Power of Courts Under the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023
Chapter III of BNSS, 2023 outlines the powers of criminal courts, ensuring that each judicial officer operates within a well-defined legal framework.
The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), enacted to replace the Code of Criminal Procedure, 1973, brings a modern and structured approach to India's criminal procedure system. Among its critical components is Chapter III, which defines the power of courts in the context of trials, sentencing, administrative delegation, and continuity in judicial authority. This chapter outlines which courts can try particular offences, the extent of punishments they can impose, and the...
The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), enacted to replace the Code of Criminal Procedure, 1973, brings a modern and structured approach to India's criminal procedure system. Among its critical components is Chapter III, which defines the power of courts in the context of trials, sentencing, administrative delegation, and continuity in judicial authority. This chapter outlines which courts can try particular offences, the extent of punishments they can impose, and the framework within which judicial powers are assigned, exercised, transferred, or withdrawn.
Courts by Which Offences Are Triable under BNSS (Section 21)
Under the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, the classification of courts competent to try offences is defined in alignment with the First Schedule of the Sanhita and the provisions of the Bharatiya Nyaya Sanhita (BNS), 2023. This framework ensures that offences are tried by courts with appropriate jurisdiction and competence.
Clause (a) of the relevant provision states that any offence punishable under the Bharatiya Nyaya Sanhita, 2023 may be tried by:
- The High Court,
- a Court of Session, or
- any other court specified in the First Schedule of BNSS as being competent to try the particular offence.
Importantly, a proviso adds a gender-sensitive safeguard by stating that offences under Sections 63 (rape), 64 (gang rape), 68 (sexual intercourse by a person in authority), 70 (voyeurism), and 71 (stalking) of the BNS should, as far as practicable, be tried by a court presided over by a woman judge. This reflects the legislature’s commitment to a more empathetic and inclusive judicial process in cases involving crimes against women.
Clause (b) pertains to offences under other laws (i.e., laws apart from the BNS). If the special law specifies a particular court for trial, then that court will have jurisdiction. However, where no specific court is mentioned in such a law, the offence may be tried by:
- the High Court, or
- any other court as listed in the First Schedule to the BNSS.
This bifurcated approach ensures that both substantive offences under BNS and those under special or local laws are tried by designated jurisdictional norms. The First Schedule thus plays a central role in determining which class of magistrate or court is competent to try a given offence, based on the gravity and classification of the offence.
Power of High Courts and Sessions Judges to Pass Sentences under BNSS (Section 22)
Section 22 of the BNSS, 2023 deals with the extent of sentencing powers conferred upon the High Courts, Sessions Judges, and Additional Sessions Judges in India’s criminal justice system.
Sub-section (1) of Section 22 lays down that a High Court may pass any sentence authorised by law. This means that the High Court has the full authority to impose all legally permissible punishments, including the death penalty, life imprisonment, imprisonment for various terms, or fines. This provision affirms the High Court's position as a court of both appellate and original jurisdiction in serious criminal matters, empowered to impose the harshest punishment where warranted by law and circumstances.
Sub-section (2) states that a Sessions Judge or an Additional Sessions Judge may also pass any legally permissible sentence. This includes the death sentence. However, if a Sessions Court imposes a death sentence, it cannot be executed immediately. Such a sentence must be confirmed by the High Court before it takes effect. This safeguard ensures a higher level of judicial scrutiny before the imposition of capital punishment, which is considered the most severe penalty under Indian criminal law.
The mandatory confirmation by the High Court ensures that the death penalty is imposed only in the “rarest of rare” cases and after thorough judicial consideration. It acts as a critical procedural check to prevent miscarriage of justice and to uphold the constitutional guarantee of fair trial and due process under Article 21 of the Constitution of India.
Sentences Which Magistrates May Pass (Section 23)
Section 23 of the BNSS, 2023 outlines the sentencing powers of various classes of Magistrates, distinguishing them based on the gravity of offences they can deal with and the extent of punishment they can impose. These limits ensure that less serious offences are handled by lower courts, while more serious cases are reserved for higher courts such as the Sessions Courts.
Sub-section (1) deals with the powers of a Chief Judicial Magistrate (CJM). A CJM is authorised to pass any sentence permitted by law, with the exception of three categories:
- A sentence of death,
- Imprisonment for life, and
- Imprisonment for a term exceeding seven years.
This means that the CJM has fairly wide powers, but cannot deal with the most serious offences, which are exclusively tried by a Court of Session.
Sub-section (2) specifies the sentencing powers of a Judicial Magistrate of the First Class. Such a Magistrate can impose:
- A sentence of imprisonment for a term not exceeding three years, or
- A fine not exceeding fifty thousand rupees, or
- Both imprisonment and fine, depending on the nature of the offence and the circumstances of the case.
This category of Magistrates handles moderately serious cases.
Sub-section (3) defines the jurisdiction of a Judicial Magistrate of the Second Class. These Magistrates can pass:
- A sentence of imprisonment not exceeding one year, or
- A fine not exceeding ten thousand rupees, or
- Both imprisonment and fine.
They are generally entrusted with minor offences where the law provides for lower punishments.
These gradations of sentencing power are intended to ensure that the judicial system functions efficiently, with more serious matters being heard by higher courts and minor offences disposed of at the magistrates' level. It reflects a rational distribution of judicial workload and reinforces the principle of proportionality in criminal sentencing.
Sentence of Imprisonment in Default of Fine (Section 24)
Section 24 of BNSS, 2023 provides that a Judicial Magistrate is empowered to award a sentence of imprisonment in default of payment of fine. This means that if a person fails to pay a fine imposed by the court, the Magistrate can order a term of imprisonment as a substitute.
However, this power is subject to certain important limitations. As per the proviso to sub-section (1):
- The term of imprisonment awarded in default of fine must not exceed the general sentencing powers of the Magistrate as specified under Section 23.
- Further, if imprisonment has already been given as a substantive sentence (i.e., as punishment for the offence), the default imprisonment term cannot exceed one-fourth of the maximum term that the Magistrate is otherwise authorised to impose for that offence.
Sub-section (2) clarifies that this imprisonment in default of fine is in addition to any substantive imprisonment the Magistrate is otherwise empowered to impose. Therefore, a convict may serve both the original sentence and additional imprisonment if the fine remains unpaid.
This provision aims to uphold the authority of the court's sentencing orders while ensuring that the punishment remains proportionate and within legal limits.
Sentence in Cases of Conviction of Several Offences at One Trial (Section 25)
Section 25 of BNSS, 2023 deals with situations where a person is convicted of two or more offences in a single trial. In such cases, the court has the authority to award separate punishments for each offence, as long as the court is competent to impose those punishments individually under the law.
Importantly, the court has the discretion to decide whether the sentences will run concurrently or consecutively. This decision is to be made by considering the gravity and nature of the offences. A concurrent sentence allows the punishments to run at the same time, while a consecutive sentence means one punishment will begin only after the other ends.
Sub-section (2) clarifies that even if the total of consecutive sentences exceeds the maximum punishment the court could ordinarily impose for a single offence, it is not necessary to refer the case to a higher court. However, two important provisos impose limits:
- (a) No person can be sentenced to imprisonment for more than fourteen years under this section, regardless of the number or seriousness of offences.
- (b) The total punishment awarded must not exceed twice the maximum sentence the court is otherwise competent to impose for any single offence.
Finally, sub-section (3) simplifies the appellate process by stating that, for the purposes of an appeal, all consecutive sentences imposed under this section will be treated as a single sentence. This ensures procedural clarity and avoids confusion when a convicted person challenges the sentence in a higher court.
This section balances judicial discretion with statutory safeguards, ensuring proportionality in sentencing while allowing courts to address multiple offences comprehensively within a single trial framework.
Mode of Conferring Powers (Section 26)
Section 26 of the BNSS, 2023 outlines how powers under the Sanhita are to be conferred upon individuals. It states that the High Court or the State Government, as applicable, may confer powers either specifically by naming individuals, or generally by referring to their official designation or class of officials. This can be done through a formal order. The powers conferred through such an order become effective from the date the order is communicated to the concerned individual or authority. This ensures clarity and accountability in the delegation of judicial and administrative powers.
Powers of Officers Appointed (Section 27)
Section 27 provides that when a government officer who has been vested with certain powers under the BNSS is appointed to an equal or higher post of the same nature within a similar local area under the same State Government, they will automatically continue to exercise the same powers in the new post—unless directed otherwise by the High Court or State Government. This provision ensures continuity in the exercise of powers without requiring re-authorisation for every administrative transfer or promotion within similar jurisdictions.
Withdrawal of Powers (Section 28)
Section 28 states that the High Court or the State Government, depending on who originally granted the powers under the BNSS, has the authority to withdraw all or any of those powers from any person or officer. Similarly, if powers were granted by the Chief Judicial Magistrate or the District Magistrate, they too can withdraw the powers they had conferred. This ensures that delegated authority remains subject to control and can be revoked if necessary.
Powers of Judges and Magistrates Exercisable by Their Successors-in-Office (Section 29)
Section 29 provides that, unless stated otherwise in the BNSS, the powers and duties of a Judge or Magistrate may be carried out by their successor-in-office. This ensures continuity in judicial proceedings even after a change in personnel.
If there is any doubt about who the successor is, the law provides a mechanism to resolve it:
- In the case of a Judge, the Sessions Judge will issue a written order determining who the successor is for the purpose of proceedings under the BNSS.
- In the case of a Magistrate, the Chief Judicial Magistrate (CJM) or the District Magistrate, as appropriate, will decide and issue a written order declaring the successor.
This provision helps avoid confusion and delays in ongoing matters by ensuring clarity on who can continue or complete judicial functions when an officer is transferred, promoted, or retires.
Conclusion
Chapter III of the BNSS, 2023 plays a foundational role in defining the structure and functioning of criminal courts in India. It provides a clear demarcation of trial and sentencing powers, ensuring that each judicial officer functions within a legally defined scope. Whether it is the High Court imposing a death sentence, a Magistrate awarding imprisonment in default of fine, or the seamless transfer of judicial duties to a successor, the chapter reflects the law's intent to maintain continuity, fairness, and judicial discipline. Moreover, by incorporating progressive provisions such as gender-sensitive courts for sexual offences and structured handling of multiple convictions, it reinforces the balance between procedural rigour and human sensitivity. Together, these provisions enhance the transparency and responsiveness of the judicial process, marking a significant step forward in India’s criminal justice reform.
References
[1] Bharatiya Nagarik Suraksha Sanhita, 2023
[2] Code of Criminal Procedure, 1973
[3] Justice CK Takwani, Criminal Procedure (4th Edition: 2015)
[4] Universal's Guide to Judicial Service Examination (19th Edition, 2024)
Karan Patel
Karan Patel is an alumnus of the prestigious Faculty of Law, Delhi University, with a specialization in Civil Law and Procedural Law. As a dedicated legal scholar, his work focuses on exploring the nuances of civil justice systems and procedural frameworks through in-depth research and writing.