Indian Penal Code: Enhanced Penalties for Child Sexual Assault and Kidnapping, Study notes of Criminal Law

Download Indian Penal Code: Enhanced Penalties for Child Sexual Assault and Kidnapping and more Study notes Criminal Law in PDF only on Docsity! BNS IPC IMPLICATIONS OF REVISION Clause 2 (1): “act” as well a series of acts as a single act; Section 33: The word “act” denotes as well as series of acts as a single act [...] The definition in section 33 explained that the term “act” also denoted a series of acts. The definition in clause 2(1) of the BNS does not convey the same meaning, and may lead to confusion as to whether an “act” signifies a series of acts. In its current form, the definition has no meaning. Clause 2(4): “Court” means a Judge who is empowered by law to act judicially alone, or a body of Judges, which is empowered by law to act judicially as a body, when such Judge or body of Judges is acting judicially; Section 20: The words “Court of Justice” denote a Judge who is empowered by law to act judicially alone, or a body of Judges which is empowered by law to act judicially as a body, when such Judge or body of Judges is acting judicially. It is not clear why this change was necessitated. Further, due to the change in the definition of “judge” in the BNS, some institutions presided over by quasi- judicial authorities may no longer be considered “courts of justice”. Clause 2 (9): “gender”—the pronoun “he” and its derivatives are used of any person, whether male, female or transgender. Explanation.–– “transgender” shall have the meaning assigned to it in clause (k) of section 2 of the Transgender Persons (Protection of Rights) Act, 2019; Section 8: The pronoun “he” and its derivatives are used of any person, whether male or female. While the definition is now more inclusive, it will have no practical implication unless specific offences applicable to transgender persons are defined/created. For instance, the Justice Verma Committee had recommended that victims in sexual offences be gender- neutral, with the objective that trans persons be covered within the definition of rape. That change was neither made in 2013 when the rape laws were amended, nor has it been made in the BNS. Further, there are no offences relating to specific targeting of trans persons due to their gender identity. This is further exacerbated by the fact that they have historically been one of the most persecuted and criminalised communities in India. BNS IPC IMPLICATIONS OF REVISION Clause 2(15): “Judge” means a person who is officially designated as a Judge and includes a person,––(i) who is empowered by law to give, in any legal proceeding, civil or criminal, a definitive judgment, or a judgment which, if not appealed against, would be definitive, or a judgment which, if confirmed by some other authority, would be definitive; or (ii) who is one of a body or persons, which body of persons is empowered by law to give such a judgment. Illustration: A Magistrate exercising jurisdiction in respect of a charge on which he has power to sentence to fine or imprisonment, with or without appeal, is a Judge; Section 19: The word “Judge” denotes not only every person who is officially designated as a Judge, but also every person who is empowered by law to give, in any legal proceeding, civil or criminal, a definitive judgment, or a judgment which, if not appealed against, would be definitive, or a judgment which, if confirmed by some other authority, would be definitive, or who is one of a body or persons, which body of persons is empowered by law to give such a judgment. Illustrations: (a) A Collector exercising jurisdiction in a suit under Act 10 of 1859 is a Judge. (b) A Magistrate exercising jurisdiction in respect of a charge on which he has power to sentence to fine or imprisonment, with or without appear, is a Judge. (c) A member of a panchayat which has power, under 4Regulation VII, 1816, of the Madras Code, to try and determine suits, is a Judge. (d) A Magistrate exercising jurisdiction in respect of a charge on which he has power only to commit for trial to another Court, is not a Judge. The change proposed by the definition in the BNS appears to exclude quasi- judicial authorities. This may make the defence under section 15, BNS unavailable to quasi-judicial authorities. Under the IPC, the defence under section 77 was available to quasi-judicial authorities. These provisions save a Judge from criminal liability when acting judicially in exercise of their powers. Clause 2(19): “mental illness” shall have the meaning assigned to it in clause (a) of section 2 of the Mental Healthcare Act, 2017; No equivalent provision in the IPC. This is an error since clause (a) of Section 2 of the Mental Healthcare Act, 2017 does not define “mental illness”. The reference ought to be to clause (s) of Section 2, which reads: ‘“mental illness” means a substantial disorder of thinking, mood, perception, orientation or memory that grossly impairs judgment, behaviour, capacity to recognise reality or ability to meet the ordinary demands of life, mental conditions associated with the abuse of alcohol and drugs, but does not include mental retardation which is a condition of arrested or incomplete development of mind of a person, specially characterised by subnormality of intelligence’. BNS IPC IMPLICATIONS OF REVISION Clause 27: Nothing which is done in good faith for the benefit of a person under twelve years of age, or of person with mental illness, by or by consent, either express or implied, of the guardian or other person having lawful charge of that person, is an offence by reason of any harm which it may cause, or be intended by the doer to cause or be known by the doer to be likely to cause to that person: Provided that this exception shall not extend to–– (a) the intentional causing of death, or to the attempting to cause death; (b) the doing of anything which the person doing it knows to be likely to cause death, for any purpose other than the preventing of death or grievous hurt, or the curing of any grievous disease or infirmity; (c) the voluntary causing of grievous hurt, or to the attempting to cause grievous hurt, unless it be for the purpose of preventing death or grievous hurt, or the curing of any grievous disease or infirmity; (d) the abetment of any offence, to the committing of which offence it would not extend. Section 89: Nothing which is done in good faith for the benefit of a person under twelve years of age, or of unsound mind, by or by consent, either express or implied, of the guardian or other person having lawful charge of that person, is an offence by reason of any harm which it may cause, or be intended by the doer to cause or be known by the doer to be likely to cause to that person: Provided— Provisos. First.—That this exception shall not extend to the intentional causing of death, or to the attempting to cause death; Secondly.—That this exception shall not extend to the doing of anything which the person doing it knows to be likely to cause death, for any purpose other than the preventing of death or grievous hurt, or the curing of any grievous disease or infirmity; Thirdly.—That this exception shall not extend to the voluntary causing of grievous hurt, or to the attempting to cause grievous hurt, unless it be for the purpose of preventing death or grievous hurt; or the curing of any grievous disease or infirmity; Fourthly.—That this exception shall not extend to the abetment of any offence, to the committing of which offence it would not extend. As discussed in the context of clause 22, the definition of “mental illness” being broad, the agency of persons with mental illness may be impacted in this case. The Mental Healthcare Act, 2017 has a particular mechanism for appointment of nominated representatives, which puts the agency/capacity of the person with mental illness at the forefront. BNS IPC IMPLICATIONS OF REVISION Clause 41: The right of private defence of property extends, under the restrictions specified in section 37, to the voluntary causing of death or of any other harm to the wrong-doer, if the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right, be an offence of any of the descriptions hereinafter enumerated, namely:—(a) robbery;(b) house-breaking after sun set and before sun rise;(c) mischief by fire or any explosive substance committed on any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or as a place for the custody of property;(d) theft, mischief, or house-trespass, under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised. Section 103: The right of private defence of property extends, under the restrictions mentioned in section 99, to the voluntarycausing of death or of any other harm to the wrong- doer, if the offence, the committing of which, or theattempting to commit which, occasions the exercise of the right, be an offence of any of the descriptionshereinafter enumerated, namely:—First.— Robbery;Secondly.—House- breaking by night;Thirdly.— Mischief by fire committed on any building, tent or vessel, which building, tent or vessel is used as a human dwelling or as a place for the custody of property;Fourthly.—Theft, mischief or house-trespass, under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised. The change from “housebreaking by night” to “housebreaking after sunset and before sunrise” appears unnecessary. Without reasons being provided for the change being made, it is not clear as to why this change is required. Mischief by fire has been expanded to additionally include mischief caused by explosive substances. Clause 48: 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. Illustration. A, in country X, instigates B, to commit a murder in India, A is guilty of abetting murder. No equivalent provision in the IPC. This section expands the jurisdiction of the Act in respect of abetment of offences to include people who are outside of India, but can be linked to the commission of an offence within India. Such persons can now be proceeded against under the Act. BNS IPC IMPLICATIONS OF REVISION Clause 69: Whoever, by deceitful means or making by promise to marry to a woman without any intention of fulfilling the same, and 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 the false promise of employment or promotion, inducement or marring after suppressing identity. No equivalent provision in the IPC. This brings in a new offence of deceitful sexual intercourse. The terminology used—“not amounting to rape”—creates confusion. This term is used earlier in Section 376C of the IPC (now clause 68, BNS) and covers situations where there was consent at the time of sexual intercourse, which was not vitiated. Section 376C and 68, BNS are meant to prohibit sexual relations between people of particular relationships. However, in this clause, deceit conceptually vitiates consent; so does breach of promise which involves the accused not having any intention of going through with the promise. Hence, the meaning of “not amounting to rape” is not clear. It could possibly mean that the offence is not rape, or that if a person is acquitted of rape, they can still be prosecuted and punished under this section. Further, all others sections in this chapter that use the term “sexual intercourse” (such as Clause 67 and 68) define it to mean sexual acts beyond penile-vaginal penetration. Using the term “sexual intercourse” without defining it means that it covers only penile-vaginal penetration. Furthermore, unlike other sections in this chapter, there is no minimum punishment under this section, and the maximum punishment prescribed is 10 years. Clause 70(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 Section 376DA: Where a woman under sixteen 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: Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim: Provided further that any Changing the age from 16 years to 18 years expands the scope of the provision to include those offenders who commit gangrape on women between 16 to 18 years of age. Additionally, this offence is now punishable with the death penalty. This also explains why Section 376 DB (which prescribed the punishment for gangrape of a woman under twelve years of age) has now been deleted, as the offences under that provision are now included within the scope of Clause 70(2). BNS IPC IMPLICATIONS OF REVISION or exhibits any object in any form, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to three years, and also with fine. any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to three years, and also with fine. remains unclear as to why such expansion was necessary. Clause 83: Whoever takes or entices away any woman who is and whom he knows or has reason to believe to be the wife of any other man, with intent that she may have illicit intercourse with any person, or conceals or detains with that intent any such woman, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. Section 498: Whoever takes or entices away any woman who is and whom he knows or has reason to believe to be the wife of any other man, from that man, or from any person having the care of her on behalf of that man, with intent that she may have illicit intercourse with any person, or conceals or detains with that intent any such woman, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. The deletion of the phrase “from that man, or from any person having the care of her on behalf of that man” broadens the scope of the section inasmuch as where, or from whom, the woman is enticed becomes irrelevant to the offence. Further, while the exclusion serves to remove some patriarchal notions from the code, the section in its entirety still continues to be patriarchal since it takes away the agency of the woman in question. Clause 93: Whoever hires, employs or engages any person below the age of eighteen years to commit an offence shall be punished with imprisonment of either description or fine 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. No equivalent section in the IPC. This is a new provision which criminalises hiring/employing/engaging a minor to commit an offence. However, the explanation to the section is unclear since in a case of “hiring, employing, engaging or using a child for sexual exploitation or pornography” the child will be a victim, whereas the clause suggests that the child is committing an offence on the instructions of the primary offender. Clause 94: Whoever, by any means whatsoever, induces any child below the age of eighteen years to go from any place or to do any act with intent that such child below the age of eighteen years may Section 366A: Whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, This provision has been made gender neutral. BNS IPC IMPLICATIONS OF REVISION be, or knowing that it is likely that such child 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. 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. Clause 101(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 ground each member of such group shall be punished with death or with imprisonment for life or imprisonment for a term which shall not be less than seven years, and shall also be liable to fine. No equivalent section in the IPC. This section appears to introduce an aggravated form of murder committed by a group of 5 or more persons acting in concert, and with a specific intent in mind. It provides for a minimum punishment of 7 years, and a maximum of death. At the outset, the meaning of the term “acting in concert” is undefined. Furthermore, a lesser minimum punishment for an aggravated offence does not adhere to established penological policy. Clause 102: Whoever, being under sentence of imprisonment for life, commits murder, shall be punished with death or with imprisonment for life, which shall mean the remainder of that person’s natural life. Section 303: Whoever, being under sentence of imprisonment for life, commits murder shall be punished with death. Section 303 was struck down by the Supreme Court in Mithu v. State of Punjab. It has been reintroduced in the form of Clause 102, with a modification that allows for a mandatory minimum sentence of life imprisonment with no possibility of remission. Clause 103: Whoever commits culpable homicide not amounting to murder, shall be punished with imprisonment for life, or imprisonment of either description for a term which shall not be less than five years but which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death; or with imprisonment of either description for a term which may extend to ten years and with fine, if the act is done with the knowledge that it is Section 304: Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death; or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to This provision introduces a mandatory minimum sentence of five years for the offence of culpable homicide not amounting to murder if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death. Additionally, for culpable homicide not amounting to murder where the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death, fine has been made mandatory. BNS IPC IMPLICATIONS OF REVISION likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death. cause such bodily injury as is likely to cause death. Clause 104(1): Whoever causes the 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 seven years, and shall also be liable to fine. Section 304A: Whoever causes the 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 two years, or with fine, or with both. This increases the punishment for rash/negligent homicide from 2 years to 7 years. In the past, there has been a debate on whether 2 years maximum imprisonment for Section 304A is too little. This amendment accordingly increases the punishment, which remains lesser than the maximum punishment for culpable homicide not amounting to murder, which is conceptually fine. Clause 104(2): Whoever causes death of any person by doing any rash or negligent act not amounting to culpable homicide and escapes from the scene of incident or fails to report the incident to a Police officer or 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. No equivalent section in the IPC. This section introduces an offence of escaping from the scene of a rash/negligent homicide committed by the offender. It also criminalises failure to report the crime after committing it. It is an aggravated form of the offence punished under section 104(1), since it provides a maximum punishment of 10 years. This appears to cover cases of “hit and run” in cases of vehicular homicides. It also covers all rash/negligent homicides where the offender escapes from the scene of crime or does not report the crime to the police/Magistrate. Clause 105: If any person under eighteen years of age, any person with mental illness, any delirious person or any person in a state of intoxication, commits suicide, whoever abets the commission of such suicide, shall be punished with death or imprisonment for life, or imprisonment for a term not exceeding ten years, and shall also be liable to fine. Section 305: If any person under eighteen years of age, any insane person, any delirious person, any idiot, or any person in a state of intoxication, commits suicide, whoever abets the commission of such suicide, shall be punished with death or imprisonment for life, or imprisonment for a term not exceeding ten years, and shall also be liable to fine. Replacing the words “any insane person” and “any idiot”, with “any person with mental illness” expands the scope of the section and would cover a larger number of people within the aggravated offence as opposed to the offence under Section 306/Clause 106. Under the IPC, most cases of abetment of suicide are adjudicated under Section 306. However, inclusion of a broad term like mental illness in this context would mean that this provision is invoked more frequently. Clause 107(2): When any person offending under sub-section (1) is under sentence of imprisonment 45 for life, he may, if hurt is caused, be punished with death or with Section 307 (paragraph 2): When any person offending under this section is under sentence of imprisonment for life, he may, if In addition to the death penalty, the new provision has an alternative punishment of life imprisonment which extends to the whole of natural life of the convict without the possibility of remission. BNS IPC IMPLICATIONS OF REVISION which shall not be less than rupees five lakhs. Clause 109(3): Whoever, conspires or organises the commission of an organised crime, or assists, facilitates or otherwise engages in any act preparatory to an organised crime, shall be punishable 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 rupees five lakhs. No equivalent section in the IPC. This clause deals with conspiracies, organising the commission of an organised crime, assisting and facilitating organised crime or engaging in preparatory acts. The terms used are wide and vague. For instance, the ambit of preparatory acts may be very wide, thus bringing within the section people who may not even have the relevant intention or knowledge that they are engaging in an act preparatory to an organised crime. From a penological perspective, the clause provides the same punishment for conspiracy and abetment, as it does for membership, thus equating these offences. Clause 109(4): Any person who is a member of an organised crime syndicate shall be punishable 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 rupees five lakhs. No equivalent section in the IPC. This section is taken from the MCOCA. The punishment is also the same. Jurisprudence from MCOCA will apply. BNS IPC IMPLICATIONS OF REVISION Clause 109(5): Whoever, intentionally harbours or conceals or attempts to harbour or conceal any person who has committed the offence of an organised crime or any member of an organised crime syndicate or believes that his act will encourage or assist the doing of such 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 rupees five lakhs: Provided that this sub-section shall not apply to any case in which the harbour or concealment is by the spouse of the offender. No equivalent section in the IPC. This section is taken from MCOCA. The proviso is from UAPA. The jurisprudence from these legislations will apply. Clause 109(6): Whoever, holds 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 syndicate funds 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 rupees two lakhs. No equivalent section in the IPC. This section is taken from MCOCA, save for the term “proceeds of any organised crime”, which has been defined in the explanation. The proviso is from UAPA. The jurisprudence from these legislations will apply. Clause 109(7): If any person on behalf of a member of an organised crime syndicate is, or at anytime 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 No equivalent section in the IPC. This section is taken from MCOCA. The proviso is from UAPA. The jurisprudence from these legislations will apply. BNS IPC IMPLICATIONS OF REVISION years and shall also be liable to fine which shall not be less than rupees one lakh and such property shall also be liable for attachment and forfeiture. Clause 109: Explanation.–– For the purposes of this section, “proceeds of any organised crime” means all kind of properties which have been derived or obtained from commission of any organised crime or have acquired through funds traceable to any organised crime and shall include cash, irrespective of person in whose name such proceeds are standing or in whose possession they are found. No equivalent section in the IPC. This provides a broad definition to the term “proceeds of an organized crime”, and can thus be overinclusive. Currently, there is debate and criticism of similar provisions in the Prevention of Money Laundering Act, which have not been taken into consideration while drafting this clause of the BNS. Clause 110. (1) Any crime that causes general feelings of insecurity among citizens relating to theft of vehicle or theft from vehicle, domestic and business theft, trick theft, cargo crime, theft (attempt to theft, theft of personal property), organised pick pocketing, snatching, theft through shoplifting or card skimming and Automated Teller Machine thefts or procuring money in unlawful manner in public transport system or illegal selling of tickets and selling of public examination question papers and such other common forms of organised crime committed by organised criminal groups or gangs, shall constitute petty organised crimes and shall include the said crimes when No equivalent section in the IPC. This provision has vague and broad terms such as “general feelings of insecurity among citizens”. It also consists of terms such as “mobile organised crime groups”. This may lead to criminalisation of individuals/groups who are nomadic, which is was the rationale behind the repealed “Criminal Tribes Act”. BNS IPC IMPLICATIONS OF REVISION Clause 111(2): Whoever, attempts to commit or commits an offence of terrorist act shall,––(i) if such offence has resulted in the death of any person, be punishable with death or imprisonment for life without the benefit of parole, and shall also be liable to fine which shall not be less than rupees ten lakhs;(ii) in any other case, be punishable 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 rupees five lakhs. No corresponding provision in the IPC. A large part of Clause 111(2) is taken from Section 16 of the Unlawful Activities (Prevention) Act, 1967. However, in 111 (2) (i), life imprisonment has been specifically enhanced to exclude parole. Additionally fine amounts have been mentioned in the section which is absent in the UAPA. The punishment under this provision is more stringent than corresponding provisions of the UAPA. Clause 111 (3): Whoever, conspires, organises or causes to be organised any organisation, association or a group of persons for terrorist acts, or assists, facilitates or otherwise conspires to engage in any act preparatory to any terrorist act, shall be punishable 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 rupees five lakhs. No corresponding provision in the IPC. Clause 111(3) is taken from Section 18 of the Unlawful Activities (Prevention) Act, 1967. However, punishment under this provision specifically mentions a fine amount which is absent in the UAPA. Clause 111(4): Any person, who is a member of terrorist organisation, which is involved in terrorist act, shall be punishable with imprisonment for a term which may extend to imprisonment for life, and shall also be liable to fine which shall not be less than rupees five lakhs. No corresponding provision in the IPC Clause 111(4) is taken from Section 20 of the Unlawful Activities (Prevention) Act, 1967. However, punishment under this provision specifically mentions a fine amount which is absent in the UAPA. BNS IPC IMPLICATIONS OF REVISION Clause 111 (5) Whoever, intentionally harbours or conceals or attempts to harbour or conceal any person who has committed an offence of any terrorist act 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 rupees five lakh: Provided that this sub-section shall not apply to any case in which the harbour or concealment is by the spouse of the offender. No corresponding provision in the IPC. Clause 111(5) is largely taken from Section 19 of the Unlawful Activities (Prevention) Act, 1967. However, punishment under this provision specifically mentions a fine amount which is absent in the UAPA. This section brings in an element of “intention” in the context of harbouring/concealing a person who has committed a terrorist act. This is different from the UAPA which requires knowledge that the person being harboured is a terrorist. Doing away with this requirement may have the impact of broadening the section as compared to section 19 of the UAPA. Clause 111 (6): Whoever, holds any property directly or indirectly, derived or obtained from commission of terrorist act or proceeds of terrorism, or acquired through the terrorist fund, or possesses, provides, collects or uses property or funds or makes available property, funds or financial service or other related services, by any means, to be used, in full or in part to carry out or facilitate the commission of any terrorist act, shall be punishable with imprisonment for a term which may extend to imprisonment for life and shall also be liable to fine which shall not be less than rupees five lakhs and such property shall also be liable for attachment and forfeiture. No corresponding provision in the IPC. The first part of Clause 111 (6) is borrowed from Sec. 21 of the Unlawful Activities (Prevention) Act, 1967. This provision broadens the scope for criminalisation of acts beyond those of Sec. 21 of the UAPA. Explanation.— For the purposes of this section,––(a) “terrorist” refers to any person who—(i) develops, manufactures, possesses, acquires, transports, supplies or uses weapons, explosives, No corresponding provision in the IPC. Explanation a-(i) has been taken from Sec. 4 of the Philippines Anti-Terrorism Act, 2020. This is an extremely vague and over- broad definition, particularly as there is no jurisprudence around this that can be used by courts. BNS IPC IMPLICATIONS OF REVISION or releases nuclear, radiological or other dangerous substance, or cause fire, floods or explosions; (ii) commits, or attempts, or conspires to commit terrorist acts by any means, directly or indirectly; (iii) participates, as a principal or as an accomplice, in terrorist acts; (b) the expression “proceeds of terrorism” shall have the same meaning as assigned to it in clause (g) of section 2 of the Unlawful Activities (Prevention) Act, 1967; No corresponding provision in the IPC. (c) “terrorist organisation, association or a group of persons” refers to any entity owned or controlled by any terrorist or group of terrorists that— (i) commits, or attempts to commit, terrorist acts by any means, directly or indirectly;— (ii) participates in acts of terrorism;—(iii) prepares for terrorism;—(iv) promotes terrorism;—(v) organises or directs others to commit terrorism;—(vi) contributes to the commission of terrorist acts by a group of persons acting with common purpose of furthering the terrorist act where the contribution is made intentionally and with the aim of furthering the terrorist act or with the knowledge of the intention of the group to commit a terrorist act; or (vii) is otherwise involved in terrorism; or (viii) any organisation listed in the First Schedule to the Unlawful Activities(Prevention) Act, 1967 or an organisation operating under the same name as an organisation so listed. BNS IPC IMPLICATIONS OF REVISION Clause 137(1): Whoever kidnaps any child below the age of eighteen years or, not being the lawful guardian of such child, obtains the custody of the child, in order that such child may be employed or used for the purposes of begging shall be punishable with rigorous imprisonment 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. Section 363A(1): Whoever kidnaps any minor or, not being the lawful guardian of a minor, obtains the custody of the minor, in order that such minor may be employed or used for the purposes of begging shall be punishable with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. The term “minor” used in the section has been replaced with “child below the age of 18 years” and “child”. The terms of punishment have been significantly increased, with the introduction of mandatory minimum sentences. Clause 137(2): Whoever maims any child below the age of eighteen years in order that such child may be employed or used for the purposes of begging shall be punishable with imprisonment which shall not be less than twenty years, but which may extend to life which shall mean imprisonment for the remainder of that person’s natural life, and with fine. Section 363A(2): Whoever maims any minor in order that such minor may be employed or used for the purposes of begging shall be punishable with imprisonment for life, and shall also be liable to fine. Same as above. Clause 137(3): Where any person, not being the lawful guardian of a child below the age of eighteen years employs or uses such child for the purposes of begging, it shall be presumed, unless the contrary is proved, that he kidnapped or otherwise obtained the custody of such child in order that such child might be employed or used for the purposes of begging. Section 363A(3): Where any person, not being the lawful guardian of a minor, employs or uses such minor for the purposes of begging, it shall be presumed, unless the contrary is proved, that he kidnapped or otherwise obtained the custody of that minor in order that the minor might be employed or used for the purposes of begging. Same as above. BNS IPC IMPLICATIONS OF REVISION Clause 137(4): In this section “begging” means—(i) soliciting or receiving alms in a public place, whether under the pretence ofsinging, dancing, fortune-telling, performing tricks or selling articles or otherwise;(ii) entering on any private premises for the purpose of soliciting or receiving alms;(iii) exposing or exhibiting, with the object of obtaining or extorting alms, any sore, wound, injury, deformity or disease, whether of himself or of any other person or of an animal;(iv) using such child as an exhibit for the purpose of soliciting or receiving alms. Section 363A(4): In this section,— (a) “begging” means— (i) soliciting or receiving alms in a public place, whether under the pretence of singing, dancing, fortunetelling, performing tricks or selling articles or otherwise; (ii) entering on any private premises for the purpose of soliciting or receiving alms; (iii) exposing or exhibiting, with the object of obtaining or extorting alms, any sore, wound, injury, deformity or disease, whether of himself or of any other person or of an animal; (iv) using a minor as an exhibit for the purpose of soliciting or receiving alms; (b) “minor” means— (i) in the case of a male, a person under sixteen years of age; and (ii) in the case of a female, a person under eighteen years of age.] Same as above. Clause 146: Whoever within or without and beyond India conspires to commit any of the offences punishable by section 145, or conspires to overawe, by means of criminal force or the show of criminal force, the Central Government or any State Government, shall be punished with imprisonment for life, or with imprisonment of either description which may extend to ten years, and shall also be liable to fine. Whoever within or without [India] conspires to commit any of the offences punishable by section 121, or conspires to overawe, by means of criminal force or the show of criminal force, [the Central Government or any [State] Government], shall be punished with [imprisonment for life], or with imprisonment of either description which may extend to ten years, [and shall also be liable to fine]. Section 121A of the IPC used the phrase “within or without India”. This covered acts committed in India and outside India. The word “beyond” has now been added. It does not appear to make any difference and is hence, superfluous. BNS IPC IMPLICATIONS OF REVISION Clause 150: 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. Section 124A: Whoever by words, either spoken or written, signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in India, shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.Explanation 1.—The expression “disaffection” includes disloyalty and all feelings of enmity.Explanation 2.— Comments expressing disapprobation of the measures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.Explanation 3.— Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section. Although the word “sedition” has been removed, the new clause has wider connotations regarding acts which can now be criminalised under this provision. The use of vague phrases such as “exciting secessionist activities and feelings” could potentially criminalise activities which do not have any overt act. Further, the use of the word “purposely” introduces an ambiguous standard of mental state. The jurisprudence on sedition had limited the extent of the provision to words which lead to immediate violence. This leads to further expansion of the scope of the provision. Moreover, the explanation appears to be incomplete. However, if read as it is, it can further broaden the ambit of the section. Clause 157: Whoever abets the committing of mutiny by an officer, soldier, sailor or airman, in the Army, Navy or Air Force subject to the Acts referred to in section 165 of the Government of India or attempts to seduce any such officer, soldier, sailor or airman from his allegiance or his duty, shall be punished with imprisonment for life, or with imprisonment of either description for a term which Section 131: Whoever abets the committing of mutiny by an officer, soldier, sailor or airman, in the Army, Navy or Air Force of the Government of India or attempts to seduce any such officer, soldier, sailor or airman from his allegiance or his duty, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Explanation.—In this section the The addition made to this section reads “subject to Acts referred to in section 165 of the Government of India.” This is evidently erroneous, and possibly refers to Clause 165 of the BNS, and not to the Government of India. BNS IPC IMPLICATIONS OF REVISION Clause 322 (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. No equivalent section. The offence of mischief under the IPC had graded punishments depending on the value of the property damaged/destroyed, as well as the nature of the property damaged/destroyed. This new section specifically adds property belonging to the Government or Local Authority, and punishes the act with a maximum of one year. Clause 322 (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. Sec. 427 IPC-Mischief causing damage to the amount of fifty rupees.—Whoever commits mischief and thereby causes loss or damage to the amount of fifty rupees or upwards, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. Continuing with the gradation of punishment depending on the value of damage, the BNS increases the value from Rs. 50 in the IPC to a minimum of Rs. 20,000, and up to Rs. 100,000 and provides a maximum sentence of two years. Clause 322 (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. No equivalent section. Continuing with the gradation of punishment depending on the value of damage, this newly introduced clause provides a maximum sentence of imprisonment of five years for damaging property worth over Rs. 1 lakh. Clause 323: Whoever commits mischief by killing, poisoning, maiming or rendering useless any animal shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. Sec. 428 IPC- Mischief by killing or maiming animal of the value of ten rupees.—Whoever commitsmischief by killing, poisoning, maiming or rendering useless any animal or animals of the value of the tenrupees or upwards, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. 429. Mischief by killing or maiming cattle, etc., of any value or any animal of the value of fiftyrupees.—Whoever commits mischief by killing, poisoning, maiming or rendering useless, This section criminalises killing, poisoning, maiming or rendering useless any animal, thus possibly criminalising the killing of animals for any reason. The IPC’s logic was to criminalise the killing of animals which were of value to someone, possibly covering domesticated animals killed by a third person without the consent of the owner of the animal. Clause 323, by removing the value of the animal, appears to criminalise the killing of any animal, domesticated or otherwise. In light other legislations such as the Prevention of Cruelty to Animals Act, 1960, the Wildlife Protection Act, 1972, etc., this section should have ideally been repealed. BNS IPC IMPLICATIONS OF REVISION any elephant, camel, horse, mule, buffalo, bull, cow or ox, whatever may be the value thereof, or any other animal of the value of fifty rupees or upwards, shall be punished with imprisonment of either description for a termwhich may extend to five years, or with fine, or with both. Clause 324: Whoever commits mischief by...(d) destroying or moving any sign or signal used for navigation of rail, aircraft or ship or other thing placed as a guide for navigators, or by any act which renders any such sign or signal less useful as a guide for navigators, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both; Sec. 433 IPC. Mischief by destroying, moving or rendering less useful a light-house or sea- mark.— Whoever commits mischief by destroying or moving any light- house or other light used as a sea- mark, or any sea-mark or buoy or other thing placed as a guide for navigators, or by any act which renders any such light-house, sea-mark, buoy or other such thing as aforesaid less useful as a guide for navigators, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both. The section expands the scope of navigation devices originally in the IPC, which were confined to devices used in maritime navigation to include devices used for navigation in railways and in airways. Destroying a railway signal will now be covered under this section. Clause 325: (1) Whoever commits mischief to any rail, aircraft, or a decked vessel or any vessel of a burden of twenty tons or upwards, intending to destroy or render unsafe, or knowing it to be likely that he will thereby destroy or render unsafe, that rail, aircraft or vessel, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. 437. Mischief with intent to destroy or make unsafe a decked vessel or one of twenty tons burden.—Whoever commits mischief to any decked vessel or any vessel of a burden of twenty tons or upwards, intending to destroy or render unsafe, or knowing it to be likely that he will thereby destroy or render unsafe, that vessel, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Section 437 of the IPC only covered decked vessels (ships). The section now covers railway vessels, and aircrafts. Clause 335: Whoever forges a document or an electronic record, purporting to be a record or proceeding of or in a Court or an identity document 466. Forgery of record of Court or of public register, etc.[Whoever forges a document or an electronic record], purporting to be arecord or proceeding of or in This clause now includes forging cards issued by the Government including an Aadhar card or voter identity card. BNS IPC IMPLICATIONS OF REVISION issued by Government including voter identity card or Aadhaar Card, or a register of birth, marriage or burial, or a register kept by a public servant as such, or a certificate or document purporting to be made by a public servant in his official capacity, or an authority to institute or defend a suit, or to take any proceedings therein, or to confess judgment, or a power of attorney, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. a Court of Justice, or a register of birth, baptism, marriage or burial, or a register kept by a public servant as such, ora certificate or document purporting to be made by a public servant in his official capacity, or an authority to institute or defend a suit, or to takeany proceedings therein, or to confess judgment, or a power of attorney, shall be punished with imprisonment of either description for a termwhich may extend to seven years, and shall also be liable to fine. Clause 339 (3): Whoever possesses any seal, plate or other instrument knowing the same to be counterfeit, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine. No equivalent provision in the IPC. This clause criminalises possession of seals, plates and other instrument knowing them to be counterfeit. This fills a possible void in the IPC. Clause 339 (4): Whoever fraudulently or dishonestly uses as genuine any seal, plate or other instrument knowing or having reason to believe the same to be counterfeit, shall be punished in the same manner as if he had made or counterfeited such seal, plate or other instrument. No equivalent provision in the IPC. Continuing from the previous clause, this clause criminalises the use as genuine of a seal, plate or other instrument knowing them to be counterfeit. This fills a possible void in the IPC.