Accusation of a criminal offence under Indian law invokes a formalised legal process delineated by regulatory procedures and constitutional protection. Knowing the process is critical for every individual involved with the criminal justice system, as a complainant, accused person, or attorney.
The Legal Framework
The Legal Framework India’s criminal law is now shaped primarily by three revised codes replacing colonial-era laws:
- Bharatiya Nyaya Sanhita, 2023 (BNS) – replaces the Indian Penal Code, 1860, dealing with the definition of offences and imposition of punishments.
- Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) – replaces the Code of Criminal Procedure, 1973, which provides for procedural machinery.
- Bharatiya Sakshya Adhiniyam, 2023 (BSA) – replaces the Indian Evidence Act, 1872, dealing with the admissibility and appraisal of evidence.
These laws aim to decolonize and modernize India’s justice system, incorporating digitization, victim protection, time-bound procedures, and public-centric reforms.
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I. Understanding Criminal Law
i. Criminal Law is the branch of public law that codifies conduct qualified as offences against the State or society. Its objectives are deterrence, retribution, rehabilitation, and protection of public order.
ii. Classifications of Offences: Jurisprudential Perspective
Under Indian criminal law, offences are categorized along three principal axes:
1. Cognizable vs. Non-Cognizable Offences
i. Cognizable: Offences where police can arrest without prior judicial authorization (e.g., murder, rape)
ii. Non-Cognizable: Require magistrate’s approval before investigation or arrest (e.g., public nuisance, defamation). [Ref: Section 2(c) and 2(l), CrPC or Section 2(1)(c) and Section 2(1)(n) of BNSS
2. Bailable vs. Non-Bailable Offences
i. Bailable: Accused has a statutory right to be released on bail.
ii. Non-Bailable: Release is subject to judicial discretion, considering the gravity of the offence and circumstances of the case. [Ref: Section 436–437, CrPC or Section 479-480 BNSS]
3. Compoundable vs. Non-Compoundable Offences
i. Compoundable: Can be settled between parties with or without court’s permission.
ii. Non-Compoundable: Cannot be withdrawn, given their impact on society at large. [Ref: Section 320, CrPC or Section 358 BNSS]
II. Key Stakeholders in the Criminal Justice System
- Police: Investigate offences and ensure law enforcement.
- Judiciary: Adjudicate disputes and protect fundamental rights.
- Prosecution: Represent the State; burdened with proving the accused’s guilt.
- Defence Counsel: Ensure the accused’s legal representation and procedural safeguards.
III. Stages in a Criminal Case (under BNSS, 2023)
1. Filing of First Information Report (FIR)
Under Section 173, BNSS, an FIR is registered when a cognizable offence is reported. It is the official basis for initiating investigation. Filing a false FIR is an offence under Section 220, BNS.
Note: Online FIR registration is supported in several states through citizen-centric police portals for specified areas.
2. Investigation
Once an FIR is lodged, police initiate the investigation as per Sections 174–176, BNSS. This includes scene inspection, seizure of material, recording witness statements, forensic analysis, and identifying the accused.
Prosecutors may advise on legal sufficiency before filing a charge sheet.
3. Arrest and Bail
Arrest Procedure: Must follow safeguards under Sections 35–60, BNSS (replacing CrPC 41–60). The accused must be produced before a Magistrate within 24 hours (Article 22(2), Constitution).
Bail: Provisions under Sections 478–496, BNSS now govern anticipatory and regular bail. Criteria include gravity of offence, prior record, and cooperation likelihood.
4. Chargesheet or Closure Report
Upon concluding investigation, police submit a Police Report (Chargesheet) or a Closure Report under Section 193, BNSS. The Magistrate can:
i. Accept the report
ii.Reject and take cognizance directly,
iii. Or order further investigation under Section 193(8), BNSS.
5. Framing of Charges / Discharge
Under Sections 234–260, BNSS, the Judge reviews whether a prima facie case exists.
i. Discharge: If no sufficient grounds
ii. Charges Framed: If a case exists, and the accused is asked to plead guilty or claim trial.
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6.Trial Proceedings
Trials follow the adversarial format: prosecution presents its case; defence cross-examines and may present rebuttal.
Provisions under BNSS emphasize victim participation, electronic trials, and recording of testimony via video conferencing.
7. Judgment and Sentencing
After evidence and arguments, the judge delivers a verdict.
i. Acquittal or Conviction: Under Sections 392 to 397, BNSS
ii. Sentencing: Carried out under Section 398, BNSS, which now requires the court to consider aggravating/mitigating factors and victim impact statements.
8. Appeals and Revisions
i. Appeals are governed by Chapter XXIX, BNSS (Sections 421–439).
ii. Special Leave Petition (SLP) under Article 136, Constitution remains a discretionary route to the Supreme Court.
iii. BNSS promotes time-bound disposal of appeals.
| Stage | BNSS (Procedure) | BNS (Substantive Law) | BSA (Evidence Law) |
| 1. FIR | Sec 173 BNSS (FIR filing) | BNS determines if act is an offence | – |
| 2. Investigation | Sec 174–176 BNSS (investigation process) | Defines criminal acts, e.g., murder (Sec 101 BNS), theft (Sec 303 BNS) | BSA governs what evidence is admissible (Sec 2–18) |
| 3. Arrest & Bail | Sec 35–60 BNSS (arrest), Sec 479–482 BNSS (bail) | Classification into bailable / non-bailable under BNS | BSA governs statements, confessions, and documentary evidence |
| 4. Chargesheet / Closure | Sec 193 BNSS | BNS forms basis for charges framed | BSA applied to validate collected evidence |
| 5. Framing Charges | Sec 251–261 BNSS | Offences defined under BNS (e.g., Sec 104 for assault) | – |
| 6. Trial | Trial procedure under BNSS | BNS defines offences being tried | BSA crucial for evaluation of witness testimony, documents, expert opinion |
| 7. Judgment & Sentencing | Sections 392–397 – Judgment; Section 398 – Sentencing after conviction | Sentencing structure under BNS (e.g., life imprisonment, fines) | BSA used to justify findings based on evidence |
| 8. Appeal & SLP | Chapter XXX BNSS (Sec 420–439) | BNS sentence forms basis of challenge | BSA relevant if appeal questions quality of evidence |
IV. Constitutional Safeguards for the Accused-
- Article 20(3) – Right against self-incrimination
- Article 21 – Right to life and personal liberty includes fair trial
- Article 22(1)–(2) – Right to legal counsel and to be produced within 24 hours
- Section 48 – Right to be informed of arrest and right to bail
- Section 38 – Right to meet legal counsel during interrogation (mirrors CrPC 41D)
- Section 173(3) – Ensures the accused receives copy of the chargesheet
- Chapter XXVIII – Provides for time-bound trial, reinforcing the right to speedy justice (as upheld in Hussainara Khatoon v. State of Bihar and codified further under BNSS)
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V. Landmark Safeguards Still Valid:
- D.K. Basu v. State of West Bengal continues to govern arrest guidelines
- Legal privilege, judicial review, and presumption of innocence remain cornerstones
VI. Defensive Preparedness: Legal Best Practices
- Engage Qualified Counsel: Immediate representation is crucial for securing bail and responding to allegations.
- Preserve Documentation: Maintain records of notices, FIR copies, medical or forensic reports.
- Exercise Caution in Public Communication: Refrain from discussing the case on social media or public forums.
- Maintain Confidentiality with Legal Counsel: Legal privilege ensures that your disclosures remain protected.
- Comply with All Summons and Legal Procedures: Avoid any action that may attract contempt or obstruct justice.
Conclusion
Criminal law in India balances societal interests with individual rights. Although the procedural requirements seem to be too complicated, they are entrenched in concepts of justice, fairness, and constitutional due process. Understanding the procedural protections not only empowers citizens but enhances rule of law and the integrity of the Indian judicial system.
FAQ:
Q. How can I hire a reliable criminal defence lawyer in India?
Engage a lawyer who specializes in criminal law, has courtroom experience, and understands local judicial processes. Look for client reviews, bar council credentials, and clear legal communication. For those unable to afford private representation, free legal aid is guaranteed under Article 39A of the Constitution and administered via District Legal Services Authorities (DLSA).
Q. What happens after an FIR is filed?
The police initiate an investigation under Section 173 of BNSS. This may involve recording witness statements, collecting forensic evidence, making arrests, and ultimately filing a Police Report (Chargesheet) or Closure Report with the Magistrate. Prosecutors may assist in reviewing the strength of evidence.
Q. Can someone be arrested without a warrant in India?
Yes, for cognizable offences (as defined in BNS, e.g., murder under Section 101, BNS), police can arrest without a warrant under Section 35–39 of BNSS. For non-cognizable offences, prior permission from a Magistrate is required under Section 39(1)(b), BNSS.
Q. What is anticipatory bail and when can it be applied for?
Anticipatory bail is a safeguard sought before arrest in non-bailable offences. Under Section 482 of BNSS, an individual who apprehends arrest can apply to the Sessions Court or High Court for anticipatory bail. The court considers factors like seriousness of offence, past conduct, and likelihood of absconding.
Q. Can a criminal case be withdrawn once filed?
Yes, if the offence is compoundable under Section 359 of BNSS, the case can be withdrawn by mutual consent of parties—some with and some without court approval. For non-compoundable offences, withdrawal is not permitted due to broader societal implications (e.g., rape or attempt to murder under BNS).
Q. Why is it important to hire a good criminal lawyer?
A competent criminal lawyer ensures protection of your rights under BNSS/BNS/BSA, defends against procedural lapses, and strengthens your case during bail hearings, trial, and appeals. Their understanding of evidence rules (under BSA), court procedures, and recent amendments can directly affect outcomes like discharge, acquittal, or reduced sentencing.