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BHARATIYA NAGARIK SURAKSHA SANHITA, 2023

Power of Sentencing

Under BNSS, 2023, the power of sentencing is as follows:

Court Power of Sentencing
COS/ASJ Death Sentence( to be confirmed by High Court or Life
Imprisonment
CJM/ACJM Imprisonment for a term upto 7 years
JMIC Imprisonment for a term upto 3 years or fine upto Rs.
50,000 or of both, or of community service.
JMIIC Imprisonment for a term upto 1 year or a fine upto
Rs. 10,000 or of both, or of community service.

 Section 22 of BNSS 2023 : Sentences which High Courts and Sessions

Judges may pass
(1) A High Court may pass any sentence authorised by law.
(2) A Sessions Judge or Additional Sessions Judge may pass any sentence
authorised by law; but any sentence of death passed by any such Judge
shall be subject to confirmation by the High Court.

 Section 23 of BNSS 2023: Sentences which Magistrates may pass

(1) The Court of a Chief Judicial Magistrate may pass any sentence
authorised by law except a sentence of death or of imprisonment for life
or of imprisonment for a term exceeding seven years.
(2) The Court of a Magistrate of the first class may pass a sentence of
imprisonment for a term not exceeding three years, or of fine not
exceeding fifty thousand rupees, or of both, or of community service.

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(3) The Court of Magistrate of the second class may pass a sentence of
imprisonment for a term not exceeding one year, or of fine not exceeding
ten thousand rupees, or of both, or of community service.
Explanation.—"Community service" shall mean the 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.

Note: Under the Code of Criminal Procedure (Cr.P.C), 1973, the power to
punish was as follows:

Court Power of Sentencing

High Court Any sentence authorised by law
COS/Addl. SJ Death Sentence( to be confirmed by High Court) or Life
Imprisonment
Assistant Imprisonment of a term upto 10 years
Sessions Judge
CJM/ACJM Imprisonment of a term upto 7 years
JMIC Imprisonment of a term upto 3 years or fine upto Rs.
10,000 or both
JMIIC Imprisonment of a term upto 1 year and fine upto Rs.
5,000 or both

 Section 28 of Cr.P.C. 1973: Sentences which High Courts and Sessions

Judges may pass
(1) A High Court may pass any sentence authorised by law.

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(2) A Sessions Judge or Additional Sessions Judge may pass any sentence
authorised by law; but any sentence of death passed by any such Judge
shall be subject to confirmation by the High Court.
(3) An Assistant Sessions Judge may pass any sentence authorised by law
except a sentence of death or of imprisonment for life or of imprisonment
for a term exceeding ten years.

 Section 29 of Cr.P.C. 1973: Sentences which Magistrates may pass

(1) The Court of a Chief Judicial Magistrate may pass any sentence
authorised by law except a sentence of death or of imprisonment for life
or of imprisonment for a term exceeding seven years.
(2) The Court of a Magistrate of the first class may pass a sentence of
imprisonment for a term not exceeding three years, or of fine not
exceeding ten thousand rupees, or of both.
(3) The Court of Magistrate of the second class may pass a sentence of
imprisonment for a term not exceeding one year, or of fine not exceeding
five thousand rupees, or of both.
(4) The Court of a Chief Metropolitan Magistrate shall have the powers of
the Court of a Chief Judicial Magistrate and that of a Metropolitan
Magistrate, the powers of the Court of a Magistrate of the first class.

SPECIAL JUDICIAL MAGISTRATES

 Section 11 of BNSS, 2023: Special Judicial Magistrates

(1) The High Court may, if requested by the Central or State Government
so to do, confer upon any person who holds or has held any post under the
Government, all or any of the powers conferred or conferrable by or under
this Sanhita on a Judicial Magistrate of the first class or of the second class,

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in respect to particular cases or to particular classes of cases, in any local

area.
Provided that no such power shall be conferred on a person unless he possesses
such qualification or experience in relation to legal affairs as the High Court may,
by rules, specify.
(2) Such Magistrates shall be called Special Judicial Magistrates and shall be
appointed for such term, not exceeding one year at a time, as the High
Court may, by general or special order, direct.

EXECUTIVE MAGISTRATE

 Section 14: Executive Magistrates

(1) In every district, the State Government may appoint as many persons
as it thinks fit to be Executive Magistrates and shall appoint one of them
to be the District Magistrate.
(2) The State Government may appoint any Executive Magistrate to be an
Additional District Magistrate, and such Magistrate shall have such of the
powers of a District Magistrate under this Sanhita or under any other law
for the time being in force as may be directed by the State Government.
(3) Whenever, in consequence of the office of a District Magistrate
becoming vacant, any officer succeeds temporarily to the executive
administration of the district, such officer shall, pending the orders of the
State Government, exercise all the powers and perform all the duties
respectively conferred and imposed by this Sanhita on the District
Magistrate.
(4) The State Government may place an Executive Magistrate in charge of a
sub-division and may relieve him of the charge as occasion requires; and

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the Magistrate so placed in charge of a sub-division shall be called the

Sub-divisional Magistrate.
(5) The State Government may, by general or special order and subject to
such control and directions as it may deem fit to impose, delegate its
powers under sub-section (4) to the District Magistrate.
(6) Nothing in this section shall preclude the State Government from
conferring, under any law for the time being in force, on a Commissioner
of Police all or any of the powers of an Executive Magistrate.
Note: The words "in any Metropolitan area, Metropolitan Magistrates" have
been excluded in BNSS 2023, which implies even in a non-metropolitan area as
well Commissioner of Police can be conferred with the powers of an Executive
Magistrate.

 Section 15: Special Executive Magistrates

The State Government may appoint, for such term as it may think fit,
Executive Magistrates or any police officer not below the rank of
Superintendent of Police or equivalent, to be known as Special Executive
Magistrates, for particular areas or for the performance of particular functions
and confer on such Special Executive Magistrates such of the powers as are
conferrable under this Sanhita on Executive Magistrates, as it may deem fit.

Note: Under Section 21 Cr.P.C. 1973 it was provided that the State
Government may appoint, for such term as it may think fit, Executive
Magistrates, to be known as Special Executive Magistrates, for particular areas
or for the performance of particular functions and confer on such Special
Executive Magistrates such of the powers as are conferrable under this Code on
Executive Magistrates, as it may deem fit.

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Thus, with the new addition, State Government may appoint police
officers of the rank Superintendent of Police or equivalent, as Special Executive
Magistrate.

Power of Sentencing v/s Power to Punish

Example: Under Section 117(2) BNS 2023, the punishment that may be
awarded is imprisonment which may extend to 7 years, and shall also be liable
to fine and the offence is triable by any Magistrate.

Under Section 316(5) BNS 2023, the punishment that may be awarded is
imprisonment which may extend to 10 years, and shall also be liable to fine and
the offence is triable by Judicial Magistrate First Class (JMIC).

At the same time, JMIC can award a punishment of imprisonment upto 3 years
and JMIIC can award a punishment of imprisonment upto 1 year.

This conflict may be resolved by Section 23 BNSS, 2023 which clearly

provides that ‘the Court of a Magistrate of the first class may pass a sentence of
imprisonment for a term not exceeding 3 years, or of fine not exceeding 50,000
rupees, or of both, or of community service.’

Thus, the restriction on the power of JMIC to award punishment is of 3 years

even if the offence triable by him is punishable with imprisonment more than 3
years. In such a scenario, Section 364 BNSS, 2023 which provides for
Procedure when Magistrate cannot pass sentence sufficiently severe, comes
to aid.

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Section 364 BNSS, 2023 provides that ‘whenever a Magistrate is of

opinion, after hearing the evidence for the prosecution and the accused, that the
accused is guilty, and that he ought to receive a punishment different in kind
from, or more severe than, that which such Magistrate is empowered to inflict,
he may record the opinion and submit his proceedings, and forward the
accused, to the Chief Judicial Magistrate to whom he is subordinate.’

Situation 1: A enters to b’s house/shop and commits theft there.

He is convicted of committing ‘theft in dwelling house’ which is punishable

with imprisonment of either description for a term which may extend to 7 years
under Section 305 BNS 2023 and has committed ‘trespass to commit an offence
punishable’ punishable with imprisonment may be extended to 10 years, under
Section 331(3) BNS, 2023.

Since the offences are triable by JMIC, so the maximum punishment that can be
awarded is an imprisonment upto 3 years in these offences. If we were to say
that 3 years of imprisonment is awarded in each of the two offences, then the
total punishment would be 6 years. The question which arises is whether this
punishment will run together or one after the other?

This may be dealt with Section 25 BNSS, 2023 which provides for
‘Sentence in cases of conviction of several offences at one trial.’ It provides
that ‘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 BNS, 2023, sentence him for
such offences, to the several punishments prescribed therefor which such Court

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is competent to inflict and the Court shall, considering the gravity of

offences, order such punishments to run concurrently or consecutively.’

Example: Concurrent Sentence

For Offence under Section 305 BNS 2023, the sentence will run from
01/01/2021 to 01/01/2024.

For second offence under Section 331(3) BNS, 2023, the sentence will also run
from 01/01/2021 to 01/01/2024.

Example: Consecutive Sentence (i.e. one after the other)

For Offence under Section 305 BNS 2023, the sentence will run from
01/01/2021 to 01/01/2024 and then for second offence under Section 331(3)
BNS, 2023, the sentence will also run after 01/01/2024...i.e. from 01/01/2024 to
01/01/2027.

Situation 2: In the same example, let’s say the person was convicted under
Section 324(5) BNS 2023 which is punishable with imprisonment of either
description for a term which may extend to 5 years.

Since the offences are triable by JMIC, so the maximum punishment that
can be awarded is an imprisonment upto 3 years in these offences. If we were to
say that three years of imprisonment is awarded in each of the three offences,
then the total punishment would be 9 years.

But, Section 25 (2) BNSS, 2023 further provides that, in the case of
consecutive sentences, it shall not be necessary for the Court by reason only of
the aggregate punishment for the several offences being in excess of the
punishment which it is competent to inflict on conviction of a single offence,
to send the offender for trial before a higher Court.

Provided that:

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(a) in no case shall such person be sentenced to imprisonment for a longer

period than 20 years;
(b) the aggregate punishment shall not exceed twice the amount of
punishment which the Court is competent to inflict for a single offence.
Example: JMIC can award punishment of imprisonment upto 3 years, and as per
clause (b) the aggregate punishment while awarding consecutive sentence cannot
be more than twice of what he is competent to inflict…i.e. 2x3 years= 6 years.
And in any case it cannot be not more than 20 years, as provided under clause (a).

Note:
The corresponding provision under Cr.P.C. 1973 was Section 31. Sub section (1) has
been
But in the given situation 2, since the offences are triable by JMIC, so the
reframed but the essence is same.
maximum punishment that can be awarded is an imprisonment upto 3 years in
The change has been brought in subsection (2) (a) under which words ‘fourteen years’
these offences. If we were to say that 3 years of imprisonment is awarded in
has
each of the three offences, then the total punishment would be 9 years, which is
more than twice of the punishment he is competent to inflict (as per Section
25(2)(b) of BNSS, 2023.)

Situation 3: In a case, ‘A’ murdered ‘B’ for which he was awarded life
imprisonment and he caused grievous hurt to ‘C’, for which he was punished
with imprisonment of 5 years. The question which arises is whether these
punishments will run concurrently i.e. at the same time or consecutively i.e. 5
years and then L.I or L.I and then 5 years? In case the punishment is to be run
consecutively, it will be 5 years of imprisonment and then life imprisonment.

Say, in another situation:

A murdered X, for which he was punished with life imprisonment. He also

murdered Y, for which he was punished with life imprisonment. He caused

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grievous hurt to Z, for which he was punished with imprisonment for 5 years.
The question which arises is whether these punishments will run concurrently or
consecutively? In a case if it were to be run consecutively, it will be 5 years and
then life imprisonment.

The hon’ble Supreme Court in the case of Muthuramalingam & Ors v. State,
(2016), 5 Judges Bench, SC dealt with an interesting question of law as to
whether consecutive life sentences can be awarded to a convict on being found
guilty of a series of murders for which he has been tried in a single trial.
Situation 1: If multiple term sentences are awarded and none of them being life
imprisonment, then sentences can run consecutively, unless otherwise directed.
Situation 2: Multiple term sentences awarded, where some are term sentences
and only one life sentence, the sentences can be directed to run consecutively by
specifying that the prisoner shall undergo term sentence first and then life
sentence. But the converse thereof cannot be directed.

Situation 3: If multiple sentences of life imprisonment only are awarded, then

same cannot be directed to run consecutively. They can only run concurrently.
As in law, they stand superimposed on each other.

Situation 4: If multiple sentences are awarded, some being term sentences and
multiple sentences of life imprisonment, then sentences can be directed to run
consecutively by specifying that the prisoner shall undergo the term sentences
first and then one life sentence, which would be a superimposition of all life
sentences. All such life sentences shall run concurrently, however, the converse
thereof cannot be directed.

Where in case of multiple life sentences which stand superimposed on

each other runs concurrently, then in case if the prisoner is granted benefit of

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remission or commutation qua one such sentence, the benefit of such remission
would not ipso facto extend to the other.

 Punishment in default of fine:

Section 24 BNSS, 2023 deals with ‘Sentence of imprisonment in default of

fine.’ It says The Court of a Magistrate may award such term of imprisonment
in default of payment of fine as is authorised by law.

Provided that the term:

(a) is not in excess of the powers of the Magistrate under section 23;
Example: Punishment Rs. 10000 fine is awarded, in default of the same the
JMIC may award 3 years of imprisonment in default of payment of fine.
(b) shall not, where imprisonment has been awarded as part of the
substantive sentence, 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 of payment of the fine.
Example: Punishment of 3 years and Rs. 10,000 fine. In default of fine, shall
undergo imprisonment for upto 9 months i.e. ¼ of the term of imprisonment
which the Magistrate is competent to inflict as punishment i.e. ¼ X 3 years (36
months)= 9 months.
(2) The imprisonment awarded under this section may be in addition to a
substantive sentence of imprisonment for the maximum term awardable
by the Magistrate under section 23 .

 Sentence on offender already sentenced for another offence

Section 467 of BNSS 2023 provides that when a person already undergoing a
sentence of imprisonment is sentenced on a subsequent conviction to

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imprisonment or imprisonment for life, such imprisonment or imprisonment for

life shall commence at the expiration of the imprisonment to which he has been
previously sentenced, unless the Court directs that the subsequent sentence shall
run concurrently with such previous sentence.

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