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Bhartiya Nayaya Sanhitha

Stalking under the Bharatiya Nyaya Sanhita, 2023 (BNS)

Statutory Provision

Section 78 of the Bharatiya Nyaya Sanhita, 2023 defines and penalises the offence of stalking.
This provision is substantially similar to Section 354D of the Indian Penal Code, 1860, and continues the same legislative intent with minor structural changes.

Definition of Stalking (Section 78, BNS)

Under Section 78(1) of the BNS, a person commits the offence of stalking if he:

  1. Follows a woman and contacts, or attempts to contact such woman repeatedly, despite a clear indication of disinterest by the woman; or
  2. Monitors the use by a woman of the internet, email, or any other form of electronic communication,

and such conduct causes fear, distress, or intrusion into the privacy of the woman.

Punishment

  • First conviction:
    Imprisonment up to three years and fine.
  • Second or subsequent conviction:
    Imprisonment up to five years and fine.

Exceptions under Section 78(2), BNS

The offence of stalking does not apply where the conduct is:

  1. Pursued for the purpose of preventing or detecting crime by a person entrusted with such responsibility;
  2. Pursued under any lawful authority; or
  3. Reasonable and justified, considering the facts and circumstances of the case.

Essential Ingredients of Stalking

To constitute stalking under Section 78, the following elements must be present:

  1. Repeated conduct (not a single isolated act);
  2. Clear indication of disinterest by the woman;
  3. Physical following or electronic surveillance/monitoring;
  4. Absence of lawful justification; and
  5. Resulting fear, alarm, or violation of privacy.

Relevant Case Laws

Although judicial interpretation under the BNS is evolving, courts continue to rely on precedents under Section 354D IPC, as the provisions are pari materia.

1. State of Punjab v. Major Singh (AIR 1967 SC 63) (contextual relevance)

The Supreme Court emphasized the importance of protecting the dignity and privacy of women, which forms the foundational rationale for offences like stalking.

2. Kalandi Charan Lenka v. State of Odisha (2017 SCC OnLine Ori 878)

The Orissa High Court held that repeated unwanted communication and online harassment amount to stalking and criminal intimidation. The court recognized cyber stalking as a serious invasion of a woman’s privacy.

3. Shivani v. State of Maharashtra (2019 SCC OnLine Bom 5634)

The Bombay High Court observed that persistent attempts to contact a woman despite her refusal clearly satisfy the ingredients of stalking under criminal law.

4. Tanya Arora v. State (NCT of Delhi) (2016 SCC OnLine Del 5123)

The Delhi High Court highlighted that stalking laws are intended to curb obsessive behaviour that causes psychological distress, even where no physical harm is caused.

Illustrative Examples

🔹 Physical Stalking
A man repeatedly follows a woman to her workplace and residence despite her clearly telling him to stop. This constitutes stalking under Section 78(1)(a) BNS.

🔹 Cyber Stalking
A person continuously monitors a woman’s social media activity, sends repeated messages and emails after being blocked, and creates fake accounts to track her online presence. This falls under Section 78(1)(b) BNS.

🔹 Not Stalking (Exception)
A police officer lawfully tracks a suspect’s online activity during an investigation. This is covered under the statutory exception and does not amount to stalking.

Constitutional Perspective

The offence of stalking directly protects a woman’s right to life and personal liberty under Article 21, particularly the right to privacy and dignity, as recognized in Justice K.S. Puttaswamy v. Union of India (2017).

Conclusion

Section 78 of the Bharatiya Nyaya Sanhita, 2023 strengthens legal protection against stalking by recognizing both physical and cyber forms of harassment. By criminalising persistent and unwanted conduct, the provision aims to safeguard women’s privacy, autonomy, and mental well-being, while balancing legitimate and lawful actions through carefully carved exceptions.

🧾 Kim Wansoo v. State of Uttar Pradesh, 2025 SC – Supreme Court Quashes FIR Against Foreign National Misjoined in Commercial Dispute

🔍 Background and Facts

In a significant judgment dealing with the misuse of criminal proceedings in contractual disputes, the Supreme Court of India decided in Kim Wansoo v. State of Uttar Pradesh, 2025, that criminal law should not be weaponized for civil recovery or vendetta.

In this case:

  • Hyundai Motor India had awarded a construction project to HEC India LLP.
  • HEC subcontracted the project to KOTEC, which further subcontracted it to YSSS India Construction Pvt. Ltd.
  • After project completion, the complainant alleged non-payment, cheque dishonor, and issuance of threats, leading to registration of an FIR under multiple IPC provisions, including:
    • Section 406 (Criminal Breach of Trust)
    • Section 420 (Cheating)
    • Section 323 (Voluntarily Causing Hurt)
    • Section 504, 506 (Intentional Insult and Criminal Intimidation)
    • Section 120B (Criminal Conspiracy)

Despite no direct involvement in payment processing or contractual commitments, Kim Wansoo, a foreign national and project manager at HEC, was named in the FIR. He had no transactional role with YSSS India and appeared to be implicated merely by virtue of his designation.

⚖️ Proceedings Before the High Court

Kim Wansoo approached the High Court under Article 226 of the Constitution, praying for quashing of the FIR. However, the High Court rejected the plea, relying on technical grounds and failed to conduct a prima facie analysis of whether the FIR disclosed any offence or criminal intent against Wansoo.

🧑‍⚖️ Supreme Court’s Intervention and Findings

The Supreme Court reversed the High Court’s decision, strongly criticizing the failure to exercise judicial discretion under Article 226 of the Constitution and Section 482 of CrPC, both of which empower courts to prevent misuse of legal process.

Key observations:

  • Criminal law cannot be used as a tool for recovering commercial dues or harassing individuals, particularly those who have no personal role in the alleged act.
  • Relying on landmark judgment in State of Haryana v. Bhajan Lal (1992 Supp (1) SCC 335), the Court reiterated that an FIR can be quashed if:
    • The allegations do not disclose a cognizable offence.
    • The proceedings are maliciously instituted for oblique motives.
    • There is no legal evidence connecting the accused to the offence.

The Court found that:

“The High Court abdicated its constitutional responsibility by not examining whether criminal proceedings against Kim Wansoo amounted to an abuse of process, especially when the matter was purely civil in nature.”

The FIR was quashed, and the Court emphasized judicial vigilance to prevent harassment of professionals and foreign nationals without legal justification.

🧩 Legal Principles Reaffirmed

  1. Scope of Article 226 and Section 482 CrPC: These are extraordinary powers meant to prevent miscarriage of justice, especially when FIRs are filed with mala fide intentions.
  2. Distinction between Civil and Criminal Liability: Merely because a party failed to honour a payment or contract, it cannot be presumed that a criminal offence was committed.
  3. Protection of Reputational Rights: Courts must be cautious while permitting criminal proceedings that could unjustly damage personal and professional reputation, particularly for foreign individuals working in India.

📌 Conclusion

This case stands as a precedent for discouraging frivolous criminal litigation in commercial contexts and upholding the sanctity of individual liberty. It strengthens the principle that criminal process is not a substitute for civil remedies and that the judiciary must protect individuals from vexatious prosecutions, especially when there is no mens rea or direct involvement in the alleged crime.

Proving Criminal Conspiracy in Criminal Cases Under Indian Law

Criminal conspiracy, by its very nature, is an offence rooted in secrecy. It involves a covert agreement between two or more persons to commit an illegal act or a legal act by illegal means. Due to the private and concealed manner in which conspiracies are formed, proving them presents unique challenges to law enforcement and prosecutors. However, Indian jurisprudence, shaped by statutory provisions and judicial precedents, has laid down a clear legal framework for proving such offences.

Section 61 – Criminal Conspiracy (BNS, 2023)

Definition:

When two or more persons agree to:

  1. Do, or cause to be done—
    • An illegal act, or
    • A legal act by illegal means,
      such an agreement is designated a criminal conspiracy.

Explanation:

  • Illegal act includes acts that are offences or prohibited by law.
  • An act abetted by conspiracy becomes punishable even if no act besides the agreement is done, when the object is to commit an offence.

🔹 Punishment under BNS:

The punishment depends on the object of the conspiracy:

  1. If the conspiracy is to commit an offence punishable with death, life imprisonment, or rigorous imprisonment of two years or more:
    • Punishment is same as for abetment of that offence.
  2. If the conspiracy is for any other illegal act or legal act by illegal means:
    • Punishable with imprisonment up to six months, or
    • Fine, or
    • Both.

🔹 Key Elements to Prove:

To establish Criminal Conspiracy under BNS:

  • Two or more persons
  • Must have entered into an agreement
  • The object is to commit an illegal act or a legal act by illegal means

🔹 Comparison with IPC:

This section is almost identical to Section 120A and 120B of the IPC. The BNS has simply reorganized and renumbered the sections while keeping the legal principles intact.

🔹 Example:

If two people agree to forge documents (which is an offence), the moment the agreement is made, a criminal conspiracy is formed — even if the act isn’t carried out yet.

I. Understanding Criminal Conspiracy: Legal Foundation

Criminal conspiracy is defined under Section 120A of the Indian Penal Code, 1860, and is punishable under Section 120B. It criminalizes the mere agreement between two or more persons to commit an offence, regardless of whether the act is ultimately carried out.

The offence is unique because the agreement itself constitutes the crime, even if no overt act follows, provided the object is an illegal act. This makes the offence of conspiracy distinct from other inchoate offences.

II. Essential Ingredients of Criminal Conspiracy

To establish a charge of criminal conspiracy, the prosecution must prove the following essential elements:

1. Agreement Between Two or More Persons

The core of conspiracy lies in the “meeting of minds”. As held in Kehar Singh v. State (Delhi Administration), it is the agreement to commit an illegal act (or a legal act by illegal means) that constitutes the offence. The act itself need not be carried out for the conspiracy to be punishable.

2. Knowledge and Intent

Mere presence or association with conspirators is insufficient. It must be proved that the accused had knowledge of the object of the conspiracy and actively participated with the intent to further the illegal design. This element is crucial to distinguish between innocent association and culpable involvement.

III. The Role of Evidence: Direct vs. Circumstantial

1. Direct Evidence

Due to the secretive nature of conspiracies, direct evidence (such as confessions, wiretaps, or written agreements) is rarely available. Occasionally, direct evidence may come in the form of testimony from a co-conspirator turned approver.

2. Circumstantial Evidence

In most cases, conspiracy is proved through circumstantial evidence. This includes:

  • Frequent communications between the accused
  • Co-ordinated activities suggesting a common plan
  • Destruction or fabrication of evidence
  • Financial transactions or travel records linked to the illegal purpose

As emphasized in Sajeev v. State of Kerala (2023), the Supreme Court accepted a chain of circumstantial facts—including destruction of records—as sufficient to infer the existence of a conspiracy.

IV. Section 10 of the Indian Evidence Act, 1872: A Critical Provision

1. Principle of Implied Agency

Section 10 provides that anything said, done, or written by any conspirator after the formation of the conspiracy and in reference to the common design is admissible against all conspirators. The doctrine works on the principle that each conspirator acts as an agent of the other.

2. Conditions for Application

For evidence under Section 10 to be admissible, two pre-conditions must be met:

  • Existence of Conspiracy: There must be a prima facie case showing reasonable grounds that a conspiracy existed.
  • Acts in Reference to Common Design: The act, statement, or writing must be related to the common intention and made after the conspiracy began.

Importantly, acts or statements made before the conspiracy was formed or after it ended are not admissible under this section.

V. Judicial Pronouncements Shaping the Law

Indian courts have consistently laid down and reinforced the standards for proving criminal conspiracy:

1. Suspicion vs. Proof

In Subramaniam Swamy v. A Raja, the Court held that “suspicion, however grave, cannot take the place of legal proof”. The mere meeting of accused persons, without proof of a common intention or illegal design, is not sufficient.

2. Adequacy of Circumstantial Evidence

In State (NCT of Delhi) v. Navjot Sandhu, the Court warned that a scattered collection of facts (“a few bits here and a few bits there”) does not establish a conspiracy unless they form a coherent and unbroken chain leading to one conclusion.

3. Joint Responsibility

In Mohd. Naushad v. State of NCT of Delhi (2023), the Court reiterated that conspiracy implies joint liability, making all conspirators culpable for acts done by others in furtherance of the conspiracy.

VI. Standard of Proof

The standard of proof in criminal conspiracy cases remains “beyond reasonable doubt”, just as in other criminal trials. Courts are cautious not to dilute this standard, especially when relying on circumstantial evidence. Inference must be strong, cogent, and lead unmistakably to the guilt of the accused.

VII. Prima Facie Requirement for Applying Section 10

Before invoking Section 10 of the Evidence Act, the court must determine whether a prima facie conspiracy exists. This ensures that statements of co-conspirators are not prematurely used to implicate others without sufficient foundational proof.

VIII. Challenges in Proving Criminal Conspiracy

1. Secrecy of Formation

Conspiracies are usually formed in secret, often without documentation or witnesses. This makes it difficult to prove:

  • The exact date or place of agreement
  • The specific roles played by each conspirator
  • The precise objective of the conspiracy

2. Misapplication of Presumptions

In some cases, courts have inadvertently applied the concept of deemed presumption, which is not permitted under IPC. The Supreme Court has cautioned against such practices, emphasizing adherence to the traditional standard of proof.

IX. Best Practices for Prosecution in Conspiracy Cases

  • Establish a Coherent Chain of Circumstantial Evidence: Each link must be credible and logically lead to the conclusion of a conspiracy.
  • Prove Prior Agreement: Demonstrate that the accused shared a common design and worked towards achieving it.
  • Utilize Section 10 Wisely: Only after prima facie conspiracy is established.
  • Avoid Over-reliance on Suspicion: Every piece of evidence must withstand scrutiny under the “beyond reasonable doubt” standard.

1. Legislative Changes / Debate around “Common Intention”

  • The new BNS explicitly includes “common intention” in subsection (1), merging the traditional conspiracy test with shared design
  • Legal critics (e.g., think‑tank Project 39A) argue that this blurs distinct legal concepts—i.e., conspiracy vs. common intention—and raises potential complications in interpretation

2. ⚖️ Judicial & Enforcement Use

  • First CBI FIR under BNS Section 61(2) was launched in July 2024: two Delhi Police head constables were accused of conspiring to extort a ₹10 lakh bribe related to a Tihar Jail detainee
  • A June 2025 FIR in Lucknow invoked Section 61(2) amidst allegations of extortion, defamation, threats, and conspiracy by journalists and a lawyer

3. 📚 Interpretation, Precedents & Comparisons

  • BNS Section 61 retains the core structure of IPC Sections 120A & 120B, but adds emphasis on early intervention, including conspiracy even before an overt act is performed
  • Landmark IPC conspiracy judgments (e.g., Kehar Singh, Ram Narayan Popli, Yakub Memon) remain applicable under BNS—they highlight reliance on circumstantial evidence and minimum involvement standards
  • The BNS clarifies that no overt act is required if the agreement is to commit an offence—though if about legal acts via illegal means, some overt act is necessary

Conclusion

Criminal conspiracy is a complex but powerful legal tool to combat collective criminal designs. While proving such an offence is fraught with challenges due to its secretive nature, the Indian legal system has evolved robust principles—balancing prosecutorial effectiveness with constitutional safeguards. Courts must continue to apply these standards diligently, ensuring that the rights of the accused are protected while enabling justice for the victims of organised criminal conduct.

A successful prosecution of criminal conspiracy, therefore, hinges on meticulous investigation, careful presentation of circumstantial evidence, and a strict adherence to procedural safeguards laid down in law and interpreted by the judiciary.

The Concept of Common Intention under BNS, 2023

📘 Legal Provision

Section 3(5) of the Bharatiya Nyaya Sanhita, 2023 (BNS) replaces the analogous Section 34 of the Indian Penal Code, 1860 (IPC). It reads:

“When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.”

This provision deals not with a specific offence, but rather establishes a rule of joint liability for criminal acts committed in furtherance of a shared purpose.

🧩 Essentials of Common Intention under Section 3(5) BNS, 2023

1. Prior Meeting of Minds

  • There must be a pre-conceived plan or understanding among the accused, which can be formed well before or even shortly before the incident.
  • No formal agreement is necessary; it is sufficient that there is a conscious and concerted action towards the criminal objective.
  • Example:
    If A and B decide to beat up C, and A holds C while B punches him, both are equally liable—even if B alone caused the injury
  • Case Law:
    🔹 State of Rajasthan v. Shobha Ram, (2023) SCC OnLine SC 1169 The Court reiterated that even a spontaneous meeting of minds just before the act can suffice to constitute common intention.

2. Mental Element (Mens Rea)

  • All participants must share the same criminal intent.
  • Mere physical presence at the crime scene is not sufficient unless it can be shown that the person shared the knowledge and intent to commit the offence.
  • Example:
    If X and Y are following Z to intimidate him and X suddenly stabs Z, Y cannot be held liable unless it’s shown that he shared the intent to harm.
  • Case Law:
    🔹 Mohd. Javed v. State of UP, 2024 SCC OnLine SC 92 The Supreme Court held that mental concurrence with the main accused must be proved through conduct and surrounding circumstances.

3. Active Participation

  • Each accused must contribute towards the commission of the offence, either actively or passively.
  • Passive presence without contribution is not enough unless presence itself emboldens the actual perpetrator.
  • Example:
    If A plans a robbery and B waits outside in a car to help escape, B is an active participant.
  • Case Law:
    🔹 Raju v. State (Govt. of NCT of Delhi), 2024 SCC OnLine Del 617 The Delhi High Court held that even chasing the victim to corner him amounted to active participation under common intention.

4. Causative Link

  • There must be a direct connection between the common intention and the criminal act.
  • The act must be shown to have been committed in furtherance of the common plan.
  • Independent or stray acts not linked to the pre-arranged plan will not invite joint liability.
  • Example:
    If A and B plan to injure C, but A alone decides to shoot C fatally, B will not be liable unless he knew of the gun and agreed to the use.
  • Case Law:
    🔹 State of MP v. Amrit Lal, 2023 LiveLaw (SC) 782 The Court distinguished between acts in furtherance of common intention and stray acts, holding only the former attracted Section 34 IPC / Section 3(5) BNS liability.

5. Contemporaneous Formation

  • Common intention need not always be premeditated. It may be formed at the spur of the moment, provided all accused act in concert.
  • Post-crime approval or association is not sufficient.
  • Example:
    During a sudden fight, A and B attack C simultaneously without prior planning. If mutual support is visible, joint liability can be invoked.
  • Case Law:
    🔹 Vikas Kumar v. State of Bihar, 2023 SCC OnLine Pat 988 The High Court emphasized that simultaneous intent formed at the moment of the attack was enough to hold all participants jointly liable.

⚖️ Burden of Proof

  • The prosecution bears the entire burden to prove the existence of common intention beyond reasonable doubt.
  • Direct evidence is rare; hence, the Courts often rely on circumstantial evidence, including:
    • The accused’s conduct before, during, and after the crime.
    • Nature of the act committed.
    • Motive, proximity, and presence at the scene.
  • Mere suspicion, proximity to the crime, or passive presence is not sufficient to establish liability under Section 3(5) BNS.
  • Case Law:
    🔹 Ajay Thakur v. State of Uttarakhand, 2024 LiveLaw (SC) 120 The Supreme Court clarified that while common intention can be inferred from circumstances, it must rise above conjecture and be backed by consistent evidence.

🔄 Comparison: Section 34 IPC vs. Section 3(5) BNS

Point of ComparisonSection 34 IPCSection 3(5) BNS, 2023
Statutory Language“Acts done by several persons…”“Criminal act done by several persons…”
NatureRule of evidenceRule of evidence
Basis for Joint LiabilityCommon IntentionCommon Intention
Need for Specific OffenceNoNo
Time of FormationBefore or at the moment of crimeBefore or at the moment of crime
ProofThrough conduct and circumstantial evidenceThrough conduct and circumstantial evidence

📌 Key Takeaways

  • Section 3(5) BNS, 2023 introduces no material departure from Section 34 IPC, but continues the jurisprudential trend of strict scrutiny of joint criminal liability.
  • Courts must ensure individual criminal responsibility is not diluted in the garb of common intention.
  • Recent judgments emphasize that each accused must actively and mentally participate in the criminal plan for Section 3(5) to apply.
  • The distinction between common intention and common object (under Section 149 IPC/Section 187 BNS) remains important in group crimes.

🧾 Summary Table with Examples

ElementExplanationExample
Prior Meeting of MindsMutual plan before/during the actA & B decide to rob a shop
Mental ElementAwareness and shared intentionA supports B in beating C with intention
Active ParticipationInvolvement in any formA holds door while B steals inside
Causative LinkCrime flows from shared planB stabs only after both decide to attack
Contemporaneous FormationIntention arises on the spotA & B join fight instantly and attack victim

✅ Conclusion:

The doctrine of common intention under Section 3(5) of the Bharatiya Nyaya Sanhita, 2023 is a crucial legal principle ensuring that all persons acting together with a shared criminal purpose are held equally liable for the resulting offence. Rooted in the erstwhile Section 34 of the Indian Penal Code, this provision continues to uphold the idea of joint culpability in cases where multiple individuals commit an act in furtherance of a collective objective.

It operates not as a substantive offence but as a rule of evidence, allowing courts to infer liability based on collective action and mental alignment among co-accused. The prosecution must, however, rigorously prove the existence of a prior or contemporaneous meeting of minds, active participation, and a clear causative link to the act committed.

Indian courts, through various rulings, have clarified that mere presence at the scene of crime or passive knowledge is not enough—the accused must have intentionally associated themselves with the criminal act. The standard remains that of proof beyond reasonable doubt, and any ambiguity regarding individual intent must operate in favour of the accused.

In conclusion, Section 3(5) of BNS reinforces collective responsibility in criminal law while maintaining due safeguards against wrongful convictions. It underscores the principle that shared intention transforms individual acts into collective culpability, thereby ensuring justice in offences committed in unison.

Mob Lynching and Terrorism under the Bharatiya Nyaya Sanhita, 2023

📘 Introduction

The Bharatiya Nyaya Sanhita (BNS), 2023, which came into effect on July 1, 2024, marks a significant overhaul of India’s criminal justice system, replacing the colonial-era Indian Penal Code (IPC). Among its notable provisions are the explicit criminalization of mob lynching and a broadened definition of terrorism, reflecting the evolving nature of threats to public order and national security.

🔴 Mob Lynching under Section 103(2) of BNS

Mob lynching is defined under Section 103(2) of the BNS as:

When a group of five or more persons, acting in concert, commits murder on the grounds of race, caste, community, sex, place of birth, language, personal belief, or any other similar ground, each member of such group shall be punished with death or life imprisonment, along with a fine.

Key Elements:

  • Group Involvement: Minimum of five individuals acting together.
  • Discriminatory Motive: Actions driven by prejudice based on identity factors.
  • Severity: Punishment includes death penalty or life imprisonment, plus a fine.

This provision ensures accountability for collective violence motivated by bias, offering protection to marginalized communities.

🟡 Grievous Hurt by Mob: Section 117(4)

In instances where a mob causes grievous hurt without resulting in death, Section 117(4) applies:

When a group of five or more persons, acting in concert, causes grievous hurt to a person on the grounds of race, caste, community, sex, place of birth, language, personal belief, or any other similar ground, each member of such group shall be punished with imprisonment of up to seven years and a fine.

⚖️ Legal Classification and Trial

  • Cognizable Offense: Police can arrest without a warrant.
  • Non-Bailable: Bail is not a matter of right.
  • Non-Compoundable: Cannot be settled between parties.
  • Trial Court: Court of Session.

🧨 Terrorism under Section 111 of BNS

Section 111 of the BNS provides an expanded definition of terrorism, encompassing acts intended to:

  • Threaten the unity, integrity, sovereignty, or security of India.
  • Strike terror among the people.
  • Disrupt economic stability, including the production or circulation of counterfeit currency.

Punishments:

  • If the act results in death: Death penalty or life imprisonment, and a fine of at least ₹10 lakh.
  • In other cases: Imprisonment ranging from five years to life, and a fine of at least ₹5 lakh.

📜 Historical Context: Emergence of Mob Lynching in India

Mob lynching, characterized by extrajudicial killings by groups, has a complex history in India. While instances of collective violence have occurred throughout the country’s history, the term “mob lynching” gained prominence in recent decades, particularly with the rise of incidents fueled by rumors and communal tensions.

One of the early notable cases was the Khairlanji massacre in 2006, where four members of a Dalit family were brutally killed by members of the Kunbi caste in Maharashtra. This incident highlighted the deep-rooted caste-based violence in rural India.

The 2015 Dadri lynching marked a significant turning point in the national consciousness. Mohammad Akhlaq was lynched by a mob in Uttar Pradesh over allegations of cow slaughter, an act considered sacrilegious by many Hindus. This incident underscored the volatile intersection of religion, dietary practices, and mob justice.

Subsequent years saw a surge in similar incidents, often linked to cow vigilantism. Notable cases include the 2017 Alwar lynching of dairy farmer Pehlu Khan and the 2019 Jharkhand lynching of Tabrez Ansari, who was forced to chant religious slogans before being beaten to death.

The proliferation of smartphones and social media platforms, particularly WhatsApp, further exacerbated the situation. In 2017, a series of lynchings occurred across various states, fueled by fake news and rumors of child abductions spread via messaging apps. These incidents, collectively termed the Indian WhatsApp lynchings, highlighted the dangerous potential of misinformation in inciting mob violence.

⚖️ Legal Response: Evolution of Laws Addressing Mob Lynching

Historically, India’s legal framework did not have specific provisions addressing mob lynching. Victims and perpetrators were dealt with under general sections of the Indian Penal Code (IPC), such as those pertaining to murder, assault, and rioting.

The increasing frequency and brutality of lynching incidents prompted calls for more targeted legislation. In 2018, the Supreme Court of India, in the case of Tehseen S. Poonawalla v. Union of India, condemned mob lynching and issued guidelines for preventive, remedial, and punitive measures. The Court emphasized the need for a separate law to address the menace of lynching.

Responding to these concerns, the Indian government introduced the Bharatiya Nyaya Sanhita (BNS), 2023, which came into effect on July 1, 2024, replacing the colonial-era IPC. The BNS includes specific provisions to tackle mob lynching:

  • Section 103(2): Defines mob lynching as an act where a group of five or more persons, acting in concert, commits murder on grounds such as race, caste, community, sex, place of birth, language, personal belief, or any other similar ground. The punishment ranges from life imprisonment to the death penalty, along with a fine.
  • Section 117(4): Addresses cases where a mob causes grievous hurt (without resulting in death) under similar discriminatory grounds. The punishment can extend up to seven years of imprisonment and a fine.
  • 🧨 Intersection with Terrorism Laws

While mob lynching is treated as a distinct offense under the BNS, certain lynching incidents may also fall under the ambit of terrorism, especially if they are intended to threaten the nation’s unity, integrity, sovereignty, or security. The BNS’s expanded definition of terrorism encompasses acts that strike terror among the public or disrupt economic stability. Therefore, if a mob lynching incident is orchestrated with the intent to instill widespread fear or destabilize societal harmony, it could be prosecuted under terrorism-related provisions.

🔍 Distinguishing Mob Lynching and Terrorism

AspectMob Lynching (Section 103(2))Terrorism (Section 111)
DefinitionGroup murder based on discriminatory groundsActs threatening national unity, integrity, or causing widespread terror
Group SizeMinimum of 5 individualsCan involve individuals or groups
MotiveIdentity-based prejudicePolitical, ideological, or economic destabilization
PunishmentDeath or life imprisonment, plus fineDeath or life imprisonment, plus substantial fines
Legal FocusProtecting individuals from biased collective violenceSafeguarding national security and public order
Investigative PowersStandard criminal proceduresEnhanced powers, including surveillance and asset seizure

🛡️ Enforcement and Oversight

To ensure effective enforcement, certain state governments have empowered senior police officials to oversee investigations related to mob lynching and terrorism, aiming for prompt and thorough legal action.

📝 Conclusion

Mob lynching represents one of the most disturbing forms of collective violence in modern India, often rooted in deep-seated prejudices based on caste, religion, race, or personal belief. Historically unaddressed in explicit legal terms, the rise in such brutal acts in the last two decades — especially with the aid of misinformation and social media — compelled the judiciary and legislature to respond decisively.

Moreover, when such acts are executed with the intent to instill fear on a mass scale or threaten national integrity, they may intersect with the definition of terrorism under Section 111 of BNS.

The legislative recognition of mob lynching and its criminalization:

  • Strengthens the rule of law,
  • Promotes accountability in hate crimes,
  • Offers better victim protection and access to justice,
  • Sends a clear message of deterrence.

However, the real test lies in enforcement — ensuring fair investigation, preventing misuse, and maintaining communal harmony. Along with legal tools, awareness campaigns, community policing, and responsible use of media are essential to eradicate this menace from the fabric of Indian society.

The Bharatiya Nyaya Sanhita, 2023, represents a progressive shift in India’s approach to criminal justice, explicitly addressing contemporary challenges like mob lynching and terrorism. By codifying these offenses with clear definitions and stringent penalties, the BNS aims to deter such acts and uphold the principles of justice and equality.

Force and Criminal force under B.N.S

The Bharatiya Nyaya Sanhita (BNS), 2023 is a comprehensive substantive law containing all offenses and punishments. It has 358 sections, divided into 20 chapters, each addressing a different category of crime. Among these, Chapter VI deals with offenses affecting the human body, where Section 128 defines “force” and Section 129 elaborates on “criminal force.”

There is often confusion between the concepts of “force” and “criminal force” as both are categorized under the same chapter. Section 349 defines “force,” which is foundational for understanding criminal force, while Section 350 specifically addresses criminal force.

Definition of Force under Section 128

A person is said to use force to another if they cause motion, change of motion, or cessation of motion to that other person, or to any substance such motion, change of motion, or cessation of motion as brings that substance into contact with any part of the other’s body, or with anything they are wearing or carrying, or with anything so situated that such contact affects the other’s sense of feeling. This can occur in three ways:

  1. By their own bodily power.
  2. By disposing of any substance so that motion or change or cessation of motion occurs without further action by themselves or any other person.
  3. By inducing any animal to move, change its motion, or cease to move.

In simpler terms, force is used when a person causes motion, or change of motion, or cessation of motion, bringing that motion into contact with another person, their belongings, or affecting their sense of feeling. Force can be applied directly by bodily power, through objects, or by inducing animals.

Understanding Criminal Force under Section 129

Criminal force involves intentionally using force without the other person’s consent, intending to cause, or knowing that it is likely to cause, injury, fear, or annoyance. Unlike the general definition of force, criminal force explicitly includes intent and lack of consent.

Illustrations of Force and Criminal Force

  1. Force Example: B intentionally pushes H in a market, using bodily power to bring B into contact with H. This is force.
  2. Criminal Force Example: Q throws a stone at M, intending it to hit M or their belongings. If the stone makes contact, Q has used force. If Q did so to cause injury or annoyance, it is criminal force.

Judicial Approach

Chandrika Sao v. State of Bihar:
In this case, Mr. Bhupendra Narain Sinha, an Assistant Superintendent of Commercial Taxes, visited a shop to inspect account books. The appellant snatched the books from his hands, causing a motion that affected Sinha’s sense of feeling. The court held the appellant guilty under Section 353 (Assault on a public officer while performing his duty), noting that the appellant’s act constituted criminal force as it caused annoyance and fear of injury.

State of Bihar v. Musa Ansari:
Here, the accused forcibly made a 5-year-old girl touch his penis, causing injury. The court found him guilty under Sections 349, 350, and 354 (Assault or criminal force to a woman with intent to outrage her modesty), highlighting the use of force and criminal force.

Dr. Rajkumar Satyabroth Pal v. State of Maharashtra:
The applicant was accused of various offenses, including Sections 365, 366, 354, and 511. The court found that assault can be committed through gestures, preparation, or words, even without physical contact, though it did not find sufficient evidence for criminal force in this case.

Difference between force and criminal force

Certainly! Here’s a table outlining the differences between “force” and “criminal force” as per the Indian Penal Code:

AspectForce (Section 128)Criminal Force (Section 129)
DefinitionThe act of causing motion, change of motion, or cessation of motion to another person or to a substance that affects the other person.Intentional use of force without the person’s consent, intending to cause or knowing it is likely to cause injury, fear, or annoyance.
IntentionNo specific intention required.Requires specific intention to cause injury, fear, or annoyance.
ConsentConsent is not a factor in defining force.Lack of consent is crucial for it to be considered criminal force.
OffenseForce itself is not an offense but a concept used in other sections.Criminal force is an offense under the IPC.
ComponentsMotion, change of motion, or cessation of motion.Motion/change/cessation of motion combined with intent and lack of consent.
ExamplesPushing someone, throwing a stone at someone.Pushing someone with intent to harm, throwing a stone to injure someone.
Physical ContactInvolves physical contact or impact on sense of feeling.Involves physical contact with intent to harm or cause fear/annoyance.
Legal ConsequencesNot punishable by itself but relevant in context of other offenses.Punishable as an offense under the IPC.
IllustrationsA person throwing a ball that hits someone.A person intentionally throwing a ball at someone to cause harm.

Conclusion

The critical differences between the two lie in the presence of intention, consent, and the resultant impact on the victim. While force is a broad and neutral concept, it transforms into criminal force when used with harmful intent and without consent, thereby making it a punishable offense.

Understanding these distinctions is vital for legal practitioners, law enforcement, and the general public to ensure that actions causing harm or fear are appropriately recognized and penalized, thus maintaining social order and protecting individuals’ rights.

Terrorist act under BNS

Chapter VI: OF OFFENCES AFFECTING THE HUMAN BODY U/S.113. (1) Whoever commits any act with the intent to threaten or likely to threaten the unity, integrity, sovereignty, security, or economic security of India, or with the intent to strike terror or likely to strike terror in the people or any section of the people in India or any foreign country, by means such as:

(a) Using bombs, dynamite, or other explosive substances, inflammable substances, firearms, or other lethal weapons, or poisonous, noxious gases, chemicals, or any hazardous substances (whether biological, radioactive, nuclear, or otherwise) or any other means of whatever nature to cause or likely to cause:

(i) Death or injury to any person or persons;
(ii) Loss, damage, or destruction of property;
(iii) Disruption of any supplies or services essential to the life of the community in India or any foreign country;
(iv) Damage to the monetary stability of India through production, smuggling, or circulation of counterfeit Indian paper currency, coins, or any other material;
(v) Damage or destruction of any property in India or abroad used or intended for defense purposes or in connection with other purposes of the Government of India, any State Government, or their agencies;

(b) Overawes by means of criminal force or the show of criminal force, or attempts to do so, or causes the death of any public functionary or attempts to cause the death of any public functionary;

(c) Detains, kidnaps, or abducts any person and threatens to kill or injure such person or commits any act to compel the Government of India, any State Government, or the government of a foreign country, an international or inter-governmental organization, or any other person to do or abstain from doing any act, commits a terrorist act.

Explanation.—For the purposes of this sub-section:

(a) “Public functionary” means the constitutional authorities or any other functionary notified in the Official Gazette by the Central Government as a public functionary;

(b) “Counterfeit Indian currency” means the counterfeit currency as may be declared after examination by an authorized or notified forensic authority that such currency imitates or compromises the key security features of Indian currency.

(2) Whoever commits a terrorist act shall:

(a) If such an offence results in the death of any person, be punished with death or imprisonment for life, and shall also be liable to a fine;
(b) In any other case, be punished with imprisonment for a term not less than five years but which may extend to imprisonment for life, and shall also be liable to a fine.

(3) Whoever conspires or attempts to commit, or advocates, abets, advises, or incites, directly or knowingly facilitates the commission of a terrorist act or any act preparatory to the commission of a terrorist act, shall be punished with imprisonment for a term not less than five years but which may extend to imprisonment for life, and shall also be liable to a fine.

(4) Whoever organizes or causes to be organized any camp or camps for imparting training in terrorist acts, or recruits or causes to be recruited any person or persons for the commission of a terrorist act, shall be punished with imprisonment for a term not less than five years but which may extend to imprisonment for life, and shall also be liable to a fine.

(5) Any person who is a member of an organization involved in terrorist acts shall be punished with imprisonment for a term which may extend to imprisonment for life, and shall also be liable to a fine.

(6) Whoever voluntarily harbors or conceals, or attempts to harbor or conceal any person knowing that such person has committed a terrorist act shall be punished with imprisonment for a term not less than three years but which may extend to imprisonment for life, and shall also be liable to a fine:

Provided that this sub-section shall not apply to any case in which the harbor or concealment is by the spouse of the offender.

(7) Whoever knowingly possesses any property derived or obtained from the commission of any terrorist act or acquired through the commission of any terrorist act shall be punished with imprisonment for a term which may extend to imprisonment for life, and shall also be liable to a fine.

**Explanation.—For the removal of doubts, it is hereby declared that an officer not below the rank of Superintendent of Police shall decide whether to register the case under this section or under the Unlawful Activities (Prevention) Act, 1967.

Description:

For the first time, the offence of terrorism has been introduced in the general law of the land, and the act of terrorism has been clearly defined. Section 113 has been drafted on the lines of the Unlawful Activities (Prevention) Act (UAPA). It provides for punishment for the commission, attempt, abetment, conspiracy, membership of any terrorist organization, recruitment or organization of camps for training, harboring or concealing any person who has committed a terrorist act, and possession of proceeds of crime or property obtained or derived from the commission of a terrorist act. The penalties include the option of death or life imprisonment without parole.

Counterfeiting Indian currency has also been covered under this section as a terrorist act, similar to the UAPA. Destruction of any property in India or abroad, disruption of essential services, and damage to the monetary stability of India are also addressed under this section.

The provision recognizes the term “public functionary,” encompassing constitutional authorities and other functionaries notified by the Central Government. Criminal force or attempts to cause the death of a public functionary falls under the purview of terrorism. Destruction of public facilities or private property is now criminalized as a terrorist act.

This section addresses terrorism beyond international borders. It includes acts that result in damage by way of the destruction of critical infrastructure, recognizing the global threat of international terrorism. Special attention is given to vulnerabilities posed by cyber-attacks on critical infrastructures, thereby encompassing a broad range of modern terrorist activities.

Conclusion:

This comprehensive legal provision aims to strengthen national security by ensuring that all forms of terrorism are addressed with the utmost seriousness. It provides law enforcement agencies with the necessary legal tools to prevent and combat terrorism effectively, thereby safeguarding the unity, integrity, and security of the nation. The explicit inclusion of modern threats, such as cyber-attacks, underscores the forward-looking approach of the legislation in adapting to contemporary challenges.

Overall, Section 113 serves as a robust framework for deterring and prosecuting terrorist activities, reinforcing India’s commitment to maintaining internal and external security in an increasingly complex global landscape.

Organized Crime under BNS

Chapter VI: Offences Affecting the Human Body U/Sec. 111. (1) define the organized crime. it means any continuing unlawful activity, including but not limited to kidnapping, robbery, vehicle theft, extortion, land grabbing, contract killing, economic offences, severe cyber-crimes, and trafficking of persons, drugs, weapons, or illicit goods or services, as well as human trafficking for purposes such as prostitution or ransom, conducted by any individual or group acting in concert, whether singly or jointly, as a member of an organized crime syndicate or on behalf of such a syndicate, by employing violence, threats of violence, intimidation, coercion, or any other unlawful means to obtain direct or indirect material benefits, including financial gain, shall constitute organized crime.

Explanation:
For the purposes of this subsection:
(i) “Organized crime syndicate” refers to a group of two or more individuals who, either singly or jointly, as a syndicate or gang, engage in any continuing unlawful activity.
(ii) “Continuing unlawful activity” denotes any activity prohibited by law that is a cognizable offence punishable with imprisonment of three years or more, undertaken by any person, either singly or jointly, as a member of an organized crime syndicate or on behalf of such a syndicate. This includes activities for which more than one charge-sheet has been filed before a competent court within the preceding ten years, and the court has taken cognizance of such offences. It also encompasses economic offences.
(iii) “Economic offence” includes crimes such as criminal breach of trust, forgery, counterfeiting of currency notes and government stamps, hawala transactions, mass-marketing fraud, or any scheme intended to defraud multiple persons or defraud any bank or financial institution to obtain monetary benefits in any form.

(2) The punishment for committing organized crime shall be as follows:
(a) If the offence results in the death of any person, the perpetrator shall be punished with death or imprisonment for life and shall also be liable to a fine of not less than ten lakh rupees.
(b) In any other case, the perpetrator shall be punished with imprisonment for a term not less than five years, which may extend to life imprisonment, and shall also be liable to a fine of not less than five lakh rupees.

(3) Any person who abets, attempts, conspires, or knowingly facilitates the commission of organized crime, or engages in any preparatory acts for organized crime, shall be punished with imprisonment for a term not less than five years, which may extend to life imprisonment, and shall also be liable to a fine of not less than five lakh rupees.

(4) Any individual who is a member of an organized crime syndicate shall be punished with imprisonment for a term not less than five years, which may extend to life imprisonment, and shall also be liable to a fine of not less than five lakh rupees.

(5) Whoever intentionally harbors or conceals any person who has committed organized crime shall be punished with imprisonment for a term not less than three years, which may extend to life imprisonment, and shall also be liable to a fine of not less than five lakh rupees. This subsection shall not apply if the harboring or concealment is done by the spouse of the offender.

(6) Whoever possesses any property derived from or obtained through the commission of organized crime, or the proceeds of organized crime, shall be punished with imprisonment for a term not less than three years, which may extend to life imprisonment, and shall also be liable to a fine of not less than two lakh rupees.

(7) If any person, on behalf of a member of an organized crime syndicate, possesses movable or immovable property that cannot be satisfactorily accounted for, they shall be punished with imprisonment for a term not less than three years, which may extend to ten years, and shall also be liable to a fine of not less than one lakh rupees.

Description:
This section is dedicated to combating organized crime, eliminating any space for unlawful activities orchestrated by syndicates that pose a grave threat to the internal security of the country.

Key Points:

  • Definition: Section 111(1) of BNS 2023 defines organized crime, covering a range of offenses such as kidnapping, robbery, vehicle theft, extortion, contract killing, severe cyber-crimes, and human trafficking.
  • Petty Organized Crime: Offences not clearly defined or non-existent in the previous statute are now addressed in a separate section, 112 (Petty Organized Crime), which includes snatching, shoplifting, betting or gambling, and selling examination papers.
  • Clarifications: It further explains organized crime syndicates and continuous unlawful activities. Acts committed individually or by organized crime syndicates, using violence, threats, or coercion, are now punishable.
  • Economic Offences: Defined to include a range of crimes such as criminal breach of trust, forgery, counterfeiting currency notes, hawala transactions, mass-marketing fraud, and schemes to defraud institutions.

Stringent Punishment:

  • If the offence results in the loss of life, the perpetrator faces the death penalty or life imprisonment, with a mandatory fine of not less than Rs. 10 lakhs.
  • Provisions exist for individuals aiding in the commission of organized crimes, being a member of an organized syndicate, intentionally harboring or concealing any person committing organized crime, and dealing with proceeds of organized crime, outlining appropriate punishments.

Cognizable and Non-bailable Offence:
Organized crime is a cognizable and non-bailable offence, triable by a Sessions court, ensuring stringent punishment for such activities.

Conclusion

The BNS has taken significant steps to address the multifaceted threat of organized crime by introducing clear and comprehensive definitions and stringent punishments for such offences. By defining organized crime in Section 111(1), including a range of severe activities such as kidnapping, robbery, and human trafficking, and providing detailed explanations of terms like “organized crime syndicate” and “continuing unlawful activity,” the BNS aims to ensure no ambiguity in the legal framework.

Additionally, the introduction of Section 112, which covers petty organized crimes such as snatching and shoplifting, helps in addressing offences that were previously undefined or non-existent in the statute. This two-tier approach enables law enforcement agencies to tackle both major and minor organized crimes effectively.

The law prescribes severe punishments for those involved in organized crime, including death or life imprisonment for offences resulting in death and substantial fines. It also outlines penalties for those who abet, attempt, conspire, or facilitate organized crimes, members of organized crime syndicates, and individuals harboring offenders or possessing proceeds from organized crime.

By categorizing organized crime as a cognizable and non-bailable offence triable by Sessions courts, the BNS reinforces its commitment to internal security and public safety. The robust legal framework ensures that organized crime syndicates cannot operate with impunity, thereby protecting citizens from the pervasive threat of organized crime and maintaining public order and trust in the legal system.

Difference between Common intention and common object

Section 34 IPC: Acts done by several persons in furtherance of common intention

“When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.”

Section 149 IPC: Every member of unlawful assembly guilty of an offense committed in prosecution of common object

“If an offense is committed by any member of an unlawful assembly in the prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offense, is a member of the same assembly, is guilty of that offense.”

In summary, common intention under Section 34 requires a prior agreement to act together, while common object under Section 149 pertains to the shared purpose of an unlawful assembly without the need for prior agreement.

Bhartiya Nayaya Sanhita 2024 explains the common intention Section 3 (5 &6) explains and Section 190 explains the Common object

In legal terms, “common intention” and “common object” are concepts often used to attribute liability to multiple parties involved in a crime. Here’s a brief conclusion regarding both:

Common Intention

Common intention refers to a situation where two or more individuals collaborate to commit a criminal act, sharing the same purpose and intent. To establish common intention, the prosecution must prove:

  1. Presence of a shared plan: All parties had a pre-arranged plan to commit the crime.
  2. Participation in the act: Each individual actively participated in the criminal act.
  3. Knowledge of the act: All parties were aware of the nature of the act and its potential consequences.

Common Object

Common object, on the other hand, is a concept used primarily in the context of unlawful assemblies. It is used to hold members of a group responsible for actions committed by any member if they share a common purpose. Key aspects include:

  1. Membership in an unlawful assembly: The group must be defined as an unlawful assembly under the law.
  2. Shared purpose: The members share a common object, such as committing a crime or achieving an unlawful goal.
  3. Commission of an offense: Any offense committed in pursuance of the common object makes all members liable.

The difference between common intention and common object, particularly in the context of criminal law. These terms are often used in the Indian Penal Code (IPC). Here is the explanation in table format, including the relevant sections:

AspectCommon IntentionCommon Object
DefinitionCommon intention refers to a pre-arranged plan and acting in concert pursuant to it. It implies a meeting of minds and a plan to commit a criminal act.common object refers to a shared goal among a group of people to commit a criminal act. It does not require a pre-arranged plan or prior meetings of minds.
Section of IPCSection 34Section 149
Requirement of Prior Meeting of MindsYes, there must be a pre-arranged plan.No, prior meeting of minds is not necessary.
Number of PersonsRequires two or more persons.Requires five or more persons.
LiabilityEach person is liable for the act done by the others if it is in furtherance of the common intention.Each person is liable for the offense committed by any member of the group in furtherance of the common object.
ProofMore stringent as it requires proof of the pre-arranged plan.Less stringent as it does not require proof of prior planning.

Conclusion

Both common intention and common object are legal doctrines used to address collective criminal behavior. While common intention requires a premeditated plan and active participation, common object focuses on the shared unlawful purpose of a group. These principles ensure that all individuals involved in a criminal enterprise can be held accountable, promoting justice and deterring collaborative criminal activities.