Sections 3–11 and 194 CrPC vs Sections 3–9 and 214 BNSS — Classes and Constitution of Criminal Courts

In India, Sections 3 to 9 and 214 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) replaced Sections 3 to 11 and 194 of the Code of Criminal Procedure, 1973 (CrPC) from 1 July 2024. The BNSS abolishes Metropolitan Magistrates, metropolitan areas and Assistant Sessions Judges; Courts of Session and Judicial Magistrates otherwise continue.

At a glance

Sections 12 to 15 CrPC (Chief Judicial Magistrate, Special Judicial Magistrates, local jurisdiction and subordination of Judicial Magistrates) continue as Sections 10 to 13 BNSS and are outside this page. Sections 16 to 19 CrPC, on Metropolitan Magistrates, have no BNSS counterpart. Executive Magistrates are covered in Sections 20–23 CrPC vs Sections 14–17 BNSS.

What changed

Metropolitan Magistrates and metropolitan areas removed

• Omitted — Section 8 CrPC (metropolitan areas): the power to declare "any area in the State comprising a city or town whose population exceeds one million" a metropolitan area, and the deemed metropolitan status of "the Presidency-towns of Bombay, Calcutta and Madras and the city of Ahmedabad", have no BNSS counterpart.
• Modified — Section 6 (classes of Criminal Courts): "(ii) Judicial Magistrates of the first class and, in any metropolitan area, Metropolitan Magistrates;" becomes "(ii) Judicial Magistrates of the first class;". "other than this Code" → "other than this Sanhita".
• Modified — Section 7 (territorial divisions): the proviso "Provided that every metropolitan area shall, for the said purposes, be a separate sessions division and district" is omitted; "Code" → "Sanhita". Sub-sections (2) to (4) are unchanged.
• Modified — Section 9 BNSS (CrPC 11, Courts of Judicial Magistrates): "In every district (not being a metropolitan area) there shall be established" becomes "In every district there shall be established". The proviso on Special Courts of Judicial Magistrates, added to Section 11(1) CrPC by Act 45 of 1978 with effect from 18 December 1978, is now part of the enacted text. Sub-sections (2) and (3) are unchanged.
• A whitespace-normalised search of the BNSS Gazette text finds no occurrence of "metropolitan" or "Presidency".

Assistant Sessions Judges removed

• Modified — Section 8(3) BNSS (CrPC 9(3)): "Additional Sessions Judges and Assistant Session Judges" becomes "Additional Sessions Judges".
• Modified — Section 8(5): urgent applications during a vacancy go to "an Additional Sessions Judge or if there be no Additional Sessions Judge, by a Chief Judicial Magistrate" — the CrPC read "an Additional or Assistant Sessions Judge".
• Omitted — Section 10(1) CrPC: "All Assistant Sessions Judges shall be subordinate to the Sessions Judge in whose Court they exercise jurisdiction."
• Modified — Section 8(7) and (8) BNSS (CrPC 10(2) and (3)): the Sessions Judge "may, from time to time, make orders consistent with this Sanhita, as to the distribution of business among such Additional Sessions Judges" (CrPC: "make rules ... among such Assistant Sessions Judges"). Sub-section (8) carries the urgent-application rule, again without Assistant Sessions Judges, and reads "and such Judge or Magistrate" for "and every such Judge or Magistrate".
• Narrowed — Section 214 BNSS (CrPC 194): "An Additional Sessions Judge shall try such cases as the Sessions Judge of the division may, by general or special order, make over to him for trial or as the High Court may, by special order, direct him to try". Section 194 CrPC covered an Additional "or Assistant Sessions Judge"; the heading drops "and Assistant". The rest is word for word.
• Related, outside this page: Section 28(3) CrPC let an Assistant Sessions Judge pass any sentence except death, life imprisonment or imprisonment exceeding ten years; Section 22 BNSS has only sub-sections (1) and (2), for the High Court and the Sessions or Additional Sessions Judge.

Construction of references rewritten

• Modified — Section 3(1) BNSS (CrPC 3(1)–(3)): the CrPC's three sub-sections construed references in the Code to Magistrates differently inside and outside a metropolitan area, and references in pre-1974 enactments to first-, second- and third-class Magistrates and Presidency Magistrates. Section 3(1) BNSS replaces them with one rule: "any reference in any law, to a Magistrate without any qualifying words, Magistrate of the first class or a Magistrate of the second class shall, in relation to any area, be construed as a reference to a Judicial Magistrate of the first class or Judicial Magistrate of the second class, as the case may be, exercising jurisdiction in such area."
• Minor edit — Section 3(2) BNSS (CrPC 3(4)): "the function exercisable" → "the functions exercisable"; "subject as aforesaid" → "subject to the provisions of clause (a)"; "this Code" → "this Sanhita"; and "appreciation or sifting of evidence" → "appreciation or shifting of evidence" (the Gazette text and the official BNSS text both read "shifting").

Drafting changes

• Minor edit — Section 4: "Indian Penal Code (45 of 1860)" → "Bharatiya Nyaya Sanhita, 2023", in the heading and sub-section (1). The India Code print of Section 4(2) CrPC reads "the manner of place"; Section 4(2) BNSS reads "the manner or place".
• Minor edit — Section 5: "this Code" → "this Sanhita"; otherwise word for word.
• Minor edit — Section 8(1), (2), (4), (6) and Explanation (CrPC 9): unchanged apart from a comma in (4) ("in such case, he may sit"), "Code" → "Sanhita" and "by Government" → "by the Government" in the Explanation.

Statutory text (relevant extract)

Extract, Section 6 CrPC (repealed from 1 July 2024):

(i) Courts of Session; (ii) Judicial Magistrates of the first class and, in any metropolitan area, Metropolitan Magistrates; (iii) Judicial Magistrates of the second class; and (iv) Executive Magistrates.

Extract, Section 6 BNSS:

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.

Extract, Section 8(3) and (7) BNSS:

(3) The High Court may also appoint Additional Sessions Judges to exercise jurisdiction in a Court of Session.

(7) The Sessions Judge may, from time to time, make orders consistent with this Sanhita, as to the distribution of business among such Additional Sessions Judges.

How it works — the structure of the criminal courts

1. Territory (Section 7 BNSS): every State is a sessions division or consists of sessions divisions; each sessions division is a district or consists of districts. The State Government may, after consultation with the High Court, alter divisions and districts and divide a district into sub-divisions (Section 7(2)–(3)). Divisions existing at commencement are deemed formed under the section (Section 7(4)).
2. Court of Session (Section 8 BNSS): the State Government establishes a Court of Session for every sessions division (Section 8(1)); the High Court appoints its Judge (Section 8(2)) and may appoint Additional Sessions Judges (Section 8(3)). The Explanation says "appointment" does not include a first appointment, posting or promotion that another law requires the Government to make.
3. Place of sitting (Section 8(6)): the Court of Session "shall ordinarily hold its sitting at such place or places as the High Court may, by notification, specify"; in a particular case, it may sit elsewhere in the division "with the consent of the prosecution and the accused" if that will "tend to the general convenience of the parties and witnesses".
4. Allocation of cases (Sections 8(7) and 214): the Sessions Judge distributes business among Additional Sessions Judges by orders, and an Additional Sessions Judge tries the cases made over to him by the Sessions Judge or directed by special order of the High Court.
5. Judicial Magistrates (Section 9): the State Government, after consultation with the High Court, establishes Courts of Judicial Magistrates of the first and second class by notification (Section 9(1)); it may establish Special Courts for a particular case or class of cases, and where it does, no other Magistrate's court in the local area has jurisdiction over those cases (proviso). The High Court appoints the presiding officers (Section 9(2)) and may confer Judicial Magistrate powers on a civil judge (Section 9(3)).
6. References in other laws (Section 3): a reference to a Magistrate in any law is read as a Judicial Magistrate (Section 3(1)); a function under another law that is judicial in character goes to a Judicial Magistrate, and one that is "administrative or executive in nature, such as, the granting of a licence ... sanctioning a prosecution or withdrawing from a prosecution" goes to an Executive Magistrate (Section 3(2)).
7. Other laws and special procedure (Sections 4 and 5): BNS offences are dealt with under the BNSS; offences under other laws follow the BNSS "subject to any enactment for the time being in force regulating the manner or place" of dealing with them, and Section 5 saves special or local laws and special procedure "in the absence of a specific provision to the contrary".

What this means in practice

For advocates and litigants in the former metropolitan cities

• Cases that a Metropolitan Magistrate would have tried under the CrPC now go to Judicial Magistrates, on a reading of Sections 6 and 9 BNSS, because no Metropolitan Magistrate class exists. The CrPC rule in Section 3(1)(c)(i) and (d) that a reference to a first-class Magistrate or Chief Judicial Magistrate in a metropolitan area meant a Metropolitan Magistrate or Chief Metropolitan Magistrate has no BNSS equivalent.
• Section 531(2)(b) BNSS deems "notifications published, proclamations issued, powers conferred ... local jurisdictions defined, sentences passed and orders, rules and appointments, not being appointments as Special Magistrates", made under the CrPC and in force at commencement, to have been made under the corresponding BNSS provisions. What that saving means for courts constituted as Metropolitan Magistrates' courts, which have no corresponding BNSS provision, is not stated in the text; check the State's and High Court's notifications.

For the defence

• An objection that a case was tried by the "wrong" Additional Sessions Judge within the same division is tested against the allocation orders under Sections 8(7) and 214 BNSS, and — on the approach in Kuppuswamy Gownder below — against whether any failure of justice resulted.
• A notification fixing a special place of sitting for a Court of Session is an exercise of the High Court's power under Section 8(6); in Md. Shahabuddin below, Sharma J. described the corresponding CrPC power of the High Court as "an administrative power" (para 25).

For the prosecution and court administration

• Distribution of Sessions business is now by "orders" of the Sessions Judge (Section 8(7)), not "rules" (Section 10(2) CrPC).

Judgments that still matter

State of Karnataka v. Kuppuswamy Gownder, [1987] 2 S.C.R. 295 — 16 February 1987. G.L. Oza and M.M. Dutt JJ. (judgment delivered by Oza J.) heard the State's appeal against a High Court judgment that had quashed convictions under Sections 302 and 332 IPC and ordered a retrial because the case, after charges were framed by one Additional Sessions Judge, was tried by another without a transfer order. The Court read Section 194 CrPC as authorising an Additional or Assistant Sessions Judge to try a Sessions case "when such a case is allotted to him either by a special or general order or a case which has been allotted to him by the High Court" (p. 301). It held that where there is no inherent lack of jurisdiction, a sentence passed by a competent court cannot be set aside on such a procedural irregularity unless prejudice amounting to a failure of justice is pleaded and proved (Sections 462 and 465 CrPC) (pp. 303–304). The High Court's judgment and its remand direction were set aside and the appeals remitted to the High Court for decision on merits. The report prints no paragraph numbers. The allocation words the Court construed are repeated in Section 214 BNSS, without the Assistant Sessions Judge.

Md. Shahabuddin v. State of Bihar & Ors., [2010] 3 S.C.R. 911 (2010 INSC 171) — 25 March 2010. Dalveer Bhandari J. and Dr. Mukundakam Sharma J. (concurring, in a separate judgment) upheld a Patna High Court notification under Section 9(6) CrPC making a district jail the place of sitting of the Court of Session for cases pending against the appellant, and a State notification under Section 11 CrPC establishing a Court of Judicial Magistrate, First Class inside the jail. Bhandari J. held that there was "no statutory right for the appellant to be heard" before the High Court fixed the venue (para 105), and that the High Court may change the venue of a pending trial in extraordinary circumstances without hearing the accused (para 153). Sharma J. read Section 9(6) in two parts — the High Court's power to fix the ordinary place of sitting, and the Court of Session's exceptional power in a particular case, which requires a hearing and the consent of the parties (para 14) — and held the notification fell under the first part (para 15). On Section 11, he said the State Government, after consultation with the High Court, may establish a Court of Judicial Magistrate for a particular case or class of cases (para 27). The appeal was dismissed (Bhandari J., para 155; Sharma J., para 61). Sections 8(6) and 9(1) BNSS repeat the words construed.

On a reading of the text, because Sections 8(6), 9(1) and 214 BNSS repeat the operative words of Sections 9(6), 11(1) and 194 CrPC (save for the omitted references to Assistant Sessions Judges and metropolitan areas), the reasoning of these judgments remains relevant to the BNSS.

Which law applies to your case

Under Section 531(2)(a) BNSS, any appeal, application, trial, inquiry or investigation pending immediately before 1 July 2024 is "disposed of, continued, held or made" under the CrPC "as if this Sanhita had not come into force". Section 531(2)(b) carries over existing notifications, local jurisdictions and appointments (other than as Special Magistrates) to the corresponding BNSS provisions. Whether a pending case before a court constituted only under the CrPC continues there is, on a reading of Section 531(2)(a), a matter for the CrPC; the text does not address it expressly. See which law applies to an offence before 1 July 2024.

Frequently asked questions

What are the classes of Criminal Courts under the BNSS? Section 6 of the Bharatiya Nagarik Suraksha Sanhita, 2023 lists, besides the High Courts and Courts constituted under other laws, four classes: Courts of Session, Judicial Magistrates of the first class, Judicial Magistrates of the second class, and Executive Magistrates. Section 6 CrPC also listed Metropolitan Magistrates in metropolitan areas; the BNSS drops them.

Are there Metropolitan Magistrates under the BNSS? No provision of the BNSS creates Metropolitan Magistrates or metropolitan areas. Section 8 CrPC (metropolitan areas) has no counterpart, the metropolitan proviso to Section 7(1) CrPC is omitted, and the word metropolitan does not appear in the BNSS Gazette text. Section 9 BNSS provides for Courts of Judicial Magistrates in every district, without the CrPC exclusion of metropolitan areas.

Are there Assistant Sessions Judges under the BNSS? No. Section 8(3) BNSS lets the High Court appoint Additional Sessions Judges only; Section 9(3) CrPC also allowed Assistant Sessions Judges. Section 10(1) CrPC, which made Assistant Sessions Judges subordinate to the Sessions Judge, has no counterpart, and Section 214 BNSS refers only to an Additional Sessions Judge.

Who decides where a Court of Session sits? Under Section 8(6) BNSS, which repeats Section 9(6) CrPC, the Court of Session ordinarily sits at the place or places the High Court specifies by notification. In a particular case, the Court of Session may sit elsewhere in the sessions division for the general convenience of the parties and witnesses, with the consent of the prosecution and the accused.

What does Section 3 BNSS say about references to a Magistrate? Section 3(1) BNSS construes any reference in any law to a Magistrate without qualifying words, a Magistrate of the first class or a Magistrate of the second class as a reference to a Judicial Magistrate of the first or second class, as the case may be, exercising jurisdiction in the area. Section 3(2) keeps the CrPC rule that judicial functions under other laws go to Judicial Magistrates and executive functions to Executive Magistrates.

What is the BNSS equivalent of Section 194 CrPC? Section 214 BNSS. An Additional Sessions Judge tries the cases the Sessions Judge of the division makes over to him by general or special order, or that the High Court by special order directs him to try. The reference to an Assistant Sessions Judge in Section 194 CrPC is omitted.

Do existing court notifications survive the change to the BNSS? Section 531(2)(b) BNSS deems notifications published, powers conferred, local jurisdictions defined and appointments made under the CrPC, and in force immediately before the BNSS commenced, to have been made under the corresponding BNSS provisions. Appointments as Special Magistrates are excluded from that saving.

Related

• Section 2 CrPC vs Section 2 BNSS — Definitions
• Sections 20–23 CrPC vs Sections 14–17 BNSS — Executive Magistrates
• When can a case be tried summarily? BNSS 283 vs CrPC 260
• Section 482 CrPC — inherent powers of the High Court
• Offence before 1 July 2024 — which law applies
• CrPC to BNSS master comparison table
• Section 484 CrPC vs Section 531 BNSS — Repeal and Savings

Sources

• Bharatiya Nagarik Suraksha Sanhita, 2023 (Gazette text): Sections 3 to 9, 10(1)–(2), 22, 214 and 531(2)(a)–(b).
• Code of Criminal Procedure, 1973 (India Code text): Sections 3 to 11 with amendment footnotes and State amendment notes, Sections 12, 13, 28 and 194, and the arrangement of sections for Sections 9 to 25A.
• Judgments read in full text: State of Karnataka v. Kuppuswamy Gownder (1987_2_295_304_EN.md); Md. Shahabuddin v. State of Bihar (2010_3_911_1029_EN.md).

This page explains the statutory text and the judgments cited as they stand. It is not legal advice; for a specific case, consult an advocate.