BNS Section 113 and the UAPA define a terrorist act in almost identical words, so what separates them is procedure rather than substance. An officer of Superintendent of Police rank decides which of the two an FIR goes under.
In a 2026 ruling on bail in the Delhi riots larger conspiracy case, the Supreme Court read the words “any other means” in Section 15 of the Unlawful Activities (Prevention) Act, 1967 broadly enough to cover plans to organise chakka jams, on the footing that a sustained road blockade is likely to disrupt supplies and services essential to the life of the community. Section 113(1)(a)(iii) of the Bharatiya Nyaya Sanhita, 2023 carries that same phrase, word for word. So the same reading now reaches an offence that a Superintendent of Police can put into an FIR without anyone in government approving it.
This article sets out where BNS Section 113 and the UAPA diverge, and what turns on the choice between them.
The whole comparison turns on a decision one officer takes in the first hours of a case, so it helps to watch that decision being made. Workers protesting a factory shutdown block the single approach road to a district hospital and hold it for two days. Ambulances are turned back. The station house officer registers rioting and obstruction, and nothing more.
A Superintendent of Police then reads the same file and asks a different question. On the 2026 reading of what counts as disruption of services essential to the life of the community, there is material here that could support a terrorist act charge. The Explanation to Section 113 tells him he decides whether such a charge goes under the Sanhita or the UAPA, and tells him nothing else.
That choice, rather than the facts, settles most of what happens to the protesters next. Under Section 113 the investigation has ninety days, anticipatory bail can at least be applied for, and no government sanction is needed before a Sessions Court takes cognizance. Under the UAPA the investigation can run to a hundred and eighty days, anticipatory bail is barred, and bail has to clear a statutory test. Everything below is about that gap.
Terrorist act under BNS Section 113 against the definition in UAPA Section 15
The definition in sub-section (1) of BNS Section 113 tracks UAPA Section 15(1) almost word for word, so on the substantive question of what counts as terrorism the two statutes give the same answer. Both open on the same intent clause: an act done “with the intent to threaten or likely to threaten the unity, integrity, sovereignty, security, or economic security of India or with the intent to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country”. The elements are identical and only their order differs.
Both then run that intent through the same three limbs. The first covers means, from bombs and explosives to firearms, poisons, chemicals and anything biological, radioactive or nuclear, or “any other means of whatever nature”, used to cause death or injury, destruction of property, disruption of essential supplies or services, damage to monetary stability through counterfeit currency, or destruction of defence property. The second covers overawing by criminal force or causing the death of a public functionary, and the third covers detention, kidnapping or abduction to compel a government or an international organisation to act. The correspondence continues clause by clause through the rest of the section: 113(2) matches UAPA Section 16, 113(3) Section 18, 113(4) Sections 18A and 18B, 113(5) Section 20, 113(6) Section 19, and 113(7) Section 21.
Where the wording of BNS Section 113 goes wider than the UAPA
Section 113 reaches further than the UAPA in two places, and in both it does so through words the drafters left out rather than words they added.
The first is the counterfeit currency limb. UAPA Section 15(1)(a)(iiia) reaches damage to monetary stability caused by “high quality counterfeit Indian paper currency”, and the Explanation to that section ties the phrase to the key security features specified in the Third Schedule to the Act. Section 113(1)(a)(iv) drops “high quality” altogether. Its Explanation keeps a forensic authority in the picture but benchmarks the currency against “the key security features of Indian currency” rather than a schedule, so the crude fakes that the UAPA test was drafted to exclude sit inside the Sanhita’s version of the offence.
The second omission has more practical bite. UAPA Section 20 punishes membership of a “terrorist gang or a terrorist organisation”, and Section 2(m) defines a terrorist organisation as one listed in the First Schedule to the Act, or operating under the same name as one so listed. Section 113(5) punishes membership of “an organisation which is involved in terrorist act”, and stops there.
That difference decides who can be charged. Proscription is a published executive act: an organisation enters the First Schedule by notification under Section 35, and both the listing and a refusal to remove it can be tested. “Involved in terrorist act” is published nowhere, and is simply a proposition the investigating officer asserts and the prosecution proves at trial. Membership of an unlisted outfit that will not sustain a Section 20 charge will, on the face of the section, sustain a Section 113(5) one.
Where BNS Section 113 stops short of the UAPA
In one respect Section 113 is the narrower provision. It has no equivalent of UAPA Section 15(2), which brings within the definition any act constituting an offence within the scope of the treaties listed in the Second Schedule to that Act. Those treaties cover hostage-taking, terrorist bombings, offences against the safety of civil aviation and maritime navigation, and nuclear terrorism. Conduct that qualifies only through one of those treaty definitions is reachable under the UAPA and not under the Sanhita.
What Section 113 does define, it defines in the Explanation to sub-section (1). “Public functionary” means a constitutional authority, or any other functionary notified as such in the Official Gazette by the Central Government. “Counterfeit Indian currency” means currency declared by an authorised or notified forensic authority to imitate or compromise the key security features of Indian currency.
One caution before any of this is taken from a secondary source. Several bare-act websites still publish the version of Section 113 that appeared in the Bharatiya Nyaya Sanhita Bill, 2023, which ran to six sub-sections and defined a terrorist act as one done with intent “to intimidate the general public or a segment thereof, or to disturb public order”. That text was never enacted. The section in force since 1 July 2024 has seven sub-sections and the UAPA-style intent clause set out above, and the gap between the two versions changes the answer to most questions worth asking about the provision.
What changes for the accused once the UAPA is chosen over BNS Section 113
What changes is procedural, and it covers most of what matters to a person in custody: a longer investigation clock, a bar on anticipatory bail, a statutory test that any bail application has to clear, a presumption that shifts the burden of proof, a sanction requirement before any court can take cognizance, and a forfeiture regime that operates without a conviction. Section 113 carries none of it.
The reason sits in the drafting. Each of those provisions applies to offences “punishable under this Act”, which means the UAPA and nothing else. Section 5 of the Bharatiya Nagarik Suraksha Sanhita, 2023 pushes from the other side: nothing in the Sanhita, absent a specific provision to the contrary, affects any special law in force or any special form of procedure prescribed by another law. A case registered under Section 113 alone is therefore investigated and tried on ordinary BNSS rules, before a Court of Session, with none of the UAPA’s machinery attached.
Bail and custody under UAPA Section 43D against a BNS Section 113 case
The custody clock moves first. Under BNSS Section 187(3) a magistrate cannot authorise detention beyond ninety days where the investigation relates to an offence punishable with death, imprisonment for life, or imprisonment for ten years or more, and Section 113 qualifies on all three counts. Once those ninety days pass without a charge sheet, the accused “shall be released on bail if he is prepared to and does furnish bail”.
The UAPA moves that line. Section 43D(2)(b) allows the court to extend the period to a hundred and eighty days if the Public Prosecutor files a report indicating the progress of the investigation and the specific reasons for detaining the accused beyond ninety days. Section 43D(2)(a) separately converts the fifteen-day references in Section 167 of the old Code into thirty days. Three additional months of investigation, granted on a prosecutor’s report, is the largest single difference the choice of statute makes to someone who has not yet been charged, and it removes the default bail that would otherwise accrue at ninety days.
Anticipatory bail disappears entirely. Section 43D(4) provides that nothing in Section 438 of the Code applies to any case involving the arrest of a person accused of an offence punishable under the UAPA. Section 113 has no counterpart, so a person facing a Section 113 FIR can at least make the application.
Regular bail then meets a test that ordinary bail does not. The proviso to Section 43D(5) says the accused “shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under section 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true”. Note what the court reads to reach that opinion: the case diary and the police report, not the defence material. Section 43D(6) adds that this restriction operates on top of every other restriction on bail already in force.
That test is under active reconsideration. In May 2026 a Supreme Court bench granting bail to a man held in custody for more than six years disapproved the January 2026 judgment for departing from the binding three-judge ruling in Union of India v. K.A. Najeeb, held that even under the UAPA bail is the rule and jail the exception, and the question has since gone to a larger bench. A separate lever is not in doubt: under Section 43E, in a prosecution for a Section 15 offence where arms or explosives are recovered from the accused, or definitive evidence places them at the site, the court “shall presume, unless the contrary is shown” that the accused committed the offence. Section 113 carries no presumption of any kind.
Sanction, agency and forfeiture in each route
Sanction is the asymmetry that draws the least attention and carries the most consequence. Section 45(1)(ii) of the UAPA provides that no court shall take cognizance of a Chapter IV offence without the previous sanction of the Central Government or, as the case may be, the State Government. Section 45(2) allows that sanction to be given only after considering the report of an authority that has made an independent review of the evidence gathered in the course of the investigation. Section 113 requires nothing of the sort, and a Sessions Court takes cognizance of a terrorist act charge under the Sanhita on the police report alone.
That filter has had real teeth since 2024. The Supreme Court held in September of that year that the seven-day timelines in Rules 3 and 4 of the 2008 sanction rules, one for the reviewing authority’s recommendation and one for the government’s decision on it, are couched in mandatory language and must be strictly followed, and that independent review by both authorities is a necessary part of complying with Section 45. It also held that the validity of a sanction should ordinarily be challenged at the earliest stage available before the trial court. The UAPA route therefore carries an executive check and a ground of challenge; the Sanhita route carries neither.
The investigating agency can change as well. The UAPA is the second entry in the Schedule to the National Investigation Agency Act, 2008, which is what allows the Central Government to direct the NIA to take over a case registered under it. That is how the investigation into the Red Fort car blast of November 2025 passed to a central agency within days, the FIR having been registered under UAPA Sections 16 and 18 with the Explosives Act and provisions of the Sanhita.
Then there is the property. Chapter V of the UAPA allows proceeds of terrorism to be forfeited “whether or not” the person holding them is prosecuted or convicted of any offence under Chapter IV or Chapter VI, and Section 2(g) defines proceeds of terrorism widely enough to catch property merely intended to be used for a terrorist act. Section 35 separately lets the Central Government proscribe an organisation by notification. Section 113(7) creates an offence of knowingly possessing property derived from a terrorist act and stops at that: no attachment machinery, no forfeiture without conviction, and no power anywhere in the Sanhita to designate an organisation at all.
Who decides between BNS Section 113 and the UAPA
One police officer decides, and the Sanhita says almost nothing about how. The Explanation at the end of Section 113 reads: “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.”
Read it for what it leaves out: it supplies no criteria. It does not require the decision to be recorded in writing, supported by reasons, or communicated to the accused. It provides no review by anyone at any level, and fixes no stage at which the choice becomes final. The officer’s rank is the only safeguard in the sentence.
There is a further wrinkle. Because Section 5 of the BNSS saves special laws and the UAPA remains the special law on terrorism, several commentators have argued that Section 113 adds nothing of substance, and that on the ordinary rule that a general enactment does not derogate from a special one, the UAPA continues to govern in any event. The oddity is which of the two routes carries the check: choosing the UAPA puts the prosecution through an independent review and a government sanction on mandatory timelines, while choosing Section 113 removes that filter, so the milder-looking route is the one nobody outside the police station has to approve.
How the choice is tested in practice
In practice the choice is often not made at all, because both statutes go into the same FIR. After a blast at a mosque in Beed district in Maharashtra in March 2025, police added Section 113 of the Sanhita alongside Sections 15, 16 and 18 of the UAPA against two accused. The Red Fort investigation was charged the same way. An Explanation drafted as an either-or is being worked as a both, and once a UAPA offence is on the FIR, that Act’s procedure governs the case whatever else is charged with it.
For the defence that leaves one line of attack and a real limit on it. Whether an officer of the required rank actually applied their mind to the choice, rather than a station house officer entering a section on a form, is a question the case diary and the case file have to answer, and it can be raised at the framing of charge alongside the arguments available on the sibling provisions in Section 111 and Section 112. What no reported decision has yet settled is what follows if the answer is no. The Explanation creates a duty without stating any consequence for breaching it, and until a court rules on that point, treating a defective choice as fatal to the prosecution would be optimistic.
Frequently asked questions
Is an offence under BNS Section 113 bailable?
The offence is non-bailable and triable by a Court of Session, because sub-section (2) prescribes death or imprisonment for life where the act has resulted in death, and five years to life in any other case. What it does not carry is the Section 43D(5) bar, so bail is decided on ordinary principles rather than against a statutory test.
Can the police invoke both BNS Section 113 and the UAPA in the same FIR?
In practice they do, and the Beed district blast case of March 2025 is a documented example. The Explanation is drafted as a choice between the two, but nothing in it prevents both from being charged, and once a UAPA offence is on the FIR that Act’s procedure applies.
Is government sanction needed to prosecute under BNS Section 113?
Section 113 carries no sanction requirement at all, and a Sessions Court takes cognizance of the charge on the police report alone. The contrast is with Section 45 of the UAPA, which requires previous sanction from the Central or the State Government, given only after an independent review of the evidence, before a court takes cognizance of a Chapter IV offence.
References
- The Bharatiya Nyaya Sanhita, 2023 (45 of 2023), section 113, sub-sections (1) to (7), the Explanation to sub-section (1) and the closing Explanation. Bare text checked against the Gazette of India text published by the Ministry of Home Affairs (pages 37 to 38)
- The Unlawful Activities (Prevention) Act, 1967 (37 of 1967), sections 2(g), 2(m), 15, 16, 18 to 21, 24A, 35, 43D, 43E and 45. Bare text checked against the Ministry of Home Affairs copy of the Act
- The Bharatiya Nagarik Suraksha Sanhita, 2023 (46 of 2023), sections 5 and 187(3)
- Supreme Court, January 2026, on the reach of section 15 of the UAPA in the Delhi riots larger conspiracy bail matter (analysis)
- Supreme Court, May 2026, disapproving the January 2026 judgment for departing from Union of India v. K.A. Najeeb (report)
- Fuleshwar Gope v. Union of India, Supreme Court, 23 September 2024, on the mandatory character of the sanction timelines under the 2008 rules (judgment)
- Analysis of the overlap between section 113 and Chapter IV of the UAPA, including the clause-by-clause mapping (LiveLaw)
- Reporting on the invocation of section 113 with UAPA sections 15, 16 and 18 in the Beed district blast case, April 2025 (The Wire)
- For the wider mapping of the Sanhita against the code it replaced, see the comparison of the BNS and the IPC
This article is for informational and educational purposes only and does not constitute legal advice. For advice on a specific case, consult a qualified advocate.
