The three laws i.e., 'Bharatiya Nyaya Sanhita, 2023' ("BNS") (replacing the Indian Penal Code, 1860), 'Bharatiya Nagarik Suraksha Sanhita, 2023' ("BNSS") (replacing the Code of Criminal Procedure, 1973), and the 'Bharatiya Sakshya Adhiniyam, 2023' ("BSA") (replacing the Indian Evidence Act, 1872) came into force with effect from 1st July 2024 (hereinafter collectively referred to as "new criminal laws"). In this update, we attempt to provide an overview of the changes brought about by these laws.
Applicability
It is important to bear in mind that the provisions of the new criminal laws will apply prospectively. Which means that any crime occurring until midnight of 30th June 2024 would continue to be governed by and prosecuted under the old laws. Therefore, the provisions of the old laws will remain relevant for at least some years to come until pending investigations, inquiries, trials, appeals and any connected proceedings are concluded.
Bharatiya Nyaya Sanhita, 2023
Most of the offences under the IPC including their ingredients have been retained in BNS with some changes in the quantum of punishment. Notably, the offences pertaining to criminal breach of trust and cheating which are most commonly invoked by and against corporations, now stand consolidated in form of Section 316 and 318 of BNS respectively.
Another important introduction is by way of Section 111 which defines "organised crime" and includes unlawful activities such as economic offence and cyber-crimes. Economic offence has been given an inclusive definition encompassing criminal breach of trust, forgery, counterfeiting of currency-notes, bank-notes and Government stamps, hawala transaction, mass marketing fraud or running any scheme to defraud several persons or doing any act in any manner with a view to defraud any bank or financial institution or any other institution or organisation for obtaining monetary benefits in any form.
These crimes draw punishments under Section 111 of BNS which range from death to life imprisonment. As directors of companies can also be held liable for organised crimes, corporations must take note of this key change to avoid being penalised under BNS.
Bharatiya Nagarik Suraksha Sanhita, 2023
The objective behind BNSS appears to preserve the well settled aspects of criminal procedure as provided in CrPC, while at the same time certain changes have been introduced. For eg. Section 193(2) stipulate that police investigation in offences against women and children shall be completed within two months from the date of information. Similarly, timelines have been prescribed for various other stages of proceedings. Much will depend upon the police and judiciary, as in our experience, timelines prescribed under statutes have been consistently held to be directory in nature and not mandatory. Hence, how such provisions are implemented in the coming days will determine the efficacy of these timelines.
Important provisions relating to bail in non-bailable offences and inherent powers of High Courts (which is generally invoked to stay or quash any proceedings) have been carried forward as Section 480 and Section 528 respectively, with an exception that "bail bond" and "bond" are now distinguished and defined. In terms of Section 479 of BNSS, first-time offenders can be released upon furnishing a bond if they have undergone detention for a period extending up to one-third of the maximum punishment for that offence.
Use of technology and forensic evidence are the two key takeaways of BNSS. Section 530 of the BNSS now enables use of electronic communications, audio-video electronic means for issuance and service of summons and warrants, recording of evidence, and appellate proceedings. Section 176 provides for mandatory visit and collection of evidence by a forensic expert in all offences punishable with seven years or more. Further, use of videography on mobile phone or any other electronic device is also mandated during search and seizures conducted by the authorities and collection of evidence. Provision such as sections 254 (Evidence for prosecution), 265 (Evidence for prosecution), 308 (Evidence to be taken in presence of accused) etc. also permit use of audio-video electronic means for deposition of evidence and examination of witnesses.
Section 356 of the BNSS introduces 'trial-in-absentia' which refers to legal proceedings that can be carried out in absence of the accused. Although Criminal Procedure Code (CrPC) allowed recording of evidence and proceedings to continue in absence of the accused if his/her pleader was present; it is for the first time that courts have been allowed to carry out trials and give a sentence in absence of the accused, subject to certain procedures under Section 356 (2) of the BNSS. This will impact international as well as Indian corporates or businesses accused of any crimes under different sectoral laws.
Section 173 of BNSS gives a statutory recognition to Zero FIR which means that a FIR can now be registered at any police station irrespective of whether such police station has the territorial jurisdiction over the place of crime. Further, FIRs can also be lodged through electronic communication such as emails and WhatsApp messages subject to information being signed within 3 days by the person giving it. This simplifies the process of registration of FIR since now the victim can approach the nearest police station or even send an electronic communication without causing delay. In this regard, the Ministry of Home Affairs have published a standard operating procedure (SOP) to clarify the practical steps involved in the registration of zero FIR and e-FIR including transfer to jurisdictional police station and conversion to regular FIR.
Section 107 introduces the concept of attachment of property which are proceeds of crime and distribution of such proceeds of crime rateably among persons affected by such crime. Further, Section 398 envisages State Governments to prepare and notify a Witness Protection Scheme.
Bharatiya Sakshya Adhiniyam, 2023
The focus of this revamped law is to ease the manner in which electronic or digital records and signatures can be relied upon in judicial proceedings, which is now a necessity given the corresponding reliance on such means in BNSS. Resultantly, the definition of "documents" under Section 2(1)(d) has been expanded to include an electronic or digital record. This includes communication over emails, messages, call recordings, security logs, photographs etc. Similarly, definition of "evidence" under Section 2(1)(e) now includes all statements and documents given / produced electronically or in a digital format. Section 39 of BSA provides that where the court has to form any opinion in relation to an electronic or digital record, the opinion of the Examiner of Electronic Evidence referred to in Section 79-A of the Information Technology Act, 2000 will be relevant.
Further, Section 57 clarifies that electronic or digital record is a "primary evidence", admissibility of which is further provided under Section 61 but at the same time is made subject to Section 63 of BSA. Given the likelihood of tampering with electronic or digital evidence, Section 63(4) mandates a certificate somewhat like the one under Section 65-B of the IEA, however with an additional safeguard in the form of a mandatory certification by an expert.
Sections 66 and 73 recognise and deal with electronic and digital signature and associated proof.
Initial thoughts
The core philosophy and principles underlying crime and prosecution thereof has not changed. However, it is reasonable to expect that early application of these new laws will give rise to certain ambiguities which will take some time to get resolved either by legislative or judicial interventions. While the intent may be to remove complexities and make India's criminal justice system more robust and efficient, in the short run certain practical issues are bound to arise.
Samvad has extensive experience in advising and representing clients in a diverse range of criminal matters. We are closely tracking the developments brought about by these new criminal laws and are confident to help our clients smoothly navigate through these changing times.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.