Revisit these sections of the Bharatiya Nyaya Sanhita
he central government has notified July 1, 2024 as the day on which the recently enacted three criminal laws will come into effect. Section 106(2) of the Bharatiya Nyaya Sanhita (BNS), 2023, which provides for a maximum 10 years of imprisonment in the case of a fatal accident if the accused person escapes without reporting to the police or a magistrate, has been put on hold. The Ministry of Home Affairs (MHA) press statement of January 2 said that the decision to implement Section 106(2) would be taken up after discussions with the All India Motor Transport Congress. This was prompted by a strike by truck drivers who alleged that the provision was too harsh. Besides the pending decision with regard to Section 106(2), it will be pertinent for the central government to reconsider a few more provisions of the BNS. These are “petty organised crime” defined under Section 112, “theft” defined under Section 303(2) and two subsections of Section 143 pertaining to human trafficking.
A reconsideration of Section 106(2) is significant for two reasons. First, the increase in sentence from five to 10 years of imprisonment for just fleeing the scene without reporting to the police or a magistrate soon after the accident seems disproportionate. There is no other provision in the law with similar consequences. It is not even a case of saving the persons who might have been grievously injured and in need of medical assistance. This clause applies to accidents that cause the death of any person. The only benefit seems to be that the appropriate motor accident claim could be sought if the vehicle details are known. Second, this clause seems to be in conflict with the fundamental right of prohibition against selfincrimination enshrined under Article 20(3) of the Constitution of India. Article 20(3) says that ‘no person accused of any offence shall be compelled to be a witness against himself’.
The Supreme Court of India, in Nandini Satpathy vs P.L. Dani, widened the scope of Article 20(3) and held that compelled testimony must be read as evidence procured not merely by physical threats or violence but by psychic torture, overbearing and intimidatory methods and the like. Therefore, disclosure of culpability by informing the police or a magistrate due to fear of enhanced punishment may not qualify the test of constitutionality.
Second, a new offence. ‘petty organised crime’. has been introduced in Section 112 of the BNS. Here, “whoever, being a member of a group or gang, either singly or jointly, commits any act of theft, snatching, cheating, unauthorised selling of tickets, unauthorised betting or gambling, selling of public examination question papers or any other similar criminal acts, is said to commit petty organised crime”.
Offences not defined in the BNS, such as “unauthorised selling of tickets” and “selling of
Tpublic examination question papers” are not linked with any special Act. However, the phrase ‘any other similar criminal acts’ of the section is more indefinite and openended. While theft and snatching prescribe imprisonment of up to three years (Section 303 of the BNS), theft in a dwelling house or means of transportation gets up to seven years (Section 305 of the BNS), and theft after preparation made for causing death, hurt or restraint in order to commit theft gets up to 10 years (Section 307 of the BNS). Similarly, cheating provides for imprisonment from three years to seven years (Section 318 of the BNS).
Therefore, what will fall within the range of ‘any other similar criminal acts’ is unspecified. Similar criminal acts, inter alia, could include criminal breach of trust, criminal misappropriation of property, and receiving stolen property. However, the sentence for these offences varies from two years to 10 years. Obviously, an offence punishable with up to 10 years of imprisonment cannot be called a petty crime, particularly when the maximum sentence provided for a petty organised act is seven years. Therefore, unless some specific maximum limit of sentence is prescribed, this provision may not stand the scrutiny of the Supreme Court. It is important to mention that Section 66A of the Information Technology Act, 2000 was struck down by the Supreme Court in Shreya Singhal vs Union of India (2015) as it found the expression “grossly offensive” used in the Section to be openended, undefined and vague.
Property theft, a specific value
Third, the offence of theft, as provided for under proviso to Subsection (2) of Section 303 of the BNS, also needs to be revisited. The proviso to the subsection says that ‘provided that in cases of theft where the value of the stolen property is less than five thousand rupees, and a person is convicted for the first time, shall on the return of the value of property or restoration of the stolen property, shall be punished with community service’. The First Schedule to the Bharatiya Nagarik Suraksha Sanhita (BNSS) categorises the offence under this category as a noncognisable offence.
While making theft of any moveable property of less than ₹5,000 a noncognisable offence may reduce the workload of the police, this may raise some complications that are both legal and practical. First, in cities and towns, while the value of ₹5,000 may not impact the pocket of a welloff person, it is a huge sum for say a daily wage earner. Think of a student whose bicycle is stolen and the police refusing to file a first information report, being a noncognisable case. He may not be able to afford approaching a court for justice, thus feeling totally helpless. It is known that bicycles are distributed even by the governments to students under welfare schemes to encourage them to pursue school and even college education. Second, if property offences, of whatever value, are not registered, property offenders will be out of the police radar for surveillance unless they are found to be involved in some other cognisable offence. Legal issues may also arise with regard to the return of such property if recovered with some other stolen or looted property.
Third, if the stolen property of value less than ₹5,000 is not returned or restored by the convict as provided for, the only option available with the court will be to award imprisonment which may extend up to three years — as provided for other cases of thefts (of higher value) in the first paragraph of Subsection (2) of Section 303, categorised as a cognisable offence in the First Schedule to the BNSS. The interplay between the two parts of the subsection is intricate. While this obfuscation may be removed by tweaking the definition and adding alternate punishment for such cases for which the value of stolen property is not returned, or the stolen property is not restored, making theft of property of any value a cognisable offence (which would require only a minor change in the First Schedule to the BNSS) will resolve other stated issues of legal and practical implications as well.
No discretion to judiciary
Section 303 of the Indian Penal Code pertaining to ‘punishment for murder by lifeconvict’ was struck down as being void and unconstitutional by the Supreme Court in Mithu vs State of Punjab (1983). One of the grounds of unconstitutionality was that it gave no discretion to the judiciary and, hence, the law was not just, fair, and reasonable within the meaning of Article 21 of the Constitution.
Section 303 of the IPC has been restored in the form of Section 104 of the BNS, by removing the defect for which it was held unconstitutional. Section 104 of the BNS now provides for either death punishment or imprisonment for life, which shall mean the remainder of that person’s natural life.
However, Subsections (6) and (7) of Section
143 of the BNS which punish trafficking of a child on more than one occasion and trafficking of a person by a public servant or a police officer respectively, and provide only for life imprisonment (which shall mean the remainder of that person’s natural life) under both provisions, also seem to suffer from the same illegality as they do not provide any discretion to the judiciary to award punishment.
In view of these points, subsection (2) of Section 106, Section 112, subsection (2) of Section 303, and subsections (6) and (7) of Section 143 of the BNS (which seem to have serious legal and/or constitutional and practical consequences) need to be revisited before they become operational.
The sections on reporting of a fatal accident, petty organised crime, theft and human trafficking have flaws