General changes: Bharatiya Nyaya Sanhita, 2023

The legislature by enacting the BNS has replaced the existing IPC. The
conspicuous changes brought about are as follows:

i. Total number of Sections have reduced from the earlier 511 Sections
in IPC to only 358 Sections in BNS.

ii. Imprisonment has been increased for a total of 31 offences punishable

under Section 8(5)(c), Section 57, Section 99, Section 104, Section
105, Section 106(1), Section 109(2), Section 121(1), Section 122(2),
Section 125(b), Section 127(3), Section 127(4), Section 127(6),
Section 144(1), Section 144(2), Section 166, Section 193(3), Section
217, Section 241, Section 243, Section 248(a), Section 248(b),
Section 276, Section 279, Section 316(2), Section 318(2), Section
318(3), Section 322, Section 323, Section 324(2), Section 325.

iii. Fines have been increased for a total of 83 offences punishable under
Section 8(5)(a), Section 8(5)(b), Section 115(2), Section 118(1),
Section 122(1), Section 122(2), Section 125, Section 125(a), Section
125(b), Section 126(2), Section 127(2), Section 127(3), Section
127(4), Section 127(5), Section 127(6), Section 131, Section 135,
Section 136, Section 165, Section 168, Section 176, Section 177,
Section 182(1), Section 182(2), 194(2), Section 195(1), Section 205,
Section 206(a), Section 206(b), Section 207(a), Section 207(b),
Section 208(a), Section 208(b), Section 210(a), Section 210(b),
Section 211(a), Section 211(b), Section 212(a), Section 213, Section
214, Section 215, Section 217, Section 218, Section 219, Section 221,
Section 222(a), Section 222(b), Section 223(a), Section 223(b),
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Advocate
 Section 229(1), Section 229(2), Section 230(1), Section 239, Section
241, Section 243, Section 248(a), Section 267, Section 274, Section
275, Section 276, Section 277, Section 278, Section 279, Section 280,
Section 282, Section 283, Section 284, Section 285, Section 286,
Section 287, Section 288, Section 289, Section 290, Section 291,
Section 292, Section 293, Section 294(2), Section 294(2) second time,
Section 296, Section 297(2), Section 329(3), Section 329(4), Section
355.

iv. Mandatory minimum punishment has been introduced for 23 offences

punishable under Section 99, Section 105, Section 111(2)(b), Section
111(3), Section 111(4), Section 111(5), Section 111(6), Section
111(7), Section 112(2), Section 113(2)(b), Section 113(3), Section
113(4), Section 113(6), Section 117(3), Section 118(2), Section
121(2), Section 139(1), Section 139(2), Section 204, Section 303(2),
Section 310(3), Section 314, Section 320

v. Archaic expressions such as lunatic, insane, idiot have been removed.

Further, colonial words/expressions such as British Calendar, Queen,
British India and Justice of the Peace have also been removed.

vi. The offences which were scattered throughout the IPC have been
regrouped and the chapters have been restructured in the following
manner:

Chapter I – Preliminary
Chapter II – Of Punishments
Chapter III - General Exceptions
• Of right of private defence

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Chapter IV – of abetment, criminal conspiracy & attempt
• Of abetment
• Of criminal conspiracy
• Of attempt
Chapter V – Of offences against woman & child
• Of sexual offences
• Of criminal force and assault against woman
• Of offences relating to marriage
• Of causing miscarriage, etc.
• Of offences against child
Chapter VI – Of offences affecting the human body
• Of offences affecting life
• Of hurt
• Of wrongful restraint and wrongful confinement
• Of criminal force & assault
• Of kidnapping, abduction, slavery & forced labour
Chapter VII – Of offences against the state
Chapter VIII – Of offences relating to the Army, Navy & Air Force
Chapter IX – Of offences relating to elections
Chapter X – Of offences relating to coin, currency-notes, bank-
notes & government stamps
Chapter XI – Of offences against the public tranquility
Chapter XII – Of offences by or relating to public servants
Chapter XIII – Of contempt of the lawful authority of public
servants
Chapter XIV – Of false evidence & offences against public justice

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Chapter XV – Of offences affecting the public health, safety,
convenience, decency & morals
Chapter XVI – Of offences relating to religion
Chapter XVII – Of offences against property
• Of theft
• Of extortion
• Of robbery & dacoity
• Of criminal misappropriation of property
• Of criminal breach of trust
• Of receiving stolen property
• Of cheating
• Of fraudulent deeds and dispositions of property
• Of mischief
• Of criminal trespass

Chapter XVIII – Of offences relating to documents & to property

marks
• Of property marks
Chapter XIX – Of criminal intimidation, insult, annoyance,
defamation, etc.
• Of defamation
Chapter XX – Repeal & savings

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Advocate
 Community Service as punishment: Section 4 (=53)

S. 4 (=53) which enumerates the punishments which may be given under

the BNS also provides for a punishment in the nature of “Community
Service” which did not exist under IPC. However, the same has not been
defined in BNS but in the explanation to Section 23 of BNSS which reads:

“Explanation.—"Community service" shall mean the 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.”

The BNS gives the magistrates the option of awarding community service
as a punishment for the following offences:

i. Public servant unlawfully engaging in trade: S. 202

ii. Non-appearance in response to a proclamation: S. 209
iii. Attempt to commit suicide to compel or restrain public servant
from discharging his official duty: S. 226
iv. Theft of property with value less than Rs. 5000 and where such
value/property is restored: proviso to S. 303(2) (community
service is the only punishment)
v. Misconduct in public by a drunken person: S. 355
vi. Defamation: S. 356(2)

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Advocate
 Attempt to Suicide: Deleted

The Supreme Court in Gian Kaur v. State of Punjab (1996) 2 SCC 648
had upheld the constitutional validity of Section 309 IPC which
criminalized “attempt to suicide”. Subsequently the Mental Healthcare Act,
2017 was enacted, Section 115 of the which provides that unless proved
otherwise, a person who attempts suicide must be deemed to have severe
depression and thus shall not be tried for the offence under Section 309
IPC. In a way Section 115 of Mental Healthcare Act, 2017 decriminalized
the “attempt to suicide” in a limited sense.

Now the legislature while enacting the BNS thought it fit to delete the said
offence of “abetment to suicide” from BNS, thus completely
decriminalizing the attempt to suicide as it was. However, a new Section
226 has been added which criminalizes attempt to suicide in a limited
circumstance, which is:

“Whoever attempts to commit suicide with the intent to compel or

restrain any public servant from discharging his official duty shall be
punished with simple imprisonment for a term which may extend to
one year, or with fine, or with both, or with community service.”

Even this new offence will be subject to Section 115 of the Mental
Healthcare Act in view of the Section 8 of the General Clauses Act, 1897.
So a person who attempts suicide must be deemed to have severe
depression and thus shall not be tried for the offence under S. 226 BNS,
unless proved otherwise that he was not under depression.

Rightly so, abetment to suicide continues to be an offence under S. 108

(=306).

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Advocate
 Gender neutrality: Sections 76 & 77 (=354B & 354C)

Gender neutrality in an offence can be from two angles:

a. From the angle of the victim, i.e., victim can be male or female.
b. From the angle of the accused, i.e., accused can be male or female.

The legislature while enacting BNS has made one offence gender neutral
from the angle of victim. Section 141 (=366B IPC) has become gender
neutral as it now criminalizes “importation of girl or boy from foreign
country” while the earlier corresponding Section 366B IPC criminalized
only importation of girl.

Further, the legislature while enacting BNS has made two offences gender
neutral from the angle of accused. These are:

a. The offence of “Assault or use of criminal force to women with the

intent to disrobe” contained in Section 76 (=354B) has become
gender neutral from the angle of accused. While Section 76 BNS
uses the opening phrase “Whoever assaults”, the earlier
corresponding Section 354B IPC used the opening phrase “Any
man who…”.

b. Similarly, the offence of “voyeurism” contained in Section 77

(=354C) has also become gender neutral from the angle of accused.
While Section 77 BNS uses the opening phrase “Whoever watches”,
the earlier corresponding Section 354C IPC used the opening
phrase “Any man who…”.

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Advocate
No gender neutrality in rape: Only a woman can be a victim; only a
man can be an accused

Since long there had been demands from various men’s rights groups for
the gender neutralization of the offence of rape from the angle of men as
victims of rape. Section 63 of BNS as well as its predecessor Section 375
of IPC, both provide that only a woman can be a victim of rape. So under
law, a man can still not be a victim of rape. Since there have been reports
of men becoming victims of acts akin to those covered under the definition
of rape, it would have been beneficial to make the offence of rape under
Section 63 (=375) gender neutral from the angle of men as victims.

On the other hand, there were also demands for gender neutralization of
rape from the angle of women as accused in rape. Section 63 of BNS as
well as its predecessor Section 375 of IPC, both provide that only a man
can be an accused of rape. So under law, nobody can allege to be raped
by a woman. Since there have been cases where women have been
alleged to have committed acts akin to those covered under the definition
of rape, it would have been beneficial to make the offence of rape under
Section 63 (=375) gender neutral from the angle of woman as accused.

So while re-enacting Section 63 (=375), the legislature had a golden

opportunity to bring about a reform by making the offence of rape gender
neutral from the angle of both the victim as well as the accused. But the
legislature has missed this opportunity and it can only be expected that
reformative steps will be taken in future.

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Advocate
 Sexual intercourse by employing deceitful means: Section 69

The legislature has introduced a new section 69 which reads as under:

“69. 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.”

Previously, the cases of sexual intercourse on the false pretext of

marriage were dealt with under Section 375 IPC r/w Section 90 IPC. The
premise was that when consent is obtained by employing deceitful means,
such consent being vitiated is no consent at all. The act was thus
punishable as rape under Section 376(1) with “rigorous imprisonment of
either description for a term which shall not be less than ten years, but
which may extend to imprisonment for life, and shall also be liable to fine.”

However, by enacting Section 69 BNS, it appears that the legislature has

declared that such cases will be dealt with exclusively under this provision
and not under Section 63 BNS (rape) r/w Section 28 BNS (vitiated
consent). As a consequence, the said act being covered exclusively under
Section 69 BNS shall be punished with “imprisonment of either description
for a term which may extend to ten years and shall also be liable to fine”
which is lesser than the punishment for rape in Section 64(1) (=376(1)).

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Advocate
However, it must be pointed out that Section 69 is not happily worded and
carries an inherent contradiction within itself. The two expressions used
in the section, viz. “Whoever by, deceitful means” and “such sexual
intercourse not amounting to the offence of rape” are not capable of being
harmonized. This is because the moment deceitful means are employed,
the consent will get vitiated (u/s 28 BNS) and thus the act will obviously
become rape (u/s 63 BNS). The expressions used are thus capable of
creating confusion.

The intent of the legislature was simply to divide rape into two categories
and provide two different kinds of punishments. First category where rape
is committed by force was intended to carry higher punishment. Second
category of cases where rape is not committed by force but by employing
deceit was intended to carry lesser punishment than rape. Therefore,
irrespective of the poor and contradictory expressions used, if the section
is interpreted in the manner discussed above, the intent of the legislature
can be said to have materialized.

Section 377 IPC was decriminalized by Supreme Court to the extent of

consensual carnal intercourse between two adult persons in Navtej Singh
Johar v. Union of India (2018) 10 SCC 1. But Section 377 has been totally
deleted in the new BNS, meaning thereby that even non-consensual
carnal intercourse has also been decriminalized. However, such acts,
consensual or non-consensual continue to attract POCSO where the
victim is a child. If the victim is an adult male, the non-consensual act will
be punishable as the offence of criminal force under Section 131 or 136
of BNS (= 352 or 358 of IPC). And if the victim is an adult female, the non-
consensual act will be punishable as the offence of rape under Section 64

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Advocate
of BNS (= 376 of IPC). If the act is committed against an animal, it will
attract the provisions of Prevention of Cruelty to Animals Act, 1960.

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Advocate
 Lynching: Section 103 (=302)

Section 103 (=302) provides for the “punishment for murder”. A new sub-
section (2) has been added in Section 103 (=302) which provides
punishment for mob-lynching (though the word itself has not been used
anywhere in the BNS). Section 103 reads:

“(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.”

When BNS was in the works, it was widely publicized that the legislature
intends to provide a more stringent punishment for the act of mob-lynching
as opposed to the act of simple murder. However, the said intendment of
the legislature has not become a reality under BNS which has been finally
enacted. A plain reading of the two sub-sections shows that the
punishment provided in sub-section (2) for mob-lynching is exactly the
same as the punishment provided in sub-section (1) for simple murder,
viz. death or imprisonment for life and fine. This appears to be an
oversight.

A minor adjustment/amendment in sub-section (2) which can be made to

make the punishment for mob-lynching more severe is replacing the
expression “imprisonment for life” with the expression “imprisonment for
the remainder of that person’s natural life”, an expression which has been
used at various other places in the BNS. Such an amendment will bring
the provision in line with what the legislature had intended.
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Advocate
 Causing death by negligence: Section 106 (=304A)

Section 106 which has replaced the earlier Section 304A IPC has brought
about the following changes:

i. While the punishment for causing death by rash and negligent act
under IPC was “imprisonment of either description which may extend
to two years, or with fine or with both”, under the BNS the punishment
has been enhanced to “imprisonment of either description for a term
which may extend to five years, and shall also be liable to fine” under
sub-section (1).

ii. If death is caused by a “registered medical practitioner” while

performing medical procedure, he shall be liable for a lower
punishment of “imprisonment of either description for a term which
may extend to two years, and shall also be liable to fine” under sub-
section (1). This punishment is also more than earlier as ‘and’ has
been used in place of ‘or’.

iii. If death is caused by a person as a result of “rash and negligent

driving” and he escapes without reporting the incident to the police or
magistrate soon after the incident, he shall be liable for a higher
punishment of “imprisonment of either description of a term which
may extend to ten years, and shall also be liable to fine” under sub-
section (2).

Note: The gazette notification S.O. 850 (E) bringing into force BNS w.e.f
01.07.2024 specifically excepts coming into force of Section 106(2).
Therefore Section 106(2) will not come into force along with all other
provisions of the BNS on 01.07.2024. It may be notified later on.

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Advocate
 Voluntarily causing grievous hurt: Section 117 (=322 & 325)

Section 117 BNS has replaced Section 322 IPC (voluntarily causing
grievous hurt) and Section 325 IPC (punishment for voluntarily causing
grievous hurt). While the punishment for voluntarily causing grievous hurt
continues to be “imprisonment of either description for a term which may
extend to seven years, and shall also be liable to fine” in sub-section (2),
the legislature has added new sub-section (3) with higher punishment as
follows:

“(3) Whoever commits an offence under sub-section (1) and in the

course of such commission causes any hurt to a person which
causes that person to be in permanent disability or in persistent
vegetative state, shall be punished with rigorous imprisonment for
a term which shall not be less than ten years but which may extend
to imprisonment for life, which shall mean imprisonment for the
remainder of that person’s natural life.”

Though the term “Persistent Vegetative State” has not been defined in
BNS, the Supreme Court in Aruna Ramachandra Shanbaug v. UOI (2011)
4 SCC 454 understood PVS to mean irreversible coma or a coma where
possibility of regaining consciousness is relatively remote.

Additionally, the legislature shall has also added sub-section (4) as

follows:

“(4) When a group of five or more persons acting in concert, causes

grievous hurt to a person on the ground of his race, caste or
community, sex, place of birth, language, personal belief or any
other similar ground, each member of such group shall be guilty
of the offence of causing grievous hurt, and shall be punished with
imprisonment of either description for a term which may extend to
seven years, and shall also be liable to fine.”

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Advocate
However, the punishment provided in this sub-section (4) is the same as
the punishment for grievous hurt provided in sub-section (2). So what the
legislature sought to achieve by adding sub-section (4) is a mystery.
Moreover, sub-section (4) is triable by Sessions whereas sub-section (2)
is triable by any magistrate. This distinction is also not understandable.

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Advocate
 Organized crime: Sections 111 & 112

Before the enactment of BNS, there was no central law in the existing
legal framework to deal with organized crime. Till now, organized crime
was therefore dealt with only by various state legislations which were
based mostly on Maharashtra Control of Organised Crime Act, 1999
(MCOCA) or Gujarat Control of Organised Crime Act, 2003 (GujCOCA).
Because of multiplicity, there was not much uniformity.

By introducing Sections 111 & 112 in BNS, the legislature has for the first
time enacted a central legislation to deal with the organized crime in a
uniform manner. Sections 111 & 112 of BNS read as under:

“111. (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

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Advocate
 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,

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Advocate
 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.”

Section 112 reads:

“112. (1) 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.

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Advocate
Explanation.—For the purposes of this sub-section "theft" includes
trick theft, theft from vehicle, dwelling house or business premises,
cargo theft, pick pocketing, theft through card skimming, shoplifting
and theft of Automated Teller Machine.

(2) Whoever commits any petty organised crime shall be punished

with 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.”

Sakal Bhushan
Advocate
 Terrorist Act: Section 113

The legislature has introduced Section 113 in BNS which defines and
punishes the offence of “terrorist act”. This Section has been enacted
despite existence of the Unlawful Activities (Prevention) Act, 1967 which
is a special statute dealing with terrorist acts. More strikingly, the definition
of “terrorist act” contained in sub-section (1) of Section 113 BNS is the
same as the definition of “terrorist act” contained in sub-section (1) of
Section 15 UAPA. Further, the punishment for terrorist act contained in
sub-section (2) of Section 113 BNS is also the same as the punishment
for terrorist act contained in Section 16 UAPA.

So the obvious question that arises for consideration is “why has the
legislature introduced terrorist act as an offence under BNS when
UAPA, a special legislation already exists for the same?”

After considering the entire legal framework, the only possible explanation
appears to be that under the present legal framework (before BNS)
contained in UAPA r/w National Investigating Agency Act, 2008 (NIA Act),
the ultimate discretion to investigate cases under UAPA does not lie with
the State Government but the Central Government. After the registration
of case under UAPA by police station, the report has to be forwarded to
the State Government who has to in turn forward the same to the Central
Government. Upon receiving the report, the Central Government after
considering the gravity of the case can choose to direct the NIA to take up
the investigation and in case it is so chosen, the State Government cannot
proceed with its own investigation. The State Government can continue
investigation only if the Central Government does not direct the NIA to
take up investigation or if the NIA during investigation choses to transfer
the investigation to the State Government considering relevant factors. All
this is so because of application of provisions of the NIA Act (more
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Advocate
specifically Section 6 thereof) to all cases under UAPA, it being a
scheduled law under NIA Act.

Under the newly enacted Section 113, discretion has been given to “the
officer not below the rank of Superintendent of Police” to decide whether
to register the case under Section 113 BNS or under UAPA. The
explanation reads:

“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.”

With the introduction of Section 113 in BNS, the officer not below the rank
of Superintendent of Police has choice to register the case under BNS
instead of UAPA, and in that case the constrains mentioned above will not
apply and the police can investigate unhindered. This is a possible
explanation for enactment of Section 113 in BNS.

Similarly, a new Section 152 (Act endangering sovereignty, unity and

integrity of India) has been introduced in BNS. Additionally, a new clause
(d) has been added in Section 197 BNS (=153B IPC) which makes
publication of false and misleading information jeopardizing the
sovereignty, unity and integrity or security of India a punishable offence
carrying a punishment of “imprisonment which may extend to three years,
or with fine, or with both”. The acts covered under these Sections are
substantially the same as defined as ‘unlawful activities’ under UAPA. The
reason behind enacting Section 152 and 197(d) in BNS despite having
similar provisions in UAPA is the same as in case of ‘terrorist act’.

Sakal Bhushan
Advocate
 Sedition: Deleted

Section 124A IPC which was shrouded in controversy for a long time has
finally been taken-off the statute book and does not find any place in BNS.

Initially when Section 124A IPC was enacted in the nineteenth century,
the wide words used therein “hatred or contempt …. disaffection towards
the Government” made it prone to misuse by the Government as a tool for
suppressing dissent and violating the freedom of speech and expression
of the people. In 1962, the Supreme Court in Kedar Nath Singh v. State
of Bihar AIR 1962 SC 955 while deciding the constitutional validity of
Section 124A noted its proneness to misuse and interpreted it in a manner
so as to save it from being struck down. In doing so, the Supreme Court
toned-down the applicability of the Section 124A only to cases involving
intention or tendency to create disorder, or disturbance of law and order,
or incitement to violence. Relevant portion of the judgment reads as
under:

“The provisions of the sections read as a whole, along with the

explanations, make it reasonably clear that the sections aim at
rendering penal only such activities as would be intended, or have a
tendency, to create disorder or disturbance of public peace by resort
to violence. As already pointed out, the explanations appended to the
main body of the section make it clear that criticism of public
measures or comment on Government action, however strongly
worded, would be within reasonable limits and would be consistent
with the fundamental right of freedom of speech and expression. It is
only when the words, written or spoken, etc. which have the
pernicious tendency or intention of creating public disorder or
disturbance of law and order that the law steps in to prevent such
activities in the interest of public order. So construed, the section, in
our opinion, strikes the correct balance between individual
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Advocate
 fundamental rights and the interest of public order. It is also well
settled that in interpreting an enactment the Court should have regard
not merely to the literal meaning of the words used, but also take into
consideration the antecedent history of the legislation, its purpose
and the mischief it seeks to suppress. Viewed in that light, we have
no hesitation in so construing the provisions of the sections impugned
in these cases as to limit their application to acts involving intention
or tendency to create disorder, or disturbance of law and order, or
incitement to violence.”

So the width of the Section was toned-down by the Supreme Court in

1962. Since even the toned-down provision continued to be misused, the
constitutional validity of Section 124A was again challenged before the
Supreme Court in a batch of petitions in 2021, with the lead case being
SG Vombatkere v. Union of India WP(C) 682/2021. The Supreme Court
vide its interim order dated 11.05.2022, after considering the stand of the
Union of India that it was itself re-examining the provision, opined:

“5 ….Union of India agrees with the prima facie opinion expressed

by this Court that the rigors of Section 124A of IPC is not in tune with
the current social milieu, and was intended for a time when this
country was under the colonial regime.
…
7. Therefore, we expect that, till the re-examination of the provision
is complete, it will be appropriate not to continue the usage of the
aforesaid provision of law by the Governments.
….
We hope and expect that the State and Central Governments will
restrain from registering any FIR, continuing any investigation or
taking any coercive measures by invoking Section 124A of IPC while
the aforesaid provision of law is under consideration.”

Sakal Bhushan
Advocate
Finally, the re-examination exercise by the government has culminated
and resulted in omission of S. 124A from the newly enacted BNS. A
debate which lasted for more than 150 years has finally ended.

Sakal Bhushan
Advocate
 Snatching: Section 304(1)

The legislature has introduced “snatching” as an offence under Section

304. Sub-section (1) defines it as:

“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.”

Punishment for the offence has been provided under sub-section (2)
which reads:

“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.”

Punishment for simple theft under Section 303(2) is as under:

“Whoever commits theft shall be punished with the imprisonment of

either description for a term which may extend to three years, or
with fine, or with both.”

Thus the punishment for snatching under Section 304(2) is slightly higher
than the punishment for simple theft under Section 303(2) inasmuch as
for simple theft fine is optional as the expression ‘or’ has been used, while
for snatching, fine is mandatory as the expression ‘and’ has been used.

However, for any subsequent conviction for simple theft, the prescribed
punishment under Section 303(2) is rigorous imprisonment for a term

Sakal Bhushan
Advocate
which shall not be less than one year but which may extend to five
years and with fine. But for any subsequent conviction for snatching, the
punishment remains the same, i.e., imprisonment of either description for
a term which may extend to three years, and shall also be liable to fine.
This punishment is lesser than the punishment for subsequent conviction
for simple theft. This is not understandable.

However, if snatching is done as a member of a gang or group, the person

shall be liable to be punished under Section 112(2) which carries an even
higher punishment:

“(2) Whoever commits any petty organised crime shall be punished

with 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.”

The legislature has introduced snatching as an offence in BNS keeping in

view the increasing incidents of snatching.

Sakal Bhushan
Advocate
 Theft in dwelling house, means of transportation or place of
worship: Section 305 (=380)

Section 305 BNS has replaced Section 380 IPC. While the previous
provision only covered theft in building, tent, vessel used as a human
dwelling or for custody of property, the replaced section covers theft of or
from vehicles and theft from places of worship as well. More precisely, the
new circumstances added are:

i. Theft of any means of transport used for the transport of goods or

passengers.

ii. Theft of any article or goods from any means of transport used for
the transport of goods or passengers.

iii. Theft of idol or icon in any place of worship.

While previously these circumstances were impliedly covered under the

general Sections dealing with theft (378 & 379 IPC equivalent to Section
303 BNS), now these circumstances are covered under Section 305 BNS
(=380 IPC) which carries punishment “imprisonment of either description
for a term which may extend to seven years, and shall also be liable to
fine” which is higher than the punishment under Section 303(2) BNS
for general theft, which is “imprisonment of either description for a term
which may extend to three years, or with fine, or with both and in case of
second or subsequent conviction of any person under this section, he
shall be punished with rigorous imprisonment for a term which shall not
be less than one year but which may extend to five years and with fine.”

Sakal Bhushan
Advocate
 Mischief: Section 324 (=425)

Section 324 BNS has replaced Section 425 IPC (mischief) and Section
426 IPC (punishment for mischief). The punishment has been increased
to imprisonment which may extend to six months or fine or both (from
previous three months or fine or both). Additionally, the legislature has
added new sub-sections (3) (4) (5) & (6) providing for even higher
punishments in the following circumstances:

“(3) Whoever commits mischief and thereby causes loss or damage

to any property including the property of Government or Local
Authority shall be punished with imprisonment of either description
for a term which may extend to one year, or with fine, or with both.

(4) Whoever commits mischief and thereby causes loss or damage

to the amount of twenty thousand rupees and more but less than one
lakh rupees shall be punished with imprisonment of either description
for a term which may extend to two years, or with fine, or with both.

(5) Whoever commits mischief and thereby causes loss or damage

to the amount of one lakh rupees or upwards, shall be punished with
imprisonment of either description for a term which may extend to five
years, or with fine, or with both.

(6) Whoever commits mischief, having made preparation for causing

to any person death, or hurt, or wrongful restraint, or fear of death, or
of hurt, or of wrongful restraint, shall be punished with imprisonment
of either description for a term which may extend to five years, and
shall also be liable to fine.”

By enacting the aforementioned new sub-sections with higher

punishments, the legislature aims to create deterrence amongst the

Sakal Bhushan
Advocate
people participating in violent agitations where deliberate damage to
public as well as private property is done.

Sakal Bhushan
Advocate
 Hiring/Employing child to commit offence: Section 95 (no
equivalent earlier)

The legislature while enacting BNS has introduced a new provision in

shape of Section 95 “Hiring, employing or engaging a child to commit an
offence”. The newly introduced Section 95 reads as follows:

“95. Whoever hires, employs or engages any child to commit an

offence shall be punished with imprisonment of either description
which shall not be less than three years but which may extend to ten
years, and with fine; and if the offence be committed shall also be
punished with the punishment provided for that offence as if the
offence has been committed by such person himself.

Explanation - Hiring, employing, engaging or using a child for sexual

exploitation or pornography is covered within the meaning of this
section.”

The newly added section has two parts. First part deals with the act of
“hiring, employing or engaging a child” for which a punishment is provided.
The second part provides that if the offence is actually committed by the
child then the abettor shall also be liable to the punishment provided for
the offence itself. This second part of the Section is explanatory as even
in its absence, the same result would have flown due to Section 49 BNS
(punishment of abetment if act abetted is committed in consequence and
where no express provision is made for its punishment).

For clarity, it must be noted that the explanation appended to the Section
seeks to clarify (though not explicitly stated) that the act of hiring,
employing, engaging or using a child for sexual exploitation or
pornography, which is already an offence under POCSO, 2012 will also
be covered under the new Section 95 BNS.
Sakal Bhushan
Advocate