Law & Policy
This Section or That Act: The Choice Section 113 Places Before Registration
19 September 2026 · 17 min read
Which law applies to a set of facts is not ordinarily anybody's decision. The facts are what they are; the statutes are what they say; and the question of fit is tested at every stage that follows — by the Magistrate on remand, by the Court at charge, by the Court again at judgment, and by the appellate Court after that. A police officer who registers a case under a particular section has made a classification, not a determination. If it is wrong, the machinery is built to correct it.
Section 113 of the Bharatiya Nyaya Sanhita, 2023 ends with a sentence written on a different assumption. After seven sub-sections defining a terrorist act and prescribing punishments for committing, conspiring at, training for, belonging to, harbouring and profiting from one, the section closes:
Explanation.—For the removal of doubts, it is hereby declared that the officer not below the rank of Superintendent of Police shall decide whether to register the case under this section or under the Unlawful Activities (Prevention) Act, 1967 (37 of 1967).
The sentence is short and easy to read past. What it does is place a choice between two entire enactments in the hands of a single officer, at the point of registration, and stop there.
Where the sentence sits, and what it is attached to
Section 113 contains two Explanations. The first appears within sub-section (1), immediately after the definition of a terrorist act, and opens with the words "For the purpose of this sub-section". It goes on to define "public functionary" and "counterfeit Indian currency" — both expressions used in sub-section (1) and nowhere else in the section. It is an Explanation in the ordinary sense: it takes words already in the text and says what they mean.
The second Explanation is the one set out above. It appears at the very end of the section, after sub-section (7), and it carries no words of limitation. It does not say "for the purpose of this sub-section", and it does not say "for the purpose of this section". It opens instead with "For the removal of doubts, it is hereby declared" — the formula of a declaratory provision rather than a defining one.
It also uses a definite article without an antecedent. "The officer not below the rank of Superintendent of Police" — but no officer of any rank is mentioned anywhere else in Section 113. Police officers do appear elsewhere in the Sanhita: as persons who may commit an offence, as persons to whom information must be given, and in illustrations. Nowhere else in the Sanhita is a police officer told to decide anything. The Explanation is the only place in the section where one appears, and he appears already definite, as though referring back to something that is not there.
There is nothing in the section that it can be explaining, because there is nothing in the section about registration. Registration is dealt with in a different enactment altogether.
Why there was a doubt
The doubt the Explanation removes is real, and it is worth setting out precisely, because the shape of the doubt determines what an answer to it would have had to look like.
Section 1(6) of the Sanhita provides that nothing in it "shall affect the provisions of any Act for punishing mutiny and desertion of officers, soldiers, sailors or airmen in the service of the Government of India or the provisions of any special or local law". Those are, word for word, the words of Section 5 of the Indian Penal Code, carried across and folded into the opening section of the Sanhita rather than given a section of their own. Its effect is that the Sanhita does not displace the Unlawful Activities (Prevention) Act, 1967. Both remain in force over the same field.
The field is very nearly the same field. Section 113(1) of the Sanhita and Section 15(1) of the 1967 Act are, over most of their length, the same words in the same order. Each punishes an act done with intent to threaten or likely to threaten the unity, integrity, sovereignty, security and economic security of India, or with intent to strike terror in the people or any section of the people in India or in any foreign country. Each then sets out the same three routes: the use of bombs, explosives, firearms, hazardous substances and the rest, to cause death, damage to or destruction of property, disruption of supplies or services essential to the life of the community, damage to the monetary stability of India through counterfeit currency, or destruction of property used for the defence of India; overawing a public functionary by criminal force or causing his death; and detaining, kidnapping or abducting a person in order to compel a government or an inter-governmental organisation to do or abstain from doing an act.
The differences are small enough to list. The Sanhita writes "with the intent to threaten"; the 1967 Act writes "with intent to threaten". The Sanhita puts the five protected interests in the order unity, integrity, sovereignty, security, economic security; the 1967 Act puts sovereignty last. Where the 1967 Act speaks of "high quality counterfeit Indian paper currency", the Sanhita drops the words "high quality". Where the 1967 Act's Explanation ties the key security features of Indian currency to its Third Schedule, the Sanhita's refers to them without a schedule. And Section 15(2) of the 1967 Act, which provides that "the terrorist act includes an act which constitutes an offence within the scope of, and as defined in any of the treaties specified in the Second Schedule", has no counterpart in Section 113.
None of those differences separates the two provisions in any case one can readily construct. The punishments do not separate them either. Section 16(1) of the 1967 Act provides that whoever commits a terrorist act shall, "if such act has resulted in the death of any person, be punishable with death or imprisonment for life, and shall also be liable to fine", and in any other case with not less than five years extending to imprisonment for life and fine. Section 113(2) of the Sanhita says the same thing in the same structure, altering "act" to "offence" and "punishable" to "punished".
So on the same facts two statutes are available, neither is displaced by the other, and the punishment does not distinguish them. That is a real problem of drafting. The Explanation answers it by naming the person who chooses.
What the choice carries
If the two routes led to the same place, the choice would not matter and the Explanation would be surplusage. They do not. The 1967 Act contains a set of procedural modifications that attach to a prosecution under it and to no other, and the choice engages every one of them.
Who may investigate. Section 43 of the 1967 Act provides that no police officer below the rank of Deputy Superintendent of Police or equivalent — Assistant Commissioner of Police "in the metropolitan areas of Mumbai, Kolkata, Chennai and Ahmedabad" and any other notified metropolitan area, Inspector in the case of the National Investigation Agency — "shall investigate any offence punishable under Chapter IV or VI". Section 113 of the Sanhita carries no rank floor at all. An offence under it is investigated by whoever the ordinary law permits.
How long custody may run. Section 43D(2) of the 1967 Act modifies Section 167 of the Code of Criminal Procedure so that the references to "fifteen days", "ninety days" and "sixty days" are "construed as references to 'thirty days', 'ninety days' and 'ninety days' respectively", and adds a proviso allowing the Court, on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for continued detention, to "extend the said period up to one hundred and eighty days". Under the Sanhita alone, Section 187 of the Bharatiya Nagarik Suraksha Sanhita applies unmodified: police custody "for a term not exceeding fifteen days in the whole, or in parts, at any time during the initial forty days or sixty days", and — for an offence punishable with death, imprisonment for life or ten years or more, which every offence under Section 113 is — a ceiling of ninety days on the total, after which "the accused person shall be released on bail if he is prepared to and does furnish bail".
Whether anticipatory bail is available. Section 43D(4) provides that nothing in Section 438 of the Code "shall apply in relation to any case involving the arrest of any person accused of having committed an offence punishable under this Act". Section 482 of the Bharatiya Nagarik Suraksha Sanhita, the provision for a direction for bail to a person apprehending arrest, is not excluded from a case under Section 113.
What has to be shown for bail. Section 43D(5) requires that the Public Prosecutor be heard, and then provides that the accused shall not be released if the Court, on a perusal of the case diary or the police report, "is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true". Sub-section (6) makes that restriction additional to any other. A case under Section 113 of the Sanhita is governed by the ordinary bail provisions, with no such threshold.
What the prosecution must prove. Section 43E of the 1967 Act provides that in a prosecution under Section 15, on proof that the arms or explosives were recovered from the possession of the accused in circumstances giving reason to believe they were used, or on expert evidence of fingerprints or other definitive evidence at the site, "the Court shall presume, unless the contrary is shown, that the accused has committed such offence". There is no corresponding presumption for Section 113.
Whether the State may prosecute at all. Section 45(1)(ii) of the 1967 Act bars cognizance of an offence under Chapters IV and VI "without the previous sanction of the Central Government or, as the case may be, the State Government", and sub-section (2) requires that the sanction be given only after considering the report of an authority which "shall make an independent review of the evidence gathered in the course of investigation". Nothing in the Bharatiya Nagarik Suraksha Sanhita requires sanction for an offence under Section 113. Its First Schedule classifies every offence under that section — sub-sections (2) to (7) — as cognizable, non-bailable and triable by the Court of Session, and there the matter ends.
Five of these six run in one direction and one runs in the other. The 1967 Act is harder on the accused at custody, at anticipatory bail, at regular bail and at proof; it is harder on the State at sanction and at the rank of the investigating officer. The choice is therefore not a choice between a heavier law and a lighter one. It is a choice between two distributions of advantage, made before any of the material on which those advantages would turn has been gathered.
The clause pointing the other way
There is a further provision that the Explanation does not mention and that any account of the relationship between the two enactments has to confront. Section 48 of the 1967 Act reads:
The provisions of this Act or any rule or order made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or any instrument having effect by virtue of any enactment other than this Act.
Read with Section 1(6) of the Sanhita, the two statutes point in the same direction as each other. The Sanhita declines to affect the special law; the special law declares that it prevails over anything inconsistent in any other enactment. Whether Section 113 is inconsistent with the 1967 Act, so as to attract Section 48, is a separate question and not an easy one: the two do not contradict each other in terms, and it is arguable that a provision creating a parallel offence is cumulative rather than inconsistent. But the argument in the other direction is available too, and it is not answered anywhere in Section 113 — least of all by an Explanation that assumes both are equally available for the choosing.
That is the more basic difficulty with the Explanation. It is drafted as though the only open question were who picks, when the prior question is whether there was anything to pick between.
What the Explanation does not say
Set against what turns on it, the sentence is notable for its omissions. It states no criterion — no test, no list of factors, not even a direction to have regard to the gravity of the offence or the nature of the material. It does not require the decision to be in writing, or reasons to be recorded, or the decision to be communicated to anyone. It fixes no time within which it is to be made. It provides no review, no appeal and no revision. It says nothing about what follows if the decision is wrong, or whether it may be revisited when the investigation discloses more than the first information did. It does not say what happens where the Central and State Governments, whose sanction Section 45 contemplates in the alternative, take different views, or where a central agency and a State police force are both seized of the matter.
It also does not fit the machinery it purports to operate. "Shall decide whether to register the case" describes an act of registration, and registration is governed by Section 173 of the Bharatiya Nagarik Suraksha Sanhita, which provides that "every information relating to the commission of a cognizable offence... may be given orally or by electronic communication to an officer in charge of a police station" and requires him to reduce it to writing. The one place in that section where an officer of higher rank stands between information and registration is sub-section (3), which permits a preliminary enquiry "with the prior permission from an officer not below the rank of Deputy Superintendent of Police" — and that route is confined by its own terms to offences "punishable for three years or more but less than seven years", which excludes Section 113 entirely. The only other appearance of a Superintendent of Police in Section 173 is in sub-section (4), where a person aggrieved by a refusal to register may send the substance of the information to him. There he is a remedy against a refusal, not a gate before a registration.
So the Explanation inserts an officer who is not in the registration chain, above the officer on whom the Sanhita imposes the duty, for a decision the procedural law does not otherwise provide for.
What the Court is not bound by
None of this determines the trial. A decision about what to register does not bind the Court. Under Section 251 of the Bharatiya Nagarik Suraksha Sanhita the Sessions Judge frames the charge on his own opinion that "there is ground for presuming that the accused has committed an offence", and under Section 239 "any Court may alter or add to any charge at any time before judgment is pronounced". If the material discloses an offence under the 1967 Act, the choice made at registration does not prevent that being said.
But the correction does not run all the way back. Section 45 of the 1967 Act bars cognizance without previous sanction preceded by an independent review of the evidence, so a charge added late under that Act meets a gate that was never approached. And the procedural consequences of the first choice are consumed as the case proceeds. Custody has already been authorised, or not, under one regime or the other. An anticipatory bail application has already been entertained or barred. The presumption under Section 43E either operated at trial or it did not. These are not classifications a later Court can reclassify. They are events.
That is what distinguishes the Explanation from an ordinary error of section. Registering an assault under the wrong sub-section is corrected at charge and costs nothing. Choosing between the Sanhita and the 1967 Act settles the law of custody, bail and proof for the whole period during which those questions are actually live.
The provisions it does not resemble
The 1967 Act already contains two controls on its own use, and the Explanation is not of their kind. Section 43 sets a floor on the rank of the investigating officer: it does not tell anyone what to decide, it provides that a decision of a certain kind may only be taken by an officer of a certain seniority. Section 45 requires previous sanction after an independent review of the evidence: again, not a direction as to outcome, but a condition on proceeding. Both are checks. Each withholds a power unless something is satisfied.
The Explanation to Section 113 withholds nothing and conditions nothing. It confers a choice and identifies who holds it. A rank requirement without a standard is not a safeguard; it is an allocation. The seniority it specifies tells us who decides, and the absence of everything else tells us that the statute has no view on what he should decide.
A comparison is available within the Sanhita itself. Section 111 creates the offence of organised crime, defined by reference to a "continuing unlawful activity", which its own Explanation defines as "an activity prohibited by law which is a cognizable offence punishable with imprisonment of three years or more" in respect of which more than one charge-sheet has been filed before a competent Court within the preceding ten years and that Court has taken cognizance. The definition is built expressly on offences under other laws, and Section 1(6) preserves every special and local law among them. The overlap is therefore of the same kind. Section 111 ends at sub-section (7) with no Explanation of this sort. If the doubt in Section 113 was worth removing, a comparable doubt sits a page earlier and has been left where it was.
A reference left behind
One smaller point follows from the same choice, and it is visible on the face of the two texts. Section 2(1)(c) of the 1967 Act defines "Code" to mean "the Code of Criminal Procedure, 1973 (2 of 1974)", and Section 43D works entirely by reference to sections of that Code — Section 2 for what is cognizable, Section 167 for custody, Section 268 for the production of prisoners, Section 438 for anticipatory bail. Section 531(1) of the Bharatiya Nagarik Suraksha Sanhita repealed the Code of Criminal Procedure, 1973. The 1967 Act's procedural machinery therefore now operates by reference to an enactment that no longer exists, and reaches the present law only through the general rule of construction that applies to references to repealed statutes. That is a question the Explanation does not touch, although the officer it addresses is choosing between the two regimes it concerns.
What the sentence decides
The Explanation to Section 113 is the answer Parliament gave to a problem its own drafting created. Having written a new terrorist-act offence into the general penal law while expressly preserving the special law that already contained one, and having given both the same punishment, it left a question about which applies. It could have answered that question by drawing a boundary — by confining Section 113 to what the 1967 Act does not reach, or by saying in terms what Section 48 of that Act suggests. It answered instead by naming an officer.
What the sentence decides is not which statute governs terrorist acts. It is that the question will be settled administratively, at the earliest moment, on the least material, by a person the statute does not require to give reasons — and that the answer will hold for exactly as long as the questions it governs remain open.
Authored by Eshan Kumar Gupta, Advocate, Hon'ble Allahabad High Court, Lucknow Bench.