unit 1.

3 Functionaries under code

 The Police
 The prosecutors,
 Defence counsel
 Prison authorities and their powers and
functions
 The criminal courts
• Introduction :
• BNSS pre supposes the existence of police authorities. It only gives the
police with certain powers & direct them to discharge certain duties.
• Again public prosecutors are to conduct prosecutions. Section 18 , 19
& 20 deals with the various provisions relating to public prosecutors
& their powers & functions.
• According to section 340 of BNSS any person accused of offence
before criminal court, will have right to be defended by pleader of his
choice. Here comes the important role of defence council.
• Again the role of prison authorities & correctional personal is also
very important under BNSS
• Hence the role & powers & functions of police, prosecutor, defence
council & prison authorities can be discussed as under.
 • The police force is an instrument for
The Police the prevention & detection of the
crime.
• The ordinary criminal courts derive
their existence from BNSS 2023 .
• However, BNSS does not say
anything about the constitution of
Police.
• It assumes the existence of police
and devolves various powers and
responsibilities on to it.
Establishment, composition & Structure of police force

• Every state Government establishes its separate own police force

which is formally enrol
• The police force consists of such number of officers & is
constituted in such manner as state govt. May decide time to time
• The overall administration of police in entire state is vested in
Director General of Police (DGP)
• Administration of Police in every district vest in district
superintendant of police (SP) under direction of district
magistrate who is usually a collector
Every police officer appointed other than IG & SP receives
certificate in the prescribed form by which his vested with the
powers & functions
 Powers function & duties of Police -

• As per The Police Act, 1861, the police force is an

instrument for the prevention and detection of crime.
• Powers function of Police under Police Act 1861 –
• The Police Act, 1861 & other police Acts prescribes
various power & function of police officer. Accordingly
every police officer appointed by the police force other
than Inspector general of Police district receives a
certificate in the prescribe form as regarding to the
powers, functions & privileges of police officer. The
certificate shall seems to be ineffective when police
officer ceases to be police officer.
 Power &function under other police Act.

• The police Act 1888 permit the central Government to

create special police force
• The Police Act of 1949 creates a police force for union
territories
• The Delhi special police force establishment act 1946 has
played an important role in police operation in recent
years
• The act provides for constitution of special force for Delhi
for investigation of certain specified offences in union
territories
• Establishment of central bureau of investigation (CBI)
 POWERS & FUNCTIONS OF POLICE
OFFICERS UNDER THE CODE
DETECTION ,INVESTIGATION AND PREVENTION OF
OFFENCES
 ARREST
SEARCH
HOLD INVESTIGATION
COLLECTION OF EVIDENCE
FILE POLICE REPORT
RECORD STATEMENTS DURING INVESTIGATION
 PUBLIC PROSECUTORS
• A crime is a wrong not only against the individual victim but also
against the society at large. It is because of this considered that the
State, representing the people in their collective capacity, participates in
a criminal trial as party against the person accused of crime.
• The public prosecutor or the Assistant Public Prosecutor is the counsel for
the State in such trials.
• His duties mainly consist in conducting prosecutions on behalf of the
State. The Public prosecutor also appears as State Counsel in criminal
Appeals, revisions and such other matters in the Session Courts and the
High Courts. .The Public Prosecutor should not however appear on
behalf of accused. The Public Prosecutor or the Assistant Public
Prosecutor has authority to appear and plead before any court in any case
entrusted to him. With the consent of the court he can withdraw from the
prosecution against any person.
 Classes of Public Prosecutors.

• There are under section, read with section 2(1)(v) (PLEADER), the
following classes of Public Prosecutors:
• (1) Public Prosecutors (PP)appointed by the Central Government,
• (2) Public Prosecutors (PP)appointed by the State Government,
under sub-section (1),
• (3) Public Prosecutors,(PP)
• (4) Additional Public Prosecutors (APP), appointed by the State
Government under subsection (2),
• (5) Special Public Prosecutors appointed by the Central
Government and
• (6) Special Public Prosecutors, appointed by the State Government
under subsection
 Appointment of Public Prosecutor

• According to the pattern set by the criminal procedure Code, while

public Prosecutors including additional public prosecutors and
Special Public Prosecutors are to conduct prosecutions and other
criminal proceedings in the Session Courts and the High Courts,
Assistant Public Prosecutors are appointed for conducting
prosecutions in the Magistrates Courts.
According to the formal definition given by clause 2(1)(v)
(PLEADER) of section 2,
Public Prosecutor means "any person appointed under Section 18
and includes any person acting under the directions of a Public
Prosecutor".
assistant Public Prosecutors are not covered by this definition as
they are not appointed under Section 18
 Public Prosecutors and additional public prosecutors for high
Courts - Section 18

 A person shall be eligible to be appointed in HC as PP if he has

practice not less than 7 years
 The appointing authority can make appointment only after
consultation with HC S. 18 (1)
 The Central GOVT. Shall appoint a PP and may also appoint one or
more additional pp in a HC for prosecution on behalf of central govt.
 similarly the state govt. Shall appoint a PP and may also appoint
one or more additional pp in a hc for prosecution on behalf of state
govt.
 The Central Government or the State Government may appoint, an
advocate who has been in practice for not less than ten years as a
Special Public Prosecutor.
 Public Prosecutors and Additional Public Prosecutors for the
districts. Section 18

 A person shall be eligible to be appointed as a Public

Prosecutor or Additional Public Prosecutors if he has been
in practice as an advocate for not less than seven years
 Consistent with the above rules, the State Government
shall appoint a Public Prosecutor and may also appoint
one or more Additional Public Prosecutors for the district.
 The Central Government or the State Government may
appoint for the purpose of any case or class of cases, an
advocate who has been in practice for not less than ten
years as a Special Public Prosecutor.
 Assistant Public Prosecutors :- Section 19

• Section 19 makes provisions prescribing eligibility

qualifications for being appointed as Assistant
Public Prosecutor as well as provisions for the
appointment of such prosecutors for conducting
prosecutions in the Magistrates Courts. The section
read as follows;
• The State Government shall appoint in every district
one or more Assistant Public Prosecutors for
conducting prosecutions in the Courts of
Magistrates.
 The Role of the Prosecutor

 The object of a criminal trial is to find out the truth

and determine the guilt or innocence of the accused.
 They play a important role in administration of justice
 The duty of the prosecutor in such trials would be to
secure conviction for the accused by presenting the
evidence collected by the police machinery
 There should not be on the part of the prosecutor "any
unseemly eagerness for or grasping at conviction.
 Duties of a public prosecutor
• Duty of a public prosecutor mainly consists in
conducting the prosecution on behalf of the state.
• His goal is not merely to produce a conviction but
the help the court arrive at a just decision.
• He also appears as the state counsel in criminal
appeals, revisions, and such other matters in the
Session Courts and High Court It is important to
note that he does not appear on behalf of the
accused
 Powers of Public Prosecuter

• As per s.338 PP and APP has authority to

appear and plead before any court
• As per s.360 PP and APP can withdraw from
prosecution with permission of the court
 The Defence Counsel
appointed under advocates act 1961
• According to Section 340 any person accused of an offence
before criminal court or against whom the proceedings have
been initiated has right to defend by a pleader of his choice
• Unlike the other functionaries under the Code, such as the police
and the prosecutors, the advocates and pleaders engaged in the
task of defending the accused persons are not in the regular
employment of the State and in most of the cases they receive
remuneration for their services from the accused persons.
• Nevertheless they are also the officers of the Court and are
quite indispensable If a fair trial is to be given to an accused
person.
 [s 20] Directorate of Prosecution.—

• 20. (1) The State Government may establish,—

• (a) a Directorate of Prosecution in the State
consisting of a Director of Prosecution and as many
Deputy Directors of Prosecution as it thinks fit; and
• (b) a District Directorate of Prosecution in every
district consisting of as many Deputy Directors and
Assistant Directors of Prosecution, as it thinks fit.
• DISTRICT GOVERNMENT PLEADER TO WHOM ALL
PP AND APP OF THE DISTRICT WILL REPORT
 Conditions for appointment
• (2) A person shall be eligible to be appointed,—
• (a) as a Director of Prosecution or a Deputy
Director of Prosecution, if he has been in
practice as an advocate for not less than
fifteen years or is or has been a Sessions Judge;
• (b) as an Assistant Director of Prosecution, if
he has been in practice as an advocate for not
less than seven years or has been a Magistrate
of the first class.
Function of Directorate of Prosecution
• (3) The Directorate of Prosecution shall be headed
by the Director of Prosecution, who shall function
under the administrative control of the Home
Department in the State.
• (4) Every Deputy Director of Prosecution or
Assistant Director of Prosecution shall be
subordinate to the Director of Prosecution; and
every Assistant Director of Prosecution shall be
subordinate to the Deputy Director of Prosecution
• (7) The powers and functions of the Director of Prosecution shall
be to monitor cases in which offences are punishable for ten
years or more, or with life imprisonment, or with death; to
expedite the proceedings and to give opinion on filing of appeals.
• (8) The powers and functions of the Deputy Director of
Prosecution shall be to examine and scrutinize police report and
monitor the cases in which offences are punishable for seven
years or more, but less than ten years, for ensuring their
expeditious disposal.
• (9) The functions of the Assistant Director of Prosecution shall be
to monitor cases in which offences are punishable for less than
seven years.
Prison authorities and Correctional Services Personnel

• As in the case of the police, the BNSS presupposes the existence of

Prisons and Prison authorities.
• The BNSS empowers Magistrates and Judges under certain
circumstances to order detention of under trial prisoners in jail during
the pendency of the proceedings.
• The BNSS also empowers the courts to impose sentences of
imprisonment on convicted persons and to send to the prison authorities
for the due execution of such sentences.
• If, at the conclusion of the trial, the accused is found guilty, the court
shall pass a sentence on the offender unless it decides to deal with the
offender under the Probation laws.
• Section 402 further directs the court that as far as possible the court
should deals with the offender under Section 401 regarding release of
the offender on probation of g ood conduct or after admonition.
• Therefore, it would become necessary to provide for
the machinery and personnel for the execution of
sentences and also for the rehabilitation and
treatment of the offenders.
• The BNSS however does not make specific
provisions for the creation, working and control of
such machinery. These matters have been left to
other special Acts, such as, the Prisons Act, 1894,
the Prisoners Act, 1900, the Borstal School Acts,
the Probation of Offenders Act, 1958, etc.
 [s 6] Classes of Criminal Courts.—

• 6. Besides the High Courts and the Courts

constituted under any law, other than this
• Sanhita, there shall be, in every State, the
following classes of Criminal Courts, namely:—
• (i) Courts of Session;
• (ii) Judicial Magistrates of the first class;
• (iii) Judicial Magistrates of the second class; and
• (iv) Executive Magistrates.
 [s 7] Territorial divisions.—
• 7. (1) Every State shall be a sessions division or shall consist
of sessions divisions; and every sessions divisions shall, for the
purposes of this Sanhita, be a district or consist of districts.
• (2) The State Government may, after consultation with the
High Court, alter the limits or the number of such divisions
and districts.
• (3) The State Government may, after consultation with the
High Court, divide any district into sub-divisions and may alter
the limits or the number of such sub-divisions.
• (4) The sessions divisions, districts and sub-divisions existing in
a State at the commencement of this Sanhita, shall be
deemed to have been formed under this section.
 [s 8] Court of Session.—

• 8. (1) The State Government shall establish a

Court of Session for every sessions
• division.
• (2) Every Court of Session shall be presided over
by a Judge, to be appointed by the High Court.
• (3) The High Court may also appoint Additional
Sessions Judges to exercise jurisdiction in a
Court of Session
• (4) The Sessions Judge of one sessions division may be appointed
by the High Court to be also an Additional Sessions Judge of
another division, and in such case, he may sit for the disposal of
cases at such place or places in the other division as the High
Court may direct.
• (5) Where the office of the Sessions Judge is vacant, the High
Court may make arrangements for the disposal of any urgent
application which is, or may be, made or pending before such
Court of Session by an Additional Sessions Judge or if there be no
• Additional Sessions Judge, by a Chief Judicial Magistrate, in the
sessions division; and every such Judge or Magistrate shall have
jurisdiction to deal with any such application.
 [s 9] Courts of Judicial Magistrates.—

• 9. (1) In every district there shall be established as many

Courts of Judicial Magistrates of the first class and of the
second class, and at such places, as the State Government may,
after consultation with the High Court, by notification, specify:
• Provided that the State Government may, after consultation
with the High Court, establish, for any local area, one or more
Special Courts of Judicial Magistrates of the first class or of the
second class to try any particular case or particular class of
cases, and where any such Special Court is established, no other
Court of Magistrate in the local area shall have jurisdiction to
try any case or class of cases for the trial of which such Special
Court of Judicial Magistrate has been established
• (2) The presiding officers of such Courts shall
be appointed by the High Court.
• (3) The High Court may, whenever it appears
to it to be expedient or necessary, confer the
powers of a Judicial Magistrate of the first
class or of the second class on any member of
the Judicial Service of the State, functioning as
a Judge in a Civil Court
[s 10] Chief Judicial Magistrate and Additional Chief Judicial Magistrate, etc.—

• 10. (1) In every district, the High Court shall

appoint a Judicial Magistrate of the first class to
be the Chief Judicial Magistrate.
• (2) The High Court may appoint any Judicial
Magistrate of the first class to be an
• Additional Chief Judicial Magistrate, and such
Magistrate shall have all or any of the powers of a
Chief Judicial Magistrate under this Sanhita or
under any other law for the time being in force as
the High Court may direct.
• (3) The High Court may designate any Judicial Magistrate
of the first class in any sub-division as the Sub-divisional
Judicial Magistrate and relieve him of the responsibilities
• specified in this section as occasion requires.
• (4) Subject to the general control of the Chief Judicial
Magistrate, every Sub-divisional Judicial Magistrate shall
also have and exercise, such powers of supervision and
control over the work of the Judicial Magistrates (other
than Additional Chief Judicial Magistrates) in the sub-
division as the High Court may, by general or special order,
specify in this behalf
 [s 11] Special Judicial Magistrates.—

• (11. (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, 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
 [s 12] Local jurisdiction of Judicial
Magistrates.—
• (1) Subject to the control of the High Court, the Chief
Judicial Magistrate may, from time to time, define
the local limits of the areas within which the
Magistrates appointed under s. 11 or under s. 13
may exercise all or any of the powers with which
they may respectively be invested under this Code:
• (2) Except as otherwise provided by such definition,
the jurisdiction and powers of every such Magistrate
shall extend throughout the district.
 [s 13] Subordination of Judicial
Magistrates.—

• (1) Every Chief Judicial Magistrate shall be

subordinate to the Sessions Judge; and every other
Judicial Magistrate shall, subject to the general
control of the Sessions Judge, be subordinate to the
Chief Judicial Magistrate.
• (2) The Chief Judicial Magistrate may, from time to
time, make rules or give special orders, consistent
with this Sanhita, as to the distribution of business
among the Judicial Magistrates subordinate to him.
 [s 14] Executive Magistrates.—

• 14. (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.
 [s 15] Special Executive Magistrates.—

• 15. 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.
 [s 16] Local Jurisdiction of Executive Magistrates.—

• (1) Subject to the control of the State

Government, the District Magistrate may, from
time to time, define the local limits of the areas
within which the Executive Magistrates may
exercise all or any of the powers with which they
may be invested under this Code.
• (2) Except as otherwise provided by such
definition, the jurisdiction and powers of every
such Magistrate shall extend throughout the
district.
 [s 17] Subordination of Executive Magistrates.—

• (1) All Executive Magistrates, other than the Additional District

Magistrate, shall be subordinate to the District Magistrate, and
every Executive Magistrate (other than the Sub-divisional
Magistrate) exercising powers in a sub-division shall also be
subordinate to the Sub-divisional Magistrate, subject, however,
to the general control of the District Magistrate.

• (2) The District Magistrate may, from time to time, make rules
or give special orders, consistent with this Code, as to the
distribution of business among the Executive Magistrates
subordinate to him and as to the allocation of business to an
Additional District Magistrate.