July 20, 2024
Home » CONSTITUTION AND POWER OF CRIMINAL COURTS IN INDIA : A COMPARITIVE STUDY OF THE BNSS, 2023 AND CrPC 1973.
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This article has been written by Jatin Rana ( pursuing a B.A.LL.B. (Hons.) (IVth Year) from Law College Dehradun faculty of Uttaranchal University)

Introduction

The law which governs the administration of the substantive criminal law is the law of criminal procedure. In India, the first criminal procedure law was introduced in 1861 which was later replaced in 1898. In the year 1923, the criminal procedure law of 1898 was again updated. The Indian Legislature on the recommendation of the Fifth law Commission’s 41st report, introduced and enacted the Criminal Procedure Code, 1973 (hereinafter referred as Code). The said code is still in function but the Indian Legislature has passed the bill ‘Bhartiya Nagarik Suraksha Sanhita, 2023’ (hereinafter referred as BNNS) which will later replace the Code of 1973. As stated by Mr. Amit Shah (Home Minister of India), the main motive of the introduction of new criminal law is to replace the laws given to us by the Britishers and to provide justice to the victims, as the earlier laws only focus on giving punishments instead of providing justice. In this article, we will focus on the changes made by the BNSS with respect to the constitution and powers of the criminal courts in India.

Classes and Constitution of Criminal Courts

According to Section 6 of the Code and Section 6 of BNSS, there are four classes of courts other than the High Court and the Special Courts in every State. According to BNSS, the four classes of Courts are as follows:

  • Session Court
  • Judicial Magistrate of the first class
  • Judicial Magistrate of the second class; and
  • Executive Magistrate

In BNSS, the concept of metropolitan magistrate and metropolitan area is removed. In the Code, the metropolitan magistrate is provided with the powers same as of the Judicial magistrate of first class. But according to BNSS, there will be no metropolitan magistrates and metropolitan areas.

Constitution of Session Court

According to Section 8 of BNSS, the Session Court shall only consist of the Session Judge, who is the presiding officer of the court and the Assistant Session Judges. The High Court of the particular State shall appoint the presiding officer and may also appoint Additional Session Judges.

Also, the Session Judge may also pass an order for the distribution of the duties to all the nominated additional session judges.

In BNSS, the designation of Assistant Session Judge is excluded which was earlier the part of the constituency of the session court as given under Section 9 of the Code.

Constitution of Court of Judicial Magistrates

According to Section 11 of the Code and the Section 9 of BNSS, the Court of Judicial Magistrate shall include Court of Judicial Magistrate first class and Court of Judicial Magistrate second class.

Also, the State Government may after consultation with the High Court may establish any special court of judicial magistrate of first class or of second class. The presiding officer of these court shall also be appointed by the High Court.

According to Section 12 of the Code and Section 10 of BNSS, every Judicial Magistrate of first class shall be appointed as the Chief Judicial Magistrate or Additional Chief Judicial Magistrate or the Sub-divisional Magistrate by the High Court.

Also, every Chief Judicial Magistrate shall be subordinate to the Session Judge and every Judicial Magistrate shall be subordinate to the Chief Judicial Magistrate.

Constitution of Court of Executive Magistrate

According to Section 20 of the Code and Section 14 of BNSS, the State Government shall appoint one of the Executive Magistrate as a District Magistrate or Additional District Magistrate whose power will be same under BNSS.

The State Government may also appoint one of the Executive Magistrate as a Sub-divisional placed in charge of Sub-division or Special Executive Magistrate for any particular area or for any particular classes of cases.

According to Section 23 of the Code and Section 17 of BNSS, all the Executive Magistrates are subordinate to the District Magistrate and all the Executive Magistrate working n any Sub-division shall be subordinate to the Sub-divisional Magistrate.

Powers of Criminal Courts

According to Section 28 of the Code and Section 22 of BNSS, the High Court may pass any sentence authorised by the law. The Session Judge and the Additional Session Judge may pass any sentence authorised by the law but in case of sentence of death by any of such Judges, it has to be confirmed by the High Court of the particular State.

As there is no designation of Assistant Session Judge in BNSS, the said Sanhita also does not  states of the power of the Assistant Session Judges.

Section 29 of the Code and Section 23 of BNSS, the Chief Judicial Magistrate may pass any sentence except the death punishment, life imprisonment or the imprisonment for the term exceeding seven years.

The Judicial Magistrate of first class may pass a sentence for a term not exceeding three years and/or the fine not exceeding fifty thousand rupees. According to the Code, the maximum fine imposed by the Magistrate of first class is ten thousand rupees, but it is increased to fifty thousand rupees in BNSS.

Also, the Judicial Magistrate of second class may pass a sentence for the term not exceeding one year and/or for the fine not exceeding ten thousand rupees. According to the Code, the maximum imposed by the Magistrate of Second class is five thousand rupees, but it is increased to ten thousand rupees in BNSS.

According to Section 30 of the Code and Section 24 of BNSS, the court of Judicial Magistrate may pass sentence for imprisonment in default of fine but not in excess of the powers given under the Code and BNSS respectively. Also, the punishment passed in default of fine can be in addition to the punishment passed under 23 of BNSS.

Also, Section 25 of BNSS deals with the cases of conviction for the several offences. The said Section states that the court may pass different sentences in a single trial for different offences committed by the same person subject to section 9 of the Bhartiya Nyaya Sanhita, 2023. And the Court shall clarify that the sentences shall run concurrently or Consecutively. But here it should also be noticed that no court shall send the offender for trial before the higher Court only for the reason the aggregate of the several punishments is excessing the punishment which it is competent to inflict on conviction of the single offence.

But the conditions are that no person shall be punished for more than fourteen years and the total aggregate of the punishments of the total offences shall not exceed twice the amount of the punishment which the court is competent to inflict for the single offence.

Conclusion

The introduction of Bhartiya Nagarik Suraksha Sanhita, 2023 has brought various changes in the classes, constitution and powers of the Criminal Courts as given under the Code of Criminal Procedure, 1973. The new law has excluded the metropolitan courts and metropolitan areas and also the designation of Assistant Session Judge. The Indian Legislature has focused to made their own law and to set aside the old laws which were made by the Britishers.


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