Constitution and Sittings of Criminal Courts

Every criminal trial rests on two unglamorous but jurisdictional foundations: the court must be one of the classes recognised by law, and it must be sitting at the time and place the law prescribes. The Criminal Rules of Practice translate the skeletal hierarchy of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) - formerly the Code of Criminal Procedure, 1973 - into the daily working life of a court: when it opens, where it holds its sittings, what happens in vacation, and how the dignity of open justice is preserved. This chapter maps the constitution of criminal courts, their sentencing competence, and the practice rules governing their sittings, with the leading authorities that give those rules teeth.

Why Constitution and Sittings Are Jurisdictional, Not Administrative

It is tempting to treat "constitution of courts" and "hours of sitting" as housekeeping. They are not. A court that is not constituted as the law requires has no authority to convict, and an order recorded by a judge who has demitted office or stepped outside his territorial competence is a nullity. The hierarchy of criminal courts is therefore the first thing an examiner tests, because every later step - filing of complaints, FIRs and charge-sheets, framing of charge, recording of evidence - presupposes a validly constituted forum.

The Constitution and Sittings rules sit at the head of the Criminal Rules of Practice precisely because they answer the threshold question every magistrate confronts each morning: am I competent, and am I in session? The Supreme Court in A.R. Antulay v. R.S. Nayak (AIR 1988 SC 1531) reminded us that jurisdiction is conferred by statute alone; even the highest court cannot create or enlarge it by direction. That principle radiates downward into the humblest Judicial Magistrate's court. For an orientation to the subject as a whole, see the introduction to the Criminal Rules of Practice and the subject hub.

Classes of Criminal Courts Under Section 6 BNSS

Section 6 of the BNSS, 2023 declares that, besides the High Courts and courts constituted under any other law, there shall be in every State the following classes of Criminal Courts: (i) Courts of Session; (ii) Judicial Magistrates of the first class; (iii) Judicial Magistrates of the second class; and (iv) Executive Magistrates. This is the master list. Notably, the BNSS has dropped two categories that existed under the 1973 Code - the Assistant Sessions Judge and the separate Metropolitan Magistrate regime - so that the metropolitan distinction no longer survives and every magistrate in a district is a Judicial Magistrate of the first or second class.

The arrangement is a pyramid. At the apex of the trial structure stands the Court of Session for the division; below it sit the Chief Judicial Magistrate and Judicial Magistrates of the first and second class within each district; and parallel to the judicial stream runs the executive stream of Executive Magistrates, who exercise preventive and administrative, not trial, functions. The High Court supervises the whole edifice under Article 227 of the Constitution.

The continuity provisions of the BNSS deserve emphasis. Courts existing immediately before the commencement of the Sanhita are deemed to have been constituted under it, and the officers presiding over them continue to hold their offices. This saving prevents a jurisdictional vacuum on the day a new procedural code comes into force - a recurring drafting concern whenever the criminal procedure statute is replaced. For the candidate, the takeaway is that the four-class scheme of Section 6 is exhaustive of the ordinary criminal courts: any forum not falling within it must trace its existence to a special statute, and its competence is then read strictly within the four corners of that statute rather than the general code.

Territorial Divisions: Sessions Divisions and Districts

Section 7 BNSS supplies the geography on which the hierarchy is laid. Every State is a sessions division or consists of sessions divisions; and every sessions division is, for the purposes of the Sanhita, a district or consists of districts. The State Government, after consultation with the High Court, may alter the limits or number of divisions and districts, and may divide a district into sub-divisions. Existing divisions, districts and sub-divisions are deemed to have been formed under the BNSS, preserving continuity.

This matters for sittings because a Sessions Judge is appointed for a division and a Judicial Magistrate exercises jurisdiction within a district or sub-division. Step outside that territorial box and the court is no longer competent - a point the Criminal Rules of Practice reinforce by requiring that judicial work be done within the court-house of the place to which the judge is posted.

The Court of Session: Constitution and Place of Sitting

Under Section 8 BNSS, the High Court establishes a Court of Session for every sessions division and appoints a Judge to preside over it. The High Court may also appoint Additional Sessions Judges to exercise jurisdiction in the Court of Session. Crucially for our topic, Section 8 provides that the Court of Session shall ordinarily hold its sitting at such place or places as the High Court may, by notification, specify. But the section builds in flexibility: if in a particular case the Court of Session is of opinion that it will tend to the general convenience of the parties and witnesses to sit elsewhere in the division, it may - with the consent of the prosecution and the accused - sit at that other place for disposal of the case or examination of witnesses.

The Criminal Rules of Practice complement this by directing that Sessions work should usually be given preference over civil work and should never be unnecessarily interrupted, while leaving the Sessions Judge to arrange urgent civil and criminal work as is most convenient. Cases committed to the Court of Session are filed and numbered on the date of receipt of the committal intimation, and continue to bear the same number even when transferred for trial to an Additional Sessions Judge.

Judicial Magistrates and the Chief Judicial Magistrate

Section 9 BNSS requires the High Court, after consultation with the State Government, to establish as many Courts of Judicial Magistrates of the first class and of the second class in every district as may be specified, the presiding officers being appointed by the High Court. Section 10 directs the High Court to appoint, in every district, a Judicial Magistrate of the first class to be the Chief Judicial Magistrate (and to appoint Additional Chief Judicial Magistrates). Section 11 empowers the High Court to confer the powers of a Judicial Magistrate on a person holding an office under Government as a Special Judicial Magistrate for a term.

Subordination is fixed by Section 13: the Chief Judicial Magistrate is subordinate to the Sessions Judge, and every other Judicial Magistrate is, subject to the general control of the Sessions Judge, subordinate to the Chief Judicial Magistrate. This chain of subordination is what allows the CJM to distribute business and the Sessions Judge to supervise the district's magistracy - the administrative backbone behind the constitution of these courts. The summons and warrant machinery these courts deploy is treated separately in issuance of summons and warrants.

Sentencing Competence: What Each Court May Impose

Constitution is meaningless without competence, and the BNSS calibrates the sentencing power of each rung. Under Section 22, the High Court may pass any sentence authorised by law; a Sessions Judge or Additional Sessions Judge may also pass any such sentence, but any sentence of death passed by them is subject to confirmation by the High Court. Under Section 23, a Chief Judicial Magistrate may pass any sentence except death, imprisonment for life, or imprisonment exceeding seven years; a Judicial Magistrate of the first class may award imprisonment up to three years or fine up to fifty thousand rupees (or both, or community service); and a Judicial Magistrate of the second class may award imprisonment up to one year or fine up to ten thousand rupees (or both, or community service).

Section 24 limits imprisonment in default of fine to the magistrate's competence and to not more than one-fourth of the substantive term where imprisonment is also part of the sentence. The death-sentence confirmation requirement, read with the obligation in Bachan Singh v. State of Punjab (AIR 1980 SC 898) to record "special reasons" and reserve capital punishment for the "rarest of rare" cases, illustrates how the constitution of the Sessions Court is deliberately incomplete without High Court oversight in the gravest matters.

Special Courts and the Limits of Conferred Jurisdiction

Beyond the BNSS classes, Parliament and State legislatures constitute special criminal courts under special statutes - Special Judges under the Prevention of Corruption Act, designated courts under the NDPS Act, POCSO Special Courts, and so on. These too are "criminal courts," but their constitution and the offences they may try are strictly defined by their parent statute, and they cannot stray beyond it.

Two authorities anchor this. In State of West Bengal v. Anwar Ali Sarkar (AIR 1952 SC 75), the Supreme Court struck down the West Bengal Special Courts Act, 1950 because it allowed the executive to pick which cases went to special courts with no intelligible classification, violating Article 14 - a warning that constituting special courts must rest on a reasonable, statute-guided basis. In A.R. Antulay v. R.S. Nayak (AIR 1988 SC 1531), the Court held that a corruption case triable only by a Special Judge under the Criminal Law (Amendment) Act, 1952 could not be transferred to the High Court even by the Supreme Court's own direction, because jurisdiction is created by statute, not by judicial fiat. Constitution of a court, in short, is a question of legislative competence, not convenience.

The practical lesson for trial practice is that a special court must satisfy itself, at the threshold, that the offence before it falls within the schedule or class of cases its parent statute assigns to it; if it does not, the proper course is to return the matter to the ordinary criminal court constituted under the BNSS rather than to assume a jurisdiction it does not possess. Conversely, an ordinary Sessions Court or Magistrate cannot try an offence that a special statute has carved out for exclusive trial by a designated forum. The constitution of courts and the allocation of jurisdiction thus work as a closed system in which each forum keeps to its assigned lane.

Hours of Sitting Under the Criminal Rules of Practice

The Criminal Rules of Practice fix the working rhythm of the courts. The rule on Hours of Sitting provides that courts shall ordinarily sit from 10.30 A.M. to 5.00 P.M. Sessions Judges and Magistrates shall ordinarily commence their sitting not later than 10.30 A.M. each day and, unless the day's work is disposed of earlier, shall not rise before 5.00 P.M., except for lunch between 2.00 P.M. and 2.30 P.M. The discipline is deliberate: punctuality and a full court-day are treated as part of the judicial duty, not as a matter of personal convenience.

Different timings apply to Special Judicial Magistrates, who hold court for three days a week on alternate working days commencing from Monday, sitting between 7.30 A.M. and 10.30 A.M.; Special Judicial Railway Magistrates may sit at any time between 7.30 A.M. and 10.00 P.M. after advance intimation to the Chief Judicial Magistrate. These staggered hours accommodate part-time and specialised magistracies without disturbing the regular court timetable.

It is worth appreciating why the Rules bother to fix hours at all. Sitting hours convert the abstract competence of a court into a predictable service to the public. A litigant, an advocate, a witness under summons, and a person in custody awaiting remand all need to know when the court will actually be open. The rule that a judge shall not rise before 5.00 P.M. unless the day's work is done is, in effect, a rule against the premature adjournment of justice; the rule fixing a single half-hour lunch recess prevents the day from fragmenting. Read with the open-court principle, the hours-of-sitting rule ensures that the court is not only lawfully constituted but reliably available.

Where Judicial Work Must Be Done: Court-Houses and Camp Sittings

The Rules insist that judicial work, so far as it relates to inquiries and trials, shall be done in the Court Houses. This is the spatial counterpart to the hierarchy: a validly constituted court must also sit in its proper place. There are, however, calibrated exceptions. Magistrates appointed to Mobile Courts may hold their sittings at any place within their territorial jurisdiction. Cases relating to juvenile offenders and women may be tried in camera. And urgent bail applications presented out of court hours may be disposed of at the residence of the Magistrate - but in non-bailable offences, no order may be passed without notice to the prosecution.

At the Sessions level, the camp-sitting power of Section 8 BNSS - sitting outside the notified headquarters with the consent of both sides for the convenience of parties and witnesses - is the higher-court analogue of the mobile-court rule. In every case the principle is the same: the location of sitting is regulated, not left to discretion, so that litigants always know where justice will be dispensed.

The insistence on the court-house is not mere formalism. A trial conducted at a fixed, public, identifiable place is a guarantee of transparency: witnesses know where to depose, the accused knows where to surrender, and the public can attend. The narrow exceptions - mobile courts, in-camera trials of vulnerable persons, and out-of-hours bail at a magistrate's residence - are each tied to a concrete justification (reach, protection, and liberty respectively), and each carries its own safeguard. The bail exception, in particular, preserves the prosecution's right to be heard before any non-bailable matter is decided, ensuring that even an emergency sitting at a private residence does not become a one-sided proceeding.

Open Court: The Default Setting of Every Sitting

A criminal court's sitting is, by default, a public sitting. Section 308 BNSS (corresponding to Section 327 of the 1973 Code) deems the place in which any criminal court is held for inquiring into or trying an offence to be an open court, to which the public generally may have access so far as it can conveniently contain them. The presiding judge may, for special reasons, order that any particular person or the public generally shall not have access, and in-camera trial is mandatory for offences such as rape and certain sexual offences.

The constitutional importance of open sittings was affirmed in Naresh Shridhar Mirajkar v. State of Maharashtra (AIR 1967 SC 1), where the Supreme Court held that while open trial is the norm and a vital safeguard, the court retains an inherent power to hold proceedings in camera where the administration of justice genuinely requires it. The principle was carried into the modern era in Swapnil Tripathi v. Supreme Court of India (2018), where the Court treated live-streaming as a natural extension of the open-court rule, rooting public access in Articles 19(1)(a) and 21. Open court is thus not a courtesy but a constitutional attribute of how a criminal court sits.

Sittings During Vacation and Recess

Courts do not sit every day of the year, and the Rules address the gap. The High Court declares holidays, and the Rules direct that no case shall be tried or heard and no judicial work formally announced or done on declared holidays, except in exceptional circumstances and with the consent of both parties. This preserves the integrity of the calendar while leaving room for genuine urgency.

For the Sessions Court, the Rules on jurisdiction during vacation provide that a Sessions Judge shall decline to hear any application made to him during the recess if he is absent from his division, and shall refer the applicant to the High Court. The logic is territorial: a judge cannot exercise the powers of his court while physically and functionally outside its division. Vacation and recess arrangements - duty magistrates, holiday courts, and remand work - exist precisely so that liberty-related matters are never left without a sitting court, even when the regular calendar is closed.

Receipt of Complaints, Seals and the Dignity of the Sitting

The constitution of a court also dictates how it receives business and authenticates its acts. The Rules require that complaints of offences, whether oral or in writing, be received on all working days at fixed hours by the Magistrate having jurisdiction, and that a written complaint be accompanied by as many copies as there are accused. Fixed receiving hours are part of the same discipline as fixed sitting hours - the citizen must know when the court is open to take cognizance. The downstream mechanics are developed in filing of complaints, FIRs and charge-sheets.

The authenticity of a court's process flows from its seal. The Rules prescribe that the seal of every Court of Session be circular, two inches in diameter, bearing the State Emblem with the motto Satyameva Jayate and the designation of the court inscribed around it. Warrants must bear the sign manual of the judge or magistrate - facsimile stamps are forbidden - so that every coercive process issuing from a sitting court carries personal judicial authority. Decorum rules requiring persons to stand when addressing or addressed by the court round out the picture of a sitting that is orderly, public, and accountable.

How a Properly Constituted Sitting Feeds the Trial

The reason constitution and sittings come first is that everything downstream borrows their authority. A charge can only be framed by a court competent to try the offence; evidence can only be recorded by a judge lawfully in session; the accused can only be examined by a forum with jurisdiction over him. Defects at the constitution stage are not technicalities - they go to the root of the proceeding and can vitiate a conviction on appeal.

Once the court is correctly constituted and sitting, the machinery moves into charge framing, the recording of evidence, and the examination of the accused. Each of those stages assumes - and is only valid because of - a court that satisfies the constitution-and-sittings rules examined here. Master this foundation and the rest of the Criminal Rules of Practice fall into place.

For revision, hold three threads together. First, the constitution thread: Sections 6 to 13 BNSS build the pyramid of Sessions Courts, Chief Judicial Magistrates and first- and second-class Judicial Magistrates over the territorial map of Section 7, with the Assistant Sessions Judge and the metropolitan magistracy now gone. Second, the competence thread: Sections 22 to 24 calibrate sentencing, with High Court confirmation reserved for death sentences and the "rarest of rare" gloss of Bachan Singh. Third, the sittings thread from the Criminal Rules of Practice: fixed hours, work in the court-house, regulated camp and mobile sittings, open court as the default under Section 308 BNSS, in-camera exceptions, and the vacation rule that a Sessions Judge cannot act outside his division. Together they answer the examiner's favourite implicit question - by what authority, and in what manner, does this court act?