September 10, 2024

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.

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 therefor 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.

Sentence of imprisonment in default of fine (1) 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.

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. STATE AMENDMENTS MAHARASHTRA ■   Section 29 –   in sub-section (2), for the words “ten thousand rupees”, substitute the words “fifty thousand rupees”; –   in sub-section (3), for the words “five thousand rupees”, substitute the words “ten thousand rupees”.—vide Maharashtra Act 27 of 2007. PUNJAB ■   Section 29A –   After section 29, the following section shall be inserted, w.e.f. 27-6-1983, namely:—     “29A. Sentence which Executive Magistrate may pass.—An Executive Magistrate may pass a sentence of imprisonment of a term not exceeding three years or of fine not exceeding five thousand rupees, or both.”—vide Punjab Act 22 of 1983.

Sentences which High Courts and Sessions Judges may pass (1) A High Court may pass any sentence authorised by law. (2) 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. (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.

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 (60 of 1960), or any other law for the time being in force providing for the treatment, training and rehabilitation of youthful offenders.  

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 (iii)   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] (45 of 1860) 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. STATE AMENDMENTS UTTAR PRADESH ■   Clause (b)     For clause (b) substitute the following : “(b)   any offence under any other law may be tried— (i)   when any court is mentioned in this behalf in such law, by such court, or by any court superior in rank to such court, and (ii)   when no court is so mentioned, by any court by which such offence is shown in the First Schedule to be triable, or by any court superior in rank to such. Court”—Vide Act No. 1 of 1984.

Directorate of Prosecution (1) The State Government may establish a Directorate of Prosecution consisting of a Director of Prosecution and as many Deputy Directors of Prosecution as it thinks fit. (2) A person shall be eligible to be appointed as a Director of Prosecution or a Deputy Director of Prosecution, only if he has been in practice as an advocate for not less than ten years and such appointment shall be made with the concurrence of the Chief Justice of the High Court. (3) The Head of the Directorate of Prosecution shall be the Director of Prosecution, who shall function under the administrative control of the Head of the Home Department in the State. (4) Every Deputy Director of Prosecution shall be subordinate to the Director of Prosecution. (5) Every Public Prosecutor, Additional Public Prosecutor and Special Public Prosecutor appointed by the State Government under sub-section (1), or as the case may be, sub-section (8), of section 24 to conduct cases in the High Court shall be subordinate to the Director of Prosecution. (6) Every Public Prosecutor, Additional Public Prosecutor and Special Public Prosecutor appointed by the State Government under sub-section (3), or as the case may be, sub-section (8), of section 24 to conduct cases in District Courts and every Assistant Public Prosecutor appointed under sub-section (1) of section 25 shall be subordinate to the Deputy Director of Prosecution. (7) The powers and functions of the Director of Prosecution and the Deputy Directors of Prosecution and the areas for which each of the Deputy Directors of Prosecution have been appointed shall be such as the State Government may, by notification, specify. (8) The provisions of this section shall not apply to the Advocate General for the State while performing the functions of a Public Prosecutor.]

Assistant Public Prosecutors (1) The State Government shall appoint in every district one or more Assistant Public Prosecutors for conducting prosecutions in the Courts of Magistrates. (1A) The Central Government may appoint one or more Assistant Public Prosecutors for the purpose of conducting any case or class of cases in the Courts of Magistrates. (2) Save as otherwise provided in sub-section (3), no police officer shall be eligible to be appointed as an Assistant Public Prosecutor. (3) Where no Assistant Public Prosecutor is available for the purposes of any particular case, the District Magistrate may appoint any other person to be the Assistant Public Prosecutor in charge of that case : Provided that a police officer shall not be so appointed— (a)   if he has taken any part in the investigation into the offence with respect to which the accused is being prosecuted; or (b)   if he is below the rank of Inspector. STATE AMENDMENTS ORISSA ■ Sub-section (2) The following proviso shall be inserted namely :— “Provided that nothing in this sub-section shall be construed to prohibit the State Government from exercising its control over Assistant Public Prosecutor through Police Officers.” – Vide Act No. 6 of 1995. UTTAR PRADESH ■ Sub-section (2) Insert following proviso : “Provided that nothing in this sub-section shall be construed to prohibit the State Government from exercising its control over Assistant Public Prosecutor through police officers.”—Vide Uttar Pradesh Act No. 16 of 1976. WEST BENGAL ■ Sub-section (3) For sub-section (3), substitute the following : “(3) Where no Assistant Public Prosecutor is available for the purposes of any particular case, any advocate may be appointed to be the Assistant Public Prosecutor in charge of that case, — (a)   where the case is before the Court of the Judicial Magistrate in any area in a sub-division, wherein the headquarters of the District Magistrate are situated, by the District Magistrate; or (b)   where the case is before the Court of the Judicial Magistrate in any area in a sub-division, other than the sub-division referred to in clause (a), wherein the headquarters of the Sub-divisional Magistrate are situated, by the Sub-divisional Magistrate; or (c)   where the case is before the Court of the Judicial Magistrate in any area, other than the area referred to in clauses (a) and (b), by a local officer (other than a police officer) specially authorised by the District Magistrate in this behalf. Explanation : For the purposes of this sub-section,— (i)   “advocate” shall have the same meaning as in the Advocates Act, 1961 (5 of 1961); (ii)   “local officer” shall mean an officer of the State Government in any area, other than the area referred to in clauses (a) and (b).”—Vide Act No. 17 of 1985. COMMENTS Assistant Public Prosecutor cannot be subjected to administrative control of Police department – The mandate of sub-section (3) of section 25 implies that the State Government or the Central Government which appoints Assistant Public Prosecutors for the purpose of conducting prosecutions in Magistrates’ Courts in District, must put them in an independent cadre and create a separate independent Prosecution Department, having its own heirarchy of officers made directly responsible to the concerned Government. Their separation from the police officers of the Police Department and freeing them from the administrative or disciplinary control of officers of the Police Department are the inevitable consequential actions required to be taken by the State Government which appoints such Assistant Public Prosecutors, inasmuch as, taking of such actions are statutory obligations impliedly imposed upon it under sub-section (3) thereof—S.B. Shahane v. State of Maharashtra AIR 1995 SC 1628. Assistant Public Prosecutors independent of police – Section 25 creates new office of Assistant Public Prosecutors for Courts of Magistrates. Formerly there used to be police prosecutors. Sub-section (2) bars the appointment of police officers to this post. The object is frustrated if the officers are placed directly under the control of the Superintendent of Police, even though the State Government may retain the ultimate control over the public prosecutor by removing or dismissing him. The proviso, read with sub-section (3), makes it clear that, in exceptional circumstances, the District Magistrate may appoint a police officer, who may not have taken part in the investigation of the offence for conducting a particular criminal case in the Court of a Magistrate. Section 25 makes the legislative intent clear that the prosecuting agency should be free from the police department which is generally entrusted with the task of maintenance of law and order and prevention and investigation of crimes – Jai Pal Singh Naresh v. State of UP 1976 Cr. LJ 32.