Manik Mahey
With effect from July 1, 2024, the three new Criminal Laws namely the Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagarik Suraksha Sanhita (BNSS) and Bharatiya Sakshya Adhiniyam (BSA) have been implemented across the nation, replacing the existing Indian Penal Code (IPC), Code of Criminal Procedure (CrPC) and Indian Evidence Act (IEA) respectively.
The three bills namely Bharatiya Nyaya Sanhita (Second) Bill, 2023. Bharatiya Nagarik Suraksha Sanhita (Second) Bill, 2023 and Bharatiya Sakshya Adhiniyam (Second) Bill, 2023 were proposed by the government last year which were subsequently, passed by the Lok Sabha and the Rajya Sabha on December 20 and 21 respectively. After receiving the assent of the President of India, the new laws were notified in the Gazette on December 25, 2023.
The decision to replace the IPC, CrPC and IEA was taken, pursuant to the recommendations of the Committee headed by the former Vice Chancellor of the National Law University, Delhi, Dr. Ranbir Singh, which had been constituted in the year 2020 to review the existing set of Criminal Laws, by the Ministry of Home Affairs.
As per the Union Home Minister, Amit Shah, the BNS, BNSS and BSA aim at substitution of punishment with justice and substitution of delay with speedy-trial or speedy-justice. He has also, emphasised that the earlier laws only protected the rights of the police but these new laws now have provisions to protect the rights of victims and complainants as well. On the other hand, the Prime Minister Narendra Modi has said that the reforms akin to the introduction of the new laws aim to “eradicate the mentality and symbols of slavery” and “create a new confident India”.
The new laws apart from making additions and alteration to the erstwhile laws, include restructuring of the existing provisions.
BHARTIYA NYAYA SANHITA (BNS), 2023.
The BNS that has replaced the IPC carries a total of 358 Sections which compared to the earlier law, include amendments in 175 provisions, introduction of 8 new Sections and deletion of 22 Sections. The new law while retaining many of the provisions of the IPC recognizes additional offenses, eliminates offenses which have been invalidated by courts and prescribes higher penalties for some of the existing offenses.
Some of the Key Changes/ Highlights
* Section 69
Penalty for engaging in sexual intercourse through deceptive means.
The Section prescribes punishment for imprisonment of either description, for a term extendable to 10 years with fine.
* Section 70
Life Imprisonment or Death Penalty for rape in case of women below 18 years of age.
Penalty for life imprisonment, defined as imprisonment for the remaining natural life of the offender, with fine, or the death penalty, has been prescribed in case of rape of a women who is under 18 years of age.
* Section 103(2)
Penalty in case of five or more persons act in concert for committing murder on the ground of race, caste or community, sex, place of birth, language, personal belief or any other similar ground.
The Section prescribes death penalty or imprisonment for life and with fine, for each member of the group is such cases.
* Section 111
Recognition of Organized Crime as offense and specific penalty for being a member of Organized Crime Syndicate.
This includes activities such as kidnapping, extortion, contract killings etc. The penalty for being a member of criminal syndicate is prescribed as imprisonment for not less than 5 years but which may extend to imprisonment for life with fine of not less than five lakh rupees.
* Section 113
Penalty for Terrorist Activities
These activities are said to include the acts that threaten or likely to threaten the unity, integrity, sovereignty, security, or economic security of India as also, those which are committed with the intent to strike terror amongst the society or any section of it, in India or in any foreign country. The punishment for commission, abetment or facilitation of terrorist activities is prescribed as imprisonment for not less than 5 years which may extend to imprisonment for life with fine.
* Section 197
Penalties for disseminating false or misleading information, jeopardising the sovereignty, unity and integrity or security of India.
This includes spreading false information whether through spoken words, signs, writing, representation or electronic means. The offense is liable for punishment of imprisonment which may extend to 3 years, or fine, or both.
* Section 226
Penalty for attempt to commit suicide for compelling or restraining the exercise of lawful power
Punishment with simple imprisonment for a term which may extend to one year, or with fine, or with both, or with community service.
* Section 304
Recognition of ‘snatching’ as an offense and specification of penalty.
Punishment with imprisonment for a term which may extend to 3 years with fine.
BHARATIYA NAGARIK SURAKSHA SANHITA (BNSS), 2023.
The BNSS that has replaced the CrPC carries a total of 531 Sections, which compared to the earlier law, include amendments in 160 existing provisions, introductions of 9 new provisions and deletion of 9 existing Sections.
Some of the Key Changes/ Highlights
* Zero FIR
One of the most significant developments in the Act is introduction of the concept of Zero FIR under Section 173(1), which means that an FIR can be registered at any Police Station, irrespective of the jurisdiction.
* Information through Electronic Communication
Section 173 further provides that the information regarding commission of a cognizable offence may be provided through electronic mode.
* Service of summonses through Electronic Modes
Section 64(2) provides that summons may also be served by electronic communication in terms of the rules that the State Government may prescribe in that behalf.
* Introduction of Deadlines
The BNSS prescribes various deadlines, which include:
i. Within 30 days; after completion of arguments, the judgment is to be pronounced. The period is however, extendable upto 45 days on specifying reasons. – [Section 258(1)]
ii. Within 7 days; the Medical Officer ought to furnish the report regarding examination of the rape victim. – [Section 184(6)]
iii. Within 90 days; the information regarding the progress of investigation ought to be provided to the victim. – [Section 193(3)]
iv. Within 60 days; from the date of first hearing, the charge(s) is to be framed. – [Section 251(1)]
v. Within 30 days; from the date of framing of charge, the application for plea bargaining ought to be filed. – [Section 290(1)]
* Forensic Investigation for Crimes punishable with imprisonment of 7 years’ or more
Section 176(3) mandates forensic investigation for crimes punishable with imprisonment of 7 years or more. This shall include visit of the forensic expert at the crime scene to collect the evidence and also, the videography of the crime scene with mobile phone or any other electronic device by such expert.
* Exceptions in cases of release on serving half of the sentence
Under CrPC, the accused on serving half of the sentence had to be released on a personal bond, except for death penalty cases, they must, but now BNSS specifies that this doesn’t apply to life imprisonment offences or individual punished under more than one offense.
* Provision to conduct Preliminary Enquiry
Under Section 173(3), in case of information relating to the commission of any cognizable offence, which is punishable with sentence of 3 years or more but less than 7 years, the officer in charge of the police station may proceed to conduct preliminary enquiry to ascertain whether there exists a prima facie case for proceeding in the matter within a period of 14 days after obtaining prior permission from an officer not below the rank of Deputy Superintendent of Police.
* [Interestingly, similar guidelines on the issue of preliminary enquiry, were issued by the Supreme Court in LALITA KUMARI v. GOVT. OF U.P. AND ORS; 2014 (2) SCC 1.]
* Trial and Judgment in absence of a proclaimed offender
Section 356 provides that if a proclaimed offender has absconded to escape the trail, the trial can be conducted and/or the judgement can be pronounced in his/her absence.
* Inclusion of finger impressions and voice samples
Earlier law authorized Magistrates only to order specimen signatures or handwriting. Section 349 of BNSS has expanded the scope of the provision to include finger impressions and voice samples.
* Evidence by the Successor Officer
Section 336 provides that where any document or report is prepared by a public servant, scientific expert or medical officer and such officer gets transferred, retires, or dies, or for any other reason is incapable of giving deposition. In such a scenario, the deposition can be made by the successor officer whether public servant, expert, or officer, who is holding that post at the time.
* Use of Handcuffs depending upon nature and gravity of the offence
Section 43 (3) provides that depending upon the nature and gravity of the offence, the Police Officer may use Handcuffs while making the arrest of a person or producing such person before the court in case;
* he/she is a habitual or repeat offender,
* he/ she has escaped from custody,
* he/she has committed the offence of organised crime, terrorism, drug related crime, illegal possession of arms and ammunition, murder, rape, acid attack, counterfeiting of coins and currency-notes, human trafficking, sexual offence against children, or offence against the State.
BHARATIYA SAKSHYA ADHINIYAM (BSA), 2023.
The BSA which has replaced the IEA comprises of 170 Sections which include amendments in the existing 23 provisions, deletion of 5 Sections and introduction of a new Section.
Some of the Key Changes/ Highlights
* Section 2(d)
Inclusion of ‘electronic’ and ‘digital’ records within the definition of document
* Section 2(e)
Inclusion of ‘statements given electronically’ within the definition of evidence.
* Section 24
The concept and contours of joint trial has been enlarged. The Section provides that where more than one persons are jointly tried for the same offence, the confession made by one person affecting himself and such other person(s) having involvement, if proved, may be taken into consideration against the other person(s) as well.
* Section 57
Inclusion/ Recognition of electronic and digital record(s) as primary evidence.
* Section 58
Inclusion of the following, in the list of secondary documents;
* oral and written admissions,
* the evidence of a person who has examined the document and is skilled in the examination of documents.
The move to replace the existing IPC, CrPC and IEA with BNS, BNSS and BSA respectively has received mixed reactions so far. While it has been welcomed at most of the corners, strong opposition is also being registered from a lot of fronts including many of the Bar Associations. The latter fraction apprehends greater misuse of the new Criminal Laws for the reason that many of their provisions are ambiguous, violate the principles of natural justice and give wider powers to the Police. Some have also raised concerns over giving wider recognition to the digital records. Keeping in view, the protests and complaints received by it from various Bar Associations and State Bar Councils, the Bar Council of India had to issue the Press Release dated 26.06.2024 whereby all the Bar Associations were requested to refrain from any form of agitation or protest at the juncture. Also, recently, on July 16, the Government of West Bengal has notified the constitution of a Committee to review the new criminal laws and suggest changes accordingly. The Government on the other hand, has been issuing clarification(s), in order to remove ambiguity across the provisions.
The new laws despite having been implemented, are still in the stage of evolution. Their provisions are thus, bound to witness amendments after regular and practical usage by the stakeholders. They shall have to pass the test of scrutiny by the Constitutional Courts. Whether these laws yield positive results or lead to a larger misuse, is a question that only time can answer. However, it is also true that laws are like dual edged swords, which can be utilized either way, depending upon the adeptness and inclination of the lawyer interpreting them.
(The author is an Advocate practicing at Supreme Court of India and High Court of Jammu & Kashmir and Ladakh.)
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