The new criminal law framework (BNS, BNSS, BSA 2023) replaces IPC, CrPC, and Evidence Act from 1 July 2024. It integrates technology-related provisions directly into the general criminal law, recognizing electronic means as a medium for traditional offences and establishing modernized procedures for digital evidence and investigation.
Legal Framework
| Statute | Replaces | Commencement |
|---|---|---|
| Bharatiya Nyaya Sanhita (BNS), 2023 | Indian Penal Code, 1860 | 1 July 2024 |
| Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 | Code of Criminal Procedure, 1973 | 1 July 2024 |
| Bharatiya Sakshya Adhiniyam (BSA), 2023 | Indian Evidence Act, 1872 | 1 July 2024 |
BNS 2023: Cyber-Relevant Offences
| BNS Section | Offence | Cyber Application |
|---|---|---|
| S.303 | Theft | Data theft from computer systems |
| S.316 | Criminal breach of trust | Employee misusing access to company data |
| S.318 | Cheating | Online fraud, fake e-commerce, investment scams |
| S.319 | Cheating by personation | Phishing, creating fake profiles |
| S.336(4) | Forgery of electronic record | Creating false electronic documents |
| S.340 | Using forged electronic record | Submitting forged digital documents |
| S.351(2) | Criminal intimidation through anonymous communication | Threats via email, social media |
| S.354D | Stalking (includes monitoring internet use) | Cyber stalking, tracking online activity |
| S.356 | Defamation | Cyber defamation (publishing defamatory content online) |
| S.69 | Organized crime (includes cyber networks) | Cyber crime syndicates, ransomware gangs |
| S.111 | Terrorism-related acts using electronic means | Cyber terrorism overlaps with S.66F IT Act |
| S.79 | Word "document" includes electronic record | All document-related offences extend to electronic records |
Key Innovation: S.336(4) - Electronic Forgery
Making a false electronic record or part thereof with intent to cause damage or injury to public or any person, or to support any claim or title, or to cause any person to part with property
Why: Pre-BNS, electronic forgery had to be charged under IT Act provisions (S.65, S.66) which carry lower sentences. BNS S.336(4) brings electronic forgery under the general forgery framework with punishment up to 7 years.
BNSS 2023: Procedural Provisions for Cyber Investigation
| BNSS Section | Subject | Significance for Cyber Crime |
|---|---|---|
| S.94 | Summons and warrants in electronic form | Courts can issue process electronically |
| S.105 | Search of computer systems | Empowers police to search computers and electronic devices |
| S.105(2) | Production of electronic records | Court can order production of data from person in possession |
| S.173 | FIR filing electronically | Complainant can file FIR through electronic communication |
| S.175(3) | Statement recording by audio-video means | Witness statements via video conferencing |
| S.230 | Trials via video conferencing | Virtual court proceedings |
| S.530 | Service of summons by electronic means | SMS, email, or other electronic methods |
| S.94(4) | Preservation of electronic evidence | Direction to preserve computer data relevant to investigation |
S.94(4): Preservation Direction
A Magistrate may issue direction to any person or intermediary to preserve and retain electronic evidence for investigation purposes. This codifies what CERT-In and S.67C IT Act previously provided through executive directions.
BSA 2023: Electronic Evidence
| BSA Section | Subject |
|---|---|
| S.2(1)(b) | "Document" includes electronic record |
| S.57 | Admissibility of electronic records |
| S.58 | Admissibility of electronic records: certificate requirement |
| S.59 | Opinion of Examiner of Electronic Evidence |
| S.61 | Presumption as to electronic records (5 years old) |
| S.63 | Presumption as to Digital Signature Certificates |
S.57-58 (replacing old S.65A-65B Evidence Act)
- S.57: Electronic records produced from computer regularly used in lawful activities are admissible
- S.58: Requires a certificate from person in charge of the computer/device stating: (a) Record produced by the computer during regular use (b) Information regularly fed into computer in ordinary course (c) Computer operating properly during relevant period (d) Contents reproduce information fed into computer
Why: Electronic evidence is volatile and easily manipulated. The certificate requirement ensures authentication, chain of custody, and reliability before admission. Without it, opposing party cannot verify provenance.
Recall Check
- Which BNS section specifically addresses forgery of electronic records?
- Under BNSS, can FIRs be filed electronically?
- What is the certificate requirement under S.58 BSA for electronic evidence?
Key Cases
No landmark cases under BNS/BNSS/BSA 2023 yet (commenced 1 July 2024). Prior cases under IPC/CrPC/Evidence Act remain applicable as precedent for interpreting corresponding provisions. Key reference: Anvar PV v. PK Basheer (2014) on S.65B certificate (now S.58 BSA) remains binding.
Distinctions
| Aspect | IT Act Offences (S.65-78) | BNS Offences (Cyber-relevant) |
|---|---|---|
| Nature | Specific to computer/electronic medium | General criminal law extended to electronic medium |
| Scope | Only acts involving computers/networks | All traditional offences when committed through electronic means |
| Punishment range | Mostly 3 years (except S.66F: life) | Varies: up to 7 years (forgery), life (terrorism), death (organized crime) |
| Investigation | Inspector rank+ (S.80 IT Act) | Any police officer (BNSS general provisions) |
| Special provisions | S.78 (cognizable), S.80 (search/seizure) | BNSS S.105 (computer search), S.94(4) (preservation) |
| Applicability | Alongside general criminal law | Standalone criminal provisions |
| Overlap | S.66D (cheating by personation using computer) | S.319 BNS (cheating by personation generally) |
| Prosecution choice | FIR can invoke both IT Act and BNS | Same act can be charged under both statutes |
Flashcards
Q: Which BNS section covers electronic forgery? A: S.336(4): making a false electronic record with intent to cause damage, injury, or to support a false claim.
Q: Can FIRs be filed electronically under BNSS? A: Yes. S.173 BNSS permits filing of information (FIR) through electronic communication.
Q: What is the certificate requirement under S.58 BSA? A: Certificate from person in charge stating: (a) record produced during regular computer use, (b) information regularly fed, (c) computer operating properly, (d) contents reproduce original information.
Q: Does BNS define "document" to include electronic records? A: Yes. S.79 BNS: "document" includes electronic record within S.2(1)(r) IT Act.
Q: Under which BNSS section can courts order preservation of electronic evidence? A: S.94(4): Magistrate can direct any person or intermediary to preserve and retain electronic evidence.
Q: What is the overlap between S.66D IT Act and S.319 BNS? A: Both cover cheating by personation. S.66D is specific to personation "by means of any communication device or computer resource." S.319 BNS covers personation generally (including electronic). Prosecution can charge under either or both.
Q: Can trial proceedings be conducted via video conferencing under BNSS? A: Yes. S.230 BNSS permits trials through audio-video electronic means.
Q: How does BNSS modernize service of summons? A: S.530: service may be effected through electronic means (SMS, email, or any other electronic method prescribed).
Exam Scenario
A person creates a fake website resembling a government portal, collects Aadhaar numbers and bank details from 10,000 citizens, and uses this data to withdraw money from their accounts. Identify applicable provisions under BNS, IT Act, and BSA.
Offences under BNS: (1) S.319: Cheating by personation (impersonating government portal). (2) S.336(4): Forgery of electronic record (creating false website resembling government site). (3) S.303: Theft (withdrawing money from accounts). (4) S.318: Cheating (deceiving citizens to part with sensitive data). (5) S.69: If part of organized criminal network. Offences under IT Act: (1) S.66C: Identity theft (using Aadhaar/bank details of others). (2) S.66D: Cheating by personation using computer resource. (3) S.43(a): Unauthorized access to banking systems. (4) S.66: Computer-related offence done dishonestly. Investigation: Under BNSS S.105, police can search and seize computer systems. S.94(4) allows court to direct the hosting company to preserve website data. Evidence: Under BSA S.58, electronic records (server logs, transaction records, website captures) must be certified before admission. The accused faces cumulative charges under both IT Act and BNS; prosecution can proceed under both simultaneously (IT Act S.78: cognizable; BNSS general provisions for BNS offences).