In December, the criminal law landscape in India was entirely changed by the introduction of the following three new legislations:

  • the Bharatiya Nyaya Sanhita, which would replace the Indian Penal Code, 1860 (IPC);
  • the Bharatiya Nagarik Suraksha Sanhita, which would replace the Code of Criminal Procedure, 1898 (CrPC); and
  • the Bharatiya Sakshya, which would replace the Indian Evidence Act, 1872.

These legislations were introduced with the objective of removing the ‘colonial mindset’ in the Indian criminal justice system and focusing on justice delivery. It is expected that these would be brought into force in the next few months.

 

Following are some of the key features of these legislations:

Bharatiya Nyaya Sanhita, 2023 (BNS)

Broad overview:

  • Twenty (20) new offences have been added in the BNS (notably- organised crime, terrorism, and murder or grievous hurt by a group on specified grounds i.e., mob lynching).
  • Nineteen (19) provisions have been deleted (notably; adultery and sedition. However, Section 152 of the BNS introduces a somewhat similar offence described as ‘endangering sovereignty, unity and integrity of India’).
  • For approximately hundred (100) offences, the punishment or fine has been increased, and for 23 offences a mandatory minimum punishment has been introduced.

Thus, it appears that the intent is to introduce stricter punishments, while deleting archaic or obsolete offences.

 

Notable aspects:

  • Organised Crime: For the first time, organised crime and economic crimes are introduced under ordinary criminal law: The IPC did not expressly deal with “organised crime”, and State legislations such as the Maharashtra Control of Organised Crime Act, 1999 were used to deal the same. Consequently, there existed a fragmented framework dealing with organized crime.

Now, BNS has sought to introduce a provision dealing with the same in the Central legislation itself. Under section 111 of the BNS, organized crime wherein commission of acts such as kidnapping, robbery, extortion, economic offences etc. by any person or a group of persons acting in concert, singly or jointly, either as a member of an organized crime syndicate or on behalf of such syndicate, is a punishable offence.

The phrase “economic offence” has been introduced in “organized crime” which has been defined as breach of trust, forgery, counterfeiting currency, hawala transactions or any other act done to defraud any institution or organisation to obtain monetary advantage etc.

It is also notable that there is now a potential for overlap between provisions of State legislation dealing with such organized crime and provisions of the BNS.

 

  • Terrorism: Similarly, for the first time, terrorism has been brought under the ambit of ordinary criminal law. The offence of terrorism has been defined under the BNS, which was not the case under the IPC. Section 113 of BNS punishes “terrorist act” which is defined as an act with the intent to threaten the unity, integrity, sovereignty, security, or economic security of India; or with the intent to strike terror in the people in India, or in any foreign country. This provision in the BNS is almost identical to section 15 of Unlawful Activities (Prevention) Act, 1967 (UAPA) – India’s special anti-terror legislation. This too raises the concerns about overlapping legislations addressing the same offence.

 

  • Sedition: BNS reintroduces the acts of offences against the State under a new name and with a wider definition. BNS removed the offence of sedition and instead proposes to penalise the following: (i) excites or attempts to excite secession, armed rebellion, or subversive activities, (ii) encourages feelings of separatist activities, or (iii) endangers the sovereignty or unity and integrity of India. These offences may be committed by words or signs, electronic communication, or even use of financial means.

The provision appears to expand the scope of the gravity of the offence by including within it the act of also using electronic communication or use of financial means, punishing any ‘subversive activities’, feelings of ‘separatist activities’ or endangers ‘sovereignty or unity and integrity of India’, the scope of which are presently vague and unclear.

 

  • Abetment outside India for offence in India: Under the BNS, a person abets an offence within the meaning of this Sanhita who, without and beyond India, abets the commission of any act in India which would constitute an offence if committed in India. Given this, foreign entities can also be sought to be made liable for acts of their Indian subsidiaries or sister concerns.

 

  • Community Service as punishment: While the erstwhile criminal laws only provided for fine, imprisonment or death as punishments, BNS now, for the first time, specifically provides for community service as one of the punishments for certain offences such as for defamation, misconduct in public by a drunken person, attempt to commit suicide to compel or restrain a public servant from discharging his official duty, petty theft (in case of return of stolen property) etc. Community service has been defined under the BNSS as “work which the court may order a convict to perform as a form of punishment that benefits the community for which he shall not be entitled to any remuneration”

 

Bharatiya Sakshya Adhiniyam, 2023 (BSA)

 

Broad overview:

  • Two (2) new sections and six (6) new sub-sections have been added (notable additions pertain to introduction of digital records as evidence, conviction based on corroborated testimony of an accomplice, inclusion of spouse as a competent witness in a criminal trial)
  • Six (6) sections have been deleted.

 

Notable changes:

  • ‘document’ and ‘evidence’ to include digital: The BSA expands the definition of document to now include ‘electronic and digital records.’ Therefore, an electronic record on emails, server logs, documents on computers, laptop or smartphone, messages, websites, locational evidence and voice mail messages stored on digital devices are also considered as documents under BSA.

Similarly, the BSA also expands definition of ‘evidence’ to include “statements given electronically” to be considered as oral evidence and “all documents including electronic or digital records” to constitute documentary evidence.

In addition to this, the BSA also provides that nothing therein shall apply to deny the admissibility of an electronic or digital record in the evidence and such record shall have the same legal effect, validity and enforceability as paper records.

While digital records were already being used in trials in India routinely, these changes in the statue itself are expected to make it easier to use electronic data in legal proceedings.

 

  • Reliance on Electronic evidence as Primary evidence: In dealing with primary evidence, new explanations have been provided to clarify what constitutes primary evidence as detailed below:
    • An electronic or digital record created or stored, either simultaneously or sequentially in multiple files, then each file is primary evidence.
    • An electronic or digital record is produced from proper custody; such electronic and digital record is primary evidence.
    • A video recording is simultaneously stored in electronic form and transmitted or broadcast to another, each of the stored recordings is primary evidence.
    • An electronic or digital record is stored in multiple storage spaces in a computer resource, each such automated storage, including temporary files, is an original.

These additions establish a framework for the legal treatment of electronic or digital records, which until now had to be filed along with an affidavit under the Evidence Act as a pre-condition to their maintainability.

 

  • Consideration of proved confession affecting person making it and others jointly under trial for same offence: In the BSA, it is provided, by way of an explanation, that in case one of the accused absconds, the trial shall continue and shall be deemed a joint trial and therefore, the confession made by one accused can now be held against the other absconding accused, which was not the case earlier.

 

Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)

 

Notable changes:

  • Concept of ‘Zero FIR’ introduced: The BNSS allows registration of a first information report (FIR) at any police station – even if not the jurisdictional police station – known as a ‘Zero’ FIR.

 Previously, it was not possible to file an FIR without visiting the jurisdictional police station, despite many judicial pronouncements to this effect. Now, the concept of Zero FIR has received statutory recognition, and the police station registering the Zero FIR will thereafter transfer the same to the jurisdictional police station for investigation.

The BNSS also allows for FIR registration through electronic communication which must be acknowledged within three days.

 

  • Statutory codification of preliminary inquiry prior to FIR: The BNSS provides for a preliminary inquiry to be conducted upon receipt of a complaint, to ascertain if a prima facie case is made out for registration of the FIR.

 This departs from the erstwhile norm (based on the Supreme Court’s judgment in Lalita Kumari v Government of India) wherein preliminary inquiry could only be conducted in case the complaint did not disclose commission of a cognizable offence.

Now, under the BNSS, even if the complaint discloses the commission of a cognizable offence, it is open to the Police to conduct a preliminary inquiry before proceeding with the FIR/investigation. This affords wide discretion to the Police and raises concerns about unreasonable refusals on their part to register FIRs.

 

  • Introduction of trial in absentia of proclaimed offender: The BNSS now provides for trial in absentia for declared proclaimed offenders. The trial against the proclaimed offender can only commence after the lapse of 90 days from the date of framing charges.

Until now, in case any of the accused were absconding, the trial had to be halted and would suffer indefinite delays. However, the conduct of trial in-absentia may raise concerns about observing principles of natural justice and constitutional guarantees.

 

  • Attachment and forfeiture of property: The BNSS has inserted an entirely new provision that allows a Police officer to make an application to the court or a judicial magistrate (with the approval of the Superintendent or Commissioner of Police), for attachment of certain properties where such properties are obtained, directly or indirectly, as a result of criminal activity or from the commission of any offence or which are ‘proceeds of crime’.

Presently, the CrPC does not envisage or provide for the attachment of properties which are the ‘proceeds of crime’. The definition of ‘proceeds of crime’ is similar to that provided under the Prevention of Money Laundering Act, 2002 (PMLA). Further, if the court finds the attached property to be derived from ‘proceeds of crime’, the court may order distribution of such property to persons affected by such a crime.

 

  • Use of technology at various stages of the proceeding: The BNSS adopts and increases reliance on technology to ensure faster and more efficient disposal of matters. Specifically, the BNSS permits electronic service of summons, warrants and reports as well as electronic conduct of inquiries and trials (including recording of evidence and examination of witnesses).

For instance,:

  • It empowers the examination of the accused through electronic means, specifically utilizing audio-video conferencing facilities accessible in any place designated by the State Government.
  • It introduces technology compatibility for issuance and service of summons.
  • It also allows for service of summons through electronic means.

 

  • Increase in duration of Police custody: The BNSS now allows up to 15 days of Police custody which can be utilized intermittently within the initial 40 or 60 days of the total 60 or 90 days of judicial custody respectively.

Traditionally, Police custody could only be utilized within the first 15 days of remand, and thereafter, the accused has to be sent to judicial custody for the remainder of the investigation. The BNSS modifies this procedure by allowing the 15-days’ Police custody to be authorized wholly or partially at any point within the initial 40 or 60 days of the overall 60/90 days’ period respectively.

The availability of Police custody throughout investigation has raised concerns about right to liberty, since the investigating agency may be able to negate bail by seeking custody in tranches.

Author: sarafandpartners