BNS Section 228: Fabricating False Evidence
Section 228 falls under Chapter 14 of the Bharatiya Nyaya Sanhita (BNS). Chapter 14 covers offences of false evidence and offences against public justice. Each section under this chapter deals with different offences related to matters that obstruct the delivery of public justice. Section 228 defines the term “fabricating evidence” for the purposes of Section XIV. Let us take a closer look at its provisions.
Definition of BNS Section 228
Section 228 of the Bharatiya Nyaya Sanhita (BNS), 2023 states:
“Whoever causes any circumstance to exist or makes any false entry in any book or record, or electronic record or makes any document or electronic record containing a false statement, intending that such circumstance, false entry or false statement may appear in evidence in a judicial proceeding, or in a proceeding taken by law before a public servant as such, or before an arbitrator, and that such circumstance, false entry or false statement, so appearing in evidence, may cause any person who in such proceeding is to form an opinion upon the evidence, to entertain an erroneous opinion touching any point material to the result of such proceeding is said “to fabricate false evidence”.
Illustrations.
(a) A puts jewels into a box belonging to Z, with the intention that they may be found in that box, and that this circumstance may cause Z to be convicted of theft. A has fabricated false evidence.
(b) A makes a false entry in his shop-book for the purpose of using it as corroborative evidence in a Court. A has fabricated false evidence.
(c) A, with the intention of causing Z to be convicted of a criminal conspiracy, writes a letter in imitation of Z’s handwriting, purporting to be addressed to an accomplice in such criminal conspiracy, and puts the letter in a place which he knows that the officers of the police are likely to search. A has fabricated false evidence.”
Explanation and Illustration of Section 228
This section is applicable to any person within the sovereign borders of India, whether citizen, resident or otherwise. It aims to define the term “fabricating false evidence” for the purposes of the section that fall under Chapter XIII. Let us break down the section to get a better understanding of it.
The offender:
The first part of the section defines the offender as any person who deliberately causes a specific circumstance to occur by performing certain actions. The actions have been listed as follows:
1. Deliberately creating a circumstance by their action
2. Making a false entry in any book or any record, including electronic records.
3. Making a document or a record that contains a false statement.
The offense:
If any of the above actions are performed with the intention of having it presented as evidence in a judicial proceeding, or in a proceeding taken by law before a public servant as such, or before an arbitrator, then it shall be defined as “fabricating false evidence.”
In other words, the documents, statements or records that have been fabricated or falsified have been specifically fabricated or falsified with the intention of misleading an ongoing government proceedings by presenting them as genuine evidence in front of:
1. A judge or a magistrate
2. Any public servant authorised to preside over a government proceeding such as, such as a revenue officer or an income tax officer
3. An arbitrator. An arbitrator, though not technically an employee of the government, does act as an agent of the government in official government proceedings.
Further, it states that when such an action may cause the above persons to entertain an erroneous opinion, then it shall be an offence. The usage of the words “may cause” must be specifically noted as it implies that it is not necessary for the person presiding over the proceeding to actually make an erroneous opinion. Even if the case takes its natural course and justice is delivered, the fact that the falsified evidence was presented as genuine evidence and that there was a possibility of that causing an erroneous opinion is sufficient to make it an offense. In other words, even if falsifying the evidence did not bear the intended result, the person found guilty of it will still be prosecuted for the attempt to do so.
The above actions may not be considered as “fabricating false evidence” under this section if:
1. If the documents have not been falsified for the purpose of presenting it as evidence in front of these authorities, then the provisions of this section may not be applicable.
2. If they have been falsified without knowing that they would be presented as evidence in the circumstances mentioned in the section.
3. The person to whom the evidence is presented is not the presiding authority in the proceeding and is not entitled to opine on the evidence.
However, there are other sections that provide for the general falsification of documents and any criminal act or injury occurring from such actions shall be punishable under the provisions of those respective sections.
Three distinct illustrations have been provided in the section to give an idea of what amounts to “fabricating false evidence” under this section.
Key Points in BNS Section 228
This section deals with: Fabricating evidence
Description of offence:
Punishment for offence:
Exceptions to offence:
Differences Between Section 228 of BNS and its Equivalent IPC Section
The BNS came into force on July 1, 2024, effectively replacing the Indian Penal Code. Section 228 of BNS replaces IPC Section 192. Let us look at the changes that have been made in the provisions of the new section in comparison to the old one.
| BNS Sections/Subsections | Subject | IPC Sections | Summary of Comparison |
|---|---|---|---|
| 228 | Fabricating False | 192 | No change |
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FAQs about Section 228 of the Bharatiya Nyaya Sanhita (BNS)
What is the punishment for BNS 228?
There is no punishment prescribed under Section 228. Section 228 merely defines the meaning of fabricating evidence for the purposes of Chapter XIV.
Can someone be punished for fabricating false evidence even if the intended outcome is not achieved?
Yes. Intent is the most crucial element of any crime, irrespective of the consequences. If any action is performed with dishonest or fraudulent intentions shall be considered a crime no matter the consequences.
What is the difference between giving false evidence and fabricating false evidence?
When a person directly and deliberately provides a false statement during the course of an investigation or proceeding to mislead the authorities, it is considered as ‘giving false evidence.’ On the other hand, when a person creates certain false circumstances and plants false evidences so that such false evidences may be indirectly discovered and mislead the investigation or proceeding, it is called fabricating false evidence.
How does Section 228 address the use of AI-generated fake evidence?
If any evidence produced during the course of an investigation is found to be an AI generated fake, it shall be considered as false evidence and the person responsible for it shall be punishable under the BNS.
What happens if fabricated evidence is discovered after a case is resolved?
The case will be reopened, reexamined and reinvestigated. However, the person responsible for the fabricated evidence will be charged as an offender and will be prosecuted under the relevant section of BNS.
