Introduction to BNS
32 min readUpdated Nov 5, 2026
Background
The Indian Penal Code, 1860 (IPC) was India's criminal code for more than 160 years. It was drafted by the first Indian Law Commission, headed by Thomas Babington Macaulay, and it came into force in 1862.
The Bharatiya Nyaya Sanhita, 2023 (BNS) replaced it. The BNS is Act No. 45 of 2023. It received the President's assent on 25 December 2023, and it came into force on 1 July 2024. It was introduced as part of a reform of the whole criminal law, to remove colonial-era provisions and to deal with modern crimes.
The BNS is one of three new codes. All three came into force on 1 July 2024.
Background
CodeWhat it doesIt replaced
Bharatiya Nyaya Sanhita, 2023 (BNS)Defines offences and punishments. This is the substantive law.Indian Penal Code, 1860
Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)Lays down how offences are investigated and tried. This is the procedural law.Code of Criminal Procedure, 1973
Bharatiya Sakshya Adhiniyam, 2023 (BSA)Lays down what evidence a court accepts and how it is proved. This is the law of evidence.Indian Evidence Act, 1872
Structure of the Sanhita
The BNS has 358 sections in 20 chapters. Chapter I is the Preliminary chapter, and it has only three sections.
Structure of the Sanhita
ChapterSubject
I (Sections 1 to 3)Preliminary: title, application, definitions and general explanations
II (Sections 4 to 13)Punishments
III (Sections 14 to 44)General Exceptions, including private defence
IV (Sections 45 to 62)Abetment, criminal conspiracy and attempt
V (Sections 63 to 99)Offences against woman and child
VI (Sections 100 to 146)Offences affecting the human body
VII (Sections 147 to 158)Offences against the State
VIII to XOffences relating to the armed forces, to elections, and to coins, currency notes and Government stamps
XI to XIVOffences against public tranquillity, by or relating to public servants, contempts of lawful authority, and false evidence and offences against public justice
XV and XVIOffences affecting public health, safety, decency and morals, and offences relating to religion
XVII to XIXOffences against property, offences relating to documents and property marks, and criminal intimidation, insult, annoyance and defamation
XXRepeal and savings
What Is New
The BNS keeps most of the IPC, but it makes some changes.
New offences
OffenceSectionWhat it covers
Organised crime111Continuing unlawful activity by a crime syndicate
Petty organised crime112Smaller-scale organised crime, such as organised theft or cheating
Terrorist act113Acts that threaten the unity, integrity or security of India, or strike terror
Snatching304Sudden or quick seizing of movable property from a person
Sexual intercourse by deceitful means69Including a false promise of marriage
Mob lynching103(2)Murder by a group of five or more persons on grounds such as race, caste, community, sex or language. Punishable with death or imprisonment for life.
Changed or removed
ChangeSectionWhat happened
Community service4A new punishment, now listed in Section 4
Sedition (IPC 124A)152Sedition is gone. Section 152 now punishes acts that endanger the sovereignty, unity and integrity of India.
Adultery—No such offence in the BNS
IPC Section 377—Not kept in the BNS
Application of the Sanhita (Section 1)
Section 1 answers three questions: when the Sanhita applies, to whom, and where.
Commencement
- The Sanhita applies from the date that the Central Government notifies.
Section · BNS1(1) and (2)
As the Act says
(1)This Act may be called the Bharatiya Nyaya Sanhita, 2023.
(2)It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint, and different dates may be appointed for different provisions of this Sanhita.
In simple wordsThe Act's name is the Bharatiya Nyaya Sanhita, 2023. It does not apply from the day it was passed. It applies from the date that the Central Government notifies, and the Government may fix different dates for different provisions. The Government notified 1 July 2024.
Application within India
- The Sanhita applies to every person within India, and it punishes him only for what it makes an offence.
Section · BNS1(3)
As the Act says
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.
In simple wordsA person is punishable under the BNS for an act or omission within India that is contrary to its provisions. He can be punished under it for nothing else. The word "person" is wide, because Section 2(26) includes companies and associations. The rule applies to every person in India, whether a citizen or a foreigner.
Application beyond India
- The Sanhita also reaches some offences committed abroad. Section 1(4) applies the Sanhita to a person who is liable under another Indian law to be tried in India for an offence committed abroad, as if the act had been done in India. Section 1(5) goes further.
Section · BNS1(5)
As the Act says
The provisions of this Sanhita shall also apply to any offence committed by—
(a)any citizen of India in any place without and beyond India;
(b)any person on any ship or aircraft registered in India wherever it may be;
(c)any person in any place without and beyond India committing offence targeting a computer resource located in India.
ExplanationIn this section, the word “offence” includes every act committed outside India which, if committed in India, would be punishable under this Sanhita.
Illustration
A, who is a citizen of India, commits a murder in any place without and beyond India. He can be tried and convicted of murder in any place in India in which he may be found.
In simple wordsThe BNS reaches beyond India in three cases. The first is an offence by an Indian citizen anywhere in the world. The second is an offence by any person on an Indian-registered ship or aircraft, wherever it is. The third is an offence by any person abroad that targets a computer resource in India. Clause (c) is new, and the IPC did not have it. The Explanation adds that an act abroad counts as an offence if it would be punishable when done in India. In the illustration, an Indian citizen who commits murder abroad can be tried for murder in India.
Application beyond India
CaseWhoWhereExample
Section 1(3)Any personWithin IndiaA foreigner who steals in Delhi
Section 1(5)(a)An Indian citizenAnywhere outside IndiaAn Indian citizen who commits murder in another country
Section 1(5)(b)Any personOn an Indian ship or aircraft, anywhereA passenger who commits theft on an Indian-registered aircraft over the sea
Section 1(5)(c)Any personOutside India, targeting a computer resource in IndiaA person abroad who hacks an Indian server
- A foreigner abroad can be tried in India if his offence is completed here. In Mobarik Ali Ahmed v. State of Bombay (1957), a man in Karachi cheated a Bombay firm through representations that reached it in Bombay. The Supreme Court held that he could be tried in India, because the offence of cheating was completed within India.
Savings
- The Sanhita does not override special and local laws. Section 1(6) leaves untouched the Acts that punish mutiny and desertion in the armed forces, and any special or local law. The Sanhita is the general criminal law, and a law on a particular subject continues to apply.
Scope of the Sanhita
The scope of the Sanhita means the field in which it operates. It has five dimensions: the subject matter that it covers, the persons and places that it reaches, the time from which it applies, its relation to other laws, and the limits that it cannot cross.
Subject Matter: What the Sanhita Covers
The Sanhita covers conduct that threatens an interest which society treats as vital. Each of its chapters protects one group of interests.
Subject Matter: What the Sanhita Covers
Interest protectedExamples of offences
Life and the human bodyMurder, culpable homicide, hurt, wrongful confinement
Women and childrenRape, dowry death, cruelty, kidnapping
PropertyTheft, robbery, dacoity, cheating, mischief
The State and public orderWaging war, unlawful assembly, rioting
Public justice and public servantsFalse evidence, contempt of the lawful authority of public servants
Public health, safety, decency and religionPublic nuisance, offences relating to religion
Reputation and personal securityDefamation, criminal intimidation
Documents and currencyForgery, counterfeiting of coins and currency notes
Chapters I to IV are different in kind. They do not create offences for these interests. They state the general rules that apply to every offence: the definitions, the punishments, the General Exceptions, and the rules on abetment, conspiracy and attempt.
Persons and Places
- The Sanhita applies to every person within India. It does not matter whether he is a citizen or a foreigner, or whether he is a human being or a company, because Section 2(26) defines "person" widely.
- It also reaches certain offences committed abroad. Section 1(5) covers Indian citizens anywhere, any person on an Indian-registered ship or aircraft, and any person who targets an Indian computer resource from abroad.
- A few persons are outside the reach of ordinary criminal courts. The President and the Governors are immune from criminal proceedings during their term of office under Article 361 of the Constitution. Foreign diplomats have immunity under the Diplomatic Relations (Vienna Convention) Act, 1972. Members of the armed forces remain subject to the Acts that punish mutiny and desertion, which Section 1(6) preserves.
Time: When the Sanhita Applies
- The Sanhita applies to offences committed on or after 1 July 2024. It does not apply to earlier acts.
- Offences committed before that date continue to be governed by the Indian Penal Code, 1860. Article 20(1) of the Constitution forbids conviction for an act that was not an offence when it was done, and it forbids a heavier penalty than the law allowed at that time. The repeal and savings provisions at the end of the Sanhita keep the old law alive for these cases.
- Some offences are not in the Sanhita, but this did not change the law for earlier acts. Adultery and the offence in IPC Section 377 are not in the Sanhita. The Supreme Court had already struck down the first in Joseph Shine v. Union of India (2018) and read down the second, so far as it covered consensual acts between adults, in Navtej Singh Johar v. Union of India (2018). The omission only confirmed what the Court had decided.
Relation to Other Laws
- The Sanhita is the substantive criminal law, and it works with two other codes. The Bharatiya Nagarik Suraksha Sanhita, 2023 lays down how offences are investigated and tried, and the Bharatiya Sakshya Adhiniyam, 2023 lays down how they are proved.
- Special and local laws continue to apply. Special laws, such as the Arms Act, 1959, create offences on particular subjects. Section 1(6) leaves them untouched.
- The general rules of the Sanhita apply to these laws as well. The General Exceptions in Chapter III, and the rules on abetment and conspiracy, apply to an offence under a special or a local law, as Section 2(24) provides. A child under seven cannot be convicted of an offence under the Arms Act, in the same way as under the Sanhita.
Limits on the Scope
- Only conduct that the law makes punishable is a crime. This is the rule in Section 1(3) and in Article 20(1).
- Even punishable conduct may be excused. The General Exceptions apply to every offence, as Section 3(1) says.
- The Constitution limits what the Sanhita can make an offence. A court can strike down an offence that violates a fundamental right. In Shreya Singhal v. Union of India (2015), the Supreme Court struck down Section 66A of the Information Technology Act, 2000, which punished certain online speech, because it was vague and restricted free speech. In Joseph Shine, it struck down the offence of adultery.
Important Definitions (Section 2)
Section 2 begins with the words "In this Sanhita, unless the context otherwise requires", so a definition applies wherever the context allows it. It defines 39 terms. The tables below set out the ones that matter most, grouped by use.
Acts and Their Consequences
Acts and Their Consequences
Clause (IPC section)Exact words of the ActIn simple wordsIllustration
2(1) “act” (33)“act” denotes as well a series of acts as a single act;A series of acts counts as one act.A beats B several times in one quarrel. The law treats the whole series of blows as one act of assault, and not as many separate acts.
2(25) “omission” (33)“omission” denotes as well as a series of omissions as a single omission;A series of omissions counts as one omission.A mother does not feed her baby for several days. The law treats the whole failure as one omission.
2(15) “illegal” (43)“illegal” and “legally bound to do”.—The word “illegal” is applicable to everything which is an offence or which is prohibited by law, or which furnishes ground for a civil action; and a person is said to be “legally bound to do” whatever it is illegal in him to omit;Anything that is an offence, that the law prohibits, or that gives a ground for a civil action is illegal. A person is legally bound to do whatever it would be illegal to leave undone.(1) A doctor treats B carelessly and harms him. B can sue for damages, so the act is illegal in this sense. (2) A person whom the law bound to report a crime stays silent. His silence is an illegal omission.
2(14) “injury” (44)“injury” means any harm whatever illegally caused to any person, in body, mind, reputation or property;Any harm that is illegally caused to a person's body, mind, reputation or property.A spreads a false story that B is a thief. B suffers injury to his reputation. Injury is not only a wound. It includes harm to the mind, reputation or property.
2(24) “offence” (40)the word “offence” means a thing made punishable by this SanhitaIn most places, an offence is a thing that the BNS makes punishable. In some listed provisions, it also covers things that special or local laws punish.Theft is an offence under the Sanhita. An act under a special law, such as the Arms Act, 1959, is treated as an offence for the listed provisions, such as abetment and conspiracy.
The exact words of Section 2(24) are long, and they hold a rule and two exceptions. In most of the Sanhita, an offence is a thing that the Sanhita itself makes punishable. In Chapter III and in some listed sections, it also includes a thing that a special law or a local law punishes, and in a few others, only if that law punishes it with imprisonment of six months or more.
Mental States and Wrongful Gain
Mental States and Wrongful Gain
Clause (IPC section)Exact words of the ActIn simple wordsIllustration
2(33) “voluntarily” (39)“voluntarily”.—A person is said to cause an effect “voluntarily” when he causes it by means whereby he intended to cause it, or by means which, at the time of employing those means, he knew or had reason to believe to be likely to cause it.A person causes a result voluntarily if he meant to cause it, or if he used means that he knew, or had reason to believe, were likely to cause it.A sets fire to an inhabited house to rob it. He does not wish anyone to die, but he knows that death is likely. If someone dies, A caused the death voluntarily.
2(7) “dishonestly” (24)“dishonestly” means doing anything with the intention of causing wrongful gain to one person or wrongful loss to another person;Acting with the intention to make one person gain, or another lose, in a wrongful way.A finds B's mobile phone and sells it, meaning to keep the money. A acts dishonestly, because he intends B to lose the phone and himself to gain.
2(9) “fraudulently” (25)“fraudulently” means doing anything with the intention to defraud but not otherwise;Acting with the intention to cheat, and only then.A forges B's signature on a cheque to draw B's money from the bank. A acts fraudulently, because he intends to cheat.
2(11) “good faith” (52)“good faith”.—Nothing is said to be done or believed in “good faith” which is done or believed without due care and attention;An act is in good faith only if it is done with due care and attention. Honest belief without care does not count.(1) A checks the facts carefully and then tells the police that B is a thief. He acts in good faith, even if he turns out to be wrong. (2) A repeats the same story without checking. He cannot claim good faith.
2(29) “reason to believe” (26)“reason to believe”.—A person is said to have “reason to believe” a thing, if he has sufficient cause to believe that thing but not otherwise;A person has reason to believe something only if he has enough cause to believe it. A mere suspicion is not enough.A buys a new television from a stranger at night for one-tenth of its price. The price gives him enough cause to believe that it is stolen, so he has reason to believe it.
2(36) “wrongful gain” (23)“wrongful gain” means gain by unlawful means of property to which the person gaining is not legally entitled;Gaining property by unlawful means, when the gainer has no legal right to it.A steals B's watch and sells it. A gains wrongfully, because he used unlawful means and has no right to the watch.
2(37) “wrongful loss” (23)“wrongful loss” means the loss by unlawful means of property to which the person losing it is legally entitled;Losing property by unlawful means, when the loser has a legal right to it.B loses a watch that he owns, because A stole it. B loses wrongfully. If a shopkeeper wins B's customers by lower prices, B loses business, but the means are lawful, so the loss is not wrongful.
2(38) “gaining wrongfully” and “losing wrongfully” (23)A person is said to gain wrongfully when such person retains wrongfully, as well as when such person acquires wrongfully. A person is said to lose wrongfully when such person is wrongfully kept out of any property, as well as when such person is wrongfully deprived of propertyWrongful gain includes keeping property wrongfully, as well as getting it wrongfully. Wrongful loss includes being kept out of property, as well as being deprived of it.A finds B's wallet with B's address in it, knows the owner, and keeps it. A did not get it wrongfully, but he keeps it wrongfully, so he gains wrongfully. B is kept out of the wallet, so he loses wrongfully.
Persons and Officials
Persons and Officials
Clause (IPC section)Exact words of the ActIn simple wordsIllustration
2(26) “person” (11)“person” includes any company or association or body of persons, whether incorporated or not;A person is not only a human being. A company, an association or a body of persons also counts, whether it is registered or not.A company sells adulterated food. The company itself, and not only its officers, is a person who can be prosecuted.
2(3) “child” (new)“child” means any person below the age of eighteen years;A child is anyone below eighteen years.A boy aged seventeen is a child. A boy aged eighteen is not.
2(5) “Court” (20)“Court” means a Judge who is empowered by law to act judicially alone, or a body of Judges which is empowered by law to act judicially as a body, when such Judge or body of Judges is acting judicially;A Judge, or a body of Judges, when the law empowers him or it to act judicially, and only while he or it is acting judicially.(1) A District Judge hears a civil suit. He is a Court. (2) The same Judge sits on a school committee that selects teachers. He is not acting judicially, so it is not a Court. (3) Three Judges sit together to hear an appeal. They are a Court, as a body.
2(16) “Judge” (19)“Judge” means a person who is officially designated as a Judge and includes a person,–– (i) who is empowered by law to give, in any legal proceeding, civil or criminal, a definitive judgment, or a judgment which, if not appealed against, would be definitive, or a judgment which, if confirmed by some other authority, would be definitive; or (ii) who is one of a body or persons, which body of persons is empowered by law to give such a judgment.A Judge is a person officially designated as one. It also includes anyone, alone or as part of a body, whom the law empowers to give a definitive judgment, which means a final one.(1) A Magistrate trying B for theft, with power to sentence him, is a Judge, even though B can appeal. (2) A Magistrate who can only send a case for trial to a higher Court is not a Judge. (3) Each member of a panchayat that the law empowers to decide disputes is a Judge. (4) A court clerk, who has no power to give a judgment, is not.
"Court" and "Judge" depend on acting judicially. A Judge is a Court only when the law empowers him to act judicially and he is actually doing so. Suppose a sitting Judge is asked to sit on a school committee that selects teachers. He is not acting judicially, because the committee has no power to decide a legal dispute, so the committee is not a Court, and a person who abuses him there does not commit an offence against a Judge in a judicial proceeding. If the same person abuses him while he is hearing a case, the position is different.
The definition of "public servant" in Section 2(28) begins with the words “public servant” means a person falling under any of the descriptions, namely:—. It then lists eleven descriptions, in clauses (a) to (k).
Section 2(28): the eleven descriptions of a public servant
ClauseWho it covers, in simple words
(a)Commissioned officers in the Army, Navy or Air Force
(b)Every Judge, including a person who has adjudicatory functions
(c)Court officers such as liquidators, receivers and commissioners, who investigate, keep documents, take charge of property or keep order in court
(d)Assessors and members of a panchayat who assist a Court or public servant
(e)Arbitrators and others to whom a Court or authority refers a matter
(f)Persons empowered to confine others
(g)Government officers whose duty is to prevent offences, give information of them, bring offenders to justice, or protect public health, safety or convenience
(h)Officers who handle property, surveys, assessments or contracts for the Government, or protect its money interests
(i)Officers who handle property, taxes or records for a village, town or district
(j)Persons who prepare electoral rolls or conduct elections
(k)Every person in the service or pay of the Government, or paid by fees or commission for a public duty by the Government, and every person in the service or pay of a local authority, a corporation set up by a Central or State Act, or a Government company
Section · BNS2(28)(k)
As the Act says
every person—
(i)in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty by the Government;
(ii)in the service or pay of a local authority as defined in clause (31) of section 3 of the General Clauses Act, 1897, a corporation established by or under a Central or State Act or a Government company as defined in clause (45) of section 2 of the Companies Act, 2013.
In simple wordsClause (k) is the widest. It covers everyone who works for the Government, and for a local authority, a statutory corporation or a Government company. The Explanations add that a person is a public servant whether or not the Government appointed him, and that a person in actual possession of the post is a public servant, even if his right to the post has a legal defect. The Act's illustration is that a Municipal Commissioner is a public servant.
Property, Documents and Other Terms
Property, Documents and Other Terms
Clause (IPC section)Exact words of the ActIn simple wordsIllustration
2(21) “movable property” (22)“movable property” includes property of every description, except land and things attached to the earth or permanently fastened to anything which is attached to the earth;All property except land and things fixed to it.A car, a mobile phone and a bag of rice are movable property. A plot of land and a house built on it are not.
2(8) “document” (29)“document” means any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, and includes electronic and digital record, intended to be used, or which may be used, as evidence of that matter.Anything written or marked on any substance, including an electronic or digital record, that is meant to be used, or may be used, as evidence.A written agreement, a cheque, a letter and an e-mail are documents. So is a map, because it expresses matter by marks.
2(31) “valuable security” (30)“valuable security” means a document which is, or purports to be, a document whereby any legal right is created, extended, transferred, restricted, extinguished or released, or whereby any person acknowledges that he lies under legal liability, or has not a certain legal right.A document that creates, transfers or ends a legal right, or in which a person admits a legal liability.A promissory note is a valuable security, because it creates a legal right to receive money. A receipt that admits that a debt has been paid is also one, because it ends a legal liability.
2(34) “will” (31)“will” means any testamentary document;Any document that takes effect on a person's death.(1) A signs a document that says, "After my death, my house goes to my daughter." This is a will. (2) A writes to his son, "I give you my house today." This takes effect now, so it is a gift and not a will. (3) A makes a new will that cancels the old one. The later will prevails.
The remaining definitions in Section 2 are technical, and they have their ordinary meaning. They include "animal", "vessel", "oath", "Government", "harbour", "counterfeit", "death", "life", "man", "woman", "gender", "public", "number", "month" and "year", and the terms "special law" and "local law". Section 2(39) adds that a word which the Sanhita does not define, but which the Information Technology Act, 2000 or the Bharatiya Nagarik Suraksha Sanhita, 2023 does, has the meaning given there.
General Explanations (Section 3)
Section 3 is a set of nine rules for reading the whole Sanhita. They explain how definitions, exceptions and illustrations work, and how several persons share liability for one criminal act.
General Explanations (Section 3)
Sub-section (IPC section)Rule
3(1) (6)Every definition and penal provision is subject to the General Exceptions
3(2) (7)An expression that is explained in one place has the same meaning everywhere
3(3) (27)Property held by a person's spouse, clerk or servant, on his account, is in his possession
3(4) (32)Words that refer to acts also cover illegal omissions
3(5) (34)Common intention: each person is liable for a criminal act that several persons do in furtherance of the common intention of all
3(6) (35)Several persons join in an act that is criminal only because of a criminal knowledge or intention. Each who joins with that knowledge or intention is liable.
3(7) (36)An effect caused partly by an act and partly by an omission is the same offence
3(8) (37)A person who intentionally co-operates in an offence by doing any one of several acts commits the offence
3(9) (38)Several persons concerned in one criminal act may be guilty of different offences
The General Exceptions Are Built into Every Definition
Section · BNS3(1)
As the Act says
Throughout this Sanhita every definition of an offence, every penal provision, and every Illustration of every such definition or penal provision, shall be understood subject to the exceptions contained in the Chapter entitled “General Exceptions”, though those exceptions are not repeated in such definition, penal provision, or Illustration.
Illustrations
The sections in this Sanhita, which contain definitions of offences, do not express that a child under seven years of age cannot commit such offences; but the definitions are to be understood subject to the general exception which provides that nothing shall be an offence which is done by a child under seven years of age.
A, a police officer, without warrant, apprehends Z, who has committed murder. Here A is not guilty of the offence of wrongful confinement; for he was bound by law to apprehend Z, and therefore the case falls within the general exception which provides that “nothing is an offence which is done by a person who is bound by law to do it”.
In simple wordsEvery definition of an offence, and every punishment provision, has the General Exceptions in Chapter III built into it. The Act does not repeat them each time. A child under seven cannot commit theft, even though the definition of theft does not say so. A police officer who arrests a murderer without a warrant does not commit wrongful confinement, because the law required him to arrest.
Possession through Others
Section · BNS3(3)
As the Act says
When property is in the possession of a person’s spouse, clerk or servant, on account of that person, it is in that person’s possession within the meaning of this Sanhita.
ExplanationA person employed temporarily or on a particular occasion in the capacity of a clerk or servant, is a clerk or servant within the meaning of this sub-section.
In simple wordsProperty that a person's spouse, clerk or servant holds on his behalf is treated as being in his own possession. A temporary clerk or servant also counts. This matters for offences such as theft and criminal breach of trust. If a shop assistant takes cash from the till, the cash was in the owner's possession.
Acts and Omissions
Section · BNS3(4)
As the Act says
In every Part of this Sanhita, except where a contrary intention appears from the context, words which refer to acts done extend also to illegal omissions.
In simple wordsWherever the BNS speaks of an act, it also covers an illegal omission, unless the context shows otherwise. A person who fails to do what the law requires can therefore commit an offence.
Joint Liability
- Common intention.
Section · BNS3(5)
As the Act says
When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
In simple wordsIf several persons commit a criminal act, and they all share one common intention, each of them is liable for the whole act as if he had done it alone. The section does not create a separate offence. It makes a person liable for what others do, if the act is done in furtherance of a common intention that they all share.
- Common intention in practice. The shared intention must exist before the act, or arise during it, and it must be proved. In Suresh v. State of U.P. (2001), the three judges agreed on the result but differed in emphasis. Thomas J held that a person who only keeps the common intention in his mind, and does nothing at the scene, cannot be convicted with its help. Sethi J, with Agrawal J, held that no separate overt act is needed from each accused, but that a prior meeting of minds is required. The wife of the main accused was present, but her sharing of the intention was not proved, and her acquittal stood.
- Common intention needs a pre-arranged plan. In Mahbub Shah v. King-Emperor (Privy Council, 1945), Allah Dad was killed and Hamidullah Khan was wounded by gunshots. Mahbub Shah and Wali Shah were convicted of murder and attempt to murder with the help of Section 34 of the IPC. The Privy Council held that "common intention within the meaning of the section implies a pre-arranged plan", which must exist before the act, however briefly. The facts showed an unplanned clash, and there was no proof of a prior meeting of minds, so the Council set aside Mahbub Shah's conviction under the section. The case also separates a common intention, which needs a meeting of minds, from a similar intention, which several persons may form separately and which does not make them jointly liable. In Barendra Kumar Ghosh v. King-Emperor (Privy Council, 1925), the Council had held that a person who stands and waits as part of a shared plan also takes part in the act.
- A co-accused who is acquitted. In Maina Singh v. State of Rajasthan (1976), Maina Singh and four named co-accused were charged with murder, and the four were acquitted on the benefit of doubt. No evidence pointed to any unnamed person. The Supreme Court held that Section 34 of the IPC could not then be applied to the one accused who was left, and it altered his conviction to voluntarily causing grievous hurt by a dangerous weapon (IPC Section 326, now BNS Section 118(2)).
- Different offences from one act.
Section · BNS3(9)
As the Act says
Where several persons are engaged or concerned in the commission of a criminal act, they may be guilty of different offences by means of that act.
Illustration
A attacks Z under such circumstances of grave provocation that his killing of Z would be only culpable homicide not amounting to murder. B, having ill-will towards Z and intending to kill him, and not having been subject to the provocation, assists A in killing Z. Here, though A and B are both engaged in causing Z’s death, B is guilty of murder, and A is guilty only of culpable homicide.
In simple wordsPersons who take part in one criminal act need not all commit the same offence. Each is judged by his own mental state. In the illustration, A acted under grave provocation and is guilty only of culpable homicide, while B had ill-will and intended to kill, and is guilty of murder.
- Common intention and common object. Section 3(5) is often confused with the rule on unlawful assembly.
Joint Liability
BasisCommon intention (Section 3(5), IPC Section 34)Common object (Section 190, IPC Section 149)
NatureA rule of joint liability for a criminal actA rule of liability for the members of an unlawful assembly
Number of personsTwo or moreFive or more, because the assembly is unlawful under Section 189
Mental elementA shared intention, formed by a meeting of minds before or during the actA shared object, which may be formed on the spot
ParticipationParticipation in the act is neededMere membership of the assembly can be enough
Extent of liabilityEach is liable as if he had done the act aloneEach member is liable for an offence committed in pursuance of the common object, or which he knew was likely to be committed
Leading Case Laws
Mobarik Ali Ahmed v. State of Bombay (1957): The offence was completed in India
FactsA man in Karachi cheated a Bombay firm through representations that reached it in Bombay. The Supreme Court held that he could be tried in India.
Decision and principleA person who is abroad can be tried in India if the effect of his act is felt here.
Standard Chartered Bank v. Directorate of Enforcement (2005): A company is a person
FactsA bank was prosecuted under the Foreign Exchange Regulation Act, 1973, which the Foreign Exchange Management Act, 1999 has since replaced.
Decision and principleThe Supreme Court held that a company can be prosecuted, and that where the law requires both imprisonment and fine, the court can impose the fine.
R.S. Nayak v. A.R. Antulay (1984): Who is a public servant
FactsThe question was whether a Member of a Legislative Assembly is a public servant.
Decision and principleThe Supreme Court held that he is not a public servant under the IPC definition, which is the definition that Section 2(28) of the BNS continues.
Mahbub Shah v. King-Emperor (1945): Common intention needs a pre-arranged plan
FactsTwo men fired in an unplanned clash in which one man was killed and another wounded. The Privy Council held that Section 34 needs a prior meeting of minds, and that a similar intention is not enough.
Decision and principleIt set aside Mahbub Shah's conviction under the section.
Suresh v. State of U.P. (2001): Common intention must be proved
FactsA family was killed at night.
Decision and principleThe Supreme Court upheld the acquittal of the wife of the main accused, because her sharing of the common intention was not proved.
Maina Singh v. State of Rajasthan (1976): Section 34 needs others who acted with the accused
FactsThe four named co-accused were acquitted, and no evidence pointed to any unnamed person.
Decision and principleThe Supreme Court held that Section 34 could not be applied to the one accused who was left, and that he was liable only for what he himself did.
Conclusion
Chapter I of the BNS is short, but it is the key to the rest of the Sanhita. Section 1 fixes its application in India and abroad, and it adds a new clause for offences that target an Indian computer resource. Section 2 gives the words of the Sanhita a fixed meaning, and in particular the mental-state words that reappear in almost every offence. Section 3 makes the General Exceptions part of every definition, and it states the rules on joint liability.
A reader should approach each offence with these three sections in mind. The definition of the offence tells what is forbidden, Section 2 tells what its words mean, and Section 3 tells how the exceptions and joint liability apply.
PRACTICE