When deciding bail applications for organized crime under Section 111 of the Bharatiya Nyaya Sanhita (BNS), courts must consider several specific factors beyond general bail considerations.
Courts must first examine whether the essential requisites for organized crime are satisfied:
The learned counsel for the petitioners has submitted that legislature has deliberately used the conjunction “and” in Section 482(4) in place of the disjunction “or” in the said provision, hence, unless a person is accused of both the offences under Section 65 and Section 70(2) of BNS 2023, the bar of Section 482(4) will not be applicable. He, therefore, submits that as in this case, only offence under Section 65(1) is involved without any accusation under Section 70(2), the bar under Section 482(4) is not applicable to this case. {Para 10}
23. This Court fully agrees with the submission of the learned Amicus Curiae that if literal meaning is given to the word “and” used in Section 482(4), it would frustrate the legislative intent of restricting the operation of provisions regarding anticipatory bail in respect of certain heinous offences which was earlier provided for in Section 438(4) of Cr.P.C, 1973.
24. The Apex Court in the case of “Spentex Industries Limited vs.
Commissioner of Central excise and others”(supra) has observed as follows:-
“29. We are conscious of the principle that the word “or” is normally disjunctive and “and” is normally conjunctive (see Union of India v. Kamalabai Harjivandas Parekh [AIR 1968 SC 377 : (1968) 1 SCR 463] ). However, there may be circumstances where these words are to be read as vice versa to give effect tomanifest intention of the legislature as disclosed from the context”.
25. If we look at the provisions contained in Section 65 of BNS, it appears that it penalizes two kinds of rape i.e., under Section 65(1), it penalizes rape of a woman under the age of 16 years whereas under Section 65(2), the penalty is for rape of a woman under the age of 12 years whereas Section 70(2) penalizes gang rape (rape of a woman by one or more person constituting a group or acting in furtherance of common intention of a woman who is less than 18 years of age). The basic difference between the two penal provisions is that in case of offence under Section 65, the victim is either less than 16 years of age or less than 12 years of age and the offender is normally a single person, whereas under Section 72(1) of the BNS, the victim is under the age of 18 years and the offenders are more than one person constituting a group or acting in furtherance of common intention. There is unlikelihood of a case where a person would be charged both under Section 65 of BNS as well as under Section 70(2) of BNS. If there is a single offender and the victim is less than 16 years of age, he would be charged under Section 65 of BNS whereas if there are one or more women who is raped by one or more in a group of persons acting in furtherance of their common intention of raping the minor girl, they would be charged under Section 70(2) of BNS. To say in other words, if more than one person are involved in the offence of raping a victim under the age of 18 years, they would not be charged under Section 65 but under Section 70(2) of BNS, therefore, there is unlikelihood of a case being registered under both the sections i.e., Section 65 and Section 70(2) of BNS if there are more than one person involved and victim is less than 18 years of age.
26. Under such circumstances, giving a literal meaning to the word “and” and insisting that the bar of Section 482(4) would be applicable only if both the sections are involved in the case and the accused has been arrested of having his own accusations of committing offence under both the Sections i.e., under Section 65 and Section 70(2) of BNS would result in making the bar provided in Section 482(4) of BNSS almost redundant in any case which would frustrate the legislative intent.
27. Hence, agreeing with the submissions made by the learned Amicus Curiae, this Court is of considered opinion that the word “and” appearing between the words “under Section 65” and “sub-Section (2) of Section 70” in Section 482(4) of BNSS shall have to be read as “or” to give effect to the manifest intention of the legislature.
28. In view of the above discussion, the contention of the learned counsel for the petitioners is rejected and it is hereby held that the embargo of Section 482(4) of BNSS would apply to any case involving the arrest of any person on accusation of having committed an offence under Section 65 or sub-Section (2) of Section 70 of BNS, 2023.
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : AB/446/2025
NAZIR HUSSAIN AND 3 ORS. Vs THE STATE OF ASSAM
BEFORE
MR. JUSTICE MRIDUL KUMAR KALITA
Date : 02.06.2025
Print PageAs per definition pronoun "he" and its derivatives are used of any person, whether male, female or transgender. For the first time, word "transgender" has been included in the definition of "gender", meaning thereby, transgenders cannot claim themselves to be male or female as they are given separate identity. {Para 10}
11. Section 2(35) of BNS defines "Woman" as under:
"2 (35) "woman" means a female human being of any age."
12. As per aforesaid provision of law, woman means female human being of any age. Since under BNS, "woman" and "transgender" have been given different identity and have been defined independently, under Section 2 coupled with the fact that physical relationship inter-se victim- prosecutrix and bail petitioner, if any, was developed prior to surgery of victim-prosecutrix, whereby she allegedly got her sex changed, there appears to be force in the claim of the bail petitioner that he could not have been booked under Section 69 of the BNS.
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr. MP(M) No. 1798 of 2024
Decided On: 30.08.2024
Bhupesh Thakur Vs. State of Himachal Pradesh
Hon'ble Judges/Coram:
Sandeep Sharma, J.
Stalking under the Bharatiya Nyaya Sanhita (BNS) is defined in Section 78, which specifically addresses offenses against women. The law provides a comprehensive definition that covers both physical and digital forms of stalking behavior.
Under Section 78 of BNS, stalking occurs when any man:
Follows a woman and contacts, or attempts to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman; or
Monitors the use by a woman of the internet, e-mail or any other form of electronic communication
The death penalty in India is governed by the Bharatiya Nyaya Sanhita (BNS) 2023 and various special acts, representing the most severe form of punishment for heinous crimes. Here's a comprehensive overview:
The BNS contains multiple sections that prescribe capital punishment for serious offenses:
Sexual Offenses:
In the evolving landscape of India's counter-terrorism legal architecture, two significant legislations stand at the forefront: the Unlawful Activities (Prevention) Act, 1967 (UAPA) and the recently enacted Bharatiya Nyaya Sanhita, 2023 (BNS). This article provides a comprehensive analysis of these laws, examining their provisions, procedural frameworks, and the complex interplay between them in addressing terrorism and national security concerns.
The Unlawful Activities (Prevention) Act was first enacted in 1967 to address anti-national activities and secessionist movements in India, particularly following the peasants' uprising in Naxalbari. Originally designed to prevent unlawful activities threatening India's sovereignty and integrity, the Act has undergone significant transformations through amendments in 2004, 2008, 2013, and 2019.
The Bharatiya Nyaya Sanhita (BNS), India's new criminal code, has introduced significant reforms in addressing heinous crimes that leave victims in devastating conditions. Among these reforms, the legal recognition of "permanent vegetative state" as a consequence equivalent to death marks a watershed moment in Indian jurisprudence. Two key provisions—Section 66 and Section 124—specifically address this condition, reflecting the law's evolving understanding of human suffering and dignity.
The key differences between theft and extortion lie in their methods, consent mechanisms, and the nature of property involved. Here's a comprehensive comparison based on the provisions of both the Indian Penal Code (IPC) and Bharatiya Nyaya Sanhita (BNS):
The essential ingredients of dowry death under Indian criminal law remain consistent between the Indian Penal Code (IPC) and the Bharatiya Nyaya Sanhita (BNS), with Section 304B of IPC now replaced by Section 80 of BNS.
The following four essential ingredients must be established to prove dowry death under both legal frameworks:
Key Elements:
The new criminal laws in India, including the Bharatiya Nyaya Sanhita (BNS), and the Bharatiya Nagarik Suraksha Sanhita (BNSS), introduce several alternatives to imprisonment, shifting towards a more reformative approach.
Here are some key alternatives:
1) Community Service: The BNS introduces community service as a form of punishment for certain offenses. This aims to provide an alternative to traditional imprisonment, addressing issues like prison overcrowding and promoting offender rehabilitation. For instance, the BNS adds that community service may also be imposed as punishment for theft where the value of the stolen property is less than Rs 5,000, the offender is a first-time offender, and the stolen property is returned or its value is restored.
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Criminology's Role in Legislative Reform
Criminology provides essential insights into the nature of crime and the factors that contribute to criminal behavior. In the context of the new laws:
- Understanding Crime Trends: Criminological research has highlighted the rise of organized crime, cybercrime, and other modern offenses. The BNS specifically addresses these issues by defining organized crime comprehensively and introducing stricter penalties to deter such activities.
Print PageSection 111 (1) of the BNS in respect of organised crime is, in essence analogous to the provisions of the Maharashtra Control of Organised Control Act and the Gujarat Control of Terrorism and Organised Crime Act. The legal principles laid down by the Honourable Supreme Court in its interpretation of organised crime as defined by the above two state legislations are applicable on all fours to Section 111 (1) of the BNS. Thus, it is not necessary to have a further interpretation of the above analogous provision. {Para 16}
17. In view of the above discussion, to attract an offence under Section 111 (1) of the BNS it is imperative that a group of two or more persons indulge in any continuing unlawful activity prohibited by law, which is a cognizable offence punishable with imprisonment of three years or more, undertaken by any person, either singly or jointly, as a member of an organised crime syndicate or on behalf of such syndicate in respect of which more than one charge-sheets have been filed before a competent Court within the preceding period of ten years and that Court has taken cognizance of such offence.
18. In the present case, it is undisputed that no charge sheet has been filed against the petitioner in any court in the last ten years. Therefore, prima facie, the offence under Section 111(1) is not attracted.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl. No. 5927 of 2024
Decided On: 13.08.2024
Muhammad Rasheed Vs. State of Kerala
Hon'ble Judges/Coram:
C.S. Dias, J.
Citation: MANU/KE/2836/2024.
Print PageIn a landmark judgment (Bail Application No. 5927 of 2024),Muhammad Rasheed Vs. State of Kerala Decided On: 13.08.2024, the High Court of Kerala has provided crucial clarification on the interpretation of 'organized crime' under the newly enacted Bharatiya Nyaya Sanhita (BNS), 2023. This case, involving a bail application for an accused charged with gold smuggling, offers significant insights into how courts may apply the new organized crime provisions.
Key Insights and Analysis:
Introduction
The law of sedition in India has been a subject of intense debate and legal scrutiny for decades. From its colonial origins to its recent suspension by the Supreme Court, the sedition law has undergone significant evolution. This article traces the journey of India's sedition law and examines its potential reincarnation in new legislation.
Historical Background
Sedition law in India has its roots in the British colonial era. Introduced in 1870, Section 124A of the Indian Penal Code (IPC) criminalized actions that brought or attempted to bring hatred, contempt, or disaffection towards the government. Despite India gaining independence in 1947, this colonial-era law was retained in the IPC.
Constitutional Challenges and Judicial Interpretation
Print PageThe comparison between Section 124A of the Indian Penal Code (IPC) and Section 152 of the Bharatiya Nyaya Sanhita (BNS) Act, 2023 reveals significant changes in the legal framework governing sedition in India. Below is a detailed analysis of how these two provisions differ and their implications.
Implications of Changes
Increased Severity of Punishments
S 152 of BNS significantly increases the potential punishment for acts previously categorized under sedition. While Section 124A of IPC allowed for imprisonment up to three years, Section 150 raises this limit to seven years, with life imprisonment as a possibility for more severe offenses. This change reflects a shift towards harsher penalties for actions deemed threatening to national integrity.
Broader Scope
Print PageThe Maharashtra Control of Organized Crime Act (MCOCA) and the Bharatiya Nyaya Sanhita (BNS) both aim to address organized crime in India, but they differ significantly in their approaches, definitions, and procedural frameworks. Here’s a detailed comparison of their key aspects:
Definitions and Scope
MCOCA
- Definition of Organized Crime: MCOCA defines organized crime as any continuing unlawful activity conducted by individuals as part of an organized crime syndicate, which involves violence, intimidation, or coercion for financial gain or other advantages. It emphasizes the need for a syndicate of two or more persons engaged in such activities.
- Specificity: While MCOCA outlines a broad definition of organized crime, it has been criticized for its vague terms, allowing for its application in various cases, including those already covered under other laws.
BNS
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