Revamping Judicial Structure

The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) marks a significant overhaul in the Indian criminal justice system, introducing modernized frameworks for the constitution and functioning of criminal courts and offices across the country. This comprehensive legislation aims to streamline judicial processes, ensuring that the administration of justice is both efficient and accessible. It sets out clear guidelines for the establishment, jurisdiction, and hierarchical structure of various criminal courts, including Courts of Session, Judicial Magistrates, and Executive Magistrates, along with the appointment and roles of Public Prosecutors. By delineating the powers and responsibilities of these courts and officials, the BNSS seeks to enhance the efficacy of the criminal justice system, reduce delays, and promote uniformity in the application of law across different states and regions.

What are the different classes of Criminal Courts in a State?

Besides the High Courts, every State has the following classes of Criminal Courts:

• Courts of Session.
• Judicial Magistrates of the first class.
• Judicial Magistrates of the second class.
• Executive Magistrates.

How are the territorial divisions for criminal courts structured in a State?

Every State is divided into sessions divisions, which may consist of one or more districts. The State Government, after consulting the High Court, can change the limits or number of these divisions and districts. A district can be divided into sub-divisions by the State Government after consulting the High Court.

What is a Court of Session?

The State Government establishes a Court of Session for every sessions division. Each Court of Session is led by a Judge appointed by the High Court. The High Court can also appoint Additional Sessions Judges. A Sessions Judge from one division may be appointed as an Additional Sessions Judge in another division.

What happens if the office of the Sessions Judge is vacant?

The High Court can make arrangements for any urgent application to be handled by an Additional Sessions Judge or, if none is available, by a Chief Judicial Magistrate.

Where does the Court of Session hold its sittings?

The Court of Session usually holds its sittings at places specified by the High Court. However, it can hold sittings at a different place within the sessions division if it is more convenient for the parties and witnesses involved.

What are the roles of Judicial Magistrates in a district?

The State Government, after consulting the High Court, establishes as many Courts of Judicial Magistrates of the first and second class in a district as needed. The High Court appoints the presiding officers of these courts. The High Court can give Judicial Magistrates of the first or second class additional powers as needed.

Who is the Chief Judicial Magistrate?

• The Chief Judicial Magistrate is a Judicial Magistrate of the first class appointed by the High Court in every district.
• The High Court can also appoint an Additional Chief Judicial Magistrate with similar powers.

What are Special Judicial Magistrates?

• The High Court can appoint Special Judicial Magistrates if requested by the Central or State Government.
• These Magistrates are appointed for specific cases or classes of cases in a local area and hold powers similar to Judicial Magistrates of the first or second class.

What is the local jurisdiction of Judicial Magistrates?

• The Chief Judicial Magistrate defines the local limits within which Judicial Magistrates can exercise their powers.
• Unless specified otherwise, a Magistrate’s powers extend throughout the district.

How are Judicial Magistrates subordinate to each other?

• Every Chief Judicial Magistrate is subordinate to the Sessions Judge.
• Other Judicial Magistrates are subordinate to the Chief Judicial Magistrate.

Who are Executive Magistrates?

• The State Government appoints Executive Magistrates in every district, with one appointed as the District Magistrate.
• Additional District Magistrates can also be appointed and given powers similar to the District Magistrate.
• The State Government can also place an Executive Magistrate in charge of a sub-division, known as the Sub-divisional Magistrate.

What are Special Executive Magistrates?

The State Government can appoint Special Executive Magistrates or police officers (of Superintendent rank or higher) for specific areas or functions. These Magistrates have powers similar to regular Executive Magistrates.

What is the local jurisdiction of Executive Magistrates?

• The District Magistrate defines the local limits of the areas within which Executive Magistrates can exercise their powers.
• Unless specified otherwise, their jurisdiction extends throughout the district.

How are Executive Magistrates subordinate to each other?

• All Executive Magistrates are subordinate to the District Magistrate.
• Executive Magistrates in a sub-division are also subordinate to the Sub-divisional Magistrate.

What are the roles of Public Prosecutors?

• The Central or State Government, after consulting the High Court, appoints Public Prosecutors and Additional Public Prosecutors for the High Court and district courts.
• A panel of names for Public Prosecutors in a district is prepared by the District Magistrate in consultation with the Sessions Judge.
• Public Prosecutors must have at least seven years of experience as an advocate.

Who can be a Special Public Prosecutor?

• The Central or State Government can appoint Special Public Prosecutors for specific cases or classes of cases.
• These Special Public Prosecutors must have at least ten years of experience as an advocate.

What is the role of Assistant Public Prosecutors?

• The State Government appoints Assistant Public Prosecutors for conducting prosecutions in Magistrate courts.
• The Central Government can also appoint them for specific cases.

What is the Directorate of Prosecution?

• The State Government may establish a Directorate of Prosecution, headed by a Director of Prosecution, and consisting of Deputy and Assistant Directors.
• The Director and Deputy Directors monitor cases based on the severity of the offences (punishable by various terms).
• The Directorate operates under the administrative control of the State’s Home Department.

What is the appointment process for Public Prosecutors and Additional Public Prosecutors?

Public Prosecutors and Additional Public Prosecutors are appointed on a contract basis for a fixed period, making their posts as tenure posts. They are not necessarily appointed from the cadre of Assistant Public Prosecutors, who are members of the regular government service with a separate cadre, as ruled in Public Prosecutor v. State of Kerala, (1990) 4 SCC 191.

What is the status of a Public Prosecutor in terms of public office and government service?

A Public Prosecutor is considered a holder of a “public office” and a “post,” but is not in government service. The Public Prosecutor is an officer of the Court, as established in Deepak Aggarwal v. Keshav Kaushik, (2013) 5 SCC 277.

Is a Public Prosecutor part of the investigating agency?

No, a Public Prosecutor is not part of the investigating agency but is an independent statutory authority, as clarified in State of Maharashtra v. Surendra Pundlik Gadling, (2019) 5 SCC 178.

Can a Special Public Prosecutor appointed for trial represent the State Government in appeals or revisions?

No, a Special Public Prosecutor appointed for trial cannot represent the State Government in appeals or revisions, as determined in K. Anbazhagan v. State of Karnataka, (2015) 6 SCC 158.

Do Special Executive Magistrates have the same powers as Executive Magistrates?

Yes, Special Executive Magistrates are considered Executive Magistrates and are entitled to exercise the powers granted under the law, as affirmed in State of Maharashtra v. Mohd. Salim Khan, (1991) 1 SCC 550.

Does an Additional Sessions Judge have the same powers as a Sessions Judge?

Yes, an Additional Sessions Judge has all the powers and jurisdiction of a Sessions Judge to try offenses enumerated under the law, as confirmed in Abdul Mannan v. State of W.B., (1996) 1 SCC 665.

Can the High Court fix the venue of a trial inside jail premises for pending cases?

Yes, the High Court has the power to fix the venue of a trial inside jail premises for pending cases, as held in Mohd. Shahabuddin v. State of Bihar, (2010) 4 SCC 653.

The BNSS represents a crucial step forward in the evolution of India’s criminal justice system. By clearly defining the structure, roles, and jurisdiction of criminal courts and offices, the BNSS ensures that justice is administered in a more organized, transparent, and efficient manner. The provisions outlined in this legislation not only aim to reduce the complexities and inconsistencies that have long plagued the system but also to create a legal environment that is more responsive to the needs of the citizens. As the BNSS has come into force, it is expected to bring about significant improvements in the speed and quality of justice delivery, thereby reinforcing public trust in the judicial process. The reforms introduced through this legislation underscore the government’s commitment to modernizing the criminal justice system, aligning it with the demands of a rapidly changing society, and ensuring that the rule of law remains robust and effective.

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.