Advocate Sumit Arora

31/12/2023

Recently, the Bharatiya Nyaya (Second) Sanhita (BNS) has received Presidential assent, and it will replace the 163-year-old Indian Penal Code. However, the Central government is yet to notify the date of enforcement

*In Rajya Sabha, the three bills ( Bharatiya Nyaya (Second) Sanhita, the Bharatiya Nagarik Suraksha (Second) Sanhita, to replace the Code of Criminal Procedure, and the Bharatiya Sakshya (Second) Sanhita, which seeks to replace the Indian Evidence Act.) were passed through a voice vote after being moved by Union Home Minister Amit Shah.*

*On December 12, the Centre reintroduced the three revised criminal bills, including the BNS, in the Indian parliament's lower house, withdrawing the previous versions introduced in August.*

*In addition to reordering the sequence of section numbers for offences assigned in the IPC, the following significant amendments have been introduced in the penal law by BNS.*

*Community Service As Form Of Punishment*

Community service has been introduced as a form of punishment under Section 4, although it has not been defined what community service entails. For offences such as attempting su***de to compel or restrain the exercise of lawful power, defamation, misconduct in public by a drunken person, and failure to appear at the specified place and time as required by a proclamation published under sub-section (1) of section 84 of the BNS, 2023, community service can be awarded in addition to the prescribed punishment.

*Offences Against Woman And Child*

The new BNS adds Chapter V naming “Of Offences Against Woman and Child Of Sexual Offences”. All the offences relating to woman and child have been placed under one chapter in the beginning of the Code, which was earlier spread under various chapters and parts.

*Marital R**e With Minor Wife Is Offence*

As per exception of R**e which is Section 63 of BNS, s*xual in*******se or s*xual acts by a man with his own wife, where the wife is not under eighteen years of age, would not be r**e. However, under IPC, the age of wife to not to constitute r**e was “fifteen years”.

In 2017, the Supreme Court in the judgment Independent Thought v. Union of India, (2017) 10 SCC 800 had read 'fifteen years' in Exception 2 to Section 375 IPC as '18 years' so as to bring s*x with a minor wife within the ambit of the r**e offence.

*Sexual In*******se By Employing Deceitful Means, etc.*

BNS introduces s*xual in*******se by employing deceitful means, etc as offence. Section 69 states that whoever, by deceitful means or by making promise to marry to a woman without any intention of fulfilling the same, has s*xual in*******se with her, such s*xual in*******se not amounting to the offence of r**e, shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine.

*Enhanced Punishment In Case Of Gangr**e Of Victim Of Under 18 Years Of Age*

As per Section 70, where a woman under eighteen years of age is r**ed 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 r**e 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.

It is pertinent to note that, under Section 376DA IPC, the enhanced punishment was prescribed for the victim under sixteen years of age.

Printing or Publishing Trial Court Proceeding Relating To Sexual Offences Without Permission Of Court Is An Offence

Section 73 adds that printing or publishing any matter in relation to any proceeding before a Court with respect to offence realting to r**e, s*xual in*******se by husband upon his wife during separation, s*xual in*******se by person in authority, Sexual in*******se by employing deceitful means, etc, gang r**e, without the previous permission of such Court shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine.

It is also clarified in explanation that the printing or publication of the judgment of any High Court or the Supreme Court does not amount to an offence within the meaning of this section.

Section 377 Deleted, but Unnatural In*******se Against Men or Be******ty No Longer Offences Under BNS

It is pertinent to note that in landmark ruling of Apex Court in Navtej Singh Johar, where a bench of five judges of the Supreme Court partially struck down Section 377 IPC, which criminalised consensual carnal in*******se, however forced in*******se with an adult male is an offence, and also be******ty.

The BNS has completely deleted the offence, implying that forcible carnal in*******se against a man and be******ty are no longer offences under BNS.

*Offence Of Adultery Omitted*

In view of Apex Court's judgement in Joseph Shine's case the offence of Adultery has been deleted, however, second BNS retains Section 498 of the IPC (Section 84) which penalises a man for enticing the wife of another man so that she may have in*******se with any person.

*Organised Crime*

*The new law has added organised crime under Section 111, and if the crime results in the death of any person, maximum prescribed punishment is death penalty.*

The organised crime is defined as “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.” It also defines organised crime syndicate, continuing unlawful activity, economic offence.

*Punishment Prescribed For Committing Organised Crime.*

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.

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.

*Punishment For Being A Member of an Organised Crime Syndicate*

Any person who is a member of an organised crime syndicate will be punished with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and can also be liable to fine which will not be less than five lakh rupees

*Petty Organised Crime*

BNS has also added Petty Organised Crime under Section 112, which states that whoever, being a member of a group or gang, either singly or jointly, commits any act of theft, snatching, cheating, unauthorised selling of tickets, unauthorised betting or gambling, selling of public examination question papers or any other similar criminal act, is said to commit petty organised crime.

Punishment prescribed for committing any petty organised crime is 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.

*Terrorist Act*

A major development brought about by the criminal law amendment is the addition of the "Terrorist Act," which did not find a place in the IPC.

The wider definition of the offence of "terrorist act" is given, compared to the initial version of the bill introduced in August.

Acts done with the intent of threatening or likely to threaten the "economic security of India", which cause or likely to cause "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" are also brought under the ambit of "terrorist act".

Besides, acts threatening or likely to threaten the unity, integrity, sovereignty, security of the country or striking terror in the minds of people are also covered under the offence. These acts include death or damages to properties caused by use of bombs, explosives, fi****ms, 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.

The offence is punishable with death, or imprisonment for life. Those who conspire or attempt to abet or incite such action, or knowingly facilitate the commission of a terrorist act, could face imprisonment of not less than five years, extendable to life sentence.

Act Endangering Sovereignty, Unity And Integrity Of India

BNS penalises acts endangering the unity and integrity of India, while sedition criminalised acts against the government, the BNS replaces the "government" with the "country".

Aspects of Sedition have been retained under Section 152 under the new BNS, which states 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.

Comments Expressing disapprobation of the measures, or administrative or other action of the Government, with a view to obtain their alteration by lawful means will not be an offence under this provision.

*Mob Lynching*

'Mob lynching' has been made a separate offence under the BNS, with a maximum punishment of death penalty.

“When a group of five or more persons acting in concert commits murder on the ground of race, caste or community, s*x, 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,” states Section 103.

*Lesser Punishments To Doctors For Causing Death By Negligence Vis-A-Vis Other Offenders*

The new BNS under Section 106, has carved out a special classification for doctors in relation to the punishment for causing death by medical negligence. While the Sanhita enhances the punishment for causing death by negligence to imprisonment up to 5 years, if such death is caused by a doctor, then the punishment is imprisonment up to 2 years.

Under Section 304A of the IPC, causing death by negligence is punishable with imprisonment up to 2 years, or a fine, or with both. There is no separate classification for doctors in Section 304A IPC.

*Stringent Punishment For Hit and Run Cases*

It also prescribes stringent punishment for 'hit and run' cases. If a driver causes the death of a person by rash and negligent driving 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.”

*Introduced Snatching As A Distinct Offence*

Section 304 of BNS states that 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.

Snatching is punishable with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.

*Attempt To Su***de Is No Longer An Offence*

Section 309 of the IPC enforced punishment for an attempt to commit su***de, this stringent provision did not find a place under BNS and has been completely deleted. However, Section 226 of BNS criminalises the attempt to commit su***de to compel or restrain the exercise of lawful power, punishable with simple imprisonment for a term that may extend to one year, or with a fine, or with both, or with community service.

*Significant Increase in Fine: Negligent Omission of Measures with Animals Now Up to Five Thousand Rupees*

The fine for negligently omitting to take measure with an animal in possession has been enhanced, from one thousand under IPC to five thousand rupees ( Section 291).

*Transgender Included In Definition Of Gender*

Section 10 of BNS defines “gender” which states that the pronoun “he” and its derivatives are used of any person, whether male, female or transgender.It explains that “transgender” shall have the meaning assigned to it in clause (k) of section 2 of the Transgender Persons (Protection of Rights) Act, 2019.

16/09/2023

Time never stands still, I did not realize how 8 years had passed while doing regular work in the Civil Court Dhanbad.

15/09/2021

The Supreme Court has observed that the failure of accused todischarge burden under Section 106

12/02/2021

Visiting card

29/07/2020

Supreme court judgement

The Supreme Court has held that once a plausible version has been put forth by the defence at the examination stage of Section 313 of the CRPC, then it is for the prosecution to negate such a defense plea.
Read Judgment: t.ly/UN98

22/06/2020

The Supreme Court has observed that the "First past the post" principle cannot be applied while considering a petition for transfer under Section 25 of the Code of Civil Procedure.

Justice Aniruddha Bose observed that such petitions are to be decided on consideration of the ends of justice.

The Court was considering a petition seeking transfer of a suit for partition and certain other ancillary reliefs instituted in the Delhi High Court. The contention was that the suit for partition can be clubbed together with a Testamentary proceeding pending before the Bombay High Court.

Objecting to this plea, the respondents' contention was that the suit for partition having been instituted before the Testamentary Petition, it must be allowed to proceed first and the Testamentary Petition could be transferred to Delhi High Court, if necessary. Justice Bose said:

"A petition for transfer under Section 25 of the Code, however, is decided on consideration of the ends of justice. The "First past the post" is not the principle that can be applied in proceedings of this nature. "
Allowing the transfer petition, the Court said that since the Probate Court is having primacy in determining the question of grant of Letters of Administration or Probate, it would be expedient for the ends of justice that the Bombay High Court, which is hearing the Testamentary petition, should decide the suit for partition as well.

Case no.: TRANSFER PETITION (CIVIL) NO. 1531 OF 2018

19/06/2020

The Supreme Court has given a split verdict on the issue whether a Family Court has the jurisdiction to entertain a petition for maintenance under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986.

Justice R. Banumathi opined that the Family Court has no jurisdiction, while Justice Indira Banerjee expressed a view that it has. Therefore, a larger bench will be constituted to decide the issue.

Case Background

The appeal arises out of a Rajasthan High Court judgment that set aside an order passed by a Family Court which converted the application for maintenance under Section 125 Cr.P.C. into Section 3 of the Muslim Women (Protection of Rights on Divorce) Act.

Maintenance Petition can be moved only before the First Class Magistrate

Referring to the provisions of the Family Courts Act, and the Muslim Women's Protection Act, Justice Banumathi said that the latter does not refer to the Family Court or does not say that an application under Sections 3 and 4 can be filed before the Family Court. The judge also noted that an application under Section 3(2) of Muslim Women's Protection Act can be moved only before the First Class Magistrate having jurisdiction in the area under Criminal Procedure Code. Justice Banumathi observed:

The application under Section 3(2) of the Act of 1986 by the divorced wife has to be filed before the competent 19 Magistrate having jurisdiction if she claims maintenance beyond the iddat period. Even if the Family Court has been established in that area, the Family Court not having been conferred the jurisdiction under Section 7 of the Family Courts Act, 1984 to entertain an application filed under Section 3 of the Muslim Women Protection Act, the Family Court shall have no jurisdiction to entertain an application under Section 3(2) of the Act of 1986. The Family Court, therefore, cannot convert the petition for maintenance under Section 125 Cr.P.C. to one under Section 3 or Section 4 of the Act of 1986. The High Court,

18/06/2020

The Supreme Court on Monday refused to apply retrospectively the imposition of death sentence under the Protection of Children from Sexual Offences Act, 2012, included with effect from 6th August, 2019.

The bench of Justices S. K. Kaul and K. M. Joseph was hearing a special leave petition preferred by the State of Telangana on the limited issue that the death sentence imposed by the Trial Court has been modified by the High Court to a life sentence albeit with a rider that the respondent-convict shall not be released till his last breath. It was the submission of the counsel for the petitioner-state that a signal goes to the society by imposition of the death sentence.

Advocate Binana Madhavan admitted that that the imposition of death sentence was included in the Protection of Children from Sexual Offences Act, 2012 with effect from 6th August, 2019 and the offence was committed on 18/19.6.2019.

She urged that keeping in mind the intent of the Parliament, it should be given retrospective effect even though the provision is prospective in nature.

"We are unable to persuade ourselves to agree with the learned counsel for the petitioner on any of the aspects. Firstly, we fail to see how retrospective effect can be granted when the punishment is to operate prospectively and logically so. Even otherwise, the punishment of not being released till his last breath is punitive enough to send a signal to the society and it cannot be that only the death sentence can send a right signal"
"We are of the view that the High Court has deemed it appropriate to impose the life sentence till the last breath, this Court under Article 136 of the Constitution of India should not interfere only for conversion of the same into again a death sentence as imposed by the Trial Court", concluded the bench.

Vide POCSO (Amendment) Act, 2019, death sentence was inserted as the punishment for aggravated penetrative s*xual assault in section 6 of the Principal Act.

17/06/2020

The Supreme Court on Tuesday issued notice on petitions which challenge the constitutional validity of the conditions introduced by Insolvency and Bankruptcy Code (Amendment) Ordinance 2020 on the homebuyers' right to file insolvency petition against defaulting builders.

A bench comprising Justices R F Nariman, Navin Sinha and B R Gavai also ordered status quo on the petitioner's applications pending in NCLTs.

The petition filed by Association of Karvy Investors challenged Section 3 of the Insolvency and Bankruptcy Code (Amendment) Act 2020. The said provision, adds certain provisos to Section 7 of the Insolvency and Bankruptcy Code (IBC) to state there should be at least one hundred real estate allottees or ten percentage of the total number of allottees, which ever is lesser, to maintain an insolvency petition in respect of a real estate project. The amendment also stated that the application of Section 3 of the amendment Act shall be retrospective, affecting pending applications.

The plea states that the classification made with respect to homebuyers is "arbitrary and discriminatory".

"the classification as sought to be made vide the Impugned Act is without any intelligible differential and therefore is ultra vires Article 14 of the Constitution of India", the plea read.

Reference is also made to the recent SC decision in Pioneer Urban Land and Infrastructure case, which upheld the right of a homebuyer to move insolvency petition against a defaulting builder.

The plea states that the condition is "onerous" for homebuyers, who are also covered under the definition of "financial creditors" under Section 5(7) of the IBC.

"such an onerous and one sided condition makes it abundantly clear that the Impugned Act reeks of biasness and indifference towards the plight of an Individual Investor. It goes without saying that the only person who benefits out of the aforesaid amendment are the promoters of the defaulting corporate debtor, since in a case wherein the only

16/06/2020

"We are, professedly, a tolerant sub-continent of "browns" in all its shades, but more often than not, display a perverted and primitive mind-set looking down on others without looking within ourselves. For many centuries we have been slaves. Freedom does not lend its wings to our countrymen to fly anywhere they wish and in any manner they like and abuse foreigners on the street calling them 'kalla'. To the contrary, freedom teaches love for human dignity and respect for fellowman."
The Punjab and Haryana High Court on Friday came down heavily upon the Police authorities in the state for using a racial slur while referring to an African national accused in a criminal case under the NDPS Act.

"I am appalled to find the term 'Nigro' used while referring to an African national in the challan papers presented under Section 173 Cr.P.C before the trial court in an NDPS case. This is a highly offensive word across the globe and no one has any business to use it, and much less the police," observed Justice Rajiv Narain Raina.

He further observed that in India, whose population itself is a pride collation of persons of different skin colors ranging from white to black and aboriginal, persons coming to India from foreign lands must be trated with respect and dignity.

"All Africans are our friends and when they come to India either as visitors or students they are our valuable guests and we should be reminded that India is rich in its traditions of 'mehman nawazi' and 'attithi sanskar/satkar' and prides itself on this. They should simply be referred to by the country of their origin in case papers," the court said.

Justice Raina observed that such an approach on part of the state authorities brings shame to the country and reflects an assumption that every black is a drug peddler and should be treated as such.

He said that this pernicious practice must be stopped forthwith, by taking disciplinary action against the errant officials.

"This aspect needs to be corrected