General Explanations: Section 3 of the Bharatiya Nyaya Sanhita (BNS)

The Bharatiya Nyaya Sanhita, 2023, marks a significant reform in the Indian criminal justice system. Section 3, titled "General Explanations," serves as a cornerstone by establishing the foundational rules and principles applicable throughout the Sanhita. This section ensures consistency, clarity, and fairness when interpreting the provisions of the BNS.

Key Components of Section 3

• Application of General Exceptions [Section 3(1)]:

Every definition of an offence, penal provision, and illustration in this Sanhita shall be read as subject to the exceptions provided in the chapter titled "General Exceptions," even if these exceptions are not explicitly mentioned within the definitions, provisions, or illustrations.

Illustration:

(a) 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.

(b) A, a police officer, without warrant, apprehends Z, who has committed murder. Here A is not guilty of the offence of wrongful confinement; for he was bound by law to apprehend Z, and therefore the case falls within the general exception which provides that “nothing is an offence which is done by a person who is bound by law to do it".

Objective: To ensure that all exceptional and extenuating circumstances are integrated into the interpretation of every offence under the Sanhita, thereby avoiding redundancy.

• Uniform Interpretation of Terms [Section 3(2)]:

Words and expressions defined in the BNS are to be used consistently throughout the Sanhita, barring specific exceptions indicated by the context.

Principle: This aligns with the Roman maxim Inclusio unius est exclusio alterius (the inclusion of one is the exclusion of another). A term used in multiple places must hold the same meaning unless context dictates otherwise.

• Possession [Section 3(3)]:

Property in the possession of a person's spouse, clerk, or servant, on behalf of that person, is considered to be in the person's possession. Temporary employees also fall under this category.

• Acts and Omissions [Section 3(4)]:

The provision ensures that both positive actions (acts) and failures to act (omissions) that violate the law are treated similarly. For example, if a law requires someone to report a crime and they fail to do so, this omission can be considered an illegal act under the Sanhita.

This rule applies universally to the provisions of the Sanhita unless a specific section or context indicates otherwise. This creates consistency in interpreting the text.

Implication: This expands the scope of criminal liability to include both actions and failures to act where required by law.

• Principle of Group Liability [Section 3(5)]:

When a criminal act is committed in furtherance of a common intention by several individuals, each person is liable as if they alone committed the act.

Illustrative Cases:

(i) 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.

(ii) Mahboob Shah v. Emperor (1945): The Privy Council emphasized that Section 34 of IPC requires a prior meeting of minds or a pre-arranged plan to establish common intention, clarifying that mere association at the scene of the crime is insufficient for joint liability.

The law relating to group liability (also termed as joint liability, constructive liability or vicarious liability) may be broadly classified into five categories, viz.-

a) Where the criminal act is done with the common intention of the group [section 3(5) to 3(9)];

b) Where the offence is committed with the common object of an unlawful assembly (section 190);

c) Where the persons are charged of a criminal conspiracy (sections 61, 148);

d) Where five or more persons conjointly in the commission of dacoity commit murder (section 310); and

e) Where persons are jointly concerned in committing the offence of lurking house-trespass or house-breaking by night (section 331)

This principle, rooted in Reg v. Cruise (1838), was applied when a group, including B, C, and D, attacked a police constable attempting to arrest A. The court held all members equally liable for the assault, regardless of who delivered the actual blow.

Conditions for Application:

a) A criminal act must be done by several persons.

b) There must be a pre-concerted common intention.

c) Active participation in the act is necessary.

Distinction between Section 3(5) and Section 190

• Criminal Knowledge and Intention [Section 3(6)]:

Section 3(6) complements Section 3(5) by further elaborating on the principle of joint liability, but the two sections differ in scope.

Section 3(5) addresses cases where a criminal act is committed by several persons in furtherance of a common intention, making all participants equally liable for the act.

Section 3(6) applies when an act is criminal due to its being committed with criminal knowledge or intention. In such cases, each person who joins the act with the same knowledge or intention is held equally responsible, as though they had committed the act alone. However, if individuals involved have differing intentions or knowledge, liability is determined individually based on their specific intent or knowledge.

Illustration: 

If A, B, and C proceed to forcibly take possession of land and, during this act, one of them commits murder:

All three will be equally liable for murder if they shared the knowledge or intention of committing murder.

However, if it is established that:

A intended to commit murder, B intended only to plunder the crops, and C had no specific intention and merely joined to observe, then their liability will vary according to their respective intentions or knowledge.

Section 3(6) thus ensures that liability is proportionate to the individual’s culpable state of mind, unlike Section 3(5), which presumes joint responsibility under a shared intention.

• Acts and Omissions Leading to Offences [Section 3(7)]:

If an offence arises partly from an act and partly from an omission, it is treated as if caused entirely by either.

Illustration:

A intentionally causes Z’s death, partly by illegally omitting to give Z food, and partly by beating Z. A has committed murder.

• Cooperation in Committing Offences [Section 3(8)]:

When several persons cooperate in an offence through separate acts, each is held guilty as if they committed the offence themselves.

Illustration:

(a) A and B agree to murder Z by severally and at different times giving him small doses of poison. A and B administer the poison according to the agreement with intent to murder Z. Z dies from the effects the several doses of poison so administered to him. Here A and B intentionally cooperate in the commission of murder and as each of them does an act by which the death is caused, they are both guilty of the offence though their acts are separate.

• Differentiated Liability [Section 3(9)]:

Section 3(9) allows for different punishments for different offences, unlike Section 3(5), which prescribes a single punishment for a single offence committed in furtherance of a common intention. It addresses situations where individuals involved in a criminal act may be guilty of distinct offences because their actions were carried out without a shared intention.

Illustration: If A acts under grave provocation, causing culpable homicide, and B assists with the intent to murder, A and B are guilty of different offences.

Impact of Section 3

• Consistency Across Cases

Section 3 ensures a consistent interpretation of terms and actions across all cases. This consistency leads to similar judgments and rulings in analogous cases, enhancing the credibility of the legal system.

• Reducing Ambiguity

The general explanations reduce ambiguity by providing structured guidelines. This makes it easier for judges, lawyers, and law enforcement to apply the law uniformly, resulting in a smoother and more predictable legal process.

• Harmonization with Other Laws

Section 3 also helps maintain harmony between the BNS and other laws. This is particularly crucial in areas like cybercrime, narcotics, or environmental law. It ensures that the BNS aligns with specific statutes and avoids potential conflicts.

Conclusion

Section 3 of the Bharatiya Nyaya Sanhita establishes a comprehensive framework for interpreting the provisions of the Sanhita. By ensuring uniformity, reducing ambiguity, and addressing the nuances of criminal liability, this section lays the groundwork for a fair and consistent application of the law. Its emphasis on integrating general exceptions, clarifying group liability, and distinguishing between individual intentions underscores its pivotal role in India’s evolving criminal justice system.

References

[1] Bharatiya Nyaya Sanhita, 2023

[2] Barendra Kumar Ghosh v. King Emperor, AIR 1925 PC 1

[3] Mahboob Shah v. Emperor, AIR 1945 PC 118