Criminal Law Practice: Defence and Prosecution under BNS and BNSS

Does the IPC or the BNS apply to my case?

The date of the offence decides which penal law applies. The Bharatiya Nyaya Sanhita 2023 covers acts done on or after 1 July 2024. An act done before that date is still an offence under the Indian Penal Code, even if the FIR is lodged later, because a person can be convicted only under the law in force when the act was done (Article 20(1) of the Constitution). So a cheating that happened in March 2024 but was reported in October 2024 is registered under IPC section 420, not BNS section 318.

Procedure follows a different rule. Under BNSS section 531, an investigation, inquiry, trial, appeal or application that was pending immediately before 1 July 2024 continues under the CrPC. Where the FIR was registered after that date, BNSS procedure usually applies even if the offence is under the IPC. Papers that mix old and new sections are common, but they need checking, because a petition under the wrong provision can cost you a hearing.

Most offences carried over with new numbers and the same ingredients. Some things did change: organised crime (BNS s.111) and terrorist acts (s.113) are now in the general penal law, community service is a punishment for some petty offences, snatching is a separate offence, and sexual intercourse by deceitful means such as a false promise of marriage has its own section (s.69). The evidence law kept most of its structure, but electronic records now count as primary evidence in more situations, with a new certificate format under BSA section 63.

Old and new sections at a glance

These are the provisions we see most often. The ingredients of each offence are largely unchanged, so judgments on the old IPC or CrPC section are still cited for the new one.

What happens after an FIR is registered? The stages of a criminal case

Every criminal case follows roughly the same path. Knowing which step you are at tells you what can be done now and what has to wait.

1. FIR or complaint

   The case begins with an FIR under BNSS s.173 or a complaint to the magistrate under s.223. A zero FIR can be lodged at any police station and is transferred to the one with jurisdiction; an e-FIR must be signed within three days.

2. Investigation

   The investigating officer (IO) records statements under s.180, collects documents, seizes phones and sends material for forensic examination. For offences punishable with seven years or more, a forensic team must visit the scene (s.176(3)).

3. Notice or arrest, and bail

   For offences punishable with up to seven years, the police must consider a notice of appearance under s.35(3) before arresting anyone. A person arrested must be produced before a magistrate within 24 hours, who decides remand and bail.

4. Police report

   When investigation ends, the police file a report under s.193: a chargesheet if they find evidence, or a closure report if they do not. If an accused is in custody and no chargesheet is filed within 60 or 90 days, default bail becomes available.

5. Cognizance and summons

   The magistrate decides whether to take cognizance and summon the accused. In complaint cases under s.223, the accused must now be heard before cognizance. Copies of the police report must reach the accused within 14 days of first appearance (s.230).

6. Discharge or charge

   The court hears both sides on whether the material justifies a charge. If it does not, the accused is discharged; if it does, the charge is framed and the accused pleads guilty or claims trial.

7. Evidence

   Prosecution witnesses are examined and cross-examined, and the court then puts the evidence to the accused under s.351 (old CrPC s.313). The accused may lead defence evidence. This is the longest stage in most cases.

8. Arguments, judgment and sentence

   After final arguments, judgment in a Sessions trial is due within 30 days, extendable to 45 (s.258). If the accused is convicted, the court hears them on sentence, and an appeal follows.

Many cases end before the last step, through quashing, closure, compounding or settlement. The sections below explain where those exits are.

The police will not register my FIR. What can I do?

Send the complaint in writing to the Superintendent of Police, which in Delhi means the DCP of the district, under BNSS s.173(4), with a copy of what you gave the SHO and proof of delivery. If that also fails, apply to the magistrate under s.175(3) for a direction to investigate. Under the new law that application must be supported by an affidavit, and the magistrate may hold an inquiry and hear the police officer before passing an order, so a vague one-page application tends to fail.

For offences punishable with three to seven years, the police may hold a preliminary enquiry before registering the FIR (s.173(3)), with permission from an officer of DSP rank, and the enquiry is meant to finish within 14 days. This is often why a complaint of cheating or breach of trust is not converted into an FIR straight away. Keep a record of each visit, each diary number and each written reply.

The other route is a private complaint to the magistrate under s.223. The complainant and witnesses are examined on oath, the accused is heard before cognizance, and the case runs without a police investigation. It suits disputes where the documents speak for themselves, not cases that need searches, seizures or call records.

Not every grievance belongs in a police station. A dispute over an unpaid invoice is usually a civil claim, and the High Courts regularly quash FIRs that dress up a breach of contract as cheating. If the real aim is to get money back, a civil recovery suit or, where a cheque has bounced, a cheque bounce complaint may get you further.

I have received a police notice. Will I be arrested?

A notice of appearance under BNSS s.35(3) means the police have decided, for now, not to arrest you. As long as you comply with the notice and keep appearing when called, the law says you shall not be arrested for that offence unless the officer records reasons why arrest has become necessary. Ignoring the notice is the quickest way to turn a notice case into an arrest case.

The rule grew out of the Supreme Court's decision in Arnesh Kumar v State of Bihar (2014): for offences punishable with up to seven years, arrest is not automatic, and the officer must be satisfied that it is needed, for example to prevent another offence, tampering with evidence or flight. The BNSS adds another protection. For an offence punishable with less than three years, a person who is infirm or above sixty cannot be arrested without permission from an officer not below the rank of DSP (s.35(7)).

Go to the police station prepared. Take the notice, identity proof and copies of the documents that support your side, leave a set with the IO, and ask for a receipt. You may meet your advocate during interrogation, though not throughout it (s.38). A statement recorded by the police is not signed by you and cannot be used as a confession, but it can be used later to contradict you, so answer accurately and do not guess. Read any seizure memo before you sign it.

If the notice relates to a serious offence, or the IO is hinting at arrest, consider anticipatory bail before you go.

Your rights if you or a family member is arrested

• Grounds of arrest. The person must be told the grounds of arrest and, in a bailable offence, that they are entitled to be released on bail (BNSS s.47).
• Arrest memo. An arrest memo must be prepared, attested by a family member or a respectable local person, and countersigned by the person arrested (s.36).
• Information to family. The police must inform a relative or friend named by the arrested person and record that they did so (s.48). Details of arrested persons must be displayed at police stations and district control rooms (s.37).
• Production within 24 hours. The person must be produced before the nearest magistrate within 24 hours, excluding travel time (s.58). Detention beyond that without a magistrate's order is illegal.
• Meeting an advocate. The arrested person may meet an advocate of their choice during interrogation, though not for the whole of it (s.38).
• Women. A woman is not to be arrested after sunset and before sunrise except in exceptional circumstances and with the prior permission of a magistrate (s.43(5)).
• Free legal aid. A person who cannot afford an advocate is entitled to one at the State's expense through the legal services authority, starting from the first production.

Can I get bail? The short answer

Bail depends first on whether the offence is bailable. In a bailable offence, bail is a right and is granted by the police or the magistrate on furnishing a bond (BNSS s.478). In a non-bailable offence it is the court's discretion, exercised on the seriousness of the charge, the evidence, the risk of flight or tampering, and the time already spent in custody. Regular bail (s.480 and s.483), anticipatory bail (s.482) and default bail (s.187) are explained, with conditions and cancellation, on our bail page.

What is a chargesheet, and can I object to it?

The chargesheet (the police report under BNSS s.193) is the police's conclusion that there is enough material to put the accused on trial. It is not proof of guilt. It lists the witnesses, the documents relied on and the role given to each accused. Read it carefully, because the trial will be fought on what is in it, and anything left out is hard to add later.

At the cognizance stage the accused does not usually argue against the chargesheet; the magistrate looks at it alone. The real objection comes at the stage of charge, through an application for discharge, or through a quashing petition in the High Court if the chargesheet discloses no offence even on its own terms.

If the police file a closure report, the complainant must be given notice and can file a protest petition. The magistrate may accept the closure, order further investigation, or take cognizance on the material despite the police opinion. Further investigation after a chargesheet is allowed, but during trial it needs the court's permission and should be completed within 90 days (s.193(9)). If you were named in the FIR but left out of the chargesheet, a supplementary chargesheet can still follow.

How is evidence taken at a criminal trial?

Evidence is taken in court, witness by witness. The public prosecutor examines each prosecution witness, the defence cross-examines, and the judge records the testimony. Statements given to the police during investigation are not evidence by themselves; they can be used only to contradict the witness. That is why cross-examination, not the chargesheet, decides most trials.

Electronic evidence now sits at the centre of many cases: WhatsApp chats, CCTV footage, call detail records, bank statements and emails. A party relying on a copy of an electronic record must file a certificate under BSA section 63 in the prescribed schedule, with one part signed by the person in charge of the device and another by an expert. Advocate B.K. Singh's training in computer science (MCA) is useful here, because much of the defence in such cases lies in how the data was extracted, preserved and certified, and in what the hash values do or do not show. Our cyber crime page deals with online offences specifically.

After the prosecution closes its evidence, the court puts each incriminating circumstance to the accused under BNSS s.351. The answers are not on oath, but a false or evasive answer can count against the accused. The defence may then call its own witnesses.

Witnesses turning hostile is common, particularly in assault and matrimonial cases. A hostile witness's evidence is not wiped out; the court can rely on the parts that hold together. Where a witness faces a real threat, protection is available under the scheme framed under s.398.

Can an FIR be quashed under section 528?

Yes. The High Court can quash an FIR, a chargesheet or a summoning order under BNSS s.528 (old CrPC s.482) if continuing the case would be an abuse of process. The grounds that succeed in practice are these: the FIR, taken at face value, discloses no offence; the dispute is purely civil and has been given a criminal colour; the allegations are so improbable that no sensible person would act on them; there is a legal bar, such as the absence of a required sanction; or the case is plainly malicious. The Supreme Court set out these categories decades ago and they are still applied.

Quashing on settlement is a separate ground. Where the dispute is essentially private, such as a matrimonial case, a commercial cheating complaint after the money has been repaid, or a quarrel between neighbours, the High Court can quash even non-compoundable offences if the parties have genuinely settled. It will not do so for serious offences like murder, rape or offences that affect society at large, and it checks that the settlement is voluntary. The complainant usually has to appear in person or by video link to confirm it.

What the High Court will not do is hold a mini-trial. If the defence depends on disputed facts, such as whether a document is forged or whether money actually changed hands, the court generally leaves it to the trial. In those cases, discharge at the stage of charge is often the better place to argue.

For cases in Delhi, the petition goes to the Delhi High Court; for FIRs registered in Noida or Ghaziabad, to the Allahabad High Court. The Delhi procedure is covered on our Delhi criminal practice page.

Appeals, revision and suspension of sentence

A person convicted by a magistrate appeals to the Sessions Court, and a person convicted by a Sessions Court appeals to the High Court (BNSS s.415). An appeal is a rehearing on the record, so the trial evidence is read again and the findings can be reversed on facts as well as law. While the appeal is pending, the appellate court can suspend the sentence and release the convict on bail (s.430).

The State can appeal against an acquittal with the leave of the High Court (s.419). A victim, as defined in the BNSS, can appeal against an acquittal, a conviction for a lesser offence or inadequate compensation without needing leave (proviso to s.413). Revision (s.438 to 442) is a narrower remedy against orders that cannot be appealed, such as an order framing charge or refusing discharge, and it looks at legality and jurisdiction rather than reweighing evidence.

From the High Court, the next step is a special leave petition to the Supreme Court under Article 136, within 90 days. The Supreme Court admits only a small share of criminal SLPs, so the petition has to show a clear error of law or a serious miscarriage of justice. Our Supreme Court practice page explains that stage.

Remedies and time limits after an order

These are the usual periods under the Limitation Act and the Constitution. Some can be extended for sufficient cause, but delay always needs explaining.

Time runs from the date of the order, and the time taken to obtain a certified copy is excluded. Apply for the certified copy the day the order is passed.

Acting for complainants and victims

The prosecution is run by the State through the public prosecutor, but a complainant or victim is not a spectator. A victim can engage a private advocate to assist the prosecutor (BNSS s.338), is entitled to copies of the police report and documents, must be told of the progress of investigation, and can oppose bail and quashing petitions.

The early steps are where complainants lose ground. A complaint written in anger, without dates, amounts or documents, produces a weak FIR, and a weak FIR produces a weak chargesheet. We draft complaints the way a trial court will read them: who did what, when and where, which documents prove it, and which witnesses saw it. We also follow up with the IO so that bank records, call details and CCTV footage are requisitioned before they are lost; many CCTV systems overwrite footage within a few weeks.

Compensation is available. The trial court can order the accused to pay compensation on conviction, and the victim compensation scheme under s.396 pays victims of certain offences even where the offender is not traced. For offences against women and children, further protections apply, which we explain on our page on sexual offence cases. Complaints of cruelty by a husband or in-laws usually run alongside family proceedings, covered on our family law page.

Settlement, compounding and plea bargaining: when not to fight to the end

Some cases should end early, and an honest advocate will say so. Compoundable offences, listed in BNSS s.359, can be settled by the complainant, some directly and some only with the court's permission, and compounding has the effect of an acquittal. Cheque bounce cases can be compounded at any stage, and courts push for early settlement through mediation and Lok Adalat.

Plea bargaining (BNSS chapter XXIII) lets an accused in offences punishable with up to seven years work out a mutually satisfactory disposition with the victim and the prosecution, usually compensation, in exchange for a reduced sentence. It is not available for offences affecting the socio-economic condition of the country or for offences against a woman or a child below fourteen. Under the BNSS the application must be filed within 30 days of the framing of charge.

Fighting on makes sense when the evidence is thin, a conviction would cost you your career, or the complaint is plainly malicious. Settling makes sense when the facts are against you or the dispute is really about money. We set out the realistic risk on each side, and the decision stays with you.

Documents to bring to the first meeting

Bring what you have; we will tell you what else to obtain. Photocopies and clear phone photographs are enough for the first meeting.

Mistakes that damage criminal cases

The commonest mistake is saying too much, too early. People call the complainant to sort it out, send long WhatsApp messages explaining themselves, or post about the case on social media. Any of those messages can end up in the chargesheet. If you have to communicate, keep it short and factual, and write as if a judge will read it.

The second is ignoring paper. An unanswered police notice or a missed court date leads to non-bailable warrants and then proclamation proceedings, after which bail becomes much harder.

The third is filing the wrong remedy first. A quashing petition filed before the chargesheet, on disputed facts, is likely to be dismissed, and that dismissal is cited against you at the bail and discharge stages. Sequence matters: secure liberty first, then put your documents into the investigation, then bring the right challenge at the right stage.

How long does a criminal case take, and what does it cost?

Investigation in a simple case usually takes a few months; in financial frauds or cases waiting on forensic reports it can take a year or more. A magistrate trial with a handful of witnesses may finish in two to four years in Delhi NCR, and a Sessions trial with many witnesses can take longer. The BNSS sets targets for several stages, such as 60 days to decide discharge and 30 days for judgment after arguments, but progress still depends on witnesses turning up, reports arriving and the court's daily list. Nobody can honestly promise you a date. Bail applications are decided much faster, usually within days or weeks.

Fees are discussed at the first meeting and agreed in writing, stage by stage: for example the bail stage, the charge stage and the trial. Court fees in criminal matters are small, but certified copies, travel to courts in other districts and, where needed, counsel in another state or an Advocate-on-Record in the Supreme Court are separate costs. We tell you about those before they arise.

How we handle a criminal matter

Most criminal matters reach us as an urgent call: someone has been picked up, a notice has arrived, or the other side has threatened an FIR. Advocate Sadhna Singh usually takes that first call, collects the papers and the timeline, and identifies the deadline that matters, whether it is a court date tomorrow or a notice that requires appearance on Monday. Advocate B.K. Singh then reviews the FIR or chargesheet and settles the order of steps.

He appears in bail, quashing, trial and appeal hearings in the Delhi district courts, the courts in Noida and Ghaziabad, and the Delhi High Court, and in the Supreme Court through an Advocate-on-Record where needed. For cases run by particular agencies, such as the CBI, ED or NCB, our criminal law practice section explains how each type of case differs.

We keep you informed after every date: what happened, what the order says, and what is needed before the next hearing. To tell us about your case, use the online enquiry form and mention the FIR number, the police station and the next date.

What to do this week if a case has been filed against you

• Get the FIR copy and note the sections, the police station and the date of registration.
• Write your own account of events with dates, and keep the supporting documents safe.
• Stop all contact with the complainant except through advocates.
• Do not post about the case on social media, and do not delete anything from your phone.
• If a notice has arrived, note the date and time of appearance and plan for it.
• If arrest is a real possibility, discuss anticipatory bail before you go to the police station.
• Give a family member your advocate's number and a copy of the FIR.