Introduction – Bharathiya Nyaya Sanhita, 2023

Notes

Bharatiya Nyaya Sanhita, 2023, replaces the Indian Penal Code. Likewise, the Bharatiya Nyaya Suraksha Sanhita, 2023, replaces the Code of Criminal Procedure.

This replacement comes in the face of modernization of laws, a breakaway from colonial-era laws such as the IPC, the introduction of modern crimes such as cybercrime, stronger penalties, and so on. The idea was to shift from a penal system to a more justice-oriented system.

“Nothing is absolute in Law.”

What is a crime?
Four elements constitute a crime:

The crime or offense must be committed by a person
There must be a mens rea to commit the crime
There must be an actus reus
There must be an injury caused to another person

Definitions to consider

Person: A person could be either natural or artificial, as in the case of corporations, institutions, or companies. A crime could be committed by a person regardless of whether the person is incorporated or not.
Crime: A crime could be defined as an act committed by a person of sound mind with the deliberate intention of causing injury or harm to another person.
Mens rea: Implies a guilty mind, a mind with intent to cause harm.

Criminal liability of a corporation
The traditional view was that corporations, since they do not possess mens rea and are incapable of committing certain crimes such as rape or murder, could not be attributed the mens rea of their agents. They were therefore immune to various criminal liabilities for a long time, especially since the law could not penalize them with punishments such as imprisonment, which were mandatory for certain crimes.

Gradually, however, this evolved. The mens rea of agents involved in a corporation could not be left immune. Agents could be held liable for those offenses requiring mens rea, while the corporation could be held liable for cases where there was no question of mens rea.

The BNS provides a list of “prohibited acts.” Anyone committing these acts is convicted.

Two kinds of wrongs are recognized:

Worldly wrongs: dealt with in the justice system, punishable by law.
Divine wrongs: which require acts of self-conscience such as repentance.

For an act to be considered a crime, all four elements must exist simultaneously.

Crime is not just an act but also the omission of an act. When a person does not perform a duty, and by their inaction causes harm to another person, that too constitutes a crime. These are called illegal omissions.

So, crime can be:

An illegal act, or
An illegal omission.

There are only a few crimes that could be committed by an artificial person. A corporation is an abstraction, without a mind of its own. How then do we incorporate or imply mens rea for such persons? Usually, the person responsible for the act is held vicariously liable for the crime. Depending on the nature of the offense, it is decided who is liable.

In the 1960s, judges were of the view that the mens rea of agents of the corporation could not be attributed to the corporation. It was later settled that offenses punishable through corporeal penalties ought to hold the agents liable regardless of mens rea.

Therefore, corporations cannot claim immunity from criminal liability. Where fine is the punishment, a corporation can be convicted. Where imprisonment is involved, the person responsible can be imprisoned.

Crimes were categorized punishment-wise:

Imprisonments or corporeal
Fines

Mens Rea
“Actus reus non facit reum nisi mens sit rea” – The act is not guilty unless the mind is guilty.

Criminal acts are always intentionally done.

Offenses of Strict Liability
These are offenses that may not require mens rea.

Section 303 of BNS, 2023 defines theft with mens rea (dishonestly, intentionally).
Section 137, kidnapping, however, does not mention mens rea since it is not required.
Acts such as rape – mens rea is not required.

So, almost all offenses require mens rea, though not all. By virtue of the nature of the act, the requirement of mens rea may or may not be necessary.

For example, the Motor Vehicles Act, 1988, Section 185 (drinking and driving) is an example of a strict liability offense.

Mens rea practically allows the judicial system to differentiate between intentional and unintentional offenses. The same action, with different mens rea, leads to different liabilities.

Example: two drivers

Driver A: accidental – tried to avoid accident, but due to circumstances, a death occurred (unintentional).
Driver B: intentionally steered into a person and killed them (intentional mens rea).

“Prima facie.”

Sections 14–44 of the BNS are mostly protections or rights of those convicted or accused, provisions to protect the accused.

To Ponder

Crime isn’t only the act of harming, but also failing to act when duty demands it.
Corporations are abstractions, but they still cannot escape liability.
The distinction between worldly wrongs and divine wrongs brings in an interesting layer to how society defines crime and punishment.
The role of mens rea raises questions about intention, morality, and justice.

Questions

What if a person who was injured by a crime does not consider themselves injured, yet the law requires a complaint or FIR?
Where does AI fit in the whole domain of “person”?
Are ministries of governments considered persons? Do they fall under the same law?
Who is liable for crimes committed by a corporation?
Section 147 of BNS is about offenses committed as waging war against government. How does this apply when government is fought against for the right causes?

Case Studies

State of Maharashtra vs Syndicate Transport Company Pvt Ltd. AIR 1964, Bombay High Court
ANZ Grindlays Bank v. Directorate of Enforcement (2004)
Krishnankumar vs Union of India (1959)

References

Bharatiya Nyaya Sanhita, 2023
Bharatiya Nyaya Suraksha Sanhita, 2023
Motor Vehicles Act, 1988

Keywords / New Words

Person: A natural or artificial being (e.g., corporation, company, institution).
Mens rea: Guilty mind; intention to cause harm.
- Illustration: A driver intentionally rams into a pedestrian.
Actus reus: Guilty act; the physical act of committing the crime.
- Illustration: The actual act of hitting someone.
Illegal omission: Failure to act when duty requires, leading to harm.
- Illustration: A lifeguard ignoring a drowning swimmer.
Strict liability: Offense where intention (mens rea) is not required.
- Illustration: Drunk driving under Section 185 of the Motor Vehicles Act.
Prima facie: At first sight; on the face of it.