Introduction
The Indian Penal Code, 1860 (IPC) and the Code of Criminal Procedure, 1973 (CrPC) were recently repealed and replaced by the Bharatiya Nyaya Sanhita Bill, 2023 (Nyaya Sanhita Bill) and the Bharatiya Nagarik Suraksha Sanhita Bill, 2023 (Nagarik Suraksha Sanhita Bill), together known as the “New Codes,” which were introduced in the Lok Sabha on August 11, 2023.
The New Codes propose extensive modifications to the current criminal law framework, such as the simplification and streamlining of the IPC’s existing provisions and the addition of new offenses under sections pertaining to hate speech, terrorism, and actions that compromise the country’s sovereignty, unity, and integrity. In addition, they include clauses about deadlines for the investigation, trial, and trial in absentia of absconders. With the introduction of the New Codes, the criminal justice system’s colonial history of punishing and suppressing people was abandoned in Favor of a new framework that upholds Indian persons’ rights and advances the notion of justice.
Proposed Changes in the Nyaya Sanhita Bill
The Nyaya Sanhita Bill has altered the landscape of financial offences, including deception and account fabrication. A new provision pertaining to “organized crime” and the consolidation of various IPC laws pertaining to the same offence under a single new umbrella provision are two of the modifications included in the Nyaya Sanhita Bill.
Introduction of the definition of ‘organised crime’
The Nyaya Sanhita Bill creates a new Section 109 on “organized crime,” which is defined as any offense in which a number of people conspire, act as members of an organized crime syndicate, or act on their behalf to commit crimes like extortion, land grabbing, offenses involving bodily harm, economic offenses, etc. In addition to this, “criminal breach of trust, forgery, counterfeiting of currency and valuable securities, financial scams, running Ponzi schemes, mass-marketing fraud or multi-level marketing schemes with a view to defraud the people at large for obtaining the monetary benefits or large-scale organised betting in any form, offences of money laundering and hawala transactions” are all considered “economic offences” in the context of organised crime.
The aforementioned makes clear how broad the notion of organized crime is. Furthermore, under the Nyaya Sanhita Bill, economic offenses have been connected to the crime of organized crime. As a result, there is a chance that the relevant law enforcement agencies will charge businesses and their officers with both the economic offenses and the crime of organized crime. Having said that, it will be impossible to evaluate the actual effects of these additions until the New Codes are passed into law, put into practice by law enforcement, and evaluated by courts.
Changes in offences of cheating, criminal breach of trust, forgery and falsification of accounts
The following offenses have been combined and reorganized: forgery, criminal breach of trust, cheating, and account fabrication. The definition of cheating and the penalties associated with it have been combined in the new Section 316 on cheating. Along with outlining the aggravated offenses of cheating, the new provision consolidates the following: cheating and dishonestly inducing the delivery of property; cheating with knowledge that unjust loss would result; and cheating. The relevant offenses under IPC5 are also consolidated and rearranged by provisions under the New Codes that deal with criminal breach of trust (under Section 314) and forgery and falsification of accounts (under Sections 333 and 334). Notably, the three-year sentence for criminal breach of trust has been raised to five years. Additionally, the Nyaya Sanhita Bill makes reporting the commission of a criminal breach of trust essential. When it comes to businesses, instances of employee or third-party fund misappropriation and embezzlement typically constitute the criminal breach of trust offense.
To reduce any possible reputational costs, firms frequently try to settle such disputes amicably through private settlements. The requirement to disclose these offenses to the police, however, may necessitate taking extra measures to reach these agreements and settle disputes amicably. For instance, if a FIR is filed after the company reports these offenses, a quashing petition may need to be filed. However, the New Codes envisage that the commission of such an offence need not be reported in case there is a “reasonable excuse” not to do so. While exploring a settlement may arguably constitute a reasonable excuse, this will have to be judicially tested once the New Codes come into force.
Proposed Changes in the Nagarik Suraksha Sanhita Bill
The most notable changes introduced in the Nagarik Suraksha Sanhita Bill are aimed towards specifying timelines for conducting investigation and trial, and updating archaic provisions to account for modern means of communication, electronic evidence and conducting trials through virtual modes. The provisions for attachment and seizure of property amounting to or related to proceeds of crime have also been amended and new provisions have been inserted to allow trial for absconding offenders in their absence.
Introduction of new timelines during various phases of investigation and trial
The Nagarik Suraksha Sanhita Bill introduces fixed timetables for the stages of investigation and trial. For example, following the filing of a chargesheet, additional investigation must be finished within ninety days. Extension of this period is not permitted unless the court specifically grants it. Additionally, this Bill requires the police officer to provide the victim or informant with updates on the investigation’s status within ninety days, including through electronic contact. Regarding the formulation of charges, a sixty-day period (from the date of the first hearing) has been set forth. In addition, the decision must be rendered within 30 days following the conclusion of the arguments, albeit this deadline may be extended to 60 days.
Trial in electronic mode and electronic communication
Electronic communication and video conferencing tools have been implemented under the Nagarik Suraksha Sanhita Bill at different points in time, such as during the inquiry, investigation, and trial phases. For instance, the victim’s and a witness’s statements may be recorded using audio-video technological devices, such as a mobile phone, in the course of an investigation into a cognisable offense. Similar to this, any search carried out by a police officer needs to be captured on audio-visual electronic devices—ideally, a cell phone.
Electronic communication can be used to serve a summons that has been issued by a police officer or by a court. Additionally, through audio-video electronic methods, the accused may now personally attend the proceedings thanks to the Nagarik Suraksha Sanhita Bill. The Nagarik Suraksha Sanhita Bill also provides that all trials, investigations, and proceedings. Jurisdiction in the case of electronic communication The Nagarik Suraksha Sanhita Bill has now added that if the offence of cheating is committed “by means of electronic communications or letters or telecommunication messages” then the same may be inquired into or tried by any court within whose local jurisdiction such electronic communications or letters or messages were sent or received.
Provision for attachment and seizure of property
The Nagarik Suraksha Sanhita Bill has inserted an entirely new provision that allows a police officer to make an application to the court or a judicial magistrate (with the approval of the Superintendent or Commissioner of Police), for attachment of certain properties where such properties are obtained, directly or indirectly, as a result of criminal activity or from the commission of any offence or which are ‘proceeds of crime’. Presently, the CrPC does not envisage or provide for the attachment of properties which are the ‘proceeds of crime’. The definition of ‘proceeds of crime’ is similar to that given under the Prevention of Money Laundering Act, 2002. Further, if the court finds the attached property to be derived from ‘proceeds of crime’, the court may order distribution of such property to persons affected by such a crime.
Trial against a person declared an ‘absconder’
The Nagarik Suraksha Sanhita Bill allows for a trial to be conducted against a person declared as an ‘absconder’ even in his absence. All a court has to do is record reasons in writing and proceed with the trial as if the proclaimed offender or absconder was present before it. The proclaimed offender or absconder also does not have a right to appeal unless he presents himself before the appellate court. Further, no appeal against conviction shall lie after the expiry of three years from the date of judgment.
Conclusion
In order to achieve simplified enforcement and clarity on the applicability of certain offenses, the IPC and CrPC provisions have been consolidated into umbrella provisions in the New Codes. Reforms that are desperately needed include the establishment of stiffer deadlines and audio-visual and technological tools for conducting various procedures during trials and investigations. The implementation of a rigorous trial in absentia procedure will facilitate the expeditious resolution of legal proceedings against economic offenders who evade legal jurisdiction in order to evade prosecution. However, after the New Codes are put into effect, the effectiveness of these modifications will also have to be evaluated based on how the district as well as apex courts interpret them.
