Criminal Procedure: Code of Criminal Procedure, 1973 / Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)

Classification of Offences under the First Schedule

Classification of Offences under the First Schedule to the BNSS, 2023: The Six Columns, Part II, and How Punishment Fixes the Procedure

The First Schedule to the Bharatiya Nagarik Suraksha Sanhita, 2023 is the least read and most frequently used part of the statute. It is where a practitioner goes to find out whether the police may arrest without a warrant, whether the accused is entitled to bail as of right, and which court will try the case. None of those questions is answered anywhere in the body of the Sanhita, because the definitions in section 2 answer them by pointing to the Schedule.

The Schedule is therefore the point at which the substantive statute controls the procedural route. The Bharatiya Nyaya Sanhita defines an offence and fixes its punishment; the First Schedule reads that punishment and assigns the offence to a procedural track; and the rest of the Sanhita follows the track. An answer reasoned from the seriousness of the conduct rather than from the entry is arrived at the wrong way, however often it happens to be right.

1. The Structure of the Schedule

The First Schedule has two parts. Part I deals with offences under the Bharatiya Nyaya Sanhita, 2023 and classifies each of them individually, section by section. Part II deals with offences under any other law and classifies them by reference to the length of the punishment, so that a special statute which says nothing about classification is nonetheless classified.

1.1 The six columns of Part I

Figure 1: The six columns and what each of them feeds

Column

Contents

Where it operates in the Sanhita

1. Section

The section of the Bharatiya Nyaya Sanhita creating the offence

Identifies the offence; the charge is framed under this section

2. Offence

A short description of the offence

Descriptive; it does not control the section

3. Punishment

The punishment the Bharatiya Nyaya Sanhita prescribes

Drives the whole procedure: warrant or summons case under section 2(1)(z) and (x), preliminary inquiry under section 173(3), forensic investigation under section 176(3), the period of detention under section 187, summary trial under section 283, and the monitoring tier under section 20

4. Cognizable or non-cognizable

Whether a police officer may arrest without a warrant

Feeds the definitions in sections 2(1)(g) and 2(1)(o), and therefore sections 173, 174, 175 and 35

5. Bailable or non-bailable

Whether bail is claimable as of right

Feeds the definition in section 2(1)(c), and therefore sections 478 and 480

6. By what court triable

Court of Session, Magistrate of the first class, or any Magistrate

Feeds section 21, and determines whether the case must be committed under section 232

Columns 4, 5 and 6 are the operative ones. Columns 1 and 2 identify the offence and column 3 states what the substantive law provides. It is worth noticing that column 3 is not itself the source of the punishment: the Bharatiya Nyaya Sanhita is. The Schedule reproduces it, and where the two differ the substantive statute governs.

2. Part II: Offences Under Other Laws

Figure 2: The three punishment bands in Part II

Part II applies to offences under any law other than the Bharatiya Nyaya Sanhita. It classifies by punishment alone, in three bands, and it is a residual provision: it operates only so far as the special law has not classified the offence itself.

Punishment prescribed by the special law

Cognizable or non-cognizable

Bailable or non-bailable

By what court triable

Death, imprisonment for life, or imprisonment for more than seven years

Cognizable

Non-bailable

Court of Session

Imprisonment for three years and upwards but not more than seven years

Cognizable

Non-bailable

Magistrate of the first class

Imprisonment for less than three years, or with fine only

Non-cognizable

Bailable

Any Magistrate

⚠ Two lines in Part II that are easy to misread

The first band uses “more than seven years” and the second “three years and upwards but not more than seven years”. An offence punishable with exactly seven years therefore falls into the second band, and is triable by a Magistrate of the first class rather than by the Court of Session.

The third band uses “less than three years”. An offence punishable with exactly three years falls into the second band and is cognizable and non-bailable. The line between the second and third bands is therefore drawn at three years, and an offence at exactly that figure sits above it.

📖 Om Prakash v. Union of India, (2011) 14 SCC 1

Facts: The question was whether offences under the Central Excise Act, 1944 and the Customs Act, 1962, which those statutes did not themselves classify, were cognizable and non-bailable, and whether officers under those Acts could arrest without a warrant in the same manner as police officers. The revenue contended that the gravity of economic offences and the powers of arrest conferred by the special statutes made them cognizable.

Held: The Supreme Court held that where the special Act does not declare the offence to be cognizable, the classification must be found in the Code of Criminal Procedure read with Part II of its First Schedule. Applying the bands, offences punishable with imprisonment of less than three years were non-cognizable and bailable, and the power of arrest conferred by the special statute did not by itself convert the offence into a cognizable one. The Court emphasised that the consequences of classification, including the power to investigate without a Magistrate’s order, follow from the classification and not from the label attached to the officer exercising the power.

Ratio: Where a special law is silent, Part II of the First Schedule supplies the classification, and it does so by the punishment alone. A statutory power of arrest is not the same thing as the offence being cognizable.

The decision has since been overtaken in its specific application by amendments to the taxing statutes, which now classify their own offences, but the method it states is unaffected and is the method Part II requires. The first question is always whether the special law has classified the offence; only if it has not does Part II operate.

3. How the Punishment Drives the Procedure

Column 3 of Part I, and the bands of Part II, are read not only for the classification but for a series of further consequences. The punishment prescribed by the substantive law is the single most productive fact about an offence in procedural terms.

Threshold

Consequence

Provision

Exceeding two years

The case is a warrant case; every other case is a summons case

Sections 2(1)(z) and 2(1)(x)

Less than three years, where the accused is infirm or above sixty

No arrest without the prior permission of an officer not below the rank of Deputy Superintendent of Police

Section 35(7)

Less than three years, or fine only, under a special law

Non-cognizable and bailable under Part II

First Schedule, Part II

Three years and upwards but less than seven

A preliminary inquiry of fourteen days is available with the prior permission of a Deputy Superintendent of Police

Section 173(3)

Up to three years

The case may be tried summarily

Section 283

Seven years or more

A forensic expert must visit the scene and the process must be videographed

Section 176(3)

Less than seven; seven to under ten; ten and above

Determines which officer of the Directorate of Prosecution monitors the case

Section 20(7), (8) and (9)

Not less than ten years, imprisonment for life, or death

The period of detention during investigation is ninety days, and the police custody window is the first sixty days

Section 187

Death or imprisonment for life

Exclusively triable by the Court of Session; committal under section 232; confirmation of a death sentence under Chapter XXX

First Schedule and section 21

Death or imprisonment for life

Bail in a non-bailable offence is restricted where there appear reasonable grounds for believing the accused guilty

Section 480

Death or imprisonment for life

The benefit of release of an undertrial under section 479 is excluded

Section 479

📖 Rajeev Chaudhary v. State (N.C.T.) of Delhi, (2001) 5 SCC 34

Facts: The accused was charged with an offence punishable with imprisonment which could extend to ten years. The investigation was not completed within sixty days, and he claimed default bail. The prosecution contended that the applicable period was ninety days because the offence was punishable with imprisonment for ten years. The question was the meaning of the expression “imprisonment for a term of not less than ten years” in the proviso to section 167(2) of the Code of Criminal Procedure, 1973.

Held: The Supreme Court held that the expression “not less than ten years” means that the offence must be punishable with a minimum of ten years, and does not cover an offence for which the punishment may extend up to ten years. An offence punishable with imprisonment which may extend to ten years therefore attracts the sixty-day period and not the ninety-day period, and the accused became entitled to default bail on the expiry of sixty days.

Ratio: A threshold expressed as “not less than” refers to the minimum the law prescribes, and a threshold expressed as “up to” or “may extend to” refers to the maximum. The procedural consequence depends on reading the punishment clause precisely.

The point is general. A threshold in the Sanhita may be expressed as a maximum, as in section 2(1)(z) with its “exceeding two years”, or as a minimum, as in section 187 with its “not less than ten years”. The two read in opposite directions, and confusing them produces the wrong period, the wrong court or the wrong classification. Section 187 is the provision on which this most often matters, because the difference between sixty and ninety days is the difference between the accused being entitled to release and not.

4. The Schedule and the Special Law

Sections 4(2) and 5 of the Sanhita apply the procedure of the Sanhita to offences under other laws, subject to any enactment regulating the manner or place of proceeding, and save special and local laws. The First Schedule operates within that framework, and the order of questions is fixed.

  1. Has the special law itself classified the offence as cognizable or non-cognizable, or bailable or non-bailable? If so, that classification governs, and Part II does not operate.
  2. Has the special law constituted a court or designated one to try the offence? If so, that displaces the last column of Part II, though the procedure the court follows remains that of the Sanhita except so far as the special law provides otherwise.
  3. If the special law is silent on either question, Part II supplies the answer by reference to the punishment the special law prescribes.

Statute

Does it classify its own offences?

Effect

Narcotic Drugs and Psychotropic Substances Act, 1985

Yes. Section 37 makes the specified offences cognizable and non-bailable and adds twin conditions for bail

Part II does not operate; section 37 governs, and the Sanhita supplies the remaining procedure

Prevention of Money-laundering Act, 2002

Yes, as to bail; section 45 imposes twin conditions

The special provision governs bail; the trial before the Special Court proceeds under the Sanhita

Protection of Children from Sexual Offences Act, 2012

It constitutes Special Courts and prescribes child-friendly procedure, and the classification of the offences appears in Part I of the First Schedule for the corresponding BNS offences and by reference for POCSO offences

The special procedure governs where provided; the Sanhita supplies the rest

A taxing or regulatory statute that is silent

No

Part II classifies by the punishment prescribed, on the method stated in Om Prakash

5. The Schedule Is Not Static

⚠ Two points about the Schedule as an instrument

The Schedule takes effect as notified. The notification appointing 1 July 2024 as the date of commencement excepted the entry in the First Schedule relating to sub-section (2) of section 106 of the Bharatiya Nyaya Sanhita, 2023, which was kept in abeyance. A question about the classification of that offence is not answered by the Schedule as printed in a bare Act.

A change in the punishment prescribed by the Bharatiya Nyaya Sanhita, or by a special law, changes the procedure applicable to the offence without any amendment to the Sanhita, because the thresholds in sections 2(1)(z), 35(7), 173(3), 176(3), 187, 283 and 480 are all read against the punishment. The procedural consequences of a penal amendment are therefore easy to overlook.

6. Key Takeaways

The position stated shortly

1. The First Schedule has two parts: Part I classifies offences under the Bharatiya Nyaya Sanhita individually; Part II classifies offences under other laws by punishment.

2. Part I has six columns: the section, the offence, the punishment, cognizable or non-cognizable, bailable or non-bailable, and the court by which triable.

3. The definitions in sections 2(1)(g), 2(1)(o) and 2(1)(c) operate by reference to the Schedule. The Sanhita nowhere states which offences are cognizable or bailable.

4. Part II has three bands: more than seven years, or life or death, is cognizable, non-bailable and triable by the Court of Session; three years and upwards but not more than seven is cognizable, non-bailable and triable by a Magistrate of the first class; less than three years or fine only is non-cognizable, bailable and triable by any Magistrate.

5. Exactly seven years falls in the second band; exactly three years falls in the second band. Read the “more than” and “less than” precisely.

6. Part II operates only where the special law is silent. Where the special law classifies the offence, that classification governs: Om Prakash.

7. A statutory power of arrest conferred on an officer under a special law does not by itself make the offence cognizable.

8. A threshold expressed as “not less than ten years” means a minimum of ten years, not a maximum that may extend to ten: Rajeev Chaudhary. The distinction decides the sixty-day or ninety-day period under section 187.

9. The Schedule takes effect as notified, and the entry relating to section 106(2) of the Bharatiya Nyaya Sanhita was kept in abeyance at commencement.

7. Frequently Asked Questions

What is the First Schedule to the BNSS?

A Schedule in two parts that classifies offences. Part I classifies each offence under the Bharatiya Nyaya Sanhita in six columns; Part II classifies offences under other laws by reference to the punishment prescribed.

How do I find out whether an offence is cognizable?

By reading column 4 of the entry for that offence in Part I. For an offence under a special law, by reading the special law first, and if it is silent, by applying the bands in Part II.

Is an offence punishable with exactly seven years triable by the Court of Session?

Under Part II, no. The first band covers punishment of more than seven years; exactly seven falls in the second band, which is triable by a Magistrate of the first class. For an offence under the Bharatiya Nyaya Sanhita, the answer is whatever column 6 of the Part I entry states.

What does “not less than ten years” mean in section 187?

A minimum of ten years. An offence punishable with imprisonment which may extend to ten years does not satisfy it, and attracts the sixty-day period rather than the ninety-day period, as the Supreme Court held in Rajeev Chaudhary.

Does the First Schedule apply to offences under the NDPS Act or the PMLA?

Only so far as those statutes are silent. Both classify their own offences and impose their own bail conditions, and under sections 4(2) and 5 the special provision governs to the extent of what it provides. Part II supplies the classification only where the special law has not.

Can the classification of an offence change without amending the BNSS?

Yes. Because the procedural thresholds are read against the punishment prescribed by the substantive law, an amendment to the Bharatiya Nyaya Sanhita or to a special law that alters the punishment can alter the classification and the procedure without any amendment to the Sanhita itself.

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  • Cognizable and Non-Cognizable Offences under the BNSS, 2023
  • Bailable and Non-Bailable Offences under the BNSS, 2023
  • Summons Case and Warrant Case under the BNSS, 2023
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