Trial of Offences under and Other Laws | BNSS 2023

Trial of Offences under the BNS and Other Laws: Sections 4 and 5 of the BNSS, 2023, the General and Special Law, and When a Special Statute Displaces the Sanhita

Sections 4 and 5 of the Bharatiya Nagarik Suraksha Sanhita, 2023 are two short provisions that decide one of the most frequently litigated questions in Indian criminal practice: when a prosecution is brought under a special statute, whose procedure governs? They are read together, they point in opposite directions, and between them they produce a single rule. The Sanhita is the default procedure for every offence in the statute book, and a special law displaces it only where it has actually made its own provision, and only to the extent of that provision.

The proposition is easy to state and difficult to apply, because it turns on a question of construction that has to be asked separately for every step in a case. The question is never whether the statute is a special one. It is whether the statute has made provision for the particular thing now being done.

1. The Text

Sections 4 and 5, BNSS 2023

4. Trial of offences under Bharatiya Nyaya Sanhita, 2023 and other laws. (1) All offences under the Bharatiya Nyaya Sanhita, 2023 shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.

(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, 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.

5. Saving. Nothing contained in this Sanhita shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.

Figure 1: How the two sections and the Explanation to section 2(1)(l) fit together

2. Section 4(1): the Unqualified Limb

The first limb applies the Sanhita to all offences under the Bharatiya Nyaya Sanhita, 2023 without any qualification whatever. There is no saving, no exception and no reference to any other enactment. An offence under the substantive statute is investigated, inquired into and tried under the Sanhita and under nothing else.

Two words in the limb deserve notice. “Investigated” brings in the whole of Chapter XIII and the powers of arrest, search and seizure that accompany it, so the limb is not confined to what happens in court. And “otherwise dealt with” is a residual expression covering steps that are neither investigation, inquiry nor trial: the disposal of property under Chapter XXXVI, the execution of a sentence under Chapter XXXIV, remission, bail, and the machinery of appeal and revision.

3. Section 4(2): the Qualified Limb

The second limb applies the same provisions to offences under any other law, subject to any enactment regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. Three points of construction arise.

3.1 The qualification is narrow in its terms

What is saved is an enactment regulating the manner or place of proceeding. It is not every provision of a special statute that has this character. A provision creating an offence, prescribing a punishment or raising a presumption does not regulate the manner or place of proceeding, and does not therefore displace the Sanhita. A provision constituting a Special Court, prescribing who may investigate, fixing where the trial is to be held, or laying down how a statement is to be recorded, does.

3.2 Silence is not exclusion

The most important consequence of the drafting is negative. The Sanhita applies unless displaced, so where the special law is silent on a step, the Sanhita supplies it. The absence of a provision in the special law is not an indication that the step may not be taken; it is an indication that the general law governs it. This is the proposition on which most of the case law under sections 4 and 5 turns.

3.3 The displacement is only to the extent of the provision

A special law that regulates one step does not carry the whole of a case out of the Sanhita. The Narcotic Drugs and Psychotropic Substances Act, 1985 regulates search, seizure, arrest and bail, and constitutes Special Courts; everything else in a prosecution under that Act, from cognizance to appeal, is governed by the Sanhita. The displacement is provision by provision, not statute by statute.

Figure 2: What each special statute supplies, and where the Sanhita continues to operate

4. Section 5: the Saving, and the Maxim

Section 5 states the same relationship from the other direction. Nothing in the Sanhita affects a special or local law, a special jurisdiction or power conferred, or a special form of procedure prescribed by any other law, in the absence of a specific provision to the contrary. Three things are saved and the exception is important.

A special or local law. “Special law” and “local law” take their meaning from the Bharatiya Nyaya Sanhita through section 2(2) of the Sanhita: a special law is one applicable to a particular subject, and a local law is one applicable only to a particular part of India.
A special jurisdiction or power conferred by another law. This covers the constitution of Special Courts and the conferment of powers on officers who are not police officers.
A special form of procedure prescribed by another law. This covers the procedural provisions of the special statute itself.
“In the absence of a specific provision to the contrary.” Where the Sanhita specifically provides otherwise, the Sanhita prevails over the special law. The saving is therefore not absolute, and it yields to an express provision in the general statute.

The relationship the two sections describe is the statutory expression of the maxim generalia specialibus non derogant: general provisions do not derogate from special ones. But the maxim is a rule of construction and not a rule of automatic priority, and sections 4(2) and 5 confine it. The special law prevails where it has provided; where it has not, there is nothing for the maxim to operate on.

4.1 The third provision

A rule of priority also appears where one would not expect to find it. The Explanation to the definition of “investigation” in section 2(1)(l) provides 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. Although attached to a definition, what it states is general and matches sections 4(2) and 5. Its placement is a drafting curiosity rather than a limitation on its scope, and it is new to the Sanhita.

5. The Case Law

📖 A.R. Antulay v. Ramdas Sriniwas Nayak, (1984) 2 SCC 500 (Constitution Bench)

Facts: A private complaint was filed against a public servant alleging offences under the Prevention of Corruption Act, 1947. It was contended that the scheme of that Act, which provided for trial by a Special Judge and for investigation by designated police officers, impliedly excluded a private complaint, so that the offences could be prosecuted only on a police report.

Held: The Constitution Bench held that the Prevention of Corruption Act contained no provision excluding a private complaint, and that in the absence of such a provision the general law applied. Section 4(2) of the Code of Criminal Procedure applies the Code to offences under other laws, subject only to any enactment regulating the manner or place of proceeding, and section 5 saves special procedure only so far as it exists. The right of any person to set the criminal law in motion by a complaint is a right recognised by the general law and is not taken away by implication. The Special Judge could therefore take cognizance on a private complaint.

Ratio: A special statute excludes the general law only by what it provides, not by the scheme a court might infer from it. Where the special law is silent, the Code applies, and an exclusion is not to be read in by implication.

The decision is the clearest statement of the method sections 4 and 5 require. The court does not ask whether the special Act appears to be a self-contained code; it asks whether the Act contains a provision regulating the particular step. The next decision applies the same method to reach the opposite result, and the two together show that the rule is neutral as between the general law and the special one.

📖 Jeewan Kumar Raut v. Central Bureau of Investigation, (2009) 7 SCC 526

Facts: The accused were prosecuted under the Transplantation of Human Organs Act, 1994. That Act provides that no court shall take cognizance of an offence under it except on a complaint made by an appropriate authority or by a person who has given notice of his intention to complain. The investigation exceeded the statutory period and the accused claimed default bail on the footing that no police report had been filed within it.

Held: The Supreme Court held that the Act is a special statute which, by requiring cognizance to be taken only on a complaint, excludes the filing of a police report under section 173 of the Code. Since the investigating agency could not file a police report at all, the provision of the Code conferring a right to default bail on the failure to file one within the prescribed period had no application. Section 4(2) of the Code makes the Code applicable subject to the special enactment, and where the special enactment prescribes a different mode of initiating proceedings, that mode governs.

Ratio: Where a special law regulates the manner of initiating proceedings, the provisions of the Sanhita that presuppose the ordinary manner do not apply. The displacement of one provision may carry with it the provisions that depend on it.

⚠ Reading the two decisions together

Both apply the same test and reach opposite results, which is what makes the pair instructive. In the first, the special Act said nothing about who might complain, so the general law supplied the answer. In the second, the special Act did say how proceedings were to be initiated, and the general law yielded on that point and on the provisions that depended on it.

The practical method follows. Identify the step in question with precision. Read the special Act to see whether it regulates that step. If it does, apply it and ask how far the displacement extends. If it does not, apply the Sanhita, and do not infer an exclusion from the scheme of the Act or from the seriousness of the subject.

6. Applying Sections 4 and 5 in Practice

Identify the step. Arrest, search, the recording of a statement, cognizance, the framing of a charge, the grant of bail, the conduct of the trial, appeal, and execution are each separate questions, and a special law may govern one and not another.
Read the special Act for a provision on that step. A provision creating an offence or a presumption does not count; a provision regulating the manner or place of proceeding does.
Where such a provision exists, apply it, and consider what depends on it. A special provision on the manner of initiating proceedings carries with it the provisions of the Sanhita that presuppose the ordinary manner.
Where no such provision exists, apply the Sanhita. Silence is not exclusion, and an exclusion is not to be inferred from the scheme of the Act.
Check whether the Sanhita itself provides to the contrary. Section 5 saves special laws only in the absence of a specific provision to the contrary in the Sanhita, so an express provision in the general statute prevails.

Question in a prosecution under a special Act	Who governs, and why
May a private complaint be filed?	The Sanhita, unless the special Act requires a complaint by a designated authority or excludes a private complaint: A.R. Antulay
Is a police report to be filed on completion of investigation?	The Sanhita, unless the special Act prescribes a different mode of initiating proceedings: Jeewan Kumar Raut
Must the case be committed to the Court of Session?	The Sanhita, where the special Act constitutes a Special Court that is a Court of Session and says nothing about committal
What is the period of detention during investigation?	Section 187 of the Sanhita, unless the special Act extends it, as the Unlawful Activities (Prevention) Act does
On what conditions may bail be granted?	Section 480 of the Sanhita, subject to any twin conditions the special Act imposes
How is the trial conducted?	The Sanhita, except to the extent the special Act prescribes its own procedure
Is the offence cognizable and bailable?	As the special Act classifies it; if it is silent, Part II of the First Schedule classifies it by punishment

7. Key Takeaways

The position stated shortly

1. Section 4(1) applies the Sanhita, without qualification, to all offences under the Bharatiya Nyaya Sanhita, 2023.

2. Section 4(2) applies it to offences under any other law, subject only to an enactment regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with the offence.

3. Section 5 saves special and local laws, special jurisdictions and powers, and special forms of procedure, but only in the absence of a specific provision to the contrary in the Sanhita.

4. The Explanation to section 2(1)(l) adds that where a special Act is inconsistent with the Sanhita, the special Act prevails. It is new, and it is general in effect despite its placement.

5. The rule the three produce: the Sanhita is the default procedure, displaced only where the special law has actually provided, and only to the extent of that provision.

6. Silence in a special law is not exclusion. An exclusion of the general law is not inferred from the scheme of the Act: A.R. Antulay.

7. Where a special law does regulate the manner of initiating proceedings, the provisions of the Sanhita that presuppose the ordinary manner fall away with it: Jeewan Kumar Raut.

8. The displacement is step by step, not statute by statute. A special Act that governs search and bail leaves cognizance, charge, trial and appeal to the Sanhita.

9. The words “otherwise dealt with” in section 4 extend the Sanhita beyond investigation, inquiry and trial to the disposal of property, execution, remission and bail.

8. Frequently Asked Questions

What do sections 4 and 5 of the BNSS provide?

Section 4(1) applies the Sanhita to all offences under the Bharatiya Nyaya Sanhita without qualification. 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, special jurisdictions and powers, and special forms of procedure, unless the Sanhita specifically provides to the contrary.

Does the BNSS apply to offences under special statutes?

Yes, of its own force. The special statute displaces the Sanhita only to the extent that it has made its own provision regulating the manner or place of proceeding. Every step the special statute does not regulate continues to be governed by the Sanhita.

What is the difference between section 4(2) and section 5?

They state the same relationship from opposite directions. Section 4(2) is the positive rule: the Sanhita applies to offences under other laws, subject to any contrary enactment. Section 5 is the saving: nothing in the Sanhita affects a special or local law, a special jurisdiction or a special procedure, absent a specific provision to the contrary.

Can a private complaint be filed for an offence under a special Act?

Yes, unless the special Act provides otherwise. The Constitution Bench held in A.R. Antulay v. R.S. Nayak that the Prevention of Corruption Act did not exclude a private complaint, and that an exclusion of the general law is not to be read in by implication.

Does the right to default bail apply to every special Act?

It applies wherever the ordinary machinery of investigation and police report applies. Where the special Act requires proceedings to be initiated by a complaint from a designated authority and excludes a police report, the provision conferring default bail on the failure to file a report has no application: Jeewan Kumar Raut.

What is the maxim generalia specialibus non derogant?

That general provisions do not derogate from special ones. Sections 4(2) and 5 give it statutory form and also confine it: the special law prevails where it has provided, and where it has not there is nothing for the maxim to operate on.

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