The Bharatiya Nyaya Sanhita, 2023 (BNS): The modern Incarnation of IPC -Understanding the Major changes 

The Bharatiya Nyaya Sanhita, 2023 (BNS): The modern Incarnation of IPC -Understanding the Major changes 

By SangsLegal

19th January 2023

The Bharatiya Nyaya Sanhita, 2023 (BNS) was promulgated on December 25, 2023, serving as the country's renewed penal code by superseding the Indian Penal Code, 1860 (IPC).The Bharatiya Nyaya Sanhita will consist of 358 sections, which is a reduction from the 511 sections in the IPC. This includes the addition of 20 new crimes, while the imprisonment sentence has been elevated for 33 offenses. Furthermore, the fine amount has been raised in 83 crimes, and mandatory minimum punishment has been established for 23 crimes. Additionally, community service is now an option as a penalty for six offenses. Lastly, 19 sections have been repealed or eliminated from the legislation. Key changes in the BNS include:

a   a)    Incorporation of community service as a form of punishment

           b)  Offences against the body

      c) Sexual offences against women

             d ) New provision of Treason

           e) Overlap with Unlawful Activities (Prevention) Act, 1967

f     f )  Terrorism

             g)  Organised crime

              h) Mob lynching

i      i)   Deletion of certain offence

I

  I            I.  Definitions

i.                   Section 2(3) of BNS “Child” New Definition

The newly introduced provision [NEW] outlined in Section 2(3) of BNS establishes the definition of 'child' to encompass individuals who are below 18 years of age.

ii.                 Section 2(8) of BNS/Section 29 of IPC “Document”

Section 2(8) of BNS provides that documents include ‘electronics and digital record’.

iii.              Section 2(10) of BNS/Section 8 of IPC “Gender”

The specific provision in section 2(10) explicitly includes transgender individuals and offers a clear definition, which contrasts the previous scenario in section 8 of IPC.

iv.              Section 2(21) of BNS “movable property”

The scope of "movable property" under Section 2(21) of BNS differs from the definition stated in Section 22 of IPC. In contrast to Section 22, Section 2(21) of BNS does not solely encompass property in corporeal form. This means that movable property, as defined in BNS, includes property of any kind, whether tangible or intangible, except for immovable property. It encompasses both physical assets and intangible assets such as patents, copyrights, and actionable claims.

II.                Section 21 Offence committed by a child

 Nothing is an offence which is done by a child above seven years of age and under twelve, who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion.

III.             Section 22 and 23  Mental illness and intoxication

Any act committed by an individual suffering from mental illness, who, at the time of the act, is unable to comprehend its nature, or that it is morally or legally incorrect, shall not be considered an offense.

Likewise, any act performed by an intoxicated individual, who, due to the intoxication, is incapable of understanding the nature of the act or its moral and legal implications, shall not be deemed as an offense; except in cases where the substance causing the intoxication was administered to the person without their knowledge or consent.

IV.            Section 69 sexual offenses against women and children by deceitful means

It states, "Whoever, by deceitful means or making by promise to marry to a woman without any intention of fulfilling the same, and has sexual intercourse with her, such sexual intercourse not amounting to the offence of rape, shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine."

V.               Section 70(2) Gang Rape of a woman under eighteen years of age

Gang rape of a woman under eighteen years of age carrying a punishment of imprisonment for life, i.e., imprisonment for the remainder of that person's natural life, and with fine, or death.

VI.            Community Service has been included in BNS as a punishment for the first time for petty offences

The inclusion of Community Service as a form of punishment for minor offenses is a new development in BNS. Previously, Section 53 of IPC outlined five types of punishments, namely Death, Life Imprisonment, Rigorous Imprisonment, Simple Imprisonment, Forfeiture of Property, and Fine. However, Section 4(f) of BNS has introduced a sixth type of punishment known as Community Service.

Petty offenses include failing to appear in response to a proclamation, attempting suicide, preventing or restricting the exercise of a public servant's lawful authority, petty theft on return of theft money, intoxicated public misbehavior, defamation, etc. BNS prescribes community service as punishment for these types of offenses.

In BNS, the definition of "community service" is not explicitly provided. But the Explanation to section 23 of BNSS sheds light on its meaning. According to this, community service refers to the mandatory work assigned by the Court to a convict as a disciplinary measure. This form of punishment aims to benefit the community, and the individual performing community service shall not receive any form of remuneration.

Offenses that qualify for community service as a penalty

BNS allows for the following offenses to result in community service as a penalty:

Section 202  : Public servant engaging in unlawful trading

Section 209 : failing to appear in response to a proclamation made according to Bharatiya Nagarik Suraksha Sanhita 2023 section 84.

Section 226 : attempting suicide

Proviso below section 303(2) : For the first time, a person found guilty of theft in which the value of the theft property is less than five thousand rupees faces community service once the property is returned or restored.

 Section 355 : Intoxicated public misbehavior

Section 356 : Defamation

IV. Section 103(2) Punishment for mob-lynching (new provision)

The new Section 103(2) of BNS stipulates that if five or more people act together to commit murder on the basis of race, caste, community, sex, place of birth, language, personal belief, or any other reason, each member of the group will be punished with either death or life in prison, as well as a fine.

V.         Section 111(1) Definition “Organised Crime”

A new provision has been introduced to address the issue of organized crime, as it was not previously recognized as an offense under the Indian Penal Code (IPC). In the past, individual states, like Maharashtra, had their own laws, such as the Maharashtra Control of Organised Crime Act, 1999 (MCOCA), to define and punish organized crime. However, the enactment of Section 111 in the BNS now offers a specific provision to tackle organized crime at a national level.The following are considered as “Organised crime”

i.                   Any continuing unlawful activity falls under this category, which includes kidnapping, robbery, car theft, extortion, land grabbing, contract killing, economic crimes, cybercrimes, trafficking in people, drugs, weapons, or illicit goods or services, as well as trafficking in people for the purpose of prostitution or ransom.

ii.                 Activity conducted by individuals or a group associated with an organized crime syndicate: This particular activity is performed by individuals acting independently or collectively, either as members of an organized crime syndicate or on their behalf.

iii.              Unlawful methods: This form of activity entails utilizing violence, threats, intimidation, coercion, or any other illegal means.

iv.              Objective is to gain advantage: This activity is conducted with the purpose of acquiring a direct or indirect, tangible advantage, which may include financial benefits.

  A.  Clause (iii) of Explanation below Section 111(1) Definition of “Economic offence”

The term "economic offences" encompasses various unlawful activities aimed at obtaining financial gains through different means, such as:

i)                   Engaging in criminal breach of trust

ii)                Committing forgery

iii)              Counterfeiting currency notes, banknotes, and government stamps

iv)              Participating in hawala transactions

v)                Engaging in mass-marketing fraud

vi)              Organizing schemes to defraud multiple individuals

vii)           Carrying out acts with the intention to defraud banks, financial institutions, or other establishments.

B . Clause (i) of Explanation below Section 111(1) Definition of “Organised crime syndicate

 A definition of "organised crime syndicate" refers to a collective of three or more individuals who engage in ongoing unlawful activities, either independently or collaboratively as a syndicate or gang.

Punishment for committing organized crime

 a.  In the event that an individual engages in organized criminal activities, such activities have caused the loss of life, the offender shall be subject to either capital punishment or lifelong imprisonment, in addition to a fine of no less than ten lakh rupees.

b. Section 111(2) -In any other scenario, the individual shall face imprisonment for a minimum of five years, and the maximum sentence may include lifetime imprisonment. Additionally, a fine not less than five lakh rupees shall be imposed.

c. Section 111(3) outlines the punishment to individuals involved in aiding, attempting, or promoting organized crime, as well as engaging in behavior that supports the advancement of organized crime activities.

d. Section 111(4) establishes the penalties imposed upon individuals who are found to be affiliated with an organized crime syndicate.

e. Section 111(5) mandates the imposition of penalties for purposely harboring or concealing an individual who has committed the offense of engaging in organized criminal activities.

f. Section 111(6) prescribes the punishment for possessing any assets acquired or obtained from the perpetration of organized crime, including proceeds or property acquired through such illicit activities.

g. Section 111(7) stipulates the punishment for an individual who possesses any property on behalf of a member of an organized crime syndicate, without being able to provide a satisfactory explanation for it.

 VI. Section 112 Definition of New Offence of “Petty Organised Crime”

This is a new provision in BNS. There is no such provision in IPC.

Section 112 provides as under :

A person who is part of a group or gang, whether individually or collectively, is considered to engage in petty organized crime if they are involved in activities such as theft, snatching, cheating, unauthorized sale of tickets, unauthorized betting or gambling, selling of public examination question papers, or any other comparable criminal acts.

Punishment for petty organized crime

Whoever commits any petty organised crime shall be punished with imprisonment for a term which shall not be less than one year but which may extend to seven years, and shall also be liable to fine.

i.                    Snatching

According to the definition stated in section 304(1) of the BNS, the term "snatching" shall hold the same meaning. The BNS further clarifies in section 3(2) that any expression explained in any part of the document shall be interpreted consistently throughout. However, in the circumstance where the offender carrying out "snatching" (such as chain snatching or mobile snatching) is involved in a gang or group, the offense of snatching is subject to punishment under this section.

If an individual engages in criminal acts as a lone wolf, operating independently without any affiliation to a gang or group, they will be subject to punishment under section 304(2). It is important to note that Section 304 is a recent addition which addresses snatching as a distinct offense. However, it is worth noting that the punishment for such offenses under section 304(2) is comparatively less severe than that prescribed under section 112.

ii.                 Theft

The definition of the term "theft" is explicitly given in section 303(1) of BNS. Within this sub-section, "theft" encompasses various activities such as trick theft, theft from vehicles, dwelling houses, or business premises, cargo theft, pickpocketing, theft through card skimming, shoplifting, and theft of an Automated Teller Machine. However, it is important to note that terms like "trick theft", "card skimming", "shoplifting", "pickpocketing", etc., are not explicitly defined in BNS. Therefore, these terms should be interpreted according to their commonly accepted meanings..

If an individual involved in theft is associated with a gang or group, the offense falls under the purview of this section. However, if the theft is carried out by a lone individual, not part of  a gang or group, it is punishable under section 303(2) of BNS. It is important to note that the punishment prescribed under section 303(2) is comparatively lesser than that under section 112.

In addition, it should be noted that theft committed by a sole operator, as stated in section 303(2), is considered a compoundable offense under section 359 of the Bharatiya Nagarik Suraksha Sanhita,2023 (BNSS). On the other hand, if theft is committed by an individual who is part of a gang, it is classified as an offense under section 112 and is not compoundable.

iii.              Cheating

In light of section 3(2) of BNS, the definition of "cheating" stated in section 318(1) of BNS will also be applicable for section 112 purposes. Nevertheless, it is important to consider the following points:

-If the offender engaging in cheating is associated with a gang or group, this section allows for the punishment of the offense.

-On the other hand, if the offender operates alone, without any affiliation to a gang or group, the offense of cheating falls under section 318 and will be punishable accordingly.

VII. Section 113 Definition of New Offence of Terrorist Act 

Section 113 provides as under:

Whoever engages in any action with the intention to pose a threat or potentially jeopardize the unity, integrity, sovereignty, security, or economic security of India, or with the aim to instill terror or potentially instigate fear among the people or a specific population within India or any foreign nation;

 -By  causing or intending to cause harm, destruction, or danger, whether through the use of bombs, dynamite, or other explosive substances, inflammable substances, firearms, lethal weapons, poisonous or noxious gases, chemicals, or any other hazardous substance (including biological, radioactive, nuclear or any other similar material), or through any means that may potentially result in

 -a person's death or injury, or the occurrence of loss, damage, or destruction to property,

 - or the disruption of essential supplies or services within the Indian community or any foreign nation.

 -Furthermore, damage to the financial stability of India due to production, smuggling, or circulation of counterfeit Indian paper currency, coin, or any other material.

 -Also, any harm or destruction to property within India or a foreign country that is utilized or intended to be utilized for the defense of India or for any other purposes of the Indian Government, State Government, or any of their agencies.

 -Or intimidates by means of criminal force or the show of criminal force or attempts to do so or causes death of any public functionary or attempts to cause death of any public functionary; or

 -threatens to kill or harm someone while detaining, kidnaps, or abducts them, or takes any other action to force government of India, a state government, a foreign government, an international or intergovernmental organization, or any other individual to do or refrain from doing any act,

commit a terrorist act.

Punishment for commission of ‘terrorist act’

If a person commits a terrorist act and it results in the death of any individual, they will be subject to either a death penalty or life imprisonment, in addition to being liable for a fine. If the terrorist act does not result in any fatalities, the punishment will be imprisonment for a minimum of five years, which may extend to life imprisonment, along with a fine.

Punishment for conspiracy, attempt, advocacy, abetment, advice, incitement, or knowingly facilitate the commission of a terrorist act

Whoever conspires or attempts to commit, or advocates, abets, advises or incites, directly or knowingly facilitates the commission of a terrorist act or any act preparatory to the commission of a terrorist act, shall be punished with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine.

Punishment for organising camp aimed at training terrorists or recruiting persons for committing terrorist acts

Whoever organises or causes to be organised any camp or camps for imparting training in terrorist act, or recruits or causes to be recruited any person or persons for commission of a terrorist act, shall be punished with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine.

Punishment for being a member of organisation involved in terrorist act

Any person who is a member of an organisation which is involved in terrorist act, shall be punished with imprisonment for a term which may extend to imprisonment for life, and shall also be liable to fine.

 Harbouring or concealing a terrorist

Anyone who willingly harbours, conceals, or makes an attempt to harbour or conceal an individual, with the knowledge that said individual has committed a terrorist act, shall face imprisonment for a minimum of three years, and potentially lifelong imprisonment. Additionally, they will be subject to fine.

This sub-section shall not apply to any case in which the harbour or concealment is by the spouse of the offender.

Punishment for possessing proceeds of terrorist acts

Anyone found to be in possession of any property derived or obtained from the execution of a terrorist act or acquired through the execution of a terrorist act will face imprisonment for a duration ranging up to a lifetime, in addition to being subject to a fine.

A police officer holding the rank of SP or higher is authorized to make the determination regarding whether an offense should be registered under the Unlawful Activities (Prevention) Act (UAPA) or under the applicable section mentioned.

VIII. Section 106-Changes in punishment in hit and run cases

Regarding death resulting from negligence, Indian Penal Code (IPC) covers it under Section 304A. Correspondingly, Section 106 of the BNS Act refers to Section 304A as well. According to Section 106(1) of the BNS Act, individuals who cause the death of a person due to rash or negligent acts, which do not constitute culpable homicide, may face imprisonment for a term of up to five years.

The new law increases the punishment for causing death by negligence from a maximum of two years to a maximum of five years. This change reflects a stricter approach to cases of negligence resulting in death.

Section 106(2) Offender escaping or failing to report (New Provision)

Section 106(2) of BNS encompasses an additional provision in sub-section (2) concerning instances where the perpetrator flees the scene of an incident without reporting it to a police officer or Magistrate. In such scenarios, a stringent punishment is enforced, encompassing a maximum imprisonment sentence of ten years along with a fine.

The application of section 106(2) punishments does not occur solely based on the driver fleeing the scene in order to avoid being attacked by angry bystanders. The offense is only committed if the driver not only flees the scene but also fails to promptly report the incident to the Police or Magistrate.

 IX. Negligent act of Medical practitioner [New Provision]

In case of registered medical practioner if negligent act is done by a registered medical practitioner while performing medical procedure, he shall be punished with imprisonment of either description for a term which may extend to two years, and shall also be liable to fine.

X. Sedition (Section 124-A IPC) /Treason (Section 152 BNS)

BNS has omitted section 124A of IPC under which sedition was a punishable offence. Rather than being classified as another offense under BNS, treason falls under Section 152 of BNS, encompassing acts that jeopardize India's sovereignty, unity, and integrity.

Section 152-Treason, Act endangering sovereignty, unity and integrity of India

Section 152 of BNS provides that whoever, purposely or knowingly, by words, either spoken or written, or by signs, or by visible representation, or by electronic communication or by use of financial mean, or otherwise, excites or attempts to excite, secession or armed rebellion or subversive activities, or encourages feelings of separatist activities or endangers sovereignty or unity and integrity of India; or indulges in or commits any such act shall be punished with imprisonment for life or with imprisonment which may extend to seven years, and shall also be liable to fine.

The clarification provided for section 152 of the BNS emphasizes that commenting on the government's actions or measures to seek their lawful alteration, without inciting or attempting to incite activities related to secession, armed rebellion, subversive activities, separatist sentiments, or jeopardizing the sovereignty, unity, and integrity of India, will not be considered an offense under this section.

 XI. Section 178- Mere possession of fake currency notes is no more punishable

Section 178 of the BNS has incorporated changes to Section 242 of the IPC to safeguard individuals from legal consequences solely based on possession of forged or counterfeit currency notes or bank-notes. As per the revised legislation, mere possession of counterfeit currency notes or bank-notes is no longer considered as an offense. The amended law, recorded as section 178 in the BNS, stipulates that in order to constitute an offence possession of counterfeit currency note has to be accompanied by the intention to use the same as genuine.

 XII. Section 224 of BNS “Suicide” Definition

While Section 309 IPC forbids attempts to commit suicide Section 224 BNS omitted the section and introduced new definition of  that it is illegal to attempt suicide in order to coerce or restrict the exercise of lawful authority.

XIII. Section 318 of BNS “Cheating”

In a recent change, the Indian Penal Code (IPC) has consolidated various forms of cheating into one provision called Section 318 of the BNS. This new provision increases the punishment for cheating to a maximum of three years of imprisonment, compared to the previous one-year sentence under the IPC. Moreover, for a more severe form of cheating that

involves knowledge of causing wrongful loss to someone whose interests the offender is obligated to protect, the punishment has been further increased to a maximum of five years of imprisonment.

XIV. Expanded definition of “theft” vis a vis IPC [Section 303(1) read with section 112(1) and section 2(21)

The offense of "theft" has been broadened to encompass the theft of intangible items, such as the theft of data (e.g., credit card skimming), identity theft, and the misappropriation of intangible assets. This expansion aligns with the extended definition of "movable property."Theft is covered by section 303 of BNS. Corresponding provisions were sections 378 and 379 of BNS

The scope of the term "movable property" in BNS is broader compared to its definition in IPC.

i.                   Section 2(21) of BNS has removed the phrase “are intended to include corporeal” that was previously present in the definition of movable property in section 22 of IPC. Consequently, movable property now encompasses all types of property except immovable property, regardless of whether it is in tangible or intangible form. This expanded definition under BNS includes assets such as patents, copyrights, and other intangible assets, as well as actionable claims.

ii.                  the definition of theft has been broadened to include data theft, encompassing the unauthorized access and manipulation of data, including the online theft of funds through hacking bank accounts. Additionally, the theft of intangible assets, data, card skimming, and online theft through hacking bank accounts or cloning mobile devices are all deemed as theft under this revised definition of movable property.

iii.              Based on section 3(2) of BNS, section 303 will encompass offenses falling under the definition of "theft" as set out in the inclusive explanation of section 112(1). In accordance with this explanation, the term "theft" not only refers to the act of stealing, but also includes various other offenses such as trick theft, theft from vehicles, dwelling houses or business premises, cargo theft, pick pocketing, theft through card skimming, shoplifting, and theft of Automated Teller Machines.

Section 303(2)] Prescribed punishment

Harsher punishment in the form of rigorous imprisonment

Under normal circumstances of theft, the period of imprisonment remains unchanged at 3 years under both the previous and current legislation. Nevertheless, if an individual commits theft again (second or subsequent conviction), the BNS enforces a stricter punishment in the form of rigorous imprisonment. The duration of this imprisonment will be a minimum of one year and can be extended up to five years, in addition to a fine.

First-time offenders involved in petty theft cases

As stated previously, for first-time offenders involved in petty theft cases where the value of stolen property is less than ₹5000, community service can be imposed as an alternative punishment instead of imprisonment or a fine, under the proviso to section 303(2) of BNS. This option is applicable if the offender either returns the value of the stolen property or restores the stolen property itself.

Theft by snatching

It is important to note that the punishment for theft, as stated in section 379 of IPC, is also applicable to theft by snatching. However, under the provisions of BNS, theft by snatching is considered a distinct offense falling under section 304 of BNS, which entails even stricter penalties.

Mandatory Summary trial of offences of petty theft

The monetary limits for petty thefts triable in summary trials in terms of value of stolen property involved has been increased from ₹2000 (section 260(1) of CrPC) to ₹20000 (section 283(1) of Bharatiya Nagarik Suraksha Sanhita (BNSS))

 Summary trials are rendered obligatory for petty and less serious cases

In compliance with Section 283 of BNSS, summary trials are rendered obligatory for petty and less serious cases. Contrastingly, according to Cr.PC, it was within the discretion of the Magistrate to opt for a summary trial for petty and less serious offenses as per Section 260(1) of Cr.PC, which employed the phrase "may, if he thinks fit, try in a summary way all or any of the following offenses." However, Section 283(1) of BNSS has replaced the term "may" with "shall" and has further enhanced the monetary limits for the summary trial of petty offenses.

The offence of theft when punishable u/s 112 and Section 303(2)

If an individual carries out theft alone, without any involvement of a gang or group, it will be deemed an offense and subject to prosecution under section 303 (2) .However, if the offender is part of a gang or group, engaged in the act of theft, it will be considered petty organized crime and punishable according to section 112.

 XV. Section304- Snatching (New offence)

Section 304 of the BNS introduces a novel provision. Previously, the IPC did not classify snatching as a separate offense from theft under section 379 of the IPC.

The term "snatching" refers to situations where an offender forcefully and swiftly seizes or takes away movable property from a person or their possession with the intent to commit theft.

Anyone found guilty of snatching will face imprisonment for a period of up to three years and may also be subjected to a fine.

When offence of snatching is punishable under this section and when punishable u/s 112

If an offender conducts snatching as an individual (solo and without any affiliation to a gang or group), this act will be subject to punishment as per this section.

However, if the offender, engaged in snatching activities such as chain snatching, mobile snatching, etc., is part of a gang or group, the offense of snatching will be punishable under section 112 as a minor form of organized

Deletion of certain offenses

i.                   The Section 377 of the IPC offense has been removed by the BNS in  line with the Supreme Court’s Judgement in Navtej Singh Johar Vs Union of India.

ii.                 The BNS likewise omits the offence of attempting suicide, which is defined by Section 309 of the IPC. This is a progressive omission that sees suicide attempts as mental health emergencies rather than criminal offenses.

iii.              Adultery is not listed as a crime in BNS in line with Supreme Court’s Judgement in Joseph Shine Vs Union of India

Conclusion

The Bharatiya Nyaya Sanhita 2023 represents a commendable effort to modernize the Indian Penal Code and align it with contemporary societal needs. The adoption of gender-neutral language, enhanced protection for women and children, and provisions to address economic offenses and cybercrime demonstrate the evolving priorities of the legal framework. However, successful implementation of the revised code necessitates comprehensive sensitization, awareness campaigns, and efficient justice delivery mechanisms. By addressing these key issues, India can ensure that the Bharatiya Nyaya Sanhita 2023 serves as a significant stepping stone towards a more just and equitable society.

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