Which Court May Try What, and What It May Impose

For an offence under any other law, clause (b). If that law names a court, that court tries it. If it names none, the offence may be tried by the High Court or by the court shown in the First Schedule as competent.

That second limb explains something a student meets constantly. The POCSO Act names a Special Court, so a POCSO offence goes there. The Juvenile Justice Act names the Board and the Children's Court. Section 21(b) is the rule that gives way to them.

Section 22: the higher courts

A High Court may pass any sentence authorised by law. There is no ceiling.

A Sessions Judge or Additional Sessions Judge may pass any sentence authorised by law, with one condition: a sentence of death passed by such a Judge is subject to confirmation by the High Court. That confirmation is not an appeal and does not depend on anybody appealing. It is a separate proceeding, worked out in Chapter XXX of the Sanhita, sections 407 to 412, which belongs to Module III.

Note what is not in section 22 any more. The old Code's section 28(3) gave an Assistant Sessions Judge a ceiling of ten years. There are no Assistant Sessions Judges under the Sanhita, so there is no such sub-section.

Section 23: the Magistrates

Three things about this table deserve attention.

The fine ceilings went up. The old section 29 allowed a first class Magistrate a fine up to ten thousand rupees and a second class Magistrate up to five thousand. The Sanhita makes them fifty thousand and ten thousand. And the old figure of ten thousand was itself substituted in 2006 for five thousand, so a book printed before then carries a figure two revisions out of date.

Community service is new. It is now a punishment a Magistrate of either class may award, and the Explanation defines it: work 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. The last words matter, because they distinguish it from employment.

The Chief Judicial Magistrate's ceiling is stated negatively. He may pass any sentence except three: death, life, and more than seven years. So there is no fine ceiling on him at all.

Section 24: imprisonment in default of a fine

A Magistrate may award imprisonment in default of payment of a fine, as authorised by law, subject to two limits in the proviso.

(a) The term must not exceed the Magistrate's own powers under section 23.

(b) Where imprisonment has been awarded as part of the substantive sentence, the default term must not exceed one fourth of the term of imprisonment the Magistrate is competent to inflict for the offence otherwise than in default.

Sub-section (2) then makes clear that the default imprisonment may be in addition to a substantive sentence of imprisonment for the maximum term the Magistrate could award under section 23. So default imprisonment is not counted within the ceiling; it sits on top of it.

That combination catches students out, so take it slowly. A first class Magistrate can give three years' imprisonment, which is his maximum. He can also fine, and he can add imprisonment in default of the fine. That default term is capped at one fourth of what he could have given as a substantive term, which is one fourth of three years, so nine months. Total exposure: three years and nine months.

Section 25: several offences at one trial

Sub-section (1). Where a person is convicted at one trial of two or more offences, the Court may, subject to section 9 of the Bharatiya Nyaya Sanhita, sentence him for those offences to the several punishments prescribed which the Court is competent to inflict; and the Court shall, considering the gravity of the offences, order such punishments to run concurrently or consecutively.

This is a real change of drafting and it is worth a line in an answer. The old section 31(1) said the sentences ran one after the other unless the Court directed otherwise, so consecutive was the default and concurrent needed an order. The Sanhita makes the Court decide, expressly and by reference to the gravity of the offences, which way they run. Silence is no longer an option.

Sub-section (2). In the case of consecutive sentences, the Court need not send the offender to a higher court merely because the aggregate exceeds what it could inflict for a single offence. But the proviso caps it twice over:

(a) In no case may the person be sentenced to imprisonment for a longer period than twenty years. The old Code said fourteen.

(b) The aggregate must not exceed twice the punishment the Court is competent to inflict for a single offence.

Sub-section (3). For the purpose of an appeal by the convicted person, the aggregate of consecutive sentences is deemed to be a single sentence. That matters because the right of appeal often depends on the length of the sentence, and this stops a long total being broken into short unappealable pieces.

A worked example

Farid is convicted by a Judicial Magistrate of the first class at Bandra of three offences at one trial. For each, the maximum the Magistrate could award is three years.

What is the most he can get? Three years for each offence is within the Magistrate's competence. If the sentences are ordered to run consecutively the aggregate would be nine years, but the proviso to section 25(2)(b) caps the aggregate at twice what the Magistrate could inflict for a single offence, that is six years. The twenty year cap in clause (a) does not bite here because six is well under it.

Must the Magistrate say which way they run? Yes. Section 25(1) requires him to order them to run concurrently or consecutively, considering the gravity of the offences. Under the old Code, saying nothing would have made them consecutive.

He also fines Farid ten thousand rupees on one count. That is within the fifty thousand ceiling in section 23(2). He adds imprisonment in default. The default term cannot exceed one fourth of three years, so nine months, under the proviso to section 24(1)(b), and it can be added on top of the substantive sentences under section 24(2).

Farid appeals. For the purpose of his appeal the six years is treated as a single sentence, under section 25(3), and not as three separate two year sentences.

Now change the facts. The offences were under sections 64 to 71 of the Bharatiya Nyaya Sanhita. Then the proviso to section 21(a) applies, and the trial should as far as practicable have been before a court presided over by a woman.

Distinctions

What this does NOT mean

Section 23 does not say which offences a Magistrate may try. It says how heavily he may sentence. Triability is section 21 with the First Schedule, and the two are different questions. A Magistrate can be competent to try an offence and yet find, after conviction, that the sentence the case deserves is beyond his powers; the Sanhita has a route for that in Chapter XXVI.

"As far as practicable by a Court presided over by a woman" is not a jurisdictional condition. It is a direction in the proviso to section 21(a). A trial otherwise conducted is not without jurisdiction.

Imprisonment in default is not part of the sentence ceiling. Section 24(2) allows it in addition to the maximum substantive term.

And the twenty year cap in section 25 is not a cap on sentencing generally. It applies to the aggregate of consecutive sentences passed at one trial by a court whose single offence power is smaller. A Sessions Judge sentencing for one offence is governed by section 22, not by this cap.

Quick revision

• Section 21(a): High Court, Court of Session, or the court shown in the First Schedule. Proviso: sexual offences under BNS sections 64 to 71 to be tried as far as practicable by a Court presided over by a woman.
• Section 21(b): for an offence under another law, the court that law names; failing that, the High Court or the court shown in the First Schedule.
• Section 22: High Court, any sentence. Sessions Judge and Additional Sessions Judge, any sentence, but death needs High Court confirmation.
• Section 23: Chief Judicial Magistrate, up to seven years, no death or life. First class, three years or fifty thousand rupees or both or community service. Second class, one year or ten thousand rupees or both or community service.
• Section 24: default imprisonment within the Magistrate's own powers, and not more than one fourth of the substantive term he could award; it may be in addition to the maximum.
• Section 25: the Court shall order concurrent or consecutive, considering gravity. Aggregate capped at twenty years and at twice the single offence power. For appeal, the aggregate is a single sentence.

Test yourself

1. What is the maximum fine a Judicial Magistrate of the second class may impose? Ten thousand rupees, under section 23(3). The old Code allowed five thousand.

2. A Sessions Judge passes a sentence of death. Is it executable at once? No. Section 22(2) makes it subject to confirmation by the High Court, and that is so whether or not anybody appeals.

3. A first class Magistrate convicts of four offences at one trial and orders the sentences to run consecutively. What is the longest aggregate he can impose? Six years. The proviso to section 25(2)(b) caps the aggregate at twice the punishment he is competent to inflict for a single offence, and that is twice three years.

4. Define community service under the Sanhita. The Explanation to section 23: work the Court may order a convict to perform as a form of punishment that benefits the community, for which he is not entitled to any remuneration.

5. May imprisonment in default of a fine take the total beyond a Magistrate's sentencing ceiling? Yes. Section 24(2) allows it in addition to a substantive sentence for the maximum term, subject to the one fourth limit in the proviso to section 24(1)(b).

6. An offence is created by a special Act which does not say which court is to try it. Which court tries it? The High Court, or the court shown in the First Schedule as competent to try it, under section 21(b).

7. Which change did section 25 make to the way multiple sentences run? The old section 31 made them consecutive unless the Court directed otherwise. Section 25(1) requires the Court itself to order, considering the gravity of the offences, whether they run concurrently or consecutively.