The Code That Replaced the Code

The chain of Codes, and where each link is proved

Criminal procedure in India has been in a single Code for a very long time, and the present Sanhita is not a fresh start but the newest version of a document that has been rewritten roughly once a lifetime.

The Code of Criminal Procedure, 1898. This is the Code that governed for three quarters of a century. We know it was the immediate predecessor because section 484(1) of the 1973 Code says so in terms: "The Code of Criminal Procedure, 1898 (5 of 1898), is hereby repealed."

The Law Commission's work, 1961 to 1969. The Government of India asked the Law Commission to make a detailed examination of the Code with a view to its general revision. The work began in 1961 and continued for eight years. Four separate reports came out on particular problems, then the Thirty-seventh Report of February 1968 dealt in detail with the first fourteen chapters, sections 1 to 176. The Forty-first Report, dated New Delhi, 24 September 1969 and signed by the Chairman K.V.K. Sundaram, brought the whole revision together and carried a draft Bill in its second volume, with comparative tables matching the old chapters and sections to the proposed new ones.

The Code of Criminal Procedure, 1973. That draft became Act 2 of 1974. It received assent on 25 January 1974 and, by its own section 1(3), came into force on 1 April 1974. Its long title reads: "An Act to consolidate and amend the law relating to Criminal Procedure."

The Bharatiya Nagarik Suraksha Sanhita, 2023. Act 46 of 2023, assent 25 December 2023. Its long title is word for word the same as the 1973 Code's: "An Act to consolidate and amend the law relating to Criminal Procedure."

That identical long title is worth pausing on, because it tells you what kind of change 2023 was. Parliament did not set out to build a different system of criminal justice. It set out to do again, for this century, what it did in 1973: gather the law of procedure into one Act and amend it while doing so. The architecture is the same. The chapters run in the same order. Most sections carry the same marginal note as before. What changed is the numbering, a set of new provisions, and a large number of timelines.

When the Sanhita came into force, and the one thing that did not

Section 1(3) of the Sanhita says only that it comes into force on such date as the Central Government may appoint by notification. The date itself is in the footnote to that sub-section in the official consolidated print, and it reads:

1st July, 2024, [except the provisions of the entry relating to Section 106(2) in the first Schedule], vide notification No. S.O. 848(E), dated the 23rd day of February, 2024, see Gazette of India, Extraordinary, Part II, sec. 3(ii).

Read that carefully, because there are two facts in it and most published summaries carry only the first.

First, the date is 1 July 2024, appointed by S.O. 848(E) of 23 February 2024. So there were four months between the notification and the commencement.

Second, one entry of the First Schedule never commenced. The First Schedule to the Sanhita is the table that classifies every offence: cognizable or not, bailable or not, and by which court triable. The Schedule prints an entry for section 106(2) of the Bharatiya Nyaya Sanhita, which is causing death by rash and negligent driving and escaping without reporting the incident, punishable with ten years. The notification excepted that entry. So the offence has no classification in force, and a student who writes that "the whole Sanhita came into force on 1 July 2024" has written something the notification itself contradicts.

Section 531: the repeal, and why two Codes are being applied today

This is the most practically important section in the chapter, because it decides which Code a real case is run under.

Section 531(1). The Code of Criminal Procedure, 1973 is repealed.

Section 531(2)(a), the saving that matters. If, immediately before 1 July 2024, there was any appeal, application, trial, inquiry or investigation pending, it is to be disposed of, continued, held or made under the old Code, as if the Sanhita had not come into force.

Section 531(2)(b). Notifications published, proclamations issued, powers conferred, forms provided by rules, local jurisdictions defined, sentences passed, and orders, rules and appointments made under the old Code and in force on 1 July 2024 are deemed to have been made under the corresponding provisions of the Sanhita. The one exception named is appointments as Special Magistrates.

Section 531(2)(c). A sanction or consent given under the old Code, on which no proceeding had yet started, is deemed given under the Sanhita, and proceedings may be started under the Sanhita on it.

Section 531(3). Where a period for an application or proceeding had already expired under the old Code, the Sanhita does not revive it merely because the Sanhita allows longer.

So the answer to "which Code applies?" is not "the Sanhita, it is 2026". It is: look at the date the proceeding began.

A worked example

Ravi is arrested in Kurla on 12 June 2024 and an investigation into a theft is registered against him the same day. The charge sheet is filed on 2 September 2024 and his trial begins in October 2024. Meanwhile his neighbour Sameer is arrested on 20 July 2024 for a separate offence.

Ravi's case runs under the Code of Criminal Procedure, 1973. The investigation was pending immediately before 1 July 2024, so section 531(2)(a) keeps the old Code alive for it, and for the trial that grows out of it, and for any appeal from that trial. That is so even though the charge sheet and the trial are entirely after the commencement.

Sameer's case runs under the Sanhita. Nothing about it was pending on 30 June 2024.

And the Kurla police station's existing local jurisdiction, notified years ago under the old Code, is good for both, because section 531(2)(b) deems it made under the corresponding provision of the Sanhita.

The practical consequence for a student is this. Cases begun before 1 July 2024 will be in the courts for years. So a lawyer in 2026 has to know both Codes, and so does anyone reading a judgment: a judgment delivered next month may be interpreting section 154 of the old Code, and it is authority on section 173 of the new one.

Sections 3 and 5: how the Sanhita fits with everything else

Section 3, construction of references. Old statutes are full of references to "a Magistrate", written when the magistracy was arranged differently. Section 3(1) says that a reference in any law to a Magistrate without qualifying words, or to a Magistrate of the first or second class, is to be read as a reference to a Judicial Magistrate of the first or second class exercising jurisdiction in that area.

Section 3(2) then splits functions given to "a Magistrate" by some other law between the two magistracies, and the test is a good one to remember because it captures the whole difference between them. If the function involves appreciating or sifting evidence, or a decision that exposes a person to punishment, penalty or detention, or that sends him for trial, it goes to a Judicial Magistrate. If it is administrative or executive, such as granting, suspending or cancelling a licence, sanctioning a prosecution or withdrawing from one, it goes to an Executive Magistrate.

Section 5, saving. Nothing in the Sanhita affects any special or local law in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed by any other law, in the absence of a specific provision to the contrary.

Section 5 is the reason this subject is not self-contained, and it is worth grasping early. Where a special Act lays down its own procedure, that procedure prevails to the extent of the difference and the Sanhita fills the rest. That is exactly how the two other Acts on this syllabus work: the Juvenile Justice Act 2015 and the POCSO Act 2012 both create their own machinery, and the Sanhita supplies whatever they do not.

Section 1(2): where the Sanhita does not apply

The Sanhita extends to the whole of India, but section 1(2) carves out an exception that has survived unchanged from the old Code. The provisions of the Sanhita, other than those relating to Chapters IX, XI and XII, do not apply to the State of Nagaland or to the tribal areas. The State Government concerned may apply them, wholly or partly, by notification, with modifications.

The three chapters that always apply are worth naming, because they are the preventive ones and the exception tells you Parliament regarded them as indispensable: Chapter IX is security for keeping the peace and for good behaviour, Chapter XI is maintenance of public order and tranquillity, and Chapter XII is preventive action of the police.

The Explanation defines "tribal areas" as the territories which, immediately before 21 January 1972, were included in the tribal areas of Assam under paragraph 20 of the Sixth Schedule to the Constitution, other than those within the municipality of Shillong.

Distinctions worth fixing now

What this does NOT mean

It does not mean the old Code is now irrelevant. It is repealed, but section 531(2)(a) keeps it running for every proceeding pending on 30 June 2024, and those will take years to finish. It is also the language of every reported judgment before 2024, which is most of the case law on this subject.

It does not mean the section numbers moved by a fixed amount. They did not. Section 154 of the old Code is section 173 of the Sanhita, a jump of 19; section 41 is section 35, a jump of the other way. There is no formula. Each section has to be looked up.

It does not mean everything was renumbered and nothing else changed. Several provisions are genuinely new, and they are taught in this book where they belong: trial in absentia of a proclaimed offender, a witness protection scheme, compulsory audio-video recording of a search and seizure, mercy petitions in death sentence cases, and proceedings in electronic mode.

And it does not mean the old offices survive. Two whole ranks of the criminal judiciary are gone. The word "metropolitan" does not appear in the Sanhita at all, so there is no Metropolitan Magistrate; and there is no Assistant Sessions Judge either. Both appear throughout the old Code and throughout older textbooks.

Quick revision

• The Sanhita is Act 46 of 2023. Assent 25 December 2023. In force 1 July 2024 by S.O. 848(E) dated 23 February 2024.
• The exception to that commencement is the First Schedule entry relating to section 106(2) of the Bharatiya Nyaya Sanhita.
• Section 531(1) repeals the Code of Criminal Procedure, 1973 (Act 2 of 1974, assent 25 January 1974, in force 1 April 1974), which had itself repealed the Code of Criminal Procedure, 1898.
• The 1973 Code came out of the Law Commission's Forty-first Report, 24 September 1969.
• Section 531(2)(a): anything pending on 30 June 2024 continues under the old Code.
• Section 4: all offences under the Bharatiya Nyaya Sanhita and under any other law are dealt with under the Sanhita.
• Section 5: special and local laws are saved, which is why the Juvenile Justice Act and POCSO have their own procedures.
• Section 1(2): the Sanhita does not apply to Nagaland and the tribal areas except Chapters IX, XI and XII.

Test yourself

1. An FIR was registered on 15 May 2024 and the charge sheet was filed on 20 August 2024. Which Code governs the trial? The Code of Criminal Procedure, 1973. The investigation was pending immediately before 1 July 2024, so section 531(2)(a) of the Sanhita saves the old Code for that investigation and for the trial that follows from it.

2. What is the long title of the Bharatiya Nagarik Suraksha Sanhita, and why is it interesting? "An Act to consolidate and amend the law relating to Criminal Procedure." It is interesting because it is identical to the long title of the 1973 Code, which shows Parliament was doing the same job over again rather than designing a new system.

3. State one thing that did not come into force on 1 July 2024. The entry in the First Schedule relating to section 106(2) of the Bharatiya Nyaya Sanhita, which was excepted by S.O. 848(E).

4. Distinguish substantive from procedural criminal law with one example of each. Substantive law defines the offence and its punishment, for example the Bharatiya Nyaya Sanhita making theft punishable. Procedural law says how the State proceeds, for example the Sanhita permitting arrest without a warrant in a cognizable case.

5. A licence has to be suspended under a State Act which says "the Magistrate may suspend". Which Magistrate? An Executive Magistrate. Section 3(2)(b) sends administrative and executive functions, expressly including suspension or cancellation of a licence, to the Executive Magistrate.

6. Does the Sanhita apply to a prosecution under the POCSO Act? Yes, but subject to POCSO. Section 4(2) applies the Sanhita to offences under any other law, and section 5 saves the special procedure that other law prescribes, so POCSO's own provisions prevail as far as they go and the Sanhita fills the rest.