Chapter III
Section 26 CrPC: Courts by which offences are triable
New Law Update (2024)
Section 20 BNSS
TRIAL COURT
High Court, Court of Session, or any other Court as specified in the First Schedule. For offences under Sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB or 376E IPC, to be tried as far as practicable by a Court presided over by a woman. For offences under other laws, by the Court mentioned in that law, or if not mentioned, by the High Court or any other Court shown in the First Schedule to be triable.
Punishment
Procedural / Administrative
Cognizable?
Bailable?
Compoundable?
Bare Act Text
(1) Subject to the other provisions of this Code, 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.
(2) 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.
Important Sub-Sections Explained
Proviso to Section 26(1)
This crucial proviso mandates that serious sexual offences, such as those under Sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB, and 376E of the Indian Penal Code, should be tried, wherever feasible, by a court presided over by a woman judge to ensure a more sensitive and victim-centric judicial process.
Section 26(2)
This sub-section clarifies the jurisdiction for offences defined under laws other than the Indian Penal Code. It specifies that if a particular law mentions a specific court for trial, that court will have jurisdiction; otherwise, the High Court or any court listed in the First Schedule as triable for such offence may conduct the trial.
Landmark Judgements
Smt. Neeraja Malik v. The State of M.P. (2014):
The Madhya Pradesh High Court interpreted the phrase ‘as far as practicable’ in the proviso to Section 26(1) CrPC, holding that the mandate for trial of sexual offences by a court presided over by a woman judge is directory and not absolute. The Court acknowledged practical difficulties in ensuring a woman judge for every such case, emphasizing that non-compliance does not vitiate the trial unless prejudice is shown.
Abdul Kareem v. State of Karnataka (2016):
The Karnataka High Court, while examining the jurisdiction of Special Courts constituted under specific statutes (like the POCSO Act), clarified that Section 26(2) of the CrPC provides for the trial of offences under ‘any other law’. It affirmed that where a special law specifies a court for trial, that court’s jurisdiction would prevail, aligning with the principle that special laws override general provisions.