BNS S.4 lists the punishments to which offenders are liable. The list is hierarchical, from the most severe (death) to the least (community service). The BNS adds community service as a sixth category, which the IPC did not have.
BNS S.4 corresponds to IPC S.53. BNS S.5 (commutation) = IPC S.54 to S.55A. BNS S.6 (fractions) = IPC S.57. BNS S.7 (rigorous/simple) = IPC S.60. BNS S.8 (fine) = IPC S.63 to S.70. BNS S.13 (enhanced) = IPC S.75.
The Six Punishments (S.4)
| Punishment | Description |
|---|---|
| (a) Death | Execution. Reserved for the "rarest of rare" cases (Bachan Singh v State of Punjab, 1980) |
| (b) Imprisonment for life | Imprisonment for the remainder of the natural life of the convict (S.6: reckoned as 20 years for calculating fractions) |
| (c) Imprisonment | Two descriptions: (1) Rigorous (with hard labour), (2) Simple |
| (d) Forfeiture of property | Seizure of the convict's property by the State |
| (e) Fine | A monetary penalty |
| (f) Community service | New in BNS. Service to the community as directed by the court |
Community Service (New)
The BNS does not define "community service" in S.2 or anywhere else in the Sanhita, leaving its content to be prescribed by the court or by rules. It appears as an alternative or additional punishment in several provisions:
| Section | Offence | Community service available as |
|---|---|---|
| S.202 | Public servant unlawfully engaging in trade | Alternative to imprisonment or fine |
| S.226 | Attempt to commit suicide to compel public servant | Alternative |
| S.303(2) proviso | Petty theft (first offence, property under Rs. 5,000) | On restoration of property |
| S.355 | Misconduct in public by a drunken person | Alternative |
| S.356(2) | Defamation | Alternative |
Why community service was introduced: It provides a non-custodial option for petty offences, reducing the prison population and allowing rehabilitation through productive work. It is not available for serious offences.
Commutation (S.5)
The appropriate Government may, without the consent of the offender, commute any punishment to any other in accordance with S.474 BNSS. "Appropriate Government" means:
- Central Government: where the sentence is death or for an offence under a Union law.
- State Government: in other cases.
Imprisonment for Life: Reckoning (S.6)
In calculating fractions of terms of punishment, imprisonment for life shall be reckoned as equivalent to 20 years, unless otherwise provided.
Why this matters: When S.62 prescribes "one half" of imprisonment for life as the punishment for attempt, the court reckons life as 20 years and awards up to 10 years. Imprisonment for life is still the remainder of natural life in substance; the 20 year reckoning is only a calculation tool.
Rigorous vs Simple Imprisonment (S.7)
Where an offender is punishable with imprisonment that may be of either description, the court may direct:
- Wholly rigorous
- Wholly simple
- Part rigorous and part simple
Fine (S.8)
| Rule | Content |
|---|---|
| Where no limit is expressed | Fine is unlimited but must not be excessive |
| Default imprisonment | The court may direct imprisonment in default of payment |
| Limit on default imprisonment | Cannot exceed one fourth of the maximum imprisonment for the offence |
| For fine-only offences | Default cannot exceed: 2 months (fine up to Rs. 5,000), 4 months (up to Rs. 10,000), 1 year (above Rs. 10,000) |
| Recovery | Fine may be levied within 6 years of sentence (or the full term if longer) |
| Death of offender | Does not discharge property from fine liability |
Enhanced Punishment for Repeat Offenders (S.13)
A person previously convicted of an offence under Chapter X (coin/currency) or Chapter XVII (property offences) punishable with 3 years or more, who is again convicted of an offence under either chapter with like punishment, shall be subject to:
- Imprisonment for life, or
- Imprisonment up to 10 years.
The Death Penalty: Constitutional Position
Facts: The constitutional validity of the death penalty under IPC S.302 (now BNS S.103) was challenged as violating Arts.14, 19 and 21.
Issue: Is the death penalty unconstitutional?
Held: The death penalty is constitutionally valid, but must be imposed only in the rarest of rare cases where the alternative of imprisonment for life is unquestionably foreclosed. The court must balance aggravating and mitigating circumstances.
Relevance: The governing framework for imposing the death sentence. Every death sentence must satisfy this test.
Offences Punishable with Death under the BNS
| Section | Offence |
|---|---|
| S.103(1) | Murder |
| S.103(2) | Murder by a group on grounds of race, caste, community, sex, etc. |
| S.104 | Murder by a life convict |
| S.65(2) | Rape of a child under 12 |
| S.66 | Rape causing death or persistent vegetative state |
| S.70(2) | Gang rape of a child under 18 |
| S.71 | Repeat rape offenders |
| S.111(2)(a) | Organised crime resulting in death |
| S.113(2)(a) | Terrorist act resulting in death |
| S.140(2) | Kidnapping for ransom causing death or hurt |
| S.147 | Waging war against the Government of India |
| S.230(2) | Giving false evidence leading to execution of an innocent person |
Recall Check
- Name the six punishments under BNS S.4.
- What is the new punishment introduced by the BNS that the IPC did not have?
- How is imprisonment for life reckoned for the purpose of calculating fractions?
- What is the "rarest of rare" test?
Key Cases
Bachan Singh v State of Punjab (1980) Bachan Singh v State of Punjab 1980
Issue: Constitutional validity of the death penalty.
Rule: Valid, but only for the rarest of rare cases where life imprisonment is unquestionably foreclosed.
Held: Death penalty upheld; rarest of rare framework established.
Distinctions
| Basis | Rigorous Imprisonment | Simple Imprisonment |
|---|---|---|
| Nature | With hard labour | Without hard labour |
| When imposed | Where the offence is serious or the court so directs | For less serious offences or where the court so directs |
| Combination | May be combined with simple in the same sentence (S.7) | Same |
| Basis | Imprisonment for Life (as sentence) | 20 Years (for calculation) |
|---|---|---|
| Actual duration | Remainder of natural life | Not applicable as a sentence |
| Purpose of 20 year reckoning | Only for calculating fractions (e.g. half for attempt) | S.6 |
| Remission | May be released on remission, but that is executive mercy, not a right | Not the sentence |
| Basis | Fine under BNS | Compensation under CrPC/BNSS |
|---|---|---|
| Paid to | The State | The victim |
| Nature | Punishment | Restitution |
| Default consequence | Imprisonment | No imprisonment |
| Source | S.4(e), S.8 | S.395 BNSS |
Flashcards
Name the six punishments under BNS S.4.
Death, imprisonment for life, imprisonment (rigorous or simple), forfeiture of property, fine, community service.
What punishment is new in the BNS compared to the IPC?
Community service.
How is imprisonment for life reckoned for calculating fractions (S.6)?
As equivalent to 20 years, unless otherwise provided.
What is the rarest of rare test?
From Bachan Singh v State of Punjab (1980): the death penalty may be imposed only in the rarest of rare cases where the alternative of life imprisonment is unquestionably foreclosed, after balancing aggravating and mitigating circumstances.
What is the maximum default imprisonment for a fine-only offence exceeding Rs. 10,000?
One year (S.8(5)(c)).
What does S.13 provide for repeat offenders?
Enhanced punishment (up to life imprisonment or 10 years) for a person previously convicted of a Chapter X or XVII offence punishable with 3+ years who commits another such offence.
Exam Scenario
Problem: Harish is convicted of theft (BNS S.303, punishable with 3 years or fine or both). Three years later he is convicted of criminal breach of trust (BNS S.316(2), punishable with 5 years or fine or both). The prosecution invokes S.13 for enhanced punishment. Separately, a Sessions Court convicts Meera of murder under S.103(1) and sentences her to death, noting only that the offence was "brutal". Advise on both.
Step 1: Test Harish under S.13
S.13 requires:
- A previous conviction for an offence under Chapter X or Chapter XVII punishable with 3 years or upwards. Theft under S.303 is in Chapter XVII and is punishable with 3 years. Satisfied.
- A subsequent conviction for an offence under either Chapter X or Chapter XVII with like imprisonment. CBT under S.316(2) is in Chapter XVII and is punishable with 5 years. Satisfied.
S.13 is engaged. Harish is liable to imprisonment for life or up to 10 years.
Step 2: Advise on Meera's death sentence
Apply Bachan Singh v State of Punjab (1980). A death sentence requires:
- The case must fall within the rarest of rare category.
- The court must consider both aggravating and mitigating circumstances.
- The alternative of life imprisonment must be unquestionably foreclosed.
- The reasons must be recorded in the judgment.
| Requirement | On these facts |
|---|---|
| Rarest of rare | Not established; "brutal" alone is not a finding |
| Aggravating circumstances | Not identified |
| Mitigating circumstances | Not considered at all |
| Reasons | Only "brutal" is stated |
The sentence is liable to be set aside in appeal as failing the Bachan Singh framework.
S.13 is not automatic. The court must still exercise sentencing discretion within the enhanced range. S.13 raises the ceiling; it does not mandate the maximum.
"Brutal" is not the rarest of rare test. Most murders are brutal. The question is whether the circumstances are so exceptional that life imprisonment is foreclosed. Failing to state why is a ground for commuting the sentence in appeal.
Conclusion. Harish is liable to enhanced punishment under S.13 (up to life or 10 years). Meera's death sentence is likely to be commuted because the Sessions Court failed to apply the Bachan Singh framework.
See Also
- Definitions under BNS S.2 : the definitions that determine which offence provision applies.
- Culpable Homicide and Murder : the substantive offence that carries the death penalty.
- Application of the BNS and Territorial Jurisdiction : jurisdiction must be established before punishment can be imposed.