Section 26 CrPC: Courts by Which Offences Are Triable
Section 26 of the Code of Criminal Procedure, 1973 specified which criminal courts could try offences under the Indian Penal Code, 1860 and offences created by other laws. This page explains the legal position under the CrPC immediately before the Bharatiya Nagarik Suraksha Sanhita, 2023 came into force.
Meaning and purpose of Section 26 CrPC
Section 26 formed part of Chapter III of the CrPC, titled "Power of Courts". Its purpose was to identify the class of criminal court competent to try an offence. The provision operated subject to the other provisions of the Code and worked together with the First Schedule, which classified offences and indicated the court by which an offence was triable.
In simple terms, Section 26 answered the question: which court can conduct the trial of a particular criminal offence? For an IPC offence, the answer depended on the Code and the First Schedule. For an offence under a special or other law, the court specified by that law ordinarily governed; where that law did not specify a court, the First Schedule and Section 26(b) applied.
Text and effect of Section 26
Section 26 - Courts by which offences are triable.
Subject to the other provisions of the Code, an offence under the Indian Penal Code could be tried by the High Court, the Court of Session, or another court shown in the First Schedule as competent to try that offence.
The proviso further required, as far as practicable, that specified sexual offences under Sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB and 376E of the IPC be tried by a court presided over by a woman.
For an offence under any other law, where that law specified the court of trial, the offence was to be tried by that court. If no court was specified, the offence could be tried by the High Court or by another court shown in the First Schedule as competent to try it.
For the authoritative statutory wording, consult the official India Code text linked under Official Legal Resources.
Courts competent to try IPC offences
Under clause (a), an offence under the Indian Penal Code, 1860 could be tried by:
- the High Court;
- the Court of Session; or
- any other court by which the offence was shown in the First Schedule to the CrPC to be triable.
The First Schedule was therefore central to determining the ordinary trial court for an IPC offence. Section 26 did not mean that every listed court would exercise trial jurisdiction in every case irrespective of the remaining provisions of the Code. The opening words, "Subject to the other provisions of this Code", preserved the operation of provisions governing cognizance, commitment, jurisdiction and trial procedure.
Specified sexual offences and a woman-presided court
The proviso to Section 26(a) stated that specified rape and related sexual offences under the IPC should, as far as practicable, be tried by a court presided over by a woman. Immediately before the replacement of the CrPC regime, the proviso referred to Sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB and 376E of the IPC.
The expression "as far as practicable" qualified the requirement, while clearly recording the legislative preference for such trials to be conducted before a woman-presided court where practicable.
Offences under special or other laws
Clause (b) dealt with offences created by laws other than the IPC. If the special or other law itself named the court competent to try the offence, that court was to conduct the trial. If the enactment did not identify a court, Section 26(b) permitted trial by the High Court or by another court shown in the First Schedule as competent.
This rule should also be read with Sections 4 and 5 CrPC. Section 4 dealt with the investigation, inquiry and trial of offences under the IPC and other laws, while Section 5 preserved special or local laws, special jurisdiction, special powers and special forms of procedure unless the CrPC specifically provided otherwise.
Quick reference
| Category | Pre-BNSS position under Section 26 CrPC |
|---|---|
| IPC offence | Triable by the High Court, Court of Session, or another court identified in the First Schedule, subject to other CrPC provisions. |
| Specified IPC sexual offences | As far as practicable, trial by a court presided over by a woman. |
| Offence under another law where court is specified | Triable by the court specified in that law. |
| Offence under another law where no court is specified | Triable by the High Court or another court identified in the First Schedule. |
Amendment history relevant to the proviso
The proviso concerning a woman-presided court was inserted by the Code of Criminal Procedure (Amendment) Act, 2008 with effect from 31 December 2009. Its references to sexual offences were subsequently updated by the Criminal Law (Amendment) Act, 2013 and the Criminal Law (Amendment) Act, 2018. These amendments reflected later changes to the IPC provisions concerning rape and related sexual offences.
Position after implementation of BNSS
The BNSS came into force on 1 July 2024. The corresponding provision is Section 21 of the Bharatiya Nagarik Suraksha Sanhita, 2023, also titled "Courts by which offences are triable". It follows the same basic structure, but refers to offences under the Bharatiya Nyaya Sanhita, 2023 and its First Schedule framework. The woman-presided-court proviso in Section 21 BNSS refers to Sections 64 to 71 of the BNS.
This article is intentionally focused on the law as it stood under Section 26 CrPC before implementation of BNSS. For current proceedings, the applicable statutory regime and the relevant saving or transitional provisions should be checked in light of the date and nature of the proceeding.
Official legal resources
Code of Criminal Procedure, 1973 - India Code
Bharatiya Nagarik Suraksha Sanhita, 2023 - India Code
New Criminal Laws - Ministry of Home Affairs
Related CrPC provisions
For the surrounding statutory scheme, see Section 25 - Assistant Public Prosecutors, Section 25A - Directorate of Prosecution, Section 27 - Jurisdiction in the case of juveniles, Section 28 - Sentences which High Courts and Sessions Judges may pass, and Section 29 - Sentences which Magistrates may pass.