PSDA – Bhartiya Nagrik Suraksha Sanhita

CODE: BA LLB

TOPIC: Powers of Courts and Jurisdiction of Criminal Courts

Department of Law Trinity Institute of Professional

Studies

SUBMITTED TO: Asst. Prof. SUBMITTED BY: Shivya Sethi

Aishwarya Ma’am
BA LLB 2022- 2027
Roll No. 00420603822
Subject: Bhartiya Nagrik
Semester – 5 Suraksha Sanhita

Submitted by SHIVYA SETHI

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Introduction

The Bhartiya Nagrik Suraksha Sanhita, 2023 (BNSS), is set to replace the Code of Criminal
Procedure, 1973 (CrPC), bringing reforms to the procedural laws governing criminal cases in
India. The BNSS defines the powers and jurisdiction of criminal courts, ensuring a structured
hierarchy to handle different offenses. Courts' jurisdiction is largely based on the nature and
severity of the offense, as well as territorial boundaries.

At the top is the Supreme Court, followed by High Courts, which have original, appellate,
and revisionary jurisdiction. Sessions Courts deal with serious offenses, such as those
punishable by death or life imprisonment, while Magistrate Courts handle less severe
offenses. Judicial Magistrates (First and Second Class) have authority over lesser offenses,
and Executive Magistrates handle preventive measures like maintaining law and order.

The BNSS grants courts the power to take cognizance of offenses, grant bail, conduct trials,
and pass sentences based on the severity of the crime. It retains key provisions for plea
bargaining and introduces mechanisms for quicker trials. Higher courts retain powers to
transfer cases, and special courts may be established for specific offenses. The Sanhita also
emphasizes modernization while keeping foundational elements from the CrPC intact,
streamlining justice delivery.

Jurisdiction of Criminal Courts under Bhartiya Nagrik Suraksha Sanhita,

2023 (BNSS)

The Bhartiya Nagrik Suraksha Sanhita (BNSS), 2023, replacing the Code of Criminal
Procedure (CrPC), 1973, retains several core principles of the administration of criminal
justice, while bringing certain reforms. The structure and jurisdiction of criminal courts
outlined in the BNSS are largely based on the foundations laid by the CrPC, with
modernizations intended to improve efficiency and transparency.

One of the most critical aspects of criminal courts is their jurisdiction, which defines the
court's authority to hear and decide cases. Jurisdiction includes both territorial jurisdiction
(geographical boundaries within which a court operates) and subject-matter jurisdiction (the
types of cases the court can handle). Understanding the jurisdiction of criminal courts is
essential for knowing where and how criminal cases are initiated, prosecuted, and decided.

1. Territorial Jurisdiction

Territorial jurisdiction refers to the geographic area over which a particular criminal court has
the authority to preside and hear cases. Under the BNSS, like in the CrPC, the place where
the offense is committed generally determines which court has the jurisdiction to try the case.

Place of Commission of Offense

The principle that the place where the crime occurred determines which court has jurisdiction
is central to the criminal justice system. The police station in that area is typically responsible
for investigating the case, and once the investigation is complete, the case is filed in the court
that has jurisdiction over that geographical area.

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  For instance, if a crime occurs in Delhi, the case will usually be tried in a court
situated in Delhi, under the jurisdiction of the courts in the state of Delhi.
 The court where the First Information Report (FIR) is filed or the complaint is lodged
with the police usually falls within the territorial jurisdiction of the court that tries the
case.

Exceptions to Territorial Jurisdiction

There are certain exceptions where territorial jurisdiction may be more flexible, such as in the
following cases:

 Continuing Offenses: If an offense continues to be committed in more than one area,

each of those areas' courts may have jurisdiction to try the case.
 Offenses Covering Multiple Jurisdictions: In cases where crimes, such as fraud or
conspiracy, are spread across multiple areas, courts in any of the affected jurisdictions
may have the authority to hear the case.
 Transfer of Cases: Higher courts, such as the High Courts or the Supreme Court, have
the power to transfer a case from one jurisdiction to another if it is believed that
justice will be better served, or if there is an apprehension of bias or undue influence
in the local jurisdiction.

In these instances, the territorial boundaries of the jurisdiction may be extended or even
modified to ensure the case is heard fairly.

2. Cognizance of Offenses

The term cognizance refers to the court's authority to take notice of an offense and initiate
legal proceedings. Under the BNSS, as with the CrPC, courts take cognizance of offenses
either through a police report (usually referred to as a charge sheet) or a complaint filed by an
individual or party.

Police Report or Charge Sheet

In the vast majority of criminal cases, the court takes cognizance of an offense after a police
investigation is completed and a charge sheet is filed. The charge sheet contains details of the
investigation, the evidence collected, the individuals accused, and the crimes they are charged
with.

Once the charge sheet is submitted to the court, the judge or magistrate will examine the
report and decide whether there is sufficient basis to proceed with a trial. If so, the court takes
cognizance of the case and begins the legal process.

Complaint by a Private Party

In some cases, particularly in non-cognizable offenses or cases where the police do not file an
FIR, an aggrieved person may file a complaint directly with the court. In such cases, the court
may take cognizance of the offense after examining the complaint and any supporting
evidence presented by the complainant.

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The BNSS maintains the framework for private complaints, giving individuals the ability to
bring criminal cases to court without police intervention. This is crucial in ensuring access to
justice, especially in cases where the police may be reluctant or unwilling to act.

Initiating Proceedings

Once the court takes cognizance of the offense, it proceeds with the next steps, which may
include issuing summons to the accused, framing charges, and scheduling a trial. The court’s
jurisdiction and powers to try the case come into full effect once it has officially taken
cognizance of the matter.

3. Hierarchy of Courts

The BNSS retains the hierarchical structure of criminal courts as established under the CrPC,
which provides a clear system of lower and higher courts, each with specific powers,
jurisdiction, and responsibilities. Understanding the hierarchy is essential for knowing which
court will hear a case based on the nature and seriousness of the offense.

Supreme Court

The Supreme Court of India stands at the apex of the judicial hierarchy. In criminal matters,
the Supreme Court functions primarily as an appellate court. It hears appeals against
decisions of lower courts, particularly High Courts, and has the power to reverse or uphold
those decisions.

 Appellate Jurisdiction: The Supreme Court hears appeals in criminal cases,

particularly in serious cases like those involving the death penalty or life
imprisonment, where there are significant questions of law or constitutional issues.
 Special Leave to Appeal: The Supreme Court also has the power to grant Special
Leave to Appeal (Article 136 of the Constitution), allowing it to hear cases that would
not ordinarily come before it, if the Court believes there are compelling reasons to do
so.
 Transfer of Cases: The Supreme Court has the authority to transfer cases from one
jurisdiction to another across India to ensure fair trials or if there is apprehension of
local bias.

High Courts

High Courts have original, appellate, and revisionary criminal jurisdiction. Each state or
union territory has its own High Court, which serves as the highest court within that state or
territory’s jurisdiction.

 Original Jurisdiction: High Courts can directly try certain serious offenses, though this
is less common in criminal cases. They generally deal with civil matters under
original jurisdiction.
 Appellate Jurisdiction: The High Court is the primary appellate authority for decisions
made by Sessions Courts. It hears appeals in both minor and major criminal cases, and
its decisions can be further appealed to the Supreme Court.

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  Revisionary Jurisdiction: High Courts also have revisionary powers, which allow
them to review and correct any errors in legal proceedings that occurred in lower
courts.

High Courts play a crucial role in the administration of criminal justice, ensuring that
individuals have the opportunity to challenge decisions made in lower courts and that legal
processes are properly followed.

Sessions Courts

Sessions Courts are the next level in the criminal court hierarchy, situated below the High
Courts. They handle serious criminal cases and are empowered to try offenses that carry
severe penalties, including the death penalty, life imprisonment, or imprisonment for more
than seven years.

 Appellate Powers: Sessions Courts also have appellate jurisdiction to hear appeals
from decisions made by Magistrate Courts. They serve as the intermediate appellate
court before cases potentially reach the High Court.
 Trial of Serious Offenses: Sessions Courts are responsible for trying the most serious
criminal offenses, such as murder, rape, and major financial crimes. They have the
authority to impose severe punishments, including capital punishment.

Magistrate Courts

Magistrate Courts are the courts of first instance for most criminal cases, especially those
involving less severe offenses. The BNSS maintains the distinction between Chief Judicial
Magistrates, Metropolitan Magistrates, and Judicial Magistrates (First and Second Class),
each with distinct levels of authority.

 Chief Judicial Magistrate and Metropolitan Magistrate: These magistrates handle

cases that are cognizable (serious enough for police to make an arrest without a
warrant) and non-cognizable (less serious offenses that require a court order for an
arrest). They also oversee the work of lower magistrates.
 Judicial Magistrates (First and Second Class): These magistrates deal with less severe
offenses, such as petty theft, public disturbances, and minor assaults. They can impose
fines and sentences up to a limited period, depending on their rank.

Executive Magistrates

Executive Magistrates are administrative officers who have some judicial powers,
particularly regarding preventive measures to maintain public order. They are not responsible
for trying criminal offenses but play a key role in enforcing preventive measures, such as
issuing orders under Section 144 (which prohibits unlawful assembly) or binding individuals
to maintain good behavior.

 Powers of Preventive Detention: Executive Magistrates can order preventive

detention to maintain peace and security in society, especially in cases of impending
public disorder or potential violence.

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Powers of Criminal Courts under Bhartiya Nagrik Suraksha Sanhita (BNSS),
2023

The Bhartiya Nagrik Suraksha Sanhita (BNSS), 2023, which seeks to modernize and replace
the Code of Criminal Procedure (CrPC), 1973, vests different powers in criminal courts
depending on their rank, nature of the case, and severity of the offense. These powers allow
courts to try cases, grant bail, sentence convicts, maintain law and order, and exercise
appellate jurisdiction. The BNSS retains many of the procedural elements of the CrPC while
making reforms to streamline and improve the criminal justice process.

Below is a detailed elaboration on the powers of criminal courts as outlined under the BNSS:

1. Power to Try Offenses

The power to try offenses is one of the fundamental responsibilities of criminal courts. The
jurisdiction and authority to try cases depend on the nature and gravity of the offense. Under
the BNSS, the structure of the courts remains hierarchical, with each level of the court system
dealing with specific categories of offenses.

Sessions Court

 Serious Offenses: Sessions Courts are vested with the power to try serious criminal
offenses that are punishable by death, imprisonment for life, or imprisonment
exceeding seven years. Examples include offenses like murder, rape, armed robbery,
terrorism, and trafficking.
 Exclusive Jurisdiction: Certain cases are exclusively triable by a Sessions Court,
especially when the law prescribes stringent punishments.
 Appellate Role: Sessions Courts also have an appellate role, where they hear appeals
against the judgments of Magistrates Courts in serious criminal cases.

Judicial Magistrates

 Lesser Offenses: Judicial Magistrates (First and Second Class) handle lesser offenses.
These are typically crimes that are punishable with imprisonment of up to seven
years, fines, or both. Examples of such offenses include theft, public disturbances,
simple assault, and minor fraud.
 First Class Magistrates: A Judicial Magistrate of First Class can try cases where the
maximum punishment does not exceed three years of imprisonment or a fine not
exceeding a certain amount, as specified under the BNSS.
 Second Class Magistrates: A Judicial Magistrate of Second Class can try cases
involving petty crimes where the sentence can go up to a maximum of one year of
imprisonment or a lower fine.

2. Bail and Remand Powers

One of the most critical functions of the court system is the authority to grant bail or remand
an accused to custody during the trial process. Bail is the release of the accused from custody,
often on a bond, until their case is resolved.

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Bail Powers

 Granting Bail: Depending on the nature of the offense (whether it is bailable or non-
bailable), different courts can grant or deny bail. For bailable offenses, the accused
has a right to bail. For non-bailable offenses, the court exercises its discretion.
 Sessions Court: Sessions Courts deal with serious offenses where bail is generally
difficult to obtain, especially for crimes punishable by life imprisonment or death. The
court considers factors like the seriousness of the offense, the possibility of the
accused fleeing, or tampering with evidence before granting bail.
 Magistrate Courts: For lesser offenses, Magistrate Courts have broader powers to
grant bail. In most bailable cases, bail is granted unless there are compelling reasons
to deny it.

Remand Powers

 Courts have the authority to remand an accused to custody during the pendency of the
investigation or trial. This may include judicial custody (sending the accused to jail)
or police custody (where the police retain custody of the accused for investigative
purposes).
 Magistrates generally decide on the initial remand periods during the investigation. If
the investigation is not completed within the legally stipulated time (usually 90 days
for serious offenses or 60 days for lesser offenses), the accused can apply for statutory
bail.

3. Plea Bargaining

The concept of plea bargaining was introduced in Indian criminal law to reduce the burden on
courts by encouraging negotiated settlements in certain types of cases. The BNSS continues
with provisions for plea bargaining, allowing an accused to plead guilty to a lesser offense in
exchange for a reduced sentence.

 Eligibility: Not all cases are eligible for plea bargaining. Generally, it applies to
offenses where the punishment is less than seven years and does not involve serious
crimes like those against women or children, offenses affecting the societal moral
fabric, or terrorism.
 Court’s Role: The court ensures that the plea bargain is voluntarily entered into by
the accused and that the accused understands the consequences of pleading guilty.
Once the plea is accepted, the court may impose a reduced sentence, fine, or other
forms of punishment as per the agreement.
 Efficiency: Plea bargaining speeds up the resolution of cases, helps reduce the
backlog of cases, and offers a chance for rehabilitation without prolonged trials.

4. Prevention and Maintenance of Law and Order

Under the BNSS, Executive Magistrates play a critical role in maintaining law and order
through preventive measures. This is a power that is inherited from the CrPC, where
Executive Magistrates are granted administrative authority over certain preventive actions.

Section 144 (CrPC Equivalent)

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  Preventive Actions: One of the most well-known powers of an Executive Magistrate
is the ability to issue orders under Section 144 (as retained in BNSS), which prohibits
unlawful assembly and prevents potential threats to public safety or law and order.
 Maintaining Peace: Executive Magistrates can issue prohibitory orders for a
specified duration (typically up to two months but extendable), preventing gatherings,
carrying of arms, or any other activities that may pose a risk to peace and security.
 Preventive Detention: In certain circumstances, Executive Magistrates may authorize
preventive detention under special laws to ensure that potential threats to public order
are neutralized.

5. Sentencing Powers

The power to impose a sentence upon conviction is an essential function of criminal courts.
The BNSS continues to vest different courts with sentencing powers depending on their level
and the severity of the offense.

Sessions Courts

 Severe Penalties: Sessions Courts have the authority to impose severe punishments,
including death sentences, life imprisonment, or sentences exceeding seven years.
Capital punishment and other stringent sentences are typically reserved for offenses
like murder, terrorism, or rape.
 Discretionary Powers: Sessions Courts exercise discretion when determining the
severity of the sentence within the bounds of statutory provisions.

Magistrates

 First Class Magistrates: These magistrates can impose sentences up to three years of
imprisonment, fines, or both, depending on the nature of the crime.
 Second Class Magistrates: These courts handle less serious offenses, where the
maximum punishment that can be imposed is one year of imprisonment or a small
fine.

The courts also have the power to consider mitigating factors such as the age of the accused,
intent, previous criminal history, and other considerations when imposing sentences.

6. Transfer of Cases

The BNSS provides mechanisms for the transfer of cases from one court or jurisdiction to
another. This can happen when a higher court deems that transferring a case will better serve
justice or avoid bias.

High Courts and Supreme Court

 High Courts and the Supreme Court have the power to transfer cases between courts
within the same state or across states. This power is exercised when there is concern
over the fairness of the trial, impartiality, or other compelling reasons.
 Interstate Transfer: The Supreme Court is authorized to transfer cases between states,
especially in high-profile or politically sensitive cases where local influence might
obstruct the fair administration of justice.

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7. Revision and Appeals

The power of revision and appeals is crucial for ensuring the correctness of judicial decisions
and offering a mechanism for correcting legal errors.

Sessions Courts

 Sessions Courts act as appellate authorities for cases tried by Magistrates Courts. If a
person is convicted in a Magistrate Court, they have the right to appeal to a Sessions
Court.

High Courts

 High Courts have appellate jurisdiction over decisions made by Sessions Courts. They
can confirm, reverse, or modify the sentence or acquittal passed by the lower court.
 High Courts also have revisionary powers to review the proceedings of lower courts
and ensure that proper legal procedures have been followed.

Supreme Court

 The Supreme Court is the highest appellate authority in the country. It can hear
appeals in cases involving significant legal questions or constitutional issues and in
cases where the death penalty is imposed. Its decision is final and binding.

In summary, the BNSS, like the CrPC, vests criminal courts with a range of powers that are
crucial for ensuring justice, maintaining law and order, and resolving disputes fairly. The
different powers reflect the hierarchical nature of the court system, where each court plays a
specific role depending on the gravity of the offense and the legal questions involved. These
powers, exercised judiciously, contribute to the smooth functioning of India's criminal justice
system.

Special Courts and Tribunals under the Bhartiya Nagrik Suraksha Sanhita
(BNSS), 2023

The Bhartiya Nagrik Suraksha Sanhita (BNSS), 2023, is poised to reform and streamline
criminal procedures in India. Like its predecessor, the Code of Criminal Procedure (CrPC),
1973, the BNSS is expected to maintain provisions for the establishment and functioning of
special courts and tribunals. These courts are designed to handle specific types of cases that
require expedited trials, specialized knowledge, or distinct legal provisions.

Special courts have been instrumental in addressing complex criminal cases more efficiently
by reducing the burden on regular courts, minimizing delays, and ensuring specialized
attention for sensitive matters. These courts play a critical role in the justice system by
dealing with offenses that are either grave, involve sensitive matters like child protection, or
require technical expertise due to their complexity.

What Are Special Courts and Tribunals?

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Special courts are courts created to handle specific types of criminal cases or offenses. Their
jurisdiction is often defined by specific laws, such as those dealing with narcotics, child
sexual abuse, economic offenses, or terrorism. The goal of special courts is to ensure that
these cases, which might otherwise clog regular court dockets or demand specialized
adjudication, are heard and resolved quickly and effectively.

Tribunals, on the other hand, are quasi-judicial bodies that address specific disputes, often
involving regulatory or administrative matters. Although they are more commonly associated
with civil or administrative law, some tribunals handle criminal matters, especially in cases
related to finance, trade, and intellectual property violations.

Types of Special Courts in India

Over the years, various special courts have been established under different legislations to
handle a wide range of criminal offenses. The BNSS, like the CrPC, would likely continue
these provisions, ensuring the swift and expert handling of specific cases.

Here are some of the key types of special courts that exist or are expected to continue under
the BNSS framework:

1. NDPS (Narcotic Drugs and Psychotropic Substances) Courts

Special NDPS courts were established under the Narcotic Drugs and Psychotropic Substances
Act, 1985 to exclusively deal with offenses related to the illicit trafficking of drugs, narcotics,
and psychotropic substances. Drug-related offenses are considered a serious threat to national
and social security, and hence they are given special focus.

 Expedited Trials: The NDPS Act mandates that cases involving drug-related crimes
be tried and disposed of in a time-bound manner, often within a year from the date of
filing the charge sheet.
 Special Expertise: Judges appointed to NDPS courts often have specialized
knowledge of narcotics laws, making them better equipped to handle the complexities
of such cases.
 Strict Sentencing Provisions: These courts are empowered to impose severe
sentences, including long-term imprisonment and hefty fines, given the gravity of the
offenses.

2. POCSO (Protection of Children from Sexual Offenses) Courts

Special POCSO Courts were created under the Protection of Children from Sexual Offenses
Act, 2012 to handle cases involving sexual crimes against children. These courts are essential
for ensuring that cases involving vulnerable minors are handled sensitively and resolved
expeditiously.

 Child-Friendly Procedures: POCSO courts adopt child-sensitive procedures to

minimize trauma to the victims during the trial process. This includes recording
testimony in a safe environment, avoiding direct confrontation between the victim and
the accused, and appointing child psychologists or welfare officers to assist during the
trial.

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  Faster Trials: The POCSO Act mandates that trials be completed within a year from
the date the offense is reported. Special courts help meet this deadline by prioritizing
these cases.
 Special Protection for Victims: Victim support services, including counseling and
rehabilitation, are often integrated into the functioning of these courts, providing
holistic support to child victims.

3. Anti-Terrorism Courts

Special courts dealing with cases under anti-terrorism laws such as the Unlawful Activities
(Prevention) Act, 1967 (UAPA) and the National Investigation Agency (NIA) Act, 2008 are
crucial for addressing terrorism-related offenses, which require fast and secure adjudication
due to their national security implications.

 Jurisdiction: These courts have jurisdiction over terrorism-related offenses, including

financing of terrorism, organizing terrorist acts, and planning large-scale attacks.
 Secure Proceedings: Given the sensitive nature of these cases, anti-terrorism courts
are often provided with high-security measures. They handle cases involving serious
threats to national security, and both judges and witnesses are given special
protection.
 Time-Bound Trials: Expedited trials are essential in terrorism cases to prevent undue
delay, which can pose risks to national security and allow for better law enforcement
coordination.

4. CBI (Central Bureau of Investigation) Courts

The CBI is India’s premier investigative agency, handling high-profile cases that involve
complex crimes such as corruption, financial fraud, white-collar crimes, and major criminal
conspiracies. Special CBI courts are established to try cases investigated by the CBI.

 High-Profile and Complex Cases: CBI courts often deal with corruption scandals,
political cases, and significant financial irregularities, which are typically beyond the
scope of regular criminal courts.
 Expedited Adjudication: Given the national importance of cases involving
corruption and public sector scandals, CBI courts are empowered to fast-track such
cases.
 Special Prosecution: CBI courts rely on specialized prosecution teams and forensic
expertise, ensuring that evidence is handled in a detailed and professional manner.

5. Fast-Track Courts

Fast-Track Courts are established to expedite the resolution of cases that are languishing in
the system, particularly those that have been pending for many years. These courts are often
set up on an ad hoc basis and are usually designed to deal with specific types of cases.

 Objective: The primary goal of fast-track courts is to reduce the backlog of cases and
provide justice to litigants who have been awaiting trial for extended periods.
 Scope: While fast-track courts were initially set up to handle rape and sexual assault
cases, their scope has broadened over the years to include a variety of criminal
matters, such as violent crimes, property disputes, and financial crimes.

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  Streamlined Process: These courts follow streamlined procedures with fewer
adjournments and prioritize early resolution, which helps clear backlogs in the regular
court system.

6. Economic Offenses Courts

In recent years, India has seen the rise of special courts dealing with economic offenses,
particularly in light of growing concerns about financial crimes such as money laundering,
bank fraud, and corporate corruption. These courts are often established under specific
statutes like the Prevention of Money Laundering Act (PMLA), 2002 or the Companies Act,
2013.

 Specialized Jurisdiction: Economic offenses courts focus on crimes that involve

fraud, money laundering, embezzlement, and illegal financial transactions. These
courts often work closely with regulatory bodies such as the Enforcement Directorate
(ED) and the Securities and Exchange Board of India (SEBI).
 Complex Litigation: Economic offenses often involve large sums of money and
cross-border financial networks. These courts are staffed with judges who have
expertise in financial law, making them better equipped to handle intricate cases
involving forensic accounting and international finance.

7. Family Courts

Although family courts deal primarily with civil matters, certain criminal offenses such as
domestic violence or violations of maintenance orders fall within their purview. Established
under the Family Courts Act, 1984, these courts focus on resolving disputes related to family
matters but also play a role in criminal aspects of domestic law.

 Specialized Proceedings: Family courts often employ conciliatory methods, focusing

on reconciliation between parties. However, in criminal matters such as domestic
violence, they have the power to issue protective orders, grant bail, and enforce
penalties under relevant laws.
 Focus on Welfare: The welfare of children and victims, particularly in domestic
abuse cases, is prioritized in family courts. The courts take a rehabilitative approach
rather than a punitive one in many cases.

8. Special Courts under SC/ST (Prevention of Atrocities) Act

To address crimes against Scheduled Castes and Scheduled Tribes, special courts are
established under the SC/ST (Prevention of Atrocities) Act, 1989. These courts ensure the
speedy and sensitive handling of cases involving atrocities against marginalized
communities.

 Stringent Penalties: The law prescribes harsh penalties for offenses like caste-based
violence, discrimination, and atrocities, and the courts ensure swift justice to protect
vulnerable communities.
 Fast-Track Procedures: These courts are mandated to complete trials within a
specific timeframe, ensuring that justice is not delayed for the victims of caste-based
crimes.

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Importance of Special Courts and Tribunals

The establishment of special courts under the BNSS serves several important purposes:

 Expedited Justice: Special courts are critical for ensuring that cases of national
importance or those involving sensitive social issues are dealt with swiftly. Delays in
criminal justice can lead to erosion of public trust, especially in cases involving
violence, corruption, or terrorism.
 Expertise: By focusing on specific types of crimes, these courts develop specialized
knowledge that allows them to handle complex legal issues more effectively than
regular courts.
 Victim-Centric Approach: Courts dealing with issues like child protection, crimes
against women, or marginalized

Preventive Powers of Courts under the Bhartiya Nagrik Suraksha Sanhita

(BNSS), 2023

The Bhartiya Nagrik Suraksha Sanhita (BNSS), 2023, aims to modernize India’s criminal
justice system and replace the Code of Criminal Procedure (CrPC), 1973. One of the most
significant aspects of the BNSS, inherited from its predecessor, is the focus on preventive
powers of courts, which allow the judiciary to take steps to prevent the commission of
offenses, maintain public safety, and ensure law and order. The preventive measures include
mechanisms such as preventive detention and the imposition of bonds for good behavior.

These preventive powers enable courts and magistrates to act proactively in certain situations,
often without waiting for a crime to be committed, thereby preventing harm to individuals or
society. Such provisions are crucial in maintaining public peace and order in a large, diverse,
and populous country like India.

1. Preventive Detention

Preventive detention refers to the practice of detaining individuals without a trial or formal
charges for a certain period, based on the belief that they pose a threat to public order or
national security. Under preventive detention laws, courts or executive authorities can
authorize the detention of individuals if there is a reasonable belief that the person may
commit an offense in the future. This differs from punitive detention, where individuals are
detained after being convicted of a crime.

The practice of preventive detention is considered a sensitive issue because it curtails

personal liberty, which is a fundamental right under Article 21 of the Indian Constitution.
However, preventive detention is also seen as necessary in cases where national security,
public order, or law enforcement is at risk. The BNSS would likely retain the framework for
preventive detention as outlined under the CrPC and relevant preventive detention laws,
providing courts with the authority to authorize such detention when justified.

Legal Framework for Preventive Detention

Preventive detention in India is governed by various laws, each aimed at addressing specific
threats. Some of the most prominent preventive detention laws include:

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  The National Security Act (NSA), 1980: This act allows for preventive detention to
safeguard national security and public order. Individuals can be detained for up to 12
months without trial under the NSA, with periodic reviews by advisory boards.
 The Prevention of Black Marketing and Maintenance of Supplies of Essential
Commodities Act, 1980: This law allows preventive detention to curb black
marketing and hoarding of essential goods.
 The Conservation of Foreign Exchange and Prevention of Smuggling Activities
Act (COFEPOSA), 1974: COFEPOSA allows for preventive detention in cases
involving smuggling, foreign exchange violations, and economic offenses.
 The Unlawful Activities (Prevention) Act (UAPA), 1967: While primarily an anti-
terrorism law, UAPA allows preventive detention for individuals involved in terrorist
activities.

Role of Courts in Preventive Detention

While preventive detention is generally an executive function, the courts play a crucial role in
reviewing and authorizing such detentions to ensure they comply with constitutional
safeguards. The Supreme Court and High Courts have consistently held that preventive
detention should be used sparingly and only in cases where there is a clear and imminent
threat to public safety.

1. Judicial Review: Courts are empowered to review the legality of preventive detention
orders. An individual detained under preventive detention laws has the right to
challenge the detention in court through a writ of habeas corpus. The court examines
whether the detention complies with the law and whether the procedural safeguards,
such as providing the detainee with reasons for detention, have been followed.
2. Constitutional Safeguards: Article 22 of the Indian Constitution provides certain
safeguards against preventive detention. These include:
o The right of the detained person to be informed of the grounds for detention.
o The right to legal representation.
o The detention must be reviewed by an advisory board consisting of legal
experts within a certain time frame (usually three months).
3. Time-Limited Detention: Preventive detention is subject to limits on the duration of
detention. Detention can last for an initial period (often three months) but may be
extended based on periodic reviews by advisory boards.

Purpose and Criticism

The purpose of preventive detention is to prevent offenses before they occur, especially in
cases where public safety, security, and national interest are at risk. It has been applied in
situations where there are concerns about terrorism, large-scale civil unrest, organized crime,
or black-market activities.

However, preventive detention is often criticized for violating personal liberties and
fundamental rights, particularly the right to a fair trial. Critics argue that it gives the state
excessive powers to detain individuals without sufficient oversight, leading to potential
misuse, especially in politically sensitive cases.

2. Bond for Good Behavior

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Another significant preventive measure that courts can impose is the requirement for
individuals to execute bonds for good behavior. This mechanism allows courts to demand
that individuals provide a financial guarantee that they will not engage in criminal activity or
disruptive behavior. The power to impose such bonds is an important preventive tool for
maintaining peace and order, especially in cases involving habitual offenders or individuals
posing a threat to public tranquility.

Legal Basis for Bonds

Under both the CrPC and the expected provisions of the BNSS, the execution of bonds for
good behavior is governed by specific sections of the law that outline when and how
courts or magistrates can demand such bonds:

1. Section 107 (CrPC): This provision allows an Executive Magistrate to require any
person likely to commit a breach of peace or disturb public tranquility to execute a
bond, with or without sureties, for maintaining good behavior for a specified period.
This is preventive in nature and aims to dissuade individuals from engaging in actions
that could cause harm to the public or result in violence.
2. Section 110 (CrPC): This section deals with habitual offenders. If a person is found
to be a habitual offender who frequently commits crimes such as theft, extortion,
cheating, or assault, the court can require the offender to execute a bond for good
behavior. This bond acts as a deterrent and a guarantee that the person will refrain
from committing further offenses.
3. Section 108 (CrPC): This section allows magistrates to demand bonds from
individuals who are likely to commit offenses related to defamatory or seditious
behavior. It particularly applies to individuals who publish materials that could incite
violence or hatred against the state.

Purpose and Function of Bonds

The primary objective of a bond for good behavior is preventive—it seeks to deter
individuals from committing offenses by requiring them to furnish a financial guarantee.
If the individual violates the bond, they may forfeit the amount and face legal consequences,
including arrest or imprisonment.

 Habitual Offenders: Courts often use this mechanism against habitual offenders or
those who have shown a tendency to repeatedly violate the law. By requiring such
individuals to execute bonds, the court ensures they have a financial stake in
maintaining lawful behavior.
 Public Peace and Tranquility: Bonds are frequently used in situations where there is
a threat to public peace or potential for communal violence. For example, in cases of
sectarian tensions or political unrest, magistrates may require individuals, particularly
those prone to inciting violence or unrest, to execute bonds to prevent further
disruption.
 Preventive Action for Public Safety: In many cases, the execution of bonds for good
behavior is used as a proactive measure in volatile or sensitive situations. For
instance, during times of election campaigns or large public gatherings, the courts
may impose bonds on individuals known for causing disturbances, thereby averting
potential law-and-order issues.

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Duration and Enforcement of Bonds

Bonds for good behavior are usually imposed for a specific period, typically ranging from six
months to three years, depending on the nature of the threat posed by the individual. Courts
can extend the duration if necessary, and failure to comply with the terms of the bond can
result in immediate legal consequences, such as arrest, forfeiture of the bond amount, and
further detention.

Criticism and Safeguards

While bonds for good behavior are considered an important preventive measure, they are not
without criticism. Critics argue that they can be used arbitrarily, particularly against
vulnerable groups or marginalized individuals who may not have the financial means to
execute such bonds. There are also concerns about the potential misuse of this power in
politically charged environments, where individuals might be targeted for preventive actions
without sufficient cause.

To mitigate these concerns, the courts ensure that due process is followed when imposing
bonds. Individuals have the right to challenge the imposition of a bond in higher courts, and
magistrates are required to provide clear reasons and justifications for demanding a bond.

Conclusion

The preventive powers of courts, as outlined in the BNSS, 2023, play a critical role in
maintaining public order and preventing crimes before they occur. Through mechanisms like
preventive detention and the requirement to execute bonds for good behavior, the legal
system empowers courts and magistrates to act preemptively in the interest of public safety.
While these powers are essential for managing law and order in a large and complex society,
they also require careful oversight to ensure that they are not misused and that the
fundamental rights of individuals are protected.

Courts play a balancing role in the exercise of preventive powers, ensuring that personal
liberty is not unduly sacrificed in the name of public safety. The framework established under
the BNSS would continue to evolve these preventive measures, ensuring that they remain an
essential tool for law enforcement while safeguarding constitutional rights.

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