The Bharatiya Nyaya Sanhita, 2023

Preliminary

What do you understand by the term “substantive law”? Is Bharatiya Nyaya Sanhita, 2023, a substantive law?

The entire law may be divided into two parts namely procedural law and substantive law—

(1) The procedural law—The procedural law (or Adjective Law) deals with the enforcement of law that is guided and regulated by the practice and procedural aspects. The procedural laws set forth the rules for moving a case through the courts. They can include rules relating to the venue of the case or the jurisdiction of the court. Procedural laws also involve the legal requirements of issuing of notice and service of process. This law is very important in administration of justice. The following are the examples of procedural law—

The Bharatiya Nagarik Suraksha Sanhita;
The Civil Procedure Code;
The Bharatiya Sakshya Adhiniyam.

(2) The substantive law—Substantive law in criminal jurisprudence means that law which defines offences. Following are the examples of substantive law—

Indian Easements Act;
The Contract Act;
The Partnership Act;
The Bharatiya Nyaya Sanhita;
Transfer of Property Act.

Bharatiya Nyaya Sanhita (BNS)—The BNS is a branch of criminal substantive law. It defines various offences. It is not a law relating to criminal procedure. It defines acts which constitute an offence. It lays down certain principles of penal or criminal law. The BNS has defined following offences. Therefore, it is a branch of criminal substantive law—

Offences against the State.
Offences relating to army, navy and air force.
Offences against public tranquillity.
Offences relating to public servants.
Offences relating to elections.
False evidence.
Offences relating to property.
Offences relating to human body.
Offences relating to coins and government stamps.

The BNS, 2023, also takes into consideration offences relating to public health, safety, documents, trade and property marks, breach of trust etc. It contains general principles relating to criminal law. The law and principles of conspiracy etc. are subject matters of the BNS. Thus, it can be said that Bharatiya Nyaya Sanhita, 2023, is a branch of criminal substantive law.

“Every person shall be liable to punishment within the meaning of the Bharatiya Nyaya Sanhita, 2023, and not otherwise for every act or omission contrary to the provisions thereof which he shall be guilty within India.” Comment whether there are any exceptions to the rule?

Applicability of the BNS—According to section 1 (3) of the Bharatiya Nyaya Sanhita (BNS), 2023, “every person shall be liable to punishment under this Sanhita and not otherwise for every act or omission contrary to the provisions thereof, of which he shall be guilty within India.”

Every person is made liable to punishment, without distinction of nation, rank, caste or creed, provided the offence with which he is charged has been committed in some part of India. A foreigner who enters the Indian territories and, thus, accepts the protection of Indian laws virtually gives an assurance of his fidelity and obedience to them and submits himself to their operation. It is no defence on behalf of a foreigner that he did not know what he was doing was wrong, the act not being an offence in his own country. Though this is no defence, yet it is a matter to be considered in mitigation of punishment. [Esop (1836) 7 C&P 456; Mubarak Ali, (1957) 61 Bom LR 58 SC]

A person was indicted for an unnatural offence committed on board of an East India Ship lying on St. Katherine’s Dock. It was argued that he was a native of Baghdad where his act would not have amounted to an offence, but it was held that, it was not a legal defence.

A foreigner who commits an offence within India is guilty and can be punished as such without any limitation as to his corporeal presence in India at the time. [Mubarak Ali, (1957) 61 Bom LR 58 SC]

EXCEPTIONS TO THE GENERAL RULE

There is no exception in favour of anyone provided under the Bharatiya Nyaya Sanhita. However, the following persons are always exempted from the jurisdiction of criminal courts of every country.

(1) Foreign Sovereigns—The world being composed of distinct sovereignties, possessing equal rights and equal independence whose mutual benefit is promoted by intercourse with each other, and by an interchange of these good offices which humanity dictates. Its wants require, all sovereigns have consented to a relaxation in practice, in cases under certain peculiar circumstances, of that absolute and complete jurisdiction within their respective territories which sovereignty confers. One sovereign being in no respect amenable to another and being bound by obligations of the highest character not to degrade the dignity of his nation, by placing himself or its sovereign rights within the jurisdiction of another, can be supposed to enter a foreign territory only under an express licence or, in the confidence that the immunities belonging to his independent sovereign state, though not expressly stipulated, are reserved by implication, and will be extended to him. The real principle on which the exemption of every sovereign from the jurisdiction of every court has been deduced is that the exercise of such jurisdiction would be incompatible with his regal dignity that is to say, with his absolute independence of every superior authority.

(2) Ambassadors—The immunity of an ambassador from the jurisdiction of the courts of the country to which he is accredited is based upon his being the representative of the independent Sovereign or State which sends him, and which sends him upon the faith of his being admitted to be clothed with the same independence of and superiority to all adverse jurisdiction as the sovereign authority whom he represents would be. He does not own even a temporary allegiance to the Sovereign to whom he is accredited, and he has atleast as great privileges from suits as the Sovereign whom he represents. He is not supposed, even to live within the territory of the Sovereign to whom he was accredited, and if he has done nothing to forfeit, or to waive his privilege, he is for all juridical purposes supposed still to be in his own country. [Magdalena Steam Navigation Company vs Martin, (1859) 2 E&E 94]

If he grossly offends, or makes an ill use of his character, he may be sent home and accused before his master, who is bound either to do justice upon him, or avow himself the accomplice of his crimes. But there is a great dispute among the writers on the laws of nations, whether this exemption of ambassadors extends to all crimes, as well natural and positive; or whether it only extends to such as are mala prohibita, as coming, and not those that are mala in se, as murder, A direct attempt against the life of the Sovereign, ambassador, or one of his suite, would directly be punishable by the State.

(3) Alien enemies—In respect of acts of war, alien enemies cannot be tried by criminal courts. Aliens, who in a hostile manner invade the kingdom, whether their king was at war or peace with ours, and whether they come by themselves or in company with English traitors, cannot be punished as traitors, but shall be dealt with by martial law. If an alien enemy commits a crime unconnected with war, e.g., theft, he would be triable by ordinary criminal courts.

(4) Foreign army—When armies of one State are by consent on the soil of a foreign State, they are exempted from the jurisdiction of the State on whose soil they are.

(5) War ships—Men-of-war of a State in foreign waters are exempt from the jurisdiction of the State within whose territorial jurisdiction they are. The domestic courts, in accordance with principles of international law, will accord to the ship or its crew and its contents, certain immunities. The immunities can, in any case, be waived by the nation to which the public ship belongs.

(6) High officers—Under the Indian Constitution, the President and Governors are exempted from the jurisdiction of courts. According to clause (2) & (3) of Article 361 of the Constitution of India—

(2) No criminal proceedings whatsoever shall be instituted or continued against the President or the Governor of a State, in any court during his term of office.

(3) No process for the arrest or imprisonment of the President, or the Governor of a State, shall issue from any court during his term of office.

Comment on the statement that, “Crime is not a static quantity nor can it be considered in absolute terms.”

Crime—The word crime may be explained as “an act of commission or omission which is baneful to the society in general”. However, not all acts tending to the prejudice of the community are crime, unless they are punishable under the law.

“Crime is an act or default which tends to the prejudice of the community, and forbidden by law on pain of punishment inflicted at the suit of the state.” —Osborn

Crimes not static nor absolute—Law is purposive. It reflects social needs and it is growing in keeping with such needs. What is a crime or, to put it more precisely, what is thought to be a crime is relative to the prevailing standard of justice, and in some measure, to ethical concepts and notions in any particular age of a country. There is no such thing as an absolute crime or crime by itself. An act is a crime with reference to some principle of the law. Legal principles change according to time and place.

The burning of women on the funeral pyres of their husbands or the killing of female infants at birth were applauded in the Eighteenth Century in India as morally courageous acts and were regarded as permissible at law. However, now they have been declared as penal offences, and are looked upon with horror and disgust.

The recognition of a crime, therefore, varies with public opinion of a given society at a given time. There cannot be any rigid or absolute criterion to determine it.

Ideas may change; standards of ethical morality may differ, and with them may differ the recognition of any offence by the legislature within the ambit of its penal laws.

It has, therefore, been rightly said that “crime is not quantity, nor can it be considered in absolute terms. There is actually no such thing as a crime mala in se (a crime that is considered wrong in and of itself) or crime by itself.”

Distinguish between ‘tort’ and ‘crime’. Does every tortious act amount to crime or vice versa?

Tort and crime — Sometimes, the same act may be a tort when looked upon from the standpoint of an individual, and also a crime when looked upon from the standpoint of the society in general; e.g., assault, libel and malicious injury to property are the wrongs of this kind. Still there are certain points of distinction between a tort and a crime which are given below—

(a) A tort is a species of civil wrong which gives rise to civil proceedings to claim compensation for the wrong done.

Criminal proceedings, on the other hand, are meant to punish the criminals for the offence committed.

(b) A tort is a violation of the private rights of an individual.

A crime is a breach of public rights and duties, which affect the society at large. Thus, a crime is an offence against the State, being the representative of the public.

In the case of a crime, even though the victim is an individual, the criminal proceedings against the offender are initiated by the State.

(d) In tort, the wrongdoer has to compensate the injured party. The purpose of awarding compensation to the injured party is to make good the loss suffered by him.

In crime, the purpose of criminal law is to protect the society by preventing the offender from committed further crimes.

There are also cases where a wrong is both criminal and tortious. In such a case, the State prosecutes the wrongdoer and also affords the sufferer an opportunity to claim damages by providing concurrent remedies. Examples of such wrongs are assault, false imprisonment, libel and theft. In such cases, there is not only the violation of a private right of bodily safety, property or reputation, but such violation also constitutes a menace to the safety of the society in general. Thus, in the case of assault, not only the injured can recover damages; the wrongdoer will also be punished by the State for the violation of the legal provisions.

Punishment

What is judicial discretion? Comment on the statement that “there is a wide discretion given to the court in the matter of imposition of imprisonment.”

Judicial discretion—Judicial discretion means the exercise of judgment by a judge or court based on what is fair under the circumstances and guided by the rules and principles of law.

The word “discretion” connotes necessarily an act of a judicial character, and, as used with reference to discretion exercised judicially, it implies the absence of a hard and fast rule. It requires an actual exercise of judgment and a consideration of the facts and circumstances, which are necessary to make a sound, fair, and just determination, and a knowledge of the facts upon which the discretion may properly operate. [Corpus Juris Secundum]

When it is said that something is to be done within the “discretion” of the authorities; that something is to be done according to the rules of reason and justice and not according to the personal opinion; according to law and not humour. It only gives certain latitude or liberty accorded by statute or rules, to a judge as distinguished from a ministerial or administrative official, in adjudicating on matters brought before him. Thus, the judges have to constantly remind themselves that the use of discretion has to be guided by law, and what is fair under the existing circumstances.

Imposition of imprisonment, discretionary for the court—There is a wide discretion given to the court to impose any imprisonment, which may be from one day (or even till the rising of the court) to imprisonment for life and even death sentence. However, at the same time, the judicial discretion, which has been conferred upon the court, has to be exercised in a fair manner, keeping in view the well-established judicial principles, which have been laid down from time to time, the prime consideration being reason and fair play.

Discretion not to be exercised in a fanciful and whimsical manner—Though the question of sentence is a matter of discretion, yet the said discretion cannot be used by a court of law in a fanciful and whimsical manner. Very strong reasons on consideration of the relevant factors have to form the fulcrum for lenient use of the said discretion.

Discretion, when applied to a court of justice, means sound discretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague, and fanciful, but legal and regular. [R vs Wilkes, (1770) 4 Burr 2527]

Court to impose adequate sentence—It is the duty of the court to impose adequate sentence, for one of the purposes of imposition of requisite sentence is protection of the society and a legitimate response to the collective conscience. The paramount principle is that the punishment should be proportionate to the gravity of the offence. It is the answer of law to the social conscience. In a way, it is an obligation to the society which has reposed faith in the court of law to curtail the evil.

Court to exercise the rationalised judicial discretion—While imposing the sentence, it is the court’s accountability to remind itself about its role and the reverence for rule of law. It must evince the rationalised judicial discretion and not an individual perception or a moral propensity. If the proper sentence is not awarded, the fundamental grammar of sentencing is guillotined. Law cannot tolerate it; society does not withstand it; and sanctity of conscience abhors it. The old saying “the law can hunt one’s past” cannot be allowed to be buried in an indecent manner and the rainbow of mercy, for no fathomable reason, should be allowed to rule. True it is, it has its own room, but, in all circumstances, it cannot be allowed to occupy the whole accommodation.

The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodised by analogy, disciplined by system, and subordinated to the primordial necessity of order in social life. [Benjamin Cardozo: The Nature of the Judicial Process]

Adoption of the corrective machinery or deterrence based on factual matrix—In operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. By deft modulation, sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration.

Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed, etc. [Shailesh Jasvantbhai vs State of Gujarat, (2006) 2 SCC 359]

Write a short note on the ‘presumption of innocence of the accused.’

Presumption of innocence of the accused—The law presumes a person is innocent until his guilt is proved. The onus of proving everything essential to the establishment of the charge against the accused lies upon the prosecution. Every man is to be regarded as legally innocent until the contrary be proved. Criminality is therefore never to be presumed. The evidence must be such as to exclude, to a moral certainty, every reasonable doubt of the guilt of accused. If there be any reasonable doubt of the guilt of the accused, he is entitled as of right, to be acquitted.

The more heinous and improbable a crime is the greater is the force of the evidence required to overcome the presumption of innocence. Where the facts found proved in a case are perfectly consistent, either with the innocence or guilt of the accused, the presumption of innocence should prevail. The presumption of innocence in criminal cases signifies no more than that if the commission of a crime is directly in issue, it must be proved beyond reasonable doubt. The proof of guilt must depend on positive affirmation. It cannot be inferred from mere absence of explanation.

General Exceptions

“In law a man’s motives are irrelevant”. Comment.

Motive—Motive is not to be confused with intention. If a man knows that a certain consequence will follow from his act, it must be presumed in law that he intended that consequence to take place although he may have had some quite different ulterior motive for performing the act. The motive for an act is not a sufficient test to determine its criminal character. By a motive is meant anything that can contribute to, give birth to, or even to prevent, any kind of action.

Motive as clue to the intention—Motive may serve as a clue to the intention, but although the motive be pure, the act done under it may be criminal. Purity of motive does not purge an act of its criminal character. An act which is unlawful cannot, in law, be excused on the ground that it was committed from a good motive.

Motive, though not a sine qua non for bringing the offence home to the accused, is relevant and important on the question of intention.

Though the prosecution is not bound to prove motive for the crime, absence of any motive is a factor which may be considered in determining the guilt of the accused. But if the actual evidence as to the commission of the crime is believed, then no question of motive remains to be established. It is not the bounden duty of the prosecution to prove motive with which a certain offence has been committed. It is sufficient if the prosecution proves by clear and reliable evidence that certain persons committed the offence, whatever the motives may be which induced them to commit that offence.

When the occurrence was spoken to by eye witness and the same was supported by Medical Report, it will not be necessary to investigate the motive behind such commission of offence. [Bastullah vs State of UP, AIR 1997 SC 3946]

The question of motive is not material where there is direct evidence of the acts of the accused and the acts themselves are sufficient to disclose the intention of the actor. But in case of circumstantial evidence, absence of motive is a factor in favour of the accused.

When will a communication not amount to an offence even though it causes some harm to the person to whom it is made?

Communication made in good faith [S 31]—Section 31 of the BNS provides that “no communication made in good faith is an offence by reason of any harm to the person to whom it is made, if it is made for the benefit of that person.”

A, a surgeon, in good faith, communicates to a patient his opinion that he cannot live. The patient dies in consequence of the shock. A has committed no offence, though he knew it to be likely that the communication might cause the patient’s death.

Thus, we see that section 31 aims at the protection of a person who communicates in good faith for the benefit of others. If the communication, though well intentioned, results in harm to the recipient, the person making such communication will not he held criminally responsible, provided the intent was honest and aimed at benefiting the person.

Good faith—Good faith implies upright mental attitude and clear conscience. It contemplates an honest effort to ascertain the facts upon which the exercise of the power must rest. It is an honest determination from ascertained facts. Good faith precludes pretence, deceit or lack of fairness and uprightness and precludes wanton or willful negligence.

Abetment

What will be the liability of abettor when one act is abetted and but different act has been done?

Liability of abettor when one act abetted and different act done [S 51]—According to section 51 of the Bharatiya Nyaya Sanhita, 2023, when an act is abetted and a different act is done, the abettor is liable for the act done, in the same manner and to the same extent as if he had directly abetted it. However, it is essential that the act should have been a probable consequence of the abetment. It is further required that the act should have been committed under the influence of the instigation, or with the aid or in pursuance of the conspiracy, which constituted the abetment.

Illustrations

(a) A instigates a child to put poison into the food of Z, and gives him poison for that purpose. The child, in consequence of the instigation, by mistake puts the poison into the food of Y, which is by the side of that of Z. Here, if the child was acting under the influence of A’s instigation, and the act done was under the circumstances a probable consequence of the abetment, A is liable in the same manner and to the same extent as if he had instigated the child to put the poison into the food of Y.

(b) A instigates B to burn Z’s house; B sets fire to the house and at the same time commits theft of property there. A, though guilty of abetting the burning of the house, is not guilty of abetting the theft; for the theft was a distinct act, and not a probable consequence of the burning.

(c) A instigates B and C to break into an inhabited house at midnight for the purpose of robbery, and provides them with arms for that purpose. B and C break into the house, and being resisted by Z, one of the inmates, murder Z. Here, if that murder was the probable consequence of the abetment, A is liable to the punishment provided for murder.

When will the abettor be liable to cumulative punishment for act abetted and for act done?

Abettor when liable to cumulative punishment for act abetted and for act done [S 52]—If the act for which the abettor is liable under section 51 (see question number 1 above) is committed in addition to the act abetted, and constitute a distinct offence, the abettor is liable to punishment for each of the offences.

Illustration

A instigates B to resist by force a distress made by a public servant. B, in consequence, resists that distress. In offering the resistance, B voluntarily causes grievous hurt to the officer executing the distress. As B has committed both the offence of resisting the distress, and the offence of voluntarily causing grievous hurt, B is liable to punishment for both these offences; and, if A knew that B was likely voluntarily to cause grievous hurt in resisting the distress, A will also be liable to punishment for each of the offences.

In giving judgment in a case, the judge will set out the facts of the case, state the law applicable to the facts and then provide his decision. It is only the ratio decidendi (the legal reasoning or ground for the judicial decision), which is binding on later courts under the system of judicial precedent.

Offences against Women and Children

Write short note on persistent vegetative state. What is the punishment for causing death or resulting in persistent vegetative state of victim of the offence of rape?

Persistent Vegetative State—The term persistent vegetative state describes patients who, after recovery from coma, return to a state of wakefulness without cognition. A persistent vegetative state is a form of eyes-open permanent unconsciousness with loss of cognitive function and awareness of the environment but preservation of sleep-wake cycles and vegetative function. Survival is indefinite with good nursing care.

An individual in a vegetative state may open eyes, experience regular sleep-wake cycles, and exhibit basic reflexes (e.g., blinking in response to loud noises or withdrawing their hand when it is squeezed). They also have a regulated heartbeat and can breathe without assistance. However, individuals in a persistent vegetative state will not be able to follow an object with the eyes, respond to voices, or show emotions.

Punishment for causing death or resulting in persistent vegetative state of victim [S 66]—Section 66 of the BNS, 2023, penalizes a person who commits an offence of rape and in the course of such commission inflicts an injury, which causes the death of the woman or causes the woman to be in a persistent vegetative state. The person held guilty of such offence becomes liable to be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, or with death.

Criminal Force and Assault against Women

Write in brief about the offence of assault or use of criminal force to woman with intent to disrobe.

Assault or use of criminal force to woman with intent to disrobe [S 76]—Section 76 of the BNS, 2023, deals with the offence of assault or using criminal force to woman with intent to disrobe. The offence consists of a person assaulting or using criminal force or abets such act with the intention of disrobing or compelling her to be naked.

The person assaualting or using criminal force with such intention has been made punishable with imprisonment of either description for a term which shall not be less than three years but which may extend to seven years, and shall also be liable to fine.

Assault against women is a matter of great concern constituting a grave violation of their basic human rights. Any kind of violence or crime against them leaves a deep impact on their lives affecting their day-to-day activities and potential to grow. Such incidents are required to be managed so that every woman and girl in this world can live with honor, respect, liberty, peace, and dignity. In Indian law, various legal provisions protect women and girls from any sort of violence or crime against them.

Offences Relating to Marriage

Explain the concept of cruelty in relation to dowry death.

Cruelty in relation to dowry death [S 86]—According to section 86 of the BNS, 2023, “cruelty” in relation to dowry death means—

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

Unlawful demand for any property or valuable security—Clause (b) of section 86, defining the term “cruelty” in relation to dowry death provides that such harassment should have been with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security.

The courts have taken the view that where the husband had demanded a specific sum from his father-in-law and upon not being given, harassed and tortured the wife and after some days she died, such cases would clearly fall within the definition of “dowry”.

In Satvir Singh vs State of Punjab, (2001) 8 SCC 633, Hon’ble Supreme Court has held that the word “dowry” should be any property or valuable security given or agreed to be given in connection with the marriage. The customary payments in connection with birth of a child or other ceremonies are not covered within the ambit of the word “dowry”.

In Madhu Sudan Malhotra vs Kishore Chand Bhandari, 1988 Supp. SCC 424, it has been held that furnishing of a list of ornaments and other household articles such as refrigerator, furniture and electrical appliances, etc. to the parents or guardians of the bride, at the time of settlement of the marriage, prima facie amounts to demand of dowry.

Demand to meet some emergency not dowry—In Appasaheb vs State of Maharashtra, (2007) 9 SCC 721, the court held that a demand for money for defraying the expenses of manure made to a young wife who in turn made the same demand to her father would be outside the definition of dowry. A demand for money on account of some financial stringency or for meeting some urgent domestic expenses or for purchasing manure cannot be termed as a demand for dowry as the said word is normally understood.

Proximate link between the acts of cruelty along with the demand of dowry and the death of the victim—There must be existence of proximate link between the acts of cruelty along with the demand of dowry and the death of the victim. For want of any specific period, the concept of reasonable period would be applicable. Thus, the cruelty, harassment and demand of dowry should not be so ancient, where after, the couple and the family members have lived happily and that it would result in abuse of the said protection. The cruelty and harassment by the husband or any relative should be directly relatable to or in connection with, any demand for dowry.

Harassment or cruelty soon before her death—It is not enough that harassment or cruelty was caused to the woman with a demand for dowry at some time, if section 304B of the Penal Code (see now section 80 of the BNS, 2023) is to be invoked. But it should have happened “soon before her death”. The said phrase, no doubt, is an elastic expression and can refer to a period either immediately before her death or within a few days or even a few weeks before it. But the proximity to her death is the pivot indicated by that expression. The legislative object in providing such a radius of time by employing the words “soon before her death” is to emphasise the idea that her death should, in all probabilities, have been the aftermath of such cruelty or harassment. In other words, there should be a perceptible nexus between her death and the dowry-related harassment or cruelty inflicted on her.

If the interval elapsed between the infliction of such harassment or cruelty and her death is wide, the court would be in a position to gauge that in all probabilities, the harassment or cruelty would not have been the immediate cause of her death. It is hence for the court to decide, on the facts and circumstances of each case, whether the said interval in that particular case was sufficient to snuff its cord from the concept “soon before her death”. [Vide Mahesh Kumar vs State of Haryana, Cri Appeal No. 1042 of 2012, Supreme Court of India Judgment Dated 7 August 2019]

Discuss the presumption as to the dowry death.

Presumption as to the dowry death [S 118 Bharatiya Sakshya Adhiniyam, 2023]—Section 118 of the Bharatiya Sakshya Adhiniyam permits a presumption to be drawn against the accused in regard to dowry, provided the prosecution established that, “soon before” her death, the woman was subjected to cruelty or harassment.

Essentials for raising presumption—In cases of dowry death, it is a condition precedent for the raising of presumption that the deceased married woman was subjected to cruelty or harassment for and in connection with the demand for dowry soon before her death. [Bhoora Singh vs State, 1993 Cr LJ 2636 (All)]

It is clear that for drawing a presumption under section 118 of the BSA—

there should be the death of a woman otherwise than in normal circumstances;
the death should be within 7 years of marriage; and
the prosecution should have shown that “soon before” her death, she was subjected to cruelty or harassment in connection with any demand for dowry by persons accused of having committed the offence.

Unless and until the prosecution establishes these preliminary facts, it is not open to the courts to draw a presumption against the accused invoking section 118 of the BSA.

Soon before—Prosecution is obliged to show that “soon before” the occurrence, there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by prosecution. “Soon before” is a relative term. It would depend upon circumstances of each case. No straitjacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period. That brings in the importance of a proximity test, both for the proof of an offence of dowry death as well as for raising a presumption under section 113B of the Evidence Act (corresponding to section 118 of the BSA). [Kamesh Panjiyar Alias Kamlesh Panjiyar vs State of Bihar, (2005) 2 SCC 388]

Nexus between the demand of dowry, cruelty or harassment—Thus, there must be a nexus between the demand of dowry, cruelty or harassment, based upon such demand and the date of death. The test of proximity will have to be applied. However, it is not a rigid test. It depends on the facts and circumstances of each case and calls for a pragmatic and sensitive approach of the court within the confines of law. [Vide: State of MP vs Jogendra, (2022) 2 SCR 295]

In the case of Arvind Kumar vs State of MP, AIR 2007 SC 2674, the accused constantly harassed, humiliated and tortured his wife for bringing insufficient dowry and persistently demanded for bringing more of precious articles. Under the circumstances, his wife committed suicide by setting her on fire after pouring kerosene oil on the body. Though the accused was present in the house, he did not attempt to save her life or calling a doctor. It was his elder brother, who came out from another house and called the doctor. There were 100 percent burn injuries on the body of the deceased. Taking into account the fact and circumstances of the case, the court held that the presumption contemplated under section 113A of the Evidence Act (corresponding to section 117 of the BSA) was clearly attracted. As the accused did not lead any evidence to rebut the said presumption, he was held guilty for abetment of suicide and under section 4 of the Dowry Prohibition Act.

Offences against the Human Body

Give a brief description of the organised crimes within the meaning of the Maharashtra Control of Organised Crime Act (MCOCA), 1999. What was the reason for enacting MCOCA?

Organised crimes under MCOCA—The Maharashtra Control of Organised Crime Act, 1999, was enacted by the State of Maharashtra to combat organised crimes and the acts of terrorism.

Clause (e) of sub-section (1) of the MCOCA defines the expression “organised crime” to mean any continuing unlawful activity by an individual, singly or jointly, either as a member of an organised crime syndicate or on behalf of such syndicate, by use of violence or threat of violence or intimidation or coercion, or other unlawful means, with the objective of gaining pecuniary benefits, or gaining undue economic or other advantage for himself or any other person or promoting insurgency.

Organised crime syndicate—The term “organised crime syndicate” is defined to mean a group of two or more persons who, acting either singly or collectively, as a syndicate or gang indulge in activities of organised crime.

Reasons for enacting the said MCOCA—The Maharashtra Control of Organised Crime Act, 1999 (MCOCA), was enacted to combat organised crime, which was on an increasing verge in our country. It deals with prevention and control of criminal activity by organised criminal gangs in India.

The Statement of Objects and Reasons for enacting the said MCOCA reads as under:

“Organised crime has for quite some years now come up as a very serious threat to our society. It knows no national boundaries and is fueled by illegal wealth generated by contract killings, extortion, smuggling in contrabands, illegal trade in narcotics, kidnapping for ransom, collection of protection money and money laundering, etc. The illegal wealth and black money generated by the organised crime is very huge and has serious adverse effect on our economy. It is seen that the organised criminal syndicates make a common cause with terrorist gangs and foster narco-terrorism which extend beyond the national boundaries. There is reason to believe that organised criminal gangs are operating in the State, and thus, there is immediate need to curb their activities.”

“It is also noticed that the organised criminals make extensive use of wire and oral communications in their criminal activities. The interception of such communications to obtain evidence of the commission of crimes or to prevent their commission is an indispensable aid to law enforcement and the administration of justice.”

“The existing legal framework i.e. the penal and procedural laws and the adjudicatory system are found to be rather inadequate to curb or control the menace of organised crime. Government has, therefore, decided to enact a special law with stringent and deterrent provisions including in certain circumstances power to intercept wire, electronic or oral communication to control the menace of the organised crime.”

According to its preamble, the said Act was enacted to make specific provisions for prevention and control of, and for coping with, criminal activity by organised crime syndicate or gang and for matters connected therewith or incidental thereto.

Give an overview of the Gujarat Control of Terrorism Act, 2015.

The Gujarat Control of Terrorism Act, 2015—The Gujarat Control of Terrorism Act, 2015, as its long title indicates, is “an Act to make special provisions for the prevention and control of terrorist acts and for coping with criminal activities by organised crime syndicates and for the matters connected therewith or incidental there to.”

Reasons behind enactment of the Act—The statement of objects and reasons contains the reasons, which constitute the foundation for the legislature to step in—

(a) First, organised crime which is in existence for some years poses a serious threat to society;

(b) Secondly, organised crime is not confined by national boundaries;

(c) Thirdly, organised crime is fuelled by illegal wealth generated by contract killing, extortion, smuggling and contraband, illegal trade in narcotics, kidnapping for ransom, collection of protection money and money laundering, and other activities;

(d) Fourthly, the illegal wealth and black money generated by organised crime pose adverse effects on the economy;

(e) Fifthly, organised crime syndicates make common cause with terrorists fostering narco-terrorism which extends beyond national boundaries;

(f) Sixthly, the existing legal framework in terms of penal and procedural laws and the adjudicatory system were found inadequate to curb and control organised crime; and

(g) Seventhly, the special law was enacted with ‘stringent and deterrent provisions’ including in certain circumstances, the power to intercept wire, electronic or oral communication.

Organised crime [Section 2 (1) (e)]—The expression ‘organised crime’ is defined with reference to a continuing unlawful activity. The ingredients of an organised crime are—

(a) The existence of a continuing unlawful activity;

(b) Engagement in the above activity by an individual;

(c) The individual may be acting singly or jointly either as a member of an organised crime syndicate or on behalf of such a syndicate;

(d) The use of violence or its threat or intimidation or coercion or other unlawful means; and

(e) The object being to gain pecuniary benefits or undue economic or other advantage either for the person undertaking the activity or any other person or for promoting insurgency.

The above definition of organised crime, as its elements indicate, incorporates two other concepts namely, a ‘‘continuing unlawful activity’’ and an ‘‘organised crime syndicate’’. Hence, it becomes necessary to understand the ambit of both those expressions.

Continuing unlawful activity [Section 2 (1) (c)]—The ingredients of a ‘‘continuing unlawful activity’’ are—

(a) The activity must have been prohibited by law for the time being in force;

(b) The activity must be a cognizable act punishable with imprisonment of three years or more;

(c) The activity may be undertaken either singly or jointly as a member of an organised crime syndicate or on behalf of such a syndicate;

(d) More than one charge-sheet should have been filed in respect of the activity before a competent court within the preceding period of ten years; and

(e) The court should have taken cognizance of the offence.

Organised crime syndicate [Section 2 (1) (f)]—The elements of the definition of “organised crime syndicate” are—

(a) A group of two or more persons;

(b) Who act singly or collectively, as a syndicate or gang; and

Essentials for charging a person—In order to charging a person of organised crime or being a member of organised crime syndicate, it would be necessary to prove that the persons concerned have involved in—

(a) an activity;

(b) which is prohibited by law;

(d) undertaken either singly or jointly;

(e) as a member of organised crime syndicate i.e. acting as a syndicate or a gang, or on behalf of such syndicate;

(f) in respect of similar activities (in the past) more than one charge-sheet have been filed in competent court within the preceding period of ten years, and the court has taken cognizance of such offence;

(g) the activity is undertaken by violence, or threat of violence, or intimidation or coercion or other unlawful means;

(h) with the object of gaining pecuniary benefits or gaining undue or other advantage or himself or any other person; or

(i) with the object of promoting insurgency. [State of Gujarat vs Sandip Omprakash Gupta, Criminal Appeal No. 2291 of 2022 arising out of SLP (Cri) No. 6101 of 202]

Explain the offence of voluntarily causing hurt or grievous hurt to deter public servant from his duty.

Section 121 of the Bharatiya Nyaya Sanhita (BNS), 2023, deals with voluntarily causing hurt or grievous hurt to deter public servant from his duty.

Voluntarily causing hurt to deter public servant from his duty [S 121 (1)]—Whoever voluntarily causes hurt to any person being a public servant in the discharge of his duty as such public servant, or with intent to prevent or deter that person or any other public servant from discharging his duty as such public servant or in consequence of anything done or attempted to be done by that person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both.

Voluntarily causing grievous hurt to deter public servant from his duty [S 121 (2)]—Whoever voluntarily causes grievous hurt to any person being a public servant in the discharge of his duty as such public servant, or with intent to prevent or deter that person or any other public servant from discharging his duty as such public servant or in consequence of anything done or attempted to be done by that person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to ten years, and shall also be liable to fine.

Explain the offence of kidnapping or abducting in order to murder or for ransom.

Kidnapping or abducting in order to murder or for ransom [S 140]—Section 140 of the BNS, 2023, makes it penal for a person who kidnaps or abducts any person in order that such person may be murdered or may be so disposed of as to be put in danger of being murdered. The person held guilty of such offence becomes liable to be be punished with imprisonment for life or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.

(a) A kidnaps Z from India, intending or knowing it to be likely that Z may be sacrificed to an idol. A has committed the offence defined in this section.

(b) A forcibly carries or entices B away from his home in order that B may be murdered. A has committed the offence defined in this section.

Essential ingredients—The important ingredients of section 140 of the BNS, 2023, are that, there is the abduction or kidnapping, as the case may be. Thereafter, there is a threat to the kidnapped/abducted person that, if the demand for ransom is not met, then the victim is likely to be put to death. In the event, the death is caused, the offence of section 140 is complete.

There are three stages in this section—

(a) One is the kidnapping or abduction;

(b) Second is threat of death coupled with the demand of money; and lastly

The necessary ingredients, which the prosecution must prove, beyond a reasonable doubt, before the court are not only an act of kidnapping or abduction. The prosecution has also to prove the demand of ransom, coupled with the threat to life of a person who has been kidnapped or abducted, must be there.

(2) Whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction, and threatens to cause death or hurt to such person, or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt, or causes hurt or death to such person in order to compel the government or any foreign State or international inter-governmental organisation or any other person to do or abstain from doing any act or to pay a ransom, shall be punishable with death, or imprisonment for life, and shall also be liable to fine.

(3) Whoever kidnaps or abducts any person with intent to cause that person to be secretly and wrongfully confined, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

(4) Whoever kidnaps or abducts any person in order that such person may be subjected, or may be so disposed of as to be put in danger of being subjected to grievous hurt, or slavery, or to the unnatural lust of any person, or knowing it to be likely that such person will be so subjected or disposed of, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

Offences Relating to Elections

What is booth capturing?

Booth capturing—Booth capturing is fraudulently interfering with the process of an election in which members of a party occupy a polling place, excluding and voting in place of those people who are registered to vote there. In the case of booth capturing, the supporters or hired musclemen of party or a candidate gain physical control of a polling booth. They cast false votes by threatening and preventing genuine voters from reaching the polling booth.

At a polling center, members of a certain political party will “capture” a booth, by filling it with a stream of party loyalists. Typically, these loyalists are not legally registered to vote at that particular booth, and may vote several times for their party member. By keeping the booth occupied, votes for an opposing party are kept lower. The people who have the legitimate right to vote may not be able to wait for an extended time to cast their vote, or they may be so intimidated by fierce seeming mobs capturing a booth that they simply do not vote.

The practice of booth capturing began to be widespread in India during the 1970s and 1980s. At first, it tended to occur in northern parts of India, and then spread to other parts of the country. By 1989, the Indian government, sickened by the increasing rate of suppression tactics, passed laws that made booth capturing a criminal offence. In addition, the government enacted laws that allow the government to not count polling stations where booth capturing occurred, thus rendering the practice much less effective.

False Evidence and Offences against Public Justice

Is there any difference between Indian and English Law in respect of giving false evidence?

Distinction—The English law differs from Indian law in respect of giving false evidence in the following respects—

(a) The English Law requires that the false statement must have reference to some judicial proceeding and the false evidence is given before a competent tribunal. This is not so in the Indian Law, and the distinction only exists in reference to the degree of punishment imposed.

(b) Under the English Law, perjury must be proved by two witnesses, or by one witness with proof of other material and relevant facts, confirming his testimony. No particular number of witnesses is needed within the meaning of the Bharatiya Nyaya Sanhita (BNS), 2023.

(c) Under the English Law, the matter sworn to must be material to the cause pending in the court. However, according to the BNS, 2023, it is not necessary that the statement should be material.

(d) An oath, or an affirmation rendered equivalent to it by law, is an essential element of the offence under the English Law. In India, an oath is merely one of the forms to bind a party to speak the truth. Even if an oath is improperly administered by an incompetent person, the offence would be committed, if the party giving the false statement were bound by an express provision of law to state the truth.

What is the offence of causing disappearance of evidence of offence or giving false information to screen offender?

Causing disappearance of evidence of offence, or giving false information to screen offender [S 238]—In view of section 238 of the Bharatiya Nyaya Sanhita, 2023, a person is said to commit the offence of causing disappearance of evidence of offence, or giving false information to screen offender, if he knowingly or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear.

Section 238 further provides that such disappearance of evidence should have been caused—

(a) with the intention of screening the offender from legal punishment; or

(b) with that intention gives any information respecting the offence which he knows or believes to be false.

A, knowing that B has murdered Z, assists B to hide the body with the intention of screening B from punishment. A is liable to imprisonment of either description for seven years, and also to fine.

Essential ingredients—The ingredients of offence under section 238 are—

(i) that an offence has been committed;

(ii) that the accused knew or had reason to believe the commission of such an offence;

(iii) that with such knowledge or belief he—

(a) caused any evidence of the commission of that offence to disappear; or

(b) gave any information relating to that offence which he then knew or believed to be false.

(iv) that he did so as aforesaid with the intention of screening the offender from legal punishment.

Intention to screen the offender must be the primary and sole object—What section 238 requires is that the accused must have had the intention of screening the offender. To put it differently, the intention to screen the offender, must be the primary and sole object of the accused. The fact that the concealment was likely to have that effect is not sufficient, for section 238 speaks of intention as distinct from a mere likelihood.

There must be on record cogent evidence to prove that the accused knew or had information sufficient to lead him to believe that the offence had been committed and that the accused has caused the evidence to disappear in order to screen the offender, known or unknown. [Sukhram vs State of Maharashtra, (2007) INSC 836]

Punishment—The person causing disappearance of evidence of offence, or giving false information to screen offender is made punishable as following—

(a) if the offence which he knows or believes to have been committed is punishable with death, be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine;

(b) if the offence is punishable with imprisonment for life, or with imprisonment which may extend to ten years, be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine;

(c) if the offence is punishable with imprisonment for any term not extending to ten years, be punished with imprisonment of the description provided for the offence, for a term which may extend to one-fourth part of the longest term of the imprisonment provided for the offence, or with fine, or with both.

Offences against Public Health, Safety, Convenience, Decency and Morals

Write short notes on the following— (a) Adulteration of food or drink intended for sale; (b) Sale of noxious food or drink.

Enjoyment of life and its attainment, including right to life and human dignity encompasses, within its ambit availability of articles of food, without insecticides or pesticides residues, veterinary drugs residues, antibiotic residues, solvent residues, etc. However, the fact remains, many of the food articles like rice, vegetables, meat, fish, milk, fruits available in the market contain insecticides or pesticides residues, beyond the tolerable limits, causing serious health hazards. We notice, fruit based soft drinks available in various fruit stalls, contain such pesticides residues in alarming proportion, but no attention is made to examine its contents. Children and infants are uniquely susceptible to the effects of pesticides because of their physiological immaturity, greater exposure to soft drinks, fruit based or otherwise. [Centre for Public Interest Litigation vs UOI, WP (C) No. 681 of 2004, Supreme Court of India Judgment Dated 22 October 2013]

Adulteration of food or drink intended for sale [S 274]—Section 274 of the BNS, 2023, penalises a person who adulterates any article of food or drink, to make such article noxious as food or drink. The person involved in such adulteration should be intending to sell such article as food or drink; or knowing it to be likely that the same will be sold as food or drink. The person guilty of such adulteration makes him liable to be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to five thousand rupees, or with both.

Sale of noxious food or drink [S 275]—Section 275 of the BNS, 2023, penalizes a person who sells, or offers or exposes for sale, as food or drink, any article which has been rendered or has become noxious, or is in a state unfit for food or drink. The person selling, offering, or exposing for sale as such should be knowing or having reason to believe that the same is noxious as food or drink. The person engaged in the sale of noxious food or drink becomes liable to be punished with imprisonment of either description for a term, which may extend to six months, or with fine, which may extend to five thousand rupees, or with both.

Section 275 of the BNS applies when a person sells or, offers or exposes for sale any article of food or drink, which has been rendered noxious or has become unfit for food or drink. This section incorporates requirements of knowledge or reasonable belief that the food or drink sold or offered for sale is noxious.

Any food article, which is hazardous or injurious to public health, is a potential danger to the fundamental right to life guaranteed under Article 21 of the Constitution of India. A paramount duty is cast on the States and its authorities to achieve an appropriate level of protection to human life and health, which is a fundamental right, guaranteed to the citizens under Article 21 read with Article 47 of the Constitution of India.

Write short note on the offence of making atmosphere noxious to health.

Human activities have an adverse effect on the environment by polluting the water we drink, the air we breathe, and the soil in which plants grow. Although the industrial revolution has a great success in terms of technology, society, and the provision of multiple services, it has also introduced the production of huge quantities of pollutants emitted into the air that are harmful to human health. Without any doubt, the global environmental pollution is considered an international public health issue with multiple facets. Social, economic, and legislative concerns and lifestyle habits are related to this major problem. Keeping this in view, the Parliament of India has made it penal for a person making atmosphere noxious to health.

Making atmosphere noxious to health [S 280]—According to section 280 of the BNS, 2023, a person is said to make atmosphere noxious to health, where he voluntarily vitiates the atmosphere in any place so as to make it noxious—

to the health of persons in general dwelling; or
carrying on business in the neighbourhood; or
passing along a public way.

Noxious to health—The expression “noxious to health” refers to something harmful or injurious, concerning human health or the environment. Criminal and civil statutes may prohibit the use or possession of noxious substances or materials.

Toxic, or hazardous, air pollutants are substances that cause or are suspected of causing cancer, birth defects, or other serious harms. They can be gases, such as hydrogen chloride, benzene and toluene or compounds and metals such as asbestos, cadmium, mercury and chromium. People inhale many of these pollutants in the air where they live. Some hazardous pollutants settle into the dirt that children play in and may put in their mouths.

Punishment—The person making atmosphere noxious to health has been made punishable with fine which may extend to one thousand rupees.

Offences Relating to Religion

Explain the offence of uttering words with deliberate intent to wound religious feelings of any person.

Uttering words with deliberate intent to wound religious feelings of any person [S 302]—Section 302 of the BNS, 2023, deals with the offence of uttering words with deliberate intent to wound religious feelings of any person.

Essential ingredients—In order to hold a person liable under section 302 of the BNS, the following ingredients must be established—

the accused uttered any word or made any sound in the hearing of, or made any gesture in the presence of that person or placed an object in the sight of the person;
the accused did so intentionally and deliberately; and
his intention was to wound the religious feelings of any other persons.

Deliberate intention of wounding religious feelings—The essence of the offence consists in the “deliberate intention” of wounding the religious feelings of other persons. A mere knowledge of the likelihood that the religious feeling of other persons may be wounded would not suffice nor would a mere intention to wound such feelings suffice unless that intention was deliberate. The authors of the Penal Code who framed the section (section 298 of the Indian Penal Code) observed—

“We wish to allow all fair latitude to religious discussion, and at the same time to prevent the professors of any religion from offering, under the pretext of such discussion, intentional insults to what is held sacred by others…. A warm expression dropped in the heat of controversy, or an argument urged by a person, not for the purpose of insulting and annoying the professors of a different creed, but in good faith for the purpose of vindicating his own, will not fall under the definition contained in this clause.” [Narayan Das vs State, AIR 1952 ORI 149]

A man is free to speak and teach what he pleases as to religious matters, though not as to morals. He is free to teach what he likes as to religious matters even if it is unbelief. However, when we come to consider whether he has exceeded the limits, we must not neglect to consider the place where he speaks, and the persons to whom he speaks. A man is not free in a public place where passers-by who might not willingly go to listen to him knowing what he was going to say might accidentally hear his words, or where young people might be present. A man is not free in such places to use coarse ridicule on subjects, which are sacred to most people in the country. [Rex vs Boulter, (1908) 72 J P 188]

Offences against Property

When a clerk or servant is said to commit theft of property in possession of master?

Theft by clerk or servant of property in possession of master [S 306]—Section 306 of the BNS defines “theft by clerk or servant of the property in possession of master or employer. In order to make a case under this section, the accused must be a clerk or servant and employed in such capacity by the person in whose possession the stolen property was. A servant is a person who acts under the direct control and supervision of another and who is bound to obey all reasonable orders given to him in the course of his work and duties.

Punishment—The clerk or servant found guilty of theft of property in possession of master becomes liable to be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

Essential ingredients—From the above provision of section 306 of the BNS, 2023, the following three ingredients are discernible—

(a) the accused was employed in the capacity of clerk or servant;

(b) he committed theft in respect of the alleged property;

Offences Relating to Documents and Property Marks

When will a person be said to have committed the offence of selling goods marked with a counterfeit property mark?

Selling goods marked with a counterfeit property mark [S 349]—Section 349 of the BNS, 2023, punishes a person who sells, or exposes, or has in possession for sale, any goods or things with a counterfeit property mark affixed to or impressed upon the same or upon any case, package or other receptacle in which such goods are contained. Such person becomes liable to be punished with imprisonment of either description for a term, which may extend to one year, or with fine, or with both.

Exceptions—This section 349 also contains the following exceptions, where such person as above will not be held guilty. He will have to prove that—

(a) having taken all reasonable precautions against committing an offence against this section, he had at the time of the commission of the alleged offence no reason to suspect the genuineness of the mark; and

(b) that, on demand made by or on behalf of the prosecutor, he gave all the information in his power with respect to the persons from whom he obtained such goods or things; or

Counterfeit—A counterfeit is strictly an exact imitation. However, for purposes of the BNS, it is not essential that imitations should be exact. A thing is not ordinarily said to be counterfeit, unless it bears on the face of it the semblance of validity and is such as to deceive the average person on ordinary observation.