Powers of Courts under BNSS (S. 21 to 29)

Sentencing Powers of High Court (Ss. 21 and 22 BNSS):

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 (Ss. 21 and 22 BNSS):

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 BNSS):

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.

Sentence of Imprisonment in Default of Fine (S. 24 BNSS):

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(2) 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.

This provision deals with imprisonment in default of payment of a fine. However, the period of imprisonment must be one that the law permits. It does not mean that the fine itself is converted into imprisonment. Rather, it authorizes the court to impose an additional term of imprisonment if the convicted person fails to pay the fine.

When a Magistrate imposes a fine, the Magistrate may also specify that if the fine is not paid, the offender will undergo a period of imprisonment. The Magistrate cannot impose a default imprisonment longer than the maximum imprisonment the Magistrate is legally empowered to award under Section 23 of the Bharatiya Nagarik Suraksha Sanhita (BNSS). For example, a Magistrate is legally empowered to impose a maximum sentence of 3 years’ mprisonment. The default imprisonment for non-payment of the fine cannot exceed 3 years, even if another provision might appear to allow a longer period.

The imprisonment in default of payment of the fine cannot exceed one-fourth of the maximum imprisonment that the Magistrate is competent to award for that offence.

For example, a Magistrate is competent to impose a maximum of 4 years’ imprisonment for an offence. The Magistrate sentences the accused to 2 years’ substantive imprisonment, and a fine of ₹ 20,000. If the fine is not paid, the default imprisonment cannot exceed one-fourth of 4 years, i.e., 1 year. Thus, the sentence may be 2 years’ imprisonment, plus ₹20,000 fine, and up to 1 year’s imprisonment in default of payment of the fine.

Payment of the fine generally brings the default imprisonment to an end, even if the offender has already begun serving it.

In Sharad Hiru Kolambe v. State of Maharashtra, AIR 2018 SC 4595 case, the Supreme Court held that default sentences for nonpayment of fines must be in addition to, not concurrent with, the substantive sentence or other default sentences.

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 BNSS)

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.

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.

This provision deals with sentencing when an accused is convicted of multiple offences in a single trial. It empowers the court to impose separate punishments for each offence and to decide whether those punishments will be served at the same time (concurrently) or one after another (consecutively).

Every criminal court has limits on its sentencing powers. A Magistrate, for example, cannot impose a sentence beyond the maximum authorized for that class of Magistrate. If the required punishment exceeds the Magistrate’s powers, the case must be dealt with by a court having appropriate jurisdiction, such as a Court of Session.

In the concurrent sentencing, the sentences are served at the same time. For example, A person is convicted for offence 1 for 5 years and for offence 2 for 3 years. If the sentences run concurrently, the person serves 5 years, because both sentences overlap.

In consecutive sentencing the sentences are served one after another. For example, A person is convicted for offence 1 for 5 years and for offence 2 for 3 years. If the sentences run consecutively, the total imprisonment is 8 years.

The court cannot decide arbitrarily. It must assess factors such as the seriousness of each offence; whether the offences arose from the same transaction or from distinct criminal acts; the harm caused to victims; the manner in which the offences were committed; and the overall interests of justice.

Generally, if multiple offences arise out of the same incident, courts often direct concurrent sentences. If they are distinct offences committed independently, consecutive sentences may be appropriate.

The provision ensures that every offence receives an appropriate sentence; the court has flexibility to impose a just overall punishment; and the aggregate sentence reflects the seriousness of the criminal conduct without being either unduly harsh or unduly lenient.

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.

This provision explains the power of a criminal court to impose consecutive sentences when a person is convicted of multiple offences in one trial, even if the total sentence exceeds the maximum sentence the court could impose for a single offence. At the same time, it places statutory limits on that power.

For example, suppose a Magistrate is legally empowered to impose a maximum sentence of 7 years’ imprisonment for one offence. If a person is convicted in one trial of three separate offences, each punishable with 5 years’ imprisonment, the Magistrate may impose 5 years for Offence 1; 5 years for Offence 2; and 5 years for Offence 3. If the sentences are ordered to run consecutively, the total becomes 15 years. Although 15 years exceeds the Magistrate’s power to impose for a single offence, the Magistrate need not transfer the case to a higher court merely because of the aggregate sentence. The law recognizes that the total punishment results from multiple convictions, not from one offence.

Although the court may award consecutive sentences, Sanhita has imposed two safeguards. The first condition (Clause (a) of Section 25(2) BNSS) is that the total imprisonment cannot exceed twenty years and the second condition (Clause (b) of Section 25(2) BNSS) is aggregate punishment cannot exceed twice the court’s sentencing power for one offence. Both clauses (a) and (b) apply simultaneously. The effective maximum is whichever limit is reached first.

For example, suppose a Magistrate may impose up to 7 years for a single offence. Twice that power is 14 years. Even if the individual sentences total 15 years, the Magistrate cannot impose more than 14 years.

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.

This provision concerns the right of appeal where a convicted person has been awarded multiple consecutive sentences. It creates a legal fiction by treating all consecutive sentences as one single sentence for the limited purpose of an appeal. This means that if a court convicts a person of several offences and directs the sentences to run consecutively, the total (aggregate) sentence is treated as one sentence when determining the convicted person’s right of appeal.

For example, a person is convicted in one trial of three offences viz offence A for 3 years’ imprisonment; offence B for 2 years’ imprisonment; and offence C for 5 years’ imprisonment. The court directs the sentences to run consecutively. The aggregate sentence is (3 + 2 + 5) = 10 years’ imprisonment. For the purpose of filing an appeal, the law treats this as one sentence of 10 years, not as three separate sentences.

The provision serves several purposes. It simplifies the appellate process by allowing the convicted person to challenge the entire conviction and sentence through one appeal, rather than requiring separate appeals for each sentence. It helps determine the appropriate appellate forum where the law links the right of appeal to the length or nature of the sentence. It ensures that the appellate court reviews the overall punishment as a whole, instead of examining each sentence in isolation.

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 provision explains how the High Court or the State Government may confer powers on persons under the Bharatiya Nagarik Suraksha Sanhita (BNSS). It provides flexibility in the manner in which such powers may be granted. This provision lays down that wherever the BNSS authorizes the High Court or the State Government to grant certain powers to persons or authorities, they may do so in the manner described in this provision. Every such order shall take effect from the date on which it is communicated to the person so empowered.

The provision allows powers to be conferred in three ways.

The authority may confer powers on a particular individual by expressly mentioning that person’s name in the order. For example, the State Government issues an order stating: “Shri A.B. Sharma is empowered to exercise the powers of an Executive Magistrate under the BNSS.” Only Shri A.B. Sharma receives the power.
Instead of naming an individual, the authority may confer powers on the holder of a particular office. The power belongs to the office, not to the individual occupying it. For example, an order states: “The Sub-Divisional Magistrate of District X shall exercise the powers under Section __.” If one Sub-Divisional Magistrate is transferred and another assumes the office, the successor automatically enjoys the same powers without the need for a fresh order.
The authority may empower an entire category or class of officials identified by their official designation. For example the State Government may order: All Executive Magistrates; All Assistant Commissioners of Police; All Deputy Superintendents of Police; or All District Magistrates etc. to exercise specified powers under the BNSS. Every officer holding that official title automatically receives the powers.

The provision provides administrative flexibility and efficiency. Without it, every appointment would require a separate order naming each individual officer.

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 provision embodies the principle of continuity of statutory powers. It ensures that when a Government officer who has already been vested with powers under the Bharatiya Nagarik Suraksha Sanhita (BNSS) is transferred or promoted to an equivalent or higher post within the same State and local area, those powers continue automatically unless the competent authority directs otherwise. The officer must already have been formally vested with powers under the BNSS by a lawful order of the High Court or the State Government.

Examples:

An Executive Magistrate in District A is transferred as Executive Magistrate to District B. The office remains the same. He/She automatically exercises those powers in District B as conferred in District A unless the Government orders otherwise.
An Executive Magistrate is promoted to District Magistrate. Since the new office is a higher office of the same nature, he continues to exercise those powers without requiring a fresh order, unless the competent authority directs otherwise.

The provision ensures continuity in the administration of criminal justice; avoidance of repeated notifications every time an officer is transferred or promoted; uninterrupted exercise of statutory powers; and administrative efficiency. Without this provision, every transfer or promotion could require a fresh notification before the officer could lawfully exercise BNSS powers.

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):

Section 29 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) incorporates the doctrine of successor-in-office. Its purpose is to ensure that judicial and magisterial proceedings continue smoothly despite transfers, promotions, retirements, resignations, or vacancies. It avoids the need to recommence proceedings merely because the original Judge or Magistrate is no longer in office.

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.

If a Judge or Magistrate who was dealing with a case ceases to hold that office—for example, because of transfer, promotion, retirement, resignation, or death—the Judge or Magistrate who legally succeeds to that office may continue to exercise the same powers and perform the same duties in that case. A successor-in-office is the person who lawfully assumes the office previously held by another Judge or Magistrate. The succession is to the office, not to the individual.

For example, a Chief Judicial Magistrate records part of the prosecution evidence but is transferred before the trial concludes. The newly appointed Chief Judicial Magistrate may continue the proceedings and exercise all the powers that the previous Magistrate could have exercised, subject to the provisions of the BNSS.

This provision ensures continuity of judicial proceedings; avoids unnecessary retrials or repetition of procedural steps; saves judicial time and costs; and prevents delays caused by transfers or vacancies.

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.

Sometimes it may not be clear which Judge has legally succeeded to the office. This may happen because of reorganization of courts; redistribution of judicial work; creation of new courts; or changes in territorial jurisdiction. In such cases, the Sessions Judge has the authority to resolve the uncertainty.

The Sessions Judge must identify the appropriate Judge; and record that decision in writing. The Judge so identified is 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.

This provision deals specifically with uncertainty regarding the successor of a Magistrate. The competent authority depends on the nature of the Magistrate. Chief Judicial Magistrate (CJM) determines the successor of a Judicial Magistrate. District Magistrate (DM) determines the successor of an Executive Magistrate.

The determination must be made by a written order; and identify the Magistrate who will be treated as the successor for all purposes under the BNSS.

For example, an Executive Magistrate is transferred and there is uncertainty about which Executive Magistrate should continue pending preventive proceedings. The District Magistrate may issue a written order specifying the successor. From that point onward, the designated Magistrate is treated as the lawful successor and may continue those proceedings.

Section 29 is intended to ensure uninterrupted administration of criminal justice; avoid restarting proceedings because of changes in personnel; remove uncertainty regarding jurisdiction; provide an authoritative mechanism for identifying the proper successor; and maintain continuity in judicial and magisterial functions.

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.

The Legal Quotient

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