Section 505 IPC vs Section 353 BNS — Statements Conducing to Public Mischief

In India, Section 353 of the Bharatiya Nyaya Sanhita, 2023 (BNS) replaced Section 505 of the Indian Penal Code, 1860 (IPC) on 1 July 2024. It keeps the three sub-sections, punishments and good-faith Exception, and expressly adds "false information" and statements made "through electronic means" to the conduct covered.

At a glance

The CrPC First Schedule classified the first limb of Section 505 IPC as non-cognizable (the "Ditto" traces to the Section 504 row), non-bailable and triable by any Magistrate, and the second and third limbs as cognizable and non-bailable. The classification is unchanged. Neither Section 320 CrPC nor Section 359 BNSS lists the offence, so it is not compoundable.

What changed

• Expanded — Section 353(1): "any statement, rumour or report,—" becomes "any statement, false information, rumour, or report, including through electronic means—". Clauses (a) to (c) are otherwise repeated; "tranquility" is spelt "tranquillity".
• Expanded — Section 353(2): "any statement or report containing rumour or alarming news" becomes "any statement or report containing false information, rumour or alarming news, including through electronic means". The grounds (religion, race, place of birth, residence, language, caste or community "or any other ground whatsoever") and the groups are repeated; "ill-will" is printed "ill will".
• Minor edit — Section 353(3): the operative words (an offence under sub-section (2) in a place of worship or religious assembly, up to five years and fine) are repeated; only the IPC sub-section heading is dropped (see headings below).
• Minor edit — Exception: "such statement, rumour or report" becomes "such statement, false information, rumour or report" in both places; the requirements of reasonable grounds, good faith and absence of the intent are unchanged.
• Minor edit — headings: the IPC's sub-section headings ("Statements creating or promoting enmity, hatred or ill-will between classes"; "Offence under sub-section (2) committed in place of worship, etc.") are not carried into Section 353. The section heading is unchanged.
• Identical — punishments: none of the maxima changes, and none uses "of either description".
• Renumbered — procedure: sanction for sub-section (1) moves from Section 196(1)(a) CrPC to Section 217(1)(a) BNSS; for sub-sections (2) and (3), from Section 196(1A)(a) CrPC to Section 217(2)(a) BNSS.

Statutory text (relevant extract)

Extract, Section 505(1) IPC, opening words (repealed from 1 July 2024):

(1) Whoever makes, publishes or circulates any statement, rumour or report,—

Extract, Section 353 BNS, opening words of sub-section (1), sub-section (2) and the Exception:

(1) Whoever makes, publishes or circulates any statement, false information, rumour, or report, including through electronic means—

(2) Whoever makes, publishes or circulates any statement or report containing false information, rumour or alarming news, including through electronic means, with intent to create or promote, or which is likely to create or promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, feelings of enmity, hatred or ill will between different religious, racial, language or regional groups or castes or communities, shall be punished with imprisonment which may extend to three years, or with fine, or with both.

Exception.—It does not amount to an offence, within the meaning of this section, when the person making, publishing or circulating any such statement, false information, rumour or report, has reasonable grounds for believing that such statement, false information, rumour or report is true and makes, publishes or circulates it in good faith and without any such intent as aforesaid.

How it works — the ingredients

Section 353(1) needs (i) making, publishing or circulating (ii) a statement, false information, rumour or report, (iii) with intent to cause, or which is likely to cause, one of three results:

• (a) an officer, soldier, sailor or airman in the Army, Navy or Air Force of India to mutiny or otherwise disregard or fail in his duty;
• (b) fear or alarm to the public or a section of it, whereby any person may be induced to commit an offence against the State or against the public tranquillity;
• (c) any class or community of persons to commit an offence against any other class or community.

Section 353(2) needs (i) making, publishing or circulating (ii) a statement or report containing false information, rumour or alarming news, (iii) with intent to create or promote, or which is likely to create or promote, (iv) on a listed or any other ground, (v) feelings of enmity, hatred or ill will between different religious, racial, language or regional groups, castes or communities.

Section 353(3) is sub-section (2) committed in a place of worship or in an assembly engaged in religious worship or ceremonies.

The Exception covers all three sub-sections: reasonable grounds for believing the statement true, good faith, and absence of the intent described.

Neighbouring offences:

• Section 196 BNS (formerly 153A IPC) — promoting enmity between groups by words, signs, representations or electronic communication; no requirement of rumour or alarming news.
• Section 197(1)(d) BNS — new offence of making or publishing false or misleading information jeopardising the sovereignty, unity and integrity or security of India; see the Section 153B IPC vs Section 197 BNS page.
• Section 352 BNS (formerly 504 IPC) — intentional insult with intent to provoke a breach of the peace.

What this means in practice

For the complainant

• For Section 353(2) or (3), the offence is cognizable; information goes to the police under Section 173 BNSS. With maxima of three and five years, Section 173(3) allows a preliminary enquiry "within a period of fourteen days" with the prior permission of an officer not below the rank of Deputy Superintendent of Police.
• For Section 353(1), the offence is non-cognizable. Under Section 174(1) BNSS the officer enters the substance of the information, refers the informant to the Magistrate, and forwards the daily diary report of such cases "fortnightly" to the Magistrate; under Section 174(2) no officer may investigate without a Magistrate's order. The fortnightly forwarding in clause (ii) has no counterpart in Section 155 CrPC.

For the accused and defence advocate

• No court may take cognizance of Section 353(1) without the previous sanction of the Central or State Government (Section 217(1)(a) BNSS), or of Section 353(2) or (3) without the sanction of the Central Government, State Government or District Magistrate (Section 217(2)(a)).
• The Exception is a complete answer if the three elements are shown: reasonable grounds to believe the material true, good faith, and no intent of the kind the section describes.
• For Section 353(2), the reasoning in Bilal Ahmad Kaloo — publication is essential, mens rea is required, and two groups must be involved — rests on words the new sub-section repeats.
• The offence is non-bailable in all its forms, so bail is a matter for the court. For sub-sections (1) and (2), no court may take cognizance after three years (Section 514(2)(c) BNSS); sub-section (3), with a five-year maximum, is outside Section 514.

Judgments that still matter

Kedar Nath Singh v. State of Bihar, [1962] Supp. 2 S.C.R. 769 (1962 INSC 17) — 20 January 1962. A five-Judge Bench (judgment by B. P. Sinha C.J.) examined the constitutional validity of Sections 124A and 505 IPC. On Section 505 it held that "each one of the constituent elements of the offence under s. 505 has reference to, and a direct effect on, the security of the State or public order", so the provision did not exceed the bounds of reasonable restrictions on free speech. Criminal Appeal No. 169 of 1957 was dismissed and the connected appeals were allowed and remanded to the High Court. The report does not show paragraph numbers. The clauses construed are repeated in Section 353(1)(a) to (c) BNS.

Bilal Ahmad Kaloo v. State of Andhra Pradesh, [1997] Supp. 3 S.C.R. 327 (1997 INSC 598) — 6 August 1997. Dr. A.S. Anand and K.T. Thomas JJ. (judgment by Thomas J.) set aside convictions under Sections 124A, 153A and 505(2) IPC, while confirming a conviction under the Arms Act. The Court held that mens rea is "an equally necessary postulate" for Section 505(2); that publication is "sine qua non" under Section 505, the words "makes, publishes or circulates" being read together; and that since both sections concern enmity "between different" groups, at least two such groups or communities must be involved; inciting the feelings of one group without reference to another attracts neither section. The report does not show paragraph numbers.

Patricia Mukhim v. State of Meghalaya and Ors., [2021] 7 S.C.R. 65 (2021 INSC 213) — 25 March 2021. L. Nageswara Rao and S. Ravindra Bhat JJ. (judgment by Nageswara Rao J.) quashed an FIR under Sections 153A, 500 and 505(1)(c) IPC over a Facebook post about an attack on non-tribal youths. Relying on Bilal Ahmad Kaloo (para 11), the Court found no intention to promote class or community hatred and no attempt to incite violence, so the basic ingredients of Sections 153A and 505(1)(c) were not made out (paras 13, 15). It held that "Disapprobation of governmental inaction cannot be branded as an attempt to promote hatred between different communities" (para 15), set aside the High Court's judgment and quashed the FIR (para 16).

Vinod Dua v. Union of India & Ors., [2021] 12 S.C.R. 1071 (2021 INSC 304) — 3 June 2021. Uday Umesh Lalit and Vineet Saran JJ. (judgment by Lalit J.) considered an FIR under Sections 124A, 268, 501 and 505 IPC against a journalist over a talk show on the handling of the Covid pandemic. Applying Kedar Nath Singh, the Court held that the statements were "expression of disapprobation of actions of the Government" and not made with intent or tendency to incite violence (para 43), and that prosecution under Sections 124A and 505(1)(b) "would be unjust" (para 44). It quashed the FIR (para 68(i)) and stated that every prosecution under Sections 124A and 505 must conform to Kedar Nath Singh (para 67), while rejecting the prayer for a committee to clear FIRs against journalists (para 68(ii)).

Which law applies to your case

Section 358(2) BNS keeps alive any penalty or punishment incurred under the IPC and lets proceedings be instituted, continued or enforced "as if that Code had not been repealed"; on a reading of that provision, a statement made before 1 July 2024 is charged under Section 505 IPC, and pending cases continue under the CrPC (Section 531(2)(a) BNSS). Article 20(1) of the Constitution bars conviction except for violation of a law in force at the time; the punishments in Section 353 are the same as in Section 505. See which law applies to an offence before 1 July 2024.

Frequently asked questions

What is the BNS equivalent of Section 505 IPC? Section 353 of the Bharatiya Nyaya Sanhita, 2023 replaces Section 505 IPC from 1 July 2024, with the same three sub-sections and the same Exception. Sub-sections (1) and (2) carry imprisonment up to three years, or fine, or both; sub-section (3), for an offence under sub-section (2) in a place of worship or religious assembly, carries up to five years and fine.

Does Section 353 BNS cover false information and social media posts? Yes, expressly. Section 353(1) covers whoever makes, publishes or circulates "any statement, false information, rumour, or report, including through electronic means", and Section 353(2) covers statements or reports containing "false information, rumour or alarming news, including through electronic means". Section 505 IPC did not use the words "false information" or "electronic means".

Is Section 353 BNS cognizable and bailable? The BNSS First Schedule lists Section 353(1) as non-cognizable and non-bailable, and Sections 353(2) and 353(3) as cognizable and non-bailable; all three are triable by any Magistrate. The CrPC First Schedule classified the three limbs of Section 505 IPC the same way. For Section 353(1), the police need a Magistrate's order to investigate under Section 174(2) BNSS.

Is government sanction needed to prosecute under Section 353 BNS? Yes. Section 217(1)(a) BNSS requires the previous sanction of the Central or State Government for Section 353(1). Section 217(2)(a) requires the previous sanction of the Central Government, the State Government or the District Magistrate for Sections 353(2) and 353(3). Section 196(1) and (1A) CrPC split Section 505 IPC the same way.

What defence is available under Section 353 BNS? The Exception to Section 353 BNS provides that there is no offence where the person making, publishing or circulating the statement, false information, rumour or report has reasonable grounds for believing it to be true and does so in good faith and without the intent the section describes. The Exception to Section 505 IPC was the same, without the words "false information".

Does Section 353(2) BNS need two groups to be involved? In Bilal Ahmad Kaloo v. State of Andhra Pradesh ([1997] Supp. 3 S.C.R. 327), the Supreme Court held that Sections 153A and 505(2) IPC require at least two religious, racial, language or regional groups, castes or communities, and that merely inciting the feelings of one group without reference to another attracts neither. It also held that publication is essential under Section 505(2) and that mens rea is necessary. Section 353(2) BNS repeats the operative words, so on a reading of the text the reasoning remains relevant.

Is criticism of the government an offence under Section 353 BNS? Not by itself. In Vinod Dua v. Union of India (2021 INSC 304, paras 43-44), the Supreme Court, applying Kedar Nath Singh, quashed an FIR registered under Sections 124A, 268, 501 and 505 IPC, holding that statements expressing disapproval of government action, without intent or tendency to incite violence or public disorder, did not make out the offences under Sections 124A and 505(1)(b). Section 353(1)(b) BNS repeats the words of Section 505(1)(b).

Which law applies to a statement made before 1 July 2024? Section 358(2) BNS saves penalties and proceedings under the IPC "as if that Code had not been repealed", so, on a reading of that provision, a statement made before 1 July 2024 is charged under Section 505 IPC. Article 20(1) of the Constitution bars conviction except for violation of a law in force at the time; the punishments are unchanged.

Related

• Fake news and false statements — BNS 353 and 197 vs IPC 505
• Section 153A IPC vs Section 196 BNS — Promoting Enmity
• Section 153B IPC vs Section 197 BNS — Imputations Prejudicial to National Integration
• Section 295A IPC vs Section 299 BNS — Outraging Religious Feelings
• Section 124A IPC — sedition abolished under BNS
• Police refuse to register an FIR — remedies under BNSS
• IPC to BNS master table
• Section 155 CrPC vs Section 174 BNSS — Information as to Non-Cognizable Cases and Investigation of Such Cases

Sources

• Bharatiya Nyaya Sanhita, 2023 (Gazette text): Sections 196, 197, 352, 353 and 358.
• Indian Penal Code, 1860 (India Code text): Section 505 (with amendment footnotes).
• Bharatiya Nagarik Suraksha Sanhita, 2023 (Gazette text): Sections 173, 174, 217, 359, 514 and 531, and the First Schedule entries for Section 353(1) to (3) BNS.
• Code of Criminal Procedure, 1973: Sections 155 and 196, and the First Schedule entries for Section 505 IPC.
• Constitution of India: Article 20(1).
• Judgments read in full text: Kedar Nath Singh v. State of Bihar (S_1962_2_769_812_EN.md); Bilal Ahmad Kaloo v. State of Andhra Pradesh (S_1997_3_327_336_EN.md); Patricia Mukhim v. State of Meghalaya (2021_7_65_77_EN.md); Vinod Dua v. Union of India (2021_12_1071_1177_EN.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.