CHAPTER II: CONSTITUTION OF CRIMINAL COURTS AND OFFICES
Section 6: Classes of Criminal Courts
Explanation: Establishes the hierarchy and types of Criminal Courts that will exist in every State, apart from the High Courts and any courts created under other specific laws (like special tribunals).
Classes:
(i) Courts of Session
(ii) Judicial Magistrates of the first class
(iii) Judicial Magistrates of the second class
(iv) Executive Magistrates
Example: When a criminal case begins, it will typically be handled by one of these courts depending on the seriousness of the offence and the court’s jurisdiction.
Section 7: Territorial divisions
Sub-section (1):
Explanation: Each State is divided into “sessions divisions”. Each sessions division is further divided into “districts” for the purposes of this Sanhita. A sessions division can be a single district or comprise multiple districts.
Example: Maharashtra is a state. It might be divided into several sessions divisions like the Mumbai Sessions Division, Pune Sessions Division, etc. The Mumbai Sessions Division might correspond exactly to the Mumbai district, or it could potentially cover multiple administrative districts.
Sub-section (2):
Explanation: The State Government has the power to change the boundaries or the number of sessions divisions and districts, but only after consulting with the High Court of that state.
Example: If the Maharashtra government wants to create a new sessions division or merge two existing districts for judicial purposes, it must first discuss this with the Bombay High Court.
Sub-section (3):
Explanation: Similarly, the State Government can divide districts into “sub-divisions” and alter their limits or numbers, again, after consultation with the High Court.
Example: The Pune district might be divided into smaller sub-divisions like Pune City sub-division, Pimpri-Chinchwad sub-division, etc., for better judicial administration, decided by the state government after consulting the High Court.
Sub-section (4):
Explanation: Existing sessions divisions, districts, and sub-divisions that were already established before the BNSS came into force are deemed to have been created under this section and continue to exist.
Example: The pre-existing sessions divisions and districts in India automatically continue under the BNSS framework without needing to be formally re-established.
Section 8: Court of Session
Sub-section (1): Establishment
Explanation: The State Government must set up a Court of Session for every sessions division.
Example: There must be a designated Court of Session for the Mumbai Sessions Division, one for the Pune Sessions Division, etc.
Sub-section (2): Presiding Judge
Explanation: Each Court of Session is headed by a Judge appointed by the High Court. This main judge is typically referred to as the Sessions Judge.
Example: The Bombay High Court appoints the principal Sessions Judge for the Mumbai Court of Session.
Sub-section (3): Additional Sessions Judges
Explanation: The High Court can also appoint Additional Sessions Judges to work in a Court of Session to help handle the caseload.
Example: Besides the principal Sessions Judge, the Mumbai Court of Session will likely have several Additional Sessions Judges appointed by the Bombay High Court.
Sub-section (4): Cross-Appointments
Explanation: The High Court can appoint a Sessions Judge from one division to also serve as an Additional Sessions Judge in another division. In such cases, the judge can hold court proceedings at locations specified by the High Court in that other division.
Example: The Sessions Judge of Thane could be appointed as an Additional Sessions Judge for the neighbouring Palghar division and might hold hearings in Palghar city as directed by the Bombay High Court.
Explanation: If the office of the Sessions Judge is vacant, the High Court can arrange for an Additional Sessions Judge (or, if none exists, the Chief Judicial Magistrate of that division) to handle urgent applications filed or pending before the Court of Session.
Example: If the principal Sessions Judge of Pune retires and a replacement hasn’t been appointed, the High Court can authorize an Additional Sessions Judge (or the Pune CJM) to hear urgent bail applications intended for the Court of Session.
Sub-section (6): Sitting Location
Explanation: The Court of Session usually holds its sittings at locations specified by the High Court via notification. However, if the court believes it would be more convenient for parties and witnesses in a specific case, it can hold sittings elsewhere within the sessions division, but only with the consent of both the prosecution and the accused.
Example: The Pune Court of Session normally sits in Pune city. But, if a case involves many witnesses from a remote village within the Pune sessions division, the judge might, with agreement from both sides, hold a hearing in that village to examine those witnesses.
Sub-section (7): Distribution of Business
Explanation: The principal Sessions Judge can issue orders (consistent with the BNSS) about how work (cases) should be distributed among the Additional Sessions Judges within that court.
Example: The Mumbai Sessions Judge can decide which types of cases or cases from which specific areas are assigned to each Additional Sessions Judge.
Explanation: The Sessions Judge can make arrangements for an Additional Sessions Judge (or, if none, the Chief Judicial Magistrate) to handle urgent applications if the Sessions Judge is absent or unable to act.
Example: If the Sessions Judge is suddenly ill, a pre-arranged order might allow the senior-most Additional Sessions Judge to handle any urgent matters that arise that day.
Explanation Clause: Clarifies that “appointment” in this context (by the High Court) doesn’t refer to the initial recruitment, posting, or promotion of a person into government judicial service, which is typically done by the government itself under relevant laws. It refers to the High Court assigning judicial roles within the court structure.
Section 9: Courts of Judicial Magistrates
Sub-section (1): Establishment
Explanation: In every district, the State Government must establish Courts of Judicial Magistrates of the first class and second class. The number of courts and their locations are decided by the State Government after consulting the High Court and announced via notification.
Proviso: The State Government, after consulting the High Court, can also establish Special Courts of Judicial Magistrates (first or second class) for specific local areas to try particular cases or types of cases. If a Special Court is established for a certain type of case (e.g., traffic violations), other Magistrate courts in that area won’t have jurisdiction over those specific cases.
Example: The Maharashtra government, after consulting the Bombay High Court, decides how many first and second class Judicial Magistrate courts are needed in the Nashik district and where they should be located (e.g., Nashik city, Malegaon). They might also set up a Special Court in Nashik city just for environmental offences.
Sub-section (2): Appointment of Presiding Officers
Explanation: The judges (presiding officers) for these Judicial Magistrate courts are appointed by the High Court.
Example: The Bombay High Court selects and appoints the individuals who will serve as Judicial Magistrates of the first and second class in courts across Maharashtra.
Sub-section (3): Conferring Powers on Civil Judges
Explanation: The High Court can grant the powers of a Judicial Magistrate (first or second class) to a member of the State’s Judicial Service who is currently functioning as a Judge in a Civil Court, if deemed necessary or expedient.
Example: If there’s a shortage of Judicial Magistrates, the High Court might temporarily give a Civil Judge (Junior Division) the powers of a Judicial Magistrate of the first class to handle criminal cases.
Section 10: Chief Judicial Magistrate and Additional Chief Judicial Magistrate, etc.
Sub-section (1): Chief Judicial Magistrate (CJM)
Explanation: In every district, the High Court must appoint one Judicial Magistrate of the first class to be the Chief Judicial Magistrate (CJM). The CJM typically has administrative oversight over other Judicial Magistrates in the district.
Example: The Bombay High Court appoints one experienced Judicial Magistrate (First Class) as the CJM for the Pune district.
Explanation: The High Court can appoint any Judicial Magistrate of the first class as an Additional Chief Judicial Magistrate (ACJM). The ACJM can exercise all or some of the powers of the CJM, as directed by the High Court.
Example: To assist the Pune CJM, the High Court might appoint another Judicial Magistrate (First Class) as an ACJM, perhaps giving them specific powers related to case allocation.
Explanation: The High Court can designate a Judicial Magistrate of the first class in a sub-division as the Sub-divisional Judicial Magistrate (SDJM) and assign/remove responsibilities as needed.
Example: In a large district, the High Court might designate a Magistrate in charge of a specific sub-division (like Baramati sub-division in Pune district) as the SDJM for that area.
Sub-section (4): Powers of SDJM
Explanation: The SDJM exercises supervision and control over the work of other Judicial Magistrates (except ACJMs) within their sub-division, subject to the overall control of the CJM and as specified by the High Court through general or special orders.
Example: The SDJM for Baramati would oversee the functioning and case management of the Judicial Magistrates working within the Baramati sub-division, reporting to the Pune CJM.
Section 11: Special Judicial Magistrates
Sub-section (1): Appointment
Explanation: The High Court can grant powers of a Judicial Magistrate (first or second class) to any person who currently holds or previously held a government post. This is done only if requested by the Central or State Government and is for specific cases or types of cases within a particular local area.
Proviso: Such power can only be given if the person has legal qualifications or experience as specified by High Court rules.
Example: If there’s a large backlog of cheque bouncing cases in a district, the State Government could request the High Court to appoint a retired government officer with a law background as a Special Judicial Magistrate specifically to handle only these types of cases for that area.
Sub-section (2): Designation and Term
Explanation: Magistrates appointed under this section are called “Special Judicial Magistrates”. Their appointment is temporary, for a term not exceeding one year at a time, as directed by the High Court. The term can be renewed.
Example: The retired officer appointed in the previous example would be designated a Special Judicial Magistrate and might initially be appointed for one year. The High Court could extend this term if needed.
Section 12: Local Jurisdiction of Judicial Magistrates
Sub-section (1): Defining Limits
Explanation: The Chief Judicial Magistrate (CJM), under the High Court’s control, defines the specific geographical boundaries within which the regular Judicial Magistrates (appointed under Sec 9) and Special Judicial Magistrates (appointed under Sec 11) can exercise their powers.
Proviso: A Special Judicial Magistrate can hold court sittings anywhere within the local area for which they were established.
Example: The CJM of Thane district can specify that Magistrate ‘A’ will handle cases from Thane city west, Magistrate ‘B’ from Thane city east, and Special Magistrate ‘C’ (appointed for environmental cases) can operate throughout the entire Thane district. Special Magistrate ‘C’ could hold a hearing near a polluted river site within the district if needed.
Sub-section (2): Default Jurisdiction
Explanation: Unless specific local limits are defined as above, the jurisdiction and powers of every Judicial Magistrate extend throughout the entire district where they are appointed.
Example: If the CJM hasn’t specifically limited a Magistrate’s area, that Magistrate can handle cases arising anywhere within the district boundaries.
Sub-section (3): Jurisdiction Beyond District
Explanation: If a Magistrate’s defined local jurisdiction extends beyond the district where their main court is located, any reference in the BNSS to the “Court of Session” or “Chief Judicial Magistrate” concerning that Magistrate’s cases within that extended area should be interpreted as referring to the Court of Session or CJM of the district where the Magistrate ordinarily holds court (unless the context demands otherwise).
Example: A Magistrate ordinarily based in District X is given jurisdiction over a few villages in neighbouring District Y. If a case from one of those District Y villages needs to be committed to the Sessions Court, it would typically be committed to the Court of Session in District X, not District Y.
Section 13: Subordination of Judicial Magistrates
Sub-section (1): Hierarchy
Explanation: Establishes the reporting structure:
Every CJM is subordinate to the Sessions Judge of that sessions division.
All other Judicial Magistrates (including JMFC, JMSC, SDJM, Special Judicial Magistrates) are subordinate to the CJM, and also under the general control of the Sessions Judge.
Example: A Judicial Magistrate (First Class) in Pune reports to the Pune CJM, who in turn reports to the Pune Sessions Judge.
Sub-section (2): Distribution of Business by CJM
Explanation: The CJM can make rules or issue specific orders (consistent with BNSS) regarding how cases (business) are distributed among the Judicial Magistrates subordinate to them.
Example: The CJM can decide that all theft cases will be handled by Magistrate ‘P’ and all cheating cases by Magistrate ‘Q’, or assign cases based on police station jurisdiction within the district.
Section 14: Executive Magistrates
Sub-section (1): Appointment
Explanation: In every district, the State Government can appoint multiple Executive Magistrates as needed and must appoint one of them as the District Magistrate (DM).
Example: The State Government appoints several individuals as Executive Magistrates for the Nagpur district and designates one of them as the District Magistrate of Nagpur.
Sub-section (2): Additional District Magistrate (ADM)
Explanation: The State Government can appoint any Executive Magistrate as an Additional District Magistrate (ADM). The ADM exercises powers of the DM as directed by the State Government.
Example: An Executive Magistrate in Nagpur might be appointed as ADM and given specific powers of the DM related to licensing or public order.
Sub-section (3): Temporary Succession
Explanation: If the DM’s office becomes vacant (e.g., due to transfer, retirement), the officer who temporarily takes charge of the district’s executive administration automatically exercises all the powers and duties of the DM under the BNSS until the State Government makes further orders.
Example: If the DM of Kolhapur is transferred, the senior-most ADM might temporarily take charge and exercise the DM’s powers (like issuing orders under Section 144 CrPC, now Section 163 BNSS) until a new DM is appointed or the government makes other arrangements.
Sub-section (4): Sub-divisional Magistrate (SDM)
Explanation: The State Government can place an Executive Magistrate in charge of a sub-division within a district. This Magistrate is then called the Sub-divisional Magistrate (SDM). The government can also relieve them of this charge.
Example: An Executive Magistrate can be specifically assigned responsibility for the Khed sub-division within the Pune district, becoming the SDM for Khed.
Sub-section (5): Delegation of Power
Explanation: The State Government can delegate its power to appoint SDMs [under sub-section (4)] to the District Magistrate, subject to any controls or directions the government imposes.
Example: The Maharashtra Government might authorize the DM of Satara to appoint Executive Magistrates as SDMs for various sub-divisions within Satara district.
Sub-section (6): Powers of Commissioner of Police
Explanation: This section doesn’t prevent the State Government from conferring powers of an Executive Magistrate on a Commissioner of Police under any other law. (This is relevant in cities with a Commissionerate system).
Example: In Mumbai, the Commissioner of Police might be vested with certain powers typically exercised by an Executive Magistrate regarding public order or licensing, as per relevant state laws.
Section 15: Special Executive Magistrates
Explanation: The State Government can appoint Executive Magistrates, or police officers (Superintendent of Police rank or above), as “Special Executive Magistrates” for specific areas or specific functions for a defined term. They can be given specific powers available to Executive Magistrates under the BNSS.
Example: The State Government might appoint a senior police officer as a Special Executive Magistrate solely for the purpose of handling externment proceedings (removing habitual offenders from an area) in a particular city for two years.
Section 16: Local Jurisdiction of Executive Magistrates
Sub-section (1): Defining Limits
Explanation: The District Magistrate (DM), under the State Government’s control, can define the local geographical limits within which the Executive Magistrates (appointed under Sec 14 or Sec 15) can exercise their powers.
Example: The DM of Ratnagiri district can specify that Executive Magistrate ‘X’ will handle matters in Chiplun taluka, and Executive Magistrate ‘Y’ in Dapoli taluka.
Sub-section (2): Default Jurisdiction
Explanation: Unless specific local limits are defined, the jurisdiction and powers of every Executive Magistrate extend throughout the entire district.
Example: If the DM hasn’t assigned specific areas, any Executive Magistrate in Ratnagiri can exercise their powers anywhere within the Ratnagiri district.
Section 17: Subordination of Executive Magistrates
Sub-section (1): Hierarchy
Explanation: Establishes the reporting structure:
All Executive Magistrates (including ADMs, SDMs, Special Executive Magistrates) are subordinate to the District Magistrate (DM).
Executive Magistrates working in a sub-division (other than the SDM themselves) are also subordinate to the SDM of that sub-division, while remaining under the DM’s overall control.
Example: An Executive Magistrate handling licensing in Karad sub-division reports to the SDM Karad, who reports to the DM Satara.
Sub-section (2): Distribution of Business by DM
Explanation: The DM can make rules or issue specific orders (consistent with BNSS) regarding how work (business or functions) is distributed or allocated among the Executive Magistrates subordinate to them.
Example: The DM can assign specific tasks like overseeing election arrangements, managing disaster relief, or handling land disputes to different Executive Magistrates within the district.
Section 18: Public Prosecutors
Sub-section (1): Appointment for High Court
Explanation: The Central Government or the State Government appoints a Public Prosecutor (PP) and can appoint Additional Public Prosecutors (APP) for each High Court, after consulting the High Court. They handle prosecution, appeals, or other proceedings on behalf of the respective government in the High Court.
Proviso: For Delhi, the Central Government makes these appointments after consulting the Delhi High Court.
Example: The Maharashtra Government, after consulting the Bombay High Court, appoints a senior advocate as the Public Prosecutor to represent the state in criminal appeals before the High Court.
Sub-section (2): Central Government PPs
Explanation: The Central Government can appoint one or more PPs to conduct cases in any specific district or local area (often for cases involving central agencies like CBI, NIA).
Example: The Central Government might appoint a specific lawyer as a PP to handle all CBI cases being tried in the Pune district courts.
Sub-section (3): Appointment for District
Explanation: The State Government appoints a PP for each district and can also appoint one or more APPs for the district.
Proviso: A PP or APP appointed for one district can also be appointed for another district.
Example: The Maharashtra Government appoints a PP and several APPs for the Thane district to handle cases in the Sessions Court and other courts within the district. The PP for Thane might also be given the additional charge for the neighbouring Palghar district.
Sub-section (4): Panel Preparation
Explanation: The District Magistrate (DM), in consultation with the Sessions Judge, must prepare a list (panel) of names of lawyers who they consider fit to be appointed as PPs or APPs for the district.
Example: The DM and Sessions Judge of Solapur meet and review applications/recommendations to create a panel of eligible lawyers suitable for prosecution roles.
Sub-section (5): Appointment from Panel
Explanation: The State Government can only appoint a person as PP or APP for the district if their name is included in the panel prepared under sub-section (4).
Example: The State Government cannot appoint a lawyer as the PP for Solapur if their name wasn’t on the list prepared by the Solapur DM and Sessions Judge (unless sub-section 6 applies).
Sub-section (6): Appointment from Cadre
Explanation: If a state has a regular cadre (structured service) of Prosecuting Officers, the State Government must appoint the PP or APP only from within that cadre.
Proviso: If the State Government believes no suitable person is available within the cadre, they can appoint someone from the panel prepared under sub-section (4).
Explanation Clause: Defines “regular Cadre of Prosecuting Officers” (a service structure with promotion pathways, e.g., from Assistant PP to PP) and “Prosecuting Officer” (anyone appointed to perform prosecution functions under BNSS, regardless of title).
Example: If Maharashtra has a formal service of prosecutors where Assistant PPs get promoted to APP/PP roles, the government must appoint the District PP from this service. Only if no suitable candidate exists in the cadre can they pick from the DM’s panel.
Sub-section (7): Eligibility (Experience)
Explanation: To be eligible for appointment as a PP or APP under sub-sections (1), (2), (3), or (6), a person must have practiced as an advocate for at least seven years.
Example: A lawyer needs a minimum of seven years of experience at the bar to be considered for appointment as an Additional Public Prosecutor in the district court.
Sub-section (8): Special Public Prosecutor (SPP)
Explanation: The Central or State Government can appoint a lawyer with at least ten years of practice as a Special Public Prosecutor (SPP) for a specific case or class of cases.
Proviso: The court may also allow the victim in a case to hire their own lawyer to assist the prosecution (led by the PP/APP/SPP).
Example 1: For a complex financial fraud case, the State Government might appoint a senior advocate with expertise in economic offences as an SPP.
Example 2: In an assault case, the victim might hire their own lawyer who can assist the APP by suggesting questions during cross-examination, with the court’s permission.
Sub-section (9): Calculating Practice Period
Explanation: For calculating the required years of practice (7 years for PP/APP, 10 years for SPP), any period spent serving as a PP, APP, Assistant PP, or other Prosecuting Officer (by any name) counts as practice as an advocate.
Example: If a lawyer practiced for 4 years and then served as an Assistant Public Prosecutor for 3 years, they meet the 7-year eligibility requirement for appointment as an APP or PP.
Section 19: Assistant Public Prosecutors
Sub-section (1): State Appointment
Explanation: The State Government must appoint one or more Assistant Public Prosecutors (Asst. PPs) in every district to conduct prosecutions in the Courts of Magistrates.
Example: The Maharashtra Government appoints several Asst. PPs for Mumbai district to handle cases before the Metropolitan Magistrates.
Sub-section (2): Central Government Appointment
Explanation: The Central Government can also appoint one or more Asst. PPs to conduct specific cases or types of cases in Magistrate courts (usually for central agency cases).
Example: The Central Government might appoint an Asst. PP to handle customs violation cases before a Magistrate in Chennai.
Sub-section (3): Temporary Appointment by DM
Explanation: If no regular Asst. PP is available for a particular case, the District Magistrate (DM) can appoint any other person (who is not a police officer subject to the proviso) to act as the Asst. PP for that specific case, after giving 14 days’ notice to the State Government.
Proviso: A police officer cannot be appointed as an Asst. PP if:
(a) They were involved in investigating that specific case.
(b) They hold a rank below Inspector.
Example: If all Asst. PPs in a district are unavailable on a particular day, the DM could, after notifying the state government, temporarily appoint a local lawyer (not involved in the case’s investigation) to prosecute a minor case before a Magistrate that day. A Sub-Inspector who investigated the case cannot be appointed.
Section 20: Directorate of Prosecution
Sub-section (1): Establishment
Explanation: The State Government may establish:
(a) A statewide Directorate of Prosecution headed by a Director of Prosecution, assisted by Deputy Directors.
(b) A District Directorate of Prosecution in each district with Deputy Directors and Assistant Directors.
Example: The Government of Karnataka may decide to set up a formal Directorate of Prosecution to oversee and manage all state prosecutors.
Sub-section (2): Eligibility for Directorate Posts
Explanation: Sets the eligibility criteria:
(a) Director or Deputy Director: Must have practiced as an advocate for at least 15 years OR be/have been a Sessions Judge.
(b) Assistant Director: Must have practiced as an advocate for at least 7 years OR have been a Magistrate of the first class.
Example: To become a Director of Prosecution, a candidate needs either 15 years of law practice or experience as a Sessions Judge.
Sub-section (3): Head and Control
Explanation: The Directorate is headed by the Director of Prosecution, who functions under the administrative control of the State’s Home Department.
Example: The Director of Prosecution reports to the Home Secretary or relevant authority within the State Home Department regarding administrative matters.
Sub-section (4): Subordination within Directorate
Explanation: Deputy Directors and Assistant Directors are subordinate to the Director. Assistant Directors are also subordinate to Deputy Directors.
Example: An Assistant Director of Prosecution in a district reports to the Deputy Director for that district/region, who in turn reports to the State Director of Prosecution.
Sub-section (5): Subordination of High Court Prosecutors
Explanation: PPs, APPs, and SPPs appointed by the State Government to conduct cases in the High Court are subordinate to the Director of Prosecution.
Example: The Public Prosecutor handling state appeals in the High Court works under the supervision of the Director of Prosecution.
Sub-section (6): Subordination of District Prosecutors
Explanation: PPs, APPs, and SPPs appointed by the State Government for District Courts, and all Assistant PPs (appointed under Sec 19(1)), are subordinate to the Deputy Director or Assistant Director of Prosecution in their district/area.
Example: An Assistant Public Prosecutor prosecuting cases in a Magistrate court in Belagavi district would be subordinate to the Deputy/Assistant Director of Prosecution for that district.
Sub-section (7): Powers and Functions of Director
Explanation: The Director’s role includes monitoring serious cases (punishable with 10+ years, life imprisonment, or death), ensuring proceedings are expedited, and advising on filing appeals.
Example: The Director reviews progress reports for all murder trials in the state and provides guidance to ensure they are concluded quickly.
Sub-section (8): Powers and Functions of Deputy Director
Explanation: The Deputy Director examines police reports and monitors cases punishable with 7 years or more but less than 10 years, ensuring their speedy disposal.
Example: A Deputy Director reviews charge sheets for robbery cases and tracks their progress through the courts.
Sub-section (9): Functions of Assistant Director
Explanation: The Assistant Director monitors cases punishable with less than 7 years.
Example: An Assistant Director keeps track of the progress of theft and cheating cases in the Magistrate courts within their jurisdiction.
Sub-section (10): Overriding Power
Explanation: Despite the specific functions listed in (7), (8), and (9), the Director, Deputy Director, or Assistant Director have the overall power to deal with and be responsible for all proceedings under the BNSS within their scope.
Example: Even though an Assistant Director primarily monitors minor cases, they can still be involved in or responsible for aspects of more serious cases if directed or required.
Sub-section (11): Other Powers and Functions
Explanation: The State Government can specify, by notification, other powers, functions, and the specific areas assigned to each Deputy or Assistant Director.
Example: The government might issue a notification assigning specific administrative tasks or supervisory roles over particular types of cases (e.g., cybercrime) to certain Deputy Directors.
Sub-section (12): Exception for Advocate General
Explanation: The provisions of this section (regarding the Directorate structure and subordination) do not apply to the Advocate General of the State when they are performing the functions of a Public Prosecutor.
Example: If the Advocate General personally appears in court to conduct a major prosecution, they are not subordinate to the Director of Prosecution while doing so.
