Law and You >Procedural Laws > BNSS > Powers of Courts under BNSS (S. 21 to 25)
The purpose of criminal justice is to punish the criminal. It is for the State to punish the evildoer. Punishment is necessary for the security of the members of the Society, therefore, one of the prime functions of the State is to maintain peace, order and security in the society and to achieve that it becomes inevitable to punish the evildoer. Punishment means to inflict pain or suffering upon a person for his misdeed. The purpose is to protect the society by deterring the offenders or preventing the offenders from committing further offence. In this article, let us discuss the sentencing powers of Courts.
A sentence is a decree of punishment of the court in Criminal procedure. The sentence can generally involve a decree of imprisonment, a fine and / or other punishments against a defendant convicted of a crime. Those imprisoned for multiple crimes will serve a consecutive sentence (in which the period of imprisonment equals the sum of all the sentences served sequentially, or one after the next), a concurrent sentence (in which the period of imprisonment equals the length of the longest sentence where the sentences are all served together at the same time).
Sentencing Powers of High Court (S. 22):
- Under Section 21 BNSS, any offence under the Indian Penal Code may be tried by the High Court, and under Section 22 BNSS, any offence under any other law which contains no special provision as to the trying courts, may be tried by the High Court.
- According to Section 22(1) of BNSS, a High Court may pass any sentence authorised by law.
Sentencing Powers of Court of Session (S. 22):
- Under Section 21 BNSS, any offence under the Indian Penal Code may be tried by the Court of Session.
- Section 22(2) of BNSS lays down that a Sessions Judge or Additional Sessions Judge may pass any sentence authorized by law; but any sentence of death passed by any such Judge shall be subject to confirmation by the High Court.
Sentencing Powers of Court of Judicial Magistrate (S. 23):
- Under Section 21 BNSS, offence under the Indian Penal Code shown in the First Schedule to be triable may be tried by the Court of Judicial Magistrate
- According to Section 23(1) of BNSS, 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.
- According to Section 23(2) of BNSS, 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 fifty thousand rupees, or of both, or of community service.
- According to Section 23(3) of BNSS, the Court of Magistrate of the second class may pass a sentence of imprisonment for a term not exceeding one year, or of fine not exceeding ten thousand rupees, or of both, or of community service.
- A Community service” shall mean the work which the Court may order a convict to perform as a form of punishment that benefits the community, for which he shall not be entitled to any remuneration.
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Sentence of Imprisonment in Default of Fine (S. 24):
- According to Section 24(1) of the BNSS, the Court of a Magistrate may award such term of imprisonment in default of payment of fine as is authorised by law
- Proviso attached to the Section 24(1) lays down that the term—
(a) is not in excess of the powers of the Magistrate under section 23;
(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.
- According to Section 24(1) of the BNSS, 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 23.
Some offences are penalised by both imprisonment and a fine, whereas others are penalised simply by a fine. If an accused is condemned to pay a fine but he is unable or unwilling to pay it, then a Magistrate may award such term of imprisonment in default of payment of fine as is authorised by law.
- Section 24 of BNSS ensures that a magistrate’s powers to sentence an accused person to jail are not exceeded. If the offence is punishable by both imprisonment and a fine, the length of imprisonment for failure to pay will not exceed one-fourth of the maximum term of imprisonment set by the Code for the offence.
- Although there are no specific criteria for courts to follow when imposing fines, basic concepts governing fine imposition are set out in Sections 8 of the Bharatiya Nyaya Sanhita, 2023 (BNS).
In Shakir v. The State of Madhya Pradesh, Cr.A. No.717/2011 case, the Madhya Pradesh High Court has said that while awarding the sentence of fine one should always consider the principles elaborated in s 63 to s 70 of the IPC (S. 8 of BNS) and that it should not be excessive but rational to the pecuniary position of the accused. The court noted that pecuniary circumstances of the offender as to the character and magnitude of the offence must be taken care of while awarding the sentence of fine. A single amount of fine cannot be fixed for any particular offence due to the difference in class and economic status of various accused.
In Shahejadkhan Mahebubkhan Pathan v. State of Gujarat, (2013) 1 SCC 570 case, the Supreme Court had laid down all the necessary guidelines that are enunciated in Ss. 63 to 70 of the IPC (S. 8 of BNS) for governing the imposition of fine. It said that nature of offence, circumstances in which it was committed, the position of the offender and other relevant considerations such as pecuniary circumstances of the accused person as to character, and magnitude of the offence must be kept in view before sentencing fine.
Sentence in Cases of Conviction of Several Offences at One Trial (S. 25)
- According to Section 25(1) of the BNSS, when a person is convicted at one trial of two or more offences, the Court may, subject to the provisions of section 9 of the Bharatiya Nyaya Sanhita, 2023, sentence him for such offences, to the several punishments prescribed therefor which such Court is competent to inflict and the Court shall, considering the gravity of offences, order such punishments to run concurrently or consecutively.
- According to Section 25(2) of the BNSS, 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 twenty years;
(b) the aggregate punishment shall not exceed twice the amount of punishment which the Court is competent to inflict for a single offence.
- According to Section 25(3) of the BNSS, 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.
- Section 25 of BNSS, relates to the quantum of punishment which may be legally passed when there is
(a) one trial and
(b) the accused is convicted of “two or more offences”.
- Section 25 of BNSS lays down that subject to the provisions of Section 9, BNS, Court may pass separate sentences for two or more offences of which the accused is found guilty, but the aggregate punishment must not exceed the limit fixed in the proviso (a) and (b) of sub-section (2) of Section 25 of BNSS.
- In Section 25(1) of BNSS since the word “may” is used, in our considered view, when a person is convicted for two or more offences at one trial, the Court may exercise its discretion in directing that the sentence for each offence may either run consecutively or concurrently subject to the provisions of Section 9 of BNS. But the aggregate must not exceed the limit fixed in provisions (a) and (b) of sub-section (2) of Section 25 of BNSS that is – it cannot exceed twice the maximum imprisonment awardable by the sentencing court for a single offfence.
- The words “unless the court directs that such punishments shall run concurrently” occurring in sub-section (1) of Section 25 of BNSS, make it clear that Section 25 of BNSS vests a discretion in the Court to direct that the punishment shall run concurrently, when the accused is convicted at one trial for two or more offences. It is manifest from Section 25 of BNSS that the Court has the power and discretion to issue a direction for concurrent running of the sentences when the accused is convicted at one trial for two or more offences.
- Section 25 of BNSS authorizes the passing of concurrent sentences in cases of substantive sentences of imprisonment. Any sentence of imprisonment in default of fine has to be in excess of, and not concurrent with, any other sentence of imprisonment to which the convict may have been sentenced.
In Gagan Kumar v. State of Punjab, AIR 2019 SC 1009 case, the Supreme Court held that it is legally obligatory upon the court of first instance that while awarding sentence at one trial for several offences to specify u/s 31 CrPC (S. 25 BNSS) in clear terms in the order of conviction as to whether sentences awarded to the accused would run concurrently or consecutively. Same thing was reiterated in Nagaraja Rao v. CBI, (2015) 4 SCC 302 case.
In P. Prabhakaran v. P. Jayarajan, AIR 2005 SC 688 case, the Supreme Court held that the direction by the court for the sentence to run concurrently or consecutively is in the discretion of the court and that does not affect the nature of the sentence.
In K. Ventaka Reddy v. I.G. Prisons, 1982 CrLJ 1844 (AP) case, the Andhra Pradesh High Court observed that when two sentences are directed to run concurrently, they do merge into one sentence and they are to run together.
In O.M. Cherian v. State of Kerala, AIR 2015 SC 303 case, the Three-Judge Bench of the Supreme Court held that a Court has power & discretion u/s 31 CrPC (S. 25 BNSS) to direct for concurrent running of sentences when the accused is convicted at one trial for two or more offences having regard to the nature of offences and attending aggravating or mitigating circumstances.
In Duryodhan Rout v. State of Orissa, (2015) 2 SCC 783 case, the Supreme Court observed that as per Proviso to Section 31(2) CrPC (S. 25(2) BNSS), if the accused is convicted and sentenced for several offences and one of the sentences is life imprisonment, then all sentences would run concurrently and not consecutively.
In Chatar Singh vs. State of M.P., AIR 2007 SC 319 case, where interpreting Sec. 31 CrPC (S. 25 BNSS), it has been held that where the accused was convicted for several offences and 20 years aggregate sentence was consecutively awarded by the M.P. High Court, the same was illegal as u/s 31 CrPC (S. 25 BNSS) the convict/accused could not have been sentenced to imprisonment for period longer than 14 years and sentence of 20 years rigorous imprisonment was set aside.
Moreover if a person has been convicted for more than one offence then the quantum of one-fourth sentence has to be measured in relation to the punishment fixed for all offences. Section 8(4) BNS states that the description of the imprisonment that the person may suffer in case of default to pay off the fine, depends on the type of imprisonment provided for the substantive offence.
Mode of Conferring Powers (S. 26 BNSS):
- According to Section 26(1) of BNSS, in conferring powers under this Sanhita, 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 be their official titles.
- According to Section 26(2) of BNSS, every such order shall take effect from the date on which it is communicated to the person so empowered.
This Section talks of conferring powers to persons under this Sanhita. The powers are conferred by the High Court or the State Government as the case may be. The person is empowered by name or virtue of his office or official title.
In Queen Empress v. Pershad (1885) 7 All 414 (FB) case, where a Magistrate is invested with second class power on the date he commences the trial of a case, but is invested with first class powers before he finishes it, he is competent to pass a sentence on accused under the first class powers.
Powers of Officers Appointed (S. 27 BNSS):
According to Section 27 of BNSS, whenever any person holding an office in the service of Government who has been invested by the High Court or the State Government with any powers under this Sanhita throughout any local area is appointed to an equal or higher office of the same nature, within a like local area under the same State Government, he shall, unless the High Court or the State Government, as the case may be, otherwise directs, or has otherwise directed, exercise the same powers in the local area in which he is so appointed.
This Section refers to the transfer of Magistrate from one district to another.
In Empress of India v. Anand Sarup, (1881) 3 All 563 (FB) case, it was held that when a Magistrate is transferred from one district to another, he ceases to have jurisdiction in his district as soon as he relinquishes the charge.
In Amulya Chandra v. the State, (1963) 2 CrLJ 721 case, where a Deputy Collector did not exercise the powers of a Magistrate vested in him. The Court held that it cannot be implied that the said powers are impliedly withdrawn, because the section does not require actual exercise of such power but only the capacity to exercise it.
Withdrawal of Powers (S. 28 BNSS):
According to Section 28(1) of BNSS, the High Court or the State Government, as the case may be, may withdraw all or any of the powers conferred by it under this Sanhita on any person or by any officer subordinate to it.
According to Section 28(2) of BNSS, any powers conferred by the Chief Judicial Magistrate or by the District Magistrate may be withdrawn by the respective Magistrate by whom such powers were conferred.
Powers of Judges and Magistrates Exercisable by their Successors-In Office (S. 29 BNSS):
According to Section 29(1) of BNSS, subject to the other provisions of this Sanhita, the powers and duties of a Judge or Magistrate may be exercised or performed by his successor-in-office.
According to Section 29(2) of BNSS, when there is any doubt as to who is the successor-in-office, the Sessions Judge shall determine by order in writing the Judge who shall, for the purposes of this Sanhita or of any proceedings or order thereunder, be deemed to be the successor-in-office.
According to Section 29(3) of BNSS, when there is any doubt as to who is the successor-in-office of any Magistrate, the Chief Judicial Magistrate, or the District Magistrate, as the case may be, shall determine by order in writing the Magistrate who shall, for the purpose of this Sanhita or of any proceedings or order thereunder, be deemed to be the successor-in-office of such Magistrate.
Conclusion:
The Bharatiya Nagarik Suraksha Sanhita, 2023 provides for wide discretionary powers to the Judge once the conviction is determined. The power used by court as mentioned, is not to be used indiscriminately in a routine, casual and cavalier manner for the reason that an exception clause requires strict interpretation. The task of sentencing necessarily entails a responsibility on Courts to satiate the expectations of, both, a victim and an accused, while defining the final fate of a trial. In such a pursuit, however, the Courts are to be guided by the fact that criminal prosecution must not become a means of retribution alone, rather, humanitarian approach in not to be lost sight of in the entire process. Therefore, wherever the circumstances demand and permit, Courts should not shy away from adopting a ‘prisoner/ convict benefit approach.