Sections 95–96 CrPC vs Sections 98–99 BNSS — Forfeiture of Publications and Challenge in the High Court

In India, Section 98 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) replaced Section 95 of the Code of Criminal Procedure, 1973 (CrPC) on 1 July 2024, and Section 99 replaced Section 96. The State Government's forfeiture power and the two-month High Court challenge are unchanged; the offences that can trigger forfeiture are re-listed from the Bharatiya Nyaya Sanhita, 2023.

At a glance

The forfeiture power creates no offence of its own, so neither First Schedule classifies it; the listed offences are classified in their own entries.

The offence list, side by side (Section 95(1) CrPC → Section 98(1) BNSS):

What changed

• Modified — Section 98(1) (CrPC 95(1)), the offence list: "section 124A or section 153A or section 153B or section 292 or section 293 or section 295A of the Indian Penal Code" becomes "section 152 or section 196 or section 197 or section 294 or section 295 or section 299 of the Bharatiya Nyaya Sanhita, 2023". Five of the six are successor offences. The sixth is not a renumbering: Section 152 BNS punishes whoever, "purposely or knowingly", by words, signs, visible representation, "electronic communication or by use of financial mean, or otherwise", excites or attempts to excite "secession or armed rebellion or subversive activities", encourages "feelings of separatist activities" or "endangers sovereignty or unity and integrity of India". Section 124A IPC (sedition) has no counterpart; see Section 124A IPC — sedition abolished.
• Minor edit — Section 98 heading and clause (a): "search-warrants for the same" becomes "search-warrants for same"; "any newspaper, or book, or" becomes "any newspaper, or book; or".
• Minor edit — Section 98(2) and (3): "in section 96" becomes "in section 99"; "have the same meaning" becomes "have the same meanings"; the bar in sub-section (3) now refers to "section 99". The definition of "document" ("any painting, drawing or photograph, or other visible representation") is unchanged.
• Identical in substance — the power itself: the State Government's opinion, the notification "stating the grounds of its opinion", forfeiture of "every copy of the issue of the newspaper containing such matter, and every copy of such book or other document", seizure "wherever found in India", and search by Magistrate's warrant are the same words.
• Minor edit — Section 99 (CrPC 96): "section 95" becomes "section 98" in sub-sections (1) and (4). The two-month limit, the Special Bench, the use of copies of a newspaper in evidence, the standard in sub-section (4) and the majority rule in sub-section (5) are unchanged.
• Minor edit — Section 102 (CrPC 99): the general search-warrant provisions still apply to warrants under the forfeiture section, with all cross-references renumbered.

An unchanged reference to a repealed Act. Section 98(2)(a) BNSS says "newspaper" and "book" "have the same meanings as in the Press and Registration of Books Act, 1867". Section 22(1) of the Press and Registration of Periodicals Act, 2023 repeals the 1867 Act; according to the footnote to Section 1(3) in the library copy read for this page, the 2023 Act came into force on 1 March 2024 (S.O. 989(E)), before the BNSS. The 2023 Act defines "newspaper" (Section 2(d)) and defines "periodical" so as not to include "a book" (Section 2(g)). Section 8(1) of the General Clauses Act, 1897 construes a reference to a repealed provision as a reference to the provision that re-enacts it, "unless a different intention appears". How Section 98(2)(a) is to be read now — in particular for "book" — is a question of construction on which no judgment was read for this page; treat it as open.

Statutory text (relevant extract)

Extract, Section 95(1) CrPC (repealed from 1 July 2024):

… appears to the State Government to contain any matter the publication of which is punishable under section 124A or section 153A or section 153B or section 292 or section 293 or section 295A of the Indian Penal Code …

Extract, Section 98(1) BNSS:

… appears to the State Government to contain any matter the publication of which is punishable under section 152 or section 196 or section 197 or section 294 or section 295 or section 299 of the Bharatiya Nyaya Sanhita, 2023, the State Government may, by notification, stating the grounds of its opinion, declare every copy of the issue of the newspaper containing such matter, and every copy of such book or other document to be forfeited to Government …

Extract, Section 99(1) BNSS:

(1) Any person having any interest in any newspaper, book or other document, in respect of which a declaration of forfeiture has been made under section 98, may, within two months from the date of publication in the Official Gazette of such declaration, apply to the High Court to set aside such declaration …

How it works — the steps

Declaration (Section 98).

1. Subject matter: any newspaper or book, or any document "wherever printed". "Document" includes any painting, drawing, photograph "or other visible representation" (Section 98(2)(b)).
2. Opinion: the matter must "appear to the State Government" to be punishable under one of the six listed BNS sections. In Baragur Ramachandrappa (below), the Supreme Court described Sections 95 and 96 CrPC as "clearly preventive in nature" and said the reference to Penal Code sections is "merely descriptive" of the kind of offences to be prevented (para 15).
3. Notification stating grounds: the declaration is made "by notification, stating the grounds of its opinion". Sangharaj Damodar Rupawate (below) holds that this is mandatory and that repeating the section's words is not enough.
4. Effect: every copy of that newspaper issue, or of that book or document, is forfeited to Government. Any police officer may seize copies "wherever found in India", and any Magistrate may by warrant authorise a police officer "not below the rank of sub-inspector" to enter and search premises where copies "may be or may be reasonably suspected to be".
5. Exclusive remedy: "No order passed or action taken under this section shall be called in question in any Court otherwise than in accordance with the provisions of section 99" (Section 98(3)).

Challenge (Section 99).

1. Who and when: "any person having any interest" in the newspaper, book or document, "within two months from the date of publication in the Official Gazette of such declaration".
2. Ground: that the issue, book or document "did not contain any such matter" as Section 98(1) refers to.
3. Forum: a Special Bench of three Judges where the High Court has three or more Judges; otherwise all its Judges (Section 99(2)).
4. Evidence: for a newspaper, any copy of it may be given in evidence "in aid of the proof of the nature or tendency" of its contents (Section 99(3)).
5. Decision: the High Court "shall" set aside the declaration if "it is not satisfied" that the publication contained such matter (Section 99(4)); a difference of opinion goes by majority (Section 99(5)).

What this means in practice

For authors, publishers and printers

• Diary the two-month limit from the date of publication of the declaration in the Official Gazette, not from the date of seizure; Section 99(1) runs from Gazette publication.
• Read the notification for its grounds first. Following Sangharaj Damodar Rupawate, the High Court's inquiry is confined to the grounds disclosed; a notification that only repeats the section's words, or does not identify the groups between which enmity is said to arise, is open to challenge (paras 25 and 28).
• Any "person having any interest" may apply — on a reading of the text, that includes the author, publisher, printer or a distributor holding copies.

For State Governments

• Identify the BNS section relied on, the passages, and why they appear to fall within it. For a Section 152 BNS ground, the notification must address that section's own elements — secession, armed rebellion, subversive activities, separatist feelings, or endangering sovereignty, unity and integrity — not the old sedition wording.
• A notification resting on an FIR is exposed if the FIR falls: in Sangharaj Damodar Rupawate, the Supreme Court's earlier quashing of the FIR that the notification relied on "knocked off" its basis (para 28).

For police and Magistrates

• Seizure without a warrant is limited to copies of the forfeited item; entering premises to search needs a Magistrate's warrant to an officer of at least sub-inspector rank (Section 98(1)), executed under the general provisions applied by Section 102.

Judgments that still matter

State of Maharashtra & Ors. v. Sangharaj Damodar Rupawate & Ors., [2010] 8 S.C.R. 328 (2010 INSC 395) — 9 July 2010. D.K. Jain and H.L. Dattu JJ. dismissed the State's appeal against the Bombay High Court's judgment that had quashed a Section 95 notification forfeiting the book "Shivaji - Hindu King in Islamic India" (paras 2, 29). The Court held that Section 95 requires "twin essential conditions" — the Government's opinion that the publication contains matter punishable under the listed sections, and a statement of the grounds of that opinion — and that "A mere citation of the words of the Section is not sufficient" (para 18). Because the power affects freedom of speech under Article 19(1)(a) and allows search and seizure, "the provision has to be construed strictly" (para 19). It set out nine legal aspects for testing a notification, including that a total absence of grounds vitiates the declaration and the inquiry is confined to the grounds disclosed; that stray sentences cannot justify forfeiting a book as a whole; that the ingredients need only "appear" to the Government; and that the onus of rebutting the Government's prima facie opinion is on the applicant (para 25). On the facts, the notification rested on an FIR that the Court had already quashed, and it did not identify the communities between which enmity was said to arise (para 28). The operative words construed — "stating the grounds of its opinion" — are repeated in Section 98(1) BNSS.

Sri Baragur Ramachandrappa & Ors. v. State of Karnataka & Ors., [2007] 5 S.C.R. 1086 — 2 May 2007. B.P. Singh and H.S. Bedi JJ. (judgment by Bedi J.) dismissed an appeal against a Karnataka High Court judgment, given by three Judges on an application under Section 96, that had upheld the forfeiture of the novel "Dharmakaarana" (paras 1, 3, 24). The Court held that Sections 95 and 96 "when read together are clearly preventive in nature and are designed to pre-empt any disturbance to public order", that Section 95 "does not by itself create a criminal offence", and that the reference to Penal Code sections is "merely descriptive" (para 15). It held that Section 96 "itself takes care of any misuse" by leaving the final decision to a High Court Bench of (if possible) three Judges (para 17), and that Section 95 is not violative of Article 19(1)(a) because the action is preventive and "extremely efficacious" review under Section 96 is available (para 18). The report prints no INSC number.

Sangharaj Damodar Rupawate also describes the Constitution Bench decision in Harnam Das v. State of Uttar Pradesh, under Section 99A of the 1898 Code, as striking down a forfeiture order that stated the Government's opinion but not its grounds (para 20).

On a reading of the text, both judgments construe words that Sections 98 and 99 BNSS repeat. Their discussion of particular IPC offences must now be read against the corresponding BNS sections, and none of them construes Section 152 BNS.

Which law applies to your case

Section 531(2)(a) BNSS provides that an appeal, application, trial, inquiry or investigation pending immediately before the BNSS came into force is to be continued under the CrPC "as if this Sanhita had not come into force"; on a reading of that provision, a Section 96 CrPC application pending on 1 July 2024 is decided under the CrPC. Section 531(2)(b) deems notifications published and orders made under the CrPC, and in force immediately before the BNSS commenced, to have been published or made under the corresponding BNSS provisions; on a reading, an earlier forfeiture declaration continues as one under Section 98. A new declaration after 1 July 2024 must rest on the BNS offences in Section 98(1). See which law applies to an offence before 1 July 2024.

Frequently asked questions

What is the BNSS equivalent of Section 95 CrPC? Section 98 of the Bharatiya Nagarik Suraksha Sanhita, 2023 replaces Section 95 CrPC, and Section 99 BNSS replaces Section 96 CrPC. The State Government may still, by notification stating the grounds of its opinion, declare every copy of a newspaper issue, book or document forfeited if it appears to contain matter whose publication is punishable under the listed offences.

Which offences can now justify forfeiture of a book or newspaper? Section 98(1) BNSS lists Sections 152, 196, 197, 294, 295 and 299 of the Bharatiya Nyaya Sanhita, 2023. Section 95(1) CrPC listed Sections 124A, 153A, 153B, 292, 293 and 295A IPC. Sections 196, 197, 294, 295 and 299 BNS correspond to 153A, 153B, 292, 293 and 295A IPC; Section 152 BNS takes the place of Section 124A IPC but is a differently worded offence about endangering sovereignty, unity and integrity of India.

Is sedition still a ground for banning a book? Section 124A IPC is not in the Section 98(1) BNSS list, and the BNS has no offence called sedition. The list instead includes Section 152 BNS, which covers exciting or attempting to excite secession, armed rebellion or subversive activities, encouraging feelings of separatist activities, or endangering the sovereignty or unity and integrity of India. Its Explanation excludes comments expressing disapprobation of Government measures or action with a view to obtain their alteration by lawful means, without exciting or attempting to excite the activities the section describes.

Must the forfeiture notification give reasons? Yes. Section 98(1) BNSS, like Section 95(1) CrPC, requires the notification to state 'the grounds of its opinion'. In State of Maharashtra v. Sangharaj Damodar Rupawate ([2010] 8 S.C.R. 328), the Supreme Court held that stating the grounds is mandatory, that a total absence of grounds vitiates the declaration, and that a mere citation of the words of the section is not sufficient (paras 18 and 25).

How can a forfeiture be challenged? Under Section 99(1) BNSS, any person having an interest in the newspaper, book or document may apply to the High Court within two months from the date of publication of the declaration in the Official Gazette, on the ground that it did not contain the matter referred to in Section 98(1). Section 98(3) bars any other challenge to an order or action under Section 98. The application is heard by a Special Bench of three Judges, or all the Judges where the High Court has fewer than three (Section 99(2)).

Who decides and on what standard in the High Court? The Special Bench sets aside the declaration if it 'is not satisfied' that the publication contained matter referred to in Section 98(1) (Section 99(4)); a difference of opinion is resolved by majority (Section 99(5)). In Sangharaj Damodar Rupawate, the Supreme Court said the inquiry is confined to the grounds disclosed in the notification and that the applicant bears the onus of rebutting the Government's prima facie opinion (para 25).

Can the police search premises for a forfeited book? Yes. Once a declaration is made, Section 98(1) BNSS allows any police officer to seize copies wherever found in India, and any Magistrate may by warrant authorise a police officer not below the rank of sub-inspector to enter and search premises where copies may reasonably be suspected to be. Section 102 BNSS applies the general search-warrant provisions to such warrants.

Does a forfeiture declared under Section 95 CrPC still stand? Section 531(2)(b) BNSS deems notifications published and orders made under the CrPC that were in force immediately before the BNSS commenced to have been published or made under the corresponding BNSS provisions; on a reading of that provision, a subsisting Section 95 CrPC declaration continues as one under Section 98 BNSS. Section 531(2)(a) keeps a Section 96 CrPC application pending on that date under the CrPC.

Related

• Section 124A IPC — Sedition abolished under BNS
• Hate speech and promoting enmity — BNS 196 vs IPC 153A
• Section 295A IPC vs Section 299 BNS — Outraging religious feelings
• Sections 292–294A IPC vs Sections 294–297 BNS — Obscene books and objects
• Section 98 CrPC vs Section 101 BNSS — Restoration of abducted females
• CrPC to BNSS master table

Sources

• Bharatiya Nagarik Suraksha Sanhita, 2023 (Gazette text): Sections 98, 99, 102 and 531(2).
• Bharatiya Nyaya Sanhita, 2023 (Gazette text): Sections 152, 196, 197, 294, 295 and 299.
• Code of Criminal Procedure, 1973 (India Code text): Sections 95, 96 and 99.
• Indian Penal Code, 1860 (India Code text): headings of Sections 124A, 153A, 153B, 292, 293 and 295A.
• Press and Registration of Periodicals Act, 2023: Sections 1(3), 2(d), 2(g) and 22(1); General Clauses Act, 1897: Section 8(1).
• Judgments read in full text: State of Maharashtra v. Sangharaj Damodar Rupawate (2010_8_328_357_EN.md); Sri Baragur Ramachandrappa v. State of Karnataka (2007_5_1086_1105_EN.md).

This page explains the statutory text and the judgments cited as they stand. It is not legal advice; for a specific case, consult an advocate.