and juveniles between the age bracket of 16 and 18, if alleged to have committed heinous/serious offences shall be treated as adults.
Sec 28- Sentences which High Courts and Sessions Judges may pass - (1) A high court may pass any sentence authorised by law.
(2) A Session 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.
(3) 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.
COMMENT
The Code first enumerates the Courts by which different offences can be tried, and then proceeds to define the limits of sentences which they can pass. These limits show the maximum sentence which a Court can pass; they have nothing to do with the maximum penalty provided for an offence. The High Court can pass any sentence provided by law; so also, can a Sessions Judge or Additional Sessions Judge, but any sentence of death passed by the latter is subject to confirmation by the High Court. An Assistant Sessions Judge can pass any sentence short of a sentence of death, imprisonment for life or imprisonment exceeding ten years.
Sec 29- Sentences which Magistrates may pass - (1) 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.
(2) 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 [ten thousand rupees], or of both.
(3) 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 [five thousand rupees], or of both.
(4) 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.
CrPC (Amendment) Act, 2005 - This clause seeks to amend section 29 of the Code to enhance the sentencing power of the Magistrate of the First Class to impose fine from five thousand rupees and Magistrate of the Second Class from one thousand rupees upto five thousand rupees. This is being proposed keeping in view the depreciation of the value of the rupee since 1973 and to make the provision more deterrent.
This section lays down the quantum of sentence which different categories of Magistrates are empowered to impose. The Magistrate of the first class can pass sentence only up to three years. But he can try such cases and if he feels that the accused deserves more severe punishment than it is within his powers to give, he can take recourse to section 325 of the code and forward the accused to the Chief Judicial Magistrate. Power available to the Chief Judicial Magistrate cannot be exercised by such Magistrate when he presides over the Children's Court.
Fine under Negotiable Instruments Act, section 138 - The bar put on the Magistrate under section 29 CrPC is not applicable upon the High Court. The High Court may impose a fine which may extend to twice the amount of the cheque. The award of imprisonment for only one day, though not sufficient, it was not interfered with because of the special circumstances of the case. The career of the accused as a cine artist would have been spoiled affecting also the production of the films in which she was working. The High Court enhanced the fine to twice the amount of the cheque.
Sec 30- Sentence of imprisonment in default of fine - (2) 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 -
(a) is not in excess of the powers of the Magistrate under section 29;
(b) 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.
(2) 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.
Authorised by law - See sec 63 to 67 of the IPC.
Sec 31- Sentence in cases of conviction of several offences at one trial - (1) 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.
(2) In the case of consecutive sentences, it shall not be necessary for the Court by reason only of the
aggregate punishment for the several offences being in excess of the punishment which it is competent to
inflict on conviction of a single offence, to send the offender for trial before a higher Court:
Provided that—
(a) in no case shall such person be sentenced to imprisonment for a longer period than fourteen
years;
(b) the aggregate punishment shall not exceed twice the amount of punishment which the Court
is competent to inflict for a single offence.
(3) For the purpose of appeal by a convicted person, the aggregate of the consecutive sentences
passed against him under this section shall be deemed to be a single sentence.
This section relates to the quantum of the punishment that the Court has jurisdiction to pass where the accused is convicted of two or more offences at one trial (section 218 - 223). The Court may pass separate sentences, subject to the provisions of section 71 of IPC, for the several offences of which the Court finds the accused guilty. The aggregate punishment and the length of the period of imprisonment must not exceed the limit fixed by the provisos. Section 71 of the IPC provides (1) that where an offence is made up of parts each of which parts is itself an offence, the offender can be punished only for one of such offences; (2) that where an offence falls under two or more definitions of offences or where several acts, each of which is an offence, constitute when combined a different offence, then the punishment could be awarded only for any one of such offences. These are rules of substantive law. The present section is a rule of procedural law.
Sec 32 - Mode of conferring powers - (1) In conferring powers under this Code, the High Court or the State Government, as the case may be, may, by order, empower persons specially by name or in virtue of their offices or classes of officials generally by their official titles.
(2) Every such order shall take effect from the date on which it is communicated to the person so empowered.
COMMENT
When a Magistrate is invested with second class power on the date, he commences the trial of a case, but is invested with first class powers before he finished it, he is competent to pass sentences on the accused under the first-class powers.
Sec 33 - Powers of officers appointed - 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.
COMMENT
This section refers to the transfer of a Magistrate from one district or area to another and points to the investing of powers as personal. But when a Magistrate is transferred from one district to another, he ceases to have jurisdiction in his district as soon as he relinquishes charge. If a Deputy Collector does not exercise the powers of a Magistrate vested in him, it cannot be implied that the said powers are impliedly withdrawn, because the section does not require actual exercise of such power but only the capacity to exercise it.
Sec 34- Withdrawal of powers - (1) 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.
(2) 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.
Reference to the High Court in the present section in addition to the State Government has been considered necessary since in many places the High Court is being made the authority for conferring power in judicial matters.
Sec 35- Powers of Judges and Magistrates exercisable by their successors-in-office.—(1) Subject to
the other provisions of this Code, the powers and duties of a Judge or Magistrate may be exercised or
performed by his successor-in-office.
(2) When there is any doubt as to who is the successor-in-office of any Additional or Assistant
Sessions Judge, the Sessions Judge shall determine by order in writing the Judge 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 Additional or Assistant Sessions Judge.
(3) 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 in writing the
Magistrate who shall, for the purpose of this Code or of any proceedings or order thereunder, be deemed
to be the successor-in-office of such Magistrate.
Sub-sections (2) and (3) do not limit sub-section (1) of the section. It is in cases of doubt that sub-sections (2) and (3) will come into operation. It cannot be said that until a successor is determined under sub-section (2) and (3), there is no successor for the purpose of sub-section (1). If there is no doubt about who the successor is, then that person can exercise the powers under sub-section (1).
Irrespective of what the state of records may be or what orders the predecessor may have passed, a responsible Judicial Officer is required to take requisite corrective action even to offset the damage.
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