Sections 390-402 IPC vs Sections 309-313 BNS — Robbery and Dacoity

In India, Sections 309 to 313 of the Bharatiya Nyaya Sanhita, 2023 (BNS) replaced the robbery and dacoity sections, 390 to 402, of the Indian Penal Code, 1860 (IPC) on 1 July 2024. Thirteen sections become five; wording and punishments carry over, except that dacoity with murder now carries an alternative term of "not less than ten years" (Section 310(3)).

At a glance

The CrPC First Schedule gave the matching IPC sections the same classification: 392 to 394 and 401 cognizable, non-bailable and triable by a Magistrate of the first class; 395 to 400 and 402 cognizable, non-bailable and triable by a Court of Session.

What changed

• Minor edit — Section 309(1) to (3) (IPC 390): the "When theft is robbery" and "When extortion is robbery" paragraphs become sub-sections (2) and (3); the words, Explanation and Illustrations (a) to (d) are otherwise the same. The India Code IPC text prints Illustration (c) as "threatens to filing it down a precipice"; the BNS reads "fling".
• Identical — Sections 309(4), (5) and (6) (IPC 392, 393, 394) and Section 310(2) (IPC 395): same words, same punishments.
• Minor edit — Section 310(1) (IPC 391): same words; the quotation marks around "dacoity" are dropped.
• Modified — Section 310(3) (IPC 396): "rigorous imprisonment for a term which may extend to ten years" becomes "rigorous imprisonment for a term which shall not be less than ten years". Death and imprisonment for life remain.
• Identical — Section 310(4) (IPC 399).
• Minor edit — Sections 310(5) and 310(6) (IPC 402 and 400): "Whoever, at any time after the passing of this Act, shall be one of" becomes "Whoever is one of", and "shall belong to" becomes "belongs to".
• Identical — Sections 311 and 312 (IPC 397 and 398): the seven-year minimum is unchanged in both.
• Modified — Section 313 (IPC 401): the IPC read "any wandering or other gang of persons associated for the purpose of habitually committing theft or robbery, and not being a gang of thugs or dacoits". The BNS reads "any gang of persons associated in habitually committing theft or robbery, and not being a gang of dacoits". "Wandering or other", "for the purpose of" and "thugs" are omitted; the seven-year punishment is unchanged. The text does not say whether the change of words alters what must be proved.

Statutory text (relevant extract)

Extract, Section 396 IPC (repealed from 1 July 2024):

If any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death, or imprisonment for life, or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.

Extract, Section 310(3) BNS:

(3) If any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death, or imprisonment for life, or rigorous imprisonment for a term which shall not be less than ten years, and shall also be liable to fine.

Extract, Section 309(2) BNS (when theft is robbery):

(2) Theft is robbery if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint.

How it works — the ingredients

Robbery (Section 309) starts from theft or extortion (Section 309(1)).

1. Theft becomes robbery (309(2)) when four things combine: a theft; the offender causes or attempts to cause death, hurt or wrongful restraint, or fear of instant death, hurt or wrongful restraint; it happens in order to commit the theft, while committing it, or while carrying away or attempting to carry away the property; and it is done "for that end". Illustration (a): holding a person down and taking money from his clothes is robbery, because wrongful restraint was caused to commit the theft.
2. Extortion becomes robbery (309(3)) when the offender is present with the person put in fear, the fear is of instant death, hurt or wrongful restraint to that person or someone else, and the person is induced to hand over the thing "then and there". The Explanation treats the offender as present if "sufficiently near to put the other person in fear". Illustration (b): showing a pistol on the high road and demanding a purse is robbery. Illustration (d): a demand for money by message, threatening a child held elsewhere, is extortion but not robbery, "unless Z is put in fear of the instant death of his child".

Dacoity (Section 310(1)) adds numbers: five or more persons conjointly committing or attempting robbery, or a total of five or more once those "present and aiding" are counted. Every person committing, attempting or aiding commits dacoity.

Dacoity with murder (Section 310(3)) needs one of five or more persons conjointly committing dacoity to commit murder "in so committing dacoity"; every one of those persons is then liable.

Sections 311 and 312 fix a seven-year floor. Section 311 applies where, at the time of committing robbery or dacoity, the offender "uses any deadly weapon", causes grievous hurt, or attempts to cause death or grievous hurt. Section 312 applies where the offender "is armed with any deadly weapon" at the time of attempting robbery or dacoity.

What this means in practice

For the investigating officer and prosecutor

• Frame the charge at sub-section level: robbery is Section 309(4), attempt 309(5), hurt in robbery 309(6); dacoity 310(2), dacoity with murder 310(3), preparation 310(4), assembly 310(5), gang membership 310(6).
• For dacoity, the number of participants is an element. Evidence that five or more took part, including those not identified, is needed if fewer than five are charged or convicted (see Raj Kumar below).
• For Section 311, record which accused held or used the weapon and how it was displayed; the minimum attaches to the individual offender (see Phool Kumar and Dilawar Singh below).

For the accused and defence advocate

• Robbery under Section 309 is tried by a Magistrate of the first class; dacoity, Section 311 and Section 312 cases go to a Court of Session.
• Section 479(1) BNSS (release of undertrials after one-half of the maximum term, or one-third for a first-time offender) does not apply to an offence "for which the punishment of death or life imprisonment has been specified as one of the punishments". That excludes Sections 309(6), 310(2), 310(3) and 310(6). On a reading of the text it can apply to Section 309(4) and (5), which carry fixed maximum terms.
• A snatching charge under Section 304 BNS (up to three years) may fit facts where no hurt, restraint or fear of instant harm was caused or attempted "for that end" under Section 309(2).
• A person who dishonestly receives or retains property knowing or having reason to believe it was transferred by dacoity commits a separate offence under Section 317(3) BNS: imprisonment for life, or rigorous imprisonment up to ten years, and fine, triable by a Court of Session under the BNSS First Schedule.

Judgments that still matter

Phool Kumar v. Delhi Administration, [1975] 3 S.C.R. 917 — 13 March 1975. A two-Judge Bench (A. Alagiriswami and N. L. Untwalia JJ.) held that "The term 'offender' in that section... is confined to the offender who uses any deadly weapon", so a co-accused's gun could not attract Section 397 IPC against the appellant. It also held that an offender carrying a deadly weapon "open to the view of the victims sufficient to frighten or terrorize them" uses it, and no further overt act is needed. The report does not show paragraph numbers. Section 311 BNS repeats the words of Section 397 IPC ("the offender uses any deadly weapon"), so on a reading of the text the ruling bears directly on it.

Dilawar Singh v. State of Delhi, [2007] 9 S.C.R. 695 (2007 INSC 893) — 5 September 2007. Arijit Pasayat and D.K. Jain JJ. set out the ingredients of Section 397 IPC and held that "'Offender' refers to only culprit who actually used deadly weapon"; the section "only envisages the individual liability and not any constructive liability" (para 22), following Phool Kumar (para 23). On the facts, the Court held Section 397 not established and set aside the conviction, also finding the complainant's versions inconsistent (paras 25 and 26).

Raj Kumar @ Raju v. State of Uttaranchal, Supreme Court, 7 April 2008 (Criminal Appeal No. 855 of 2007). C.K. Thakker and D.K. Jain JJ. set aside a conviction under Section 396 IPC where six were charged, two were acquitted without any finding that six took part, and four remained (para 34). The Court held that where five or more are shown to have taken part but some cannot be identified, "conviction of less than five persons –or even one- can stand", but "in absence of such finding, less than five persons cannot be convicted for an offence of dacoity" (para 19). Section 310(1) BNS repeats Section 391 IPC, so the numbers requirement is unchanged.

Which law applies to your case

Section 358(2) BNS keeps alive any penalty or punishment incurred under the IPC and allows proceedings to be instituted, continued or enforced "as if that Code had not been repealed"; on a reading of that provision, a robbery or dacoity committed before 1 July 2024 is charged under Sections 390 to 402 IPC. Procedure for matters pending on that date continues under the CrPC (Section 531(2)(a) BNSS). Article 20(1) of the Constitution bars a penalty greater than the law in force at the time of the offence, which matters for the new ten-year floor in Section 310(3). See which law applies to an offence before 1 July 2024.

Frequently asked questions

What is the BNS equivalent of Section 392 IPC? Section 309(4) of the Bharatiya Nyaya Sanhita, 2023 replaces Section 392 IPC with the same words: rigorous imprisonment up to ten years and fine, extendable to fourteen years if the robbery is on the highway between sunset and sunrise. The definition of robbery (IPC 390) is now Section 309(1) to (3), attempt (IPC 393) is Section 309(5), and robbery with hurt (IPC 394) is Section 309(6).

What is the BNS equivalent of Section 395 IPC? Section 310(2) BNS replaces Section 395 IPC: whoever commits dacoity is punished with imprisonment for life, or rigorous imprisonment up to ten years, and fine. The definition of dacoity in Section 391 IPC is now Section 310(1), and still requires five or more persons conjointly committing or attempting robbery, counting those present and aiding.

Has the punishment for dacoity with murder changed? Yes. Under Section 310(3) BNS, if any one of five or more persons conjointly committing dacoity commits murder, every one of them is punished with death, or imprisonment for life, or rigorous imprisonment of not less than ten years, and fine. Section 396 IPC allowed rigorous imprisonment which may extend to ten years. The alternative term is now a ten-year floor instead of a ten-year ceiling.

What is the minimum sentence for robbery with a deadly weapon under the BNS? Section 311 BNS provides that if, at the time of committing robbery or dacoity, the offender uses any deadly weapon, causes grievous hurt, or attempts to cause death or grievous hurt, the imprisonment shall not be less than seven years. Section 312 applies the same seven-year minimum where the offender is armed with a deadly weapon while attempting robbery or dacoity. Both repeat Sections 397 and 398 IPC.

Is robbery bailable, and which court tries it? The BNSS First Schedule lists robbery, attempted robbery and robbery with hurt under Section 309(4) to (6) BNS as cognizable and non-bailable, triable by a Magistrate of the first class. Dacoity and all its forms under Section 310, and Sections 311 and 312, are cognizable, non-bailable and triable by a Court of Session. Section 313 is triable by a Magistrate of the first class. The CrPC classified the IPC sections the same way.

Can fewer than five people be convicted of dacoity? Section 310(1) BNS requires five or more persons. In Raj Kumar @ Raju v. State of Uttaranchal (7 April 2008), the Supreme Court held that fewer than five may be convicted only where five or more are shown to have taken part and the others could not be identified; without that finding, fewer than five cannot be convicted of dacoity. Section 310(1) repeats the operative words of Section 391 IPC.

Which law applies to a robbery or dacoity committed before 1 July 2024? Section 358(2) BNS saves any penalty or punishment incurred under the IPC and lets proceedings continue as if it had not been repealed, so on a reading of that text an offence committed before 1 July 2024 is charged under Sections 390 to 402 IPC. Article 20(1) of the Constitution bars a heavier penalty than the law then in force, so, on a reading of that Article, the ten-year floor in Section 310(3) BNS cannot be applied to a dacoity with murder committed earlier.

Related

• Theft: IPC 378-382 vs BNS 303-307
• Section 304 BNS — snatching, a new offence
• Extortion and threats: IPC 383-389 vs BNS 308
• Undertrial release: BNSS 479 vs CrPC 436A
• Section 302 IPC vs BNS — murder
• Offence before 1 July 2024 — which law applies
• Section 384 IPC vs Section 308 BNS — Extortion (IPC 383-389)
• Sections 410-414 IPC vs Section 317 BNS — Stolen Property

Sources

• Bharatiya Nyaya Sanhita, 2023 (Gazette text): Sections 304, 308(1), 309 to 313, 317(3) and 358.
• Indian Penal Code, 1860 (India Code text): Sections 390 to 402.
• Bharatiya Nagarik Suraksha Sanhita, 2023 (Gazette text): Sections 479 and 531, and the First Schedule entries for Sections 309(4) to 313 and 317(3) BNS.
• Code of Criminal Procedure, 1973: First Schedule entries for Sections 392 to 402 IPC.
• Constitution of India: Article 20(1).
• Judgments read in full text: Phool Kumar v. Delhi Administration (1975_3_917_921_EN.md); Dilawar Singh v. State of Delhi (2007_9_695_710_EN.md); Raj Kumar @ Raju v. State of Uttaranchal (Diary_60052-2007_Judgment.md).

This page explains the statutory text and the judgments cited as they stand. It is not legal advice; for a specific case, consult an advocate.