Abolition Of The Post Of “Assistant Sessions Judge” By The “BNSS”, Whether Justifiable.
The Court of Session is one of the Courts by which ordinarily graver offences both under the Indian Penal Code, 1860 (“IPC” for short), and other laws, are triable. Under Section 9 (3) of the Code of Criminal Procedure, 1973 (“Cr.P.C” for short), Assistant Sessions Judge was one of the Judges to be appointed by the High Court to exercise jurisdiction in a Court of Session. Section 28 (3) Cr.P.C also fixed the sentencing limit of imprisonment of the Assistant Sessions Judge to a term not exceeding 10 years. But under Section 8 of the Bharatiya Nagarik Surakha Sanhita, 2023 (“BNSS” for short), Assistant Sessions Judge is not included as a Judge to exercise jurisdiction in a Court of Session. Consequently, Section 22 of BNSS does not fix the sentencing limit of the Assistant Sessions Judge. That provision fixes the sentencing limit of the Sessions Judge and the Additional Sessions Judge only. A comparative table showing the relevant provisions both under the Cr.P.C and the BNSS, is given below –
Cr.P.C, 1973 | BNSS, 2023 |
Section 26:Courts by which offences are triable Subject to the other provisions of this Code, -- (a) any offence under the Indian Penal Code (45 of 1860) may be tried by.-- (i) the High Court, or (ii) the Court of Session, or (iii) any other Court by which such offence is shown in the First Schedule to be triable: Provided that any offence under Section 376, Section 376A, Section 376AB, Section 376B, Section 376C, Section 376D, Section 376DA, Section 376DB or Section 376E of the Indian Penal Code shall be tried as far as practicable by a Court presided over by a woman. (b) any offence under any other law shall, when any Court is mentioned in this behalf in such law, be tried by such Court and when no Court is so mentioned, may be tried by,-- (i) the High Court, or (ii) any other Court by which such offence is shown in the First Schedule to be triable. | Section 21: Courts by which offences are triable Subject to the other provisions of this Sanhita,— (a) any offence under the Bharatiya Nyaya Sanhita, 2023 may be tried by— (i) the High Court; or (ii) the Court of Session; or (iii) any other Court by which such offence is shown in the First Schedule to be triable: Provided that any offence under section 64, section 65, section 66, section 67, section 68, section 69, section 70 or section 71 of the Bharatiya Nyaya Sanhita, 2023 shall be tried as far as practicable by a Court presided over by a woman; (b) any offence under any other law shall, when any Court is mentioned in this behalf in such law, be tried by such Court and when no Court is so mentioned, may be tried by— (i) the High Court; or (ii) any other Court by which such offence is shown in the First Schedule to be triable. |
Cr.P.C, 1973 | BNSS, 2023 |
Section 9 : Court of Session (1) The State Government shall establish a Court of Session for every sessions division. (2) Every Court of Session shall be presided over by a Judge, to be appointed by the High Court. (3) The High Court may also appoint Additional Sessions Judges and Assistant Sessions Judges to exercise jurisdiction in a Court of Session. (4) The Sessions Judge of one sessions division may be appointed by the High Court to be also an Additional Sessions Judge of another division, and in such case he may sit for the disposal of cases at such place or places in the other division as the High Court may direct. (5) Where the office of the Sessions Judge is vacant, the High Court may make arrangements for the disposal of any urgent application which is, or may be, made or pending before such Court of Session by an Additional or Assistant Sessions Judge, or, if there be no Additional or Assistant Sessions Judge, by a Chief Judicial Magistrate, in the sessions division; and every such Judge or Magistrate shall have jurisdiction to deal with any such application. (6) The Court of Sessions shall ordinarily hold its sitting at such place or places as the High Court may, by notification, specify; but, if, in any particular case, the Court of Session is of opinion that it will tend to the general convenience of the parties and witnesses to hold its sittings at any other place in the sessions division, it may, with the consent of the prosecution and the accused, sit at that place for the disposal of the case or the examination of any witness or witnesses therein. Explanation.-- For the purposes of this Code, "appointment" does not include the first appointment, posting or promotion of a person by the Government to any Service, or post in connection with the affairs of the Union or of a State, where under any law, such appointment, posting or promotion is required to be made by Government.
| Section 8 : Court of Session (1) The State Government shall establish a Court of Session for every sessions division. (2) Every Court of Session shall be presided over by a Judge, to be appointed by the High Court. (3) The High Court may also appoint Additional Sessions Judges to exercise jurisdiction in a Court of Session. (Assistant Sessions Judge is missing here) (4) The Sessions Judge of one sessions division may be appointed by the High Court to be also an Additional Sessions Judge of another division, and in such case, he may sit for the disposal of cases at such place or places in the other division as the High Court may direct. (5) Where the office of the Sessions Judge is vacant, the High Court may make arrangements for the disposal of any urgent application which is, or may be, made or pending before such Court of Session by an Additional Sessions Judge or if there be no Additional Sessions Judge, by a Chief Judicial Magistrate, in the sessions division; and every such Judge or Magistrate shall have jurisdiction to deal with any such application. (6) The Court of Session shall ordinarily hold its sitting at such place or places as the High Court may, by notification, specify; but, if, in any particular case, the Court of Session is of opinion that it will tend to the general convenience of the parties and witnesses to hold its sittings at any other place in the sessions division, it may, with the consent of the prosecution and the accused, sit at that place for the disposal of the case or the examination of any witness or witnesses therein. (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. (8) The Sessions Judge may also make provision for the disposal of any urgent application, in the event of his absence or inability to act, by an Additional Sessions Judge or if there be no Additional Sessions Judge, by the Chief Judicial Magistrate, and such Judge or Magistrate shall be deemed to have jurisdiction to deal with any such application. Explanation.—For the purposes of this Sanhita, "appointment" does not include the first appointment, posting or promotion of a person by the Government to any Service, or post in connection with the affairs of the Union or of a State, where under any law, such appointment, posting or promotion is required to be made by the Government. |
Cr.P.C, 1973 | BNSS, 2023 |
Section 28 : Sentences which High Courts and Sessions Judges may pass (1) A High Court may pass any sentence authorised by law. (2) A Sessions Judge or Additional Sessions Judge may pass any sentence authorised by law; but any sentence of death passed by any such Judge shall be subject to confirmation by the High Court. (3) An Assistant Sessions Judge may pass any sentence authorised by law except a sentence of death or of imprisonment for life or of imprisonment for a term exceeding ten years.
| Section 22 : Sentences which High Courts and Sessions Judges may pass (1) A High Court may pass any sentence authorised by law. (2) A Sessions Judge or Additional Sessions Judge may pass any sentence authorised by law; but any sentence of death passed by any such Judge shall be subject to confirmation by the High Court. |
2. An Assistant Sessions Judge is a post included in the definition of “District Judge” in Article 236 (a) of the Constitution of India for the purpose of Chapter VI of Part VI of the Constitution of India. It is such a post which has been abolished by the BNSS. A Chief Judicial Magistrate (CJM) and Additional CJM appointed under Section 12 (1) and 12 (2) respectively of Cr.P.C (Ss. 10 (1) and 10 (2) of BNSS) can, by virtue of Section 29 (1) Cr.P.C (S. 23 (1) of BNSS), pass a sentence of imprisonment only upto 7 years. But an Assistant Sessions Judge could pass a sentence of imprisonment upto 10 years as provided under Section 28 (3) Cr.P.C. There is no provision in Section 22 of BNSS corresponding to Section 28 (3) of Cr.P.C. Since the BNSS has dropped the post of Assistant Sessions Judge, there is no sentencing limit also prescribed under Section 22 of BNSS for the post of Assistant Sessions Judge.
3. Assistant Sessions Judges, under the Cr.P.C were shouldering the bulk of the work in the Courts of Session. It is this important category of Sessions Judges which has been abolished by the BNSS without any justification. But the post of the Judicial Magistrate of the second class, has been retained by the BNSS. Assistant Sessions Judges were trying “cases” made over to them by the Sessions Judges under Section 194 Cr.P.C. They were also hearing appeals against conviction on trials held by Magistrates of the second class under the proviso to Section 381 (1) Cr.P.C. Such appeals were to be made over to them by the Sessions Judge of the division under Section 381 (2) Cr.P.C. Now under the proviso to Section 422 (1) of BNSS, such appeals are to be heard and disposed of by CJMs who are already overburdened by judicial and administrative responsibilities.
4. There seems to be no justification whatsoever in abolishing the pivotal post of Assistant Sessions Judge who was hitherto exercising jurisdiction in the Court of Session and hearing and disposing of a chunk of the Sessions cases and Criminal appeals made over to them. I do not think that the framers of BNSS had really applied their mind before abolishing such an important post which is even recognized by the Constitution of India. It is hoped that the said post will be restored by way of appropriate amendment to the BNSS.
Author is Former Judge, High Court of Kerala. Views Are Personal.