Criminal matters are now governed by the Bharatiya Nyaya Sanhita, 2023 (BNS), the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) and the Bharatiya Sakshya Adhiniyam, 2023 (BSA), which came into force on 1 July 2024. An offence committed before that date continues to be dealt with under the Indian Penal Code, 1860 and the Code of Criminal Procedure, 1973. A person facing a case can seek bail, anticipatory bail, quashing of the FIR or discharge, according to the stage.
A criminal matter starts with a complaint or an FIR and moves through investigation, charge, trial and judgment. At each stage the accused and the complainant have rights and remedies.
The advocate appears for accused persons and for complainants before the magistrate courts, the Sessions Court and the Bombay High Court. The work depends on the stage reached and on the documents available.
Jurisdiction and applicable law
Offences committed on or after 1 July 2024 are dealt with under the BNS, the BNSS and the BSA. Offences committed before that date are dealt with under the Indian Penal Code, 1860, the Code of Criminal Procedure, 1973 and the Indian Evidence Act, 1872, although the procedure of the BNSS applies to investigations, inquiries and trials that begin after 1 July 2024. The applicable law is identified first.
Criminal complaints and FIRs
An FIR is registered by the police under section 173 of the BNSS on information about a cognizable offence. A complaint can also be filed before a magistrate under section 223 of the BNSS. A magistrate can direct an investigation under section 175(3). Work in this area includes:
- Drafting and filing complaints and applications to the police and the magistrate
- Advising a person against whom a complaint or an FIR has been filed
- Replying to notices from the police
Investigation, notice and arrest
A police officer can issue a notice of appearance under section 35 of the BNSS in a case where arrest is not required. A person who is arrested has to be produced before a magistrate within 24 hours. The person has the right to be told the grounds of arrest, to inform a relative or friend, to consult an advocate, and to the protection against self-incrimination in Article 20(3) of the Constitution.
Bail and anticipatory bail
The kind of bail depends on the offence and the stage:
- Regular bail in a bailable offence is a matter of right, and in a non-bailable offence is decided by the court under sections 480 and 483 of the BNSS
- Anticipatory bail under section 482 of the BNSS is sought before arrest, from the Sessions Court or the High Court
- Default bail under the proviso to section 187(3) of the BNSS arises when the investigation is not completed within 60 or 90 days, depending on the offence
- Interim bail and bail after conviction pending appeal
Quashing proceedings
The Bombay High Court can quash an FIR or a proceeding under section 528 of the BNSS, which replaced section 482 of the Code of Criminal Procedure, to prevent abuse of the process of court or to secure the ends of justice. State of Haryana v. Bhajan Lal sets out categories of cases in which the power is used. A petition is drafted on the face of the FIR and the documents.
Charge, trial and evidence
The trial covers the framing of charge or discharge, evidence, cross-examination, statement of the accused and arguments. An application for discharge is made before charge is framed. The Bharatiya Sakshya Adhiniyam, 2023 governs evidence, including electronic records.
Appeal and revision
A convicted person and the State and, in certain cases, a complainant can appeal. An order that is not appealable can be examined by revision under section 438 of the BNSS, which replaced section 397 of the Code of Criminal Procedure. An appeal is filed within the time the law gives, and the sentence can be suspended pending the appeal in a suitable case.
How a matter is run
- Review what has happenedThe complaint, FIR, notices, arrest and orders so far are reviewed.
- Gather the case papersThe FIR, charge sheet, statements, medical and other documents and earlier orders are collected.
- Identify the law and the optionsThe applicable code, the stage reached and the remedies open are explained.
- File and appearBail, quashing, discharge and other applications are filed, and the advocate appears at hearings and cross-examination.
Laws and forums
Laws that usually apply
- Bharatiya Nyaya Sanhita, 2023
- Bharatiya Nagarik Suraksha Sanhita, 2023
- Bharatiya Sakshya Adhiniyam, 2023
- Indian Penal Code, 1860 (for earlier offences)
- Code of Criminal Procedure, 1973 (for earlier offences)
- Indian Evidence Act, 1872 (for earlier offences)
- Negotiable Instruments Act, 1881, section 138
- Protection of Women from Domestic Violence Act, 2005
Courts and forums
- Metropolitan Magistrate courts
- Sessions Court, Mumbai
- Bombay High Court, in bail, quashing, appeals and revisions
- Supreme Court of India
Related guides
Frequently asked questions
What should be done after receiving a police notice or a complaint?
The notice or the complaint should be read carefully and the date and the police station noted. The papers should be kept ready, and legal advice taken before a statement is given. A notice under section 35 of the BNSS asks the person to attend and does not by itself mean arrest.
What is the difference between regular bail and anticipatory bail?
Regular bail is sought after arrest or while in custody. Anticipatory bail under section 482 of the BNSS is sought before arrest by a person who fears arrest in a non-bailable offence.
Can an FIR be quashed?
The High Court can quash an FIR under section 528 of the BNSS where the allegations, taken as they stand, do not make out an offence or the proceeding is an abuse of the process of court. The categories in State of Haryana v. Bhajan Lal guide the court. Each case is decided on its own facts.
Does the old penal code or the new one apply?
The Bharatiya Nyaya Sanhita, 2023 applies to offences committed on or after 1 July 2024. An offence committed before that date is dealt with under the Indian Penal Code, 1860.
What is default bail?
Default bail is the right of an accused to be released when the police do not file the charge sheet within 60 or 90 days of remand, as section 187 of the BNSS provides, and the accused applies and is ready to furnish bail.
What documents should be brought to a consultation?
The FIR or complaint, the notices, the charge sheet if filed, the remand and bail orders, the identity documents and any messages or records connected with the case.
How long does a criminal case take?
The time depends on the offence, the court, the number of witnesses and the stage. A bail application can be heard within days. A trial and an appeal take longer, and the time varies from case to case.
Related practice areas
General information only. This page is for information. It is not legal advice, an advertisement or a solicitation, and it makes no claim about results. The law changes, and the position in a case depends on its facts. A professional relationship begins only when the advocate agrees to act in a matter.