Criminal defence

A criminal case is run under three laws that replaced older ones on 1 July 2024: the Bharatiya Nyaya Sanhita, 2023 (BNS) defines the offences, the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) sets the procedure, and the Bharatiya Sakshya Adhiniyam, 2023 (BSA) governs evidence. They replaced the Indian Penal Code, 1860 (IPC), the Code of Criminal Procedure, 1973 (CrPC) and the Indian Evidence Act, 1872. The separate page on white-collar and cyber defence deals with proceedings by investigating agencies such as the Serious Fraud Investigation Office and with digital evidence; the cases here are those that begin at a police station and are tried by a Magistrate or a Sessions Court.

The investigation stage

A criminal case ordinarily begins with a first information report (FIR), recorded under section 173 of the BNSS (section 154 CrPC). It may be given orally or in writing, and the Sanhita allows information to be given electronically, to be followed by the informant's signature within three days. A police station can register a report of an offence committed outside its limits and transfer it, the practice known as a zero FIR. Where the police decline to record a report, the informant may send it to the Superintendent of Police, and, after that, a Magistrate can direct an investigation under section 175(3) (section 156(3) CrPC) on an application supported by an affidavit, after hearing the police officer.

During investigation the police may examine witnesses, seize documents and devices under sections 94 and 106 (sections 91 and 102 CrPC), and have statements recorded before a Magistrate under section 183 (section 164 CrPC). A statement made to a police officer cannot be used as a confession against the accused, which section 23 of the BSA (section 25 of the Evidence Act) continues to provide. What this stage needs is a record of what was asked, produced or seized, because later challenges to the investigation work from that record.

FIR, notice and arrest

Arrest is not automatic on registration of an FIR. For offences punishable with imprisonment of up to seven years, the police are directed to serve a notice requiring the person to appear, under section 35 of the BNSS (section 41A CrPC), and a person who complies with the notice is not to be arrested except on reasons recorded by the officer. This reflects the decision in Arnesh Kumar v. State of Bihar (2014), in which the Supreme Court held that arrest must be justified by the officer's reasons and checked by the Magistrate at remand.

Where an arrest is made, the BNSS requires that the person be told the grounds of arrest, that a relative or nominated person be informed, and that the person be produced before a Magistrate within twenty-four hours, excluding travel time. The Magistrate then decides on remand under section 187 (section 167 CrPC). Police custody may not exceed fifteen days in all, but under the BNSS those days may be taken in parts at any time during the first forty or sixty days of detention, depending on the offence. If the investigation is not completed within sixty or ninety days, the accused becomes entitled to default bail.

Regular and anticipatory bail

Bail depends on whether the offence is bailable. In a bailable offence bail is a matter of right (section 478 BNSS, section 436 CrPC). In a non-bailable offence the Magistrate has a discretion under section 480 (section 437 CrPC), and the Sessions Court and the High Court have wider powers under section 483 (section 439 CrPC). The court weighs the gravity of the offence, the material against the accused, the risk of flight and of interference with witnesses, and the period already spent in custody. Section 479 (section 436A CrPC) also provides for release of an undertrial who has served a fixed fraction of the maximum sentence, and the Supreme Court has addressed delay in the grant of bail in Satender Kumar Antil v. Central Bureau of Investigation (2022).

Anticipatory bail, an order directing release if arrested, is sought under section 482 (section 438 CrPC) from the Sessions Court or the High Court. In Sushila Aggarwal v. State (NCT of Delhi) (2020) a Constitution Bench held that such an order need not be limited in time. Certain statutes, among them the Narcotic Drugs and Psychotropic Substances Act, 1985, carry stricter bail conditions; the page on narcotics deals with them.

Quashing

The High Court of Karnataka has an inherent power under section 528 of the BNSS (section 482 CrPC) to quash an FIR, a complaint or a pending proceeding to prevent abuse of the process of court or to secure the ends of justice. The categories in which the power is exercised were set out in State of Haryana v. Bhajan Lal (1992), for instance where the allegations, taken as true, disclose no offence. The court also quashes proceedings in some non-compoundable offences where the parties have settled and the dispute is essentially private. The court does not conduct a trial on disputed facts at this stage. A petition may be filed at the FIR stage or after a charge sheet.

Charge and trial

On completion of investigation the police file a report under section 193 of the BNSS (section 173 CrPC), commonly called the charge sheet. The accused is supplied copies of the documents relied on, and may apply for discharge if the material discloses no sufficient ground to proceed. If the court finds a prima facie case a charge is framed, which states the offence the accused must meet.

Offences are tried by the court the First Schedule names: the most serious, such as murder, by the Sessions Court, and others by a Magistrate of the first class, in a warrant, summons or summary trial. In Bengaluru these are the Magistrate courts and the Sessions Courts in the court complexes of the city and of the districts of Karnataka. The prosecution leads its evidence, the accused is examined on the circumstances put to them, and the defence may lead evidence of its own. The BNSS also provides for plea bargaining in limited categories and for compounding of some offences, with the court's permission in the more serious of them.

Appeal and revision

A conviction is appealed to the court the BNSS names: a Magistrate's conviction goes to the Sessions Court, and a Sessions Court's to the High Court of Karnataka, with further appeal to the Supreme Court of India in the cases the law allows. The State may appeal an acquittal on the conditions the Sanhita sets, and a complainant has a limited right of appeal in some circumstances. Revision is a supervisory power exercised by the Sessions Court and the High Court over the correctness, legality or propriety of an order or finding below, and it is narrower than appeal. The High Court of Karnataka sits at Bengaluru, with benches at Dharwad and Kalaburagi.

What the law does not allow

Detention beyond twenty-four hours without a Magistrate. Arrest on registration of an FIR alone, where the offence carries up to seven years and the police have served no notice of appearance and recorded no reasons. A confession to a police officer as evidence against the accused. Continued detention of an accused who applies for default bail once the sixty or ninety days have run and the charge sheet has not been filed.