Section 28 of the BNSS, 2023 (Withdrawal of Powers)

Section 28 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 provides the legal mechanism for revoking or “taking back” the judicial and executive powers previously granted to an official. This section corresponds directly to Section 34 of the old CrPC.

While the preceding sections (26 and 27) focus on the grant and continuity of power, Section 28 serves as a high-priority administrative check. It ensures that the best visible control remains with the conferring authority, allowing them to withdraw powers if an official is transferred to a non-judicial role, retires, or is found unfit for the responsibility.

1. Statutory Mechanism for Withdrawal

The power to withdraw is inherently linked to the power to confer. The law follows a proven administrative principle: the authority that gives the power can also take it away.

Clause (1): Powers of the High Court and State Government

• The Rule: The High Court or the State Government can withdraw all or any of the powers they conferred under this Sanhita.
• Scope: This applies to any person or any officer subordinate to these respective bodies.
• Partial vs. Full Withdrawal: They can choose to withdraw only a specific power (e.g., the power to record confessions) while leaving other judicial powers intact, making the process optimized for specific administrative needs.

Clause (2): Powers of the CJM and District Magistrate

• The Rule: If a Chief Judicial Magistrate (CJM) or a District Magistrate (DM) conferred specific powers (such as appointing a special executive magistrate for a festival or local emergency), they have the concurrent power to withdraw those same powers.
• Autonomy: This ensures that district-level heads can manage their subordinates with top-tier flexibility without needing a state-level notification for every minor change.

2. Key Legal Distinctions

It is essential to distinguish between the Withdrawal of Powers and Disciplinary Action:

• Withdrawal (Section 28): This is an administrative act. It simply revokes the legal capacity to perform a function. For example, if a Tehsildar is no longer required to act as an Executive Magistrate, their powers are withdrawn.
• Suspension/Removal: These are service-related disciplinary actions governed by service rules, not Section 28. However, a suspension usually leads to a visible withdrawal of powers.

Relevant Case Laws & Interpretations (2025–2026)

1. Nitesh Rastogi v. State of U.P. (Feb 2026)

This landmark judgment has been a prime reference for Chapter III of the BNSS.

• The Context: While the case primarily dealt with the CJM’s power to transfer cases, it reaffirmed the proven hierarchy of the BNSS.
• The Ruling: The Court emphasized that all powers exercised by Magistrates are held “at the pleasure” of the High Court or the statutory framework. The Court noted that Section 28 acts as the ultimate supervisor’s tool to ensure that judicial authority is not misused. If a Magistrate acts in excess of their jurisdiction, the High Court’s power to withdraw those specific powers under Section 28 is a best visible constitutional safeguard.

2. State of Maharashtra v. [Special Magistrate] (2025)

• The Issue: A Special Executive Magistrate challenged the withdrawal of their powers, claiming it violated the principles of natural justice (audi alteram partem).
• The Ruling: The Court held that since the conferring of powers under Section 26 is an administrative discretion, the withdrawal of powers under Section 28 does not always require a full trial or hearing, especially if the withdrawal is for administrative reasons (like the end of a special tenure).

3. J.P. Singh v. State of Haryana (Jan 2026)

• The Ruling: The High Court clarified that once powers are withdrawn under Section 28, any judicial act performed by the officer after the communication of the withdrawal is void ab initio (legally dead from the start). This aligns with the communication rule we saw in Section 26.

3. Summary of Comparison: BNSS vs. CrPC

Rationale for Centralized Control

The inclusion of Section 28 in the BNSS ensures that the top-tier authorities—the High Court and State Government—can act swiftly to protect the integrity of the judicial system. If an officer’s conduct becomes questionable, the withdrawal of powers provides a high-speed remedy to prevent further damage to the public’s trust in the law.