Powers of Magistrates**
Classification of Magistrates
Magistrates form the backbone of the criminal justice system in India, exercising significant powers in investigation, trial, and maintaining law and order. The BNSS categorizes Magistrates into two main types based on their functions and jurisdictions.
Executive Magistrates (District Magistrate, Sub-Divisional Magistrate, etc.)
Executive Magistrates are appointed by the State Government and primarily function as administrative officers, with certain magisterial powers related to maintaining public order and preventing crime.
Appointments: Section 20 BNSS provides for the appointment of Executive Magistrates, including a District Magistrate (DM), Additional District Magistrate (ADM), Sub-Divisional Magistrate (SDM), and other Executive Magistrates.
Functions: Their powers are generally executive and administrative in nature, focusing on:
Maintaining public peace and order.
Preventing the commission of offences.
Taking action in cases of unlawful assemblies and riots.
Issuing orders under Section 144 BNSS (urgent cases of nuisance or danger).
Taking security measures for good behaviour and for keeping the peace.
Conducting inquests into unnatural deaths (Section 176 BNSS).
Supervision: The District Magistrate exercises supervision over all other Executive Magistrates in the district.
Judicial Magistrates (Chief Judicial Magistrate, Judicial Magistrate First Class, Judicial Magistrate Second Class)
Judicial Magistrates are part of the judiciary and are subordinate to the High Court. They exercise powers related to the trial of criminal offences and judicial supervision of investigation.
Appointments: Section 6 BNSS outlines the classes of Criminal Courts, which include Judicial Magistrates of the First Class and Judicial Magistrates of the Second Class. The High Court may also appoint a Chief Judicial Magistrate (CJM) and Additional Chief Judicial Magistrates (ACJM).
Functions: Their primary functions are judicial and include:
Taking cognizance of offences (Section 190 BNSS).
Conducting inquiries and trials of various offences.
Authorizing arrest and remand (Section 46 BNSS).
Issuing summons and warrants (Section 62 & 63 BNSS).
Recording statements and confessions (Section 173 BNSS).
Passing judgments and imposing sentences within their prescribed limits.
Supervision: The Chief Judicial Magistrate exercises supervisory control over other Judicial Magistrates in the district.
Powers of Executive Magistrates
Executive Magistrates wield powers primarily aimed at maintaining public order, preventing crime, and taking urgent measures to avert danger.
Section 107 BNSS: Proceedings for maintenance of peace and good behaviour
This section empowers Executive Magistrates to take action against persons likely to commit a breach of the peace or disturb public tranquility.
Action: If an Executive Magistrate receives information that any person is likely to commit a breach of the peace or disturb the public tranquility, or to do any wrongful act that may probably occasion a breach of the peace or disturb the public tranquility, the Magistrate may require such person to show cause why he should not be ordered to execute a bond with or without sureties, for keeping the peace for such period, not exceeding one year, as the Magistrate thinks fit.
Section 110 BNSS: Proceedings for security for good behaviour from habitual offenders
This section deals with habitual offenders and allows for measures to ensure their good behaviour.
Action: If an Executive Magistrate receives information that any person is by habit a robber, house-robber, murderer, thief, embezzler, counterfeiter of coin or Government stamps, receiver of stolen property, ... or habitually commits, or attempts to commit, or abets the commission of, offences involving violence, house-trespass, theft, receiving stolen property, or any offence punishable under Chapters XII of the Indian Penal Code (counterfeiting), or Chapter XVII of the Indian Penal Code relating to property Offences, the Magistrate may require such person to show cause why he should not be ordered to execute a bond for good behaviour.
Section 144 BNSS: Power to issue order in urgent cases of nuisance or danger
This is a significant emergency power that allows Magistrates to act swiftly to prevent danger to life, health, or property.
Action: A District Magistrate, Sub-divisional Magistrate, or any other Executive Magistrate specially empowered by the State Government or the District Magistrate in this behalf may, by written order, direct any person to refrain from a certain act, or to take certain order with respect to certain property, if it appears that such direction is likely to prevent obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquility, or a riot, or an affray.
Duration: Such an order can be made by a Magistrate only in urgent cases of nuisance or apprehended danger and is usually effective for a limited period (typically two months, extendable by State Government up to six months).
Section 147 BNSS: Power to prohibit or regulate the use of places of public resort
This section deals with disputes concerning the use of public places.
Action: Whenever any Magistrate is satisfied that a dispute exists concerning any land or the water of any tank, river or channel, which is likely to cause a breach of the peace, he may make a order prohibiting the assembly of five or more persons, or the carrying of arms, or the performance of any act, in such place, or regulating the use of such land or water, until the decision of a competent court or until he is satisfied that the breach of the peace is no longer likely to occur.
Section 149 BNSS: Power to compel repair of certain buildings or removal of nuisance
This section empowers Magistrates to address issues related to public health and safety posed by buildings or nuisances.
Action: If any building, tent or vessel, or any tree, or any part of anything is in such a state as to cause, or to be likely to cause, danger to persons passing by or inhabiting the same, or to persons resorting to it, or is a nuisance, the Magistrate may order the owner or occupier thereof to remove the same or to repair it or to take such order with respect thereto as he may think fit.
Powers related to Unlawful Assemblies and Rioting
Executive Magistrates play a key role in managing unlawful assemblies and riots.
Section 129 BNSS: empowers an Executive Magistrate to command the dispersal of an unlawful assembly.
Section 130 BNSS: allows the Magistrate to use civil force, and if necessary, military force, to disperse such assemblies.
Section 131 BNSS: empowers certain officers to use force to disperse assemblies.
These powers are critical for maintaining law and order in public disturbances.
Powers of Judicial Magistrates
Judicial Magistrates are vested with extensive powers concerning the investigation, trial, and disposal of criminal cases, acting as the primary judicial interface in the criminal justice process.
Power to take Cognizance of Offences (Section 190 BNSS)
This is perhaps the most fundamental power of a Judicial Magistrate. Section 190 BNSS states that a Magistrate can take cognizance of any offence:
Upon receiving a complaint of facts which constitute such offence;
Upon a report in writing of such facts made by any police officer;
Upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
This power allows Magistrates to initiate judicial proceedings based on various sources of information.
Powers related to Arrest and Remand (Sections 41-46 BNSS)
Judicial Magistrates exercise significant control over the liberty of individuals, particularly after arrest.
Authorizing Arrest: As per Section 44 BNSS, a Judicial Magistrate can arrest or order any person to arrest an accused for whose arrest he is competent to issue a warrant.
Remand: Section 46 BNSS empowers Magistrates to authorize detention of an arrested person in police or judicial custody, subject to the prescribed time limits (initially 24 hours, then up to 15 days in police custody, and further in judicial custody up to 90/60 days for filing charge sheet).
Bail: Judicial Magistrates have the power to grant or refuse bail in bailable and non-bailable offences (Sections 436, 437 BNSS).
Powers relating to Search and Seizure (Sections 165, 166 BNSS)
Judicial Magistrates have the power to authorize searches and seizures to aid investigations.
Magistrate to Authorize Search: Section 165 BNSS allows a police officer to seek permission from a Magistrate to conduct a search if they are unable to obtain a warrant under Section 166.
Warrant for Search: Section 166 BNSS details the procedure for a Magistrate to issue a search warrant. If a Magistrate has reason to believe that anything necessary for the purpose of investigation into an offence is concealed in any place, they may issue a warrant to search for such thing.
Powers related to issuing Process (Summons, Warrants)
After taking cognizance, Magistrates issue processes to compel the appearance of the accused or witnesses.
Summons: Section 62 BNSS outlines the procedure for issuing summons to compel attendance.
Warrants: Section 63 BNSS details the procedure for issuing warrants of arrest. Magistrates can issue warrants for arrest or for seizure of property as required by the investigation or trial.
Power to impose Sentence
Judicial Magistrates have the power to impose sentences on persons convicted of offences, within the limits prescribed by the BNSS and other relevant laws.
Sentencing Powers: Section 29 BNSS specifies the sentencing powers of different classes of Judicial Magistrates:
Chief Judicial Magistrate: Imprisonment up to 7 years and fine.
Judicial Magistrate First Class: Imprisonment up to 3 years and fine.
Judicial Magistrate Second Class: Imprisonment up to 1 year and fine up to ₹5,000.
Other Courts: Courts of Session have higher sentencing powers, including life imprisonment and death penalty (subject to confirmation).
Magistrate's power to record statements and confessions (Section 173 BNSS)
Section 173 BNSS (which corresponds to Section 164 of the CrPC) grants Judicial Magistrates the crucial power to record statements and confessions of accused persons and witnesses during the investigation phase.
Recording Confessions: A Magistrate can record the confession of an accused person. Such a confession must be made voluntarily, and the Magistrate must ensure the accused understands that they are not bound to confess and that any confession made may be used against them. The confession must be recorded in a prescribed format (question-answer form) and signed by the Magistrate and the accused. This recorded confession is admissible in evidence.
Recording Statements: Magistrates can also record the statements of witnesses. These statements, if recorded during the investigation, are typically made under Section 173(5) and (6) of BNSS, which also mandates videography. These statements are not substantive evidence but can be used for corroboration or contradiction during trial.
Videography: A significant enhancement in BNSS is the mandate for videography of the recording of confessions and statements of witnesses, ensuring transparency and accuracy.
Importance: This power allows for the preservation of vital evidence in a legally sound manner, ensuring that statements are voluntary and accurately documented, which is crucial for a fair trial.