BHARATIYA NYAYA SANHITA (LAW OF CRIMES I)

Objective of the Course:

It was Lord Macaulay who moved the House of Commons in 1833 to codify the whole of
Criminal Law in India. This codification of both the substantive ( the Indian Penal Code,
1860) and adjectival (Procedural) Criminal law (The Criminal Procedure Code, 1973)
brought uniformity and definiteness to the Criminal jurisprudence in India. In the year
2020, The ministry of Home Affairs constituted a committee to review the existing
criminal laws as they were enacted to rule the nation rather than serve the citizens.
Constitution, human rights, techno centricity, unambiguous and consistent procedures,
time bound investigation and trial, balancing the rights of victims vis-à-vis the accused
were the guiding principles for drafting the new criminal laws. The Bharatiya Nagrik
Suraksha Sanhita and The Bharatiya Nyaya Sanhita (Referred to as “B.N.S”) together
constitute 'Criminal Law’ of India. These laws marks end of colonial era laws. The
Bharatiya Nyaya Sanhita is a Substantive law containing 358 sections. It replaced the
Indian Penal Code of 1860. New forms of offences and punishments are introduced in
the act. Definition of offences, containing many ingredients must be remembered with
abundant caution. Even if one ingredient is slipped, it will not amount to an offence.
Further, the illustrations play a dominant role and should be studied again and again to
comprehend the essentials of the offences. 'Mens rea' which is the subject of great
discussion in England, is much simplified by the B.N.S. The subject is heavy but is worth
its weight in gold.

After undergoing the study, the student will be able to understand the following:

 Analyze Criminal acts, their elements, parties to offences and application of the
criminal justice system
 Express an increased awareness of the legal principles of criminal law and its
application
 Students will demonstrate an understanding of the origins of criminal behaviour,
society's response to crime, and the consequences of crime to our society, utilizing
multiple perspectives
 Students will articulate ethical implications of decision making in a professional
capacity.
 COURSE OUTLINE

Module I: Nature and Scope of Criminal Law

a) History of Criminal Law- Development, Nature, Commencement, Extent &
Applicability-Principles of Criminal Law -Crime Definition- Committee for
Reforms in Criminal Law (2020)- IPC and BNS comparative analysis
b) Elements of Crime: Mens Rea- Actus Reus - Psychology of crime- Stages of
Crime:
Intention, Preparation, Attempt & Commission
c) Classification of crime: General- specific- Group- Joint and Constructive Liability-
Corporate Liability
d) Jurisdiction: Territorial-Extra Territorial Jurisdiction
e) Inchoate Crime- Criminal Conspiracy- Abetment-Attempt

Module II: General Exceptions

a) Object, Nature & Scope -Excusable & Justifiable-Whether Exhaustive-Burden

of Proof
b) Mistake-Judicial Acts –Accident-Necessity
c) Infancy-Insanity-Intoxication –Consent
d) Good Faith-Compulsion or Threat -Trivial Acts
e) Right of Private Defence

Module III: Punishment

a) Punishments-Theories of punishment
b) Types of punishment- Death Penalty – Imprisonment for life - Rigorous imprisonment-
Simple imprisonment- Forfeiture of property-Fine - Community service
c) Commutation of sentence
d) Solitary confinement-Limit of solitary confinement
e) Enhanced punishment

Module IV: Offences against Human Body

a) Culpable Homicide and Murder- Organised crime- Terrorism- Mob lynching
b) Rash and Negligent Act-Attempt and Abetment to Suicide
c) Hurt and Grievous Hurt- Criminal Force and Assault-Wrongful Restraint and
 Wrongful Confinement
d) Kidnapping and Abductions
e) Offences against Women -Outraging the Modesty of Women-Cybercrime
against women-Voyeurism-Stalking-Sexual harassment- Acid Attack-Rape and
Unnatural Offences- Cruelty- Dowry death, Offences relating to Marriage and
false promise to marry

Module V: Offences against Property

a) Theft, Extortion, Robbery and Dacoity
b) Criminal Misappropriation and Criminal Breach of Trust
c) Cheating and Forgery-Mischief-Receiving Stolen Property
d) Fraudulent Deeds & Disposition of Property-Criminal Trespass
e) Offences Relating to Documents & to Property Marks.

Module VI: General Offences

a) Offences against State -Offences against Election
b) Offence Relating to Coins & Government Stamps
c) Offences Relating to Religion- Defamation- Criminal Intimidation, Insult & Annoyance
d) Offence Relating to Weights & Measures-Offence Affecting the Public Health,
Safety, Convenience, Decency & Morals
e) Offences Relating to the Army, Navy & Air Force-Offences against the
Public Tranquility-False Evidence & Offence against Public Justice.

History and Development of the Indian Penal Code

Pre-Colonial Period
Before the establishment of British rule, India did not
have a uniform legal system. Laws varied regionally
and were influenced by religious texts, such as the
Hindu Dharmashastra and Islamic Sharia law.
Early British Rule
With the advent of British colonialism in the 18th
century, the East India Company initially followed the
existing Mughal legal system, which was a mix of
Islamic law for Muslims and Hindu law for Hindus.
However, this system was inconsistent and lacked
uniformity.
Need for Codification
The British recognized the need for a uniform legal
system to administer justice fairly and efficiently across
their Indian territories. The complexities of the pre-
existing legal systems necessitated the introduction of a
codified legal framework.
Drafting of the Indian Penal Code
- Law Commission and Macaulay: In 1834, the first
Law Commission was established under the
chairmanship of Thomas Babington Macaulay. The task
was to draft a comprehensive penal code for India.
- Macaulay's Draft: Macaulay, with his commission
members, drafted the Indian Penal Code
(IPC). The draft was influenced by the English law, the
Napoleonic Code, and the Louisiana Civil Code.
- Completion and Delay: The draft was completed in
1837 but faced several delays due to administrative and
procedural reasons.
Enactment of the Indian Penal Code
- Approval and Implementation: After a series of
reviews and amendments, the IPC was enacted on
October 6, 1860, and came into force on January 1,
1862.
- Uniform Code: The IPC provided a uniform penal
code for the whole of British India, applicable to all its
inhabitants regardless of religion or caste.
Structure of the Indian Penal Code
- General Provisions: The IPC is divided into 23
chapters, containing 511 sections. The initial chapters
lay down general principles of criminal law, definitions,
and punishments.
- Specific Offences: Subsequent chapters describe
specific offences, such as offences against the state,
public tranquility, human body, property, and
reputation.
Post-Independence Amendments
- Adaptation: After independence in 1947, the IPC was
adopted by the Republic of India with minimal changes.
The code has been amended several times to address
contemporary issues.
- Significant Amendments:
- Dowry Prohibition: Amendments to address
dowry-related crimes.
- Rape Laws: Reforms to make rape laws more
stringent and victim-friendly.
- Anti-Terrorism: Provisions to tackle terrorism and
related activities.
- Cyber Crimes: Amendments to address crimes in the
digital domain.
Contemporary Relevance
- Continued Relevance: The IPC remains the
cornerstone of criminal law in India, providing a
comprehensive framework for the prosecution of
criminal activities.
- Criticisms and Calls for Reform: Despite its
strengths, the IPC has been criticized for being outdated
in certain areas, and there have been calls for
comprehensive reforms to align it with modern societal
values and technological advancements.
 Features and Principles
- Principle of Legality: No person can be punished for
an act that was not legally defined as an offence at the
time it was committed.
- Doctrine of Mens Rea: Criminal liability generally
requires both a wrongful act (actus reus) and a guilty
mind (mens rea).
- Classification of Offences: Offences are classified
based on their nature and severity, such as cognizable
vs. non-cognizable, bailable vs. non-bailable, and
compoundable vs. non-compoundable.
The Indian Penal Code, conceived during the British
colonial era, has evolved into a robust legal document
that continues to govern criminal law in India. Its
adaptability through amendments ensures it remains
relevant, addressing new forms of crime and aligning
with modern legal principles. The IPC's development
reflects India's legal history and its ongoing efforts to
maintain justice and order in a diverse and dynamic
society.
History of the Bharatiya Nyaya Sanhita (BNS)
Background and Need for BNS
The Indian Penal Code (IPC), drafted in 1860, has
served as the backbone of the Indian criminal justice
system for over a century and a half. Despite numerous
amendments, it has faced criticism for being outdated,
with many provisions reflecting colonial-era values and
needs. The need for a comprehensive overhaul became
apparent as India progressed and societal norms
evolved.

Formation of Committees and Commissions

In light of the growing consensus for reform, several
committees and commissions were formed over the
years to evaluate and suggest changes to the IPC and
related laws:
- Malimath Committee (2000-2003): This committee
was tasked with suggesting reforms for the criminal
justice system. It highlighted the need for
modernization and the inclusion of victim-centric
approaches.
- Madhava Menon Committee (2007): This committee
focused on the need for comprehensive legal education
reforms and also touched upon the modernization of
criminal laws.
- Law Commission of India Reports: Over the years,
the Law Commission has submitted numerous reports
recommending changes to various sections of the IPC to
reflect contemporary values and challenges.
Drafting of the Bharatiya Nyaya Sanhita
- Formation of the Drafting Committee: A dedicated
committee was formed under the Ministry of Home
Affairs to draft the new penal code, which would be
known as the Bharatiya Nyaya Sanhita (BNS).
- Objective: The objective was to create a penal code
that is more aligned with Indian values, traditions, and
modern societal needs. This included addressing gaps in
the existing IPC, incorporating victim rights, and
making the law more accessible and comprehensible to
the general public.
- Consultation and Feedback: The drafting process
involved extensive consultations with legal experts,
scholars, law enforcement agencies, and the public.
This collaborative approach aimed to ensure the new
code was comprehensive and representative of diverse
perspectives.
Features and Changes in the BNS
- Modernization: The BNS incorporates provisions to
address modern crimes such as cybercrime, financial
fraud, and terrorism, which were inadequately covered
under the IPC.
- Victim Rights: Greater emphasis is placed on the
rights and rehabilitation of victims, ensuring they
receive justice and support throughout the legal process.
- Simplification and Clarity: Legal language and
procedures have been simplified to make the law more
accessible and understandable to the common citizen.
- Gender Sensitivity: The BNS includes more gender-
sensitive provisions, addressing issues like domestic
violence, sexual harassment, and gender- based violence
more effectively.
- Alignment with International Standards: The BNS
aligns with international human rights standards and
treaties to which India is a signatory, ensuring the
country's legal framework is in harmony with global
norms.

Enactment and Implementation

- Approval and Adoption: After extensive
deliberations and revisions, the Bharatiya Nyaya
Sanhita was approved by the Parliament and
subsequently enacted into law.
- Implementation: The government undertook
measures to ensure a smooth transition from the IPC to
the BNS, including training for law enforcement
officials, public awareness campaigns, and updates to
legal textbooks and resources.
Contemporary Impact and Relevance
- Legal Reform: The introduction of the BNS
represents a significant step in legal reform in India,
reflecting the nation's progress and contemporary
values.
- Judicial Efficiency: By addressing procedural
inefficiencies and ambiguities, the BNS aims to
enhance the efficiency of the judicial system, reducing
delays and improving the delivery of justice.
- Public Trust: The BNS is designed to restore and
enhance public trust in the legal system by making it
more transparent, fair, and responsive to the needs of
the people.
The Bharatiya Nyaya Sanhita marks a new era in India's
legal history, moving away from colonial-era laws to a
more modern, inclusive, and Indian-centric legal
framework. It is a testament to India's commitment to
legal reform and justice for all its citizens, ensuring the
legal system remains robust, fair, and relevant in the
21st century.

The principles of Indian criminal law are rooted in

various legal doctrines and aim to ensure justice,
fairness, and equity in the criminal justice system. Here
are some principles that underpin Indian criminal law:

1. Legality (Nullum Crimen, Nulla Poena Sine Lege)

- Principle: No one can be punished under a law unless
the act is explicitly defined as an offence by a legal
statute at the time of its commission.
- Application: This principle ensures that individuals
are only punished for acts that are clearly prohibited by
law, preventing arbitrary enforcement and retrospective
penalization.

2. Presumption of Innocence
- Principle: An accused person is presumed innocent
until proven guilty.
- Application: The burden of proof lies on the
prosecution, and the accused is given the benefit of the
doubt if there is any uncertainty regarding their guilt.

3. Burden of Proof
- Principle: The prosecution must prove the guilt of the
accused beyond a reasonable doubt.
- Application: This high standard ensures that only
those who are genuinely guilty are convicted, protecting
innocent individuals from wrongful punishment.

4. Mens Rea (Guilty Mind)

- Principle: Criminal liability generally requires a guilty
mind or intent (mens rea) along with a wrongful act
(actus reus).
- Application: Most crimes require both a wrongful act
and a criminal intent. Without mens rea, the act may not
constitute a crime, though there are exceptions like strict
liability offences.

5. Actus Reus (Guilty Act)

- Principle: A criminal act or omission must occur to
constitute an offence.
- Application: The physical act or illegal omission must
be voluntary and constitute the prohibited behavior
defined by law.
 6. Causation
- Principle: There must be a causal link between the
defendant's conduct and the harm caused.
- Application: The prosecution must establish that the
accused's actions were the direct cause of the criminal
consequence.

7. Double Jeopardy (Autrefois Acquit and Autrefois

Convict)
- Principle: No person can be tried or punished twice
for the same offence.
- Application: This principle prevents multiple
prosecutions and punishments for the same act, ensuring
fairness and finality in the legal process.

8. Right to Fair Trial

- Principle: Every accused person has the right to a fair
and public trial by an impartial tribunal.
- Application: This includes the right to legal
representation, the right to be heard, the right to present
evidence, and the right to cross-examine witnesses.

9. Proportionality of Punishment
- Principle: The punishment for a crime should be
proportionate to the severity of the offence.
- Application: This ensures that the punishment fits the
crime and upholds principles of justice and equity.

10. Non-Retroactivity
- Principle: No person can be prosecuted and punished
under a law that was not in effect at the time the offence
was committed.
- Application: Laws cannot be applied retroactively
to penalize actions that were not crimes when they were
committed.
11. Right Against Self-Incrimination
- Principle: An accused person cannot be compelled to
testify against themselves.
- Application: This protects individuals from being
forced to provide evidence that could be used to convict
them.

12. Equality Before the Law

- Principle: Every individual is equal before the law
and is entitled to equal protection of the laws.
- Application: There should be no discrimination in the
administration of criminal justice based on race, religion,
caste, sex, or any other arbitrary criteria.

13. Natural Justice

- Principle: The principles of natural justice include
the right to a fair hearing (audi alteram partem) and the
rule against bias (nemo judex in causa sua).
- Application: These principles ensure that judicial and
quasi-judicial processes are conducted fairly and
impartially.

14. Right to Legal Aid

- Principle: Indigent accused persons have the right to
free legal aid.
- Application: This principle ensures that justice is
accessible to all, regardless of their financial status.
These principles collectively ensure that the criminal
justice system in India functions in a manner that is just,
fair, and equitable. They protect the rights of
individuals while also ensuring that those who commit
crimes are held accountable for their actions.
Definition

Samuel Kenny's Definition:

 Definition: "Crimes are wrongs whose sanction is
punitive, and are in no way remissible by any
private person, but are remissible by the crown
alone, if remissible at all."
H.L.A. Hart:
 Definition: A crime is an action that breaks the
rules laid down by a society’s legal system,
attracting prescribed legal consequences.
Cesare Beccaria:
  Definition: Crimes are defined as actions harmful
to society, which are prohibited by law and
punishable by a penalty.
Edwin Sutherland:
 Definition: Crime is a behavior that is in violation
of criminal law and is punishable by the state.
Paul Johann Anselm von Feuerbach:
 Definition: A crime is a violation of a statute that
commands or forbids an action, sanctioned with a
penalty by the state.
John Austin:
 Definition: A crime is any act or omission which
the sovereign has determined shall be punished by
a certain amount of pain or inconvenience inflicted
for the purpose of prevention.
William Blackstone:
 Definition: A crime is an act committed or omitted
in violation of a public law forbidding or
commanding it.
Essential elements that form the core understanding
of what constitutes a crime:

1. Violation of Law:
 - Essential Aspect: Crimes involve acts or omissions
that violate established laws.
- Explanation: All jurists agree that for an act to be
considered a crime, it must be against the legal norms
set by a governing authority. This is a fundamental
characteristic that distinguishes crimes from morally
wrong but legally permissible actions.

2. Public Wrong:
- Essential Aspect: Crimes are considered offences
against the state or society as a whole, not just
individual victims.
- Explanation: The concept that crimes are public
wrongs, as opposed to private disputes (like breaches of
contract or torts), is crucial. This is highlighted by
Blackstone, Sutherland, and Kenny, emphasizing the
societal impact of criminal acts.

3. Punitive Sanctions:
- Essential Aspect: Crimes attract punitive sanctions
such as imprisonment, fines, or other penalties.
- Explanation: The primary response to crimes is
punishment, designed to deter, incapacitate, rehabilitate,
or retribute. This punitive aspect is stressed by Austin,
Kenny, and Beccaria.
 4. State Prosecution:
- Essential Aspect: Crimes are prosecuted by the state,
not by private individuals.
- Explanation: Only the state (or its representatives)
has the authority to prosecute and punish criminal acts.
Kenny’s definition specifically notes that private
individuals cannot remit crimes.

5. Harm to Society:
- Essential Aspect: Crimes are actions that cause harm
or pose a threat to societal order.
- Explanation: Beccaria and Sutherland emphasize
the harm or potential harm to society as a criterion for
what constitutes a crime, linking the definition of crime
to its social consequences.

6. Legality Principle:
- Essential Aspect: Crimes must be defined by clear,
written laws (the principle of legality).
- Explanation: Feuerbach’s and Hart’s definitions
underscore the importance of legality, ensuring that no
one is punished under criminal law unless their conduct
was clearly prohibited at the time it occurred.

7. Remissibility:
- Essential Aspect: Crimes are remissible by the state,
particularly by the sovereign power.
 - Explanation: Kenny’s definition highlights that
while private persons cannot remit crimes, the state (or
the crown) retains the power to pardon or mitigate
punishments, providing a mechanism for mercy and
clemency within the legal system.

Summary of Essentials:
1. Violation of Law: An act must contravene
established legal norms.
2. Public Wrong: The act must harm society or the state,
not just individuals.
3. Punitive Sanctions: The act must attract
punishment by law.
4. State Prosecution: Only the state can prosecute and
punish criminal acts.
5. Harm to Society: The act must cause or threaten
societal harm.
6. Legality Principle: Crimes must be clearly
defined by law.
7. Remissibility: The state holds the power to
pardon or mitigate punishment.

These essentials help frame the nature of criminal

behavior within legal systems and guide the
development and enforcement of criminal laws.
 Etymology of "Crime":

1. Proto-Indo-European Roots:
- The word "crime" traces back to the Proto-Indo-
European root krei- or krei-d-, meaning "to sift" or "to
separate," symbolically implying judgment or
distinguishing right from wrong.
2. Latin Origin:
- The term evolved into Latin as crimen, which
initially meant "charge" or "accusation" and later came
to signify "fault" or "offence." This reflects the process
of distinguishing an act as worthy of legal judgment.

3. Old French Influence:

- The Latin crimen was adopted into Old French as
crimne or crimme, maintaining the sense of an
accusation or a legal offence.

4. Middle English Adoption:

- The term entered Middle English as crimen,
evolving into the modern English word "crime," which
encompasses the contemporary understanding of an act
punishable by law.

Summary:
- Proto-Indo-European: krei- (to sift, separate;
judgment).
- Latin: crimen (charge, accusation; fault,
offence).
- Old French: crimne or crimme (accusation, offence).
- Middle English: crimen → crime
(punishable offence).

Contextual Significance:
- The etymological journey of "crime" from a concept
of judgment and separation in Proto-Indo-European,
through its legal connotations in Latin and Old French,
to its current meaning in English, underscores its
intrinsic link to societal norms and legal systems. The
term reflects the process by which societies identify,
judge, and punish acts deemed harmful or unacceptable.

PSYCHOLOGY OF CRIME
The psychology of crime, also known as criminological
psychology, studies the mental processes and behaviors
associated with criminal activity.
It seeks to understand why individuals commit crimes,
what factors contribute to criminal behavior, and how
psychological principles can be applied to prevent and
address crime.
Concepts in the Psychology of Crime

1. Biological Factors:
- Genetics: Research suggests that genetic
predispositions can influence behavior, including
tendencies toward aggression and impulsivity.
- Neurobiology: Brain structure and function,
neurotransmitter imbalances, and hormonal influences
can impact behavior.
- Psychophysiology: Low arousal(stimulation) levels
and atypical(uncommom) responses to stress can be
linked to criminal behavior.

2. Psychological Theories:
- Psychodynamic Theories: These theories, rooted in
Freudian psychology, emphasize unconscious conflicts,
childhood experiences, and early family dynamics.
- Behavioral Theories: Focus on how criminal
behavior is learned through interactions with the
environment. concepts include strengthening,
punishment, and observational learning.
- Cognitive Theories: Examine how thought
processes, attitudes, and beliefs influence criminal
behavior. Cognitive(reasoning) distortions and
decision-making processes are critical areas of study.
3. Sociological Factors:
- Social Learning Theory: Proposed by Albert
Bandura, this theory emphasizes that people learn
criminal behavior by observing and imitating others,
especially when they see such behavior being rewarded.
- Strain Theory: Suggests that societal pressures and
lack of legitimate means to achieve goals can lead
individuals to engage in criminal activities.
- Social Control Theory: Focuses on why people obey
laws rather than why they commit crimes, emphasizing
the role of social bonds and institutions in preventing
deviant behavior.

4. Personality and Crime:

- Antisocial Personality Disorder (ASPD):
Characterized by a long-term pattern of disregarding or
violating the rights of others, often linked to criminal
behavior.
- Psychopathy: A severe form of ASPD, involving a
lack of empathy, guilt, and remorse, and often associated
with manipulative and violent behavior.

5. Developmental Factors:
- Early Childhood Experiences: Adverse childhood
experiences (ACEs), such as abuse, neglect, and family
dysfunction, can significantly impact future behavior.
 - Life-Course Theories: Examine how individual
behavior develops over time, identifying risk factors and
protective factors at various life stages.

6. Environmental Influences:
- Family Environment: Family structure, parenting
styles, and family relationships play a crucial role in
shaping behavior.
- Peer Influence: Peer groups can have a significant
impact, particularly during adolescence, either
encouraging or deterring criminal behavior.
- Community and Socioeconomic Factors: Poverty,
lack of education, and exposure to violence can
contribute to criminal behavior.

Applications of Psychology in Criminal Justice

1. Criminal Profiling: Using psychological principles

to identify potential characteristics and behaviors of
criminal offenders.
2. Risk Assessment: Evaluating the likelihood that an
individual will engage in future criminal behavior, often
used in sentencing and parole decisions.
3. Rehabilitation Programs: Designing and
implementing interventions to reduce recidivism and
support offenders in making positive changes.
4. Victim Support: Providing psychological assistance
to victims of crime to help them recover and cope with
the impact of the crime.
5. Interrogation Techniques: Applying
psychological methods to obtain accurate information
from suspects and witnesses while avoiding coercion
and false confessions.

Prominent Figures in the Psychology of Crime

1. Sigmund Freud: His psychodynamic theories laid the

groundwork for understanding the influence of
unconscious processes and early experiences on
behavior.
2. Albert Bandura: Developed the Social Learning
Theory, emphasizing the role of observational learning
in behavior.
3. Hans Eysenck: Proposed theories linking
personality traits, particularly extraversion and
neuroticism, to criminal behavior.
4. Robert Hare: Known for his work on psychopathy
and the development of the Hare Psychopathy Checklist.

Understanding the psychology of crime is essential for

developing effective prevention strategies, designing
rehabilitation programs, and implementing fair and
effective criminal justice policies.
ELEMENTS OF A CRIME
The elements of a crime are the specific factors or
components that must be proven for a person to be
legally found guilty of committing a crime. These
elements vary depending on the specific crime, but
generally, they fall into the following categories:

Human being /person/animals/robots

1. Actus Reus (Guilty Act)
Actus reus refers to the physical act of the crime. It
must be a voluntary action, omission, or state of being
that is prohibited by law. For a crime to occur, there
must be a wrongful act, conduct, or result caused by the
defendant's actions.

- Commission: Performing an illegal act (e.g.,

theft, assault).
- Omission: Failing to act when there is a legal duty
to do so (e.g., not providing care for a dependent).
- Possession: Having control over something
illegal (e.g., drugs, stolen property).
 2. Mens Reus (Guilty Mind)
Mens reus refers to the mental state or intent of the
person committing the act. Different crimes require
different levels of intent, ranging from negligence to
specific intent.

- Intent: Purposefully committing the act with a

particular outcome in mind.
- Knowledge: Being aware that the act is illegal or will
result in a certain outcome.
- Recklessness: Disregarding a substantial risk that the
act will cause harm.
- Negligence: Failing to be aware of a substantial and
unjustifiable risk that the act will cause harm.

3. Concurrence
Concurrence means that the actus reus and mens reus
must occur together. The guilty mind must coincide
with the guilty act for a crime to be committed. For
instance, accidentally causing harm without a guilty
mind would not fulfill this element.
4. Causation
Causation links the defendant's actions to the resulting
harm. There are two types of causation:
- Factual Causation: Also known as "but-for"
causation. It means that the harm would not have
occurred "but for" the defendant's actions.
- Legal Causation: Also known as "proximate cause."
It considers whether the harm was a foreseeable result of
the defendant's actions and whether it is fair to hold the
defendant responsible.

5. Harm
Harm refers to the injury, damage, or negative impact
caused by the criminal act. Some crimes require actual
harm (e.g., physical injury in assault cases), while
others only require the potential for harm (e.g., reckless
driving).

6. Attendant Circumstances
Attendant circumstances are specific conditions or
context in which the crime must occur. These are
additional facts that must be proven for the crime to be
established.

- Example: For burglary, the attendant circumstances

include unlawfully entering a building with the intent to
commit a crime inside. For statutory rape, the victim's
age and lack of consent are crucial attendant
circumstances.

Application in Criminal Law

 Understanding and proving these elements is crucial in
criminal law as they form the basis of criminal liability.
Prosecutors must establish each element beyond a
reasonable doubt to secure a conviction. Defense
attorneys may focus on disproving one or more of these
elements to defend their clients.

Examples of Elements in Specific Crimes

Theft (Larceny)
- Actus Reus: Taking someone else's property.
- Mens Reus: Intent to permanently deprive the
owner of the property.
- Concurrence: The intent to deprive and the act of
taking must occur together.
- Causation: The act of taking causes the loss of
property.
- Harm: Loss of property to the owner.

STAGES OF A CRIME

The stages of a crime are essential phases that outline

the progression from the initial thought to the
completion of a criminal act. These stages are often
categorized as intention, preparation, attempt, and
commission. Understanding these stages helps in
distinguishing different levels of criminal liability and
intent.
 1. Intention
Intention is the initial stage where the individual forms
the idea or desire to commit a crime. At this stage, there
is no action taken, just the mental resolve to engage in
criminal behavior.

- Characteristics:
- Purely mental state.
- No physical action or preparation.
- Generally not punishable unless accompanied by
other incriminating factors (e.g., conspiracy).

2. Preparation
Preparation involves taking steps to plan or arrange the
means necessary to commit the crime. This stage
includes actions that do not directly lead to the
commission of the crime but are geared towards it.

- Characteristics:
- Acts like buying tools or weapons, scouting
locations, or gathering information.
- Preparation alone is typically not punishable unless it
involves certain specific offences (e.g., possessing
burglary tools).
 - It demonstrates a progression from mere intention to
actual steps toward committing the crime.

3. Attempt
Attempt is the stage where the individual takes direct
action towards committing the crime but fails to
complete it. The attempt stage is crucial as it
demonstrates the transition from preparation to
execution.

- Characteristics:
- Clear and unequivocal steps towards the commission
of the crime.
- Actions that would lead to the crime if not
interrupted or otherwise unsuccessful.
- Legally punishable in many jurisdictions because it
shows a clear intent and dangerous proximity to
completing the crime.

4. Commission
Commission is the final stage where the crime is
successfully carried out. At this point, the individual
completes all elements of the crime, and the illegal act
is fully executed.

- Characteristics:
- The crime is fully realized, and all elements of the
offence are present (actus reus, mens reus, concurrence,
causation, harm).
- The individual is now liable for the full
consequences of the criminal act.
- Punishable according to the severity of the crime
committed.

Examples of the Stages in Practice

1. Theft
- Intention: Deciding to steal a valuable item from a
store.
- Preparation: Visiting the store to observe security
measures and planning the time for the theft.
- Attempt: Trying to take the item and hide it but being
caught by store security before leaving.
- Commission: Successfully taking the item out of the
store without being detected.

Legal Implications
- Intention: Generally not punishable unless coupled
with conspiracy or solicitation.
- Preparation: Rarely punishable except in cases
involving preparatory acts that are criminal in nature
(e.g., possessing explosive devices).
- Attempt: Punishable as it demonstrates a clear intent
and a direct move towards committing the crime.
Laws typically provide for lesser penalties than for the
completed crime but significant enough to deter such
conduct.
- Commission: Fully punishable with penalties
corresponding to the severity of the crime committed.

Understanding these stages helps law enforcement and

the judiciary in determining the level of criminal
liability and the appropriate legal response. It also helps
in the prevention of crime by allowing intervention
before the crime is fully carried out.
Test and rules
To determine whether a defendant's actions have
reached the stage of criminal attempt or remain at the
preparation stage, various legal tests and rules can be
applied. These rules help clarify when preparatory
actions cross the line into a criminal attempt. Here are
some of the primary rules used in this context:
1. Proximity Rule
The proximity rule examines how close the defendant's
actions have come to completing the crime. It looks at
whether the defendant's actions were proximate enough
to the final act that would constitute the commission of
the crime.
- Question: How close were the defendant's actions to
the completion of the crime?
- Application: The closer the actions are to the final
criminal act, the more likely they are to be considered
an attempt rather than mere preparation.
2. Last Act Test
The last act test is a stricter version of the proximity
rule. It requires that the defendant must have performed
the last act necessary to complete the crime, leaving no
further actions to be done.
- Question: Did the defendant perform the last act they
could do to complete the crime?
- Application: This test is often criticized for being too
rigid, as it requires the defendant to have done
everything short of the actual completion of the crime.
3. Dangerous Proximity Test
The dangerous proximity test focuses on the seriousness
of the offence and the degree of danger posed by the
defendant's actions. It considers how close the
defendant's actions were to the commission of the crime
and whether those actions posed a significant threat.
- Question: Were the defendant's actions dangerously
close to completing the crime?
- Application: This test balances the proximity of the
actions with the potential harm they could cause,
providing a more flexible approach than the last act test.
4. Indispensable Element Test
This test examines whether the defendant has
completed a crucial step that is indispensable to the
commission of the crime. If the defendant's actions
involve an essential element of the crime, they may be
considered an attempt.
- Question: Has the defendant completed a necessary
step that is indispensable for the crime to occur?
- Application: This test identifies critical actions that
are integral to the crime, even if other steps remain.
5. Probable Desistance Test
The probable desistance test looks at whether the
defendant's actions have progressed to a point where it
is unlikely they would voluntarily desist from
completing the crime. If it is improbable that the
defendant would stop their actions without external
intervention, it may be considered an attempt.
- Question: Is it unlikely that the defendant would stop
their actions without outside interference?
- Application: This test focuses on the defendant's
commitment to the criminal plan and the likelihood of
completion.
6. Res Ipsa Loquitur Test (Unequivocality Test)
This test assesses whether the defendant's actions
unequivocally demonstrate an intent to commit the
crime. The actions must be so clear in their purpose that
they leave no doubt as to the defendant's criminal intent.
- Question: Do the defendant's actions unequivocally
indicate an intent to commit the crime?
- Application: This test requires that the actions alone,
without considering the defendant's statements or other
evidence, clearly indicate a criminal purpose.
7. Substantial Step Test
Adopted by the Model Penal Code (MPC), the
substantial step test evaluates whether the defendant has
taken a substantial step toward the commission of the
crime. The step must strongly corroborate the
defendant's criminal intent.
- Question: Has the defendant taken a substantial step
that strongly corroborates their intent to commit the
crime?
- Application: The substantial step test is more flexible
and focuses on significant actions that move beyond
mere preparation.
Application of These Rules in Practice
Example: Attempted Burglary
- Proximity Rule: The defendant was caught picking
the lock of a house. This action is close to entering the
property, which is necessary for burglary.
- Last Act Test: If the defendant had successfully
picked the lock and was about to enter, it could be
considered the last act before committing the burglary.
- Dangerous Proximity Test: Picking the lock poses a
significant threat as it brings the defendant very close to
entering and committing burglary.
- Indispensable Element Test: Picking the lock is an
indispensable step for unlawful entry.
- Probable Desistance Test: Given that the defendant
was caught mid-act, it is unlikely they would desist
without being caught.
- Res Ipsa Loquitur Test: Picking the lock clearly
demonstrates the intent to commit burglary.
- Substantial Step Test: Picking the lock is a substantial
step towards committing burglary and strongly
corroborates the intent.

Summary of Tests with Illustrations

Proximity Rule: Actions close to committing the crime.
Example: A person is caught cutting the alarm wires of
a bank, indicating they are close to committing a
robbery.
Last Act Test: Final steps before crime completion.
Example: A person places poison in a drink but is
stopped before the victim consumes it.
Dangerous Proximity Test: Dangerous closeness to
committing the crime.
Example: A person attempts to explode a bomb but is
stopped a few seconds before pressing the button.
Indispensable Element Test: Critical steps necessary for
the crime.
Example: A person disables a surveillance camera
before a planned theft.
Probable Desistance Test: Unlikely to stop without
interference.
Example: A person is climbing into a window to
commit burglary but is stopped by the police.
Res Ipsa Loquitur Test: Clear criminal intent from
actions.
Example: A person is found tampering with an ATM
machine with devices typically used for skimming.
Substantial Step Test: Significant actions that
corroborate intent.
Example: A person buys a gun, sketches a bank’s
layout, and acquires a getaway car for a planned
robbery.

Summary of Tests with Illustrations in Student

Cheating Context
Proximity Rule: Actions close to completing the
cheating act.
Example: A student is caught copying answers during
an exam, nearing completion of the cheating act.
Last Act Test: Final steps before engaging in cheating.
Example: A student places a cheat sheet on their desk
but is stopped before using it during the exam.
Dangerous Proximity Test: Dangerous closeness to
engaging in cheating.
Example: A student is observed signaling answers but is
stopped before completing the exchange.
Indispensable Element Test: Critical steps necessary for
cheating.
Example: A student conceals a cheat sheet in their
calculator, an indispensable step for the cheating.
Probable Desistance Test: Unlikely to stop cheating
without interference.
Example: A student is about to use a hidden cheat sheet
during an exam but is discouraged by the teacher's
presence.
Res Ipsa Loquitur Test: Clear cheating intent from
actions.
Example: A student is found with notes written on their
arm, indicating intent to cheat.
Substantial Step Test: Significant actions that
corroborate cheating intent.
Example: A student plans with others to share answers,
prepares signals, and attempts to use them during an
exam.
Each of these rules provides a different lens through
which to evaluate whether actions constitute an attempt
or remain at the stage of preparation. Courts may use
one or more of these tests based on the specific
circumstances of the case and the jurisdiction's legal
standards.
Bharatiya Nyaya Sanhita (BNS), 2023.
Short title, commencement and application.
1. Title and Commencement:
- The Act is titled the "Bharatiya Nyaya Sanhita,
2023."
- It will come into force on a date specified by the
Central Government via a notification in the Official
Gazette. Different provisions can come into force on
different dates.(JULY 1 2024)
Territorial and Extraterritorial Jurisdiction in the
Bharatiya Nyaya Sanhita (BNS), 2023
The given section of the Bharatiya Nyaya Sanhita
(BNS), 2023 outlines both territorial and extraterritorial
jurisdiction.
Understanding Jurisdiction
The term jurisdiction is derived from two Latin words:
"Juris": Meaning law.
"Dicere": Meaning to speak.
Thus, jurisdiction refers to the authority granted to a
legal body to administer justice within a specific field
or territory.
Territorial Jurisdiction
Clause (3):
- Scope: Every person within India is liable to
punishment under the BNS for any act or omission that
contravenes its provisions.
- Explanation: This clause establishes the jurisdiction
of the BNS over all acts and omissions occurring within
the geographical boundaries of India.
- Illustration: If an individual commits theft in Delhi,
they will be punished under the BNS as per the
provisions relating to theft.
Extraterritorial Jurisdiction
Clause (4):
- Scope: Any person who, under Indian law, can be
tried for an offence committed outside India will be
dealt with according to the BNS for that offence as if it
had been committed within India.
- Explanation: This clause extends the jurisdiction of
the BNS to acts committed outside India, ensuring that
individuals who are liable to be tried under Indian law
for offences committed abroad are treated as if they had
committed those offences within India.
- Illustration: If an Indian citizen commits fraud while
abroad, they can be tried and punished under the BNS
for fraud as if it had occurred within India.
Clause (5):
- Scope: This clause further specifies the
extraterritorial application of the BNS to:
- (a) Indian citizens committing offences outside India.
- (b) Any person committing an offence on an Indian-
registered ship or aircraft, irrespective of its location.
- (c) Any person committing an offence outside India
targeting a computer resource located in India.
- Explanation: This clause ensures that Indian citizens,
individuals on Indian-registered vessels, and those
targeting Indian computer resources from abroad are
subject to the BNS.
- Illustration:
- (a) An Indian citizen committing murder in a foreign
country can be tried in India.
- (b) A crime committed on an Indian aircraft in
international airspace will be prosecuted under the
BNS.
- (c) A foreign hacker attacking an Indian server can
be tried under the BNS.
Explanation Section:
- Scope: The term "offence" includes any act
committed outside India that would be punishable if
committed within India.
- Explanation: This ensures that acts committed abroad,
which are offences under the BNS, are treated
equivalently to those committed within India.
Non-interference with Other Laws:
- The Sanhita does not affect the provisions of any
Act punishing mutiny and desertion of military
personnel or any special or local law.
Mutiny and Desertion Laws:
The BNS does not affect any laws that punish mutiny
(rebellion against authority, especially by soldiers
against their officers) and desertion (abandonment of
duty or post without permission) of officers, soldiers,
sailors, or airmen in the service of the Government of
India. These offences are typically governed by separate
military laws and regulations.
Special or Local Laws:
The BNS does not interfere with the provisions of any
special or local law. Special laws are those created for
specific situations, communities, or regions, while local
laws pertain to particular geographical areas within the
country. These laws remain in force and unaffected by
the provisions of the BNS.
The BNS, 2023 establishes a comprehensive legal
framework that covers:
- Territorial Jurisdiction: All individuals within India
are subject to the BNS for acts or omissions against its
provisions.
- Extraterritorial Jurisdiction: Indian citizens,
individuals on Indian-registered ships or aircraft, and
those targeting Indian computer resources from abroad
are also subject to the BNS. This ensures that Indian
legal accountability extends beyond national borders for
certain offences.
Whether an individual should be tried only in India
or in both jurisdictions (India and the country where
the offence was committed) can depend on several
factors, including the specific legal provisions of the
Bharatiya Nyaya Sanhita (BNS), 2023, bilateral
treaties, international law, and the nature of the
offence.
Principles and Considerations
1. Extraterritorial Jurisdiction under BNS:
- The BNS grants India the authority to prosecute
certain offences committed outside its territory if the
accused is an Indian citizen, the offence targets Indian
interests, or it occurs on Indian-registered ships or
aircraft.
- This implies that India has the right to try these
individuals under its own legal framework.
2. Concurrent Jurisdiction:
 - In some cases, both India and the foreign country
where the offence was committed may have
jurisdiction.
- The decision on where to try the individual can
depend on diplomatic agreements, treaties, and the
specifics of the case.
3. Treaties and International Agreements:
- Extradition treaties and mutual legal assistance
treaties (MLATs) between India and other countries
often outline the procedures and priorities for handling
cases with extraterritorial elements.
- These agreements can stipulate whether an
individual should be tried in one country or if
concurrent jurisdiction is allowed.
4. Double Jeopardy:
- International principles, including the concept of
double jeopardy, typically prevent an individual from
being tried twice for the same offence.
- However, different aspects of the same conduct
might be prosecuted under different legal frameworks if
they constitute distinct offences under each jurisdiction.
Practical Application in BNS Context
Illustration:

1. Single Jurisdiction:
- Scenario: An Indian citizen commits fraud in a
foreign country.
- Legal Path: India might decide to prosecute the
individual under the BNS, invoking its extraterritorial
jurisdiction.
- Outcome: The person is tried in India, and the
foreign country might choose not to prosecute if India
handles the case comprehensively.
2. Concurrent Jurisdiction:
- Scenario: An Indian citizen commits a cybercrime
targeting a server in India while being in a foreign
country, and the act also violates the laws of that
country.
- Legal Path: Both India and the foreign country have
the legal right to prosecute.
- Outcome: Diplomatic discussions or existing
treaties will determine the course of action. The
individual could be tried in the foreign country first and
possibly face additional charges in India, subject to
international legal norms and agreements.
3. Extradition and Mutual Legal Assistance:
- Scenario: An Indian citizen commits a serious crime
abroad.
- Legal Path: India may seek extradition based on
existing treaties, or the foreign country may prosecute
first and then extradite the individual to India if
necessary.
- Outcome: The person might face legal proceedings
in both countries, but typically for different aspects of
their conduct or sequentially to avoid double jeopardy.

While the BNS grants India the authority to prosecute

certain extraterritorial offences, the decision to try
individuals exclusively in India or allow concurrent
jurisdiction depends on:
- The specifics of each case.
- Relevant treaties and international agreements.
- Diplomatic considerations.
- Legal principles such as double jeopardy.
In practice, these situations are often handled through
diplomatic channels to ensure justice is served while
respecting the legal frameworks of the involved
countries.

EXPLANATION OF LIABILITY CONCEPTS IN

CRIMINAL LAW
GENERAL EXPLANATIONS
JOINT LIABILITY - Sections 3 ( 5 to 9)
5: Common Intention
- Definition: When several people commit a criminal
act together with a shared intention, each person is as
liable for the act as if they had done it alone.
- Example: If A and B plan and commit a theft
together, both A and B are equally liable for the theft.
6: Criminal Knowledge or Intention
- Definition: When an act is criminal because of the
intention or knowledge behind it, anyone who joins in
the act with that intention or knowledge is as liable as if
they did it alone.
- Example: If A and B both know and intend to defraud
someone, and they jointly commit fraud, both are liable
for the fraud.
7: Acts and Omissions
- Definition: If causing a specific effect by an act or
omission is a crime, then causing that effect partly by
act and partly by omission is also the same crime.
- Illustration: A causes Z’s death by both not giving Z
food and by beating Z. A is guilty of murder.
8: Multiple Acts Leading to an Offence
- Definition: When an offence is committed through
multiple acts, anyone who intentionally cooperates by
doing any of those acts commits the offence.
- Illustrations:
- (a) A and B agree to poison Z over time. Both give Z
small doses of poison, leading to Z's death. Both A and
B are guilty of murder.
- (b) A and B, as jailors, alternately starve Z, causing
Z’s death. Both are guilty of murder.
- (c) A starves Z, weakening him, but does not cause
his death. B, without A’s help, continues the
starvation, leading to Z’s death. B is guilty of murder; A
is guilty of an attempted murder.
9: Different Offences by Multiple Persons
- Definition: When several people are involved in a
criminal act, they may be guilty of different offences
based on their intentions and actions.
- Illustration: A kills Z under grave provocation,
making it culpable homicide. B, who has ill-will and
intends to kill Z without provocation, assists A. A is
guilty of culpable homicide; B is guilty of murder.

1. Joint Acts with Common Intention (5): If people act

together with the same intention, each is fully liable for
the act.
2. Joint Acts with Criminal Intention or Knowledge
( 6): If the crime requires a criminal mind, everyone
involved with that mindset is fully liable.
3. Combined Acts and Omissions (7): If an offence is
caused partly by action and partly by inaction, it is
treated as the same crime.
4. Multiple Acts in an Offence ( 8): Cooperating in
different acts that lead to a crime makes each person
guilty of the crime.
5. Different Offences by Involved Persons ( 9): People
involved in the same act may be guilty of different
offences depending on their intentions and actions.
These sections ensure that individuals cannot avoid
liability by only playing a part in the crime or having
different motives while participating in a joint criminal
act.
CONSTRUCTIVE LIABILITY
Section 190: Liability of Members of an Unlawful
Assembly
Definition: If any member of an unlawful assembly
commits an offence to achieve the common objective of
the assembly, or if the members knew such an offence
was likely to be committed, every member present at
the time is guilty of that offence.
Points:
1. Unlawful Assembly: An assembly is considered
unlawful if it consists of five or more people with the
common object of committing a crime.
2. Common Object: The goal or purpose shared by all
members of the assembly.
3. Commission of Offence:
 - If an offence is committed by any member while
pursuing the common objective.
- If the offence was something the members knew was
likely to happen in pursuit of that objective.
4. Liability of All Members: Every person present at the
time the offence is committed is guilty, regardless of
whether they directly participated in the act.
If a crime is committed by any person in a group with a
shared criminal goal, everyone in the group at that time
is guilty of that crime, whether or not they directly took
part in it.
Example:
- Scenario: An unlawful assembly of people gather with
the common objective of committing a robbery. During
the robbery, one member kills a guard.
- Application: All members present in the assembly
are guilty of the murder, even if only one person
actually committed the act, because the murder
happened in pursuit of their common objective
(robbery).
This section ensures collective responsibility, holding
every member of the unlawful assembly accountable for
offences committed to achieve their shared goal.
Difference Between Joint Liability and Constructive
Liability
Joint Liability
Definition: Joint liability arises when two or more
persons commit a criminal act with a common
intention. Each person involved is held equally liable
for the act as if they had done it alone.
Elements:
1. Common Intention: There must be a prior meeting
of minds and a shared intention among all the accused
to commit the criminal act.
2. Participation: All accused must participate in some
manner in the commission of the criminal act, though
the nature and extent of participation can vary.
3. Simultaneous Act: The criminal act must be
committed by several persons together, even if each
person’s contribution to the act is different.
Example: If A and B plan to assault C and both
participate in the assault, causing C's death, A and B
can both be held liable for murder under Section 34,
even if one of them delivered the fatal blow.
Constructive Liability
Definition: Constructive liability occurs when an
offence is committed by any member of an unlawful
assembly in the prosecution of the common object of
that assembly, or when the members of that assembly
knew it was likely to be committed in prosecution of
that object. All members present at the time are held
liable for the offence.
Elements:
1. Unlawful Assembly: An unlawful assembly is
defined under Section 141 IPC as an assembly of five or
more persons with the common object of committing a
criminal act.
2. Common Object: The members must share a
common object, which can be any one of the five
objects listed in Section 141 IPC.
3. Commission of an Offence: The offence must be
committed by any member of the assembly in
prosecution of the common object or be such that the
members of the assembly knew it was likely to be
committed.
Example: If a mob of five or more people gathers with
the common object of committing a robbery and one
member of the mob kills someone during the robbery,
all members of the mob can be held liable for murder
under Section 149, even if they did not directly
participate in the killing.
Differences
1. Basis of Liability:
- Joint Liability (Section 34): Based on the common
intention of the participants to commit the act together.
- Constructive Liability (Section 149): Based on the
membership of an unlawful assembly with a common
object.
2. Number of Persons Involved:
- Joint Liability (Section 34): Applies to acts done
by two or more persons.
- Constructive Liability (Section 149): Requires an
unlawful assembly of five or more persons.
3. Common Intention vs. Common Object:
- Joint Liability (Section 34): Requires a pre-
concert or common intention among the accused.
 - Constructive Liability (Section 149): Based on the
common object of the unlawful assembly.
4. Participation:
- Joint Liability (Section 34): Participation in the act
is necessary for liability.
- Constructive Liability (Section 149): Mere
membership in the unlawful assembly at the time of the
offence can be sufficient for liability.
5. Examples:
- Joint Liability (Section 34): A and B plan and
jointly commit an assault, both are liable for the
outcome.
- Constructive Liability (Section 149): A large group
gathers to commit a crime, and one member commits an
additional crime during this, all members present are
liable.

- Joint Liability (Section 34): Liability arises from a

shared intention and joint participation in a criminal act
by two or more persons.
- Constructive Liability (Section 149): Liability arises
from membership in an unlawful assembly with a
common object, where all members present at the time
of the offence are held liable, regardless of their direct
participation.