Criminal Defence

Regular bail is sought by a person who has been arrested or is in custody. Anticipatory bail, now provided for in Section 482 of the BNSS, is sought in advance from the sessions court or the High Court by a person who has reason to believe they may be arrested for a non-bailable offence; if it is granted, they are to be released on bail in the event of arrest. Courts generally weigh the nature and gravity of the accusation, the applicant's antecedents, the risk of flight, and whether the accusation appears intended to injure or humiliate. Conditions are commonly imposed, such as joining the investigation when required and not leaving India without permission.

As a general rule, an offence committed before 1 July 2024 is defined and punished under the Indian Penal Code, because a person cannot be convicted under a criminal law that was not in force when the act was done. On procedure, the BNSS provides that appeals, applications, trials, inquiries and investigations pending immediately before that date continue under the Code of Criminal Procedure, while proceedings begun afterwards generally follow the BNSS. The transition has raised questions that the courts are still resolving, so the position in a particular case should be checked against its own dates and stage.

The High Court has inherent power, now found in Section 528 of the BNSS, to quash an FIR or criminal proceedings to prevent abuse of the process of any court or otherwise to secure the ends of justice. The Supreme Court has described the kinds of cases where this is appropriate, for instance where the allegations, even if accepted as they stand, do not make out an offence, or where the proceedings are manifestly malicious. Disputes of a predominantly private or commercial character that the parties have genuinely settled may also be quashed even when the offence is not compoundable. The power is used sparingly, and not for serious offences that affect society at large.

Under Section 138 of the Negotiable Instruments Act, the cheque must have been presented within its period of validity, currently three months from its date. A written demand notice must be sent to the drawer within thirty days of receiving the bank's information that the cheque was returned unpaid. If the drawer does not pay within fifteen days of receiving the notice, a complaint may be filed before the magistrate within one month after those fifteen days end. The notice deadline is applied strictly, and a court may condone delay in filing the complaint only for sufficient cause, so keep the return memo, the notice and proof of its dispatch and delivery. The offence is compoundable, and during the trial the court may order the drawer to pay interim compensation of up to twenty per cent of the cheque amount.

A notice under Section 35 of the BNSS is issued where arrest is not considered necessary at that stage. If you comply with the notice and continue to comply, the law provides that you are not to be arrested for that offence unless the police officer, for reasons recorded in writing, forms the opinion that arrest has become necessary. Attend as directed, keep a copy of the notice, and take advice beforehand, particularly if the allegations are serious or the notice is unclear. Where there is a genuine apprehension of arrest, anticipatory bail can be considered.

Electronic records can be proved as evidence under the BSA. Where a copy is relied on rather than the original device, Section 63 of the BSA requires a certificate in the prescribed form, signed both by the person in charge of the device or system and by an expert. Questions of authenticity, completeness and the manner in which a record was obtained are frequently contested, so the original device and data should be preserved from the outset.