Indian Criminal Procedure Law

Section 28 CrPC and Section 22 BNSS: Sentencing Powers of High Courts and Sessions Judges

Section 28 of the Code of Criminal Procedure, 1973 prescribed the sentences that High Courts, Sessions Judges, Additional Sessions Judges and Assistant Sessions Judges could impose. The corresponding current provision is Section 22 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).

Current legal position: The BNSS came into force on 1 July 2024. Section 531 BNSS repeals the CrPC while preserving the application of the earlier Code to specified pending proceedings. Section 22 BNSS does not retain the former subsection concerning Assistant Sessions Judges.

Section 28 CrPC - Original Legal Provision

The following is the substance of Section 28 of the Code of Criminal Procedure, 1973:

Subsection (1): A High Court may pass any sentence authorised by law.

Subsection (2): A Sessions Judge or Additional Sessions Judge may pass any sentence authorised by law, but a death sentence passed by such a Judge requires confirmation by the High Court.

Subsection (3): An Assistant Sessions Judge may pass any sentence authorised by law except death, imprisonment for life, or imprisonment exceeding ten years.

Section 22 BNSS - Present Sentencing Powers

Section 22 of the Bharatiya Nagarik Suraksha Sanhita, 2023 is titled Sentences which High Courts and Sessions Judges may pass. It provides:

Section 22(1): A High Court may pass any sentence authorised by law.

Section 22(2): A Sessions Judge or Additional Sessions Judge may pass any sentence authorised by law; however, any death sentence passed by such a Judge is subject to confirmation by the High Court.

Unlike Section 28 CrPC, Section 22 BNSS contains no separate provision for an Assistant Sessions Judge. The current constitution of a Court of Session is addressed in Section 8 BNSS.

Explanation of Sentencing Powers

1. High Court

The High Court may impose any sentence that the applicable substantive criminal law authorises for the offence. This power does not permit a punishment outside the limits or conditions prescribed by law.

2. Sessions Judge and Additional Sessions Judge

These judges may impose a legally authorised sentence, including life imprisonment or death where the governing law permits it. A death sentence pronounced by a Court of Session cannot be executed merely on the strength of the Sessions Court judgment; confirmation by the High Court is mandatory.

3. Assistant Sessions Judge under the former CrPC

Under Section 28(3) CrPC, an Assistant Sessions Judge could not impose death, life imprisonment or a prison term exceeding ten years. This historical limit remains relevant when interpreting proceedings governed by the saved provisions of the former Code.

Confirmation of a Death Sentence

Section 407 BNSS requires a Court of Session that passes a death sentence to submit the proceedings to the High Court; execution is prohibited unless the High Court confirms the sentence. Section 408 BNSS permits further inquiry or additional evidence. Under Section 409 BNSS, the High Court may confirm the sentence, pass another lawful sentence, annul the conviction, order a new trial or acquit the accused, subject to statutory requirements.

For proceedings governed by the former CrPC, the corresponding confirmation provisions include Sections 366 to 368 CrPC.

CrPC Repeal and Pending Cases - Section 531 BNSS

Section 531(1) BNSS repeals the Code of Criminal Procedure, 1973. Under Section 531(2)(a), an appeal, application, trial, inquiry or investigation pending immediately before commencement of the BNSS continues under the earlier CrPC, as provided in the savings clause. The applicable procedural regime must therefore be assessed with reference to the nature and timing of the proceeding.

Frequently Asked Questions

Can a Sessions Judge award the death penalty?

Yes, where authorised by the applicable criminal law, but the death sentence must be confirmed by the High Court before execution.

What is the BNSS equivalent of Section 28 CrPC?

Section 22 BNSS is the corresponding provision. It retains the rules concerning High Courts, Sessions Judges and Additional Sessions Judges, without the former Assistant Sessions Judge subsection.

Does Section 28 CrPC still apply?

The CrPC has been repealed, but Section 531 BNSS preserves its operation for certain pending proceedings and other saved matters.

Official Legal Sources

Updated: 16 October 2026. This article provides general legal information. The applicable law and sentencing authority depend on the facts and procedural status of each case.