The single judge bench, comprised of Madras high court has committed a “legal error apparent on face of the record”, by observing the offence U/S 351(2) of BNS,2023 as “bailable” in nature in its order dated 06-08-2026 in CRL OP NO.22037 of 2026. The above observation is repugnant to the position of law and a notification that has been passed by the Government of Tamil Nadu under section 10 of Criminal law amendment Act,1932, which declared that offence U/S 506 of IPC,1860 (351 of BNS) the offence of criminal intimidation as “non-bailable”. But, oddly, Government advocate (Criminal Side) didn’t raise any objection or put forth any argument to that effect. It will be demonstrated herewith why the abovesaid observation is untenable in the eyes of law, its implications on the machinery of criminal justice system in Tamil Nadu, as it is, one of the most frequently and contested section 351 (Offence of Criminal Intimidation) which can be perceived in multiple FIRs and bail proceedings.
Implications of above observation
The classification of offences, as bailable and non-bailable is significantly imperative for an accused “right to apply for and get an anticipatory bail and regular bail” as well as for victim while opposing the bail as intervenor in trial courts and higher courts especially against the history sheeter. Bail is one of the critical pre-trial aspects in the administration of criminal justice system in India.
The law relating to bail are governed under chapter XXXV of Bharatiya Nagarik Suraksha Sanhita (erstwhile crpc,1973) but it is not exhaustive one, the reason is simple that, there are is no guiding principles under the chapter of Bail except the Judicial precedents, for how to exercise judicial discretion in case of non bailable offences. By observing non-bailable offence as bailable offence hampers the right of the accused to apply for anticipatory bail, as the same applies only to non-bailable offences and also it will curtail the exercise of judicial discretion. The observation will cause procedural hurdles and unwarranted confusion in the machinery of criminal justice system in Tamil Nadu, which will eventually affect the rights of the accused as well as victim.
1970 notification vis-à-vis Delegated legislative power on Tamil Nadu
The first schedule of BNSS provides a table of classification of offences as bailable and non -bailable, a procedural aspect, in that, the offence of criminal intimidation U/S 351 of BNS has been portrayed as bailable one. In this regard, it is apposite to note section 10 of criminal law amendment Act,1932 which is a delegated power upon the state governments to declare certain offences as cognizable and non-bailable. The above section is extracted here in below:
10. Power of State Government to make certain offences cognizable and non-bailable
(1)The State Government may, by notification in the Official Gazette, declare that any offence punishable under sections 186, 188, 189, 190, 228, 295-A, 298, 505, 506 or 507 of the Indian Penal Code (45 of 1860), when committed in any area specified in the notification shall, notwithstanding anything contained in the [Code of Criminal Procedure, 1898 (5 of 1898)] [[Now see the Code of CriminalProcedure, 1973 (2 of 1974).]], be cognizable, and thereupon the [Code of Criminal Procedure, 1898 (5 of 1898)] [[Now see the Code of Criminal Procedure, 1973 (2 of 1974).]], shall, while such notification remains in force, be deemed to be amended accordingly.
(2)The State Government may, in like manner and subject to the like conditions, and with the like effect, declare that an offence punishable under section 188 or section 506 of the Indian Penal Code (45 of 1860), shall be non-bailable.
From the above section, it can be discerned that is a “Non-obstante” clause which has an ‘overriding effect” over Crpc,1898 (BNSS,2023). By exercising the above delegated power, the government of Tamil Nadu passed a notification in official gazette dated 3/08/1970 [G.O.No. S/4118-1-/70] which declared the offence U/S 506 of IPC,1860 (351 of BNS) as cognizable and non-bailable. Similar kind of notifications have been passed under the above section in the state of Maharashtra, Uttar Pradesh, Gujarat etc. Therefore, it is evident that the said notification will be deemed to be amended the first schedule of Crpc, 1898, by declaring the offence as cognizable and non-bailable through out the state of Tamil Nadu.
Treatment of 1970 notification by Madras High court after repeal of 1898 code and Unnoticed Golden Thread
The above notification has been contested before Madras high court in several judgements such as P.Ramakrishnan v. State [i] (2010) (Single Judge bench referred the case to larger bench) which was later clarified in reference bench in the case of Ganesan v. State (2011)[ii]. In the last referred case, the division bench answered the reference questions, is that,
1) Whether the Notification issued by the Government of Tamil Nadu in G.O.Ms.No.S/4118-1/70, Public (S.C.), dated 03.08.1970 in exercise of the power conferred under Section 10 of the Criminal Law Amendment Act, 1932, is valid? and
2) Whether the offence under Section 506(i) Indian Penal Code is non – bailable insofar as the State of Tamil Nadu is concerned?
The court answered in affirmative that the said notification is a valid exercise of power by Government of Tamil Nadu be saved by virtue of conjoint reading of saving clause U/S 484 of Crpc,1973 and section 8 of General clauses Act. Moreover, the division bench made an observation that, to reconsider the said notification by the Government of Tamil Nadu has it restricts the liberty of the accused since the punishment for the criminal intimidation simpliciter (506 (i )of IPC) corresponding provision under BNS 351(2), is imprisonment of either description for a term which may extend to two years, or with fine, or with both, which is a lesser degree of offence. It is to be noted, the government did not revisit the said notification in the light of above observation made by the division bench. This judgement failed to observe one GOLDEN THREAD while interpreting the 1970 notification, which will be clarified in the upcoming headings.
Rule of Construction under section 8 of General clauses Act,1897 and saving clause of BNSS,2023
There is a rule of construction has been ingrained in section 8 that is, when ever any references made to repealed enactment, it must be construed in reference to later enactments. Section 8 is extracted here as follows:
Construction of references to repealed enactments. [(1)] Where this Act, or any [Central Act] or Regulation made after the commencement of this Act, repeals and re-enacts, with or without modification, any provision of a former enactment, then references in any other enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re-enacted.
2)……………………….
For example, in our case, the reference made in repealed former enactment is Section 506 of IPC,1860 and Crpc,1898, therefore, it will be construed in reference to corresponding later enactment that is BNS,2023 and BNSS,2023. Now another question arises is, whether it is necessary that said notification has to be saved under saving clause U/S 531(2)(b) of BNSS,2023 irrespective of rule of construction?. To be precisely put, the said notification need not to be saved U/S 531(2) (b) which is only applicable to notification that has been passed under Crpc,1973(BNSS,2023) but in this case, the notification has been passed under Criminal law Amendment Act,1932 a different central Act provided delegated power upon the state government to prescribe certain special procedure for certain offences under IPC (BNS).
In this regard, the apex court order in the case of Aires Rodriguez v.Vishwajeet P.Rane [iii] and a full bench judgement (answering to reference) of Bombay Highcourt in the case of Kahera Sayed v. State of MAH (2018)[iv] throws some light on, how to interpret the said notification after the 1898 code was repealed and replaced by 1973 code by applying the rule of construction U/S 8 of General clauses Act,1897.
Firstly, In Aires rodrguez case, the supreme court upheld the validity of notification which declared the offence U/S 506 as cognizable and non-bailable in the state of Goa,it will be saved by virtue of section 484 of Crpc,1973 and Section 8 of the General clauses Act and opined that impugned notification will be covered under the ambit of term “Instrument” in section 8. The impugned notification issued under section 10, with reference to Crpc,1898 should be read as having been issued with reference to Crpc,1973.
Secondly, the Bombay high court in kahera case, applied the above case to the similar notification that has been issued at state of Bombay and made an incremental observation, which, even it escaped the eyes of apex court that, it is not even necessary to refer to section 484 of the 1973 code. The reasoning behind such observation is apparent, the said notification is not passed under 1898 code and it will be saved by virtue of rule of construction U/S 8 of General clauses Act,1897.
Again, surprisingly, both of the above judgements missed the golden thread that will make the notification weaved into later enactments.
The Golden Thread and overriding effect
The golden thread that is pointed above is nothing but section 5 of 1973 code Corresponding provision in BNSS Section 5 another saving clause which is again couched in a “Non-obstante” clause having an overriding effect, to preserve the other sepecial acts in reference to the said code. Section 5 shall be read as follows:
Nothing contained in this Code 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.
The 1970 notification is protected by virtue of this above saving clause that will fall under the protected umbrella of any special form of procedure prescribed by any other law for the time being in force. The 1970 notification is a special form of procedure as it is classified offence U/S 506 of “IPC 1860”as non-bailable by amending(via-Deeming Fiction) the first schedule of crpc,1898, which will be read as “BNS,2023” and “BNSS 2023” by applying the above rule of construction, since the older enactments were repealed and replaced by new enactments.
This was further fortified by the central governmentNotification No:SO2790(E) [v]dated 16.07.2024 (here in after referred as 2024 notification) passed by Ministry of Law and Justice by relying on section 8 of General clauses Act,1897 clarified that, any reference to provisions of the Indian Penal Code (45 of 1860), or the Code of Criminal Procedure, 1973 (2 of 1974) or the Indian Evidence Act, 1872 shall be construed as Bharatiya Nyaya Sanhita, 2023 (45 of 2023) (BNS), the Bharatiya Nagarik Suraksha Sanhita, 2023 (46 of 2023) (BNSS) or the Bharatiya Sakshya Adhiniyam, 2023 (47 of 2023) (BSA).
From the above analysis, it is evident that the 1970 notification will be in operation and have force of law in the state of Tamil Nadu without any iota of doubt or ambiguity, unless and until, it has been repealed by a fresh notification issued under section 10 of Criminal law Amendment Act,1932.
The above notification prescribed a special form of procedure for offence U/S 351 of BNS and it shall be deemed to be amended accordingly in the first schedule of BNSS. The view is supported by conjoint reading of section 5 of BNSS, Section 8 of General clauses Act,1897 and the 2024 notification that is passed by the Ministry of Law and Justice. For useful reference, the same view taken by Division bench of Allahabad High court in its order dated 03/10/2024 in the case of Vinay Kumar Pandey Versus State of U.P. & Ors. Criminal Misc. Writ Petition No. 13827 of 2024 (This judgement also did not observe the golden thread which is discussed above). In a nutshell, with due respect to the single judge bench of Madras High Court ,the referred observation herein, order dated 06-08-2026 in CRL OP NO.22037 of 2026, holds no water, as it is untenable in the eyes of law, against Judicial precedents, rule of construction laid down in section 8 of General Clauses Act,1897 and section 5 of BNSS which has an “overriding effect”.
[i] 2010 SCC Online Mad 3215
[ii] 2011 SCC Online Mad 2522
[iii] 2017 SCC Online SC 219
[iv] 2017 SCC Online Bom 445
[v]https://updates.manupatra.com/newsroom/trans/viewdoc.aspx?i=ptiDy4oUEz7W4RhahAaT6h93RFUeTV40hI1vo81W7g5uCfRP5tL0pktJVchar(43)F5g3qk&id=IMjr1XBLrB3yVo37O8iVkpghmYACG5EP/krvEpIUGIDC6gyRRoNyQG4VzBx0i/YNjqWFQ3WjlI1BhHNbX5RdEA==
