Abstract
The enactment of the Bharatiya Nyaya Sanhita, 2023 (BNS) and the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) signifies both legislative continuity and procedural disruption within India’s criminal justice system. While several offences under the new penal code retain substantive similarity with their predecessors under the Indian Penal Code, 1860, the procedural consequences attached to such offences—particularly with respect to bailability—have undergone a decisive transformation. Section 118(1) of the Bharatiya Nyaya Sanhita, which is pari materia to Section 324 of the Indian Penal Code, presents a compelling illustration of this transitional complexity. Despite the comprehensive notification of the First Schedule under the Bharatiya Nagarik Suraksha Sanhita, 2023, the offence continues in practice to be treated as bailable in certain jurisdictions, revealing a disconnect between legislative intent and procedural application. This article critically examines the historical evolution, statutory notifications, and legal consequences of such misclassification in the post-BNSS era.
1. Introduction
The criminal law reforms introduced through the Bharatiya Nyaya Sanhita, 2023, the Bharatiya Nagarik Suraksha Sanhita, 2023, and the Bharatiya Sakshya Adhiniyam, 2023 represent one of the most comprehensive statutory overhauls since independence. Effective from 1 July 2024, these enactments replaced the colonial-era Indian Penal Code, 1860, the Code of Criminal Procedure, 1973, and the Indian Evidence Act, 1872 respectively. While the objectives of these reforms are progressive—simplification, modernization, and victim-centric justice—the transition phase has revealed inconsistencies in practical implementation. A notable example is the classification of offences under the First Schedule of the BNSS, particularly concerning Section 118(1) of the BNS.
2. Section 118(1) BNS and Its Legislative Lineage
Section 118(1) of the Bharatiya Nyaya Sanhita corresponds directly to Section 324 of the Indian Penal Code, which dealt with voluntarily causing hurt by dangerous weapons or means. Historically, Section 324 IPC was treated as a bailable offence.However, the Code of Criminal Procedure (Amendment) Act, 2005 sought to reclassify Section 324 IPC as a non-bailable offence through Section 42(f)(iii). Despite the enactment of the Amendment Act, the Central Government, while notifying the enforcement of the Act vide Notification S.O. 923(E) dated 21.06.2006, expressly excluded Section 42(f)(iii) from coming into force. This legislative omission resulted in a peculiar legal situation where, despite Parliament’s intent, Section 324 IPC continued to be treated as bailable due to non-notification.
3. The BNSS, 2023: A Clean Legislative Slate
The legal landscape underwent a decisive change with the enactment of the Bharatiya Nagarik Suraksha Sanhita, 2023. Unlike the partial and selective enforcement witnessed in 2005, the Central Government, through Notification S.O. 848(E) dated 23.02.2024, notified 01.07.2024 as the date on which all the provisions of BNSS, 2023 shall come into force, except the specific entry relating to Section 106(2) in the First Schedule – which means all the provisions and the related entries have been enforced on the said date by only excluding the entries related Section 106(2) in the First Schedule.
This notification is legally significant for three reasons:
- Comprehensive Enforcement – There is no selective exclusion of entries relating to Section 118(1) of BNS.
- Repeal of Cr.P.C., 1973 – The procedural framework governing bailability now flows exclusively from BNSS and not from an un-enforced entry notified on a repealed Law.
- Legislative Intent Made Operative – Unlike the 2005 amendment, the intent behind classification is no longer suspended by executive inaction.
4. The Continuing Practice: A Legal Anomaly
Despite the clear notification of BNSS provisions, Section 118(1) of the BNS continues to be treated as a bailable offence in certain jurisdictions, including Puducherry. This practice appears to be a mechanical continuation of the earlier position under Section 324 IPC, without accounting for the changed statutory regime.
Such an approach raises serious legal concerns:
- Doctrine of Repeal and Substitution: Once Cr.P.C., 1973 stands repealed, precedents based on non-notification under the repealed statute cannot govern the interpretation of BNSS.
- Violation of Legislative Supremacy: Administrative or judicial practice cannot override an expressly notified statutory schedule.
- Systemic Inconsistency: Differential treatment of the same offence undermines uniformity in criminal administration.
5. Constitutional and Jurisprudential Implications
The incorrect classification of Section 118(1) BNS as bailable has broader constitutional implications. Bailability directly affects:
- Personal Liberty under Article 21
- Uniform Application of Law under Article 14
- Public Confidence in Criminal Justice Administration
While liberty is a cherished constitutional value, it must operate within the boundaries set by law. Grant of bail in non-bailable offences by misclassification amounts to jurisdictional error rather than judicial discretion.
6. The Need for Judicial and Administrative Clarification
The rationale historically relied upon to justify the bailable classification of Section 324 of the Indian Penal Code cannot be mechanically extended to the procedural framework governing the Bharatiya Nagarik Suraksha Sanhita. In the post-BNSS regime, the continued reliance on earlier practices, despite the comprehensive statutory notification of the First Schedule, has generated interpretative uncertainty at the level of implementation. The present circumstances call for structured institutional clarification through uniform procedural guidance, appropriate administrative directions to ensure consistency in practice, and capacity-building initiatives for prosecuting agencies and law-enforcement authorities. Such measures are necessary to promote uniformity, legal certainty, and faithful implementation of the legislative scheme underlying the new criminal codes.
7. Conclusion
The transition from IPC and Cr.P.C. to BNS and BNSS is not merely a change in nomenclature but a structural transformation of criminal law. Section 118(1) of the Bharatiya Nyaya Sanhita must be interpreted within this new statutory context. Given the explicit notification of the First Schedule under BNSS, continuing to treat the offence as bailable is legally unsustainable.
Correct classification is not a procedural technicality it is a foundational requirement for the rule of law. Failure to realign practice with statute risks perpetuating errors from a repealed regime into a reformed legal system.
