IT Act and BNS, BNSS, BSA 2023: Cyber Offences, Procedure and Evidence

On 1 July 2024, the Bharatiya Nyaya Sanhita, the Bharatiya Nagarik Suraksha Sanhita and the Bharatiya Sakshya Adhiniyam replaced the IPC, the CrPC and the Evidence Act. The IT Act was not replaced, but its working changed: many cyber-related offences moved into new section numbers, some new provisions expressly address electronic conduct, criminal procedure now builds in electronic FIRs, recording and trials, and electronic evidence has a revised certificate regime. This note explains how the IT Act and the three new codes work together in a cyber case.

1. Four Instruments, One Orchestra

A criminal case involving computers is like an orchestra with four sections. The IT Act plays the special melody of computer-specific offences and powers. The BNS supplies the general offences such as cheating, forgery and defamation. The BNSS conducts the performance: FIR, investigation, trial. And the BSA decides what the audience, the court, is allowed to hear as evidence. Each has its part, and a good lawyer knows which section is playing at each moment.

Figure 1: The three new codes and their cyber provisions

2. Reading Old References in the IT Act

• The problem. The IT Act still refers in places to the Indian Penal Code, the Code of Criminal Procedure and the Indian Evidence Act, which have been repealed.
• Section 8, General Clauses Act. Where a Central Act repeals and re-enacts a provision, references in other laws to the repealed provision are read as references to the re-enacted provision. References to the CrPC are read as the BNSS, to the IPC as the BNS, and to the Evidence Act as the BSA.
• Savings. Offences committed and proceedings begun before 1 July 2024 continue under the old codes, under the repeal and savings provisions of the new laws.

3. Cyber Offences under the BNS

Figure 2: Cyber-relevant IPC provisions and their BNS equivalents

• Extra-territorial reach (s.1(5)(c)). The BNS applies to any person beyond India committing an offence targeting a computer resource located in India, carried from clause (3) of Section 4 IPC, which the IT (Amendment) Act, 2008 had inserted.
• Documents (s.2(8)). 'Document' includes electronic and digital records, so forgery, cheating by documents and similar offences apply to electronic records.
• Organised crime (s.111). Continuing unlawful activity by an organised crime syndicate, expressly including cyber-crimes having severe consequences, is a new offence with heavy punishment. It targets large fraud networks, including those behind digital arrest and investment scams.
• Sovereignty and misinformation (ss.152, 197(1)(d)). Acts endangering the sovereignty, unity and integrity of India, including by electronic communication, and making or publishing false or misleading information jeopardising sovereignty or security.
• Obscenity (s.294). Now expressly covers obscene content in electronic form, though Section 67 of the IT Act remains the specific provision for electronic obscenity.
• Other offences often used online. Cheating (s.318), cheating by personation (s.319), criminal intimidation (s.351), statements conducing to public mischief (s.353), defamation (s.356), voyeurism (s.77), stalking including monitoring electronic communication (s.78), and promoting enmity (s.196)

4. Electronic Procedure under the BNSS

Figure 3: Electronic provisions of the BNSS

• e-FIR (s.173). Information about a cognizable offence may be given by electronic communication; it must be signed by the informant within three days to be taken on record.
• Definitions. The BNSS defines 'audio-video electronic means' and 'electronic communication' (s.2(1)(a) and (i)), and allows summons in electronic form (s.63)
• Investigation. Production of devices and electronic communications (s.94), audio-video recording of search and seizure (s.105), and mandatory forensic examination of crime scenes for offences punishable with seven years or more (s.176(3))
• Victim and accused. Victims must be told of the progress of investigation within 90 days, including by electronic means (s.193(3)); documents may be supplied to the accused electronically (s.230)
• Trial. Inquiries, trials and proceedings, including recording of evidence, may be held in electronic mode (s.530)
• IT Act procedure prevails. Section 4(2) BNSS applies the Sanhita to offences under other laws subject to any enactment regulating investigation or trial, and Section 5 saves special procedure. So an IT Act offence is still investigated by an officer not below the rank of Inspector (s.78 IT Act) and compounded under Section 77A.

5. Electronic Evidence under the BSA

• Definitions (s.2). 'Evidence' and 'document' include electronic and digital records, with illustrations including emails, server logs, messages, websites, locational evidence and voice mail.
• Primary evidence (s.57). New Explanations treat electronic records as primary evidence in specified cases, such as each file of a record stored simultaneously in several places.
• Admissibility (ss.61 to 63). Electronic records are not inadmissible merely because they are electronic (s.61); contents are proved under Section 63, which requires a certificate in the Schedule signed by the person in charge and an expert, with hash values, at each instance of submission.
• Continuity. The principles of Anvar P.V. (2014) and Arjun Panditrao (2020) on the certificate carry forward to Section 63 (see Topics 9 and 24)

6. The IT Act and the BNS: Which Applies?

• Special law principle. Where the IT Act specifically covers the conduct, it prevails over the general provision, and the accused cannot also be proceeded against under the general provision for the same act (Sharat Babu Digumarti, (2017) 2 SCC 18). The principle applies equally to the BNS.
• Distinct ingredients. Where a BNS offence requires an ingredient the IT Act offence does not, both may be charged, subject to the bar on double punishment (see Topic 11)
• Typical combinations. Online fraud: Sections 66C and 66D IT Act with Sections 318 and 319 BNS. Sextortion: Sections 66E and 67A IT Act with extortion under the BNS. Organised cyber fraud: Section 111 BNS with IT Act offences.

Figure 4: One cyber fraud case, four laws

7. Quick Revision and Memory Aids

• 'Four instruments, one orchestra'. IT Act, BNS, BNSS, BSA.
• '420 is 318, 419 is 319'. Cheating and personation.
• '173 e-FIR, 105 video, 530 e-trial'. BNSS highlights.
• '65B is 63'. The certificate.

8. Frequently Asked Questions

How are references to the IPC, CrPC and Evidence Act in the IT Act to be read?

Under Section 8 of the General Clauses Act, as references to the corresponding provisions of the BNS, BNSS and BSA respectively.

9. Related Topics

• Topic 11: IT Act as Special Legislation. The special law principle.
• Topic 24: IT Act and Digital Evidence. Collection and proof in practice.