Criminal Litigation and Defence

The new criminal codes: BNS, BNSS and BSA

The substantive offences continue with new numbering. Murder is now punishable under Section 103 of the Bharatiya Nyaya Sanhita (formerly Section 302 IPC) and culpable homicide not amounting to murder under Section 105 (formerly Section 304). Cheating that induces delivery of property is now Section 318, criminal breach of trust is Section 316, forgery is Section 336 and criminal conspiracy is Section 61. Cruelty to a wife by her husband or his relatives is Sections 85 and 86, and dowry death is Section 80.

The procedure that governs an investigation and trial is now in the BNSS, and the rules of evidence in the BSA. Knowing the correct provision, and whether the old or the new code applies to a given matter, is the first practical question in any current criminal case.

FIR, investigation and arrest

A first information report in a cognizable case is registered under Section 173 of the BNSS. The new code formalises the Zero FIR (registration at any police station regardless of jurisdiction) and provides for electronic registration and audio-video recording at several stages of an investigation. For offences carrying three to seven years, a preliminary enquiry is permitted before registration in some circumstances.

Arrest is not automatic. In Arnesh Kumar v. State of Bihar the Supreme Court directed that, for offences punishable with imprisonment of under seven years, the police must not arrest as a matter of course; they must apply the statutory checklist and ordinarily serve a notice of appearance first, and a magistrate must record satisfaction before authorising detention. These safeguards, originally framed around Sections 41 and 41A of the old Code, carry forward under the corresponding provisions of the BNSS. The firm acts at the earliest stage, on the response to a notice, the grounds of arrest and the first remand, where the direction of a case is often set.

Bail: anticipatory, regular and default

Anticipatory bail, a direction that a person be released on bail in the event of arrest, is sought under Section 482 of the BNSS (formerly Section 438 CrPC). After arrest, regular bail in a non-bailable offence is sought under Section 480, and the wider powers of the Sessions Court and the High Court are exercised under Section 483. Where the investigating agency fails to file its report within the statutory period (ordinarily sixty or ninety days depending on the gravity of the offence), the accused is entitled to default or statutory bail under Section 187.

The governing principle remains that bail is the rule and jail the exception. In Satender Kumar Antil v. CBI the Supreme Court grouped offences into categories and laid down directions to prevent unnecessary arrest and to ensure bail applications are decided quickly. Even in serious economic matters, the Court held in Sanjay Chandra v. CBI that detention before conviction is not to be used as a punishment, and that the seriousness of a charge does not by itself justify keeping a person in custody through a long trial.

Quashing of FIRs and criminal proceedings

Where a complaint is an abuse of the process of law or discloses no offence, the High Court can quash the FIR or the proceedings in the exercise of its inherent jurisdiction under Section 528 of the BNSS (formerly Section 482 CrPC). The categories in which this power is exercised were set out by the Supreme Court in State of Haryana v. Bhajan Lal, which remains the standard reference, and the High Court can also quash a matter that the parties have genuinely settled.

A petition to quash succeeds on a careful reading of the FIR and the material, not on rhetoric. The firm prepares these petitions on the documents, identifying precisely why the allegations do not make out the offence charged.

Trial, evidence and the digital record

Electronic evidence, messages, call detail records, server and device data, CCTV and financial records, is now governed by Section 63 of the Bharatiya Sakshya Adhiniyam (the successor to Section 65B of the Evidence Act), which requires a certificate and, in the BSA, more rigorous certification of how the record was produced. Much of the contest in a modern trial is over whether such evidence was lawfully collected, properly certified and not altered.

This is where the firm's technology background is directly useful. The work includes testing the chain of custody of a seized device, checking hash values and metadata, reading call records correctly, and exposing gaps between what a record actually shows and what the prosecution says it shows. The same scrutiny is applied whether the firm is defending an accused or supporting a complainant.

The legal framework

The principal statutes and the provisions that most often decide these matters. Statute text can be read in the firm's Legal Library; always check the current version at the official source.

Key judgments

Grouped by issue. Each case is cited from the court's own record; open a heading to read it.

How we work on these matters

One advocate remains responsible for the matter, from the police station and the bail application through to the trial and any appeal, so the strategy stays consistent and the client always has a single point of contact.

Criminal defence is built on the record: the FIR, the case diary, the seizure memos, the electronic evidence and the statements. The firm reads the prosecution file closely and tests each link rather than relying on general submissions.

Advice on bail and on the likely course of a trial is given candidly, including where the prospects are difficult. The firm does not promise outcomes that the law and the evidence do not support.

Frequently asked questions