India’s transition to new criminal laws on July 1 will be tricky

BNS is the new form of IPC. Under the new Act more relevance has been given to offences against women and children. Certain important changes which have come in the new Act pertain to offences against sexual intercourse by deceiving or by false promise of marriage.

This is considered as an offence now under the new law under section 69.

For the first time terrorism and terrorist acts have also been considered under the new Act. They are regarded as a specific offense.

The most important addition is also the reintroduction of the sedition law in the current form in the new Act under section 150.

This section actually gives a very wide and open description to what is considered as activities against the sovereignty and unity and integrity of the nation. This is one law which is clearly prone to maximum misuse by any government.

Death by negligence has also been given more importance under the new law probably due to the increased incidence of accidents and hit and run cases. Under the new Act (section 106) the punishment has been enhanced from two to five years. The new version of IPC also provides for New Balance form of punishment in the form of deterrence and reformation by introducing punishment by way of community service. The new Act also includes the act of ‘Mob Lynching” as an offence and now treats it at par with the offence of Murder.

Cr.P.C VS Bharatiya Nagrik Suraksha Sanhita (BNSS)

BNSS will replace the Criminal procedure Code. One of the most significant changes in the new Act is the way it has given more power to the policing system.

Under the old law registration of FIR in cognizable offences was one of the first steps and only a few exceptions were provided for preliminary enquiry before registration of an FIR, like in commercial disputes, matrimonial disputes etc. However the new law lays down the statutory requirement for the police to conduct a preliminary enquiry first to determine if prima facia cases are made out before registering an FIR.

This pertains to those offenses which under the new Penal Code are punishable with sentences between 3-7 years. Hence offences like criminal breach of trust, cheating, forging documents may also fall under this category and may now not automatically be eligible to be registered into an FIR. This additional power with an investigating agency susceptible to misuse.

Another provision is the additional power of attachment that is given under the new BNS where significant powers are now available with the investigating agency to attach properties in line with the powers that the  Enforcement Directorate now has.

The new form of criminal procedure code also gives more emphasis to trial in electronic mode and through electronic communication it provides for even statement of witnesses and victims to be recorded through video conferencing. It also brings about a change where it allows a trial to be conducted against a person who is declared as an absconder even in his absence.

Indian Evidence Act Vs Bharatiya Sakshya Adhiniyam  (BSA)

The third new act is the Bharatiya Sakshya Adhiniyam also known as (BSA ), which replaces the Indian Evidence Act. Basically the idea of bringing in the new Evidence Act was to modernise and streamline the Court process, the way evidence is led and to bring in more digital and oral forms of evidence to be included as admissible evidence during court proceedings.

The new act retains many of the provisions of the old Evidence Act but has varied it to an improvised and advanced version. It is also included certain new provisions. Certain definitions like the application of the old act to the entire territory of India has been modified in the new act and the word ‘India’ has been omitted. This has the effect of giving prominence to digital and other form of evidences being admitted from outside the country. Further the definition of the word ‘document’ has been expanded to include electronically recorded evidence through computer system smartphones and other digital devices.

The recording of evidence will now encompass audio recordings, video recordings and other forms of recording. Obviously the new Act has expanded the scope of the old Evidence Act and now includes statement given in various forms electronically and digitally. They will be classified as documentary evidence.

Another improvement in the new Act is that  in a trial of more than one person, if one of the accused has absconded or fails to comply with the proclamation issued under Section 82, the trial can proceed in absentia. It shall be deemed to be a joint trial for the purpose of the new Act.

The new Act also recognises oral admissions and evidences from ‘experts skilled experts’ such as financial documents etc.

The Act has also done away with the term’ lunatic’ and has come out with a more comprehensive term as ‘person of unsound mind’ and  this provision corresponds to Section 118 of the old Act.

Challenges in the transition

There is a challenge as far as the new laws are concerned to the lawyers, judges and the law enforcing agencies. There will be confusion from the overlap of old and new laws, and addition of new offences.

The challenge will also be as the entire system will keep oscillating between the old laws and the new laws . For offences committed before 1st July 2024, the earlier IPC and the procedural Laws of Cr.PC and Evidence Act will apply and trail will continue as such. For offences committed from 1st July 2024 the three new Laws will be applied.

This will definitely cause a lot of confusion and it will take some time for the entire judicial and Law enforcing system to get used to.  The judges of various courts and the police forces have been provided with mandatory and organized training sessions. However, there has not been any such programmed/mandatory sessions for lawyers.

The digital legal infra in more than 80% of the entire Court System in the country lacks even basic facilities. So, this is going to be a major challenge for implementing the new laws and the procedural trails like trial by absentia.

Some experts also feel that the new laws were passed arbitrarily and in haste. The entry of the sedition law is also considered as a backdoor entry made on purpose for political reasons. Then the removal of mandatory registration of FIR in cognizable offences is also seen as a regressive step. Giving more power and discretion to the investigating agency can be misused.

The removal of mandatory registration of FIR in cognizable offences is also seen as a regressive step. Giving more power and discretion to the investigating agency can be misused. There are certain advantages, however, of the new laws as they place greater emphasis on digitalisation.

(The author is a partner at Karanjawala &Co. Views are personal)