Bharatiya Nyaya Sanhita, 2023: Important Changes from the Indian Penal Code

Saji Koduvath, Advocate, Kottayam

Indian Penal Code

The Indian Penal Code (IPC) was (originally) drafted by the First Law Commission in 1834.

Chairman of the first Law Commission was Thomas Babington Macaulay.
It was introduced on January 1, 1860, after making certain changes to the draft.

3 New Acts of 2023

Bharatiya Nyaya Sanhita, 2023,
Bharatiya Nagarika Suraksha Sanhita, 2023,
Bharatiya Sakshya Adhiniyam, 2023

The new Acts replaced three colonial-era criminal laws –

the Code of Criminal Procedure (CrPC),1973,
the Indian Penal Code (IPC),1860 and
the Indian Evidence Act,1872.

Read: BNSS – Major Changes from CrPC

Major Changes in the Evidence Act by Bhartiya Sakshya Adhiniyam, 2023

Union Home Minister introduced the new Acts

Union Home Minister, Amit Shah, introduced the new Acts. He said in Lok Sabha –

“These three Acts, which will be replaced, were made to strengthen and protect British rule and their purpose was to punish, not to give justice. We are going to bring changes in both these fundamental aspects.”

Bharatiya Nyaya Sanhita, 2023 (BNS)

The IPC, and the new Sanhita, covered the criminal offences affecting –

the property,
the human body,
animals,
public order,
defamation,
public health, and
offences against the state.

The Bharatiya Nyaya (Second) Sanhita Bill, 2023, received the assent of Indian President , on December 25, 2023.

The Nyaya Sanhita, 2023 gives special attention to

offences against women, children, murder and state; and
offences by gang activity.

It introduced a new punishment –

“Community Service“.

Bharatiya Nyaya Sanhita, 2023 consists of 358 sections. The IPC, 1860 consisted of 511 sections.

Significant Changes

1. Definition of ‘child’

Sec. 2(3) of BNS defined “child” as under:

“ ‘child’ means any person below the age of eighteen years.”

In the IPC ‘minor’ was used. It was not defined. New definition in BNS – ‘child’ – gives clarity

2. Definition of ‘document’ – Included Electronic and digital records

Sec. 2(8) of BNS defines ‘document’ as under

Sec. 2(8) “ ‘document’ means any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, and includes electronic and digital record, intended to be used, or which may be used, as evidence of that matter.”

IPC Provision

29. “Document”.—’The word “document” denotes any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, as evidence of that matter. Explanation …”

3. Definition of ‘movable property’

‘movable property’ has been redefined in Sec. 2(21), BNS –

Sec. 2(21) “movable property” includes property of every description, except land and things attached to the earth or permanently fastened to anything which is attached to the earth;”

IPC Provision

Sec. 22. “Movable property”.—’The words “movable property” are intended to include corporeal property of every description, except land and things attached to the earth or permanently fastened to anything which is attached to the earth.’

4. ‘Community Service’

Sec. 4 of the new Act reads:

“4. Punishments: The punishments to which offenders are liable under the provisions of this Sanhita are—
- (a) Death;
- (b) Imprisonment for life;
- (c) Imprisonment, which is of two descriptions, namely:—
- (1) Rigorous, that is, with hard labour; (2) Simple;
- (d) Forfeiture of property;
- (e) Fine;
- (f) Community Service.“

Sec. 8(4) and (5)

Sec. 8(4) and (5) says as to ‘imprisonment in default of community service‘.

It reads –

“(4) The imprisonment which the Court imposes in default of payment of a fine or in default of community service may be of any description to which the offender might have been sentenced for the offence.
(5) If the offence is punishable with fine or community service, the imprisonment which the Court imposes in default of payment of the fine or in default of community service shall be simple, and the term for which the Court directs the offender to be imprisoned, in default of payment of fine or in default of community service, shall not exceed,—
(a) two months when the amount of the fine does not exceed five thousand rupees; (b) four months when the amount of the fine does not exceed ten thousand rupees; and
(c) one year in any other case”

Punishment of community service

Punishment of community service are given in

‘public servant unlawfully engaging in trade’,
‘Non-appearance in response to a proclamation under Section 84 of Bharatiya Nagarik Suraksha Sanhita, 2023’,
Attempt to commit suicide,
to compel or restrain exercise of lawful power.
Misconduct in public by a drunken person’,
defamation.

5. Sec. 48 – Abetment outside India – constitute an offence

“48. Abetment outside India for offence in India – 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.”

6. Exception 2 to sec. 63 – Rape Wife – age changed

Sec. 63 deals with offence of Rape. Exception 2 to sec. 63 of BNS provides –

“Exception 2.––Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.”
- Under section 375 of IPC the age limit was 15 years.

7. Sec. 69 – Sexual intercourse by employing deceitful means, etc.

“69. Sexual intercourse by employing deceitful means, etc.: Whoever, by deceitful means or by making promise to marry to a woman without any intention of fulfilling the same, 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.
Explanation.—“deceitful means” shall include inducement for, or false promise of employment or promotion, or marrying by suppressing identity.”

8. Sec. 70 – Gang Rape

IPC – S. 376D corresponds to S. 70(1). IPC – S. 376DB corresponds to S. 70(2).

The age 12 years in IPC is increased to 18 years in BNS.

Ingredients (Gang Rape) in nutshell –

rape by one or more persons
they constitute a group or
acting in furtherance of a common intention

Punishment

each one shall be deemed to have committed the offence of rape
punished with rigorous imprisonment – not be less than twenty years,
may extend to imprisonment for life – mean imprisonment for the remainder of that person’s natural life.
If woman under eighteen years of age is raped – shall be punished with imprisonment for life – mean imprisonment for the remainder of that person’s natural life.

“70. Gang Rape:

(1) Where a woman is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life which shall mean imprisonment for the remainder of that person’s natural life, and with fine:
Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim:
Provided further that any fine imposed under this sub-section shall be paid to the victim.
(2) Where a woman under eighteen years of age is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished with imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and with fine, or with death:
Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim:
Provided further that any fine imposed under this sub-section shall be paid to the victim”

9. Sec. 103 – Murder

Higher punishment for certain offences (Mob Lynching etc.).

“103. Murder (1) Whoever commits murder shall be punished with death or imprisonment for life, and shall also be liable to fine.
(2) When a group of five or more persons acting in concert commits murder on the ground of race, caste or community, sex, place of birth, language, personal belief or any other similar ground each member of such group shall be punished with death or with imprisonment for life, and shall also be liable to fine.”

10. Sec. 106 – Causing death by negligence.

Under Sec. 106 (i), the BNS, modified the punishment – from 2 years (in IPC) to 5 five years imprisonment.

If negligence by a registered medical practitioner – be punished with imprisonment for a term extending to 2 years and a fine.

Sec. 106(ii) of BNS in cases of hit and run – punishment may extend to ten years, and shall also be liable to fine.

“106. Causing death by negligence (1) Whoever causes death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine; and if such 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.
Explanation.— For the purposes of this sub-section, “registered medical practitioner” means a medical practitioner who possesses any medical qualification recognised under the National Medical Commission Act, 2019 and whose name has been entered in the National Medical Register or a State Medical Register under that Act.
(2) Whoever causes death of any person by rash and negligent driving of vehicle not amounting to culpable homicide, and escapes without reporting it to a police officer or a Magistrate soon after the incident, shall be punished with imprisonment of either description of a term which may extend to ten years, and shall also be liable to fine.”

11. Sec. 111 – Organised crime.

Sec. 111 of the BNS, – punishments for organized crime such as –

land grabbing, kidnapping,
contract killing, cybercrime, extortion,
trafficking of persons or goods or weapons or drugs, and
financial scams etc.

Ingredients to attract this offence, in nutshell –

unlawful activity (stated above)
by any person or a group of persons acting in concert,
(acting) singly or jointly _{(appears – these words are surplusage)},
either as a member of an organised crime syndicate or on behalf of such syndicate,
by use of violence, threat etc.
to obtain direct or indirect material benefit

Punishment –

life imprisonment or death and a fine of Rs. 10 Lakhs in case the offence results in the death of any individual and
for others the punishment – 5 years to life imprisonment and a fine of at least 5 lakh rupees.

“111. Organised crime.

(1) Any continuing unlawful activity including kidnapping, robbery, vehicle theft, extortion, land grabbing, contract killing, economic offence, cyber-crimes, trafficking of persons, drugs, weapons or illicit goods or services, human trafficking for prostitution or ransom, by any person or a group of persons acting in concert, singly or jointly, either as a member of an organised crime syndicate or on behalf of such syndicate, by use of violence, threat of violence, intimidation, coercion, or by any other unlawful means to obtain direct or indirect material benefit including a financial benefit, shall constitute organised crime.
- Explanation.—For the purposes of this sub-section,––
- (i) “organised crime syndicate” means a group of two or more persons who, acting either singly or jointly, as a syndicate or gang indulge in any continuing unlawful activity;
- (ii) “continuing unlawful activity” means an activity prohibited by law which is a cognizable offence punishable with imprisonment of three years or more, undertaken by any person, either singly or jointly, as a member of an organised crime syndicate or on behalf of such syndicate in respect of which more than one charge-sheets have been filed before a competent Court within the preceding period of ten years and that Court has taken cognizance of such offence, and includes economic offence;
(iii) “economic offence” includes 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.
(2) Whoever commits organised crime shall,— (a) if such offence has resulted in the death of any person, be punished with death or imprisonment for life, and shall also be liable to fine which shall not be less than ten lakh rupees; (b) in any other case, 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 which shall not be less than five lakh rupees.
(3) Whoever abets, attempts, conspires or knowingly facilitates the commission of an organised crime, or otherwise engages in any act preparatory to an organised crime, 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 which shall not be less than five lakh rupees.
(4) Any person who is a member of an organised crime syndicate 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 which shall not be less than five lakh rupees.
(5) Whoever, intentionally, harbours or conceals any person who has committed the offence of an organised crime shall be punished with imprisonment for a term which shall not be less than three years but which may extend to imprisonment for life, and shall also be liable to fine which shall not be less than five lakh rupees:
Provided that this sub-section shall not apply to any case in which the harbour or concealment is by the spouse of the offender.
(6) Whoever possesses any property derived or obtained from the commission of an organised crime or proceeds of any organised crime or which has been acquired through the organised crime, shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to imprisonment for life and shall also be liable to fine which shall not be less than two lakh rupees.
(7) If any person on behalf of a member of an organised crime syndicate is, or at any time has been in possession of movable or immovable property which he cannot satisfactorily account for, shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to imprisonment for ten years and shall also be liable to fine which shall not be less than one lakh rupees.

12. Sec. 113 – Terrorist act

It is an act performed with “an intent to threaten or likely to threaten the

unity, integrity, sovereignty
security, or economic security of India or
with the intent to strike terror or
likely to strike terror in the people or
any section of the people in India orin any foreign country”.

Ingredients in nutshell –

(a) using bombs, firearms, poisonous substance etc. to cause death, loss etc.
(b) show of criminal force or causes death of any public functionary or
(c) abducts any person and threatening to kill or injure

Punishment – imprisonment may extend to life imprisonment and fine.

In case resulted in the death of any person – death or life imprisonment and fine.

“113. Terrorist act:

(1) Whoever does any act with the intent to threaten or likely to threaten the unity, integrity, sovereignty, security, or economic security of India or with the intent to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country,––
(a) by using bombs, dynamite or other explosive substance or inflammable substance or firearms or other lethal weapons or poisonous or noxious gases or other chemicals or by any other substance (whether biological, radioactive, nuclear or otherwise) of a hazardous nature or by any other means of whatever nature to cause or likely to cause,—
- (i) death of, or injury to, any person or persons; or
- (ii) loss of, or damage to, or destruction of, property; or
- (iii) disruption of any supplies or services essential to the life of the community in India or in any foreign country; or
- (iv) damage to, the monetary stability of India by way of production or smuggling or circulation of counterfeit Indian paper currency, coin or of any other material; or
- (v) damage or destruction of any property in India or in a foreign country used or intended to be used for the defence of India or in connection with any other purposes of the Government of India, any State Government or any of their agencies; or
(b) overawes 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
(c) detains, kidnaps or abducts any person and threatening to kill or injure such person or does any other act in order to compel the Government of India, any State Government or the Government of a foreign country or an international or inter-governmental organisation or any other person to do or abstain from doing any act, commit a terrorist act.
Explanation.—For the purpose of this sub-section,—
- (a) “public functionary” means the constitutional authorities or any other functionary notified in the Official Gazette by the Central Government as public functionary; (
  b) “counterfeit Indian currency” means the counterfeit currency as may be declared after examination by an authorised or notified forensic authority that such currency imitates or compromises with the key security features of Indian currency.
(2) Whoever commits a terrorist act shall,—
(a) if such offence has resulted in the death of any person, be punished with death or imprisonment for life, and shall also be liable to fine;
(b) in any other case, 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.
(3) 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
(4) 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.
(5) 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.
(6) Whoever voluntarily harbours or conceals, or attempts to harbour or conceal any person knowing that such person has committed a terrorist act shall be punished with imprisonment for a term which shall not be less than three years but which may extend to imprisonment for life, and shall also be liable to fine: Provided that this sub-section shall not apply to any case in which the harbour or concealment is by the spouse of the offender.
(7) Whoever knowingly possesses any property derived or obtained from commission of any terrorist act or acquired through the commission of any terrorist act shall be punished with imprisonment for a term which may extend to imprisonment for life, and shall also be liable to fine.
Explanation.—For the removal of doubts, it is hereby declared that the officer not below the rank of Superintendent of Police shall decide whether to register the case under this section or under the Unlawful Activities (Prevention) Act, 1967.

13. Sec. 141 – Importation of girl or boy from foreign country

Ingredients in nutshell –

imports into India
girl under the age of twenty-one years or
boy under the age of eighteen years
with intent – to illicit intercourse

“141. Importation of girl or boy from foreign country

Whoever imports into India from any country outside India any girl under the age of twenty-one years or any boy under the age of eighteen years with intent that girl or boy may be, or knowing it to be likely that girl or boy will be, forced or seduced to illicit intercourse with another person, shall be punishable with imprisonment which may extend to ten years and shall also be liable to fine.”

14. Sec. 152 – Act endangering sovereignty, unity and integrity of India.

Ingredients, in nutshell –

purposely, by words, or by visible representation
excites secession or armed rebellion or
encourages separatist activities or
endangers sovereignty and integrity of India; or
indulges in or commits any such act.

“152. Act endangering sovereignty, unity and integrity of India

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.
Explanation.––Comments expressing disapprobation of the measures, or administrative or other action of the Government with a view to obtain their alteration by lawful means without exciting or attempting to excite the activities referred to in this section do not constitute an offence under this section.”

15. Sec. 304 – Snatching

Ingredients –

Theft
suddenly or forcibly
seizes any movable property.

“304. Snatching

(1) Theft is snatching if, in order to commit theft, the offender suddenly or quickly or forcibly seizes or secures or grabs or takes away from any person or from his possession any movable property.
(2) Whoever commits snatching, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.

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Bharatiya Nyaya Sanhita, 2023: Important Changes from the Indian Penal Code

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