Empowering Justice

The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) represents a significant overhaul of India’s criminal procedural laws, modernizing the framework governing criminal justice in the country. Among its key provisions are the roles and responsibilities vested in both judicial and law enforcement authorities, which ensure the maintenance of law and order. The provisions related to the power of courts delineate the authority that various courts exercise in the criminal justice process, ranging from issuing warrants to summoning witnesses, and ultimately, delivering justice. Simultaneously, the provisions related to powers of superior officers of police and aid to the magistrates and the police empower senior police officers with specific responsibilities to ensure effective policing while providing legal assistance to magistrates. All these provisions, together, form the backbone of a streamlined and effective approach to upholding justice under the BNSS.

Which courts are authorized to try offences under the BNSS?

Any offence under the Bharatiya Nyaya Sanhita, 2023, may be tried by:

• The High Court
• The Court of Session
• Any other court specified in the First Schedule as authorized to try such offences. Offences against women should preferably be tried by a court presided over by a woman.

What is the procedure for trying offences under other laws?

If a court is specified under another law for the trial of an offence, it will be tried by that court. If no court is specified, the offence may be tried by:

• The High Court
• Any court specified in the First Schedule to try such offences.

What sentences can the High Courts and Sessions Judges pass?

• High Court: May pass any sentence authorized by law.
• Sessions Judge/Additional Sessions Judge: May pass any sentence authorized by law, but death sentences require confirmation from the High Court.

What sentences can Magistrates pass?

• Chief Judicial Magistrate: Can pass any sentence authorized by law, except death or life imprisonment, or imprisonment exceeding seven years.
• Magistrate of the First Class: Can sentence imprisonment up to three years, a fine up to ₹50,000, or both, or order community service.
• Magistrate of the Second Class: Can sentence imprisonment up to one year, a fine up to ₹10,000, or both, or order community service.

Community service is work performed by a convict for the benefit of the community without remuneration.

What is the sentence for imprisonment in default of payment of fines?

The Magistrate may impose imprisonment in default of fine, subject to the following:

• The term of imprisonment should not exceed the Magistrate’s powers.
• If a substantive imprisonment sentence is also awarded, the default imprisonment should not exceed one-fourth of the maximum term.

How are sentences handled in cases where a person is convicted of multiple offences at one trial?

The court may impose separate punishments for each offence, either concurrently or consecutively, considering the gravity of the offences. However:

• A person cannot be sentenced to more than 20 years of imprisonment for consecutive sentences.
• The total punishment cannot exceed twice the maximum for a single offence.

How are powers conferred under the BNSS?

Powers can be conferred by the High Court or State Government either by name or by office title. Such powers take effect from the date of communication.

What happens when officers are appointed to higher offices?

An officer who is promoted to an equal or higher office within a local area continues to exercise the same powers unless directed otherwise by the High Court or State Government.

Can powers conferred under the BNSS be withdrawn?

Yes, the High Court, State Government, Chief Judicial Magistrate, or District Magistrate may withdraw powers conferred on any person or officer.

Can a successor-in-office exercise the powers of a Judge or Magistrate?

Yes, a successor-in-office may exercise the powers of a Judge or Magistrate, and in case of doubt, the Sessions Judge or Chief Judicial Magistrate will determine who the successor is.

What powers do superior police officers have?

Superior police officers have the same powers as the officer in charge of a police station, applicable throughout the local area where they are appointed.

When is the public required to assist Magistrates or police officers?

The public is required to assist when a Magistrate or police officer reasonably demands help in:

• Arresting someone authorized to be arrested.
• Preventing breaches of peace.
• Preventing damage to public property.

What is the public's duty regarding providing information about certain offences?

Any person aware of the commission or intention to commit offences under specific sections of the Bharatiya Nyaya Sanhita, 2023, must inform the nearest Magistrate or police officer unless there is a reasonable excuse.

What are the reporting duties of officers connected to village affairs?

Officers or residents of a village must report information regarding:

• The presence of criminals in or near the village.
• The commission or intent to commit serious offences.
• Any suspicious death or disappearance.

• Reports must be made to the nearest Magistrate or police station.

What is the difference between a default sentence and a substantive sentence?
A default sentence (i.e., a sentence of imprisonment in default of payment of a fine) is distinct from a substantive sentence. It cannot run concurrently with substantive sentences or other default sentences, as held in Sharad Hiru Kolambe v. State of Maharashtra, (2018) 18 SCC 718.

Is it permissible for default sentences to run concurrently with substantive sentences?
No, concurrent running of default sentences with substantive sentences or inter se (among default sentences) is not permissible, as held in Sharad Hiru Kolambe v. State of Maharashtra, (2018) 18 SCC 718.

When an accused is convicted of multiple counts of offences in one case, how should the sentences be directed?

All such sentences should be directed to run concurrently when an accused is convicted of multiple counts of offences in one case, according to Manoj v. State of Haryana, (2014) 2 SCC 153.

What is the general rule regarding the running of substantive sentences when no specific direction is given by the court?

Unless the court directs that substantive sentences should run concurrently, the normal principle is that the sentences will run consecutively, meaning one after the other. This was reaffirmed in Sharad Hiru Kolambe v. State of Maharashtra, (2018) 18 SCC 718.

What is the duty and discretion of a trial court when sentencing a person convicted of multiple offences at one trial?

The trial court must determine whether the sentences should run concurrently or consecutively. This discretion was discussed and summarised in Sunil Kumar v. State of U.P., (2021) 5 SCC 560.

Can multiple life imprisonment sentences be directed to run consecutively?
No, when a person is convicted of several offences and sentenced to life imprisonment for each, the sentences cannot be directed to run consecutively. Instead, they must run concurrently. In law, they are considered superimposed on one another, as held in Muthuramalingam v. State, (2016) 8 SCC 313.

The BNSS harmonizes the powers of courts and police authorities, creating a more integrated and efficient system for the administration of justice. The delineation of powers ensures that both the judiciary and law enforcement officers act within a well-defined legal framework, enabling a robust and transparent criminal justice process. By empowering superior police officers and providing mechanisms for collaboration between the police and the magistracy, the BNSS aims to balance enforcement with due process, laying the groundwork for a more accountable and responsive system of justice.

Muneeb Rashid Malik is an Advocate practicing before the Hon’ble Supreme Court of India, Hon’ble High Court of Delhi and Hon’ble High Court of Jammu & Kashmir and Ladakh. He is the Legal Advisor to Kashmir Uzma. He tweets @muneebmalikrash.