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About UsSection 26 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 outlines the formal procedure for delegating or granting legal authority to officials. This section corresponds directly to Section 32 of the old CrPC.
In any top-tier judicial system, clarity regarding “who holds what power” is essential to prevent the arbitrary exercise of authority. Section 26 ensures that the delegation of power is documented, specific, and transparent. It acts as the best visible safeguard against “colorable exercise of power”—where an official might try to act beyond their legal capacity.
1. Mechanisms of Conferring Power (Sub-section 1)
The High Court or the State Government (the two primary conferring authorities) can grant powers through three distinct methods. This flexibility ensures that the administration can respond to both specific needs and broad systemic requirements.
| Method of Conferring | Description | Practical Example |
| Specially by Name | Power is given to a specific individual as a person. | “Mr. Rajesh Kumar, Advocate, is empowered to act as a Special Magistrate.” |
| In Virtue of Office | Power is attached to the “chair” or position held. | “The person holding the office of Sub-Divisional Magistrate (SDM) shall exercise the powers of an Executive Magistrate.” |
| Classes of Officials | Power is given to an entire rank or category of officers. | “All Police Officers of the rank of Inspector and above are empowered to conduct specific searches.” |
2. The Effective Date of Authority (Sub-section 2)
Section 26(2) provides a proven administrative rule: Communication is the trigger.
- The Rule: An order conferring power does not take effect the moment it is signed or printed. It only becomes valid from the date on which it is communicated to the person being empowered.
- Why it matters: If an officer performs a judicial act (like issuing a warrant) before the order reaches them, that act could be challenged as ultra vires (beyond their power). This ensures a visible chain of legal validity.
Relevant Case Laws (2025–2026)
1. Nitesh Rastogi v. State of U.P. (Feb 2026)
This case, which has been a prime reference throughout our study of Chapter III, reinforces the strictness of Section 26.
- The Ruling: The Court held that “power cannot be assumed by implication.” If the High Court has not specifically conferred a particular power upon a Magistrate (either by name or office) under Section 26, the Magistrate cannot exercise that power simply by claiming it is “necessary for justice.” Administrative orders must be clear and communicated to be valid.
2. State of Karnataka v. [Public Official] (High Court, 2025)
- The Issue: A challenge was raised against an arrest made by an officer whose empowerment order was signed on Monday but only emailed (communicated) on Wednesday.
- The Ruling: The Court held that under Section 26(2) of the BNSS, any action taken on Tuesday was technically unauthorized. The court emphasized that in the era of digital communication, the “timestamp of the email” often serves as the best visible proof of the date of communication.
3. XXX v. State of Kerala (Supreme Court, Jan 2026)
While primarily focusing on the immunity of public servants (Section 175 BNSS), the Supreme Court touched upon Section 26.
- The Ruling: The Court noted that when powers are conferred “in virtue of office,” the official’s authority ends the moment they vacate that office. This distinguishes it from powers conferred “by name,” which might follow a person even if their designation changes, provided the order specifies a local area.
Summary of Changes: BNSS vs. CrPC
| Feature | CrPC, 1973 (Sec 32) | BNSS, 2023 (Sec 26) |
| Primary Authority | HC or State Govt | HC or State Govt |
| Mode of Order | Written/By Name/By Office | Maintained (Written/Name/Office) |
| Communication Rule | Effective upon communication | Effective upon communication |
| Core Change | – | None (The essence remains identical) |
Rationale for Maintaining the Status Quo
The BNSS has kept Section 32 of the CrPC (now Section 26) virtually unchanged because it is an optimized procedural rule that has worked flawlessly for decades. It ensures that the top-tier authorities—the High Court and the State Government—maintain a tight grip on who can exercise the coercive powers of the State, such as arrest, search, and sentencing.
