Criminal law: Bharatiya Nyaya Sanhita

In short

The Bharatiya Nyaya Sanhita, 2023 (BNS) is India's substantive criminal code — it defines offences and prescribes punishments. It came into force on 1 July 2024 and replaced the Indian Penal Code, 1860; offences committed before that date are still tried under the IPC, so both codes run in parallel for years. The BNS has 358 sections in 20 chapters (against the IPC's 511 sections in 23 chapters), adds community service as a punishment, creates new offences (organised crime, terrorist act, mob lynching, snatching, deceitful sexual intercourse on false promise of marriage) and deletes some (adultery, Section 377, attempted suicide, thug, unlawful assembly of five under old Section 141 retained but renumbered). It is examined in LLB criminal law papers, the CLAT PG, AIBE, judicial services (prelims and mains), and assessed in interviews for litigation chambers, legal process outsourcing, compliance and police/prosecution services.

Explained

Scheme, structure and transition

• Enacted as Act 45 of 2023, notified with BNSS (Act 46) and Bharatiya Sakshya Adhiniyam (Act 47); all three effective 1 July 2024.
• Extent (s.1): applies to the whole of India; extra-territorial reach over any citizen anywhere, any person on an Indian-registered ship or aircraft, and any person committing an offence targeting a computer resource located in India.
• Chapter order rearranged: offences against women and children moved up to Chapter V (ss.63–99, earlier scattered); offences affecting the human body in Chapter VI (ss.100–146), which also houses organised crime and terrorism (ss.111–113); offences against the State in Chapter VII (ss.147–158).
• Transition: a repeal-and-savings provision keeps the IPC alive for pre-1-July-2024 offences; date of the act, not of the FIR, decides which code applies.
• Numbering to memorise: murder 103, culpable homicide not amounting to murder 105, attempt to murder 109, grievous hurt 117, theft 303, robbery 309, cheating 318, criminal breach of trust 316, defamation 356, rape 63/64, criminal conspiracy 61, abetment 45–60, kidnapping 137, extortion 308, mischief 324, criminal trespass 329, forgery 336, dowry death 80, cruelty by husband 85.

Elements of crime, intention and liability

• Actus non facit reum nisi mens sit rea — an act is not criminal unless accompanied by a guilty mind. Crime = *actus reus* (prohibited act or omission) + *mens rea* (intention, knowledge, rashness or negligence) + absence of a general exception.
• Grades of mens rea in statutory words: "intentionally/voluntarily" (s.3 read with the definition of *voluntarily*), "knowingly", "dishonestly" (s.2(7) — wrongful gain or wrongful loss), "fraudulently" (s.2(9) — intent to defraud), "rashly or negligently" (strict-liability-adjacent, lower culpability).
• Omission: s.3 (general explanations) — words referring to acts done extend also to illegal omissions; liability for omission arises only where there is a legal duty (s.106 for negligent death by a doctor or driver).
• Strict liability: regulatory and public-welfare offences (food, environment, statutory rape of a minor) dispense with mens rea; the BNS itself mostly retains mens rea.
• Common intention (s.3(5), old 34): when a criminal act is done by several persons in furtherance of the common intention of all, each is liable as if he alone did it — needs a *prior meeting of minds*, which may form at the spot.
• Common object (s.190, old 149): every member of an unlawful assembly (five or more, s.189) is liable for an offence committed by any member in prosecution of the common object, or which members knew was likely. Common intention requires sharing; common object only requires membership plus knowledge.
• Joint liability distinguished: s.3(5) is a rule of evidence/liability, not an offence; s.190 creates vicarious liability attached to membership.

Stages of crime, abetment and conspiracy

1. Intention — not punishable by itself.
2. Preparation — generally not punishable, except named offences (waging war, dacoity preparation, counterfeiting).
3. Attempt — punishable; the act must go beyond preparation and be proximate to the offence. The BNS has a general attempt provision (s.62): where no specific punishment is provided, attempt is punishable with up to one-half of the longest term for the offence (or fine/both). Specific attempt sections: 109 (murder), 110 (culpable homicide), 310(4) (attempt at dacoity).
4. Commission — the completed offence.
5. Abetment (ss.45–60): by instigation, conspiracy (engaging in a conspiracy plus an act or illegal omission done pursuant to it), or intentional aiding. s.49 — abettor punished with the offence's punishment if the act is committed; s.55 — abetment of an offence punishable with death or life, where the offence is not committed, draws up to 7 years.
6. Criminal conspiracy (s.61): an agreement between two or more persons to do an illegal act, or a legal act by illegal means. For offences punishable with death, life or rigorous imprisonment of two years or more, the agreement alone suffices; for lesser offences an overt act is required. Punishment mirrors abetment of that offence.
7. Attempt vs abetment vs conspiracy: attempt is unilateral and proximate; conspiracy is bilateral and complete at agreement; abetment needs a principal offender or an abetted act.

Punishments and sentencing

• s.4 — six punishments: death; imprisonment for life; imprisonment (rigorous or simple); forfeiture of property; fine; community service (new).
• Community service is defined in the BNSS explanation as work the court may order that benefits the community, for which the convict is entitled to no remuneration. Available for six petty offences: non-appearance in response to a proclamation (s.209), petty theft of property under ₹5,000 by a first-time offender on return of value (s.303(2) proviso), misconduct in public by a drunken person (s.355), defamation (s.356(2)), attempt to commit suicide to compel or restrain exercise of lawful power (s.226), and a public servant unlawfully engaging in trade (s.202).
• Imprisonment for life means the remainder of the convict's natural life unless commuted; several sections now expressly say "imprisonment for life which shall mean imprisonment for the remainder of that person's natural life".
• Solitary confinement (ss.11–12) retained with limits; death sentence survives and is subject to the *Bachan Singh* "rarest of rare" doctrine.
• Fines: many money thresholds revised upward (e.g. the petty-theft community-service threshold of ₹5,000); s.8 governs sentence in default of fine.
• Mandatory minimums introduced or raised for rape of a minor, gang rape, organised crime and terrorist acts.

General exceptions (Chapter III, ss.14–44)

• Mistake/judicial acts: s.14 act of a person bound by law; s.15 judicial act; s.17 act justified by law, or done in good faith under a mistake of fact believing oneself justified by law; s.18 accident in doing a lawful act. Mistake of law is no defence (*ignorantia juris non excusat*).
• Necessity (s.19): act likely to cause harm done without criminal intent to prevent greater harm — *R v Dudley and Stephens* limits it for homicide.
• Infancy: s.20 — child under 7 (doli incapax, absolute); s.21 — child above 7 and under 12 who has not attained sufficient maturity of understanding. Juveniles are otherwise dealt with under the Juvenile Justice (Care and Protection of Children) Act, 2015, which allows a 16–18-year-old to be tried as an adult for a heinous offence after a preliminary assessment.
• Unsoundness of mind (s.22): person incapable, by reason of unsoundness of mind, of knowing the nature of the act or that it is wrong or contrary to law — the McNaughten rules; legal insanity, not medical insanity, is the test (*Surendra Mishra v State of Jharkhand*).
• Intoxication: s.23 — involuntary intoxication is a defence; s.24 — voluntary intoxication is not, and the person is treated as having the knowledge he would have had if sober.
• Consent (ss.25–30): consent of a person above 18 is a defence for harm not intended and not known to be likely to cause death or grievous hurt (s.25); acts done in good faith for a person's benefit (surgery) are protected; consent is no defence to death or grievous hurt intentionally caused, and no defence for a person under 12 or of unsound mind.
• Communication in good faith (s.31), compulsion by threat of instant death (s.32), trifling acts (s.33).
• Right of private defence (ss.34–44): nothing is an offence that is done in the exercise of the right of private defence of body or property.
  • s.37 — the restrictions clause (old IPC 99): no right against an act of a public servant acting in good faith under colour of office, and no right where state protection can be obtained by recourse to public authorities.
  • s.38 — defence of body extending to causing death in seven situations: reasonable apprehension of death; of grievous hurt; rape; unnatural lust (retained in this section despite s.377 IPC being dropped); kidnapping/abduction; wrongful confinement where the person cannot have recourse to public authorities; and acid attack — which is not new to the BNS, having been inserted as the seventh clause of IPC s.100 by the Criminal Law (Amendment) Act, 2013.
  • s.41 — defence of property extending to death for robbery, house-breaking by night, mischief by fire to a dwelling, theft/mischief/house-trespass causing reasonable apprehension of death or grievous hurt.
  • s.40 — the right of private defence of the body commences when the apprehension of danger arises and continues while it lasts (s.43 does the same for property); no right of retaliation after the threat ends; force used must be proportionate and not excessive.

Offences against the human body

• Culpable homicide (s.100) — causing death by an act done with intention to cause death, or intention to cause such bodily injury as is likely to cause death, or with knowledge that the act is likely to cause death.
• Murder (s.101) — culpable homicide in four clauses: (a) intention to cause death; (b) intention to cause such bodily injury as the offender knows is likely to cause the death of that particular person; (c) intention to cause bodily injury sufficient in the ordinary course of nature to cause death (the *Virsa Singh* test); (d) act so imminently dangerous that it must in all probability cause death, done without any excuse for incurring that risk.
• Five exceptions to murder (s.101): grave and sudden provocation; exceeding the right of private defence in good faith; act of a public servant exceeding lawful power in good faith; sudden fight without premeditation in the heat of passion; consent of a person above 18 to his own death.
• Punishments: s.103(1) murder — death or life plus fine; s.103(2) — new: murder by a group of five or more on a ground of race, caste or community, sex, place of birth, language, personal belief or any other similar ground (mob lynching) — death or life imprisonment plus fine, each member liable. s.105 — culpable homicide not amounting to murder: imprisonment for life, or 5 to 10 years and fine, if the act was done with intention (the 5-year minimum is new; IPC 304 had none); up to 10 years and fine if only with knowledge.
• s.106 — causing death by negligence: up to 5 years (raised from 2) and fine. s.106(2) — hit-and-run: rash and negligent driving causing death where the driver escapes without reporting to a police officer or magistrate — up to 10 years and fine; note that sub-section (2) was expressly excluded from the 1 July 2024 commencement notification and is not yet in force (kept in abeyance after the transporters' protests), so such cases are still charged under s.106(1) — verify the current status. A registered medical practitioner causing death by a rash or negligent act in the course of a medical procedure is liable to up to 2 years and fine (s.106(1) proviso); *Jacob Mathew* safeguards still govern prosecution.
• Dowry death (s.80) — death of a woman within 7 years of marriage by burns, bodily injury or otherwise than under normal circumstances, with cruelty or harassment for dowry shown; presumption of guilt; minimum 7 years to life.
• Abetment of suicide (s.108); abetment of suicide of a child or insane person (s.107); attempt to commit suicide to compel a public servant (s.226).
• Hurt and grievous hurt: s.114 hurt; s.116 grievous hurt (the same eight clauses as IPC 320, retained unchanged — emasculation, loss of sight/hearing, loss of a member or joint, permanent disfiguration of head or face, fracture or dislocation, and any hurt that endangers life or causes 20 days' severe pain/inability; permanent disability or persistent vegetative state is not added to this definition but appears in the punishment provision s.117(3)); s.117(2) 7 years; s.117(3) — grievous hurt causing permanent disability or vegetative state: minimum 10 years to life; s.117(4) grievous hurt by five or more on a discriminatory ground — up to 7 years.
• Wrongful restraint (s.126) and wrongful confinement (s.127); criminal force and assault (ss.128–136); kidnapping (s.137), abduction (s.138), trafficking (ss.143–144); hiring a child to commit an offence (s.95).

Offences against women, the State, property and new offences

• Rape (s.63) with the 2013 expanded definition and seven descriptions; exception 2 retains the marital-rape exception for a wife not under 18 — its constitutionality is under challenge before the Supreme Court, so treat it as unsettled. s.64 10 years to life; s.65(1) victim under 16 — minimum 20 years to life; s.65(2) victim under 12 — minimum 20 years, life or death; s.66 rape causing death or vegetative state — 20 years to life/death; s.70(2) gang rape of a woman under 18 — life or death. POCSO Act, 2012 applies concurrently for child victims and prevails where it prescribes a higher punishment.
• s.69 — new offence: sexual intercourse by employing deceitful means (including a false promise of marriage, or concealing identity, or promising employment or promotion) not amounting to rape — up to 10 years.
• s.77 voyeurism; s.78 stalking; s.79 word, gesture or act intended to insult the modesty of a woman; s.85 cruelty by husband or relatives (old 498A); s.84 enticing a married woman; s.87 kidnapping a woman to compel marriage.
• s.111 — organised crime: continuing unlawful activity by a syndicate — kidnapping, robbery, vehicle theft, extortion, land grabbing, contract killing, economic offences, cyber-crime, trafficking — for material or financial benefit; death or life if it results in death, else minimum 5 years; s.112 petty organised crime (theft of vehicles, pickpocketing, card skimming, examination-paper leaks by a gang) — 1 to 7 years.
• s.113 — terrorist act: brought into the general code alongside UAPA, 1967, with intent to threaten the unity, integrity, sovereignty, security or economic security of India or to strike terror; death or imprisonment for life where death results; a Superintendent of Police or above decides whether to register the case under BNS 113 or UAPA.
• s.147 waging war against the Government of India; s.152 — "act endangering sovereignty, unity and integrity of India" (secession, armed rebellion, subversive activities, encouraging separatist feelings) — life or up to 7 years. Sedition (old 124A) is repealed as a name; s.152 is narrower in words but widely criticised as its successor.
• s.197(1)(d) — new: false or misleading information jeopardising the sovereignty, unity and integrity of India.
• Property offences: theft (s.303) — dishonest taking of movable property out of possession without consent; s.304 snatching (new) — theft made sudden, quick or forcible — up to 3 years; extortion (s.308); robbery (s.309 — theft or extortion plus violence); dacoity (s.310 — robbery by five or more); criminal breach of trust (s.316); cheating (s.318) and cheating by personation (s.319); mischief (s.324); criminal trespass, house-trespass, house-breaking (ss.329–334); forgery (s.336) and forged document offences (ss.337–341).
• Deleted from the code: adultery (old 497, struck down in *Joseph Shine*), unnatural offences (old 377, after *Navtej Singh Johar* — leaving a gap for non-consensual acts against adult men and for bestiality), attempt to commit suicide generally (now under the Mental Healthcare Act, 2017), thugs, and sections on obstructing/assaulting a public servant partly recast.

Key points

• BNS 2023 - substantive criminal code, in force 1 July 2024, 358 sections, 20 chapters, replaced the IPC 1860.
• Transition rule - the date of the offence decides the code; pre-1-July-2024 acts remain IPC cases.
• Mens rea - guilty mind; expressed in the code as intentionally, knowingly, dishonestly, fraudulently, rashly or negligently.
• s.3(5) common intention - prior meeting of minds; s.190 common object - mere membership of an unlawful assembly of five or more.
• s.61 conspiracy - agreement alone is the offence for serious crimes; overt act needed only for minor ones.
• s.62 general attempt - up to one-half of the maximum term where no special provision exists.
• s.4 punishments - death, life, imprisonment, forfeiture, fine, community service (the BNS's new sixth punishment).
• Culpable homicide (s.100) vs murder (s.101) - murder is the aggravated species; degree of intention or certainty of death is the dividing line.
• Five exceptions to murder - provocation, excess private defence, public servant's excess, sudden fight, consent to own death.
• s.103(2) mob lynching - murder by five or more on a discriminatory ground; death or life for each member.
• s.106 - death by negligence 5 years; registered doctor 2 years; hit-and-run with escape 10 years under s.106(2), which is not yet in force.
• Private defence (ss.34–44) - no right where public authority can be approached; death may be caused only in the listed situations; no right of retaliation once danger ends.
• Insanity (s.22) - McNaughten rules; legal, not medical, insanity; burden on the accused on preponderance of probabilities.
• Infancy - absolute immunity below 7; qualified below 12; JJ Act 2015 allows adult trial for 16–18 in heinous cases.
• s.69 - new offence of sexual intercourse by deceitful means or false promise of marriage, up to 10 years.
• s.111/112 - organised crime and petty organised crime brought into the general code; s.113 terrorist act parallel to UAPA.
• s.152 - act endangering sovereignty, unity and integrity replaces sedition in substance, punishable with life or up to 7 years.
• Dropped offences - adultery, s.377, general attempt to suicide, thug; the s.377 deletion leaves an acknowledged legislative gap.

Formulas and examples

Example 1 — Grading a homicide. A, during a wedding argument, stabs B once in the thigh with a knife; B dies of blood loss from a severed femoral artery.

1. Death caused by A's act ⇒ culpable homicide under s.100.
2. Single blow, no premeditation, sudden quarrel ⇒ clause (a)/(b) of s.101 unlikely.
3. Clause (c) test: was a thigh wound "sufficient in the ordinary course of nature to cause death"? Normally no — death followed from the artery being hit, which A did not intend.
4. A had knowledge that a knife blow was *likely* to cause death ⇒ culpable homicide not amounting to murder, s.105, third part (knowledge) — up to 10 years and fine. If the blow had been to the chest piercing the heart, clause (c) is satisfied and the conviction is murder under s.103(1).

Example 2 — Attempt and s.62 arithmetic. C posts a forged mark-sheet to secure admission but is caught before the college acts. Forgery of a document under s.336(3) carries up to 7 years. Suppose the facts support only an attempt and no specific attempt section applies.

• Maximum under s.62 = ½ × 7 = 3.5 years, i.e. 3 years 6 months, plus fine.
• Contrast: if C had attempted murder, s.109 applies specifically (up to 10 years; life if hurt is caused), not the s.62 half-rule.

Example 3 — Private defence, excess and proportionality. D, unarmed, slaps E. E draws a revolver and shoots D dead.

1. E had a right of private defence of body — an apprehension of hurt existed.
2. But death may be caused only in the s.38 situations (apprehension of death, grievous hurt, rape, acid attack, kidnapping, wrongful confinement). A slap raises none of them.
3. Force was grossly disproportionate ⇒ exceeding the right of private defence; Exception 2 to s.101 applies.
4. Result: culpable homicide not amounting to murder under s.105, not a full acquittal. Had D fired first and E shot back in the same moment, s.38 would give a complete defence.

Example 4 — Joint liability. Six men drag F from a vehicle, accuse him of belonging to a particular community, and beat him to death; two only shouted and blocked the road.

• Five or more + discriminatory ground + death ⇒ s.103(2): death or life imprisonment and fine, for each of the six, including the two who only shouted, because the section fixes liability on every member of the group.
• Alternatively or additionally, s.190 (common object of an unlawful assembly) and s.3(5) (common intention) support the same result; the specific section prevails.
• Compare the pre-BNS position: lynching had no dedicated section and was charged under old 302 with 149, which is why s.103(2) was added.

Example 5 — Community service in a petty theft. G, a 22-year-old with no previous conviction, steals a mobile phone worth ₹4,500 and returns it before charge.

• Value ₹4,500 < ₹5,000 + first offence + property restored ⇒ the proviso to s.303(2) lets the court order community service instead of imprisonment.
• If the phone were worth ₹6,000, the proviso fails and the ordinary punishment (up to 3 years or fine or both) applies.

Where it is used

• Litigation and prosecution: criminal defence chambers, Additional Public Prosecutor and APP/Assistant Prosecuting Officer posts in state judicial services, Directorates of Prosecution — drafting bail applications, discharge applications and charge framing under BNS section numbers.
• Police and investigative agencies: IPS/state police, CBI, NIA, ED and state Economic Offences Wings — framing FIRs, deciding between BNS 113 and UAPA, invoking ss.111–112 for syndicates.
• Judiciary and judicial clerkships: judicial service prelims/mains, Supreme Court and High Court law clerk-cum-research assistant roles — grading homicide, applying general exceptions, sentencing.
• Corporate legal, compliance and POSH work: Infosys, TCS, HDFC Bank, Flipkart legal teams dealing with cheating/forgery (ss.318, 336), criminal breach of trust by employees (s.316), and internal-committee matters interfacing with ss.75–79.
• LPO/ALSP and legal-tech: Cyril Amarchand's Prism, Trilegal, UnitedLex, Integreon, Manupatra, SCC Online and Indian Kanoon — mapping IPC-to-BNS section tables, re-tagging precedent databases and updating clause libraries.
• Journalism, policy and NGOs: PRS Legislative Research, Vidhi Centre for Legal Policy, Common Cause, Amnesty — analysing s.152, s.113 overlap with UAPA, and the retained marital-rape exception.

Interview questions

• Q: When did the BNS come into force, and which code applies to an offence committed in June 2024? A: The BNS came into force on 1 July 2024; an act committed in June 2024 is tried under the IPC, because the date of the offence, not of the FIR or trial, decides the applicable code.
• Q: Distinguish culpable homicide from murder. A: Every murder is culpable homicide but not vice versa; under s.101 the act becomes murder where the intention to cause death or an injury sufficient in the ordinary course of nature to cause death (or imminently dangerous knowledge without excuse) is established, and no exception applies.
• Q: What is the Virsa Singh test? A: For murder under clause (c) of s.101, the prosecution must prove a bodily injury, its nature, the intention to inflict that specific injury, and that it was objectively sufficient in the ordinary course of nature to cause death — the accused's own belief about lethality is irrelevant.
• Q: What new punishment does the BNS introduce and where can it be imposed? A: Community service, under s.4, available for six petty offences such as petty theft under ₹5,000 by a first offender, defamation, public drunkenness and non-appearance after proclamation; the convict is entitled to no remuneration.
• Q: Has sedition been abolished? A: The offence named sedition (IPC 124A) does not appear in the BNS, but s.152 punishes acts endangering the sovereignty, unity and integrity of India — secession, armed rebellion, subversive activity — with life or up to seven years, and is widely regarded as its substantive successor in a narrower form.
• Q: Can a person causing death while exercising private defence be acquitted? A: Yes, if the case falls within s.38 (apprehension of death, grievous hurt, rape, acid attack, kidnapping or wrongful confinement) and the force is proportionate; if the right is exceeded in good faith, Exception 2 to s.101 reduces murder to culpable homicide under s.105.
• Q: What is the difference between s.3(5) and s.190? A: s.3(5) imposes liability on two or more persons acting with a shared prior intention; s.190 imposes liability on every member of an unlawful assembly of five or more for acts done in prosecution of the common object, without proof of a shared plan.
• Q: Is voluntary intoxication a defence? A: No — s.24 denies it, and the intoxicated person is imputed with the knowledge he would have had if sober; only involuntary intoxication, administered without his knowledge or against his will, is a defence under s.23.
• Q: How does the BNS treat hit-and-run cases? A: s.106(2) punishes rash or negligent driving causing death where the driver escapes without reporting to a police officer or magistrate with up to ten years, against five years for ordinary death by negligence — but s.106(2) alone was left out of the 1 July 2024 commencement notification and has not been brought into force, so in practice s.106(1) still applies.
• Q: Does the BNS criminalise marital rape? A: No — Exception 2 to s.63 retains the exemption for a wife who is not under 18, despite Law Commission and committee recommendations; its constitutional validity is pending before the Supreme Court, so the position may change.
• Q: Why does s.113 coexist with the UAPA? A: Terrorist acts can now be charged under the general code, but a police officer of the rank of Superintendent of Police or above decides whether a given case proceeds under BNS 113 or the UAPA, so the two do not apply simultaneously to the same act.
• Q: What legislative gap did deleting IPC s.377 create? A: After *Navtej Singh Johar* read down consensual same-sex conduct, the BNS omitted the section entirely, leaving non-consensual sexual acts against adult men and transgender persons, and bestiality, without a clear provision — a gap the Parliamentary Standing Committee flagged.

Common mistakes

• Citing IPC numbers (302, 420, 498A) for post-1-July-2024 offences, or BNS numbers for earlier ones — the mapping and the transition rule must both be known.
• Treating murder as a separate offence from culpable homicide instead of as its aggravated species, and forgetting to check the five exceptions before convicting under s.103.
• Applying the s.62 half-rule where a specific attempt provision exists (ss.109, 110, 310(4)).
• Confusing common intention (s.3(5), two or more, shared plan) with common object (s.190, five or more, mere membership).
• Claiming private defence after the danger has passed, or assuming any attack permits causing death — s.40 limits duration and s.38/41 limit lethal force.
• Pleading medical insanity under s.22 instead of legal insanity — incapacity to know the nature or wrongfulness of the act at the time of the offence is the test.
• Asserting that the BNS abolished sedition or criminalised marital rape, and quoting unverified section numbers for the community-service offences; where the figure or list is disputed, say so rather than guess.

Related topics

Criminal procedure: BNSS · Law of evidence: Bharatiya Sakshya Adhiniyam · Juvenile Justice Act, 2015 and POCSO Act, 2012 · Unlawful Activities (Prevention) Act, 1967 · Constitutional law: Articles 20, 21 and 22 · Law of torts and interface with criminal liability