NEW CRIMINAL LAWS (BNS, BNSS, BSA) - AN ANALYSIS[1]
INTRODUCTION:
These three new
Criminal rules would not only repeal the previous ones, but also make necessary
adjustments to the punitive and procedural rules. These laws try to simplify
the legal complications, Streamlining crime and penalty provisions. These laws
aim to provide fast justice in line with constitutional and democratic
principles, utilizing technology and forensic science for crime investigation.
The Bharatiya Nagarik Suraksha Sanhita prescribes dates for inquiry, trial, and
verdict. According to the Bharatiya Sakshya Adhiniyam, electronic evidence
includes information provided by witnesses, accused, specialists, and victims. Electronic
and digital evidence are legally valid and enforceable, just like any other
document. Bharatiya Nyaya Sanhita legislation have been made gender-neutral to
the greatest extent possible.
NEED
OF NEW CRIMINAL LAWS:
As the legislative
environment changes, judges and stakeholders must understand the new laws and
their implications for justice administration. This emphasizes the significant improvements in BNS that
address the changing nature of crime in society. Offenses against women and
children have been prioritized chronologically to highlight their importance in
crime prevention. The general law now punishes organized crime, as well as new
offences such as mob lynching, snatching, and terrorist acts, in addition to
existing State legislation. This emphasizes the significant improvements in BNS
that address the changing nature of crime in society. Offenses against women
and children have been prioritized chronologically to highlight their
importance in crime prevention. The general law now punishes organized crime,
as well as new offences such as mob lynching, snatching, and terrorist acts, in
addition to existing State legislation. The law of evidence has changed
significantly, especially with the introduction of electronic evidence in BSA,
which replaced IEA. Part III of the primer goes over these modifications. The
Part Highlights Electronic evidence encompasses both primary and secondary evidence. It
clarifies statutory amendments related to the admissibility and certification
of electronic evidence.
HIGHLIGHTS OF BHARATIYA NYAYA
SANHITA 2023:
·
Simplifying
legal complications by streamlining rules for offenses and penalties.
·
Community
service for minor offenses has been implemented. Fines and penalties for
numerous offenses have been increased accordingly.
·
Offenses
against women and children are prioritized chronologically.
·
Some
offenses have been gender neutralized.
·
New
offenses have been added, including terrorist acts, organized crime, minor
organized crime, and crimes against the state, with deterrent penalties.
SALIENT FEATURES OF BHARATIYA NYAYA
SANHITA 2023:
·
Section
2(10) of the BNS now defines "gender" as "he" and its
derivatives for any person, whether male, female, or transgender. This is a
progressive move.
·
Section
2(3) of the BNS defines "child"
·
Section
2(21) BNS now defines "movable property" as "incorporeal
property" in addition to "corporeal property."
·
The
terms "Queen", "British India", "Servant of
Government", "India", and "Government of India" have
been removed.
·
Community
service is described as court-ordered work that benefits the community but is
not compensated. [Explanation for Section 23 of the Bharatiya Nagarik Suraksha
Sanhita].
·
In
State through PS Lodha Colony, New Delhi v. Sanjeev Nanda[2]
(BMW Hit-and-Run Case) The Supreme Court ordered community service and
compensation as a reformative measure under Article 142 of the Indian
Constitution, rather than augmenting the punishment.
·
Under
section 18(c) of the Juvenile Justice (Care and Protection of Children) Act,
2015, a juvenile may be required to perform Community Service as a penalty.
·
Section
48 of the BNS now includes a new offense that punishes anyone, including
foreigners, who aids in the commission of an offense in India while outside of
the country.
·
The
Sanhita has a distinct chapter (Chapter V) for offenses against women and
children, which takes precedence over other severe offenses.
·
·The definition of rape under section
375 IPC is similar to section 63 BNS, with the exception of sexual intercourse
between a man and his wife who is 18 years or older (Exception 2). Independent
Thought v. Union of India and another.[3]
·
Section
69 of the BNS penalizes sexual intercourse through deceptive means, such as
false promises of employment or advancement, inducement, or marriage after
suppressing identity. It also includes making a pledge to marry without
intention of fulfilling. This offense overlaps with rape, which involves sexual
intercourse without consent due to a misunderstanding of facts (section 63 r/w
28 BNS).
·
Section
95 BNS criminalizes hiring, employing, or enlisting a child to commit an
offense.
·
Unnatural
Offences [Section 377 IPC] have been removed. This deletion decriminalizes
voluntary sexual actions, which were previously found unlawful in Navtej
Singh Johar v. Union of India.[4]
However, non-consensual sexual actions that are not considered rape under
section 63 of the BNS are classified as lesser offenses (e.g., hurt, grave
hurt).
·
Adultery
was found unconstitutional in Joseph Shine v. Union of India.[5]
·
Mob-lynching
is now a sub-category of the murder offense. Mob-lynching is a collective
murder committed by five or more people based on factors such as race, caste,
gender, place of birth, language, or personal beliefs. Section 103 of the BNS
states that each member of such a gang is punished as if they committed murder.
This introduction responds to the Supreme Court's directive to combat mob
lynching in Tehseen S. Poonawalla v. Union of India and others.[6]
·
The
sanctions for causing death by negligence are categorized as follows: Under
section 106(1) BNS, anyone other than a certified medical practitioner who
causes death via negligence may face a 5-year prison sentence and a fine. Under
section 106(1) BNS, a certified medical practitioner who causes death via
carelessness may face imprisonment for up to two years and a fine. Under
section 106(2) of the BNS, causing death by reckless driving and fleeing
without reporting the occurrence to a police officer or Magistrate can result
in a 10-year prison sentence and a fine.
·
The
Sanhita has removed the attempt to commit suicide under Section 309 IPC, after
the Supreme Court's ruling in Aruna Ramachandra Shanbaug v. Union of India
and Others.[7] Section 115 of the Mental Health Act of 2017.
A new crime under section 226 of the BNS penalizes attempting suicide to compel
or constrain official duty.
·
Section
111 BNS criminalizes organized crime, which includes kidnapping, robbery,
vehicle theft, extortion, land grabbing, contract killing, economic offenses,
cybercrimes, and trafficking of people, drugs, weapons, or illicit goods or
services by two or more individuals.
·
Section
112 of the BNS punishes petty organized crime, which involves ongoing criminal
activity such as theft, snatching, cheating, unauthorized ticket sales, betting
or gambling, and selling of public examination question papers by two or more
individuals.
·
Section
113 of the BNS makes the Terrorist Act, which is similar to section 15 of the
Unlawful Activities (Prevention) Act, 1967, punishable. The provision clarifies
that the officer not below the level of Superintendent of Police will decide
whether to record the case under this section or UAPA.
·
Section
117(3)/(4) BNS now includes provisions for serious harm that causes lifelong
impairment or a persistent vegetative state, as well as for mob lynching.
·
Section
143 of the BNS defines beggary as a form of exploitation for trafficking.
·
Sedition
under Section 124A of the Indian Penal Code has been eliminated. Section 152
BNS now punishes secession, armed rebellion, subversive operations, and any act
that threatens India's sovereignty, unity, and integrity.
·
The
publication of false or misleading material that threatens India's sovereignty,
unity, integrity, or security is now a new offense under section 197(1)(d) BNS.
·
Snatching
(section 304 BNS) is a new form of theft in which property is suddenly or
forcibly seized.This offense applies to theft that involves the use of criminal
force but does not result in robbery.
·
Sections
444 and 446 of the IPC have been removed for trespassing and breaking into
houses at night.
NEW OFFENCES
MOB LYNCHING
TERRORIST ACTS
ORGANISED CRIME
PETTY ORGANISED CRIME
SNATCHING
HIRING, EMPLOYING OR ENGAGING A
CHILD TO COMMIT AN OFFENCE
SEXUAL INTERCOURSE BY EMPLOYING
DECEITFUL MEANS
ACT ENDANGERING SOVEREIGNTY,
UNITY AND INTEGRITY OF INDIA
ABETTING COMMISSION OF ANY OFFENCE
IN INDIA WHILE BEING OUTSIDE INDIA
REPEALED OFFENCES
UNNATURAL OFFENCES
ADULTERY
ATTEMPT TO COMMIT
SUICIDE
SEDITION
LURKING HOUSE TRESPASS
BY NIGHT
HOUSEBREAKING BY
NIGHT
HIGHLIGHTS
OF BHATATIYA NAGARIK SURAKSHYA SANHITA
·
Ensuring timely justice in line with
constitutional and democratic principles.
·
The application of technology and
forensic science to criminal investigations.
·
Electronic communication is used for
providing information, lodging documents, and serving summons.
·
Establish dates for investigation,
trial, and judgment.
·
Provide a copy of the FIR to the victim
and update them on the investigation's progress digitally.
·
Victims must be given the opportunity to
be heard before the government withdraws a case with a 7-year or longer
sentence.
·
Petty offenses are subject to a
mandatory summary trial.
·
The accused can be examined using audio,
video, or electronic means, such as video conferencing.
·
The criminal court hierarchy has also
been streamlined.
SALIENT
FEATURES OF BHARATIYA NAGARIK SURAKSHYA SANHITA:
The following words
(not defined in CrPC) have been defined in BNSS :
·
Audio-video-electronic means – section
2(1)(a)
·
Bail – section 2(1)(b)
·
Bail bond – section 2(1)(c)
·
Bond – section 2(1)(e)
·
Electronic communication – section
2(1)(i)
Constitution
of Criminal Court and Offices
The posts of Metropolitan Magistrate
and Assistant Sessions Judge were removed from the Courts class. Section 15
BNSS allows the State Government to designate any police officer with the rank
of Superintendent of Police or equivalent as a Special Executive Magistrate, in
addition to an Executive Magistrate.
Power
of Courts
Section 23 of the BNSS allows
Magistrates of the First Class to impose fines ranging from 10,000 to 50,000
and Magistrate of the Second Class from 5,000 to 10,000. Magistrates can use
community service as a punishment. Community service refers to court-ordered
work that benefits the community but is unpaid. [Explanation for Section 23].According
to Section 25 BNSS, if multiple sentences are running concurrently in a trial,
the maximum incarceration duration is 20 years (rather than 14 years under
Section 31 CrPC).
Prosecution Authorities
According to Section 25 BNSS, if multiple sentences are
running concurrently in a trial, the maximum duration of imprisonment is 20
years (rather than 14 years under Section 31 CrPC). Additionally, each district will
establish a Directorate of Prosecution. The Directorate will be led by the
Deputy Director of Prosecution and supported by Assistant Directors of
Prosecution.
Powers
and function of Authorities
Director of Prosecution shall be responsible for giving
opinions on filing appeals and monitoring cases involving offences punishable
with 10 years or more/life imprisonment/death. The Deputy Director of
Prosecutions reviews police reports and monitors cases containing offences
punishable by 7 to 10 years. The Assistant Director of Prosecution oversees
cases containing offenses punishable by less than 7 years.
Arrest and Remand
Section 35(7) of the BNSS protects individuals over 60 and
infirm from arrest for offenses punishable by less than 3 years. Arrests must
be approved by the DSP in these instances. Section 35(7) of the BNSS protects
individuals over 60 and infirm from arrest for offenses punishable by less than
three years. Arrests must be approved by the DSP in these instances. Section
43(3) of the BNSS enables handcuffing for grave crimes and repeat/habitual
offenders. Section 40 of the BNSS requires private arrestees to appear in front
of the police within 6 hours. According to Section 190 of the BNSS, if an
accused individual is not detained, the police officer must get security for
their appearance before the Judicial Magistrate. The provision follows the
Supreme Court's orders in Siddharth v. State of Uttar Pradesh and
others.[8] Reiterated
in Satender
Kumar Antil v. Central Bureau of Investigation and others.[9]
According to Section 187(2) of the BNSS, police custody can be sought for up to
15 days in a staggered manner within 40/60 days after detention. Section
187(3)(i) allows for a maximum 90-day detention period for offences punished by
death or life imprisonment for a term of 10 years or more, rather than a term
of less than 10 years. Under Section 51(3) of the BNSS, registered medical
practitioners must promptly send examination reports to the investigating
officer.
Process to compel Appearance
As per section 63 BNSS, summons bearing court seals/digital
signature may be issued through electronic communication. Section 64 of the
BNSS requires police stations to keep a registry of summons, including their
address, phone number, and email address. Section 66 BNSS allows summons to be
served on any adult member of the family, regardless of gender. Section 70 of
the BNSS states that electronic summons service is deemed good service.
Procedure for Attachment and
Forfeiture of Property
Section
111(c) of the BNSS allows Magistrates to attach and dispose of property
classified as proceeds of crime, similar to the PMLA Act.
Maintenance/Security Proceedings
Section
145 BNSS allows parents to file cases where they reside. Section 144A CrPC for
security proceedings has been removed.
First Information Report (FIR)
According
to Satvinder
Kaur vs. State (Govt. of NCT of Delhi and others), Section 173(1) of
the BNSS allows for the filing of zero FIRs.[10]
This provision permits lodging of information through electronic communication
(e-FIR) provided the informant signs the records within 3 days. Section 173(2)
of the BNSS grants victims the right to obtain a free copy of their FIRs. Section
173(4) of the BNSS allows for an application to the Magistrate if a FIR remains
unregistered notwithstanding the Superintendent of Police's assistance.
Investigation
The scope of section 91 CrPC has been expanded. Section 94
of the BNSS allows a court/officer-in-charge of a police station to order the
production of electronic communication, including devices that may hold digital
evidence. Following the judgment in Lalita Kumari v. Government of Uttar Pradesh
and others.[11]
Section 173(3) BNSS recognizes 'preliminary enquiry' in cases punished by 3
years or more but less than 7 years. The preliminary inquiry has a 14-day deadline
and must be approved by an officer with the level of DSP or higher.
Registration of a FIR for these offenses requires clearance from the DSP. Section
105 of the BNSS requires video documentation of searches and seizures, as well
as the creation of a signed seizure list by witnesses. The provision recognizes
the Supreme Court's orders in Shafhi Mohammad v. State of Himachal Pradesh.[12]
reiterated in Paramvir Singh Saini v. Baljit Singh and others.[13]
According to Section 175(3) of the BNSS, a Magistrate can commission an
investigation for a cognizable offence upon receiving an application and an
affidavit (as directed in Priyanka Srivastava v. State of Uttar
Pradesh and others).[14]
and upon consideration of report submitted by police. According to Section 174 of
the BNSS, in cases of non-cognizable offenses, the police officer must not only
refer the complainant to the Magistrate, but also forward the daily diary
report to him. Section 175(1) BNSS allows the SP to depute a DSP to conduct
investigations in serious situations, based on the nature and degree of the
offence. Section 175(1) BNSS empowers the SP to appoint a DSP to conduct
investigations in serious cases, depending on the nature and severity of the
offense. According to Section 183(6)(a) of the BNSS, a witness's testimony
recorded by a magistrate in an offense punishable by 10 years, life, or death
can be treated as their examination in chief if they are temporarily or
permanently mentally/physically incapacitated. Section 184 of the BNSS requires
medical examination reports to be delivered to the investigating officer within
7 days. According to Section 193(3)(ii) of the BNSS, police officers must
provide a progress report to victims/informants within 90 days, including via
electronic means. Section 193(3)(i)(i) requires that the sequence of custody in
the case of electronic be supplied to the Magistrate in the report. Section
193(9) of the BNSS allows for further investigation during trial only with
judicial authority. Further inquiry must be completed within 90 days, or as
extended by court order. Section 193(8) of the BNSS permits for electronic
delivery of police reports and documentation to accused individuals. According
to Section 349 BNSS, accused individuals can be asked to produce voice samples without
being arrested.
Jurisdiction of the Criminal Courts
in Inquiry and Trial
Section 202 of the BNSS states that
the venue of trial for any offense, including cheating through electronic
communication, must be the location where the communication was sent/received.
According to Section 208 of the BNSS, if an offense is committed outside of
India, the trial will take place where the accused is found or where the
offense is filed in India.
Complaints to Magistrates
Section 193(8) BNSS allows for electronic
delivery of papers to accused individuals. Section 230 of the BNSS requires the
delivery to be made within 14 days following the accused's production or
appearance. According to Section 232 of the BNSS, commitments must be made
within 90 days of the Magistrate taking cognizance. According to Section 223 of
the BNSS, the accused must be given the chance for a hearing when taking
cognizance.
Conditions requisite for initiation
of proceedings
Section 175(4) BNSS specifies that no
cognizance shall be taken. If a public servant commits an offense while
performing their official duties, the Magistrate will consider public feedback.
The accused servant and his superior's report on the crime. According to
Section 218 of the BNSS, if previous government sanction is to prosecute judges
and public servants, the appropriate government must make a decision within 120
days of receiving the request for punishment. If the decision is not made
within this timeframe, the sanction is deemed granted by the government.
Trial of Cases:
Sessions Cases
The discharge petition (section 250
BNSS) must be filed within 60 days after the commitment date. Charges must be
framed within 60 days following the first hearing, according to Section 251
BNSS. The charge will be read to the accused by physical or audio-video
methods. [clause 251(2) BNSS]. Section 254 of the BNSS allows for audio-video
examination of witnesses.
Warrant
Case
The discharge petition (section 262
BNSS) must be filed within 60 days of receiving the police report and other
necessary documentation. Section 263 BNSS requires a 60-day charge framing
timeline from the first hearing date. Sections 265 and 266 of the BNSS allow
both prosecution and defense to interrogate witnesses using audio-video
electronic methods at a designated location notified by the state government.
According to section 269(7) of the BNSS, if witnesses cannot be obtained for
cross-examination in warrant proceedings other than police reports, the case
will proceed based on the evidence on record. According to section 272 BNSS,
the Magistrate must give the complainant 30 days to be present before
dismissing the offender.
Summons
Case
According to section 274 BNSS, a
Magistrate can discharge an accused in a summons case if the accusation is
unfounded. Section 277 of the BNSS allows for audio-video examination of
witnesses.
Summary
Trial
Section 283 BNSS mandates summary
trial for petty and less serious offences enumerated therein.
General Provisions
Section 346 of the BNSS allows a party to request up to two
adjournments due to circumstances beyond their control and the protest of the
opposing party. This provision replaces the term 'Magistrate' in section 309
CrPC with 'Court'. The Sessions Court cannot remand the accused to detention
for more than 15 days at a time. Section 84 of the BNSS states that an
absconding accused charged with an offense punishable by 10 years or more will
be declared a proclaimed offender. Section 356(1) BNSS provides trial may
proceed against a proclaimed offender in absentia and judgment may be pronounced.
This provision has been incorporated in view of directions in Hussain
and another vs Union of India.[15]
Plea Bargaining
According to Section 290 BNSS,
accused individuals can apply for plea bargaining within 30 days of the charge
being filed. Within 60 days, the public prosecutor/complainant and the accused
must reach a mutually suitable resolution. Section 293 BNSS allows courts to
impose a sentence equal to one-fourth of the legal minimum for first-time
offenders with no criminal history. Section 265E CrPC did not allow the court
to exercise this discretion.
Evidence in Inquiries and Trials
Section 308 of the BNSS allows for
audio-video examination of accused individuals. Section 316 of the BNSS
requires signatures to be acquired within 72 hours. Section 330 BNSS requires a
30-day deadline to contest the authenticity of a document, which may be waived
at the discretion of the court.
Reports of certain Government
scientific experts
Section 329(g) of the BNSS allows
the government to designate any scientific expert as a 'Government scientific
expert', including private individuals.
Bail Provisions:
Delay in Trial
Section 479 of the BNSS allows bail
for first-time offenders who have been detained for one-third of the maximum
duration of imprisonment provided by law. In other circumstances, detention
should be limited to half the maximum term. The Superintendent of Jail is responsible
for submitting a written application to the Court for the release of a person
on bail when one-half or one-third of their jail time is finished.
Bail shall not be denied in certain
cases
Section 480 of the BNSS states that
bail cannot be denied for non-bailable offenses if the accused is required to
identify witnesses during investigation or if police custody is required for
more than 15 days. The accused must also agree to comply with the court's
directions.
Withdrawal of Prosecution
Section 360 of the BNSS requires
victims to be given a hearing before any case is dismissed.
Witness Protection
Section 398 of the BNSS requires the
State Government to notify a witness protection system. The clause translates
directives from Mahender Chawla v. Union of India and others.[16]
Delivery of Judgment
Summons Case
According to Section 258 of the
BNSS, judgment in a summons matter must be delivered within 30 days, but can be
extended up to 45 days for reasons recorded in writing, from the conclusion of
the debate.
Other Criminal Trials
According to Section 392(1) of the
BNSS, judgment in criminal trials must be pronounced within 45 days of the end
of the trial. Proviso to section 392(4) BNSS requires judgment to be uploaded
within 7 days. Section 392(5) allows accused individuals to appear in court via
audio-video to hear their judgment.
Mercy petition
According to Section 472 BNSS, a
mercy petition must be filed within 30 days before the Governor and 60 days
before the President.
Miscellaneous Provision
Section 530 of the BNSS allows for
electronic trials and proceedings.
HIGHLIGHTS OF BHARATIYA SAKSHYA
ADHINIYAM
Establishes general norms and
standards of evidence.
'Evidence' refers to any information provided
electronically. This allows for electronic testimony from witnesses, accused,
experts, and victims.
Electronic and digital records are considered documentary
evidence and have the same legal effect, validity, and enforceability as
regular documents.
Secondary evidence now includes mechanically made copies,
counterparts of documents, and oral accounts of document contents that match
the original record's hash value.
The Adhiniyam limits admissible facts and ensures their
certification in courts. It establishes clearer and more consistent procedures
for courts to use evidence to address case facts and circumstances.
SALIENT FEATURES OF BHARATIYA
SAKSHYA ADHINIYAM
Deletion of certain words and
expressions
The dated expressions ‘Parliament of the United
Kingdom’,‘Provincial Act’, ‘notification by the Crown Representative’,‘London
Gazette’, ‘any Dominion, colony or possession of hisMajesty, ‘Jury’, ‘Lahore’,
‘United Kingdom of Great Britain andIreland’, ‘Commonwealth,’ ‘Her Majesty or
by the Privy Council,’‘Her Majesty’s Government,’ ‘copies or extracts contained
in the London Gazette, or purporting to be printed by the Queen’s Printer’,
‘possession of the British Crown,’ ‘Court of Justice in England’, ‘Her
Majesty’s Dominions’, ‘Barrister’ have been deleted as they are no longer
relevant.
The words ‘Vakil’, ‘Pleader’, ‘Barrister’ and ‘Attorney’
havebeen replaced with the word ‘Advocate’.
Short title, application and
commencement
The Act is
made applicable to all Courts-martial proceedings. Previously, Courts-martial convened
under the Army Act, the Naval Discipline Act or the Indian Navy (Discipline)
Act, or the Air Force Act were excluded.
Definition
The definition of ‘documents’ under section 2(1)(d) BSA has been
expanded to include electronic and digital records. Electronic record has been
defined under section 2(1)(t) of Information Technology Act, 2000 (IT Act).
The definition of ‘evidence’ under section 2(1)(e) BSA has
been expanded to include statements given electronically. This would permit the
appearance of witnesses, accused, experts and victims to depose their evidence
through electronic means. It also establishes ‘digital records’ as documentary
evidence. Electronically provided information shall be treated on par with traditional
in-person statements, considering the challenges of in-person presence.
Under
section 2(2) BSA, all words and expressions not defined herein have been given
the same meaning as defined under the IT Act, BNSS and BNS. The section is
comprehensive and covers all words / expressions in these statutes instead of a
few expressions defined in the IT Act.
Relevancy of Facts
Section 4 of the BSA applies the principle of res gestae to
both the facts in question and pertinent facts, rather than only the facts in
issue. According to section 24 of the IEA, confessions made under duress,
threat, or promise are not considered valid. Section 22 BSA has inserted
'coercion' as a new ground, making confession irrelevant. Explanation added to
section 24 BSA indicates that if a proclaimed criminal is tried in absentia
(under section 356 BNSS) alongside other accused, their confession can be used
against all, including the proclaimed offender. Section 31 of the BSA allows
for the admissibility of official gazettes in digital or electronic form. Section
32 of the BSA allows for the use of digital or electronic law books. Section 35
of the BSA considers a final decision, order, or decree issued by the Tribunal.
Previously, only final judgments, orders, or decrees from competent courts were
considered relevant. Section 39 BSA broadens the definition of an expert to
encompass individuals with specific expertise in 'any other subject', in
addition to the abilities outlined in section 45 IEA.
Facts which need not be proved
The Court's judicial notice under
Section 52 of the BSA has been changed.
Documentary Evidence
Digital records can be stored in
several files, each of which serves as primary evidence. If not contested, the
electronic record will be produced from proper possession. Video recordings can
be kept, streamed, and sent to other devices. All preserved recordings are key
evidence. Electronic records are automatically kept in different storage spaces
on computer resources. Each automated storage is considered primary evidence. The
ambit of Secondary evidence has been expanded in section 58 BSA to include the
following :
oral admissions; written admissions, and evidence provided
by a person who is skilled in examining certain documents, which being
technical or voluminous cannot be conveniently examined. Section 61 of the BSA
states that digital or electronic records have the same legal effect, validity,
and enforceability as any other document. Section 63 BSA covers electronic
documents replicated in semiconductor memory, in addition to optical or magnetic
medium as specified in the IEA. The provision now includes electronic records
produced by any communication device or kept in any electronic form (e.g., DVR,
Flash Drive, CD/DVD, Server, Cloud), rather than just computers, as in the IEA.
Electronic and digital records can now be sourced as evidence via a wider range
of technologies. Section 63 BSA specifies the requirements for submitting
certificates included in "THE SCHEDULE". Previously, a certificate signed by a
computer administrator or related activity manager was sufficient. To comply
with this condition, a certificate signed by the person in charge of the
computer or communication equipment must be accompanied by a certificate signed
by an expert (as specified in the BSA Schedule). The certificate must include
device type, model, serial number, color, and hash value. The expert's
certificate verifies the authenticity of electronic records used in evidence.
The section does not specify who is an expert. Section 79A of the IT Act
defines 'Examiner of electronic evidence' as an expert.
Estoppel
Section 122 BSA prohibits tenants or
others claiming through them from denying that their landlord has title to the
immovable property at the outset of the tenancy. The phrase "or any time
thereafter" has been inserted.
OF Witness
The word “lunacy” has been replaced by “mental illness”
under section 124 BSA. Section 138 BSA states that an accomplice can be a
competent witness against an accused person, and a conviction based on corroborated
testimony is not illegal. This resolves the discrepancy with illustration (b)
in part 114 IEA (formerly section 119 BSA).
Privileged communication
Section
165 BSA disallows any court to demand production of any communication between
ministers and President of India.
CONCLUSION:
The new criminal laws enacted by our Parliament of India is
updated related to technology and Reformation factors. The modern trend of
Judiciary will adapt the New Criminal laws. The speedy trial and cost effective
aspect covers these type of laws. Hence, The New Criminal law will be very
useful for the society.
[1] The Author is B Mathanachandiran,Advocate.
