6.1 BNSS Architecture, Court Hierarchy & Police Powers
Key Takeaways
- The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) replaced the Code of Criminal Procedure, 1973 on 1 July 2024, expanding procedural architecture from 484 sections across 37 chapters to 531 sections across 39 chapters.
- Section 8 BNSS establishes a uniform four-tier hierarchy of criminal courts (High Courts, Sessions Courts, Judicial Magistrates First Class, and Judicial Magistrates Second Class), completely abolishing the separate classification of Metropolitan Magistrates and Chief Metropolitan Magistrates.
- Under Section 23 BNSS, the sentencing power of a Judicial Magistrate First Class (JMFC) is raised to imprisonment up to 3 years and fine up to Rs. 50,000 (increased from Rs. 10,000 under CrPC), while a Judicial Magistrate Second Class may impose imprisonment up to 1 year and fine up to Rs. 10,000 (increased from Rs. 5,000), alongside newly introduced community service sanctions.
- Chief Judicial Magistrates (CJMs) retain authority under Section 23(1) BNSS to pass sentences of imprisonment up to 7 years and any fine authorized by law, while Sessions Judges under Section 22 may pass any legal sentence subject to High Court death sentence confirmation under Section 415.
- Section 20 BNSS institutionalizes the Directorate of Prosecution under the administrative control of the State Home Department, mandating that the Director and Deputy Directors possess at least 10 years of legal practice or Sessions Judge experience to supervise prosecution and police investigatory compliance.
6.1 BNSS Architecture, Court Hierarchy & Police Powers
[!NOTE] Legislative Milestone: The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) (Act No. 46 of 2023) received Presidential assent on December 25, 2023, and entered into force on 1st July 2024, repealing and replacing the historic Code of Criminal Procedure, 1973 (CrPC). For the Maharashtra Judicial Service Civil Judge (Junior Division) & Judicial Magistrate First Class (JMFC) examination, candidates must master the structural reorganization, revised section numbering, enhanced pecuniary sentencing powers, and newly codified procedural doctrines.
The administration of criminal justice in India is anchored in procedural fairness, constitutional guarantees under Articles 20, 21, and 22, and the systematic distribution of jurisdictional authority among criminal courts. The BNSS reorganizes procedural criminal law into 531 sections organized across 39 chapters, compared to 484 sections across 37 chapters under the CrPC, embedding electronic governance, forensic mandates, and restructured magisterial competencies.
The Foundational Triads of Criminal Procedure
Procedural criminal law operates upon three core conceptual classifications that dictate police powers, magisterial intervention, and bail entitlements from the inception of an alleged offence.
CORE PROCEDURAL CLASSIFICATIONS
1. Arrest Authority ───> Cognizable [Sec. 2(1)(g)] vs. Non-Cognizable [Sec. 2(1)(o)]
2. Bail Entitlement ───> Bailable [Sec. 2(1)(b)] vs. Non-Bailable [Sec. 2(1)(b)]
3. Proceeding Nature ───> Investigation [Sec. 2(1)(l)] ──> Inquiry [Sec. 2(1)(k)] ──> Trial
1. Cognizable vs. Non-Cognizable Offences
- Cognizable Offence [Section 2(1)(g) BNSS / CrPC Section 2(c)]: An offence for which, and 'cognizable case' means a case in which, a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant. Cognizable offences constitute serious infractions against public order where immediate police intervention and registration of a First Information Report (FIR) under Section 173 BNSS are legally mandated.
- Non-Cognizable Offence [Section 2(1)(o) BNSS / CrPC Section 2(l)]: An offence for which, and 'non-cognizable case' means a case in which, a police officer has no authority to arrest without warrant. The police officer must record the substance in the Station Non-Cognizable Register under Section 174 BNSS and refer the informant to the Magistrate. No investigation can be initiated without an express judicial order of a competent Magistrate under Section 174(2) BNSS.
2. Bailable vs. Non-Bailable Offences
- Bailable Offence [Section 2(1)(b) BNSS / CrPC Section 2(a)]: An offence which is shown as bailable in the First Schedule, or which is made bailable by any other law for the time being in force. In bailable cases, grant of bail under Section 478 BNSS (CrPC Section 436) is an absolute, indefeasible statutory right of the accused, leaving no judicial discretion with the police officer or the court, provided sufficient surety is furnished (Rasiklal v. Kishore Khanchand Wadhwani, (2009) 1 SCC 267).
- Non-Bailable Offence [Section 2(1)(b) BNSS / CrPC Section 2(a)]: Any other offence. Bail in non-bailable cases is a matter of judicial discretion governed by Section 480 BNSS (CrPC Section 437) before Magistrates and Section 483 BNSS (CrPC Section 439) before Sessions Courts and High Courts, evaluated on factors such as prima facie guilt, flight risk, witness tampering, and societal impact.
3. Investigation vs. Inquiry vs. Trial
- Investigation [Section 2(1)(l) BNSS / CrPC Section 2(h)]: Includes all proceedings under the Sanhita for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf. Investigation is purely executive and non-judicial.
- Inquiry [Section 2(1)(k) BNSS / CrPC Section 2(g)]: Every inquiry, other than a trial, conducted under the Sanhita by a Magistrate or Court. Examples include preliminary inquiries into complaints under Section 223 BNSS (CrPC 200/202), inquiries into proclaimed absconders, or proceedings under Section 144 BNSS (CrPC 125 maintenance).
- Trial: The term is not statically defined in the Sanhita, but judicial precedent firmly establishes that a trial is a judicial proceeding conducted by a court of competent jurisdiction which terminates either in a conviction or an acquittal. In warrant cases instituted on a police report, trial commences upon the framing of charge under Section 251 BNSS (Hardeep Singh v. State of Punjab, (2014) 3 SCC 92), whereas in summons cases, it commences when the accused is brought before the Magistrate and the particulars of the offence are stated under Section 274 BNSS.
Classes of Criminal Courts under Section 8 BNSS
Section 8 BNSS (corresponding to Section 6 of CrPC 1973) establishes the statutory tiers of criminal courts in every State:
- High Courts (exercising inherent powers under Section 528 BNSS / CrPC 482 and statutory appellate/revisional jurisdiction).
- Courts of Session (established for every Sessions Division under Section 9 BNSS).
- Judicial Magistrates of the First Class (JMFC) (established for every district under Section 11 BNSS).
- Judicial Magistrates of the Second Class (JMSC) (established under Section 11 BNSS).
- Executive Magistrates (appointed by the State Government under Section 14 BNSS, including District Magistrates and Sub-Divisional Magistrates, primarily tasked with preventive and administrative peace maintenance).
Critical Structural Reform: Abolition of Metropolitan Magistrates
A landmark structural reform enacted by the BNSS is the complete abolition of Metropolitan Magistrates and Chief Metropolitan Magistrates (CMMs). Under the CrPC 1973 (Sections 8, 16, 17, 18, and 19), any area with a population exceeding one million could be declared a metropolitan area, establishing a separate magisterial hierarchy. The BNSS has eliminated this urban-rural dichotomy entirely. Throughout the territory of India—including Mumbai, Pune, Nagpur, Delhi, and Kolkata—the criminal judiciary is now uniformly structured as Courts of Session, Chief Judicial Magistrates (CJMs), and Judicial Magistrates of the First and Second Class.
Magisterial Sentencing Jurisdiction under Section 23 BNSS
The powers of Magistrates to pass substantive penal sentences are codified in Section 23 BNSS (corresponding to Section 29 CrPC). The Parliament has substantially updated the pecuniary limits of fines to reflect contemporary economic reality and introduced community service as an innovative non-custodial sanction.
| Magisterial Designation | Substantive Imprisonment Ceiling | Fine Imprisonment Ceiling under CrPC 1973 | Revised Fine Ceiling under BNSS 2023 | Additional Sanctions Introduced |
|---|---|---|---|---|
| Chief Judicial Magistrate (CJM) | Up to 7 years | Any fine authorized by law | Any fine authorized by law | All legal orders authorized by law |
| Judicial Magistrate First Class (JMFC) | Up to 3 years | Up to Rs. 10,000 | Up to Rs. 50,000 (5x increase) | Community Service |
| Judicial Magistrate Second Class (JMSC) | Up to 1 year | Up to Rs. 5,000 | Up to Rs. 10,000 (2x increase) | Community Service |
[!IMPORTANT] Concept of Community Service: Under the Explanation to Section 23 BNSS, "community service" means work which the Court may order a convict to perform without receiving any remuneration, beneficial to the community. This penal tool is expressly available to JMFCs and JMSCs for minor infractions (e.g., small theft under Rs. 5,000 upon return of stolen property, defamation, public intoxication misconduct under Bharatiya Nyaya Sanhita, 2023).
Sentence of Imprisonment in Default of Fine (Section 24 BNSS)
Under Section 24 BNSS (CrPC Section 30), a Magistrate may award imprisonment in default of payment of fine subject to two strict statutory limitations:
- It shall not exceed the term of imprisonment which the Magistrate is competent to inflict under Section 23.
- Where imprisonment has been awarded as part of the substantive sentence, the default imprisonment shall not exceed one-fourth (1/4th) of the maximum term of imprisonment which the Magistrate is competent to inflict for that specific offence (not 1/4th of the general magisterial sentencing ceiling, but 1/4th of the statutory maximum prescribed for that substantive offence).
- Default imprisonment may be in addition to a substantive sentence of imprisonment for the maximum term awardable by the Magistrate.
Sessions Court Sentencing Powers (Section 22 BNSS)
Under Section 22 BNSS (CrPC Section 28):
- 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 under Section 415 BNSS (CrPC Section 366).
- An Assistant Sessions Judge (where appointed) may pass any sentence authorized by law except a sentence of death or imprisonment for life or imprisonment for a term exceeding 10 years.
The Directorate of Prosecution (Section 20 BNSS)
Section 20 BNSS reinforces the institutional independence of public prosecutors, building upon Section 25A CrPC (introduced by the 2005 amendment):
- Establishment: The State Government may establish a Directorate of Prosecution consisting of a Director of Prosecution and such number of Deputy Directors of Prosecution and Assistant Directors of Prosecution as it thinks fit.
- Eligibility Criteria:
- A person shall be eligible to be appointed as Director or Deputy Director of Prosecution only if he has been in practice as an Advocate for not less than 10 years, or is or has been a Sessions Judge.
- The appointment of the Director of Prosecution shall be made with the concurrence of the Chief Justice of the High Court.
- Subordination Structure:
- The Director of Prosecution shall be the administrative head of the Directorate, functioning under the administrative control of the Head of the Home Department of the State.
- Every Deputy Director and Assistant Director of Prosecution shall be subordinate to the Director of Prosecution.
- Every Public Prosecutor, Additional Public Prosecutor, and Special Public Prosecutor appointed under Section 18 BNSS for the High Court or Sessions Court shall be subordinate to the Director of Prosecution.
- Assistant Public Prosecutors (APPs) appointed under Section 19 BNSS for Magisterial Courts shall be subordinate to the Deputy Director of Prosecution.
- Statutory Monitoring Mandate [Section 20(7) BNSS]: The Directorate is statutorily charged with monitoring police investigations, examining police reports, expediting trials, and ensuring that appeals against acquittals are filed within limitation in appropriate cases.
Practical Exam Traps & Maharashtra Subordinate Judiciary Tips
| Exam Trap Subject | Common Misconception | Correct Statutory / Judicial Position |
|---|---|---|
| Metropolitan Magistrates | Assuming Greater Mumbai continues to have Metropolitan Magistrate Courts under BNSS. | BNSS has completely abolished the classification of Metropolitan Magistrates. Courts in Mumbai are now Courts of Judicial Magistrate First Class and Chief Judicial Magistrate. |
| JMFC Fine Ceiling | Quoting the old CrPC limit of Rs. 10,000 for JMFC fine jurisdiction. | Under Section 23(2) BNSS, the maximum fine a JMFC can impose is Rs. 50,000. |
| Default Sentence Ratio | Computing 1/4th default imprisonment against the 3-year JMFC general ceiling. | Under Section 24 BNSS, the 1/4th limit is calculated against the maximum imprisonment prescribed by law for that specific offence, not the Magistrate's outer sentencing limit. |
| Community Service Authority | Believing community service can be ordered by any judicial officer for any offence. | Community service is awardable primarily by Magistrates for specific minor offences prescribed under the BNS or within magisterial sentencing discretion under Section 23 BNSS. |
Under Section 23(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023, what is the maximum fine that a Court of a Judicial Magistrate of the First Class (JMFC) is empowered to impose?
Which of the following classes of criminal courts provided under the Code of Criminal Procedure, 1973 was completely abolished under Section 8 of the Bharatiya Nagarik Suraksha Sanhita, 2023?
Under Section 24(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023, where imprisonment has been awarded as part of the substantive sentence, the term of imprisonment awarded in default of payment of fine shall not exceed what proportion of the maximum imprisonment prescribed for that offence?
Under Section 20 of the Bharatiya Nagarik Suraksha Sanhita, 2023, what is the mandatory minimum qualifying legal practice required for an Advocate to be eligible for appointment as the Director of Prosecution?