“Unorganized” crime under the Bhartiya Nyaya Sanhita, 2023

The newly enacted Bhartiya Nyaya Samhita, 2023 (BNS) addresses and incorporates provisions covering “organised crime” at a national level. In the definition of “organised crime”, under Section 111, there is also a categorisation of “economic offence”.

While it is a laudable step to finally unify the offences, these terms have been inserted haphazardly, leaving no room for clarity and complicating the scope thereof.

Previously, the Indian Penal Code, 1860, did not carve a special provision for “organised crime”. However, other special laws such as the Prevention of Money Laundering Act, 2002 (PMLA), the Prevention of Corruption Act, 1988, the Narcotics Drugs and Psychotropic Substances Act (NDPS), 1985 etc, and state laws such as the Maharashtra Control of Organised Crime Act, 1999 (MCOCA) and the Gujarat Control of Terrorism and Organized Crime Act, 2015 (GCTOCA), defined varied organised crimes and have provided for harsher punishments.

This article analyses the scope of unification of organised crimes in the BNS Act with all the special/local acts, especially the MCOCA Act and the GCTOC Act, from which the definition has been replicated.

Tug of war: BNS vs Special Acts

The BNS replicates the definition of “organised crime” from the MCOCA, a state law applicable in Maharashtra and Delhi and the GCTOCA, a state law applicable in Gujarat.

Under the MCOCA, the definition of “organised crime” is wide enough to cover within its ambit any continuing unlawful activity by an individual on behalf of the syndicate or as a member of the syndicate by use of (a) violence (b) threat of violence (c) intimidation (d) coercion (e) other unlawful means; to gain pecuniary benefits or economic advantage or to promote insurgency.

Under the GCTOCA, an attempt has been made to further broaden the definition by including crimes such as “extortion”, “land grabbing”, “contract killing”, “economic offences”, “cyber-crimes”, “gambling rackets”, and “human trafficking”.

Section 111 of the BNS Act carves out an inclusive definition enlisting specific offences under the definition of “organised crime”, such as “kidnapping”, “robbery”, “vehicle theft”, “extortion”, “land grabbing”, “contract killing”, “economic offence”, “cyber-crimes”, “trafficking of persons”, “drugs”, “weapons or illicit goods or services”, and “human trafficking”. This definition covers any sort of gain, be it direct or indirect material benefit including financial benefit by any person or group of persons acting singly, jointly or in concert on behalf of the syndicate or as member thereof.

In a bid to bring in uniformity across the country, the BNS incorporates “organised crime” as an offence under Section 111. Under the BNS, an attempt has been made to unify the laws under its bigger umbrella and ensure a “coordinated” approach in the law.

However, upon a reading of Section 111 of the BNS Act, one would realise that under “organised crime” offences such as “hawala transaction” “mass marketing fraud”, “trick theft”, “cyber-crime”, “robbery”, “vehicle theft”, “land grabbing”, “contract killing”, “cyber-crimes”, “trafficking of drugs, weapons or illicit goods” and “human trafficking”, have been used loosely and remain undefined. In such an event, the scope of the undefined terms remains unfettered, bringing in their scope all sorts of acts under the definition of organised crime.

In such a scenario, it remains unclear whether reliance may be placed on varied special acts to define the undefined terms under Section 111 of the BNS.

Offences that remain undefined under Section 111 of the BNS, but have been defined in other special acts, have been mentioned here:

1. “Hawala transaction” has been defined under Section 2(c) of the Foreign Exchange Management Act of 1999 and Section 2 (da) of the PMLA.

2. “Cyber-crime”, is a broad term in itself, has varied offences defined under the Information Technology Act, 2000.

3. “Human trafficking” is a wide term that has been defined in the Immoral Traffic (Prevention) Act, 1956 (ITP Act). The said Act also provides for stringent penalty for human trafficking and trafficking.

4. “Land grabbing” has been defined in varied state laws such as the Gujarat Land Grabbing (Prohibition) Act, 2020 (GLG Act) and the Andhra Pradesh Land Grabbing (Prohibition) Act (APLG Act), 1982.

5. “Drug” has been defined under Section 2 (b) of the Drugs and Cosmetics Act, 1940. It also remains unclear if the term “drug” would incorporate “narcotic drugs” and “psychotropic substances”.

It is also alarming to note that offences such as “mass marketing fraud”, “trick theft”, and “contract killing”, have not been defined in any special law or state law.

Section 2(24) of the BNS reconciles the provisions of the local/special laws and imports the definition of the same to the BNS in cases of punishment of imprisonment for a term of six months or more, whether with or without fine. However, the term "organised crime" does not form part of the list. This clarifies the legislature’s stance and its intention to treat the offence of organised crimes to exist separately.

Special court or sessions court - which is the correct forum?

Section 5 of the MCOCA and GCTOCA provide for a special court constituted by the state government, presided over by a judge appointed by the state government, with the concurrence of the Chief Justice of the High Courts of Bombay and Gujarat, respectively.

Similarly, for offences pertaining to human trafficking, under Sections 22A and 22AA of the ITP Act, the state government and Central government may establish special courts for “providing for speedy trial”.

Also, the GLG Act and APLG Act, respectively provide for establishment of special courts to deal with offences pertaining to land grabbing.

However, under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), the appropriate forum under Section 21 read with the First Schedule thereto is the court of sessions. Thus, offences that form a part of “organised crime” under Section 111 of the BNS Act are triable before a sessions court. This would technically imply that even offences which were initially triable in special courts, would now be only before the sessions courts.

Can a special State Act prevail over BNS?

Another question that arises for consideration is whether the MCOCA can prevail over the BNS by virtue of the non-obstante clause under Section 6 thereto. Section 6 provides for organised crimes to be triable only by the special court within whose local jurisdiction it was committed, or, by the special court constituted for trying such offence under sub-section (1) of section 5.

It is settled law that in case of a special act and a general act, special law prevails. However, if such is a case, then the act of unifying the organised crimes under the BNS Act seems nugatory.

Under the MCOCA Act, organised crime is a non-bailable offence, except when certain conditions specified under Section 4 of the Act are met. Whereas in the BNS, the First Schedule stipulates that the offence is non-bailable. Another important question is which law the courts would consider.

Conclusion

While the BNS looks to unify all the special and state acts under one umbrella, an attempt ought to be made to define the unfettered terms under the Act. These ambiguities can be overcome if the following amendments are carried out to namely (a) amending the BNS Act to add the provisions of the local/special laws in addition to the BNS Act (b) define the offences thereto with clear confines (c) stating that the special laws would prevail in case of any derogation.

Sharmin Kapadia and Priyam Sharma are advocates practicing before the Bombay High Court.