Sections 21 to 29 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) — corresponding to Sections 26 to 35 of the Code of Criminal Procedure, 1973 (CrPC) — fix two distinct things. First, they fix which Court tries which offence. Second, they fix what sentence each class of Court can pass. The two are kept conceptually apart in the Sanhita's drafting; jurisdiction to try is one limit, jurisdiction to punish is another. A Court may have full jurisdiction to try a particular offence and yet no power to impose the full statutory punishment for it; the matter is then governed by Section 27 BNSS (previously Section 325 CrPC), which allows the Magistrate to forward the case to the Chief Judicial Magistrate. The two limits, taken together, define the operating envelope within which every Indian criminal trial proceeds.
The BNSS preserves the architecture but tightens the numbers. The fine ceiling for a Judicial Magistrate of the First Class is raised from ten thousand rupees to fifty thousand. The fine ceiling for a Judicial Magistrate of the Second Class is raised from five thousand to ten thousand. The maximum aggregate sentence at one trial under Section 25(2)(a) BNSS (previously Section 31(2)(a) CrPC) is raised from fourteen years to twenty years. Most importantly, community service — a sentence that the 1973 Code did not recognise — is now a permissible punishment for petty offences, defined in the Explanation to Section 23 BNSS. This chapter sets out the architecture and walks through each provision. For the institutional set-up of the Courts, read this alongside the chapter on constitution of criminal courts and the broader CrPC and BNSS notes series.
Section 21 BNSS — courts by which offences are triable
Section 21 BNSS (previously Section 26 CrPC) is the trial-jurisdiction switch. Subject to the other provisions of the Sanhita, any offence under the Bharatiya Nyaya Sanhita, 2023 (BNS) — previously the Indian Penal Code, 1860 — may be tried by the High Court, by the Court of Session, or by any other Court by which such offence is shown in the First Schedule to be triable. Any offence under any other law shall, when a Court is mentioned in that law for the trial, be tried by that Court; when no Court is mentioned, the offence may be tried by the High Court or any other Court shown in the First Schedule to be triable.
Three points control the practical application of Section 21 BNSS. First, the High Court's power to try cases under its extraordinary criminal jurisdiction is preserved, even though its ordinary original jurisdiction was abolished by the 1973 Code; this is the basis on which a case withdrawn to the High Court under Section 446 BNSS (previously Section 407 CrPC) is tried by the High Court itself. Second, the Sessions Court's jurisdiction is general; it can try any BNS offence subject only to the requirement of commitment by a Magistrate under Section 232 BNSS (previously Section 209 CrPC). The Supreme Court confirmed this in Sudhir v. State of Madhya Pradesh, AIR 2001 SC 826: the Sessions Judge has power to try any offence under the Indian Penal Code (now the BNS). Third, where a special law mentions a particular Court for the trial of an offence under that law, the jurisdiction of the ordinary Courts is excluded — and the exclusion is peremptory, even against superior Courts. The Supreme Court drew the line in State of U.P. v. Sabir Ali, AIR 1964 SC 1673: a trial by a Court other than the one specified in the special law would be void.
The proviso to Section 21(a) BNSS — drawn forward from the 2008 amendment to the CrPC and the further 2013 amendment — directs that any offence under Sections 64 to 72 BNS (sexual offences against women, previously Sections 376 to 376E IPC) shall be tried, as far as practicable, by a Court presided over by a woman. The directive is permissive at the margins ('as far as practicable') but firm in its general thrust.
Section 22 BNSS — sentences which High Courts and Sessions Judges may pass
Section 22 BNSS (previously Section 28 CrPC) lays down the sentencing limits for the higher Courts. A High Court may pass any sentence authorised by law. A Sessions Judge or an Additional Sessions Judge may pass any sentence authorised by law, but a sentence of death must be confirmed by the High Court under Sections 407 to 412 BNSS (previously Sections 366 to 371 CrPC). The 1973 Code's Section 28(3) — limiting the Assistant Sessions Judge to sentences other than death, life imprisonment or imprisonment exceeding ten years — is omitted from Section 22 BNSS, the class of Assistant Sessions Judges itself having been abolished.
The key word in Section 22 BNSS is 'authorised by law'. A Court can pass a sentence only if the substantive statute under which the accused is convicted prescribes it. The Sanhita does not itself prescribe the punishment for any offence; it merely caps what each Court can pass. The substantive ceiling is set by the BNS or the special statute. The Court's ceiling, in turn, is set by Section 22 or Section 23 BNSS. The lower of the two ceilings governs.
For a Sessions Judge, the special procedure on a sentence of death deserves emphasis. The death sentence does not take effect until the High Court confirms it. Where the High Court is split on confirmation, the death sentence cannot be confirmed, and the lesser sentence prevails. The Supreme Court has emphasised in Bachan Singh v. State of Punjab, (1980) 2 SCC 684, that the death sentence is for the rarest of rare cases — a constraint that the Sanhita preserves through Section 393(3) BNSS (previously Section 354(3) CrPC), which requires the trial Court to record special reasons for awarding the death sentence.
Section 23 BNSS — sentences which Magistrates may pass
Section 23 BNSS (previously Section 29 CrPC) is the most heavily amended of the powers-of-Courts provisions. It now reads as follows. The Court of a Chief Judicial Magistrate may pass any sentence authorised by law except a sentence of death, imprisonment for life, or imprisonment for a term exceeding seven years. The Court of a Magistrate of the First Class may pass a sentence of imprisonment for a term not exceeding three years, or of fine not exceeding fifty thousand rupees, or of both, or of community service. The Court of a Magistrate of the Second Class may pass a sentence of imprisonment for a term not exceeding one year, or of fine not exceeding ten thousand rupees, or of both, or of community service.
Two changes compared to the 1973 Code stand out. First, the fine ceilings are raised. The Magistrate of the First Class moves from a ten-thousand-rupee ceiling to a fifty-thousand-rupee ceiling — a five-fold increase that responds to fifty years of monetary depreciation since 1973. The Magistrate of the Second Class moves from a five-thousand-rupee ceiling to a ten-thousand-rupee ceiling. Second, community service joins the toolkit. The Explanation to Section 23 BNSS defines community service to mean the work which the Court may order a convict to perform as a form of punishment that benefits the community, for which the convict is not entitled to any remuneration. The detailed treatment of community service as a sentence is in a dedicated chapter.
The rule is clear. The fact-pattern won't be.
Topic-tagged MCQs from previous-year papers and original mocks — calibrated to actual exam difficulty.
Take the procedural-law mock →Section 29(4) of the 1973 Code — vesting the Court of a Chief Metropolitan Magistrate with the powers of a Chief Judicial Magistrate, and the Court of a Metropolitan Magistrate with the powers of a Magistrate of the First Class — is omitted from Section 23 BNSS. The Metropolitan Magistracy is abolished and there is no occasion for the equivalence rule.
Section 24 BNSS — imprisonment in default of fine
Section 24 BNSS (previously Section 30 CrPC) provides that the Court of a Magistrate may award such term of imprisonment in default of payment of fine as is authorised by law, subject to two limitations. The default term cannot exceed the powers of the Magistrate under Section 23 BNSS. And, where imprisonment has been awarded as part of the substantive sentence, the default term cannot exceed one-fourth of the term which the Magistrate is competent to inflict as substantive imprisonment. The provision is unchanged from the 1973 Code in substance.
Two practical points are worth noting. The default sentence is not part of the substantive sentence; it is an additional period of imprisonment that runs only if the fine is not paid. As the Supreme Court held in Shantilal v. State of Madhya Pradesh, AIR 2008 SC 145, the default term is a coercive measure to enforce payment, not a punitive measure for the offence itself. Consequently, if the fine is paid at any stage — even after the default term has begun — the default sentence ceases.
Section 25 BNSS — multiple offences at one trial
Section 25 BNSS (previously Section 31 CrPC) governs the case where the accused is convicted at one trial of two or more offences. The Court may, subject to Section 9 of the BNS (previously Section 71 IPC), sentence the accused for each offence to the punishment authorised, the sentences running consecutively unless the Court directs that they shall run concurrently. The total aggregate sentence under sub-section (2)(a) — capped under the 1973 Code at fourteen years for a Magistrate — is now capped at twenty years under Section 25(2)(a) BNSS. The change brings the Magistracy's aggregate-sentence power closer to that of a Sessions Judge.
The Supreme Court's reasoning in Mohd. Akhtar Hussain v. Assistant Collector of Customs, (1988) 4 SCC 183, on the principle that consecutive sentences should not result in disproportionate aggregate punishment, applies to Section 25 BNSS. The Court must consciously decide whether sentences should run concurrently or consecutively, and the decision must be reasoned. A blanket consecutive-sentence order, with no consideration of the proportionality between aggregate sentence and gravity of conduct, is liable to interference in revision.
Sections 26 to 29 BNSS — conferment, exercise and withdrawal of powers
Sections 26 to 29 BNSS (previously Sections 32 to 35 CrPC) deal with the procedural mechanics of how a Court or Magistrate is invested with powers under the Sanhita. Section 26 BNSS — the mode of conferring powers — permits the High Court or the State Government, subject to the limits of the Sanhita, to confer on a person specified powers either by his name or by virtue of his office. Section 27 BNSS — powers of officers appointed — provides that whenever a person holding any office is empowered to exercise specified powers, all persons subsequently appointed to that office, until the order is cancelled, are deemed to be vested with those powers. Section 28 BNSS — withdrawal of powers — permits the High Court or the State Government to withdraw powers conferred. Section 29 BNSS — powers of judges and magistrates exercisable by their successors-in-office — preserves continuity by providing that, subject to the Sanhita's provisions, the powers of every Judge or Magistrate are exercisable by his successor-in-office. The reference to 'Additional or Assistant Session Judge' in the corresponding 1973 provision is omitted from Section 29 BNSS, the class of Assistant Sessions Judges being abolished.
Table — sentencing power Court by Court
| Court | Maximum sentence (BNSS) | Notes |
|---|---|---|
| High Court | Any sentence authorised by law | Section 22(1) BNSS |
| Sessions Judge / Additional Sessions Judge | Any sentence authorised by law; death subject to High Court confirmation | Section 22(2) BNSS |
| Chief Judicial Magistrate | Any sentence authorised by law except death, life imprisonment or imprisonment exceeding 7 years | Section 23(1) BNSS |
| Magistrate of the First Class | Imprisonment up to 3 years, fine up to ₹50,000, or both, or community service | Section 23(2) BNSS — fine ceiling raised from ₹10,000 |
| Magistrate of the Second Class | Imprisonment up to 1 year, fine up to ₹10,000, or both, or community service | Section 23(3) BNSS — fine ceiling raised from ₹5,000 |
| Aggregate sentence at one trial (Magistrate) | Up to 20 years | Section 25(2)(a) BNSS — raised from 14 years |
Trial Court versus appellate Court
The sentencing power of a Court under Sections 22 and 23 BNSS is the power to pass sentence in a trial that the Court itself conducts. An appellate Court does not get to enhance a sentence beyond the limit that the trial Court could have passed. The Supreme Court has restated this in a long line of cases, including Jagat v. State of Madhya Pradesh (1966) and the principle has not changed under the BNSS. A High Court hearing an appeal from a Sessions sentence cannot enhance the sentence beyond the Sessions Judge's maximum, even though the High Court itself, sitting as a trial Court, could pass any sentence authorised by law. The same principle applies in revision: under Section 442 BNSS (previously Section 397 CrPC), the High Court or the Sessions Judge cannot impose a higher sentence than the trial Court could have passed.
The exception is the appellate Court's power to enhance the sentence of conviction itself — for instance, by re-categorising the offence as a more serious one — and then to pass the corresponding sentence within the limits applicable to that offence. But the limit of the trial Court remains the controlling constraint on quantum within the same offence. The detailed exposition is in the chapters on appeals in criminal cases and reference and revision.
The case where the Magistrate cannot punish adequately
Section 348 BNSS (previously Section 325 CrPC) deals with a recurring practical problem. A Judicial Magistrate is empowered to try a particular offence — the First Schedule shows the offence triable by 'any Magistrate' — but on examining the evidence at trial, the Magistrate is of opinion that the accused is guilty and that the offence is one that ought to be punished more severely than the Magistrate's own sentencing power permits. In such a case, the Magistrate records the opinion and forwards the case to the Chief Judicial Magistrate, with the accused if necessary in custody. The Chief Judicial Magistrate, who has the wider sentencing power under Section 23(1) BNSS, then disposes of the case and passes the appropriate sentence.
The provision is a safety valve. It prevents the absurd consequence that an offence properly triable by a Magistrate is punished below its desert merely because the trial Magistrate's ceiling is lower than the substantive maximum. The Supreme Court in Chajju Lal v. State of Rajasthan, AIR 1967 SC 1809, had occasion to consider the predecessor provision and held that the Magistrate's sentencing limit cannot be transgressed even by reference to substantive provisions of the IPC such as Section 65 (now Section 12 BNS) and Section 75 (now Section 13 BNS); the appropriate course is to forward the case for adequate sentence.
Special Acts that vary the Magistrate's sentencing power
Some special statutes empower a Magistrate to impose a sentence higher than that specified in Section 23 BNSS. Section 21 of the Prevention of Food Adulteration Act, 1954, empowered the Magistrate to pass a sentence higher than the Code permitted; the Supreme Court in State of U.P. v. Khushi Ram, AIR 1960 SC 905, accepted the special-law extension. The Negotiable Instruments Act, 1881 — even with its non obstante clause in Section 142 — has been held in Pankajbhai Nagjibhai Patel v. State of Gujarat, AIR 2001 SC 567, not to expand the JMFC's sentencing power beyond Section 29 CrPC (now Section 23 BNSS). The principle that emerges: a special statute can expand the Magistrate's sentencing power only by clear and express terms; otherwise, Section 23 BNSS is the controlling ceiling.
Why the Sanhita raised the ceilings
The fine-ceiling enhancements in Section 23 BNSS are not cosmetic. The 1973 ceilings — five thousand and ten thousand rupees — were last touched by the 2005 Amendment Act and had become embarrassingly inadequate by the early 2020s. A Magistrate trying a regulatory offence — adulteration, encroachment, breach of municipal byelaw — could not impose a fine that bore any reasonable relation to the gravity of the conduct. The five-fold and two-fold revisions effected by Section 23 BNSS restore the deterrent value of the fine. The aggregate-sentence enhancement under Section 25(2)(a) BNSS — fourteen years to twenty years — responds to the proliferation of multiple-offence trials in cases involving organised conduct, which the new Section 111 BNS (organised crime) further intensifies.
Read together with the new sentence of community service, the architecture of Section 23 BNSS is calibrated to expand the Magistracy's sentencing options at the lower end while raising the deterrent ceiling at the upper end. The Magistrate now has, in any single petty offence, three sentencing tools — imprisonment, fine and community service — instead of the older binary of imprisonment and fine. The discretion that Section 393 BNSS (previously Section 354 CrPC) requires the Court to exercise on the kind and quantum of sentence is therefore broader under the Sanhita than under the 1973 Code.
For the institutional context, return to the classes of Criminal Courts under Section 6 BNSS; for the trial procedure that culminates in a sentence under these provisions, read the chapters on trial before a Court of Session, trial of warrant cases by magistrates and judgment. For the special-statute Courts to which Sections 21 to 23 BNSS yield, read the chapter on introduction and scheme of the Sanhita, which surveys the BNSS-against-special-laws boundary. For preventive-action work — security for keeping the peace, removal of public nuisance, dispute over immovable property — the sentencing limits in Section 23 BNSS interact with the Executive Magistracy's powers; that interaction is the subject of the chapter on security for keeping the peace and good behaviour and the chapter on maintenance of public order and tranquillity, both of which lean heavily on the sentencing-power architecture set out above. The careful magistrate carries this table in his head; the careless magistrate has it overturned in revision.
Frequently asked questions
What sentencing power does a Judicial Magistrate of the First Class have under Section 23 BNSS — and what changed from Section 29 CrPC?
Under Section 23(2) BNSS, a Judicial Magistrate of the First Class may pass a sentence of imprisonment for a term not exceeding three years, or of fine not exceeding fifty thousand rupees, or of both, or of community service. The 1973 Code at Section 29(2) capped the fine at ten thousand rupees and did not recognise community service as a sentence at all. The five-fold fine increase responds to half a century of monetary depreciation; community service comes from the Explanation to Section 23, which defines it as work the convict performs without remuneration that benefits the community.
Has the BNSS abolished the limit on aggregate sentence at one trial?
No, but it has raised it. Section 25(2)(a) BNSS — corresponding to Section 31(2)(a) CrPC — caps the aggregate consecutive sentence that a Magistrate may pass at one trial at twenty years. The 1973 Code capped it at fourteen years. The cap applies only to consecutive sentences; if the Magistrate directs the sentences to run concurrently, the aggregate is the longest single sentence. The proportionality discipline laid down in Mohd. Akhtar Hussain v. Assistant Collector of Customs, (1988) 4 SCC 183, continues to govern: the aggregate must bear a reasonable relation to the gravity of the conduct.
Can the Sessions Court directly try any offence punishable under the BNS?
Yes, but only on commitment by a Magistrate under Section 232 BNSS (previously Section 209 CrPC), except where a special statute permits direct cognizance — for instance, Section 199(2) BNSS for defamation against the President, Vice-President, Governor or Minister. The Supreme Court in Sudhir v. State of Madhya Pradesh, AIR 2001 SC 826, confirmed that the Sessions Judge has power under Section 26 CrPC (now Section 21 BNSS) to try any offence under the Indian Penal Code. The general jurisdiction is therefore plenary; the trigger is commitment.
What happens when a Magistrate finds that the offence deserves a sentence beyond his ceiling?
Section 348 BNSS (previously Section 325 CrPC) provides the mechanism. The Magistrate records the opinion that the accused is guilty and that the offence ought to be punished more severely than the Magistrate's own sentencing power permits, and forwards the case — with the accused, if necessary, in custody — to the Chief Judicial Magistrate. The Chief Judicial Magistrate, with the wider sentencing power under Section 23(1) BNSS (any sentence authorised by law, except death, life imprisonment, or imprisonment exceeding seven years), then disposes of the case and passes the appropriate sentence. The Magistrate's own ceiling cannot be transgressed by re-classifying the offence.
Does the BNSS still permit the death sentence — and what is the confirmation procedure?
Yes. The death sentence is preserved as the maximum penalty for offences for which the substantive law prescribes it — primarily murder under Section 103 BNS (previously Section 302 IPC), and certain offences under specified other statutes. Section 22(2) BNSS provides that a Sessions Judge or Additional Sessions Judge may pass a sentence of death subject to confirmation by the High Court. The confirmation procedure is in Sections 407 to 412 BNSS (previously Sections 366 to 371 CrPC). The Supreme Court's discipline in Bachan Singh v. State of Punjab, (1980) 2 SCC 684 — that the death sentence is for the rarest of rare cases — continues to apply, and Section 393(3) BNSS (previously Section 354(3) CrPC) requires the trial Court to record special reasons in writing.
Can an appellate Court enhance the sentence beyond what the trial Court could have passed?
No. The settled rule, restated in Jagat v. State of Madhya Pradesh, is that an appellate Court — and a revisional Court too — cannot pass a sentence higher than that which the trial Court was competent to pass. A High Court hearing an appeal from the sentence of a Sessions Judge cannot enhance beyond the Sessions Judge's ceiling; a Sessions Judge hearing a revision from a Magistrate cannot enhance beyond the Magistrate's ceiling. The appellate Court can, however, alter the conviction — for instance, by holding the offence to be a more serious one — and then pass the sentence appropriate to the more serious offence, within that offence's limits.