- In this Sanhita, unless the context otherwise requires,––
(1) “act” denotes as well a series of acts as a single act;
Analysis of BNS Section 2(1):
This subsection defines the term “act” within the BNS. It clarifies that an “act” can encompass:
- Single Act: A singular, isolated action.
- Series of Acts: A sequence of connected actions leading to a particular outcome.
Significance:
This definition is crucial because many offences involve a series of actions, not just a single isolated event. By explicitly including “series of acts” within the definition of “act,” the BNS clarifies that such sequences can be considered offences if they meet the other legal criteria.
Comparison with IPC:
The IPC doesn’t have a dedicated provision defining “act.” However, the concept of an offence involving a series of acts is well-established within the legal framework. The section 33 of the IPC which defines ACT and OMISSION here later was excluded
- Implicit Understanding: Several IPC sections define offences that can be committed through a sequence of actions. For example, theft can involve multiple acts of taking property without consent.
- General Principles: General principles of criminal law within the IPC framework acknowledge that an offence can be constituted by a series of connected acts.
(2) “animal” means any living creature, other than a human being;
(3) “child” means any person below the age of eighteen years;
The BNS provides a dedicated definition of “child” with a clear age threshold. The IPC relies on scattered references to age limits within various sections.
The IPC doesn’t have a single, unified definition of “child.” However, the concept of age plays a role in various IPC sections related to children.
(4) “counterfeit”.––A person is said to “counterfeit” who causes one thing to
resemble another thing, intending by means of that resemblance to pratise deception, or knowing it to be likely that deception will thereby be practised.
Explanation 1.—It is not essential to counterfeiting that the imitation should be
exact.
Explanation 2.—When a person causes one thing to resemble another thing,
and the resemblance is such that a person might be deceived thereby, it shall be
presumed, until the contrary is proved, that the person so causing the one thing to resemble the other thing intended by means of that resemblance to practise deception or knew it to be likely that deception would thereby be practised;
Section 2 (4) (Counterfeit):
This section defines the term “counterfeit” and establishes the key elements for someone to be considered as counterfeiting.
- Intention or Knowledge of Deception: The act requires either the intention to deceive someone by creating a resemblance or the knowledge that deception is likely to occur due to the resemblance.
- Level of Resemblance: Explanation 1 clarifies that an exact imitation is not necessary for counterfeiting. As long as there’s a resemblance that could lead to deception, it can be considered counterfeiting.
- Presumption of Deception: Explanation 2 establishes a presumption of deceptive intent if someone creates a resemblance that could lead to deception. The burden then falls on the accused to prove otherwise.
Comparison with IPC:
The IPC doesn’t have a single, dedicated section defining “counterfeit.” However, the concept of counterfeiting is addressed in various sections throughout the code.
- Relevant IPC Sections:
- Sections 230, 231, and 232 deal with counterfeiting currency notes, government stamps, and seals respectively. These sections define specific acts and materials related to counterfeiting these items.
- Other sections within the IPC might also address counterfeiting in the context of specific offences, like counterfeiting trademarks.
Overall Significance:
The definition of “counterfeit” in the BNS offers a clear and comprehensive framework for identifying and prosecuting counterfeiting offences. While the IPC achieves a similar outcome through various sections, the BNS approach provides a more streamlined and potentially more efficient legal mechanism. The presumption of deception in the BNS can also be seen as a measure to strengthen the prosecution’s case.
(5) “Court” means a Judge who is empowered by law to act judicially alone, or a
body of Judges which is empowered by law to act judicially as a body, when such
Judge or body of Judges is acting judicially;
Court:
- Refers to either:
- A single Judge who has the legal authority to make decisions on legal matters alone.
- A group of Judges who have the legal authority to make decisions together as a panel.
- This definition applies specifically when the Judge or group of Judges are performing their duties related to deciding legal issues or cases (acting judicially).
Explanation:
- Judge acting alone: This means an individual Judge who has the power given by law to hear and decide cases by themselves. For example, a Magistrate in a lower court can hear minor criminal cases on their own.
- Body of Judges acting together: This refers to a panel or bench of Judges who together have the authority to hear and decide cases. For instance, the Supreme Court of India often has benches of two or more Judges who decide on important constitutional matters.
- Acting judicially: This means that the Judge or Judges are performing their official role in making legal decisions. It’s about applying the law to the facts presented in court and delivering justice.
Example:
- Single Judge: A District Judge hearing a civil dispute between two parties.
- Body of Judges: A Division Bench of the High Court hearing an appeal.
(6) “death” means the death of a human being unless the contrary appears from
the context;
(7) “dishonestly” means doing anything with the intention of causing wrongful
gain to one person or wrongful loss to another person;
The ingredients of “dishonestly,” are:
- Intention: There must be a deliberate and conscious intention on the part of the person doing the act. It’s not enough for the act to simply result in wrongful gain or loss.
- Wrongful Gain or Loss: The intention behind the act must be to cause either:
- Wrongful gain to one person: This could involve acquiring something of value that you are not entitled to.
- Wrongful loss to another person: This could involve depriving someone else of something of value that they are entitled to.
These elements combine to establish that an act is “dishonest” if it’s done with the deliberate aim of acquiring something improper for oneself or causing someone else to lose something they rightfully deserve.
(8) “document” means any matter expressed or described upon any substance
by means of letters, figures or marks, or by more than one of those means, and includes electronic and digital record, intended to be used, or which may be used, as evidence of that matter.
Explanation 1.—It is immaterial by what means or upon what substance the
letters, figures or marks are formed, or whether the evidence is intended for, or may be used in a Court or not
Illustrations.
(a) A writing expressing the terms of a contract, which may be used as evidence
of the contract, is a document.
(b) A cheque upon a banker is a document.
(c) A power-of-attorney is a document.
(d) A map or plan which is intended to be used or which may be used as evidence,
is a document.
(e) A writing containing directions or instructions is a document.
Explanation 2.—Whatever is expressed by means of letters, figures or marks as
explained by mercantile or other usage, shall be deemed to be expressed by such
letters, figures or marks within the meaning of this section, although the same may not be actually expressed.
Illustration.
A writes his name on the back of a bill of exchange payable to his order. The
meaning of the endorsement, as explained by mercantile usage, is that the bill is to be paid to the holder. The endorsement is a document, and shall be construed in the same manner as if the words “pay to the holder” or words to that effect had been written over the signature;
Ingredients:
- Broad Scope: A document includes any matter expressed or described on any substance using letters, figures, or marks (or combinations thereof).
- Electronic and Digital Records: The definition explicitly includes electronic and digital records within the scope of “document.”
- Intended as Evidence: The document must be intended for use, or potentially usable, as evidence of the matter it expresses.
Explanation 1:
- Focus on Content, Not Form: It emphasises that the medium or method of creating the document is irrelevant.
- Court Use Not Essential: The document’s purpose of being used in court is not essential. As long as it can potentially serve as evidence, it qualifies as a document.
Illustrations:
These examples clarify what constitutes a document under this definition, including contracts, cheques, maps, and written instructions.
Explanation 2:
- Recognizing Mercantile and Other Usages: This explanation acknowledges that the meaning of letters, figures, or marks can be interpreted based on established practices (e.g., mercantile usage) even if not explicitly spelled out.
Commentary:
This definition provides a comprehensive and future-proof understanding of “document” in the BNS era. It encompasses traditional physical documents, electronic records, and even considers established interpretations within specific fields.
Differences:
- BNS (Broader): The BNS definition explicitly includes electronic and digital records within the scope of “document.”
- IPC (Narrower): The IPC definition focuses primarily on physical documents.
(9) “fraudulently” means doing anything with the intention to defraud but not
otherwise;
Definition of “Fraudulently”:
Ingredient:
- Intention to Defraud: The act must be done with the deliberate intention to defraud someone. “Defraud” generally implies deceiving someone for personal gain or to cause them a loss.
Commentary:
This definition provides a clear and concise explanation of “fraudulently.” It focuses on the crucial element of intentional deception for personal benefit.
Comparison with IPC Section 25:
The IPC Section 25 defines “fraudulently” but with a slightly different approach.
Differences:
- BNS: The BNS definition directly defines “fraudulently” and emphasises the element of intention.
- IPC: The IPC defines “fraud” first and then uses it to explain “fraudulently.”
(10) “gender”.—The pronoun “he” and its derivatives are used of any person,
whether male, female or transgender.
Explanation.–– “transgender” shall have the meaning assigned to it in clause (k)
of section 2 of the Transgender Persons (Protection of Rights) Act, 2019;
Section 2(10) Definition of “Gender”:
This section in the Bharatiya Nyaya Sanhita (BNS) defines “gender” through pronoun usage. Here’s a breakdown:
Ingredient:
- Pronoun Reference: The pronoun “he” and its derivatives are used to refer to any person regardless of their gender identity (male, female, or transgender).
Explanation:
- Definition of “Transgender”: It refers to the definition provided under the Transgender Persons (Protection of Rights) Act, 2019, Section 2(k).
Commentary:
This definition promotes gender-neutral language within the legal code. By using “he” and its derivatives for all genders, the BNS aims to avoid reinforcing a binary gender system.
Comparison with IPC Section 8:
The Indian Penal Code (IPC) Section 8 doesn’t have a dedicated definition of “gender.” However, it clarifies pronoun usage in a different way.
Differences:
- Approach:
- BNS (Pronoun Focus): Defines “gender” by specifying pronoun usage for all genders.
- IPC (Context-Specific): Clarifies pronoun usage but doesn’t define “gender.” Relies on context to determine if “he” includes females.
Overall Significance:
The BNS definition of “gender” offers a more explicit and direct approach to promoting gender-neutral language within the legal system. it aligns with the growing recognition of gender identities beyond the male-female binary.
Connection Between BNS Section 2(10) and NALSA vs. Union of India Case
- Both the BNS definition and the NALSA judgement address the issue of gender identity and promote a more inclusive legal and social landscape for transgender people.
- The BNS definition reflects the legal recognition of transgender identities established in the NALSA case.
- By using gender-neutral language, the BNS ensures that legal provisions apply equally to people of all genders, including transgender individual
- The BNS definition builds upon the foundation laid by the NALSA judgement.