Constitution of Criminal Courts | Section 6 to 17 BNSS

Constitution of Criminal Courts under the BNSS, 2023: Sections 6 to 17, Territorial Divisions, Court of Session, Judicial and Executive Magistrates

Chapter II of the Bharatiya Nagarik Suraksha Sanhita, 2023 is the chapter that brings the criminal courts into existence. It runs from section 6 to section 20, and sections 6 to 17 deal with the courts themselves: which classes exist, how the territory is divided among them, who establishes each court, who appoints its presiding officer, how far its jurisdiction runs, and to whom it is subordinate. Sections 18 to 20, on the prosecution machinery, are dealt with separately in this series.

A criminal court is a creature of statute. It has the jurisdiction the statute gives it and no more, and no court can confer jurisdiction on itself or on another. That proposition is what makes this chapter more than an organisational chart: an order passed by a court that the statute has not empowered to pass it is not a defective order but no order at all, and section 507 of the Sanhita treats certain acts done without being empowered as fatal to the proceedings.

1. Classes of Criminal Courts: Section 6

Section 6, BNSS 2023

Besides the High Courts and the Courts constituted under any law, other than this Sanhita, there shall be, in every State, the following classes of Criminal Courts, namely —

(i) Courts of Session;

(ii) Judicial Magistrates of the first class;

(iii) Judicial Magistrates of the second class; and

(iv) Executive Magistrates.

The opening words are as important as the list. The Sanhita does not constitute the High Courts, which exist under Article 214 of the Constitution; it confers jurisdiction on them in Chapters XXXI to XXXIII and in section 528. Nor does it constitute the Supreme Court. And it preserves courts created by other statutes, so that a Special Court under the Narcotic Drugs and Psychotropic Substances Act, 1985 or the Prevention of Money-laundering Act, 2002 continues to exist under its own Act while following, under section 4(2), the procedure of the Sanhita except so far as its Act provides otherwise.

⚠ What section 6 removed

Section 6 of the Code of Criminal Procedure, 1973 listed a fifth class: Metropolitan Magistrates, in every metropolitan area. The metropolitan area and the office of Metropolitan Magistrate have both been abolished, along with sections 8, 16, 17 and 19 of the CrPC and the definition in section 2(k).

Two other offices have gone. The Assistant Sessions Judge, who under section 28(3) of the CrPC could pass a sentence of up to ten years, no longer exists, and a Court of Session now consists of the Sessions Judge and Additional Sessions Judges alone. The Judicial Magistrate of the third class has also been removed.

The result is a single uniform hierarchy across the country. A Judicial Magistrate of the first class carries the same designation and the same powers in a metropolitan city as in a district town.

2. Territorial Divisions: Section 7

Section 7 provides that every State shall be a sessions division or shall consist of sessions divisions, and that every sessions division shall, for the purposes of the Sanhita, be a district or consist of districts. The State Government may, after consultation with the High Court, alter the limits or the number of such divisions and districts, and may divide any district into sub-divisions and alter their limits or number.

Three points follow. The territorial scheme is hierarchical: State, sessions division, district, sub-division, and the local jurisdiction of every court is defined by reference to it. The alteration of boundaries requires consultation with the High Court, which protects the judicial structure against redrawing for administrative convenience alone. And the sub-division is the unit on which both the Sub-divisional Judicial Magistrate under section 10 and the Sub-divisional Magistrate under section 14 operate, so it matters on both the judicial and the executive side.

3. The Court of Session: Section 8

The State Government establishes a Court of Session for every sessions division, and the High Court appoints a Judge to preside over it. The High Court may also appoint Additional Sessions Judges to exercise jurisdiction in a Court of Session, and may appoint a Sessions Judge of one division to be an Additional Sessions Judge of another. Where the office of the Sessions Judge is vacant, the High Court may make arrangements for the disposal of urgent applications by an Additional Sessions Judge, or if there is none, by the Chief Judicial Magistrate.

Element	Position under the BNSS
Establishment	By the State Government, for every sessions division
Presiding officer	The Sessions Judge, appointed by the High Court
Additional Judges	Additional Sessions Judges, appointed by the High Court
Assistant Sessions Judges	Abolished. The office and the provisions relating to it have not been carried forward
Place of sitting	Ordinarily at the place the High Court notifies; the Court of Session may sit elsewhere in the division with the consent of the parties, for the disposal of a particular case
Urgent applications during a vacancy	Disposed of by an Additional Sessions Judge, or if there is none, by the Chief Judicial Magistrate
Original jurisdiction	Exercised on committal under section 232; the Court of Session cannot ordinarily take cognizance as a court of original jurisdiction
Sentencing power	Any sentence authorised by law; a sentence of death requires confirmation by the High Court under Chapter XXX: section 22(2)

4. Judicial Magistrates: Sections 9 to 13

Figure 1: Who establishes each court and who appoints its presiding officer

4.1 Courts of Judicial Magistrates: section 9

In every district the State Government, after consultation with the High Court, establishes as many courts of Judicial Magistrates of the first class and of the second class, and at such places, as it may specify. The presiding officers are appointed by the High Court. The High Court may also, on the request of the Central or State Government, establish for any local area one or more special courts of Judicial Magistrates of either class to try any particular case or class of cases, in which event no other Magistrate has jurisdiction to try such a case.

4.2 Chief Judicial Magistrate and Additional Chief Judicial Magistrate: section 10

The High Court appoints a Judicial Magistrate of the first class to be the Chief Judicial Magistrate in every district.
The High Court may appoint any Judicial Magistrate of the first class to be an Additional Chief Judicial Magistrate, who has all or any of the powers of a Chief Judicial Magistrate as the High Court directs.
The High Court may designate any Judicial Magistrate of the first class in a sub-division as the Sub-divisional Judicial Magistrate, and may relieve him of those responsibilities as occasion requires.
The Sub-divisional Judicial Magistrate exercises, subject to the general control of the Chief Judicial Magistrate, such powers of supervision over the work of the Judicial Magistrates in the sub-division as the High Court may specify.

The Chief Judicial Magistrate is therefore not a separate class of court. He is a Judicial Magistrate of the first class on whom administrative and supervisory functions have been conferred, together with the enlarged sentencing power in section 23(1). The distinction matters when a provision confers a power on a Magistrate of the first class: the Chief Judicial Magistrate has it as such.

4.3 Special Judicial Magistrates: section 11

The High Court may, if requested by the Central or State Government, confer on any person who holds or has held any post under the Government all or any of the powers conferred by the Sanhita on a Judicial Magistrate of the first or second class, in respect of particular cases or classes of cases, in any local area not being a metropolitan area. Such Magistrates are called Special Judicial Magistrates, and are appointed for a term not exceeding one year at a time, as the High Court may by general or special order direct. The person must possess such qualifications or experience in relation to legal affairs as the High Court may by rules specify.

⚠ The reference to a metropolitan area

Section 11 retains the words “in any local area, not being a metropolitan area”, although the Sanhita has abolished metropolitan areas and the definition in section 2(k) of the CrPC has not been carried forward.

The phrase is therefore a survival from the old drafting with nothing left for it to operate on. Since no area is now a metropolitan area, the qualification excludes nothing, and the power under section 11 extends to any local area.

4.4 Local jurisdiction: section 12

Subject to the control of the High Court, the Chief Judicial Magistrate may define the local limits of the areas within which the Magistrates appointed under section 9 or section 11 may exercise all or any of the powers with which they may be invested. Except as otherwise provided by such a definition, the jurisdiction and powers of every such Magistrate extend throughout the district.

The default is therefore district-wide jurisdiction, and a narrower local area exists only where it has been defined. Where a Magistrate has been appointed for a local area outside the State under the proviso to the corresponding provision, his jurisdiction and powers extend throughout that area.

4.5 Subordination: section 13

Figure 2: The two chains of subordination

Every Chief Judicial Magistrate is subordinate to the Sessions Judge.
Every other Judicial Magistrate is subordinate to the Chief Judicial Magistrate, subject to the general control of the Sessions Judge.
The Chief Judicial Magistrate may, from time to time, make rules or give special orders, consistent with the Sanhita, as to the distribution of business among the Judicial Magistrates subordinate to him.

The chain runs upward to the Sessions Judge and, through him, to the High Court. It does not at any point pass through the District Magistrate or the State Government, and that is the structural point of the section.

5. Executive Magistrates: Sections 14 to 17

The executive magistracy is constituted by a parallel set of provisions with a different appointing authority throughout.

Provision	Content
Section 14(1)	In every district the State Government may appoint as many persons as it thinks fit to be Executive Magistrates, and shall appoint one of them to be the District Magistrate
Section 14(2)	The State Government may appoint any Executive Magistrate to be an Additional District Magistrate, who has such powers of a District Magistrate as the State Government may direct
Section 14(3)	Where the office of the District Magistrate becomes vacant, any officer succeeding temporarily to the executive administration of the district exercises the powers of the District Magistrate until the State Government directs otherwise
Section 14(4)	The State Government may place an Executive Magistrate in charge of a sub-division, and relieve him of the charge; such a Magistrate is called a Sub-divisional Magistrate
Section 14(5)	The State Government may delegate its powers under sub-section (4) to the District Magistrate
Section 15	Special Executive Magistrates. The State Government may appoint Executive Magistrates for particular areas, or for the performance of particular functions, for such term as it thinks fit, and confer on them such powers under the Sanhita as it may direct
Section 16	Local jurisdiction. Subject to the control of the State Government, the District Magistrate may define the local limits of the areas within which Executive Magistrates may exercise their powers; except as so defined, the jurisdiction extends throughout the district
Section 17	Subordination. All Executive Magistrates are subordinate to the District Magistrate, and every Executive Magistrate exercising powers in a sub-division is also subordinate to the Sub-divisional Magistrate, subject to the general control of the District Magistrate. The District Magistrate may make rules or give special orders as to the distribution of business

📖 Madhu Limaye v. Sub-Divisional Magistrate, Monghyr, (1970) 3 SCC 746 (Constitution Bench)

Facts: Orders were passed by a Sub-divisional Magistrate under the provision empowering an Executive Magistrate to make a conditional order in urgent cases of nuisance or apprehended danger. The constitutional validity of the power was challenged on the footing that it conferred an unguided discretion on an executive officer to restrict the freedoms guaranteed by Article 19, and that such a power could not be vested in an officer who is not a judicial authority.

Held: The Constitution Bench upheld the provision. It held that the power is an emergency power, exercisable only where there is urgency and a likelihood of danger or nuisance, that it is limited in duration, and that it is subject to a hearing and to revision, so that the restriction it permits is a reasonable one. The Court emphasised that an Executive Magistrate exercising the power acts in a quasi-judicial manner and must record the material on which he proceeds, and that the safeguards built into the section, including the right to apply for the rescission of the order, are what save it.

Ratio: The preventive powers of the executive magistracy are valid because they are hedged by conditions of urgency, duration, reasons and the right to be heard. An Executive Magistrate exercising them acts quasi-judicially and not administratively at large.

6. Judicial Magistrate and Executive Magistrate Compared

Point of comparison	Judicial Magistrate	Executive Magistrate
Constituted by	Sections 9 to 11	Sections 14 and 15
Court established by	The State Government, after consultation with the High Court	Not a court established in the same sense; the office is created by appointment
Appointed by	The High Court	The State Government
Local jurisdiction defined by	The Chief Judicial Magistrate, subject to the control of the High Court: section 12	The District Magistrate, subject to the control of the State Government: section 16
Subordinate to	The Chief Judicial Magistrate and the Sessions Judge: section 13	The Sub-divisional Magistrate and the District Magistrate: section 17
Functions, under section 3(2)	Functions involving the appreciation or sifting of evidence, or the formulation of a decision exposing a person to punishment or penalty or to detention pending investigation, inquiry or trial, or which would have the effect of sending him for trial	Functions administrative or executive in nature
Typical powers	Cognizance under section 210; remand under section 187; recording of confessions under section 183; framing of charge; trial, conviction and sentence	Security for keeping the peace and good behaviour under Chapter IX; unlawful assemblies, public nuisance and urgent orders under Chapter XI; preventive action under Chapter XII; disputes as to immovable property
May record a confession under section 183	Yes	No
May pass a sentence of imprisonment on conviction	Yes, within the limits of section 23	No. The orders are preventive, not punitive
Constitutional basis of the division	Article 50: separation of the judiciary from the executive in the public services of the State	The same

Section 24 permits the State Government to direct that a function allocated by the Sanhita to an Executive Magistrate be exercised by a Judicial Magistrate, or the reverse, in such cases and to such extent as it specifies. It is the only bridge between the two chains, and it is to be read narrowly, because the allocation in section 3(2) gives effect to a constitutional directive rather than to an administrative preference.

7. Jurisdiction Is a Creature of Statute

📖 A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602 (Bench of seven Judges)

Facts: By an earlier order the Supreme Court had directed that a prosecution which the statute required to be tried by a Special Judge be withdrawn and tried instead by a sitting Judge of the High Court. The question before the larger Bench was whether that direction could stand, the statute having conferred exclusive jurisdiction on the Special Judge.

Held: The Court held that the direction was without jurisdiction and had to be recalled. Jurisdiction to try an offence is conferred by statute, and no court, however high, can confer jurisdiction on a court which the legislature has not empowered, nor take away a jurisdiction the legislature has conferred. A direction that deprives a party of rights that flow from the statutory forum, including the right of appeal available from that forum, violates the guarantee of a procedure established by law, and an order passed per incuriam and in violation of natural justice may be recalled by the Court itself.

Ratio: The jurisdiction of a criminal court is fixed by the statute constituting it. It cannot be enlarged, transferred or assumed by judicial direction, and an order that does so is a nullity rather than a merely erroneous order.

The proposition is the reason Chapter II is read as an operative chapter and not as a description. Section 21 and the First Schedule allocate offences among the courts that Chapter II constitutes; section 26 governs the conferment of powers on particular officers; and Chapter XXXVII, in section 507, makes it fatal for a Magistrate to take cognizance, issue a search warrant, attach and sell property or hold an inquest without being empowered. The chain runs from the constitution of the court to the validity of what it does.

8. Key Takeaways

The position stated shortly

1. Section 6 constitutes four classes of criminal court in every State: Courts of Session, Judicial Magistrates of the first class, Judicial Magistrates of the second class, and Executive Magistrates, besides the High Courts and courts constituted by other laws.

2. The metropolitan area and the Metropolitan Magistrate, the Assistant Sessions Judge and the Judicial Magistrate of the third class have all been abolished.

3. Section 7 makes every State a sessions division or a set of sessions divisions, and every division a district or a set of districts; alteration requires consultation with the High Court.

4. Section 8: the State Government establishes the Court of Session; the High Court appoints the Sessions Judge and Additional Sessions Judges.

5. Sections 9 to 11: the courts of Judicial Magistrates are established by the State Government after consultation with the High Court, and the High Court appoints the presiding officers, the Chief Judicial Magistrate, the Additional Chief Judicial Magistrate, the Sub-divisional Judicial Magistrate and Special Judicial Magistrates.

6. Section 12: the Chief Judicial Magistrate defines local limits subject to the control of the High Court; in the absence of a definition, jurisdiction extends throughout the district.

7. Section 13: the Chief Judicial Magistrate is subordinate to the Sessions Judge, and every other Judicial Magistrate to the Chief Judicial Magistrate.

8. Sections 14 to 17: the State Government appoints Executive Magistrates and the District Magistrate; the District Magistrate defines local limits; all Executive Magistrates are subordinate to him and, in a sub-division, to the Sub-divisional Magistrate.

9. Jurisdiction is conferred by statute and cannot be created, transferred or assumed by judicial direction: A.R. Antulay (1988).

9. Frequently Asked Questions

Which are the classes of criminal courts under section 6 of the BNSS?

Courts of Session, Judicial Magistrates of the first class, Judicial Magistrates of the second class, and Executive Magistrates, besides the High Courts and courts constituted under any law other than the Sanhita.

Who appoints the Sessions Judge?

The High Court, under section 8(3). The State Government establishes the Court of Session for every sessions division, but the appointment of the Judge to preside over it is the High Court’s.

Is the Chief Judicial Magistrate a separate class of court?

No. He is a Judicial Magistrate of the first class appointed by the High Court under section 10 to be the Chief Judicial Magistrate, with supervisory and administrative functions and the enlarged sentencing power in section 23(1).

Who may be appointed a Special Judicial Magistrate?

A person who holds or has held any post under the Government and possesses such qualifications or experience in relation to legal affairs as the High Court may specify by rules. The appointment is by the High Court, on the request of the Central or State Government, for a term not exceeding one year at a time.

What is the local jurisdiction of a Judicial Magistrate?

Whatever the Chief Judicial Magistrate defines under section 12, subject to the control of the High Court. Where no local area has been defined, the jurisdiction and powers extend throughout the district.

What is the main difference between a Judicial and an Executive Magistrate?

The appointing authority and the nature of the function. A Judicial Magistrate is appointed by the High Court and exercises functions involving the appreciation of evidence or exposure to punishment or detention; an Executive Magistrate is appointed by the State Government and exercises administrative and executive functions, principally the preventive jurisdiction under Chapters IX, XI and XII. Section 3(2) makes the allocation, and it gives effect to Article 50.

Related Topics

Powers of Criminal Courts: Sections 21 to 29, BNSS
Police Powers and Public Assistance: Sections 30 to 34, BNSS
Hierarchy of Criminal Courts under the BNSS, 2023
The Public Prosecutor: Appointment, Role and Duties
Classification of Offences under the First Schedule
Separation of the Judiciary from the Executive