Comparative analysis of new criminal law bills with the existing laws in india

COMPARATIVE ANALYSIS OF NEW CRIMINAL LAW BILLS WITH THE EXISTING LAWS IN INDIA

By Rishu Gautam, Associate Lawyer, Seth Associates

Keywords-Cyberlaw, Cybersecurity, new criminal law bills, criminal justice system,Indian evidence Act

The Bharatiya Nyaya Sanhita Bill, 2023, the Bharatiya Nagarik Suraksha Sanhita Bill, 2023, and the Bharatiya Sakshya Act, 2023 were introduced in the Lok Sabha on August 11, 2023, to repeal and replace the existing laws, which are the Indian Penal Code 1860, the Code of Criminal Procedure, 1973, and the Evidence Act, 1872.

The Parliament has taken this step with the intention of amending, overhauling, and streamlining India’s law enforcement and criminal justice systems, as well as introducing new offences in provisions in response to the passage of time and societal needs. The present statute was created during the colonial era; and these bills have been introduced to improve redressal, promote the notion of justice, and protect the rights of Indian nationals in the twenty-first century,  which comes into effect on July 1st, 2023.

Criminal Laws overhauled-

1. Proposed changes in the Nyaya Sanhita Bill, 2023

The new bill introduces new offences that were not defined in the previous code. This covers economic offences like organized crime. Certain modifications were made to various parts of the previous law, including economic offences such as cheating and falsification of accounts, criminal breach of trust, and forgery. These are mentioned as below:

• Introduction of the new offence “Organised Crime”.
• The Nyaya Sanhita Bill 2023 introduces a new Section 111 pertaining to “Organised Crime” and Section 112 pertaining to “Petty offences related to organised crime”.

Section 111: “Organised Crime” defines as a where a group of two or more persons who, acting either singly or jointly or on behalf of an organised crime syndicate to commit offences such as extortion, land grabbing, cyber-crimes etc.

• Further, the term “economic offences” has also been defined in the context of organised crime which includes Criminal Breach of Trust, forgery, counterfeiting of currency notes etc.
• The Punishment includes imprisonment which may extend to life imprisonment and the offenders are also be liable to fine which shall not be less than ten lakh rupees.
• Modification in offences of cheating, criminal breach of trust forgery and falsification of accounts.

1. Cheating

• Chapter XVII of the BNS concentrates on property violations, with a noteworthy shift toward cheating under Sections 415 and 420 of the IPC.
• Section 318 of the BNS consolidates the existing provisions of the IPC, namely Sections 415 (which specifies the offences of cheating), 417 (which prescribes the punishment for cheating), and 420 (which provides for cheating and dishonestly inducing the handover of property).
• Cheating with the intent to cause unjust loss, is punishable with imprisonment for up to three years, or both, and dishonestly influencing the victim to give property or manufacture, change, or destroy a valuable security, prescribes punishment of imprisonment for up to seven years, with penalties.

1. Criminal Breach of Trust

• The offence of criminal breach of trust, which was covered by Sections 405 to 409 of the IPC, has been consolidated into one section under Section 316 of the BNS, with the notable change being the increase in punishment for ‘criminal breach of trust’ (under Section 406 of the IPC) from three to five years. The punishment for criminal breach of trust by a carrier, wharfinger, warehouse-keeper, clerk, or servant (under Sections 407 and 408 of the IPC) remains imprisonment for up to seven years, and imprisonment for a public servant, banker, merchant, factor, attorney, or agent (under Section 409 of the IPC) is up to ten years.

1. Forgery and Falsification of accounts

• The Indian Penal Code (IPC) has been consolidated and rearranged, including the definition of forgery, punishment, and the offence of cheating. Section 468 has been renumbered under Section 336 of the BNS, while Section 464 has been reshuffled under Section 335. Section 466 has been expanded to include identity documents issued by the government, such as voter ID cards or Aadhar cards.
• Section 341 of the BNS penalizes the possession of counterfeit seals, plates, or instruments for making an impression, with imprisonment up to three years and fines.
• Introduction of New Section which describes Terrorist Act
• A terrorist act is defined as one that threatens the unity, integrity, and security of India or any other foreign country by employing explosives, lethal weapons, toxic gasses, chemicals, or other hazardous substances to in still fear, cause death, or jeopardize a person’s life. It can also result in property damage or destruction, disruption of important services, or widespread tampering with critical infrastructure. It has the potential to provoke or influence the government into destabilizing or destroying the country’s political, economic, or social institutions, causing a national emergency, or undermining public safety.

• In case of Terrorist Act punishment prescribed is death penalty or life in jail without parole, as well as penalties, five years in prison or life in prison.
• Introduction of two sections under offences against Women and Children
• Sexual intercourse by deception or making a commitment to marry a woman with no intention of following it, is punishable by up to 10 years in jail and a fine. In essence, this clause was added with the intention of reducing the number of ‘false promises to marry’.
• Section 70(2): Gang rape of a woman under the age of eighteen carries a life sentence, which means imprisonment for the rest of that person’s natural life, a fine, or death.
• Re-Characterization of the offences against the state.
• Under Chapter VII of the BNS, redefined sedition as activities that imperil India’s sovereignty, unity, and integrity, with a new clause raising the maximum sentence from seven years to life imprisonment. This increases the seriousness of the charge by include internet communication, financial means, subversive acts, and thoughts of separatist activity.

• Comparative analysis in a nutshell

#. Major Points of Change in the new bill

1. Proposed changes in the Bharatiya Sakshya Bill 2023

The Bharatiya Sakshya Adhinyam Bill 2023, tabled in the Lok Sabha on August 11, 2023, repeals and replaces the Indian Evidence Act 1872. The bill got presidential assent on December 25, 2023, and will go into effect on July 1, 2023. The BSA retains most of the provisions of the IEA, alongwith aspects dealing with validity of electronic evidence. These are described as below:

Addition of section 2(2) of the BSA

Section 2(2) of the BSA is a new provision that states that words and expressions used herein that are not defined but defined in the Information Technology Act, 2000, Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS”) (replacing the Code of Criminal Procedure, 1973) and Bharatiya Nyaya Sanhita, 2023 (replacing the Indian Penal Code, 1860) shall have the same meanings as assigned to them in the said Act and Sanhita.

Application to Courts-Martial

• Section 1 of the IEA states that it does not apply to courts-martial held under the Army Act, the Naval Discipline Act, the Indian Navy (Disciple) Act, or the Air Force Act. Section 1(2) of the BSA omits the phrase “convened under the Army Act, the Naval Discipline Act, the Indian Navy (Disciple) Act, or the Air Force Act”.
• BSA now applies to courts martial held under the Army Act, the Naval Discipline Act, the Indian Navy (Disciple) Act, or the Air Force Act.

Definition of “evidence” now includes information given through electronic means.

• Section 2(1)(e) of the BSA states that statements delivered electronically by witnesses will be considered as evidence in the same way as spoken testimony is. Similarly, electronic and digital recordings are considered documentary evidence.
• Section 530 of the BNSS allows for the electronic interrogation of witnesses and complainants in criminal proceedings, either by electronic communication or via audio-video technological methods.

Digital Form of Law books now relevant.

• Section 32 of the BSA, considers electronic or digital forms of law books purporting to be printed or published under the authority of the government of such country and to contain any such law, as well as any report of a ruling of such country’s courts contained in a book, including in electronic or digital form purporting to be a report of such rulings the law on which the Court must form an opinion, relevant.

Primary Evidence

• Section 57 of the BSA includes electronic and digital records as primary evidence.
• BSA specifies that electronic or digital records kept in numerous files, created from appropriate custody, stored in electronic form and sent, and stored in various computer resources are all primary evidence, unless disputed. This also applies to video recordings and automated storage areas.

Secondary Evidence

• Section 58 of the BSA now categorizes oral and written admission of a document as secondary evidence. This change is based on the fact that oral admissions are permissible under Section 65 of the IEA and written admissions are admissible.
• The inclusion of oral and written admissions in Section 63 of the BSA has clearly mentioned that they are considered secondary evidence. The qualifications for whether oral and written admissions are allowed remain unchanged.

Electronic Evidence

• Section 61 of BSA 2023, reinforces the validity effect and enforceability of electronic and digital records to be parallel to other documents.
• Section 53 of BSA 2023, mentions the types of digital and electronic records which will be given for reference in the court of law.

• Comparative Analysis in a Nutshell

# Major Points of Change

• Proposed changes in the Bharatiya Nagarik Suraksha Bill 2023

This bill i.e. Bharatiya Nagarik Suraksha Bill 2023, was introduced on 11^th August 2023 seeks to replace the old Criminal Procedure Code 1973. This bill mandates forensic investigation for offences punishable with seven years of imprisonment or more. All trials, inquires and proceeding may be held in electronic mode and in the meantime production of electronic communication devices, which can contain digital evidence, will be allowed for investigation, inquiry or trial.

The list of the changes and modification which took place in the new bill are mentioned below:

1. The BNSS allows up to 15 days police custody which can be authorised in parts during the initial 40 or 60 days of the 60- and 90-days period of judicial custody.
2. The BNSS denies the facility of granting bail for an accused who has been detained for half the maximum imprisonment for the offence in case of facing multiple charges.
3. The police have power to use handcuffs in range of cases including economic offences and contradicting supreme court directions.
4. As mentioned in BNSS, police may detain or remove any person who resists, refuses or ignore direction by an office to prevent cognisable offences.
5. The BNSS retain the provision of Plea-Bargaining which states that an accused must file an application for plea bargaining within 30 days from the date of framing of charge.
6. According to the BNSS, if an officer who created a document or report for an inquiry or trial is unable to testify, the Court will guarantee that their replacement officer does so.
7. The BNSS extends the limit of attachment of property in case of criminal activity. Earlier it applies to movable property but now it applies to immovable property as well.
8. The BNSS increases the property attachment criteria in criminal cases. Previously, it only applied to movable property in case of stolen property or found under circumstances creating suspicion of commission of any offence, but it now also applies to immovable property.
9. Amended the power of magistrate to obtain finger impressions and voice samples from the arrested persons.

• Comparative analysis in a nutshell

# Major points of change

• Conclusion:

While Bharatiya Nyaya Sanhita has updated laws to promote communication, gender equality, and combat organized crime, the Bharatiya Sakshya Bill introduces electronic evidence experts and confers primary evidence status to electronic records. The Bharatiya Nagarik Suraksha Bill addresses various aspects of public security, ranging from strengthening law enforcement capabilities to implementing advanced surveillance technologies.The three criminal law bills have effectively overhauled the earlier British colonial laws and ushered a new era of robust Criminal Justice system in India.