Section 238 BNS: Disappearance of Evidence or False Information

Section 238 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 238 specifically deals with causing loss of evidence. Let us take a closer look at its provisions.

Definition of BNS Section 238

Section 238 of the Bharatiya Nyaya Sanhita (BNS), 2023 states:

“Whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false shall,—

(a) if the offence which he knows or believes to have been committed is punishable with death, be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine;

(b) if the offence is punishable with imprisonment for life, or with imprisonment which may extend to ten years, be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine;

(c) if the offence is punishable with imprisonment for any term not extending to ten years, be punished with imprisonment of the description provided for the offence, for a term which may extend to one-fourth part of the longest term of the imprisonment provided for the offence, or with fine, or with both.

Illustration.

A, knowing that B has murdered Z, assists B to hide the body with the intention of screening B from punishment. A is liable to imprisonment of either description for seven years, and also to fine.”

Explanation and Illustration of BNS Section 238

This section is applicable to any person within the sovereign borders of India, whether citizen, resident or otherwise. It deals with the offence of disrupting evidence of crime. Let us break down the section to get a better understanding of it.

Offence

This section deals with disrupting evidence with the intent of covering up a crime.

It specifically lists two acts of disruption:

Causing evidence of commission to disappear - this refers to concealing or destroying any item that can be considered proof of the crime. It may include items such as a murder weapon, or a video audio recording of the criminal act, fingerprints or other traces of the offender’s presence at the crime scene at the time of the crime etc.

Giving information known to be false - this refers to providing the investigating authorities with false information regarding the crime so as to conceal the offender or mislead the investigation towards a false conclusion.

Punishment

The punishment for the offence under this section has been categorised into three tiers depending on the severity of the crime for which the evidence was disrupted.

If the disrupted evidence is from a crime which bears the death penalty then the punishment shall be imprisonment for a term which may extend to seven years, and shall also be liable to fine

If the disrupted evidence is from a crime which bears life imprisonment or a prison sentence that exceeds ten years then the punishment shall be imprisonment for a term which may extend to three years, and shall also be liable to fine;

If the disrupted evidence is from a crime which bears a prison sentence of less than ten years then the punishment shall be for a term which may extend to one-fourth part of the longest term of the imprisonment provided for the offence, or with fine, or with both. To illustrate, if the prison term for the crime is 2-4 years, then the punishment for disrupting evidence of such a crime shall be one-fourth of the maximum term which is 4 years. Hence the offender shall be punished with imprisonment of one year.

The above actions may not be an offence under this section if:

The person disrupting the evidence is not aware of the actions for which the cover up is being staged.

The person disrupting the evidence is not aware that the action they are covering up is a crime

The person disrupting the evidence is forced or coerced into covering up the evidence

The person disrupting the evidence does not know that the information they have shared is false

The person disrupting the evidence is a minor or not of sane mind.

However, there may be other sections of the BNS under which the above actions can be prosecuted and while they may be disqualified under the provisions of this section, such actions will still be punishable under the provisions of those respective sections of the BNS.

Illustration

This section provides an illustration to demonstrate the provisions.

A, knowing that B has murdered Z, assists B to hide the body with the intention of screening B from punishment.

A is aware that Z has committed the murder. A is aware that murder is a crime. And A helped Z hide the body to help cover up the crime. So this checks all the boxes for offence under the provisions of Section 238.

Since the punishment for murder is capital punishment, A falls under the first category of punishments and is hence punishable with imprisonment for seven years, and also to fine.

Disclaimer:

The examples provided are for educational purposes only and do not constitute legal advice. They should not be used for legal proceedings or decision-making. For specific legal matters, please consult a qualified legal professional.

Key Points of BNS 238

This section deals with: Causing loss or disappearance of evidence

Description of offence:

Any person who deliberately causes loss or disappearance of evidence of crime in order to screen the person who committed that crime shall be considered an offender under this section.

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Punishment for offence:
Any person found guilty under this section shall be punished with imprisonment and fine as such:

(a) if the lost evidence relates to crime that is punishable by death then the offender will be punished with imprisonment for a term which may extend to seven years, and shall also be liable to fine;

(b) if the lost evidence relates to crime that is punishable by life imprisonment or imprisonment of greater than ten years, then the offender will be punished with imprisonment for a term which may extend to three years, and shall also be liable to fine;

(c) if the lost evidence relates to crime that is punishable by imprisonment not exceeding ten years then the offender will be punished with imprisonment for a term which may extend to one-fourth part of the longest term of the imprisonment provided for the offence, or with fine, or with both.

Exceptions to offence:

The offender has been coerced into committing the offence

The person is a minor or not of sane mind

Differences Between Section 238 of BNS and its equivalent IPC section

The BNS came into force on July 1, 2024, effectively replacing the IPC Section 201. 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
238	Causing disappearance of evidence ,or giving false information to screen offender.	201	No change in provision for offence

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FAQs about Section 238 of the Bharatiya Nyaya Sanhita (BNS)

How does intent play a role in prosecuting cases under BNS Section 238?

Intent plays a very crucial role in determining offence under section 238 as losing evidence or causing evidence to disappear accidentally cannot have been done to screen any person and hence is not a punishable offence under this section.

What are the penalties for violating BNS Section 238?

Any person found guilty under this section shall be punished with imprisonment and fine. The term of imprisonment and fine will vary depending on the seriousness of the crime for which evidence was lost or made to disappear.

What challenges are faced in enforcing BNS Section 238?

The biggest challenge for enforcing provisions of Section 238 is proving that such an act was done deliberately, as anyone can claim that the evidence was lost by accident.

How can one file a complaint under BNS Section 238?

Any person who is aware of anyone causing loss of evidence under Section 238 must report the matter to the nearest police station immediately.

Can Section 238 penalize erasing surveillance data in public spaces?

Yes. If the data in question was evidence of any crime, then it shall be punishable under Section 238.