Sections 20–23 CrPC vs Sections 14–17 BNSS — Executive Magistrates

In India, Sections 14 to 17 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) replaced Sections 20 to 23 of the Code of Criminal Procedure, 1973 (CrPC) from 1 July 2024. Police officers of Superintendent rank can now be Special Executive Magistrates, and the Additional District Magistrate is no longer outside the District Magistrate's control.

At a glance

Executive Magistrates remain one of the four classes of Criminal Courts under Section 6(iv) BNSS, as under Section 6(iv) CrPC. The courts side of Chapter II is covered in Sections 3–11 CrPC vs Sections 3–9 BNSS — Criminal Courts.

What changed

Substantive changes

• Expanded — Section 15 (CrPC 21), Special Executive Magistrates: "The State Government may appoint, for such term as it may think fit, Executive Magistrates" becomes "... Executive Magistrates or any police officer not below the rank of Superintendent of Police or equivalent, to be known as Special Executive Magistrates". The rest — "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" — repeats Section 21 with "Code" → "Sanhita".
• Modified — Section 17(1) (CrPC 23(1)), subordination: "All Executive Magistrates, other than the Additional District Magistrate, shall be subordinate to the District Magistrate" becomes "All Executive Magistrates shall be subordinate to the District Magistrate". "subject, however, to the general control" becomes "subject, to the general control".
• Modified — Section 17(2) (CrPC 23(2)), business: "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" becomes "as to the distribution or allocation of business among the Executive Magistrates subordinate to him". On a reading of the two sub-sections together, the Additional District Magistrate is now one of the "Executive Magistrates subordinate to him", so allocation of business to that officer falls within the general words.
• Expanded — Section 14(6) (CrPC 20(5)), Commissioner of Police: "on a Commissioner of Police, all or any of the powers of an Executive Magistrate in relation to a metropolitan area" becomes "on a Commissioner of Police all or any of the powers of an Executive Magistrate". The saving is no longer tied to a metropolitan area.

Drafting changes

• Modified — Section 14(1) (CrPC 20(1)): "In every district and in every metropolitan area, the State Government may appoint" becomes "In every district, the State Government may appoint". On a reading of the text, this goes with the removal of metropolitan areas from the Sanhita (see the criminal courts page).
• Minor edit — Section 14(2) (CrPC 20(2)): the words "such" and "as may be directed by the State Government", which Act 45 of 1978 inserted with effect from 18 December 1978, are now part of the enacted text; "Code" → "Sanhita". The Additional District Magistrate still has "such of the powers of a District Magistrate ... as may be directed by the State Government".
• Minor edit — Section 14(3) and (4): the vacancy rule and the Sub-divisional Magistrate rule are word for word the same, apart from "Code" → "Sanhita" in (3).
• Identical text, renumbered — Section 14(5) (CrPC 20(4A)): the power to delegate sub-section (4) to the District Magistrate, inserted into the CrPC by Act 25 of 2005 with effect from 23 June 2006, is carried over word for word as sub-section (5).
• Minor edit — Section 16 (CrPC 22): word for word the same except "this Code" → "this Sanhita".

Statutory text (relevant extract)

Extract, Section 21 CrPC (repealed from 1 July 2024):

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 ...

Extract, Section 15 BNSS:

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.

Extract, Section 17(1) BNSS:

All Executive Magistrates 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, to the general control of the District Magistrate.

How it works — the executive magistracy

1. Appointment (Section 14(1)): in every district the State Government appoints "as many persons as it thinks fit to be Executive Magistrates" and must appoint one of them as the District Magistrate.
2. Additional District Magistrate (Section 14(2)): any Executive Magistrate may be appointed Additional District Magistrate, with such of the District Magistrate's powers — under the BNSS or any other law — as the State Government directs.
3. Vacancy (Section 14(3)): an officer who succeeds temporarily to the executive administration of the district exercises the District Magistrate's powers under the Sanhita, pending the State Government's orders.
4. Sub-divisions (Section 14(4)–(5)): an Executive Magistrate placed in charge of a sub-division is the Sub-divisional Magistrate; the State Government may delegate this power to the District Magistrate.
5. Special Executive Magistrates (Section 15): appointed for a term, for particular areas or functions, from among Executive Magistrates or police officers of at least Superintendent of Police rank "or equivalent"; the State Government confers on them such of the powers "conferrable" on Executive Magistrates as it thinks fit.
6. Territory (Section 16): the District Magistrate, subject to the State Government's control, may define local limits; absent a definition, each Executive Magistrate's jurisdiction runs throughout the district.
7. Hierarchy (Section 17): every Executive Magistrate is subordinate to the District Magistrate; those exercising powers in a sub-division (other than the Sub-divisional Magistrate) are also subordinate to the Sub-divisional Magistrate, under the District Magistrate's general control.
8. Functions under other laws (Section 3(2)(b)): a function under another law that is "administrative or executive in nature, such as, the granting of a licence, the suspension or cancellation of a licence, sanctioning a prosecution or withdrawing from a prosecution" is exercisable by an Executive Magistrate.

Where the powers are used: examples in the BNSS text include security for keeping the peace (Section 126(1): "When an Executive Magistrate receives information that any person is likely to commit a breach of the peace ..."), dispersal of assemblies (Section 148(1)) and urgent orders in cases of nuisance or apprehended danger by a District Magistrate, Sub-divisional Magistrate or specially empowered Executive Magistrate (Section 163(1)). Section 126(1) BNSS opens in the same words as Section 107(1) CrPC.

What this means in practice

For a person served with an Executive Magistrate's notice

• Check who issued it and under what appointment. An officer acting as a Special Executive Magistrate must hold an appointment under Section 15 for that area or function; a police officer is eligible only if "not below the rank of Superintendent of Police or equivalent". On a reading of the text, a police officer below that rank cannot be appointed a Special Executive Magistrate under Section 15.
• Check the territory: unless the District Magistrate has defined local limits under Section 16(1), the Executive Magistrate's jurisdiction extends throughout the district (Section 16(2)).
• Some powers are exercisable only by a named class. Section 163(1), for example, is exercisable by "a District Magistrate, a Sub-divisional Magistrate or any other Executive Magistrate specially empowered by the State Government in this behalf".

For district administration

• The Additional District Magistrate now sits inside the District Magistrate's hierarchy (Section 17(1)), and business can be distributed or allocated to that officer by the District Magistrate's rules or special orders (Section 17(2)).
• Conferring Executive Magistrate powers on a Commissioner of Police under another law (Section 14(6)) is no longer confined to a metropolitan area. A.N. Roy (below) shows that, under the CrPC, the Supreme Court read the Commissioner of Police saving together with the appointment provisions; whether a conferment is valid depends on the law under which it is made.

For advocates

• Salim Khan (below) held that a Special Executive Magistrate is an Executive Magistrate and may exercise the powers the Code itself confers on Executive Magistrates, reasoning that Special Executive Magistrates are "appointed as Executive Magistrates" (pp. 346–347). Section 15 BNSS repeats those words for Executive Magistrates, but a police officer appointed under the new limb is not appointed from among Executive Magistrates; whether that reasoning extends to such an officer is not answered by the text. No judgment on that limb was found.

Judgments that still matter

State of Maharashtra and Ors. v. Mohammed Salim Khan and Ors., [1990] Supp. 3 S.C.R. 340 (1990 INSC 365) — 22 November 1990. A Bench of K.N. Singh, K. Jagannatha Shetty and Kuldip Singh JJ. (judgment of the Court by Shetty J.) heard the State's appeal against a Bombay High Court judgment quashing proceedings under Section 107 CrPC before an Assistant Commissioner of Police appointed a Special Executive Magistrate. The High Court had held that a Special Executive Magistrate could exercise only "conferrable" powers, not the powers the Code confers on Executive Magistrates. The Supreme Court accepted that there is "a broad divide between the powers conferred and powers conferrable" (p. 345), but held that Special Executive Magistrates "are also Executive Magistrates" and "nevertheless they remain as Executive Magistrates", so they are entitled to exercise the powers conferred by the Code, and it was unnecessary to confer Section 107 powers on them separately (pp. 346–347). The appeal was allowed and the High Court's judgment set aside (p. 347). The report prints no paragraph numbers. Section 15 BNSS repeats the words the Court construed.

A.N. Roy, Commissioner of Police and Anr. v. Suresh Sham Singh, [2006] Supp. 3 S.C.R. 165 (2006 INSC 387) — 4 July 2006. H.K. Sema and A.K. Mathur JJ. (judgment by Sema J.) considered a Maharashtra notification under Section 20(5) read with Section 20(1) and (2) CrPC conferring on the Commissioner of Police, Brihan Mumbai the powers of the District Magistrate for Sections 18 and 20 of the Immoral Traffic (Prevention) Act, 1956. The Court agreed with the High Court "that unless a person is appointed as an Executive Magistrate he cannot be appointed as either an Additional District Magistrate or the District Magistrate", but held that the words "as many persons" in Section 20(1) are "adequately elastic to include the Commissioner of Police" (pp. 173–174). It directed the State to appoint the Commissioner of Police as an Executive Magistrate and then as an Additional District Magistrate with the District Magistrate's powers for those sections, and partly allowed the appeals (p. 175). Sections 14(1), (2) and (6) BNSS repeat the words construed, except that Sections 14(1) and 14(6) no longer refer to a metropolitan area.

Which law applies to your case

Under Section 531(2)(a) BNSS, any application, inquiry or investigation pending immediately before 1 July 2024 is continued under the CrPC "as if this Sanhita had not come into force". Section 531(2)(b) deems notifications, powers conferred, local jurisdictions defined and appointments made under the CrPC and in force at commencement — "not being appointments as Special Magistrates" — to have been made under the corresponding BNSS provisions. Whether that exclusion reaches Special Executive Magistrates appointed under Section 21 CrPC is not stated in the text; check the State's notifications. See which law applies to an offence before 1 July 2024.

Frequently asked questions

What is the BNSS equivalent of Sections 20 to 23 CrPC? Sections 14 to 17 of the Bharatiya Nagarik Suraksha Sanhita, 2023 replace Sections 20 to 23 CrPC from 1 July 2024. Section 14 covers Executive Magistrates, District and Additional District Magistrates and Sub-divisional Magistrates; Section 15 Special Executive Magistrates; Section 16 local jurisdiction; and Section 17 subordination.

Can a police officer be a Special Executive Magistrate under the BNSS? Yes. Section 15 BNSS lets the State Government appoint, for such term as it thinks fit, Executive Magistrates or any police officer not below the rank of Superintendent of Police or equivalent as Special Executive Magistrates, for particular areas or particular functions. Section 21 CrPC referred only to Executive Magistrates.

Is the Additional District Magistrate subordinate to the District Magistrate under the BNSS? Yes. Section 17(1) BNSS makes all Executive Magistrates subordinate to the District Magistrate. Section 23(1) CrPC excepted the Additional District Magistrate from that rule. Section 17(2) lets the District Magistrate make rules or give special orders on the distribution or allocation of business among the Executive Magistrates subordinate to him.

Can a Commissioner of Police exercise the powers of an Executive Magistrate? Section 14(6) BNSS says nothing in Section 14 precludes the State Government from conferring, under any law in force, on a Commissioner of Police all or any of the powers of an Executive Magistrate. Section 20(5) CrPC limited this to powers in relation to a metropolitan area; the BNSS drops that limit.

Who decides where an Executive Magistrate can act? Under Section 16(1) BNSS, the District Magistrate, subject to the control of the State Government, may define the local limits within which Executive Magistrates exercise their powers. Under Section 16(2), unless the definition provides otherwise, each Executive Magistrate's jurisdiction and powers extend throughout the district. Section 22 CrPC said the same.

Can a Special Executive Magistrate exercise the ordinary powers of an Executive Magistrate? In State of Maharashtra v. Mohammed Salim Khan ([1990] Supp. 3 S.C.R. 340), the Supreme Court held under Section 21 CrPC that Special Executive Magistrates are Executive Magistrates and may exercise the powers the Code confers on Executive Magistrates, such as under Section 107 CrPC. Section 15 BNSS repeats the operative words of Section 21, so on a reading of the text the reasoning remains relevant to Executive Magistrates appointed as Special Executive Magistrates; the text does not say whether it extends to police officers appointed under the new limb.

Do existing appointments of Executive Magistrates continue under the BNSS? Section 531(2)(b) BNSS deems notifications published, powers conferred, local jurisdictions defined and appointments made under the CrPC, and in force immediately before the BNSS commenced, to have been made under the corresponding BNSS provisions. Appointments as Special Magistrates are excluded from that saving, and the text does not say whether that exclusion covers Special Executive Magistrates.

Related

• Sections 3–11 CrPC vs Sections 3–9 BNSS — Criminal Courts
• Section 2 CrPC vs Section 2 BNSS — Definitions
• Section 144 CrPC vs Section 163 BNSS — Prohibitory Orders
• "Section 144" prohibitory orders under the new law — CrPC 144 vs BNSS 163
• Offence before 1 July 2024 — which law applies
• CrPC to BNSS master comparison table
• Sections 106–110 CrPC vs Sections 125–129 BNSS — Security for Keeping the Peace and for Good Behaviour

Sources

• Bharatiya Nagarik Suraksha Sanhita, 2023 (Gazette text): Sections 3(2), 6, 14 to 17, 126(1), 148(1), 163(1) and 531(2).
• Code of Criminal Procedure, 1973 (India Code text): Sections 3(4), 6, 20 to 23 with amendment footnotes, 107(1) and the heading of Section 144.
• Judgments read in full text: State of Maharashtra v. Mohammed Salim Khan (S_1990_3_340_347_EN.md); A.N. Roy, Commissioner of Police v. Suresh Sham Singh (S_2006_3_165_175_EN.md).

This page explains the statutory text and the judgments cited as they stand. It is not legal advice; for a specific case, consult an advocate.