Criminal Procedure: Code of Criminal Procedure, 1973 / Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)
Application and Commencement of the BNSS 2023
Application and Commencement of the BNSS, 2023: Section 1, Extent, Notification S.O. 848(E), and Application to Offences, Special Laws and Foreign Offences
An enactment must answer four questions before it can be applied: when did it come into operation, over what territory does it operate, over what subject matter, and before which courts. For the Bharatiya Nagarik Suraksha Sanhita, 2023 the answers lie in sections 1, 4, 5, 6 and 208, read with the notification by which the Central Government appointed the date of commencement. This topic works through each of them.
The distinction to hold on to throughout is between commencement, which is a question of date, and application, which is a question of reach. An Act that has commenced does not thereby apply to everything: the Sanhita commenced on 1 July 2024 and still does not apply of its own force to most matters in Nagaland, nor to a proceeding saved by section 531, nor to a step for which a special law has made its own provision.
1. Commencement
Figure 1: The route from assent to commencement
1.1 The statutory mechanism
Section 1(3) provides that the Sanhita shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint. This is the ordinary modern technique and it differs from the Code of Criminal Procedure, 1973, which fixed its own commencement at 1 April 1974 in the body of the Act. The reason for leaving the date to notification was practical. Three statutes had to commence together, and the police, the prosecution, the courts and the forensic services required lead time and rules before they could operate under them.
The consequence is that an Act which has received the assent of the President is not yet law in operation. Between 25 December 2023, when the Sanhita received assent and became Act 46 of 2023, and 30 June 2024, the Code of Criminal Procedure, 1973 remained the law in force. An offence committed in March 2024 is therefore investigated under the 1973 Code, notwithstanding that the Sanhita was on the statute book at the time.
1.2 The notification and its exception
By notification S.O. 848(E) dated 23 February 2024 the Central Government appointed 1 July 2024 as the date on which the Sanhita came into force. The notification carried one exception: the entry in the First Schedule relating to sub-section (2) of section 106 of the Bharatiya Nyaya Sanhita, 2023, which deals with causing death by rash and negligent driving followed by escape without reporting the incident. That entry was kept in abeyance and did not commence with the rest of the Sanhita.
⚠ Why the exception matters in practice The First Schedule is not a drafting appendix. The definitions of cognizable offence in section 2(1)(g) and of bailable offence in section 2(1)(c) operate by reference to it, and the Schedule also states the court by which each offence is triable. A question about whether a particular offence is cognizable, bailable or Sessions-triable is therefore answered by the First Schedule as notified, and not by the Schedule as printed in a bare Act. Where an entry has been kept in abeyance, the classification of that offence is governed by the general principles in the Schedule’s second part or by the corresponding position under the other law, and not by the suspended entry. |
1.3 The three statutes commenced together
Statute | Assent | Commencement | Effect on the predecessor |
|---|---|---|---|
Bharatiya Nyaya Sanhita, 2023 | 25 December 2023 | 1 July 2024 | Indian Penal Code, 1860 repealed, with savings |
Bharatiya Nagarik Suraksha Sanhita, 2023 | 25 December 2023 | 1 July 2024, by S.O. 848(E) dated 23 February 2024, save the First Schedule entry relating to section 106(2) BNS | Code of Criminal Procedure, 1973 repealed by section 531(1), with savings in section 531(2) |
Bharatiya Sakshya Adhiniyam, 2023 | 25 December 2023 | 1 July 2024 | Indian Evidence Act, 1872 repealed, with savings |
Simultaneous commencement was necessary rather than merely tidy. A trial conducted under the Sanhita applies the rules of evidence in the Bharatiya Sakshya Adhiniyam; an offence charged under the Bharatiya Nyaya Sanhita is classified by the First Schedule to the Sanhita. Staggered commencement would have produced combinations in which a statute referred to a provision not yet in force.
2. Territorial Application
Figure 2: Territorial application under section 1(2)
Section 1(2) and the Explanation, BNSS 2023 The provisions of this Sanhita, other than those relating to Chapters IX, XI and XII thereof, shall not apply — (a) to the State of Nagaland; (b) to the tribal areas, but the concerned State Government may, by notification, apply such provisions or any of them to the whole or part of the State of Nagaland or such tribal areas, as the case may be, with such supplemental, incidental or consequential modifications, as may be specified in the notification. Explanation. In this section, “tribal areas” means the territories which immediately before the 21st day of January, 1972 were included in the tribal areas of Assam, as referred to in paragraph 20 of the Sixth Schedule to the Constitution, other than those within the local limits of the municipality of Shillong. |
2.1 A negative extent clause
Section 1(2) of the Sanhita is drafted differently from section 1(2) of the 1973 Code. The older provision began by stating that the Code extends to the whole of India and then created the exception. The Sanhita states only the exception. It contains no positive extent clause, and the definition of “India” in section 2(f) of the 1973 Code has not been carried forward. The point has been noticed in commentary on the Sanhita.
Nothing turns on it in ordinary practice, because an Act of Parliament extends to the whole of the territory of India by virtue of Article 245(1) of the Constitution unless it provides otherwise, and section 1(2) provides otherwise only for Nagaland and the tribal areas. But the drafting is worth knowing, and the accurate statement of the position is that the Sanhita applies throughout India except as section 1(2) excludes, rather than that section 1(2) extends it to the whole of India.
2.2 The three chapters that always apply
Chapter | Sections | Subject | Corresponding chapter of the CrPC |
|---|---|---|---|
IX | 125 to 143 | Security for keeping the peace and for good behaviour | VIII |
XI | 148 to 167 | Maintenance of public order and tranquillity: unlawful assemblies, public nuisance, urgent orders under section 163, disputes as to immovable property | X |
XII | 168 to 172 | Preventive action of the police | XI |
The logic of the carve-out is that the preventive and public-order jurisdiction must reach everywhere, since it is directed at the maintenance of order rather than at the trial of an offence, while the ordinary investigative and trial machinery may be adapted to areas in which customary systems of dispute resolution are recognised. Those systems have constitutional protection: paragraph 20 of the Sixth Schedule for the tribal areas, and Article 371A(1)(a), which provides that no Act of Parliament in respect of Naga customary law and procedure, or the administration of civil and criminal justice involving decisions according to Naga customary law, shall apply to Nagaland unless the Legislative Assembly of Nagaland so decides by resolution.
Note that Chapter X, on the maintenance of wives, children and parents, is not among the three. The maintenance jurisdiction under section 144 therefore does not extend of its own force to Nagaland or the tribal areas, though the State Government may apply it by notification.
3. Application by Subject Matter
Figure 3: The four classes of matter to which the Sanhita applies
3.1 Offences under the Bharatiya Nyaya Sanhita
Section 4(1) provides that all offences under the Bharatiya Nyaya Sanhita, 2023 shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions of the Sanhita. There is no qualification on this limb. The words “and otherwise dealt with” are wide, and cover steps that are neither investigation, inquiry nor trial: the disposal of property, the execution of a sentence, remission, and the machinery of bail.
3.2 Offences under other laws
Section 4(2) applies the same provisions to all offences under any other law, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. Section 5 states the same relationship from the other direction: nothing in the Sanhita shall, in the absence of a specific provision to the contrary, affect any special or local law, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law.
The rule these two provisions produce is that the Sanhita is the default procedure for every offence in the statute book, and yields only to the extent that a special law has actually made its own provision. The Explanation to the definition of investigation in section 2(1)(l) states the same priority in terms, providing that where any of the provisions of a special Act are inconsistent with the provisions of the Sanhita, the provisions of the special Act shall prevail.
📖 Gangula Ashok v. State of Andhra Pradesh, (2000) 2 SCC 504 Facts: A Special Court constituted under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 took cognizance of an offence directly, without the case having been committed to it by a Magistrate. The Act declared the Special Court to be a Court of Session and provided for the trial of offences under it, but said nothing about committal. The question was whether the Special Court could take cognizance without committal, or whether section 193 of the Code of Criminal Procedure, 1973 applied. Held: The Supreme Court held that a Special Court under the 1989 Act is essentially a Court of Session, and that a Court of Session cannot take cognizance of an offence as a court of original jurisdiction unless the case has been committed to it by a Magistrate. The Act contained no provision excluding section 193, and in the absence of such a provision the Code applied by force of section 4(2). The direct cognizance was therefore without jurisdiction. Ratio: A special statute displaces the general procedure only to the extent of what it actually provides. Where the special law is silent on a step, the Sanhita supplies it, and a court constituted by a special law is bound by the general procedure for that step. |
3.3 Proceedings that are not trials of offences
A significant part of the Sanhita is not concerned with offences at all. Chapter IX regulates security proceedings for keeping the peace and for good behaviour, which are preventive rather than punitive. Chapter X provides the maintenance jurisdiction under section 144, a quasi-civil remedy administered by a Magistrate. Chapter XI deals with unlawful assemblies, public nuisance, urgent orders in cases of nuisance or apprehended danger under section 163, and disputes as to immovable property likely to cause a breach of the peace. Chapter XII deals with the preventive action of the police.
These proceedings do not involve an accusation of an offence, a charge or a conviction. They are nonetheless governed by the Sanhita, and they are the part of it which applies of its own force throughout India. Section 4 does not describe them, because section 4 speaks of offences; their application rests on the terms of the chapters themselves and on section 1(2).
3.4 Offences committed outside India
Section 208 provides that when an offence is committed outside India by a citizen of India, whether on the high seas or elsewhere, or by a person not a citizen on any ship or aircraft registered in India, he may be dealt with in respect of that offence as if it had been committed at any place within India at which he may be found. The proviso requires the previous sanction of the Central Government before any such offence is inquired into or tried in India. Section 209 permits a Central Government direction that evidence taken before a court or authority outside India be received.
📖 Ajay Aggarwal v. Union of India, (1993) 3 SCC 609 Facts: A conspiracy was alleged to have been hatched partly in Dubai and partly in India, and overt acts in pursuance of it were committed in India. The accused contended that because the agreement was entered into abroad, the offence was committed outside India and no court in India could inquire into or try it without the previous sanction of the Central Government under section 188 of the Code of Criminal Procedure, 1973, which had not been obtained at the relevant time. Held: The Supreme Court held that a conspiracy is a continuing offence which continues so long as the agreement subsists and acts are done in pursuance of it. Where part of the conspiracy or an overt act in pursuance of it takes place in India, the offence is committed in India and the courts in India have jurisdiction without recourse to section 188. Sanction under the proviso is required only for the inquiry or trial and is not a condition precedent to investigation or to the taking of cognizance in the sense of barring the initiation of proceedings. Ratio: Territorial application turns on where the offence, or a constituent part of it, was in fact committed, and not merely on where the agreement or the initial act occurred. The sanction requirement in what is now section 208 is directed at the inquiry or trial. |
3.5 Persons and bodies specially treated
Provision | Special treatment |
|---|---|
Section 42 | No member of the Armed Forces of the Union is liable to arrest for anything done in the discharge of official duties except with the consent of the Central Government; the State Government may extend the protection to specified forces charged with the maintenance of public order |
Section 218 | No court may take cognizance of an offence alleged to have been committed by a Judge, Magistrate or public servant not removable save with the sanction of the Government, while acting or purporting to act in the discharge of official duty, without previous sanction; the sanction must be decided within one hundred and twenty days, failing which it is deemed granted |
Sections 215 to 222 | Bars on cognizance without complaint in specified classes of offence, including contempt of lawful authority, offences against the State, offences relating to marriage and defamation |
Juveniles | Section 27 of the CrPC, which conferred jurisdiction in the case of juveniles, is not carried forward. A child in conflict with law is dealt with under the Juvenile Justice (Care and Protection of Children) Act, 2015, which is a special law within the meaning of section 5 |
Section 21 with the First Schedule | The court by which each offence is triable, which is the mechanism by which the Sanhita allocates the trial of an offence among the classes of criminal court |
4. Application to Courts
Section 6 opens with the words “Besides the High Courts and the Courts constituted under any law, other than this Sanhita, there shall be, in every State, the following classes of Criminal Courts”, and then lists Courts of Session, Judicial Magistrates of the first class, Judicial Magistrates of the second class and Executive Magistrates. Three propositions follow from the opening words.
- The Sanhita does not constitute the High Courts, which exist under Article 214 of the Constitution, nor the Supreme Court, which exists under Article 124. It confers powers on the High Courts, in Chapters XXXI to XXXIII and in section 528, but it does not create them.
- Courts constituted under other laws, such as Special Courts under the Narcotic Drugs and Psychotropic Substances Act, 1985 or the Prevention of Money-laundering Act, 2002, continue to exist alongside the courts the Sanhita constitutes. Their existence is preserved, not conferred.
- Read with section 4(2), such a court follows the procedure of the Sanhita except where its own statute provides otherwise, which is the proposition Gangula Ashok applies.
The Sanhita therefore applies to three classes of forum: the criminal courts it constitutes, the High Courts in the exercise of the appellate, revisional and inherent jurisdictions it confers, and courts constituted by other laws so far as those laws leave the general procedure in place.
5. Application in Time: a Note
The fourth dimension of application is time, and it is the one that generates the most litigation. Section 531(1) repeals the Code of Criminal Procedure, 1973, and section 531(2)(a) provides that an appeal, application, trial, inquiry or investigation pending immediately before 1 July 2024 shall be disposed of, continued, held or made under the repealed Code as if the Sanhita had not come into force. The result is that commencement did not produce a clean switch: the two codes operate in parallel, each governing a different set of proceedings, and will continue to do so for years.
Because the subject has a body of its own, including the position of appeals from trials conducted under the old Code, the treatment of fresh petitions arising out of saved proceedings and the divergence among the High Courts, it is dealt with separately in the next topic in this series.
6. Key Takeaways
The position stated shortly 1. Section 1(3) left commencement to notification. The Sanhita received assent on 25 December 2023 and came into force on 1 July 2024 by S.O. 848(E) dated 23 February 2024. 2. The notification excepted the entry in the First Schedule relating to section 106(2) of the Bharatiya Nyaya Sanhita, 2023, so the Sanhita did not commence in a single undifferentiated act. 3. Between assent and the appointed day the Code of Criminal Procedure, 1973 remained the law in force. An offence committed in that window is investigated under the 1973 Code. 4. All three statutes commenced on the same day, which was necessary because each refers to the other two. 5. Section 1(2) contains no positive extent clause; it states only that the Sanhita, save Chapters IX, XI and XII, does not apply to Nagaland and the tribal areas, where the State Government may extend the rest by notification with modifications. 6. The three chapters that always apply are security for keeping the peace, maintenance of public order and tranquillity, and preventive action of the police. Chapter X on maintenance of wives, children and parents is not among them. 7. Section 4(1) applies the Sanhita wholly to offences under the Bharatiya Nyaya Sanhita; section 4(2) applies it to offences under any other law subject to any enactment regulating the manner or place of proceeding; section 5 saves special and local laws: Gangula Ashok. 8. Section 208 permits an offence committed outside India by a citizen, or on an Indian ship or aircraft, to be dealt with as if committed in India, with the previous sanction of the Central Government: Ajay Aggarwal. 9. The Sanhita applies to the criminal courts it constitutes, to the High Courts in the jurisdictions it confers, and to courts constituted by other laws so far as those laws leave the general procedure in place. |
7. Frequently Asked Questions
When did the BNSS, 2023 come into force?
On 1 July 2024, appointed by notification S.O. 848(E) dated 23 February 2024 under section 1(3), except the entry in the First Schedule relating to section 106(2) of the Bharatiya Nyaya Sanhita, 2023.
Why was there a gap between assent and commencement?
Section 1(3) left the date to the Central Government, and roughly six months were allowed so that the police, prosecution, courts and forensic services could prepare and rules could be framed, and so that all three statutes could commence together.
Does the BNSS apply in Nagaland?
Only Chapters IX, XI and XII apply of their own force, dealing with security for keeping the peace and good behaviour, the maintenance of public order and tranquillity, and preventive action of the police. The State Government may apply any of the remaining provisions by notification with modifications. Article 371A of the Constitution protects Naga customary law and the administration of criminal justice according to it.
What are the tribal areas for the purposes of section 1(2)?
The territories which, immediately before 21 January 1972, were included in the tribal areas of Assam as referred to in paragraph 20 of the Sixth Schedule to the Constitution, other than those within the local limits of the municipality of Shillong.
Can an offence committed abroad be tried in India under the BNSS?
Yes, under section 208, where it was committed by a citizen of India anywhere outside India, or by any person on a ship or aircraft registered in India. The previous sanction of the Central Government is required before the offence is inquired into or tried. Where part of the offence was committed in India, as with a conspiracy with overt acts in India, the courts in India have jurisdiction on ordinary principles.
Do Special Courts under special statutes follow the BNSS?
Yes, except where the special statute makes its own provision. Section 4(2) applies the Sanhita to offences under any other law subject to any enactment regulating the manner or place of proceeding, and section 5 saves special jurisdictions and special forms of procedure. Where the special law is silent on a step, the Sanhita supplies it.
Related Topics
- When the BNSS Applies and When the CrPC Continues to Apply
- Object, Scope and Scheme of the BNSS, 2023
- Introduction to the Bharatiya Nagarik Suraksha Sanhita, 2023
- Sections 4 and 5: The BNSS and Special or Local Laws
- Constitution of Criminal Courts and Offices: Sections 6 to 20, BNSS
- Jurisdiction of the Criminal Courts in Inquiries and Trials: Sections 197 to 209