Constitution of Criminal Courts (Sessions, Magistrates, Special Courts)

Section 6 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) — corresponding to Section 6 of the Code of Criminal Procedure, 1973 (CrPC) — classifies the Criminal Courts of India. Above the trial pyramid sits the High Court of every State, vested with appellate, reference and revisional jurisdiction over the inferior Criminal Courts. Below the High Court the Sanhita recognises four classes of Criminal Courts: the Court of Session, the Judicial Magistrate of the First Class, the Judicial Magistrate of the Second Class, and the Executive Magistrate. The 1973 Code recognised a fifth class — the Metropolitan Magistrate — and continued the older distinction between an Assistant Sessions Judge, an Additional Sessions Judge and the Sessions Judge in the matter of trial powers. The BNSS abolishes both. The Metropolitan Magistracy is gone. The class of Assistant Sessions Judges is gone. The Magistrates of the Third Class were already removed by the 1973 Code. What remains is a leaner, three-tier subordinate-court structure that this chapter sets out in full.

Why does the constitutional architecture of the Criminal Courts matter? Because every later provision of the Sanhita — taking cognizance, framing of charge, sentencing power, appeal, revision — turns on which class of Court is acting. A trial conducted by a Court of the wrong class is, in the language of Section 502 BNSS (previously Section 461 CrPC), an irregularity that may go to the root of the proceeding. The classes of Court are also where the separation of judiciary from executive — the constitutional command in Article 50 — finds statutory shape. Read this chapter alongside the rest of the CrPC and BNSS notes and in particular the chapter on powers of courts and sentencing jurisdiction for the limits of what each Court can do.

Section 6 BNSS — the four classes

Section 6 BNSS, in terms substantially identical to the corresponding 1973 provision, declares that besides the High Courts and the Courts constituted under any law other than the Sanhita, there shall be in every State the following classes of Criminal Courts: (a) Courts of Session; (b) Judicial Magistrates of the First Class; (c) Judicial Magistrates of the Second Class; and (d) Executive Magistrates. The omission of "Metropolitan Magistrates" from the list is the most visible BNSS change. The omission flows from the abolition of the Metropolitan area itself; with no Metropolitan area to recognise, there is no Metropolitan Magistracy to staff.

The drafting carries a small caveat: Courts constituted under other laws are kept outside the Section 6 enumeration. A Special Judge constituted under the Prevention of Corruption Act, 1988, a Special Court under the NDPS Act, 1985, a POCSO Court under the Protection of Children from Sexual Offences Act, 2012, or a Designated Court under the Unlawful Activities (Prevention) Act, 1967 — each is a Criminal Court for the purposes of the Sanhita, by virtue of Section 4(2) BNSS, but is constituted by the special law that creates it. The Supreme Court in A.R. Antulay v. R.S. Nayak, AIR 1984 SC 718, laid down the propositions that govern such Special Courts: they are Courts of original criminal jurisdiction; they have all the powers of any Court of original criminal jurisdiction under the Sanhita except those expressly excluded; they may take cognizance on a private complaint; and they must follow the warrant-case procedure for trial.

Separation of judiciary from executive

Article 50 of the Constitution directs the State to take steps to separate the judiciary from the executive in the public services of the State. The 1973 Code converted that directive into a fork: every Magistrate is either Judicial or Executive, and the two classes are separated by appointment, control and function. Judicial Magistrates are appointed by the High Court under Section 9(2) BNSS (previously Section 11(2) CrPC) and are subordinate ultimately to the High Court through the Chief Judicial Magistrate and the Sessions Judge. Executive Magistrates are appointed by the State Government under Section 14 BNSS (previously Section 20 CrPC) and are subordinate to the District Magistrate.

The functional division is equally clean. Judicial Magistrates exercise the trial power, the framing of charge, the recording of evidence, the writing of judgment and the imposing of sentence — the full judicial function. Executive Magistrates exercise powers that are administrative, preventive or police-aiding in character: arrest of an offence committed in the Magistrate's presence, the disposal of unlawful assemblies, the issue of a security order under Sections 126 to 144 BNSS (previously Sections 107 to 124 CrPC), the issue of public-order orders under Section 163 BNSS (previously Section 144 CrPC), inquests under Section 196 BNSS (previously Section 174 CrPC), and similar functions. Where the Sanhita vests a power exclusively in an Executive Magistrate — as in Section 164 BNSS (previously Section 145 CrPC), on dispute concerning immovable property — the exercise of that power by a Judicial Magistrate would render the proceeding without jurisdiction and void under Section 502 BNSS.

The Court of Session

Section 8 BNSS (previously Section 9 CrPC) governs the Court of Session. The State Government establishes a Court of Session for every sessions division. Each Court is presided over by a Judge appointed by the High Court. The High Court may also appoint Additional Sessions Judges to exercise jurisdiction in the Court of Session. The most striking BNSS change is the disappearance of the "Assistant Sessions Judge" — a class of Sessions-level judicial officer whose limited sentencing power and revision jurisdiction had become anachronistic. The class is no more. Where the 1973 Code permitted Assistant Sessions Judges to try cases made over to them and to dispose of appeals from the Magistracy of the Second Class, the BNSS reserves that work for the Sessions Judge and the Additional Sessions Judge.

The Sanhita adds two new sub-sections to Section 8 BNSS, sub-sections (7) and (8), which had no counterpart in the 1973 Code. Sub-section (7) provides for arrangement of business by the Sessions Judge in case of vacancy or temporary inability. Sub-section (8) collects the consequential provisions on the place where the Court of Session may sit. The substantive jurisdictional rule — that the Court of Session has appellate and revisional jurisdiction over the inferior Criminal Courts under Sections 415 BNSS and 442 to 444 BNSS, and original jurisdiction to try sessions cases on commitment under Section 232 BNSS — survives unchanged.

The Sessions Judge is appointed by the High Court. The appointment is, however, an act of designation, not of recruitment: as the Explanation to Section 8 BNSS makes clear, "appointment" does not include the first appointment to the judicial service, which under Articles 233 and 234 of the Constitution remains with the Governor acting in consultation with the High Court. The High Court's power under Section 8 BNSS is, accordingly, the power to assign a particular judicial officer to preside over a particular Court of Session, not the power to recruit a person to the bench from outside the service.

Judicial Magistrates of the First and Second Class

Section 9 BNSS (previously Section 11 CrPC) provides that in every district there shall be Judicial Magistrates of the First Class and of the Second Class. Their number, location and territorial jurisdiction are fixed by the State Government in consultation with the High Court. Their appointment is made by the High Court. Their distinction from each other lies in the trial power. A Judicial Magistrate of the First Class may pass a sentence of imprisonment for a term not exceeding three years or a fine not exceeding fifty thousand rupees, or both, under Section 23 BNSS (previously Section 29 CrPC). A Judicial Magistrate of the Second Class may pass a sentence of imprisonment not exceeding one year or a fine not exceeding ten thousand rupees, or both. The detailed treatment of sentencing limits Court-class by Court-class is in the next chapter.

Chief Judicial Magistrate. Section 10 BNSS (previously Section 12 CrPC) provides that one of the Judicial Magistrates of the First Class in every district shall be designated by the High Court to be the Chief Judicial Magistrate. The Chief Judicial Magistrate is the senior-most Magistrate in the district on the judicial side and corresponds to the District Magistrate on the executive side. Important cases — including those involving approvers — are tried by the Chief Judicial Magistrate, who has power to impose imprisonment up to seven years and an unlimited fine.

Additional Chief Judicial Magistrate. Section 10(2) BNSS empowers the High Court to designate any First-Class Magistrate as an Additional Chief Judicial Magistrate, with the same powers as a Chief Judicial Magistrate. The Additional Chief Judicial Magistrate is, in effect, a stand-in for the Chief Judicial Magistrate when the latter cannot dispose of the business.

Sub-divisional Judicial Magistrate. Where a district is divided into sub-divisions under Section 7 BNSS (previously Section 7 CrPC), the High Court may designate the Judicial Magistrate of the First Class in charge of a sub-division as the Sub-divisional Judicial Magistrate. The Sub-divisional Judicial Magistrate exercises specified powers of supervision over the other Judicial Magistrates of the sub-division, subject to the general control of the Chief Judicial Magistrate.

Special Judicial Magistrate. Section 11 BNSS (previously Section 13 CrPC) empowers the High Court, at the request of the State Government, to confer on any person who holds or has held any post under the Government, by name, the powers of a Judicial Magistrate of the First Class or of the Second Class for a term not exceeding one year at a time. A Special Judicial Magistrate is, therefore, a person not regularly on the judicial service who is empowered for a fixed term to discharge specified magisterial functions in defined cases.

Executive Magistrates

Section 14 BNSS (previously Section 20 CrPC) creates the executive magistracy. The State Government appoints, in every district, as many persons as it thinks fit to be Executive Magistrates, and one of them is appointed District Magistrate. The State Government may appoint another Executive Magistrate to be Additional District Magistrate, with such powers as the State Government may, by general or special order, direct. In each sub-division of a district, an Executive Magistrate may be placed in charge of the sub-division as a Sub-divisional Magistrate. There is no further sub-division of Executive Magistrates into First, Second or Third Class — they are all simply Executive Magistrates, with such powers as the State Government may confer.

Section 15 BNSS (previously Section 21 CrPC) provides for Special Executive Magistrates. The 1973 Code permitted the State Government to appoint persons holding certain posts under the Government as Special Executive Magistrates. The BNSS adds an important new ground: a State Government may appoint a police officer of the rank of Superintendent of Police or equivalent as a Special Executive Magistrate. The change responds to the felt need to vest preventive-action and dispersal powers in senior police officers in particular contingencies, without going through the executive-magistracy chain.

Public Prosecutors and the Directorate of Prosecution

While Section 6 BNSS classifies the Courts, the prosecutorial counterparts are constituted under Sections 18 to 20 BNSS (previously Sections 24, 25 and 25A CrPC). Section 18 BNSS provides for the appointment of Public Prosecutors at the High Court level and District-level Public Prosecutors. A new proviso under Section 18 BNSS specifies the consultation requirements before appointment. Section 19 BNSS provides for Assistant Public Prosecutors, with a fourteen-day notice period to the State Government for ad hoc appointment if regular APPs are unavailable. Section 20 BNSS provides for the Directorate of Prosecution, with new provisions for a District Directorate of Prosecution under sub-section (1)(b), and additional sub-sections (8) to (11). The functional definition of the Public Prosecutor — that he represents the State and not the police, that his duty is to place the testimony of all available witnesses before the Court, and that he is an officer of the Court — survives the transition unchanged from Ram Ranjan v. Emp. (1914) 42 Cal 422.

The abolished Metropolitan Magistracy — what happened

The 1973 Code carried over from the Code of 1898 a special category of Magistrates in the Presidency-towns — Bombay, Calcutta and Madras — and in any other city or town with a population exceeding one million that the State Government chose to declare a Metropolitan area. The Metropolitan Magistrate corresponded to the Judicial Magistrate of the First Class in the districts. The Chief Metropolitan Magistrate corresponded to the Chief Judicial Magistrate. By 2023, however, the population threshold had ceased to do useful work; nearly every State capital and every Tier-I city had crossed the one-million mark, and there was no operational difference between the powers of a Chief Metropolitan Magistrate and the powers of a Chief Judicial Magistrate. The BNSS therefore collapses the categories. The drafting consequences are visible in Sections 8, 11, 12, 14, 17, 22, 29, 113, 196, 214, 320, 321, 415, 422 and 436 of the BNSS, where the references to Metropolitan Magistrates and Metropolitan areas have been removed.

For pending cases, Section 531(2) BNSS preserves the position. An inquiry, trial or appeal pending before a Metropolitan Magistrate immediately before 1 July 2024 continues under the CrPC, before that same Magistrate, treated for the purposes of the Sanhita as a Judicial Magistrate of the First Class. The High Court directs, in consultation with the State Government, the conversion of the Metropolitan Magistrate's roll into the regular First-Class roll for the future.

Special Criminal Courts under other laws

Section 6 BNSS preserves the line — laid down by the Supreme Court in Antulay — between Criminal Courts under the Sanhita and Criminal Courts constituted under any law other than the Sanhita. The latter category is not a residual catch-all; it is a class of Courts constituted by special statutes for the trial of specified offences. Each is a Criminal Court of original jurisdiction, attracting the procedure of the Sanhita unless the special statute provides otherwise.

The most important examples are: the Special Judge under the Prevention of Corruption Act, 1988, who tries offences under that Act and connected offences; the Special Court under the Narcotic Drugs and Psychotropic Substances Act, 1985, with exclusive jurisdiction over NDPS offences; the Special Court under the Protection of Children from Sexual Offences Act, 2012, conducting trials of POCSO offences with the child-sensitive procedure prescribed in that Act; the Designated Court under the Unlawful Activities (Prevention) Act, 1967; the Special Court under the Companies Act, 2013, for company-law offences; and the Special Court under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. None of these is a Court enumerated in Section 6 BNSS; each falls under the saving in the opening words of Section 6, "besides the High Courts and the Courts constituted under any law other than this Sanhita".

Territorial divisions — Section 7 BNSS

Section 7 BNSS (previously Section 7 CrPC) lays down the territorial framework. Every State shall be a sessions division or shall consist of sessions divisions; every sessions division shall, for the purposes of the Sanhita, be a district or consist of districts. The State Government, after consultation with the High Court, may alter the limits or the number of sessions divisions, districts and sub-divisions. The proviso to the 1973 Section 7 — which treated every Metropolitan area as a separate sessions division and district — has been omitted in the BNSS, the Metropolitan area being itself abolished.

The practical importance of the territorial framework is that it determines the local jurisdiction of every Criminal Court. A Sessions Court tries cases that arise within its sessions division. A Judicial Magistrate tries cases that arise within the local limits assigned by the Chief Judicial Magistrate. The default rule of place of trial under Section 197 BNSS (previously Section 177 CrPC) is that every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed. Departures from that rule — Sections 198 to 207 BNSS — are taken up in dedicated chapters.

Subordination of Courts

Section 13 BNSS (previously Section 15 CrPC) provides that every Chief Judicial Magistrate shall be subordinate to the Sessions Judge, and every other Judicial Magistrate shall, subject to the general control of the Sessions Judge, be subordinate to the Chief Judicial Magistrate. The Sessions Judge in turn is, on the appellate side, subordinate to the High Court under Section 415 BNSS (previously Section 374(2) CrPC). Section 17 BNSS (previously Section 23 CrPC) makes the corresponding provision for Executive Magistrates: every Executive Magistrate, save the Additional District Magistrate where so notified, is subordinate to the District Magistrate, and the District Magistrate is subordinate to the State Government.

The subordination chain matters for two reasons. First, it determines the channel of revision. The Sessions Judge, under Section 442 BNSS (previously Section 397 CrPC), may revise the orders of the Magistracy and of the Executive Magistracy of the sessions division. The High Court, under the same provision, may revise the orders of the Sessions Court. Second, it determines the channel of appeal. An appeal from a sentence passed by a Judicial Magistrate of the First Class lies to the Sessions Judge under Section 415 BNSS; from a sentence by the Sessions Judge it lies to the High Court; from a sentence by an Additional Sessions Judge it lies to the High Court directly. The detailed treatment of the appellate ladder is in the chapter on appeals in criminal cases.

Why the architecture matters in practice

The constitutional architecture of the Criminal Courts is more than a roll-call. It defines who has jurisdiction, who can pass what sentence, who hears the appeal, and who exercises the inherent power. A trial conducted by a Court of the wrong class is not necessarily void — Section 502 BNSS (previously Section 461 CrPC) enumerates twelve categories of irregularity that vitiate proceedings, and not every wrong-class trial falls in those categories — but it is plainly an avoidable obstacle to a clean conviction. A Magistrate exercising powers belonging exclusively to an Executive Magistrate, or vice versa, acts without jurisdiction. A Judicial Magistrate of the Second Class who passes a sentence beyond the limits of Section 23 BNSS exceeds his power and is liable to revision. A Sessions Court that takes cognizance of an offence without commitment, except in the limited circumstances permitted by the Sanhita and by special statutes, exceeds its power.

Reading this chapter in conjunction with the next chapter on sentencing powers under Sections 22 and 23 BNSS — and with the chapters on transfer of criminal cases and inherent powers of the High Court — gives the reader the complete picture of the institutional set-up of the Indian criminal-justice system. The Sanhita, in changing the lower-court vocabulary, has not changed the architecture; it has only tightened it.

For the broader context of how this constitutional architecture connects to the procedural sequence — from first information and Zero FIR through police investigation, arrest of persons and framing of charge to trial before a Court of Session and judgment — the reader is encouraged to follow the introduction and scheme of the Sanhita, which sets up the architecture this chapter elaborates.

Frequently asked questions

What classes of Criminal Courts are recognised under Section 6 BNSS, and how do they differ from the 1973 Code?

Section 6 BNSS recognises four classes of Criminal Courts: Courts of Session, Judicial Magistrates of the First Class, Judicial Magistrates of the Second Class, and Executive Magistrates. The 1973 Code recognised a fifth class — Metropolitan Magistrates — and within the Court of Session it carried Assistant Sessions Judges. The BNSS abolishes both the Metropolitan Magistracy and the class of Assistant Sessions Judges. The High Court, of course, sits above all four classes for appeal, reference and revision; and Special Courts constituted under other laws — Special Judges under the Prevention of Corruption Act, NDPS Courts, POCSO Courts — sit alongside under the saving in Section 6 itself.

Why has the BNSS abolished Assistant Sessions Judges?

Assistant Sessions Judges were the lowest rung on the Sessions-level bench under the 1973 Code, with limited sentencing power and a narrow appellate jurisdiction. By the time of the Sanhita the class had ceased to do useful work; the Sessions Judge and the Additional Sessions Judge were absorbing the trial business directly, and few States had retained an active Assistant Sessions cadre. Section 8 BNSS therefore omits the class. The work earlier done by an Assistant Sessions Judge is now done either by an Additional Sessions Judge of the same Court, or by a Judicial Magistrate of the First Class on commitment, depending on the seriousness of the offence.

Are Special Courts under the Prevention of Corruption Act or the NDPS Act 'Criminal Courts' under Section 6 BNSS?

Yes. The Supreme Court in A.R. Antulay v. R.S. Nayak, AIR 1984 SC 718, held that a Special Judge under the Prevention of Corruption Act is a Criminal Court constituted by a law other than the Code. The same reasoning applies to a Special Court under the NDPS Act and a POCSO Court. Each is a Court of original criminal jurisdiction, possessing all the powers of any such Court under the Sanhita except those expressly excluded by the special statute. By Section 4(2) BNSS, the procedure of the Sanhita applies to such Courts unless the special statute provides otherwise.

Can the High Court directly recruit a Sessions Judge from the Bar under Section 8 BNSS?

No. The Explanation to Section 8 BNSS makes it clear that the word 'appointment' in that section does not include the first appointment to the judicial service or the appointment of a District Judge. The first appointment is governed by Articles 233 and 234 of the Constitution, which vest it in the Governor acting in consultation with the High Court (and, for the lower service, the Public Service Commission). The High Court's power under Section 8 BNSS is the power to designate an existing judicial officer to preside over a particular Court of Session — not the power to recruit from the Bar.

What is new about the appointment of Special Executive Magistrates under Section 15 BNSS?

The 1973 Code permitted the State Government to appoint persons holding certain posts under the Government as Special Executive Magistrates. The BNSS adds a new ground: a State Government may appoint a police officer of the rank of Superintendent of Police or equivalent as a Special Executive Magistrate. The change vests preventive-action and dispersal powers in senior police officers in particular contingencies — for instance, large-scale public disturbances or major events — without requiring deployment of an Executive Magistrate from the regular district administration.

What happens to a case pending before a Metropolitan Magistrate on 1 July 2024?

Section 531(2) BNSS preserves the pending case. The inquiry, trial or appeal continues before the same Magistrate under the CrPC, as if the BNSS had not come into force. For administrative purposes the High Court treats the Metropolitan Magistrate as a Judicial Magistrate of the First Class going forward, and the State High Court typically issues a notification re-rolling the Metropolitan bench into the First-Class bench. The change is a re-labelling rather than a transfer; the Magistrate's jurisdiction, powers and territorial limits remain substantively the same.