Abstract
The enforcement of the Bharatiya Nyaya Sanhita, 2023 (BNS) and the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) marks a structural transformation of India’s criminal justice framework. While the legislative intent is reformative, transitional ambiguities have arisen regarding the continued applicability of executive notifications issued under repealed procedural regimes. This article critically examines whether Section 351(3) of the BNS—corresponding to Section 506(ii) of the Indian Penal Code—can continue to be treated as a non-bailable offence in the Union Territory of Puducherry based on a 1970 notification issued under the Code of Criminal Procedure, 1898. By analysing saving clauses, statutory repeal doctrine, and constitutional guarantees of personal liberty, the article argues that such continuation lacks legal authority under the BNSS and requires immediate judicial or legislative clarification.
I. Introduction
India’s criminal law reform, effective from 1 July 2024, replaced three foundational colonial-era statutes with new enactments aimed at improving efficiency, victim-centric justice, and constitutional compliance. However, legislative transitions of this magnitude inevitably produce interpretative gaps, particularly where executive practices rooted in repealed statutes continue without express statutory sanction.
One such gap concerns the classification of offences as bailable or non-bailable under the BNS. In Puducherry, Section 351(3) of the BNS is presently treated as a non-bailable offence, following a Home Department notification dated 11 August 1970. This article examines whether such practice is legally sustainable after the repeal of the Code of Criminal Procedure, 1973 by the BNSS.
II. Legislative Background of Section 351(3) BNS
Section 351(3) of the BNS is pari materia to Section 506(ii) of the Indian Penal Code, 1860, dealing with aggravated criminal intimidation. Under the First Schedule to the Code of Criminal Procedure, 1973, Section 506(ii) IPC was categorised as a bailable offence.
Notwithstanding this statutory classification, Puducherry historically treated the offence as non-bailable pursuant to G.O.Ms.No.68/Home(1), dated 11.08.1970. This notification was issued under Section 10 of the Criminal Law Amendment Act, 1932, read with the procedural framework of the Code of Criminal Procedure, 1898.
III. Saving Clauses and the Doctrine of Statutory Continuity
A. Position under the CrPC, 1973
Section 484(2)(b) of the Code of Criminal Procedure, 1973 expressly saved notifications issued under the Code of Criminal Procedure, 1898. By virtue of this saving clause, the 1970 notification continued to operate legally even after the repeal of the 1898 Code.
B. Shift under the BNSS, 2023
The BNSS adopts a significantly narrower saving clause. Section 531(2)(b) saves only those notifications that were issued under the Code of Criminal Procedure, 1973, and were in force immediately before the commencement of the BNSS.
Crucially, the BNSS makes no reference to notifications issued under the Code of Criminal Procedure, 1898. The legislative omission is deliberate and doctrinally significant. Once the CrPC, 1973 is repealed, notifications whose survival depended on its saving clause lose their statutory anchor.
IV. Legal Effect of the 1970 Puducherry Notification Post-BNSS
The 1970 notification owes its continued existence solely to Section 484(2)(b) of the CrPC, 1973. With the repeal of that provision, the notification stands unsupported by any saving mechanism under the BNSS.
In the absence of:
- a fresh notification issued under the BNSS, or
- an express saving clause extending protection to 1898-based notifications,
the continued classification of Section 351(3) BNS as non-bailable lacks legal authority. Executive practice cannot override statutory repeal, nor can historical convenience substitute legislative mandate.
V. Constitutional Dimensions: Article 21 and Bail Jurisprudence
The classification of an offence as non-bailable directly impacts personal liberty. The Supreme Court has consistently held that deprivation of liberty must be strictly “according to procedure established by law” under Article 21 of the Constitution.
Treating an offence as non-bailable without a valid statutory basis:
- exposes arrests and remand orders to constitutional challenge, and
- undermines the principle that bail is the rule and jail is the exception.
In transitional regimes, ambiguity must operate in favour of liberty, not executive restraint.
VI. Need for Institutional Clarification
The present uncertainty has serious systemic consequences:
- inconsistent police practice,
- conflicting magisterial orders, and
- erosion of procedural uniformity.
There is an urgent need for:
- Judicial interpretation by constitutional courts on the survival of pre-1898 notifications under the BNSS; or
- Executive action through issuance of a fresh, BNSS-compliant notification, if policy considerations so warrant.
Until such clarification, continuing to rely on the 1970 notification risks rendering criminal proceedings vulnerable to legal invalidation.
VII. Conclusion
The transition to the Bharatiya Nagarik Suraksha Sanhita marks a conscious legislative break from colonial procedural frameworks. Saving clauses must therefore be interpreted strictly and not expansively. The Puducherry notification dated 11.08.1970, having originated under a repealed code and lacking preservation under the BNSS, cannot govern the bailability of Section 351(3) of the BNS.
Rectifying this anomaly is essential to uphold statutory coherence, constitutional liberty, and the rule of law in the post-reform criminal justice system.
