Introduction
Every system of criminal law needs a vocabulary before it can punish anyone. A section on theft or cheating is of little use unless the reader already knows what the law means by an act, by an omission, by harm or by a fraudulent intention. The Bharatiya Nyaya Sanhita, 2023 (BNS) supplies this vocabulary. It replaced the Indian Penal Code, 1860 (IPC) and came into force on 1 July 2024.1 Under the IPC, these supporting terms were spread across a long run of sections in Chapter II, which was headed “General Explanations.”2 The BNS follows a tidier plan. Definitions are collected in Section 2, while the rules of interpretation are kept in Section 3, which is itself titled “General explanations.”3
This article looks at four expressions from that part of the code: act, omission, injury and fraudulently. They were chosen because each answers a basic question that a criminal court must ask. What did the accused do or fail to do? What harm followed? In what state of mind did the accused act? Taken together, the answers to these three questions decide whether a person is blamed at all and, if so, how seriously. The central question of this article is therefore how far these definitions form the backbone of criminal liability.
The study is doctrinal. It reads the text of Sections 2 and 3 of the BNS, compares it with the corresponding IPC provisions, and tests it against decided cases and academic writing. One limitation should be stated plainly. The BNS is very new, and these four definitions were carried over from the IPC with almost no change in wording.4 For that reason, the reported decisions discussed below were decided under the IPC. They remain the main guide to interpretation unless and until courts decide that the new wording requires a different approach.
Critical analysis of the topic
A. The design of Sections 2 and 3
Section 2 is a glossary. It gives short meanings for terms that appear again and again in the offences, such as act, omission, injury, fraudulently, dishonestly, voluntarily and illegal. Section 3 is different in nature. It does not define words but tells the reader how to read the whole code. It provides, among other things, that definitions, penal provisions and illustrations are all subject to the exceptions in the chapter on general exceptions, even where an exception is not repeated in the particular section.5 It also contains the rules on words referring to acts, on acts done by several persons with a common intention, and on effects caused partly by an act and partly by an omission.6 Table 1 summarises the four core expressions and their place in the scheme of liability.
| Expression | BNS provision | IPC provision | Element of liability it supplies |
|---|---|---|---|
| Act | Section 2(1) | Section 33 | Conduct: positive doing, whether a single act or a series of acts |
| Omission | Section 2(25) | Section 33 | Conduct: failure to do, relevant when the failure is illegal |
| Injury | Section 2(14) | Section 44 | Harm: illegal harm to body, mind, reputation or property |
| Fraudulently | Section 2(9) | Section 25 | Mental element: intent to defraud |
Table 1: The four core expressions and the element of liability each one supplies
B. Act
The code defines “act” in a single line: the word covers a series of acts as well as a single act.7 The definition does not say what an act is. It assumes that everyone understands this and only clarifies that a chain of related acts can be treated as one unit. That clarification is more useful than it first appears. Many offences, such as cheating through repeated false statements, are made up of several steps, and the law must be able to look at the whole course of conduct. In some offences, words are themselves the act. Defamation and criminal intimidation are examples.
The idea of an act also carries a silent requirement of voluntariness. Criminal law punishes conduct that the person controls, and theorists have long linked responsibility to the power to choose.8 The code does not put this into the definition of “act.” Instead, it reaches the same result through the definition of “voluntarily” and through the general exceptions, which excuse persons who act under compulsion, without capacity or by accident. In this way the definition of act works as one piece of a larger design.
C. Omission
The IPC defined act and omission together in one section. The BNS has separated them into two clauses, which is a small but sensible improvement in clarity.9 An omission, like an act, can be single or repeated. The real difficulty is not the definition but the question of when an omission becomes punishable. A failure to act is not a crime merely because harm followed. The BNS links omission to illegality in two ways. First, “illegal” covers whatever is an offence, is prohibited by law, or gives ground for a civil action.10 Second, Section 3 says that words referring to acts also extend to illegal omissions.11
The result is that liability for an omission depends on a legal duty to act. Such duties may arise from a statute, from a contract, from a relationship of care, or from the fact that the accused created the danger. The code does not list these sources. A railway gatekeeper who fails to shut the gate, or a parent who fails to feed an infant, clearly owes a duty. A stranger who watches a drowning person owes only a moral duty under ordinary Indian criminal law. The Supreme Court has recognised a firmer duty for doctors dealing with accident victims, which shows that the law builds duties case by case.12 Scholars have long observed that the boundary between moral and legal duty is among the hardest problems in the whole subject.13
D. Injury
“Injury” means any harm illegally caused to a person in body, mind, reputation or property.14 Two features deserve attention. The first is breadth. The definition names four kinds of interest, so it reaches beyond physical violence to damage to a person’s dignity and belongings. The second is the word “illegally.” Harm that the law permits, such as force used within the limits of private defence, is not injury in this sense. The definition therefore cannot be read without the general exceptions.
Injury should not be confused with hurt. Hurt in the BNS is narrower and means causing bodily pain, disease or infirmity.15 Injury is the wider genus and appears as the harm that is intended, known or likely in many provisions. The weakest part of the definition is “mind.” The code does not explain what counts as injury to the mind, whether it must amount to a recognised psychiatric condition, or how courts should prove it. This vagueness leaves much to judicial discretion.
E. Fraudulently
A person acts fraudulently when the thing is done with intent to defraud, and not otherwise.16 Read alone, this definition is circular because it explains “fraudulently” by the word “defraud.” Its content therefore comes from case law, as discussed below. The term must also be separated from “dishonestly,” which requires an intention to cause wrongful gain to one person or wrongful loss to another. Dishonesty is tied to property. Fraud is broader and can include deception that causes a non-monetary disadvantage. The two words appear side by side in offences such as cheating and forgery, and the accused may be convicted if either state of mind is shown.17
F. Strengths, weaknesses and likely outcome
The principal strength of this scheme is economy. A few lines of definition are reused across hundreds of offences, so that Parliament need not restate the meaning of each word every time. The separation of act and omission, and the grouping of definitions in one section, make the code easier for students, police officers and lawyers to consult. A second strength is that the definitions are flexible enough to cover new situations, including conduct carried out through electronic means, without amendment.
The weaknesses are of three kinds. One is circularity. “Act” and “fraudulently” are defined with reference to themselves and tell the reader little. Another is silence. The code does not state when a duty to act exists, and it does not say what mental injury means. The third is retention of old language. Because the wording was carried forward from 1860, the opportunity to modernise was only partly used. The Parliamentary Standing Committee examined the Sanhita before enactment, yet these definitions attracted little change.18 The likely outcome is that courts will carry on applying the settled IPC-era meanings, which gives continuity but also preserves the gaps.
Taken together, the four terms mark out the structure of liability. Act and omission describe the physical element, injury describes the harmful result, and fraudulently describes a form of guilty mind. A student who understands these four expressions can follow the logic of most offences in the code.
Relevant provisions of the Act
Several provisions of the BNS must be read together on this topic. Section 2(1) and Section 2(25) define act and omission, while Section 2(9) and Section 2(14) define fraudulently and injury. Section 2(15) explains the words “illegal” and “legally bound to do,” and the definition of “voluntarily” in Section 2(33) links conduct to the person’s intention or knowledge. In Section 3, sub-section (1) makes the whole code subject to the general exceptions, sub-section (4) extends words about acts to illegal omissions, sub-section (5) deals with acts done by several persons in furtherance of a common intention,19 and sub-section (7) covers an effect caused partly by an act and partly by an omission.20
The definitions then operate through specific offences. Causing death by negligence under Section 106(1) can rest on a careless act or a careless omission.21 Abetment under Section 45 may be committed by an act or by an illegal omission.22 Cheating and forgery require a fraudulent or dishonest state of mind. Defamation under Section 356 depends on harm to reputation, which is one of the four heads of injury.23 The general exceptions in Chapter III then supply the defences that qualify every one of these definitions.
Analysis of relevant case law
A. Barendra Kumar Ghosh v. King-Emperor
A sub-postmaster was shot dead by a group of persons. The appellant, who was part of the group, by his own account stood in the courtyard just outside the door of the room where the sub-postmaster was shot, armed with a pistol, and did not fire the fatal shot. The Privy Council upheld his conviction on the basis of common intention, observing in memorable words that in crimes, as in other things, “they also serve who only stand and wait.”24 The case shows that an “act” in criminal law is not limited to the final blow. Presence and support at a pre-arranged place can be part of the series of acts that makes up the offence. It remains the leading authority on the rule of common intention now found in Section 3(5) of the BNS.
B. R. v. Instan
A niece lived with her elderly aunt and was the only person who could care for her. She did not feed her aunt or call for medical help, and the aunt died. The Court for Crown Cases Reserved held the niece guilty of manslaughter, reasoning that she had taken on the care of the aunt and had a legal duty to continue it.25 The decision is English and only persuasive in India, but it illustrates the principle that an omission becomes criminal when a duty has been assumed. It supports the reading of “illegal omission” in Sections 2(15) and 3(4) of the BNS.
C. Parmanand Katara v. Union of India
The petition arose from a newspaper report that the nearest hospital had refused to treat a scooterist injured in a road accident and had directed him to another hospital authorised to handle medico-legal cases, and that he died before reaching it. The Supreme Court held that every doctor, whether at a government hospital or otherwise, has a professional obligation to extend his services to protect life, and that no law or State action can delay the discharge of that obligation.26 The case is valuable for the discussion of omission because it shows the Court building a duty to act out of the right to life and the ethics of the profession. At the same time, its reach is limited to medical professionals, and it does not create a general duty to rescue.
D. Jacob Mathew v. State of Punjab
A patient died in a hospital after allegations that the oxygen cylinder supplied to him was empty and that the doctors did not attend in time. The question was whether the doctors could be prosecuted for causing death by negligence. The Supreme Court held that criminal liability requires gross negligence or recklessness, which is a much higher standard than the negligence that supports a civil claim, and it laid down safeguards against casual prosecution of doctors.27 The relevance here is twofold. The case concerns omissions, since the failures alleged were failures to act, and it shows that the physical element of an omission is not enough without the required degree of fault.
E. Dr. Vimla v. Delhi Administration
The accused had bought a car in the name of her minor daughter and signed the insurance proposal and claim papers in the daughter’s name. She was charged with cheating by personation and forgery. The Supreme Court examined what it means to “defraud.” It held that the expression involves two elements, deceit and injury to the person deceived. The Court added that the injury need not be economic and includes any harm to body, mind or reputation, and that where the deceiver secures an advantage, the second element is satisfied even if the person deceived suffers no corresponding loss.28 On the facts, the Court acquitted her of forgery, because her deceit neither secured her an advantage nor caused the insurer any injury. This is the most important authority on the definition of fraudulently, because it fills the circular wording with real content. It is also notable because the Court itself drew on the language of the definition of injury, which shows how the four terms operate together.
F. Subramanian Swamy v. Union of India
The petitioners challenged criminal defamation as an unreasonable limit on free speech. The Supreme Court upheld the offence and stressed that reputation is part of a person’s dignity and is protected under the right to life in Article 21 of the Constitution.29 The decision bears directly on the definition of injury. It confirms that harm to reputation is a real legal harm and not a minor social inconvenience, which justifies placing reputation alongside body and property in the definition.
G. Nathulal v. State of Madhya Pradesh
The accused, a foodgrain dealer, was prosecuted under the Essential Commodities Act, 1955 for storing wheat for sale without the licence required by a State licensing order. The Supreme Court restated the general rule that mens rea is an essential ingredient of a criminal offence unless the statute excludes it expressly or by necessary implication, and acquitted the dealer because he had stored the grain in the bona fide belief that his licence had been issued.30 This principle underlies the definitions studied here. Words such as fraudulently and voluntarily are the code’s way of building a mental element into particular offences, which is why the definitions are essential to fair liability.
Suggestions
The following suggestions are offered for consideration. They are based on the gaps identified above.
First, Parliament could add a short clause or explanation recognising the main sources of a legal duty to act: statute, contract, assumed care and prior creation of danger. This would reduce the uncertainty that now depends on scattered precedent. The Law Commission of India reviewed the penal code in detail in 1971, and a fresh expert study on omissions would be a natural next step.31
Second, the meaning of “defraud” could be clarified by incorporating the rule from Dr. Vimla into an explanation to Section 2(9). Doing so would turn the circular definition into a self-contained one and would help trial courts that do not have easy access to older authorities.
Third, the phrase “injury to the mind” needs guidance. The legislature could link it to a recognised mental health condition, using concepts already available in the Mental Healthcare Act, 2017, so that courts and prosecutors apply a consistent test.32
Fourth, Good Samaritan protection should be consistent. Persons who help road accident victims already enjoy statutory protection, and the Supreme Court has given binding force to guidelines for their protection.33 Extending similar protection to other emergencies would encourage people to act without fear of legal trouble, and would narrow the gap between moral and legal duties.
Fifth, short illustrations should be added to the main definitions in plain language, as the code does for many offences. Official training material and a simple concordance table between the IPC and the BNS would also help police officers, advocates and students to use the new numbering correctly during the transition.
Sixth, the working of these definitions should be reviewed after a few years of practice. A periodic review would show whether courts are finding gaps and whether legislative changes are needed.
Conclusion
The general explanations of the BNS are modest in length but central in effect. The definitions of act and omission fix the conduct that the law can examine, the definition of injury marks the harm that gives conduct its seriousness, and the definition of fraudulently identifies a particular guilty state of mind. Section 3 ties these together with rules on exceptions, illegal omissions, common intention and mixed causes. Without these provisions, the offences in the code would be difficult to apply with consistency.
At the same time, the analysis shows that the definitions are only as strong as the case law that explains them. The code is silent on the source of duties, leaves mental injury open, and defines fraud in a circular way. The Supreme Court has filled many of these gaps, but a statute should not depend wholly on judicial repair. Modest clarifications, as suggested above, would keep the economy of the present scheme while making it more certain and fairer to the accused. In that sense, these four definitions are rightly described as the backbone of criminal liability: they do not decide every case by themselves, but every case in the code is built on them.
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Footnotes
1. Bharatiya Nyaya Sanhita, 2023, No. 45 of 2023, § 358 (India) [hereinafter BNS] (repealing the Indian Penal Code, 1860). The Sanhita was brought into force on 1 July 2024, except § 106(2). Ministry of Home Affairs, Notification S.O. 850(E) (Feb. 23, 2024).
2. The Indian Penal Code, 1860, No. 45 of 1860, §§ 6–52A (India) [hereinafter IPC] formed Chapter II, titled “General Explanations.”
3. BNS § 2 (definitions); BNS § 3 (general explanations).
4. The correspondence is: act, BNS § 2(1) (IPC § 33); fraudulently, BNS § 2(9) (IPC § 25); injury, BNS § 2(14) (IPC § 44); omission, BNS § 2(25) (IPC § 33).
5. BNS § 3(1); BNS ch. III (general exceptions).
6. BNS § 3(1)–(9).
7. BNS § 2(1).
8. H.L.A. Hart, Punishment and Responsibility 90–112 (1968).
9. BNS § 2(25).
10. BNS § 2(15) (defining “illegal” and “legally bound to do”).
11. BNS § 3(4) (IPC § 32).
12. Parmanand Katara v. Union of India, (1989) 4 SCC 286, [1989] 3 S.C.R. 997 (India).
13. Glanville Williams, Textbook of Criminal Law 148–59 (2d ed. 1983).
14. BNS § 2(14).
15. BNS § 114 (hurt) (IPC § 319).
16. BNS § 2(9).
17. BNS § 318 (cheating); BNS §§ 335–336 (false document; forgery).
18. Department-Related Parliamentary Standing Committee on Home Affairs, Rajya Sabha, Two Hundred Forty-Sixth Report on the Bharatiya Nyaya Sanhita, 2023 ¶¶ 3.3–3.3.6 (Nov. 10, 2023).
19. BNS § 3(5) (IPC § 34).
20. BNS § 3(7) (IPC § 36).
21. BNS § 106(1) (causing death by negligence) (IPC § 304A).
22. BNS § 45 (abetment).
23. BNS § 356 (defamation).
24. Barendra Kumar Ghosh v. King-Emperor, AIR 1925 PC 1 (India).
25. R. v. Instan, [1893] 1 Q.B. 450 (Eng.).
26. Parmanand Katara, [1989] 3 S.C.R. at 1005–06.
27. Jacob Mathew v. State of Punjab, (2005) 6 SCC 1 (India).
28. Dr. Vimla v. Delhi Administration, AIR 1963 SC 1572, [1963] Supp. 2 S.C.R. 585, 598–99 (India).
29. Subramanian Swamy v. Union of India, (2016) 7 SCC 221 (India).
30. Nathulal v. State of Madhya Pradesh, AIR 1966 SC 43, ¶¶ 4, 6 (India).
31. Law Commission of India, Forty-Second Report: Indian Penal Code (1971).
32. Mental Healthcare Act, 2017, No. 10 of 2017 (India).
33. SaveLIFE Foundation v. Union of India, (2016) 7 SCC 194, ¶ 19 (India); Motor Vehicles Act, 1988, No. 59 of 1988, § 134A (India) (inserted by the Motor Vehicles (Amendment) Act, 2019, No. 32 of 2019).