[Comparative Study] Bharatiya Nyaya Sanhita 2023 (BNS) & Indian Penal Code 1860 (IPC)

Check out Taxmann's New Criminal Major Acts which provides a comprehensive guide to India's recent changes in Criminal Laws, structured into three divisions – Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagrik Suraksha Sanhita (BNSS), and Bharatiya Sakshaya Adhiniyam (BSA). It offers a detailed comparison with historical laws, complete with tables, section key, subject index, and additional resources, including committee reports and speeches.

1. Definitions [Section 2 of BNS/Sections 8 to 52A of IPC]

General

• In IPC, there was no definition clause. All the interpretation clauses were spread over sections 8 to 52A of IPC.
• The definition of ‘section’ in section 50 of IPC stands omitted by BNS as it is now a word of extensive usage in various legislations and it needs no definition or elucidation.
• Most of these interpretation clauses in sections 8 to 52A of IPC,1860 have been retained in BNS without any change and have been compactly grouped in section 2 of BNS in alphabetical dictionary sequence for ease of reading and reference.

Unless context otherwise requires

• Though most of the interpretation rules in sections 8 to 52A of IPC have been included in section 2 of BNS without any change, it must be noted that the applicability of these interpretation rules in BNS is subject to requirements of the context of a provision as all definitions in BNS in section 2 are subject to the qualificatory phrase “unless the context otherwise requires”. The applicability of interpretation clauses in sections 8 to 52A of IPC, except definitions in sections 9, 32 and 46, were not made subject to contextual requirements.

Child

• New definition of ‘child’ in section 2(3) of BNS

Transgender

• The definition of “gender” in section 8 of IPC recognizes only male and female genders. The new definition of “gender” in section 2(10) of BNS recognizes “transgender” in addition to genders of “male” and “female”.

2. Child [Section 2(3) of BNS]

Child

• Section 2(3) of BNS is a new provision [NEW]
• Section 2(3) of BNS defines ‘child’ to means any person below the age of 18 years.

3. Court [Section 2(5) of BNS/Section 20 of IPC]

Omission of illustration

• Illustration below section 20 of IPC referring to “Regulation VII, 1816, of the Madras Code” has been omitted from the definition in section 2(5) of BNS, as the illustration had become redundant long back with the repeal of Regulation VII by the Madras Civil Courts Act, 1873.

4. Document [Section 2(8) of BNS/Section 29 of IPC]

Electronic and digital record

• Section 2(8) of BNS provides that documents includes ‘electronics and digital record’.

5. Gender [Section 2(10) of BNS/Section 8 of IPC]

Transgender recognised as gender and defined

• Definition in section 2(10) expressly refers to transgender and defines the term which was not the case in section 8 of IPC.

6. Judge [Section 2(16) of BNS/Section 19 of IPC]

Old Law – Section 19 (IPC, 1860) – “Judge”

• The old law’s definition of “Judge” is quite detailed.
• It states that the term “Judge” includes not only individuals officially designated as Judges but also those who have the authority to render definitive judgments in any legal proceeding, whether civil or criminal.
• This definition encompasses individuals who can make judgments that, if not appealed against, would be considered definitive.
• It also includes members of a body of persons authorized by law to render such judgments.
• The illustrations provided clarify this definition further, including examples of Collectors, Magistrates, and members of a panchayat.

New Law – Section 2(16) – “Judge”

• The new law’s definition of “Judge” is more concise and follows a similar pattern.
• The new law aligns with the old law’s definition but presents the information in a more streamlined manner.

7. Month and Year [Section 2(20) of BNS/Section 49 of IPC]

Reference to British calendar replaced with reference to Gregorian calendar

• Section 49 of IPC required year or month to be reckoned as per British calendar while section 2(20) of BNS requires year or month to be reckoned as per the Gregorian calendar.

8. Movable Property [Section 2(21) of BNS/Section 22 of IPC]

Scope of “Movable property” in section 2(21) not limited to property in corporeal form, unlike the definition in section 22

• Section 2(21) of BNS omits the word “are intended to include corporeal” before the word “property” which was there in the definition of movable property in section 22 of IPC.
• Therefore, movable property includes property of every description other than immovable property whether such property is in corporeal (tangible physical) form or not.
• Definition of movable property under BNS will include intangible assets like patents, copyrights, etc., also as well as actionable claims.

9. Public Servant [Section 2(28) of BNS/Section 21 of IPC]

Juryman

• References to juryman omitted from definition in section 2(28) of BNS

Local authority

• “Local authority” is defined by referring to clause (31) of section 3 of the General Clauses Act, 1897 and section 2(45) of the Companies Act, 2013.

10. Punishments [Section 4 of BNS/Section 53 of IPC]

Community service

• Section 53 of IPC provided for 5 types of punishments viz. (1) Death; (2) Imprisonment for life; (3) Imprisonment which is of two descriptions–rigorous and simple; (4) Forfeiture of property and (5) Fine. Section 4(f) of BNS has introduced a new 6th type of punishment – Community service.
• To reduce the burden on jails, community service has been included in BNS as a punishment for the first time and it is being given legal status. [PIB Press Release, dated 20-12-2023]
• BNS prescribes Community Service as punishment for petty offences like non-appearance in response to a proclamation, attempt to commit suicide, to compel or restraint exercise of lawful power of public servant, petty theft on return of theft money, misconduct in public by a drunken person, defamation, etc.
• The term “community service” is not defined in BNS. However, it is defined by Explanation to section 23 of BNSS to 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.

Life imprisonment

• The punishment of imprisonment for life has been clearly defined as imprisonment for remainder of a person’s natural life.

11. Sentence, Commutation of [Section 5 of BNS/Sections 54 and 55 of IPC]

Changes in commutation provisions: Section 433 of Cr.PC vis-a-vis section 474 of Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)

• The comparison between section 433 of Cr.PC and section 474 of BNSS is tabulated below:

12. Punishment, Fractions of Terms of [Section 6 of BNS/Section 57 of IPC]

Unless otherwise provided

• Unlike section 57 of IPC, section 6 applies “unless otherwise provided”.
• The words “unless otherwise provided” which were not there in section 57 have been added in section 6 at the end of the provision.

13. Fine, Liability in Default of Payment of Fine, etc. [Section 8 of BNS/Sections 63 to 70 of IPC]

Community service

• IPC only provided for imprisonment in default of fine only. As there was no punishment of community service in IPC, there was also no imprisonment in default of community service in IPC.
• Consequent upon introduction of new punishment of community service [See section 4 of BNS] by the BNS, sub-sections (4) and (5) of section 8 of BNS provide for imposing imprisonment in default of community service.

Fine of community service, default in payment of

• Under old law for default in payment of fine following punishment followed:

1. 1. Fine not exceeding ` 50 – Imprisonment not exceeding 2 months
   2. Fine not exceeding ` 100 – Imprisonment not exceeding 4 months
   3. In any other case – Imprisonment not exceeding 6 months

• Under BNS for default in payment of fine or default of community service following punishment follows:

1. 1. Fine not exceeding ` 5000 or community service – Imprisonment not exceeding 2 months
   2. Fine not exceeding ` 10,000 or community service – Imprisonment not exceeding 4 months
   3. In any other case – Imprisonment not exceeding 1 year

14. Private Defence of Property, When Right of, Extends to Causing Death [Section 41 of BNS/Section 103 of IPC]

House breaking

• Old law provided for ‘House breaking by night’. Section 41 of BNS provides for ‘house breaking after sunset and before sunrise’.
• Section 103 of Cr.PC provided for ‘mischief by fire’. Section 41 of BNS provides for ‘mischief by fire or any explosive substance’.

15. Private Defence of Property, Commencement and Continuance of Right of [Section 43 of BNS/Section 105 of IPC]

House breaking ‘after sunset and before sunrise’

• Section 105 of IPC provided for ‘house breaking by night’. Section 43 of BNS provides for ‘house breaking after sunset and before sunrise’.

16. Abetment Outside India for Offence in India (New) [Section 48 of BNS]

Abetment outside India

• Section 48 of BNS is a new provision [NEW]
• Section 48 of BNS provides that 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.
• Abetment by a person outside India has been made an offence under section 48 to allow prosecution of person located in foreign country.

17. Abetting Commission of Offence By Public or By More Than Ten Persons [Section 57 of BNS/Section 117 of IPC]

Prescribed punishment

• Section 117 of IPC provided for imprisonment upto 3 years or fine or both. Section 57 of BNS provides for imprisonment of either description for a term which may extend to 7 years and fine.

18. Rape [Section 63 of BNS/Section 375 of IPC]

Age of Consent

• Exception 2 to section 63 of BNS provides that sexual intercourse or sexual acts by a man with his own wife, the wife not being under 18 years of age, is not rape. Under section 375 of IPC the age limit was 15 years.

19. Rape, Punishment for [Section 64 of BNS/Section 376 of IPC]

Consent

• Clause (i) of section 64(2) of BNS provides for ‘commits rape, on a woman incapable of giving consent’. Section 376(2)(i) of IPC provided for ‘commits rape on woman when she is under 16 years of age’.

20 Rape, Punishment for, in Certain Cases [Section 65 of BNS/Section 376AB of IPC]

Age categories

• Section 65 of BNS combines both age categories (under 12 and under 16) into a single section, simplifying the legal framework.

21. Sexual Intercourse by Employing Deceitful Means, etc. [Section 69 of BNS]

Sexual intercourse by employing deceitful means

• Section 69 of BNS is a new provision [NEW]
• Section 69 of BNS provides that whoever, by deceitful means or making by promise to marry 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.
• “Deceitful means” shall include the false promise of employment or promotion, inducement or marring after suppressing identity.

22. Rape, Gang [Section 70 of BNS/Sections 376D to 376DB of IPC]

Death penalty for gang rape of woman under 18 years of age

• Death sentence was provided under section 376DB of IPC for gang rape of woman under 12 years of age. No death penalty was provided for gang rape of woman aged below 16 but above 12 in section 376DA. Now, section 70(2) of BNS provides death penalty for gangrape of woman under 18 years of age.

23. Woman, Assault or Use of Criminal Force With Intent to Disrobe [Section 76 of BNS/Section 354B of IPC]

Neutral Gender

• Word “whoever” is used in sections 76 and 77 of BNS. Earlier word ‘man’ was used in section 354B/354C of IPC

24. Voyeurism [Section 77 of BNS/Section 354C of IPC]

Neutral Gender

• Word “whoever” is used in sections 75 and 76 of BNS. Earlier word ‘man’ was used in section 354B/354C of IPC

25. Woman, Enticing or Taking Away or Detaining With Criminal Intent a Married Woman [Section 84 of BNS/Section 498 of IPC]

Woman under husband care or any other person

• Words ‘from that man, or from any person having the care of her on behalf of that man’ are omitted from section 498 of IPC
• Thus, unlike section 498 of IPC, offence under section 84 of BNS is committed whether or not a married woman is taken or enticed away from her husband or from any person having care of her on behalf of her husband.
• Section 84 protects a married woman whether or not she is living in the care of her husband or any other person who is taking care of her on behalf of her husband.

26. Child, Hiring, Employing or Engaging to Commit an Offence [Section 95 of BNS] [NEW]

Hiring child to commit an offence

• Section 95 of BNS is a new provision
• Section 95 of BNS provides that whoever hires, employs or engages any person below the age of eighteen years to commit an offence shall be punished for with imprisonment of either description or fine provided for that offence as if the offence has been committed by such person himself.
• Hiring, employing, engaging or using a child for sexual exploitation or pornography is covered within the meaning of this section.

27. Child, Procuration of [Section 96 of BNS/Section 366A of IPC]

Neutral Gender

• Section 366A of IPC provided for offence of procuration of minor girl (under the age of eighteen years). Section 96 of BNS deals with offence of procuration of any child below the age of eighteen years (irrespective of gender).
• The protection accorded by section 96 of BNS to children is wider than that accorded by section 366A of IPC since protection under section 96 is available to all children irrespective of gender while section 366A protected only minor girls.

28. Child, Selling for Purposes of Prostitution, etc. [Section 98 of BNS/Section 372 of IPC]

Child

• Word “child” is substituted for “any person” in section 372 of IPC

29. Child, Buying for Purposes of Prostitution, etc. [Section 99 of BNS/Section 373 of IPC]

Child

• Word ‘child’ is substituted for ‘person’ in section 99 of BNS

Prescribed imprisonment

• Imprisonment prescribed is ‘not less than 7 years but which may extend to 14 years’. Earlier prescribed imprisonment was ‘ten years’.

30. Mob Lynching [Section 103(1) of BNS/Section 302 of IPC]

• Section 103(2) of BNS is a new provision [NEW]
• Section 103(2) of BNS provides that 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, and shall also be liable to fine.

31. Murder, Punishment for by Life-convict [Section 104 of BNS/Section 303 of IPC]

Prescribed imprisonment

• Unlike IPC, it is not mandatory to award death sentence for murder by a life-convict. BNS given an option to the Judge to sentence the life-convict murderer to death or with imprisonment for life, which shall mean the remainder of that person’s natural life.

32. Culpable Homicide not Amounting to Murder, Punishment for [Section 105 of BNS/Section 304 of IPC]

Prescribed punishment

• Section 105 of BNS prescribes imprisonment of ‘not less than 5 years which may extend to 10 years’ with fine. It was upto 10 years with fine or both under section 304 of IPC

Lesser punishment if accused reports the case to Police and takes the victim to hospital for medical treatment

• As per the Home Minister’s statement in Lok Sabha on 20.12.2023-See PIB’s Press Release, dated 20.12.2023 in case of culpable homicide, there is a provision for lesser punishment if the accused goes to police to report the case and takes the victim to the hospital for medical treatment. [However, there is no such provision in the text of BNS]

33. Death, Causing by Negligence [Section 106 of BNS/Section 304A of IPC]

Increased punishment

• Section 106(1) of BNS provides that whoever causes death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to five years.
• The new law increases the punishment for causing death by negligence from a maximum of two years to a maximum of five years. This change reflects a stricter approach to cases of negligence resulting in death.

Offender escaping or failing to report [NEW]

• Section 106(2) introduces an additional provision in sub-section (2) to section 106 of BNS, which addresses situations where the offender escapes from the scene of the incident without reporting it to a police officer or Magistrate after the incident. In such cases, the punishment is very severe, with a maximum term of imprisonment of ten years with fine. [Section 106(2)]
• As the instances of hit and run cases are on the rise, a new provision under section 106(2) of BNS has been made. Currently hit and run cases resulting in death due to reckless and negligent driving are registered u/s 304A of IPC, with maximum penalty of two years of imprisonment. As per Delhi Road Crash Report of 2021, there were 555 cases (46.01% of total cases) where the registration number of vehicles involved in crime were unknown, signifying hit and run cases. The Supreme Court had in several cases observed on the inadequacy of law in view of increased vehicular accident. To address this issue, the new provision has been introduced under clause 106(2), which was long overdue.
• Section 106(2) has been introduced to cover the hit and run accidents and to ensure reporting of accident immediately. This has been introduced with an aim to save the victim within the critical ‘Golden Hour’ a term introduced in the Motor Vehicles Act, 1988 in the year 2019.
• Punishment under section 106(2) is not attracted merely by virtue of driver escaping from the scene after the incident to escape the wrath of bystanders who might mob-lynch him. Offence is committed only if escape from scene is coupled with non-reporting by him to Police or Magistrate soon after the incident.

Medical practitioner [NEW]

• In case of registered medical practitioner if negligent act is done by a registered medical practitioner while performing medical procedure, he shall be punished with imprisonment of either description for a term which may extend to two years, and shall also be liable to fine.
• For the purposes of this sub-section, “registered medical practitioner” means a medical practitioner who possesses any medical qualification recognised under the National Medical Commission Act, 2019 (30 of 2019) and whose name has been entered in the National Medical Register or a State Medical Register under that Act.

34. Suicide of Child or Person of Unsound Mind, Abetment of [Section 107 of BNS/Section 305 of IPC]

Unsound mind

• Reference to “insane person”/“any idiot” in section 305 of IPC is replaced with reference to “person of unsound mind” in BNS

35. Murder, Attempt to [Section 109 of BNS/Section 307 of IPC]

Prescribed punishment

• Under IPC, section 307 prescribed only death penalty for attempt to murder by a life-convict. For attempt to murder by life-convict, section 109 of BNS provides for death or with imprisonment for life, which shall mean the remainder of that person’s natural life

36. Organised Crime [Section 111 of BNS] [New]

• Section 111 of BNS is a new provision
• Section 111 provides as under:

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 an organised crime.

For the purposes of this sub-section,––

(i) “organised crime syndicate” means a group of two or more persons who, acting either singly or jointly, as a syndicate or gang indulge in any continuing unlawful activity;

(ii) “continuing unlawful activity” means an activity prohibited by law which is a cognizable offence punishable with imprisonment of three years or more, undertaken by any person, either singly or jointly, as a member of an organised crime syndicate or on behalf of such syndicate in respect of which more than one charge-sheets have been filed before a competent Court within the preceding period of ten years and that Court has taken cognizance of such offence, and includes economic offence;

(iii) “economic offence” includes criminal breach of trust, forgery, counterfeiting of currency-notes, bank-notes and Government stamps, hawala transaction, mass-marketing fraud or running any scheme to defraud several persons or doing any act in any manner with a view to defraud any bank or financial institution or any other institution or organisation for obtaining monetary benefits in any form.

• • Whoever commits organised crime shall,—

1. 1. 1. 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;
      2. 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.

• • 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.
  • Any person who is a member of an organised crime syndicate shall be punished with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine which shall not be less than five lakh rupees.
  • 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. This provision shall not apply to any case in which the harbour or concealment is by the spouse of the offender.
  • 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.
  • 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.

37. Organised Crime, Petty [Section 112 of BNS] [New]

• Section 112 of BNS is a new provision
• Section 112 provides as under :

1. 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. 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.

38. Terrorist Act [Section 113 of BNS] [New]

• Section 113 of BNS is a new provision

New definition – definition of ‘terrorist act’

• Section 113 provides as under:

1. • Whoever does any act with the intent to threaten or likely to threaten the unity, integrity, sovereignty, security, or economic security of India or with the intent to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country,––

(a) by using bombs, dynamite or other explosive substance or inflammable substance or firearms or other lethal weapons or poisonous or noxious gases or other chemicals or by any other substance (whether biological, radioactive, nuclear or otherwise) of a hazardous nature or by any other means of whatever nature to cause or likely to cause,—

(i) death of, or injury to, any person or persons; or

(ii) loss of, or damage to, or destruction of, property; or

(iii) disruption of any supplies or services essential to the life of the community in India or in any foreign country; or

(iv) damage to, the monetary stability of India by way of production or smuggling or circulation of counterfeit Indian paper currency, coin or of any other material; or

(v) damage or destruction of any property in India or in a foreign country used or intended to be used for the defence of India or in connection with any other purposes of the Government of India, any State Government or any of their agencies; or

(b) overawes by means of criminal force or the show of criminal force or attempts to do so or causes death of any public functionary or attempts to cause death of any public functionary; or

(c) detains, kidnaps or abducts any person and threatening to kill or injure such person or does any other act in order to compel the Government of India, any State Government or the Government of a foreign country or an international or inter-governmental organisation or any other person to do or abstain from doing any act,
commit a terrorist act.

For the purpose of this sub-section,—

(a) “public functionary” means the constitutional authorities or any other functionary notified in the Official Gazette by the Central Government as public functionary;

(b) “counterfeit Indian currency” means the counterfeit currency as may be declared after examination by an authorised or notified forensic authority that such currency imitates or compromises with the key security features of Indian currency.

Punishment for commission of ‘terrorist act’

• Whoever commits a terrorist act shall,—

1. 1. 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;
   2. 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.