Criminal Procedure: Code of Criminal Procedure, 1973 / Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)
Powers of Criminal Courts Sections 21 to 29
Powers of Criminal Courts under the BNSS, 2023: Sections 21 to 29, Sentencing Powers, Default Imprisonment, Concurrent and Consecutive Sentences
Chapter II of the Bharatiya Nagarik Suraksha Sanhita, 2023 creates the criminal courts. Chapter III, sections 21 to 29, tells each of them what it may do. The chapter answers three questions in sequence: which court may try which offence, what sentence each court may pass, and how the powers conferred by the Sanhita are given to and taken away from particular officers.
The chapter is short and is frequently skimmed. It should not be. A sentence beyond a court’s competence is to that extent without authority; a trial by a court not competent to hold it is an irregularity of the kind section 507 treats as fatal; and the question whether an officer was empowered under section 26 is what decides, in a great many cases, whether an act is curable under section 506 or incurable under section 507.
1. Courts by Which Offences Are Triable: Section 21
Section 21, BNSS 2023 Subject to the other provisions of this Sanhita — (a) any offence under the Bharatiya Nyaya Sanhita, 2023 may be tried by the High Court, or the Court of Session, or any other Court by which such offence is shown in the First Schedule to be triable; (b) any offence under any other law shall, when any Court is mentioned in this behalf in such law, be tried by such Court and when no Court is so mentioned, may be tried by the High Court, or any other Court by which such offence is shown in the First Schedule to be triable. Provided that any offence under section 64, 65, 66, 67, 68, 70 or 71 of the Bharatiya Nyaya Sanhita, 2023 shall be tried as far as practicable by a Court presided over by a woman. |
Three features of the section deserve notice. The allocation is made by the First Schedule and not by Chapter II, so the constitution of the courts and the distribution of work among them are done by different parts of the statute. The High Court appears in both limbs, preserving its original criminal jurisdiction where it exists. And the proviso, requiring specified sexual offences to be tried as far as practicable by a court presided over by a woman, carries forward the corresponding proviso of the 1973 Code.
Where the First Schedule assigns an offence to the Court of Session, the case must reach that court by committal under section 232, because a Court of Session cannot ordinarily take cognizance as a court of original jurisdiction. Where the Schedule assigns it to “any Magistrate”, a Magistrate of the second class may try it; where it assigns it to a Magistrate of the first class, a Magistrate of the second class may not.
2. Sentencing Powers: Sections 22 and 23
2.1 High Court and Court of Session
Court | Provision | Sentence it may pass |
|---|---|---|
High Court | Section 22(1) | Any sentence authorised by law |
Sessions Judge or Additional Sessions Judge | Section 22(2) | Any sentence authorised by law; a sentence of death passed by such a Judge is subject to confirmation by the High Court under Chapter XXX |
Section 22 is shorter than its predecessor because the Assistant Sessions Judge has been abolished. Section 28(3) of the Code of Criminal Procedure limited an Assistant Sessions Judge to imprisonment for a term not exceeding ten years; with the office gone, the limitation has gone with it, and the Court of Session now has a single undivided sentencing power subject only to confirmation in a capital case.
2.2 Magistrates
Court | Provision | Under the CrPC, 1973 | Under the BNSS, 2023 |
|---|---|---|---|
Chief Judicial Magistrate | Section 23(1) | Any sentence authorised by law except death, imprisonment for life, or imprisonment exceeding seven years | Unchanged |
Judicial Magistrate of the first class | Section 23(2) | Imprisonment up to three years, or fine up to ten thousand rupees, or both | Imprisonment up to three years, or fine up to fifty thousand rupees, or both, or community service |
Judicial Magistrate of the second class | Section 23(3) | Imprisonment up to one year, or fine up to five thousand rupees, or both | Imprisonment up to one year, or fine up to ten thousand rupees, or both, or community service |
The Explanation to section 23 defines community service as 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. It is the first addition to the list of punishments available to a Magistrate in a very long time, and it operates together with the Bharatiya Nyaya Sanhita, which prescribes community service as a punishment for a small group of petty offences. The Sanhita supplies the power and the definition; the substantive statute supplies the occasions on which it may be used.
3. Imprisonment in Default of Fine: Section 24
Section 24 provides that the court of a Magistrate may award such term of imprisonment in default of payment of fine as is authorised by law, subject to two conditions. The term must not exceed the powers of the Magistrate under section 23; and where imprisonment has been awarded as part of the substantive sentence, the period of imprisonment in default of fine must not 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.
Sub-section (2) adds that the imprisonment awarded in default may be in addition to a substantive sentence of imprisonment for the maximum term awardable by the Magistrate under section 23. The default sentence is therefore not part of the substantive sentence and is not counted against the ceiling; it sits on top of it, but is itself capped at one fourth.
⚠ Three rules about default imprisonment It is a means of enforcing the fine, not a substantive punishment. It is undergone only if the fine is not paid, and it ends if the fine is paid at any time. It must be proportionate. A default term wholly out of proportion to the fine, or to the means of the convict, is open to interference on appeal or revision, and the court is required to have regard to the pecuniary circumstances of the offender. It runs after the substantive sentence, and a court cannot direct a default sentence to run concurrently with the substantive term, because that would defeat the purpose of coercing payment. |
4. Several Offences at One Trial: Section 25
Section 25, BNSS 2023 (1) 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; such punishments when consisting of imprisonment to commence the one after the expiration of the other in such order as the Court may direct, unless the Court directs that such punishments shall run concurrently. 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. (2) 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. |
Figure 1: Concurrent and consecutive sentences, and the two ceilings
4.1 The default is consecutive
The words of the section are that the punishments, when consisting of imprisonment, commence the one after the expiration of the other in such order as the court may direct, unless the court directs that they shall run concurrently. The default is therefore consecutive, and concurrence requires a direction. The practical consequence is that a court which says nothing has ordered consecutive sentences, so the absence of a direction is itself a decision.
4.2 The two ceilings
- Twenty years. In no case shall the person be sentenced to imprisonment for a longer period than twenty years. This ceiling is new to the Sanhita; section 31 of the CrPC contained no absolute limit in years.
- Twice the single-offence power. The aggregate must not exceed twice the amount of punishment which the court is competent to inflict for a single offence. For a Magistrate of the first class, whose single-offence power is three years, the aggregate cannot exceed six years however many offences are involved.
The ceilings operate on the aggregate of consecutive sentences. Where the court directs sentences to run concurrently, the person serves the longest of them, and the question of an aggregate does not arise in the same way.
4.3 The appeal provision
Sub-section (2) deems the aggregate of consecutive sentences to be a single sentence for the purpose of an appeal by the convicted person. The provision matters because appellate forums are often fixed by reference to the length of the sentence: a person sentenced to several short terms running consecutively is treated as having received their total, and his right of appeal is determined accordingly.
5. Concurrent and Consecutive Sentences in the Case Law
📖 O.M. Cherian alias Thankachan v. State of Kerala, (2015) 2 SCC 501 Facts: The accused was convicted of several offences at one trial and sentenced to separate terms of imprisonment. The question referred was whether, under section 31 of the Code of Criminal Procedure, the court has a discretion to direct that the sentences run concurrently, or whether consecutive running is mandatory in the absence of a statutory provision to the contrary, and on what principles the discretion is to be exercised. Held: The Supreme Court held that section 31 leaves it to the full discretion of the court to order the sentences to run concurrently, and that the discretion is to be exercised judicially having regard to the nature of the offences and the circumstances in which they were committed. Where the offences arise out of a single transaction the court should ordinarily direct concurrent running, unless the law requires otherwise; where they are distinct and separate, consecutive sentences may be appropriate. The Court added that the discretion must be exercised on reasons and cannot be left unaddressed, and that the aggregate must remain within the limits the section prescribes. Ratio: Concurrent running is a matter of judicial discretion, not of right and not of automatic operation. The single-transaction test is the principal guide, and the discretion must be exercised with reasons. |
📖 Muthuramalingam v. State represented by Inspector of Police, (2016) 8 SCC 313 (Constitution Bench) Facts: Several accused were convicted of multiple murders and sentenced to imprisonment for life on more than one count, the sentences being directed to run consecutively. The question referred to a Constitution Bench was whether consecutive life sentences can lawfully be awarded, and whether a life sentence can be directed to run after a term sentence. Held: The Court held that a sentence of imprisonment for life means imprisonment for the remainder of the convict’s natural life, and that it is therefore not possible for two such sentences to run one after the other; there is nothing left after a life sentence for a second to follow. Multiple life sentences must run concurrently. The Court held, however, that a life sentence may be directed to run after a fixed-term sentence, so that the term sentence is served first; and that the direction that a life sentence run consecutively to another life sentence is legally impermissible, though the court may indicate a minimum period of actual imprisonment before remission is considered. Ratio: Two life sentences cannot run consecutively and must run concurrently. A life sentence may be directed to commence after a fixed-term sentence, but not after another life sentence. |
Both decisions were given on section 31 of the Code of Criminal Procedure, which section 25 of the Sanhita reproduces with the addition of the twenty-year ceiling. The reasoning applies unchanged. The new proviso has one further consequence worth noting: where consecutive sentences are directed, the aggregate is now capped at twenty years in terms, which limits the practical scope for long consecutive strings even where the single-offence power would otherwise permit them.
6. Conferment, Withdrawal and Succession: Sections 26 to 29
Figure 2: How powers are conferred, withdrawn and succeeded to
Provision | What it provides |
|---|---|
Section 26 | Mode of conferring powers. In conferring powers under the Sanhita, the High Court or the State Government, as the case may be, may empower persons specially by name or in virtue of their office, or classes of officials generally by their official titles |
Section 27 | When it takes effect. Every such order takes effect from the date on which it is communicated to the person so empowered |
Section 28 | Withdrawal of powers. The High Court or the State Government may withdraw all or any of the powers conferred by it on any person or by any officer subordinate to it. Powers conferred by the High Court or the Sessions Judge on an officer subordinate may be withdrawn by them |
Section 29 | Powers of Judges and Magistrates exercisable by their successors-in-office. Subject to the Sanhita, the powers and duties of a Judge or Magistrate may be exercised or performed by his successor-in-office. Where there is doubt as to who is the successor-in-office of an Additional or Assistant Sessions Judge, the Sessions Judge determines by order in writing the Judge who shall be deemed to be the successor; and in the case of a Magistrate, the Chief Judicial Magistrate or, as the case may be, the District Magistrate determines |
6.1 Why these four sections matter
Chapter XXXVII of the Sanhita divides irregularities by reference to whether the officer was empowered. Section 507 makes it fatal, among other things, for a Magistrate not empowered by law to attach and sell property, to issue a search warrant for a document or thing in the custody of a postal authority, to take cognizance of an offence, or to hold an inquest. Section 506 excuses a list of acts done by a Magistrate not empowered, where he acted erroneously but in good faith.
Whether an officer was empowered is therefore not an administrative question but the question that decides whether a proceeding survives. The answer is found in the order made under section 26, in the date on which it was communicated under section 27, in whether it was withdrawn under section 28, and in whether the person acting was the successor-in-office under section 29. The four sections are the evidentiary foundation of a great many objections taken under Chapter XXXVII.
7. Key Takeaways
The position stated shortly 1. Section 21 allocates offences by reference to the First Schedule: an offence under the Bharatiya Nyaya Sanhita is triable by the High Court, the Court of Session or the court shown in the Schedule; an offence under another law by the court that law names, or failing that by the court the Schedule shows. 2. A proviso to section 21 requires the specified sexual offences to be tried as far as practicable by a court presided over by a woman. 3. Section 22: the High Court and the Court of Session may pass any sentence authorised by law, a death sentence by the latter being subject to confirmation under Chapter XXX. The Assistant Sessions Judge and his ten-year limit have gone. 4. Section 23: the Chief Judicial Magistrate up to seven years; a Magistrate of the first class up to three years or fifty thousand rupees; a Magistrate of the second class up to one year or ten thousand rupees; each may also award community service, defined in the Explanation. 5. Section 24: default imprisonment must not exceed the Magistrate’s powers, must not exceed one fourth of the substantive term he is competent to impose, and may be in addition to the maximum substantive sentence. 6. Section 25: on conviction of several offences at one trial the sentences run consecutively unless the court directs otherwise; the aggregate must not exceed twice the single-offence power, and in no case twenty years. 7. The twenty-year ceiling is new to the Sanhita; section 31 of the CrPC had no absolute limit in years. 8. Concurrent running is a judicial discretion guided by the single-transaction test and must be exercised with reasons: O.M. Cherian. Two life sentences cannot run consecutively and must run concurrently, though a life sentence may follow a fixed-term sentence: Muthuramalingam. 9. Sections 26 to 29 govern the conferment of powers by name, office or official title, their effect on communication, their withdrawal, and their exercise by a successor-in-office. Whether an officer was empowered is what decides the operation of sections 506 and 507. |
8. Frequently Asked Questions
What is the maximum sentence a Chief Judicial Magistrate can pass?
Any sentence authorised by law except death, imprisonment for life, or imprisonment for a term exceeding seven years, under section 23(1).
What is the maximum fine a Judicial Magistrate of the first class can impose?
Fifty thousand rupees under section 23(2), raised from ten thousand rupees under section 29(2) of the CrPC. A Magistrate of the second class may impose up to ten thousand rupees, raised from five thousand.
How long can imprisonment in default of a fine be?
Not more than the Magistrate’s powers under section 23, and not more than one fourth of the term of imprisonment he is competent to impose as a substantive sentence for the offence. It may be in addition to the maximum substantive sentence.
Do sentences run concurrently or consecutively by default under the BNSS?
Consecutively. Section 25(1) provides that the punishments commence the one after the expiration of the other unless the court directs that they run concurrently, so concurrence requires a positive direction.
Is there a maximum aggregate sentence on conviction of several offences?
Yes, two of them. The aggregate must not exceed twice the punishment the court is competent to inflict for a single offence, and in no case may a person be sentenced to imprisonment for a longer period than twenty years. The twenty-year ceiling is new to the Sanhita.
Can two sentences of life imprisonment run consecutively?
No. A life sentence means imprisonment for the remainder of natural life, so there is nothing after it for a second sentence to follow. Multiple life sentences run concurrently, though a life sentence may be directed to commence after a fixed-term sentence: Muthuramalingam.
Related Topics
- Constitution of Criminal Courts: Sections 6 to 17, BNSS
- Police Powers and Public Assistance: Sections 30 to 34, BNSS
- Classification of Offences under the First Schedule
- Hierarchy of Criminal Courts under the BNSS, 2023
- Irregular Proceedings: Sections 506 to 512 and the Test of Failure of Justice
- The Judgment: Sections 392 to 406, BNSS