Section 3 BNSS 2023: Construction of References
Section 3 of the Bharatiya Nagarik Suraksha Sanhita, 2023 explains how references to Magistrates in other laws are to be understood and how judicial and executive functions assigned to Magistrates are to be distributed between Judicial Magistrates and Executive Magistrates.
Text of Section 3 BNSS
3. Construction of references.
(1) Unless the context otherwise requires, any reference in any law, to a Magistrate without any qualifying words, Magistrate of the first class or a Magistrate of the second class shall, in relation to any area, be construed as a reference to a Judicial Magistrate of the first class or Judicial Magistrate of the second class, as the case may be, exercising jurisdiction in such area.
(2) Where, under any law, other than this Sanhita, the functions exercisable by a Magistrate relate to matters,-
(a) which involve the appreciation or shifting of evidence or the formulation of any decision which exposes any person to any punishment or penalty or detention in custody pending investigation, inquiry or trial or would have the effect of sending him for trial before any Court, they shall, subject to the provisions of this Sanhita, be exercisable by a Judicial Magistrate; or
(b) which are 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, they shall, subject to the provisions of clause (a) be exercisable by an Executive Magistrate.
Meaning of Section 3(1): References to Magistrates
Section 3(1) provides a rule of statutory construction. Unless the context requires a different meaning, a reference in another law simply to a "Magistrate", or to a Magistrate of the first or second class, is to be read as referring to the corresponding Judicial Magistrate who has jurisdiction over the relevant area.
The provision therefore helps other enactments continue to operate coherently where they use older or general expressions referring to Magistrates without separately identifying the judicial authority intended to exercise the function.
Meaning of Section 3(2): Judicial and Executive Functions
Section 3(2)(a): Functions of a Judicial Magistrate
A function is to be exercised by a Judicial Magistrate where it involves appreciation or shifting of evidence, or a decision that may expose a person to punishment, penalty, detention in custody during investigation, inquiry or trial, or the consequence of being sent for trial before a Court.
The focus of clause (a) is therefore on functions that directly affect adjudication, personal liberty, criminal responsibility or the judicial process.
Section 3(2)(b): Functions of an Executive Magistrate
Administrative or executive functions are ordinarily exercisable by an Executive Magistrate. Section 3 itself gives examples such as granting a licence, suspending or cancelling a licence, sanctioning a prosecution and withdrawing from a prosecution.
Clause (b) is expressly subject to clause (a). Accordingly, the true nature of the function remains important: if the function falls within the judicial characteristics described in clause (a), it is to be exercised by a Judicial Magistrate.
Judicial Magistrate vs Executive Magistrate under Section 3
| Nature of function | Who ordinarily exercises it |
|---|---|
| Appreciation or shifting of evidence | Judicial Magistrate |
| Decision exposing a person to punishment or penalty | Judicial Magistrate |
| Decision concerning detention in custody during investigation, inquiry or trial | Judicial Magistrate |
| Decision having the effect of sending a person for trial | Judicial Magistrate |
| Granting, suspending or cancelling a licence | Executive Magistrate, subject to Section 3(2)(a) |
| Sanctioning or withdrawing from a prosecution | Executive Magistrate, subject to Section 3(2)(a) |
Relationship with the Criminal Court Structure under BNSS
Section 3 should be read with the provisions governing the constitution of criminal courts and offices under Chapter II of the BNSS. In particular, Section 6 BNSS identifies the classes of criminal courts, while the provisions that follow deal with Judicial Magistrates and Executive Magistrates and their respective jurisdictions.