Introduction: The New Criminal Law Framework
On July 1, 2024, India witnessed a historic transformation of its criminal justice system. Three new laws came into force, replacing the colonial-era British laws that had governed India for over 160 years:
The Three New Laws (Effective July 1, 2024)
- Bharatiya Nyaya Sanhita (BNS), 2023 - Replaces Indian Penal Code (IPC), 1860
- Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 - Replaces Code of Criminal Procedure (CrPC), 1973
- Bharatiya Sakshya Adhiniyam (BSA), 2023 - Replaces Indian Evidence Act, 1872
By the end of this part, you will be able to:
- Navigate the new BNS provisions for cyber-related offenses
- Apply BNSS procedural requirements for digital investigations
- Understand BSA Section 63 for electronic evidence admissibility
- Compare old and new provisions for correct application
- Prepare valid Section 63 BSA certificates
Cases filed BEFORE July 1, 2024: Continue under old laws (IPC/CrPC/Evidence Act)
Cases filed ON OR AFTER July 1, 2024: Must use new laws (BNS/BNSS/BSA)
Investigators must be proficient in BOTH frameworks during the transition period, as old cases will continue under old laws while new cases must use the new framework.
Bharatiya Nyaya Sanhita (BNS) 2023: Substantive Cyber Offenses
The BNS introduces several provisions directly relevant to cyber crimes, with enhanced focus on digital offenses. Key changes include increased penalties and new offense categories.
Key Cyber-Related Provisions in BNS
Cheating and Dishonestly Inducing Delivery of Property
Covers online fraud, UPI fraud, phishing-based financial crimes. The new provision explicitly recognizes electronic means of cheating.
Cheating by Personation
Specifically applicable to cases of impersonation through electronic means, including fake social media profiles, spoofed emails, and identity fraud.
Forgery (Including Electronic Documents)
Explicitly includes electronic documents and electronic records within the definition of forgery. Covers creation of fake digital certificates, manipulated electronic contracts, etc.
Key Addition: "Electronic record" and "electronic signature" are now expressly covered under forgery provisions.
Defamation (Including Online Defamation)
Covers defamation through electronic means including social media posts, blogs, messages, and online publications.
Note: Online defamation is now explicitly criminalized under BNS. Combined with IT Act Section 66A being struck down, BNS 356 becomes the primary provision for online defamation cases.
Criminal Intimidation (Online Threats)
Covers threatening messages sent through electronic communication - email threats, social media threats, SMS threats, etc.
Enhanced punishment when threat is made anonymously or through electronic means.
Sexual Offenses Including Digital Harassment
Covers cyber stalking, online sexual harassment, and voyeurism using electronic means.
BNS 78: Sexual harassment including unwelcome sexually colored remarks through electronic communication
BNS 79: Voyeurism including capturing/distributing intimate images without consent
New Provisions for Organized Crime and Terrorism
Organized Crime (Including Cyber-Enabled)
New provision defining organized crime which includes cyber crimes committed as part of a syndicate. Covers organized fraud networks, ransomware gangs, and similar criminal organizations.
Key Elements: Continuing unlawful activity, crime syndicate, cyber crimes for material benefit
Terrorist Acts (Including Cyber Terrorism)
Comprehensive definition of terrorist acts including those committed through cyber means. To be read with IT Act Section 66F.
Note: IT Act 66F continues to apply for cyber terrorism. BNS 113 provides additional substantive law framework.
Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023: Procedural Changes
BNSS brings significant procedural reforms relevant to cyber crime investigation, including mandatory electronic procedures and digital evidence handling requirements.
Key Procedural Changes for Digital Investigations
FIR Registration - Electronic Options
New Feature: FIR can now be registered through electronic means. Oral information can be given through electronic communication.
Mandatory Requirement: Information must be digitally recorded and signed using electronic means where possible.
Impact on Cyber Crimes: Enables remote FIR registration, crucial for cyber crime victims who may be in different jurisdictions.
Preliminary Enquiry - Mandatory for Certain Cyber Offenses
For offenses punishable with 3-7 years imprisonment, preliminary enquiry can be conducted before registration of FIR.
Relevance: Many cyber offenses fall in this category. Allows initial verification of cyber crime complaints before formal registration.
Timeline: Must be completed within 14 days.
Recording Statements - Video Conferencing
Major Change: Statements can now be recorded through audio-video electronic means.
Specific Provision: Statements of victims and witnesses can be recorded through video conferencing before Magistrate.
Impact on Cyber Crime Cases: Facilitates recording statements of victims/witnesses located in different cities/countries.
Summons for Production of Electronic Records
Courts and investigating officers can issue summons for production of documents including electronic records.
Key Addition: Explicit provision for summoning electronic records from intermediaries, service providers, and other entities.
Process: Can be served electronically to the registered email address.
Search and Seizure of Electronic Devices
Detailed provisions for search and seizure including specific requirements for electronic evidence.
Mandatory Requirements:
- Videography of search and seizure process (mandatory)
- Hash value calculation of seized electronic evidence
- Proper chain of custody documentation
BNSS 105(2): Every search and seizure shall be videographed, preferably by mobile phone.
This is a MANDATORY requirement. Failure to videograph the search may affect the admissibility of seized evidence in court. This is particularly critical for electronic evidence seizure.
Service of Summons by Electronic Means
Summons, warrants, and other documents can now be served through electronic means including email, SMS, and other approved digital channels.
Valid Electronic Service: Email to registered email address, mobile application, or other electronic means approved by the court.
Video Conferencing for Trials and Remand
Trials, inquiries, and remand proceedings can be conducted through video conferencing.
Specific Provision: Accused can be produced before Magistrate through video conferencing from prison/police station.
Impact: Facilitates faster proceedings in cyber crime cases, especially where accused is in a different jurisdiction.
Bharatiya Sakshya Adhiniyam (BSA) 2023: Digital Evidence
The BSA brings critical updates to the law of evidence, particularly for electronic evidence. Section 63 BSA (replacing Section 65B of Evidence Act) is fundamental for cyber crime investigators.
Section 63 BSA: The Most Critical Provision for Cyber Crime Investigators
Section 63 BSA governs the admissibility of electronic records. Without proper compliance with Section 63, electronic evidence may be deemed inadmissible.
Admissibility of Electronic Records
Basic Rule: Any information contained in an electronic record which is printed on paper, stored, recorded, or copied in optical or magnetic media, produced by a computer is deemed to be a document and is admissible as evidence of any contents of the original or any fact stated therein.
Conditions for Admissibility (BSA 63(2)):
- Computer must have been used regularly to store/process information
- Information was fed into computer in ordinary course of activities
- Computer was operating properly during the relevant period
- Information reproduces or is derived from information fed into computer
Certificate Requirement (BSA 63(4)):
A certificate identifying the electronic record and describing the manner of its production, signed by a person occupying a responsible position in relation to the operation of the device or management of relevant activities.
Certificate must state:
- Identification of the electronic record
- Description of the manner of production
- Particulars of the device involved in production
- That the conditions under BSA 63(2) are satisfied
The Supreme Court in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020) held that Section 65B(4) certificate (now Section 63(4) BSA) is MANDATORY for electronic evidence admissibility.
Exception: If the original electronic record is produced, no certificate is required. But in most cases, investigators work with copies, making the certificate mandatory.
Who can sign: Person in charge of the computer/device from which evidence is extracted - NOT the investigating officer (unless the device belongs to the investigation agency).
Other Important BSA Provisions for Digital Evidence
Definition of "Document" - Includes Electronic Records
"Document" means any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter and includes electronic and digital records.
Secondary Evidence
Secondary evidence includes copies of documents and electronic records, oral accounts of documents.
Key Point: Electronic records can be proved as secondary evidence, subject to Section 63 certificate requirements.
Presumption as to Electronic Records
Court shall presume that every electronic record purporting to be an agreement and containing electronic signatures of the parties, was so concluded by affixing the electronic signatures of the parties.
Impact: Strengthens the evidentiary value of digitally signed documents in cyber crime cases.
Comparison: Old Laws vs New Laws
Quick reference table for investigators to map old sections to new sections:
| Offense/Provision | Old Law | New Law | Key Changes |
|---|---|---|---|
| Online Cheating | IPC 420 | BNS 318 | Explicit electronic means recognition |
| Impersonation | IPC 419 | BNS 319 | Covers digital impersonation |
| Forgery of Electronic Documents | IPC 463-465 | BNS 336-338 | E-records explicitly included |
| Online Defamation | IPC 499-500 | BNS 356 | Electronic publication covered |
| Cyber Stalking | IPC 354D | BNS 78 | Enhanced provisions |
| Online Threats | IPC 503-506 | BNS 351 | Electronic means explicitly covered |
| FIR Registration | CrPC 154 | BNSS 173 | Electronic FIR enabled |
| Search & Seizure | CrPC 93 | BNSS 105 | Mandatory videography |
| Electronic Evidence | Evidence Act 65B | BSA 63 | Similar requirements, renumbered |
- July 1, 2024 is the cutoff date - new cases must use BNS/BNSS/BSA, old cases continue under IPC/CrPC/Evidence Act
- BNS explicitly recognizes electronic means in multiple offense definitions (cheating, forgery, defamation, etc.)
- BNSS mandates videography of search and seizure - non-compliance affects evidence admissibility
- BSA Section 63 certificate is mandatory for electronic evidence (same as old 65B but renumbered)
- IT Act continues to apply alongside BNS/BNSS/BSA for cyber-specific offenses
- Investigators must know BOTH frameworks during transition period
- Use Section Finder tool to quickly identify correct sections under both old and new laws