Chapter I – Preliminary

1. INTRODUCTION 

The journey of Major Criminal Laws in India begins with the substantive criminal law of the  land. In India, this is the Bhartiya Nyaya Sanhita, 2023 (BNS 2023). The Bhartiya Nyaya  Sanhita received assent from the President in December 2023 and finally came into effect in  July 2024. This Sanhita replaced the previously enacted Indian Penal Code on the grounds of  its roots being attached to the colonial legacy. This Sanhita not only captures the heart and soul  of our Justice system in its truest form by overhauling the British Colonial legacy, but also  addresses the changing landscape of criminal legislation and adjudication with the development  of science, technology, and forensics. This Sanhita focuses deeply on ‘Nyaya’ or ‘Justice’ as  the correct approach towards achieving Justice, rather than just imposing ‘Penalty’ through its  ‘Penal’ provisions. Restitution, not Retribution – should be the motto of the Judiciary, to carry  out Justice throughout the nation, equally. 

2. SHORT TITLE, EXTENT & COMMENCEMENT 

The opening provision of the Bhartiya Nyaya Sanhita 2023 (BNS), i.e., Section 1, provides us  with the Short Title, its Extent, and Commencement. All these topics, shared among  subsections throughout the entire section, will be explained in detail with the help of examples  and relevant case laws below. 

2.1 Short Title 

Section 1(1) of the Bhartiya Nyaya Sanhita or BNS establishes the foundation for all the  subsequent provisions by declaring the title of the statute as “Bhartiya Nyaya Sanhita”. As  mentioned above, Bhartiya Nyaya Sanhita focuses primarily on Nyaya or Justice instead of  ‘Penal’, which adheres to the concept of the retributive theory of punishment. BNS, thus, does  away with the colonial legacy of retribution in default of abiding by the law of the land and  shifts its focus to a more reformative approach to justice.

2.2 Extent 

Sections 1(3) to 1(5) of the Bhartiya Nyaya Sanhita 2023 talk about the territorial extent of the  Sanhita. It gives a general idea about the territorial extent of jurisdiction where the Bhartiya  Nyaya Sanhita can be applied and which type of persons can be held liable under this Sanhita.  A major criminal statute needs to specify its territorial jurisdiction to establish itself properly  in the country’s legal framework. The key feature of the territorial jurisdiction of BNS is that  it extends to the whole of India and beyond. So, by this logic, it can be inferred that the  territorial jurisdiction is categorized into two major categories. Such as – Intra-Territorial  Jurisdiction and Extra-Territorial Jurisdiction. 

2.2.1 Intra-Territorial Jurisdiction 

Section 1(3) of the Sanhita sheds light upon the intra-territorial jurisdiction of BNS. It declares  that for every offence committed within the territory of India, the offender shall be liable under  this Sanhita. Now, how can we determine what is the territory of India? The Territory of India  consists of – 

∙ the geographical territory of India. 

∙ the column of air over the territory of India. 

∙ Waterways surrounding the geographical territory of India (except the high seas). ∙ Every aircraft, ship, tank, etc., whether armed or unarmed, which carries the Indian flag. 

Important Case laws: Mubarak Ali v State of Bombay, AIR 1957 SC 857 2.2.2 Extra-Territorial Jurisdiction 

Section 1(4) and 1(5) of the Bhartiya Nyaya Sanhita 2023 gives extra-territorial operation to  the Sanhita.  

Section 1(4) says that if a person liable by any law for the time being in force in India commits  an offence beyond India, he will be held liable and tried in the same manner as if he had  committed the crime within India. This provision of the BNS makes any person bound by  Indian laws liable for offences committed by them outside India, thus being the first step  towards the extra-territorial operation of the BNS. 

2.2.2.1 Extradition 

Extradition is a process in which a convict is requested to be moved from one jurisdiction to another jurisdiction to properly conduct or continue the trial against him/her. In the case of  Mubarak Ali v State of Bombay, AIR 1957 SC 857, Mubarak Ali was transferred from England  to India by way of extradition to face charges against the offences he committed according to  the Indian Penal Code.1  

In Soering v United Kingdom, it was held that as the convict had a possibility of being subjected to the death penalty for the crime he committed in the USA, the extradition from the  UK to the USA would not be allowed as it would violate basic Human Rights principles.2 

Section 1(4) of the Bhartiya Nyaya Sanhita 2023 extends the scope of extra-territorial jurisdiction even further by declaring that the provisions of this Sanhita will extend to – 

∙ any citizen of India in any place within or beyond India;  

∙ any person on any ship or aircraft registered in India, wherever it may be;  ∙ any person in any place and beyond India committing an offence targeting a computer  resource located in India. 

2.2.2.2 Admiralty Jurisdiction 

Section 1(4) of the Sanhita gives admiralty jurisdiction to the Indian Courts. Admiralty  Jurisdiction refers to the power of the Courts to try offences committed on any ship or aircraft  registered in India, where it might be at the time of the offence.3 A ship is considered a floating  island, so any ship or aircraft which flies the Indian flag will be considered to be a part of the  territory of India. Thus, all vessels, ships or aircraft are considered to be part of the territory of  India. A person who committed an offence on board such a vessel, ship or aircraft will be held  liable according to whose flag the vessel, ship or aircraft is flying. 

2.3 Date of Enforcement of The Bhartiya Nyaya Sanhita 

The Bhartiya Nyaya Sanhita (BNS) came into effect on July 1, 2024, replacing the Indian Penal  Code (IPC). 

1. Mubarak Ali v State of Bombay AIR 1957 SC 857 
2. Soering v. United Kingdom 161 Eur Ct HR (ser. A) (1989) 
3. Fatima Bibi Ahmed Patel v. State of Gujarat AIR 2008 SC 2392
4. DEFINITIONS 

Section 2 of the Sanhita lists all the necessary and frequently used terms, providing certain  definitions for each of them. Each of them carries the same definition except when the context  otherwise requires. These definitions are listed below and reflected upon briefly: 

3.1 act 

An “act” under this Sanhita includes a single act or a series of acts, under Section 2(1). 3.2 animal 

An “animal” under this Sanhita refers to any living creature, whether a human being or not,  under Section 2(2). 

3.3 counterfeit 

“counterfeit”, under Section 2(3), under this Sanhita refers to an act of a person, in which he  causes one thing to resemble another, in such a manner and with such an intent or knowledge  that he/she knows that such resemblance will cause deception. Now, in the explanation part of this section, exact resemblance or imitation is excluded from the essentials that constitute a  ‘counterfeit’ act. 

3.4 court 

As per Section 2(4) of BNS 2023, “court” means a single or a body of judges acting within  their judicial capacities and deciding on legal matters. 

3.5 death 

“death” under Section 2(5) of the BNS means the death or end of life for a human being, unless  the context suggests otherwise. 

3.6 dishonestly 

Under Section 2(6) of BNS, “dishonestly” means an act done with the intention to cause  wrongful gain to one person or wrongful loss to another.

3.7 document 

Under Section 2(7) of BNS, the term “document” refers to any writing, marked, or expressed  in letters, figures, or symbols on anything, intended to be or may be used as evidence in a court  of law. It includes documents such as contracts, cheques, maps, or directions, and embraces  both conventional and everyday accepted forms. 

3.8 fraudulently 

The Bhartiya Nyaya Sanhita, under Section 2(8), defines “fraudulently” as an occurrence  whereby a person does an act with the intention to defraud but not otherwise. 

3.9 gender 

For the purpose of this Sanhita, the term “he” and its derivatives are used for any person,  whether male, female, or transgender, under Section 2(9) of BNS 2023. 

3.10 good faith 

The definition of “good faith” under Section 2(10) of this Sanhita can be considered to be a  negative definition, as it says what is ‘not’ in good faith rather than what is. Therefore, an act  done without due care and attention is not done in good faith. 

3.11 Government 

Under Section 2(11), the term “Government” refers to the Central Government or a State  Government. 

3.12 harbour 

To “harbour” someone under Section 2(12) means to provide them with shelter, food, drink,  money, clothes, arms, ammunition or means of conveyance, or assisting them by any means,  for them to evade apprehension. 

3.13 injury 

“injury” under Section 2(13) of BNS 2023, means any harm which is illegally caused to any  person, concerning their body, mind, reputation or property.

3.14 illegal, legally bound to do 

Under the scope of this Sanhita, under Section 2(14), the word “illegal” applies to everything  which is an offence or which is prohibited by law, or which furnishes ground for a civil action;  whereas, a person is said to be “legally bound to do” something which is illegal for him to omit.  

3.15 Judge 

According to Section 2(15) of BNS 2023, a “Judge” is a person appointed officially to rule on  legal issues, including any individual or group legally empowered to pass a final judgement in  civil or criminal matters. This also encompasses a Magistrate who deals with cases in which  they have the authority to impose a penalty, irrespective of whether or not an appeal is  permissible. 

3.16 life 

“life” under this Sanhita, under Section 2(16), refers to the life of a human being, unless the  context suggests otherwise. 

3.17 local law 

Under Section 2(17) of BNS 2023, “local law” refers to a law applicable only to a particular  part of India. It can include a law made for a particular state, or a specific region within the  state, or it can have jurisdiction in more than one state. 

3.18 man 

“man” under this Sanhita, under Section 2(18) refers to a male human being of any age. 3.19 mental illness 

Under Section 2(19) of BNS 2023, the term “mental health” shall have the meaning which is  assigned to it under clause (a) of Section 2 of the Mental Healthcare Act, 2017. 

3.20 month and year 

Under Section 2(20) of BNS 2023, whenever the term “month” or “year” is mentioned in this  Sanhita, it is to be reckoned according to the Gregorian calendar.

3.21 movable property  

According to Section 2(21), “movable property” includes any property, except land and things  attached to the earth or permanently fastened to anything which is attached to the Earth. In  simpler terms, any property that can be moved from one place to another is a ‘movable  property’. Usually, the transfer of all movable property occurs under the Sales of Goods Act,  1930. 

3.22 Number 

According to Section 2(22) of the Sanhita, unless the context indicates otherwise, words that  import the single number also import the plural number, and words that import the plural  number also import the singular number. 

3.23 oath 

Any declaration mandated or permitted by law to be made in front of a public official or to be  used as evidence, whether in court or not, is considered a “oath” under Section 2(23) of BNS  2023, which is a solemn affirmation that is legally substituted for an oath. 

3.24 offence 

The term “offence”, under Section 2(24) of the Sanhita, refers to acts punishable under the  Sanhita or any special or local law. In most sections, it refers to acts punishable under the  Sanhita or local law, and in sections 183, 205, 206, 232, 233, 243, 247, and 323, it refers to acts punishable under such law with imprisonment for six months or more. 

3.25 omission 

An “act” under this Sanhita includes a single act or a series of acts, under Section 2(25). 3.26 person 

Any business, association, or group of people, whether or not they are incorporated, is  considered a “person” under Section 2(26) of BNS 2023.

3.27 public 

Any community or class of the public is considered “public” under Section 2(27) of BNS  2023. 

3.28 public servant 

By Section 2(28) of BNS 2023, Judges, assessors, arbitrators, commissioned officers in the  Army, Navy, or Air Force, and others are examples of public servants serving in a variety of  capacities. They are also vested with the duty of holding elections, combating crime, and  ensuring better public health. Members of the legislature, municipal corporation, and other  public authorities are chosen through elections. 

3.29 reason to believe 

Under Section 2(29) of this Sanhita, if someone has sufficient reason to believe something  but not otherwise, that person is said to have “reason to believe” it. 

3.30 special law 

Under Section 2(30), “special law” refers to a law that applies to a certain topic. 3.31 valuable security 

“valuable security”, under Section 2(31) of BNS 2023, refers to a document that is, or appears  to be, a document that creates, extends, transfers, restricts, extinguishes, or releases any legal  rights, or in which an individual admits that he is subject to legal responsibility, or lacks a  specific legal entitlement. 

3.32 vessel 

Under Section 2(32), the term “vessel” means anything made for the conveyance by water of  human beings or of property. 

3.33 voluntarily 

Under Section 2(33), A person is said to cause an effect “voluntarily” when he causes it by  means whereby he intended to cause it, he knew or had reason to believe to be likely to cause  it.

3.34 will 

Under Section 2(34), a “will” is any testamentary document. The laws related to ‘will’ are  according to the Indian Succession Act. 

3.35 woman 

“woman” under this Sanhita, under Section 2(35), refers to a female human being of any age. 3.36 wrongful gain 

“wrongful gain”, under Section 2(36), means the gain of property caused by unlawful means  to the person who is not legally entitled to enjoy ownership of that property. 

3.37 wrongful loss 

“wrongful loss”, under Section 2(37), means the loss of property caused by unlawful means to  the person who is legally entitled to enjoy ownership of that property. 

3.38 gaining wrongfully, losing wrongfully 

Under Section 2(38) of this Sanhita, a person is said to “gain wrongfully” when that person  retains or acquires something wrongfully. On the other hand, a person is said to “lose  wrongfully” when he is kept out or deprived of any property. 

4. GENERAL EXPLANATIONS 

Section 3 of the Bhartiya Nyaya Sanhita sets the fundamental principles of this Sanhita in place.  It helps in removing the complexity that arises while interpreting the provisions in a court of  law. This section discusses topics like gender neutrality in language, reference to acts includes  illegal omissions, voluntary acts, etc. Most importantly, this section guarantees uniformity,  lucidity, equity and clarity. So, let us briefly discuss each of these principles in the following  points: 

4.1 Understanding of definitions subject to exceptions  

According to Section 3(1), every definition provided under this Sanhita shall be understood  along with the exceptions attached to them in Chapter III – General Exceptions. Let us 

understand this principle using an illustration provided under the illustration part of Section  3(1). 

Illustration: 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. 

So, to ensure the exceptions are well integrated and recognised by the Sanhita, this sub-section  was incorporated. This sub-section promotes the general defences the Sanhita provides to  safeguard the rights of the individuals. 

4.2 Uniform Expression 

Section 3(2) of the Bhartiya Nyaya Sanhita 2023, every expression that is explained in any of  the Sections of this Sanhita bears the same meaning in every Section of this Sanhita in a manner  that is consistent with the explanation. This provision promotes consistency in the legal  interpretation of statutes. This subsection assists the judges and lawyers throughout the country  to achieve uniformity in the interpretation of the Sanhita. 

4.3 Gender Neutrality in Possession of Property 

Under Section 3(2), when a person’s spouse, clerk, or servant is in possession of property on  behalf of that person, the property is regarded to be in the ownership of the person. The  explanation portion of the subsection includes temporary servants and clerks also within the  ambit of this subsection. 

Example: A, being B’s wife, is in possession of B’s house. In that case, A will be regarded as  having ownership of B’s property alongside B. 

4.4 Reference To Acts Includes Illegal Omissions  

Section 3(4) of the Bhartiya Nyaya Sanhita 2023 expands the scope of criminal liability by  incorporating ‘illegal omissions’ for every act done. Illegal Omission refers to neglecting to 

perform the law where one is specifically supposed to perform it. So, for example, for example,  if a person is aware of the occurrence of an offence and does not report it to the authorities as  they are legally obligated to do so, their failure to report can face penal sanctions under the  Sanhita. 

4.5 Liability for Acts Done by Several Persons in Furtherance of a Common Intention  

According to Section 3(5) of the Bhartiya Nyaya Sanhita 2023, when in furtherance of the  common intention of all, a criminal act is done by several persons, each of such persons will  be held liable for that act in the same manner as if the criminal act were done by the individuals  alone. 

In the case of Barendra Kumar Ghosh v. King Emperor (1925), the Privy Council upheld the  principle of joint liability under Section 34 IPC, holding that participation in a crime with a  common intention makes all participants equally liable, regardless of the specific role played.4 

5. CONCLUSION 

Chapter 1 of the Bhartiya Nyaya Sanhita opens up the statute in great detail. Provisions taken  from the IPC, also the new ones added in the Sanhita, determine the title, territorial jurisdiction  and basic principles which lay the foundation for a robust criminal legislation. These provisions  are not procedural alone but have substantive significance in determining how offences are  conceptualised, prosecuted, and decided. Overall, Chapter I marks a distinct departure from the  colonial basis of the IPC and evidences a progressive, constitutionally informed approach to  criminal justice in India.