Section 21 BNSS: Courts by which offences are triable (Formerly Section 26 CrPC)

Section 21 of Bharatiya Nagarik Suraksha Sanhita, 2023: Courts by which offences are triable

Official Bare Act Text

Override / Mandate Mens Rea (Intent) Actus Reus (Conduct) Punishment Limitation Monetary

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.

Legal Commentary & Landmark Judgments: Section 21

Section 21 prescribes the courts by which offences are triable under the Bharatiya Nyaya Sanhita, 2023 and other penal laws, referencing the First Schedule of the BNSS.

BNS Offences Triable by First Schedule: Offences under BNS are triable by: (1) High Court; (2) Court of Session; or (3) Any other court by which such offence is shown in the First Schedule to be triable.
Special Offences Against Women: Mandates that offences punishable under Sections 64 to 71 BNS (rape and gang rape) shall be tried as far as practicable by a court presided over by a woman.
Other Laws Jurisdiction: Offences under other laws are tried by courts mentioned in those laws, or if none mentioned, by the High Court or courts specified in First Schedule.

Key Landmark Precedents:

A.R. Antulay v. R.S. Nayak (1988) 2 SCC 602: The Constitution Bench held that jurisdiction to try an offence is conferred exclusively by statute; courts cannot create or transfer trial jurisdiction without statutory competence.
State of M.P. v. Bhooraji (2001) 7 SCC 679: Clarified the inter-play between Magisterial committal and Sessions trial jurisdiction under Section 26 CrPC (Section 21 BNSS).

Courtroom Practice & Strategic Litigation Guidance:

Cross-reference the charge with the First Schedule. If an offence triable exclusively by Sessions (e.g., Section 103 BNS Murder) is tried by a magistrate, the trial is a nullity under Section 517(1) BNSS.