Organised Crime versus Common Crime: Knowing where the line lies in the BNS
The common person knows the law does not differentiate. They say we are equal in the eyes of the law, but that seems far-fetched. A desperate man stealing to save his family is put in the same bracket as the don running an entire area with an iron fist of crime and coercion.
They both violate the law, and yet, treating them both the same way is not justice; it is simply incompetence of the legal system. The Indian Penal Code has mostly adopted a similar stance for the past 160 years; however, the Bharatiya Nyaya Sanhita, 2023 (BNS), seeks to make a distinction between these individuals. The question remains whether it is actually doing so honestly and in a way that addresses the shortcomings of the past.
Common Crime: It is an individual thing
Common crime is primarily a personal offence. A shopkeeper might under-report sales to save tax. A couple may get into a heated dispute that turns into physical violence. A young man might be coerced by his peers into committing theft. All these are examples of human actions, punishable under the BNS. The characteristic defining common crime is that there is typically an individual behind the crime, and their actions alone are taken into consideration when determining guilt.
The prosecution can prove the crime itself, but in most cases does not have to demonstrate the presence of more than one individual. In such instances, neither money nor command has a role to play in the commission of the offence, and there is no structure of involvement to explore; it is simply a moment where someone makes a mistake.
Organised Crime: Crime as an institution
Organised crime, on the other hand, is a completely different creature and has been defined as ‘Any continued unlawful activity committed by members of an organised crime syndicate’, two or more people forming an organisation to commit a crime for money or power.
The crimes in organised crime are not individual occurrences, but instead industries of illegal activity. They involve the use of force, corruption, threats, blackmail and other heinous means to maintain and expand their influence.
Examples include extortion rackets, trafficking rings, contract killings, illegal arms sales, drug manufacturing, and land acquisition gangs, and to distinguish them from common crime, the penalties imposed are severe, a minimum sentence of five years up to life imprisonment. In cases of death or other serious offences, the death sentence can be applied.
Furthermore, the BNS has taken steps to ensure that even smaller groups are held accountable. This has been recognised as Petty Organised Crime, and these often smaller groups are accountable for offences such as card skimming and other types of petty theft.
The Line of Difference nobody discusses
This is where the problem lies; many crimes will overlap between common crime and organised crime, depending entirely on who is orchestrating it. A thug on the street extorting money from local shopkeepers, for example, will face a prison term based on Section 308, but if the threat is merely a link in the organised chain of the syndicate’s daily collections, the punishment could then jump to Section 111 of the BNS, with an immense difference.
The act remains the same, but the law responds differently. The difficulty will lie in proving who exactly constitutes a member of a syndicate.
The law fails to clarify what an adequate form of evidence of association would be, be it a shared telephone contact or a casual meeting; it is a gap in the law that can easily be exploited. The provision is also limited by requiring prior charge sheets or convictions within the past ten years to be demonstrated to show “continuing unlawful activity.”
However, this provision does not apply when an individual without prior conviction on behalf of a syndicate is attempting to prove membership.
This raises another important question: why is the consequence so immense? In states like Maharashtra, where MCOCA was introduced to combat organised crime, it was held in State of Maharashtra v. Bharat Shanti Lal Shah (2008), that while the law was constitutional, judges were encouraged to ensure strict adherence to safeguards. If used and applied carelessly, it has the capacity to create immense hardship in the lives of individuals.
An organised crime provision that carries a possible sentence of life imprisonment with near-impossible bail terms would lead to much suffering in the lives of offenders in the country, and while we want the country to be free from crime, this does not mean it is at the cost of injustice.
The BNS provides a much-needed distinction between the crime committed by an individual and that committed by a syndicate, but good law cannot function without good application. Evidence of being a member of a syndicate needs to be demonstrably proven, and investigators need to be sufficiently trained so they can correctly distinguish between the two.
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