Hierarchy of Criminal Courts under the | BNSS 2023

Hierarchy of Criminal Courts under the BNSS, 2023: Sections 6 to 17, Classes of Courts, Judicial and Executive Magistrates, and Sentencing Powers

Chapter II of the Bharatiya Nagarik Suraksha Sanhita, 2023 constitutes the criminal courts, and Chapter III fixes what each of them may do. Together they answer three questions: which courts exist, which of them may try a given offence, and what sentence each may pass. The answers are not decorative. A trial by a court not competent to hold it is an irregularity of the kind section 507 treats as fatal, and a sentence beyond a court’s powers is to that extent without authority.

The Sanhita made one structural change of consequence. It abolished three offices that the Code of Criminal Procedure, 1973 recognised: the metropolitan area and with it the Metropolitan Magistrate, the Assistant Sessions Judge, and the Judicial Magistrate of the third class. The result is a single uniform hierarchy throughout India, and a Judicial Magistrate now carries the same designation in a metropolitan city as in a district town.

1. The Classes of Criminal Courts

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 carry three propositions. The Sanhita does not constitute the High Courts, which exist under Article 214 of the Constitution; it confers powers on them. It preserves courts constituted by other laws, such as Special Courts under the Narcotic Drugs and Psychotropic Substances Act, 1985 or the Prevention of Money-laundering Act, 2002, whose existence rests on their own statutes. And the four classes it does constitute exist “in every State”, so the hierarchy is uniform across the country.

Figure 1: The hierarchy, with the judicial and executive sides shown separately

2. The Courts, Section by Section

Provision	Court or office	Constituted and appointed
Section 7	Territorial divisions	Every State is a sessions division or consists of sessions divisions, and every division is a district or consists of districts. The State Government, after consultation with the High Court, may alter the limits or the number
Section 8	Court of Session	The State Government establishes a Court of Session for every sessions division. The High Court appoints the Sessions Judge, and may appoint Additional Sessions Judges. The Assistant Sessions Judge no longer exists
Section 9	Judicial Magistrates of the first and second class	Established by the State Government after consultation with the High Court; the presiding officers are appointed by the High Court
Section 10	Chief Judicial Magistrate and Additional Chief Judicial Magistrate	The High Court appoints a Judicial Magistrate of the first class to be the Chief Judicial Magistrate in every district, and may appoint Additional Chief Judicial Magistrates and designate a Sub-divisional Judicial Magistrate
Section 11	Special Judicial Magistrates	The High Court may confer the powers of a Judicial Magistrate of the first or second class on any person holding or having held a post under the Government, for particular cases or classes of cases
Section 12	Local jurisdiction of Judicial Magistrates	Defined by the Chief Judicial Magistrate, subject to the control of the High Court; in the absence of a definition, the jurisdiction extends throughout the district
Section 13	Subordination of Judicial Magistrates	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
Section 14	Executive Magistrates	The State Government appoints Executive Magistrates in every district and appoints one of them to be the District Magistrate; it may appoint Additional District Magistrates and Sub-divisional Magistrates
Section 15	Special Executive Magistrates	The State Government may appoint Executive Magistrates for particular areas or for the performance of particular functions
Section 16	Local jurisdiction of Executive Magistrates	Defined by the District Magistrate, subject to the control of the State Government
Section 17	Subordination of Executive Magistrates	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

⚠ Who appoints whom, and why it matters

The presiding officers of the judicial courts are appointed by the High Court: the Sessions Judge and Additional Sessions Judges under section 8, the Judicial Magistrates under section 9, the Chief Judicial Magistrate under section 10, and Special Judicial Magistrates under section 11. The Executive Magistrates are appointed by the State Government under sections 14 and 15.

The division of the appointing authority is the structural guarantee of the separation of the judiciary from the executive that Article 50 of the Constitution requires. A Judicial Magistrate answers, through the Chief Judicial Magistrate and the Sessions Judge, to the High Court; an Executive Magistrate answers, through the District Magistrate, to the State Government. Sections 13 and 17 keep the two chains of subordination separate.

3. The Two Kinds of Magistrate

Section 3(2) allocates functions between the two kinds by reference to the nature of the function rather than the label of the office. It is the operative provision, and it is more important in practice than the lists in sections 9 and 14.

	Judicial Magistrate	Executive Magistrate
Appointed by	The High Court	The State Government
Subordinate to	The Chief Judicial Magistrate and the Sessions Judge; ultimately the High Court	The Sub-divisional Magistrate and the District Magistrate; ultimately the State Government
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 that are administrative or executive in nature
Typical powers	Cognizance, remand under section 187, framing of charge, recording of evidence, conviction and sentence, recording of confessions under section 183	Security proceedings under Chapter IX, public order and nuisance under Chapter XI, urgent orders under section 163, disputes as to immovable property, dispersal of unlawful assemblies
Chapters in which each principally operates	Chapters XIII to XXXIV	Chapters IX, XI and XII
Constitutional basis of the division	Article 50: separation of the judiciary from the executive in the public services of the State	The same

The Sanhita retains one provision that softens the division. Section 24 permits the State Government to direct that any 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. The provision is to be read narrowly, because the allocation in section 3(2) is the statutory expression of a constitutional directive.

4. Which Court May Try Which Offence

Section 21 provides that, subject to the other provisions of the Sanhita, any offence under the Bharatiya Nyaya Sanhita may be tried by the High Court, by the Court of Session, or by any other court by which the offence is shown in the First Schedule to be triable, and that an offence under any other law is tried by the court mentioned in that law or, if no court is mentioned, by the High Court or any court shown in the First Schedule.

The allocation is therefore made by the First Schedule and not by Chapter II. Column 6 of Part I states, for each offence under the Bharatiya Nyaya Sanhita, whether it is triable by the Court of Session, by a Magistrate of the first class, or by any Magistrate. Where the Schedule assigns the offence to the Court of Session, the case must be committed under section 232, because a Court of Session cannot take cognizance as a court of original jurisdiction except as the Sanhita expressly provides.

📖 Central Bureau of Investigation v. State of Rajasthan, (2001) 3 SCC 333

Facts: A Magistrate of the second class directed the police to investigate a case, purporting to act under the provision that empowers a Magistrate to order investigation. The question was whether a Magistrate of the second class, who is not empowered to take cognizance of offences under section 190 of the Code of Criminal Procedure, can direct an investigation under section 156(3).

Held: The Supreme Court held that the power to order investigation under section 156(3) is available only to a Magistrate empowered to take cognizance under section 190. A Magistrate of the second class, not being so empowered unless specially empowered, cannot direct an investigation, and an order made by him in purported exercise of that power is without jurisdiction. The Court emphasised that the powers conferred by the Code are conferred on defined classes of Magistrate and cannot be exercised by a Magistrate outside that class merely because he is a Magistrate.

Ratio: A power conferred on a defined class of court is exercisable only by that class. The hierarchy in Chapter II is not descriptive; it determines who may exercise which power.

📖 Dharam Pal v. State of Haryana, (2014) 3 SCC 306 (Constitution Bench)

Facts: On a police report the Magistrate committed the case to the Court of Session in respect of some of the persons named, the police having found no case against others. The question was whether the Court of Session, on such a commitment, could summon the persons against whom the police had not sent up a charge, and whether it had to wait until the stage at which the power to proceed against other persons appearing to be guilty becomes exercisable.

Held: The Constitution Bench held that once a case is committed to it, the Court of Session becomes a court of original jurisdiction in respect of the whole case and may take cognizance of the offence and summon persons arrayed as accused in the first information report but not sent up by the police, without waiting for the stage at which evidence has been recorded. The power flows from the position of the Court of Session as the court of original trial after committal, and not from the power to add an accused during the trial.

Ratio: Committal transfers the case, and not merely the persons the police chose to send up. The Court of Session on committal exercises an original jurisdiction over the case as a whole.

5. Sentencing Powers

Figure 2: What sentence each court may pass, and the two limits that apply to all

Court	Provision	Sentence
High Court	Section 22(1)	Any sentence authorised by law
Sessions Judge or Additional Sessions Judge	Section 22(2)	Any sentence authorised by law; a sentence of death is subject to confirmation by the High Court under Chapter XXX
Chief Judicial Magistrate	Section 23(1)	Any sentence authorised by law except death, imprisonment for life, or imprisonment exceeding seven years
Judicial Magistrate of the first class	Section 23(2)	Imprisonment up to three years, or fine up to fifty thousand rupees, or both, or community service
Judicial Magistrate of the second class	Section 23(3)	Imprisonment up to one year, or fine up to ten thousand rupees, or both, or community service

Two limits apply to every court. Section 24 provides that imprisonment in default of payment of a fine must not exceed one fourth of the term the Magistrate is competent to impose as a substantive sentence, and is in addition to any substantive sentence. Section 25 provides that on conviction of several offences at one trial the aggregate must not exceed twice the punishment the court may inflict for a single offence, and a proviso adds that in no case shall a person be sentenced to imprisonment for a longer period than twenty years. That cap is new to the Sanhita.

The fine ceilings for Magistrates were also raised by the Sanhita, from ten thousand to fifty thousand rupees for a Magistrate of the first class and from five thousand to ten thousand for a Magistrate of the second class, and community service was added to the sentences each may award. The Explanation to section 23 defines community service as work which the court may order a convict to perform for the benefit of the community, for which he is not entitled to any remuneration.

6. Conferment and Withdrawal of Powers

Sections 26 to 29 deal with the machinery by which powers are conferred on, and withdrawn from, particular officers.

Section 26. The High Court or the State Government, as the case may be, may confer powers on persons by name or by virtue of their office, or on classes of officials by their official titles.
Section 27. Every such conferment takes effect from the date on which the order is communicated.
Section 28. The authority that conferred a power may withdraw it, and the High Court or the Sessions Judge may withdraw powers conferred by them on any officer subordinate to them.
Section 29. Where a person exercising powers ceases to hold the office, his successor-in-office exercises the same powers, subject to the resolution of doubt by the High Court or the State Government.

These provisions matter because the classification of an irregularity in Chapter XXXVII turns on whether the officer was empowered. 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, while section 506 excuses certain acts done erroneously and in good faith by an officer not empowered. The question in each case is what the order under section 26 conferred.

7. 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 Sanhita abolished the metropolitan area and the Metropolitan Magistrate, the Assistant Sessions Judge and the Judicial Magistrate of the third class.

3. The presiding officers of the judicial courts are appointed by the High Court; Executive Magistrates are appointed by the State Government. The two chains of subordination are kept separate by sections 13 and 17.

4. Section 3(2) allocates functions by their nature: judicial functions involving the appreciation of evidence or exposure to punishment or detention go to a Judicial Magistrate; administrative and executive functions go to an Executive Magistrate. The division gives effect to Article 50.

5. Section 21, read with column 6 of Part I of the First Schedule, decides which court may try an offence. Where the Schedule assigns it to the Court of Session, the case must be committed under section 232.

6. A power conferred on a defined class of Magistrate is exercisable only by that class; a Magistrate of the second class not empowered under section 210 cannot order investigation: CBI v. State of Rajasthan.

7. On committal the Court of Session becomes the court of original jurisdiction over the whole case and may summon persons not sent up by the police: Dharam Pal.

8. Sentencing: the High Court and the Court of Session may pass any sentence authorised by law, a death sentence being subject to confirmation; the Chief Judicial Magistrate up to seven years; a Magistrate of the first class up to three years or fifty thousand rupees; of the second class up to one year or ten thousand rupees, each with the option of community service.

9. Section 24 caps default imprisonment at one fourth of the competent term, and section 25 caps consecutive sentences at twice the single-offence power and in no case beyond twenty years.

8. Frequently Asked Questions

What are the classes of criminal courts under the BNSS?

Under section 6, 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 other law.

Has the Metropolitan Magistrate been abolished?

Yes. The concept of a metropolitan area and the office of Metropolitan Magistrate have been removed, along with the Assistant Sessions Judge and the Judicial Magistrate of the third class. A Judicial Magistrate of the first or second class now carries the same designation throughout India.

Who appoints a Judicial Magistrate and who appoints an Executive Magistrate?

The High Court appoints Judicial Magistrates under section 9 and the Chief Judicial Magistrate under section 10. The State Government appoints Executive Magistrates and the District Magistrate under section 14. The difference of appointing authority is what gives effect to Article 50.

What is the maximum sentence a Judicial Magistrate of the first class can pass?

Imprisonment up to three years, or a fine up to fifty thousand rupees, or both, or community service, under section 23(2). The fine ceiling was raised from ten thousand rupees under the CrPC.

Can a Court of Session take cognizance directly?

Not as a court of original jurisdiction, save where the Sanhita expressly provides. An offence triable exclusively by the Court of Session must be committed to it under section 232. Once committed, the Court of Session exercises original jurisdiction over the whole case, as the Constitution Bench held in Dharam Pal.

Can a Magistrate of the second class order an investigation?

Not unless specially empowered. The power to order investigation belongs to a Magistrate empowered to take cognizance under section 210, and an order by a Magistrate outside that class is without jurisdiction: CBI v. State of Rajasthan.

Related Topics

Trial of Offences under the BNS and Other Laws: Sections 4 and 5
The Public Prosecutor: Appointment, Role and Duties
Classification of Offences under the First Schedule
Separation of the Judiciary from the Executive: Judicial and Executive Magistrates
Powers of Courts: Sections 21 to 29, BNSS
Summons Case and Warrant Case under the BNSS, 2023