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Constitution of Criminal Courts
Synopsis
I. Introduction-
II. Classes, jurisdiction and powers of the Criminal Courts under BNSS-
1. Courts of Session
a. Constitution:
b. Subordination:
c. Jurisdiction and Powers:
2. Judicial Magistrates-
a. Constitution:
b. Chief Judicial Magistrate (CJM):
c. Special Judicial Magistrates:
d. Subordination:
e. Jurisdiction and Powers:
3. Executive Magistrates-
a. Constitution:
b. Subordination:
c. Jurisdiction and Powers:
4. High Court-
Constitution:
Jurisdiction and Powers:
5. Supreme Court
a. Constitution:
b. Jurisdiction and Powers:
III. Changes brought by BNSS in the Constitution, jurisdiction and powers of the Criminal courts-
1. Constitution of Courts:
a. Abolition of Metropolitan Magistrates:
b. Removal of Assistant Sessions Judges:
c. Special Executive Magistrates:
2. Jurisdiction of Courts:
a. Jurisdiction over Juveniles:
b. Enhanced Powers of Magistrates Regarding Fines:
c. Community Service as Punishment:
d. Trial of Offences:
3. Powers of Courts:
a. Sentencing Powers:
b. Powers Regarding Absconders:
c. Power to Take Samples:
d. Electronic Mode of Proceedings:
e. Timelines for Judgments:
I. Introduction-
The Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, signifies a major reform in India's criminal law justice system, repealing the Code of Criminal Procedure, 1973. This new procedural law governs various aspects of criminal cases, aiming to replace colonial-era legislation and prioritise justice for victims through a citizen-centric approach. At the heart of this system are the criminal courts, established to handle violations of criminal law, adjudicate offences, and impose punishments. The BNSS meticulously outlines their structure and hierarchy. According to Section 6 of the BNSS, in addition to the High Courts and courts constituted under any other law, there are four classes of Criminal Courts in every State: Courts of Session, Judicial Magistrates of the first class, Judicial Magistrates of the second class, and Executive Magistrates. This structure modifies the previous system by removing the designations of Metropolitan Magistrates and Assistant Sessions Judges. The constitution of these courts, detailed in BNSS sections 6 to 20, involves the State Government establishing Courts of Session and Judicial Magistrate courts in consultation with the High Court, which appoints the presiding officers. The High Court also appoints a Chief Judicial Magistrate (CJM) in every district, who oversees other Judicial Magistrates, all of whom are subordinate to the Sessions Judge. Executive Magistrates, including the District Magistrate, are appointed by the State Government to manage administrative functions and law and order, operating within local limits defined by the District Magistrate and being subordinate to them.
The powers of these criminal courts are primarily defined in Chapter III, Sections 21 to 29 of the BNSS. Any offence under the Bharatiya Nyaya Sanhita, 2023, or other laws can be tried by the High Court, the Court of Session, or any other court specified in the First Schedule.
The BNSS also details the offices supporting these courts, such as Public Prosecutors and Assistant Public Prosecutors, appointed by the Central or State Government at different court levels, requiring specific legal practice experience. Furthermore, the BNSS provides for the establishment of the Directorate of Prosecution at the state and district levels, headed by a Director, with Deputy and Assistant Directors, whose responsibilities are partly categorised based on the severity of the offences involved. These provisions are designed to create a structured system for the efficient and effective administration of criminal justice.
II. Classes, jurisdiction and powers of the Criminal Courts under BNSS-
The criminal court system in India is structured hierarchically, primarily governed by the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which has replaced the Code of Criminal Procedure, 1973 (CrPC). This framework ensures a systematic approach to the administration of justice.
According to Section 6 of BNSS, every State has the following classes of criminal courts, in addition to the High Court and Special Courts:
1. Courts of Session
2. Judicial Magistrates of the first class
3. Judicial Magistrates of the second class
4. Executive Magistrates
Notable changes introduced by the BNSS compared to the CrPC include the removal of the concept of metropolitan magistrates and metropolitan areas, as well as the designation of Assistant Sessions Judge.
Here is an overview of the constitution, jurisdiction, and powers of these courts, along with the higher courts:
1. Courts of Session
a. Constitution:
Established under Section 8 of BNSS for every sessions division. The High Court appoints a Sessions Judge to preside over the court. Additional Sessions Judges may also be appointed by the High Court to exercise jurisdiction. The Sessions Judge of one division can be appointed as an Additional Sessions Judge of another division.
b. Subordination:
The Chief Judicial Magistrate is subordinate to the Sessions Judge.
c. Jurisdiction and Powers:
i. Courts of Session are the principal courts of criminal jurisdiction in a sessions division.
ii. They try cases involving severe offences such as murder, rape, and robbery.
iii. A Sessions Judge or Additional Sessions Judge may pass any sentence authorised by law.
iii. However, any sentence of death passed by a Sessions Judge or Additional Sessions Judge must be confirmed by the High Court.
iv. They handle appeals against decisions made by lower courts.
v. They possess revision powers over inferior criminal courts (Section 440, 441 BNSS).
vi. They have special powers regarding bail (Section 485 BNSS).
vii. They can transfer cases and appeals (Section 449, 450 BNSS).
2. Judicial Magistrates-
a. Constitution:
Courts of Judicial Magistrates, including Judicial Magistrate First Class and Judicial Magistrate Second Class, are established in every district under Section 9 of BNSS. The State Government, after consulting with the High Court, determines their number and location. The High Court appoints the presiding officers. Special Courts of Judicial Magistrates can also be established by the High Court for specific cases or classes of cases (Section 9 BNSS), limiting the jurisdiction of other Magistrates in that area.
b. Chief Judicial Magistrate (CJM):
The High Court appoints a Judicial Magistrate of the first class as the CJM in every district under Section 10 of BNSS. Additional Chief Judicial Magistrates may also be appointed with powers as directed by the High Court. The High Court may designate any first-class judicial magistrate in a sub-division as the Sub-divisional Judicial Magistrate.
c. Special Judicial Magistrates:
Under Section 11 of BNSS, the High Court can confer powers of Judicial Magistrates on persons holding or who have held government posts for specific cases or classes of cases, typically for a term not exceeding one year.
d. Subordination:
All Judicial Magistrates are subordinate to the Chief Judicial Magistrate. The CJM is subordinate to the Sessions Judge. The CJM controls and supervises the work of Judicial Magistrates and defines their local limits of jurisdiction (Section 12 BNSS).
e. Jurisdiction and Powers:
i. Judicial Magistrates handle criminal cases, dealing with offences of varying severity.
ii. The ordinary place of inquiry and trial for any offence is the court within whose local jurisdiction it was committed (Section 197 BNSS). Exceptions exist for offences committed in multiple areas, continuing offences, consequences ensuing elsewhere, offences related to other acts, certain specific offences (like dacoity, kidnapping, theft, criminal misappropriation/breach of trust), and offences by electronic communication or journey (Sections 198-203 BNSS). Cases involving multiple triable offences or multiple persons can be tried by any competent court (Section 204 BNSS). A Magistrate of the first class can inquire into offences committed outside their local jurisdiction but triable in India (Section 207 BNSS).
iii. Chief Judicial Magistrate (CJM):
Can try cases involving imprisonment for a term not exceeding seven years. They cannot pass a sentence of death or imprisonment for life. Supervises and controls the work of Judicial Magistrates. Can make over cases for inquiry or trial to any competent subordinate Magistrate (Section 212 BNSS).
iv. Judicial Magistrate of the First Class:
Handle criminal cases involving severe punishments, but lower than Sessions Courts. Can impose imprisonment for a term not exceeding three years, or of fine not exceeding fifty thousand rupees, or both. Can try moderately serious offences. Can try summarily certain offences (punishable only with fine or imprisonment up to six months) if empowered by the High Court (Section 283 BNSS). Can stop proceedings in certain summons-cases (Section 281 BNSS). Can convert summons-cases into warrant-cases (Section 282 BNSS). Can take cognizance of offences (Section 210 BNSS). Can withdraw cases (Section 451 BNSS).
v. Judicial Magistrate of the Second Class:
Handle less severe cases. Can impose imprisonment for a term not exceeding one year, or of fine not exceeding ten thousand rupees, or both. Handle less serious offences. Can try summarily certain offences if empowered by the High Court (Section 284 BNSS).
vi. Special Judicial Magistrates:
Handle particular cases or classes of cases as directed by the High Court; their jurisdiction is limited to the local area specified in their appointment.
3. Executive Magistrates-
The BNSS has adopted the policy of separating the judiciary from the executive. The separation is made to ensure the independent functioning of the judiciary, free from administrative interference. Therefore, the Code has made provisions for appointing separate categories of magistrates, i.e., executive magistrates, different from the Judicial Magistrates' Courts. To achieve the objective of the separation of the judiciary from administration, the Judicial Magistrates are put under the control of the High Court. At the same time, the Executive Magistrates are kept under the control of the State Government. In other words, functions of purely judicial nature are kept under the jurisdiction of Judicial Magistrates, whereas those of ‘police’ or ‘administrative natures are kept with Executive Magistrates.
There are the following types of Executive Magistrates-
1) District Magistrate (Additional District Magistrate)
2) Sub-Divisional Magistrate.
3) Executive Magistrates / Special Executive Magistrates.
a. Constitution:
Appointed by the State Government under Section 14 of BNSS. They include District Magistrates, Additional District Magistrates, Sub-divisional Magistrates, and Special Executive Magistrates. Special Executive Magistrates can be appointed for specific terms, areas, or functions (Section 15 BNSS). The State Government may appoint Executive Magistrates in every district and metropolitan area. It shall appoint one of them to be the District Magistrate (The District Magistrate, in addition, is the Collector). He is also the District officer of the district, in which capacity he has to perform many revenue and administrative functions. State Government may also appoint an Additional District Magistrate and, for a sub-division, a sub-divisional Magistrate (Who performs other revenue and administrative functions as a Prant). The State Government may also appoint Special Executive Magistrates for particular areas or for performing particular functions. Executive Magistrates perform other administrative and revenue functions as a Tahasildar.
b. Subordination:
Within the hierarchy of Executive Magistrates, as defined by Section 17 of BNSS, all Executive Magistrates are subordinate to the District Magistrate. Furthermore, any Executive Magistrate (other than the Sub-divisional Magistrate) exercising powers within a sub-division is also subordinate to the Sub-divisional Magistrate. This subordination to the Sub-divisional Magistrate is, however, subject to the general control of the District Magistrate.
c. Jurisdiction and Powers:
i. Their functions are primarily administrative, focused on the maintenance of law and order.
ii. The BNSS/Code does not permit them to try cases.
iii. Powers include handling preventive measures, such as issuing orders under Section 144 BNSS (imposing curfews or restrictions on gatherings).
iv. They oversee administrative and quasi-judicial functions in their jurisdictions. Specific functions mentioned in the sources include taking security for keeping the peace (Section 107 of the Code/BNSS), ordering the removal of nuisances (Section 152 BNSS, comparable to Section 133 of the Code), and conducting proceedings to solve disputes relating to land or water likely to cause a breach of peace (Section 145 of the Code/BNSS).
v. They can make over or withdraw cases (Section 452 BNSS).
vi. Functions allocated to Executive Magistrates under certain sections (like 127, 128, 129, 164, 166 of the Code/BNSS) can be altered and conferred upon Judicial Magistrates of the first class by the State Government after consulting the High Court, if permitted by a resolution of the State Legislative Assembly (Section 526 BNSS).
4. High Court-
Constitution: Each state has a High Court, as mandated by Article 214 of the Constitution of India. They hold authority over subordinate courts. Every High Court exercises superintendence over the Courts of Session and Courts of Judicial Magistrates subordinate to it (Section 531 BNSS).
Jurisdiction and Powers:
a. They may pass any sentence authorised by law (Section 22 BNSS).
b. They have supervisory authority over all subordinate courts in the state.
c. They have appellate jurisdiction over Sessions Courts and District Courts.
d. They handle appeals, revisions, and writ petitions.
In appeal, the High Court may take further evidence or direct it to be taken (Section 432 BNSS).
e. They have extensive powers of revision, including calling for and examining records of inferior criminal courts (Section 438 BNSS). They can exercise powers conferred on a Court of Appeal or Court of Session in revision (Section 442 BNSS). They can order inquiry in revision (Section 439 BNSS).
f. They can withdraw or transfer revision cases (Section 443 BNSS).
g. They can transfer cases and appeals within the state (Section 448 BNSS).
h. They can make rules regarding criminal courts subordinate to them (Section 525 BNSS).
i. They can confer powers of a Judicial Magistrate on civil court judges (Section 9 BNSS).
j. They can confer powers of Judicial Magistrates on persons holding or who have held government posts (Special Judicial Magistrates) (Section 11 BNSS).
k. They have special powers regarding bail (Section 485 BNSS).
l. They can try offences (otherwise than under Section 448 BNSS) observing the same procedure as a Court of Sessions would observe (Section 522 BNSS).
5. Supreme Court
a. Constitution:
The apex judicial authority in India, established under Article 124 of the Constitution of India.
b. Jurisdiction and Powers:
i. It has appellate jurisdiction (to hear appeals) in constitutional, civil, and criminal matters.
ii. It has original jurisdiction in disputes between states or between the Centre and states.
iii. It has advisory jurisdiction on legal matters referred by the President.
iv. It can transfer cases and appeals from one High Court to another High Court or from a criminal court subordinate to one High Court to another criminal court of equal or superior jurisdiction subordinate to another High Court (Section 447 BNSS).
iv. This hierarchical structure, with clearly defined classes, jurisdiction, and powers under the BNSS, forms the cornerstone of the administration of criminal justice in India.
III. Changes brought by BNSS in the Constitution, jurisdiction and powers of the Criminal courts-
The Bharatiya Nagarik Suraksha Sanhita (BNSS) brings about several changes in the constitution, jurisdiction, and powers of criminal courts compared to the Code of Criminal Procedure (CrPC). Here's a summary of the key differences:
1. Constitution of Courts:
a. Abolition of Metropolitan Magistrates:
The BNSS removes the distinction between Metropolitan Areas and non-Metropolitan Areas and consequently abolishes the designation of Metropolitan Magistrate. This aims to create a uniform hierarchy of Judicial Magistrates across the country. Under the BNSS, all Judicial Magistrates will be classified as Judicial Magistrate of the First Class or Judicial Magistrate of the Second Class, irrespective of the population of the area.
b. Removal of Assistant Sessions Judges:
The BNSS does away with the designation of Assistant Sessions Judge. Sessions Courts under the BNSS will primarily consist of the Sessions Judge and Additional Sessions Judges.
c. Special Executive Magistrates:
The BNSS introduces a provision allowing the State Government to appoint any police officer not below the rank of Superintendent of Police as a Special Executive Magistrate. This is an additional category not present in the CrPC.
2. Jurisdiction of Courts:
a. Jurisdiction over Juveniles:
The BNSS omits the specific provision regarding jurisdiction in the case of juveniles that was present in Section 27 of the CrPC. Matters related to juveniles will now be governed by the Juvenile Justice (Care and Protection of Children) Act, 2015.
b. Enhanced Powers of Magistrates Regarding Fines:
The BNSS increases the maximum fine that Judicial Magistrates can impose:
i. Judicial Magistrate of the First Class:
Can now impose a fine not exceeding ₹50,000 (increased from ₹10,000 under CrPC).
ii. Judicial Magistrate of the Second Class:
Can now impose a fine not exceeding ₹10,000 (increased from ₹5,000 under CrPC).
c. Community Service as Punishment:
The BNSS empowers Magistrates of the First and Second Class to impose community service as a form of punishment for certain offenses, a provision not explicitly present in the CrPC.
d. Trial of Offences:
The BNSS, similar to the CrPC, specifies that offenses are triable by the High Court, the Court of Session, or any other court shown in the First Schedule to be triable. The First Schedule of the BNSS will determine the specific jurisdiction for each offense under the Bharatiya Nyaya Sanhita (BNS) and other laws.
3. Powers of Courts:
a. Sentencing Powers:
The sentencing powers of the High Court and Sessions Judges remain largely the same as under the CrPC. They can pass any sentence authorized by law, but a death sentence passed by a Sessions Judge or Additional Sessions Judge requires confirmation by the High Court. The sentencing powers of the Magistrates have been enhanced as mentioned above (increased fines and the power to impose community service).
b. Powers Regarding Absconders:
The BNSS introduces a specific provision allowing trials to be conducted and judgments pronounced in the absence of a proclaimed offender who has absconded to evade trial, if there is no immediate prospect of arresting them.
c. Power to Take Samples:
The power of the court to order the collection of specimen signatures and handwriting is expanded to include finger impressions and voice samples, even from individuals who have not been arrested.
d. Electronic Mode of Proceedings:
The BNSS explicitly empowers courts to hold trials, inquiries, and other proceedings in electronic mode. This includes recording evidence and examining the accused through audio-video means.
e. Timelines for Judgments:
The BNSS mandates that judgments in trials should generally be delivered within 30 days of the completion of arguments, with a provision for extension up to 60 days for specific reasons.
In summary, the BNSS aims to streamline the structure of criminal courts, enhance the use of technology in court proceedings, increase the financial penalties that Magistrates can impose, introduce new forms of punishment like community service, and address issues like absconders and delays through procedural changes and in the courts explicit powers to utilize digital means.
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