Section 28 CrPC: Sentences Which High Courts and Sessions Judges May Pass
Section 28 of the Code of Criminal Procedure, 1973 defined the sentencing powers of the High Court, Sessions Judge, Additional Sessions Judge and Assistant Sessions Judge under the CrPC framework applicable before implementation of the Bharatiya Nagarik Suraksha Sanhita, 2023.
What is Section 28 of the Code of Criminal Procedure, 1973?
Section 28 formed part of Chapter III of the CrPC dealing with the powers of courts. It prescribed the extent of the sentencing authority of superior criminal courts. The provision distinguished between the unrestricted statutory sentencing power of the High Court, the power of a Sessions Judge or Additional Sessions Judge subject to confirmation of a death sentence, and the limited sentencing power of an Assistant Sessions Judge.
Text of Section 28 CrPC
Meaning and scope of Section 28 CrPC
1. Sentencing power of the High Court
Under Section 28(1), a High Court could pass any sentence authorised by the substantive law governing the offence. The expression "authorised by law" is important: Section 28 did not itself create a punishment. It identified the court's sentencing competence, while the permissible punishment had to come from the law defining or governing the offence.
2. Sessions Judge and Additional Sessions Judge
Section 28(2) authorised a Sessions Judge or Additional Sessions Judge to pass any sentence permitted by law. However, a death sentence passed by such a Judge did not become executable merely upon its pronouncement. It was expressly made subject to confirmation by the High Court.
3. Assistant Sessions Judge
Section 28(3) placed a statutory ceiling on the sentencing power of an Assistant Sessions Judge. Such a Judge could not impose a sentence of death, imprisonment for life, or imprisonment for a term exceeding ten years. Therefore, even where the offence permitted a higher punishment, the sentence imposed by an Assistant Sessions Judge had to remain within the limit fixed by Section 28(3).
Sentencing powers under Section 28 at a glance
| Court | Power under Section 28 CrPC | Important limitation |
|---|---|---|
| High Court | Any sentence authorised by law | Sentence must be one authorised by the applicable substantive law |
| Sessions Judge or Additional Sessions Judge | Any sentence authorised by law | Death sentence subject to confirmation by the High Court |
| Assistant Sessions Judge | Any sentence authorised by law within the statutory ceiling | No death sentence, life imprisonment, or imprisonment exceeding ten years |
Section 28 CrPC and Section 22 BNSS
For the post-1 July 2024 criminal procedure framework, the corresponding subject is addressed in Section 22 of the Bharatiya Nagarik Suraksha Sanhita, 2023. Section 22 BNSS states the sentencing powers of the High Court, Sessions Judge and Additional Sessions Judge. Unlike Section 28 CrPC, it does not contain the former sub-section relating to an Assistant Sessions Judge.
The distinction is significant when reading older cases, orders and proceedings. For matters governed by the former Code under the applicable saving provisions, Section 28 CrPC may remain relevant. For proceedings governed by the BNSS, the current provision should be consulted along with the applicable substantive penal law and procedural provisions.
Key points
Section 28 CrPC dealt with the power of specified superior criminal courts to impose sentences; it did not independently prescribe punishment for an offence. A High Court could impose any sentence authorised by law. A Sessions Judge or Additional Sessions Judge had the same general sentencing authority, but a death sentence required High Court confirmation. An Assistant Sessions Judge could not impose death, life imprisonment, or imprisonment exceeding ten years.
This page is intended as general legal information on the pre-BNSS CrPC framework. The applicable procedural law may depend on the date and stage of the particular proceeding and the statutory saving provisions.