CODE OF CRIMINAL PROCEDURE, 1973

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.

Public Prosecutors (1) For every High Court, the Central Government or the State Government shall, after consultation with the High Court, appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors, for conducting in such Court, any prosecution, appeal or other proceeding on behalf of the Central Government or State Government, as the case may be. (2) The Central Government may appoint one or more Public Prosecutors, for the purpose of conducting any case or class of cases in any district or local area. (3) For every district, the State Government shall appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors for the district : Provided that the Public Prosecutor or Additional Public Prosecutor appointed for one district may be appointed also to be a Public Prosecutor, or an Additional Public Prosecutor, as the case may be, for another district. (4) The District Magistrate shall, in consultation with the Sessions Judge, prepare a panel of names of persons, who are, in his opinion, fit to be appointed as Public Prosecutors or Additional Public Prosecutors for the district. (5) No person shall be appointed by the State Government as the Public Prosecutor or Additional Public Prosecutor for the district unless his name appears in the panel of names prepared by the District Magistrate under sub-section (4). (6) Notwithstanding anything contained in sub-section (5), where in a State there exists a regular Cadre of Prosecuting Officers, the State Government shall appoint a Public Prosecutor or an Additional Public Prosecutor only from among the persons constituting such Cadre : Provided that where, in the opinion of the State Government, no suitable person is available in such Cadre for such appointment that Government may appoint a person as Public Prosecutor or Additional Public Prosecutor, as the case may be, from the panel of names prepared by the District Magistrate under sub-section (4). [Explanation.—For the purposes of this sub-section,— (a)   “regular Cadre of Prosecuting Officers” means a Cadre of Prosecuting Officers which includes therein the post of a Public Prosecutor, by whatever name called, and which provides for promotion of Assistant Public Prosecutors, by whatever name called, to that post; (b)   “Prosecuting Officer” means a person, by whatever name called, appointed to perform the functions of a Public Prosecutor, an Additional Public Prosecutor or an Assistant Public Prosecutor under this Code.] (7) A person shall be eligible to be appointed as a Public Prosecutor or an Additional Public Prosecutor under sub-section (1) or sub-section (2) or sub-section (3) or sub-section (6), only if he has been in practice as an advocate for not less than seven years. (8) The Central Government or the State Government may appoint, for the purposes of any case or class of cases, a person who has been in practice as an advocate for not less than ten years as a Special Public Prosecutor : [Provided that the Court may permit the victim to engage an advocate of his choice to assist the prosecution under this sub-section.] (9) For the purposes of sub-section (7) and sub-section (8), the period during which a person has been in practice as a pleader, or has rendered (whether before or after the commencement of this Code) service as a Public Prosecutor or as an Additional Public Prosecutor or Assistant Public Prosecutor or other Prosecuting Officer, by whatever name called, shall be deemed to be the period during which such person has been in practice as an advocate. STATE AMENDMENTS BIHAR ■ Section 24(6) Sub-section (6), substitute the following : “(6) Notwithstanding anything contained in sub-section (5) wherein a State there exists a regular cadre of Prosecuting Officers, the State Government may also appoint a public prosecutor or an Additional Public Prosecutor from among the persons constituting such cadre.”—Vide Act No. 16 of 1984. JAMMU AND KASHMIR ■Section 24(6A) – After sub-section (6), insert the following sub-section: “(6A) Notwithstanding anything contained in sub-section (1) and sub-section (6), the Government of the Union territory of Jammu and Kashmir may appoint a person who has been in practice as an Advocate for not less than seven years as Public Prosecutor or Additional Public Prosecutor for High Court and for the District Courts and it shall not be necessary to appoint public Prosecutor or Additional Public prosecutor for the High Court in consultation with High Court and Public Prosecutor or Additional Public Prosecutor for the District Court from amongst the person constituting the cadre of Prosecution for the State of Jammu and Kashmir.”- Vide Order S.O. 1123(E), dated 18-3-2020, w.e.f. 18-3-2020. HARYANA ■ Section 24(6) Add the following Explanation to sub-section (6) : “Explanation : For the purpose of sub-section (6), the persons constituting the Haryana State Prosecution Legal Service (Group A) or Haryana State Prosecution Legal Service (Group B), shall be deemed to be a regular cadre of prosecuting officers.”—Vide Act No. 14 of 1985. KARNATAKA ■ Sub-section (1) – Omit the words and punctuation mark “or the State Government shall”, – For the words “appoint a Public Prosecutor” substitute the words “or the State Government shall appoint a Public Prosecutor”—Vide Act No. 20 of 1982. MADHYA PRADESH ■ Sub-section (6) – For the words, brackets and figure “Notwithstanding anything contained in sub-section (5)”, the words, brackets, letter and figures “Notwithstanding anything contained in sub-section (5), but subject to the provisions of sub-section (6A)” shall be substituted and shall be deemed to have been substituted with effect from 18th December, 1978.—Vide M.P. Act No. 21 of 1995. ■ Sub-section (6A) – After sub-section (6), the following sub-section shall be inserted and shall be deemed to have been inserted with effect from 18th December, 1978, namely :— “(6A) Notwithstanding anything contained in sub-section (6), the State Government may appoint a person who has been in practice as an advocate for not less than seven years as the Public Prosecutor or Additional Public Prosecutor for the district and it shall not be necessary to appoint the Public Prosecutor or Additional Public Prosecutor for the district from among the persons constituting the Cadre of Prosecuting Officers in the State of Madhya Pradesh

Subordination of Executive Magistrates (1) All Executive Magistrates, other than the Additional District Magistrate, shall be subordinate to the District Magistrate, and every Executive Magistrate (other than the Sub-divisional Magistrate) exercising powers in a sub-division shall also be subordinate to the Sub-divisional Magistrate, subject, however, to the general control of the District Magistrate. (2) The District Magistrate may, from time to time, make rules or give special orders, consistent with this Code, as to the distribution of business among the Executive Magistrates subordinate to him and as to the allocation of business to an Additional District Magistrate.  

(1) Subject to the control of the State Government, the District Magistrate may, from time to time, define the local limits of the areas within which the Executive Magistrates may exercise all or any of the powers with which they may be invested under this Code. (2) Except as otherwise provided by such definition; the jurisdiction and powers of every such Magistrate shall extend throughout the district.

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 conferable under this Code on Executive Magistrates, as it may deem fit. COMMENTS Executive Magistrate – Sections 20 and 21 provide for the appointment of the Executive Magistrates (i.e., the District Magistrate, Sub-divisional Magistrates and other Executive Magistrates) and Special Executive Magistrates. Sections 22 and 23 provide for local jurisdiction and subordination of the Executive Magistrates. These are as a consequence of the separation of the Judiciary from the Executive. The provisions are analogous to sections 10, 11, 12, 13 and 17 of the old Code. Important features – Two important features may, however, be noted. Sub-section (5) of section 20 preserves the powers of the State Government under the relevant Police Act to confer on the Commissioner of Police powers of an Executive Magistrate. The second feature is that on the lines of special Judicial and Special Metropolitan Magistrates section 21 empowers the State Government to appoint Special Executive Magistrates. On this point, the Joint Committee of Parliament observed : “A provision is necessary to enable the appointment of Special Executive Magistrates to meet special needs in relation to particular areas or for the performance of particular duties.”

Executive Magistrates (1) 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. (2) 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. (3) Whenever, in consequence of the office of a District Magistrate becoming vacant, any officer succeeds temporarily to the executive administration of the district, such officer shall, pending the orders of the State Government, exercise all the powers and perform all the duties respectively conferred and imposed by this Code on the District Magistrate. (4) The State Government may place an Executive Magistrate in charge of a sub-division and may relieve him of the charge as occasion requires; and the Magistrate so placed in charge of a sub-division shall be called the Sub-divisional Magistrate. [(4A) The State Government may, by general or special order and subject to such control and directions as it may deem fit to impose, delegate its powers under sub-section (4) to the District Magistrate.] (5) Nothing in this section shall preclude the State Government from conferring, under any law for the time being in force, on a Commissioner of Police, all or any of the powers of an Executive Magistrate in relation to a metropolitan area. STATE AMENDMENTS UTTAR PRADESH ■ Sub-section (6) Insert the following sub-section after sub-section (5) : “(6) The State Government may delegate its powers under sub-section (4) to the District Magistrate.”—Vide Act No. 1 of 1984.

Subordination of Metropolitan Magistrates (1) The Chief Metropolitan Magistrate and every Additional Chief Metropolitan Magistrate shall be subordinate to the Sessions Judge; and every other Metropolitan Magistrate shall, subject to the general control of the Sessions Judge, be subordinate to the Chief Metropolitan Magistrate. (2) The High Court may, for the purposes of this Code, define the extent of the subordination, if any, of the Additional Chief Metropolitan Magistrates to the Chief Metropolitan Magistrate. (3) The Chief Metropolitan Magistrate may, from time to time, make rules or give special orders, consistent with this Code, as to the distribution of business among the Metropolitan Magistrates and as to the allocation of business to an Additional Chief Metropolitan Magistrate.

Special Metropolitan Magistrates (1) 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 or any of the powers conferred or conferable 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 : 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. (2) 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. (3) 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. STATE AMENDMENTS ANDHRA PRADESH ■ Sub-section (2) For the words “not exceeding one year at a time”, the words “not exceeding two years at a time” shall be substituted and to the said sub-section the following proviso shall be added, namely :— “Provided that a person who is holding the office of Special Metropolitan Magistrate at the commencement of the Code of Criminal Procedure (Andhra Pradesh Amendment) Act, 1992, and has not completed sixty five years of age shall continue to hold office for a term of two years from the date of his appointment”.—Andhra Pradesh Act 2 of 1992. MAHARASHTRA ■ Sub-section (1) For the words “in any metropolitan area” substitute the words “in one or more metropolitan areas”—Vide Maharashtra Act No. 23 of 1976. COMMENTS JOINT COMMITTEE OF PARLIAMENT Criticism of system of Honorary Magistrates – Sections 13 and 18 deal with the appointment of Special Judicial/Metropolitan Magistrates. These correspond to section 14 of the old Code. It was under the latter section that Honorary Magistrates could be appointed. The Joint Committee of Parliament took note of the widespread criticism of the working of the system of Honorary Magistrates, particularly of the Benches. It observed : “The justification that is usually given for the system of appointing Honorary Magistrates is that it helps in giving relief to the stipendiary Magistracy by disposing of a large number of petty criminal cases, particularly in the larger towns. In the Committee’s view the proper way to deal with arrears will be to appoint sufficient number of stipendiary Magistrates. However, the Committee is convinced that the deletion of the enabling provision for appointment of Special Magistrates would create problems, as happened in the Union territory of Delhi recently. In certain States, the practice of appointing retired Government officers as Special Magistrates, sitting singly to dispose of petty cases has been adopted with advantage. These Magistrates, who are usually invested with summary powers, are able to dispose of a large number of petty cases with expedition. An enabling provision in this behalf is necessary as it may facilitate the appointment of such Special Magistrates for disposing of petty cases. The enabling provision would also be useful in another way. In remote or inaccessible localities or areas with thin population, the available work may not justify the appointment of a full time Magistrate. In such situations there is a practice in some States to confer the powers of a Magistrate on a local officer of Government, like the Sub-Registrar, to dispose of the few criminal cases arising in such areas. This will be a facility to the local inhabitants who otherwise would have to travel a long distance to reach a Magistrate’s Court.” Modification of the system—The Committee, after careful consideration, is of the view that the enabling power to appoint Special Magistrates should be retained both in the metropolitan areas and elsewhere, with the following modifications : a.   The system of appointing Benches of Magistrates should be abolished [old section 15]. b.   The persons to be appointed as Special Magistrates should be either persons in Government service or those who have retired from Government service. c.   The High Court should have power to prescribe qualifications or experience in relation to legal affairs, to be satisfied by a person before he is appointed as a Special Magistrate. d.   The appointment should be made by the High Court and should be for a period not exceeding one year at a time. e.   The sentencing powers of a Special Magistrate should correspond to the powers of a Second Class Magistrate.