Section 35 Police Act, 1861: Jurisdiction of Magistrate Over Charges Against Police Officers
Section 35 of the Police Act, 1861 deals with the authority competent to inquire into and determine charges against police officers above the rank of constable under that Act. It is a jurisdictional safeguard, not a general definition of all offences committed by police personnel.
Section 35 of the Police Act, 1861 - Statutory text
35. Jurisdiction. - [Certain words omitted.] Any charge against a police-officer above the rank of a constable under this Act shall be enquired into and determined only by an officer exercising the powers of a Magistrate.
Historical legislative notes retained from the source: (1) Certain words were repealed by Act 10 of 1882, section 2 and Schedule I(b). (2) The older editorial note identifies the competent officer with a Magistrate of the first class by reference to section 3(1) of the Code of Criminal Procedure, 1973. That reference is historical: the Code of Criminal Procedure, 1973 was replaced for new proceedings by the Bharatiya Nagarik Suraksha Sanhita, 2023, subject to its savings and transitional provisions.
Meaning and legal scope of Section 35
Who is covered?
The provision expressly concerns a police officer above the rank of constable who faces a charge under the Police Act, 1861. It does not purport to prescribe the forum for every offence or every disciplinary complaint involving police personnel.
What does jurisdiction mean?
In this section, jurisdiction means the legal authority to inquire into and decide a specified charge. Section 35 reserves the determination of covered charges to an officer exercising magisterial powers, rather than permitting an unauthorised person to adjudicate them.
Does the section govern departmental inquiries?
Not by itself. Departmental proceedings concerning misconduct, suspension, dismissal or other service penalties are governed by the applicable police statute, service rules and disciplinary procedures. A criminal prosecution and a departmental inquiry may raise different questions and follow different procedures.
Section 35 and the present criminal procedure
The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) generally came into force on 1 July 2024, replacing the Code of Criminal Procedure, 1973 for new proceedings, subject to statutory savings. References in older commentaries to the CrPC should therefore not be treated as automatically identifying the operative procedure in a new case.
The BNSS distinguishes classes of criminal courts and judicial magistrates, and its provisions governing cognizance, trial and territorial jurisdiction must be considered where relevant. The Bharatiya Nyaya Sanhita, 2023 (BNS) separately governs many substantive criminal offences; it does not, merely by existing, repeal every special-law offence or jurisdictional requirement. The precise forum for a charge depends on the applicable special law, valid state amendments and current procedural law.
Important distinction: Section 35 is not a general rule that every allegation against an officer above constable rank must be tried only under this section. Its wording is confined to a charge under this Act.
Practical situations
- Alleged breach of a duty under the 1861 Act: If a charge is brought against an officer above constable rank under a provision of the Act, the authority hearing it must satisfy Section 35 and the current law governing that court or officer.
- Service misconduct complaint: A departmental inquiry for misconduct is governed by the applicable service and disciplinary framework, not automatically by Section 35.
- Alleged offence under a general criminal law: The applicable offence, procedure and court jurisdiction must be identified independently; Section 35 does not replace that analysis.
Frequently asked questions
What is the purpose of Section 35?
It specifies the authority competent to inquire into and determine charges under the Police Act, 1861 against police officers above the rank of constable.
Does Section 35 apply to a constable?
Its express wording covers officers above the rank of constable. Other provisions may govern proceedings concerning constables.
Is a District Magistrate automatically the trial court?
No. The text refers to an officer exercising the powers of a Magistrate. The actual competent forum must be determined under the applicable statute, current criminal procedure and local amendments; administrative control by a District Magistrate is a separate issue.
Does the Police Act, 1861 apply in every Indian state?
No. State police Acts, amendments and local application provisions may displace or alter the 1861 Act. Verify the law applicable to the place and date of the alleged conduct.
Official legal sources and further reading
- India Code - central and state legislation (search for the Police Act, 1861, the BNSS, 2023 and relevant state police laws).
- Ministry of Home Affairs - criminal law implementation materials and official notifications.
- e-Gazette of India - commencement and statutory notifications.
This article explains the central statutory wording and general legal context as of November 2026. It does not substitute for checking the current state-specific statute, notified amendments, and the applicable court rules in an individual case.