Criminal Law & Bail Matters Online in India

Overview

Criminal law in India governs acts or omissions that are considered offences against the state and society at large, as opposed to disputes between private individuals. Criminal offences are punishable by the state through imprisonment, fines, forfeiture of property, or in the most serious cases, the death penalty. The primary legislation governing criminal law in India has undergone a landmark transformation with the introduction of three new criminal laws that replaced the colonial-era codes. The Indian Penal Code, 1860 has been replaced by the Bharatiya Nyaya Sanhita, 2023 (BNS); the Code of Criminal Procedure, 1973 has been replaced by the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS); and the Indian Evidence Act, 1872 has been replaced by the Bharatiya Sakshya Adhiniyam, 2023 (BSA). These new laws came into force on 1st July 2024.

Criminal proceedings in India are broadly of two types. A cognizable offence is one where the police can arrest a person without a warrant and investigate the matter without prior permission from a magistrate. A non-cognizable offence is one where the police cannot arrest without a warrant and must obtain the permission of a magistrate before investigating. Cognizable offences are generally more serious in nature and include offences such as murder, rape, robbery, and dacoity.

Whether you are a victim of a crime seeking justice, or an accused person in need of a strong legal defence, or a person wrongfully accused seeking to clear your name, having an experienced criminal lawyer by your side from the very beginning is critical. A criminal lawyer can help you file an FIR, apply for anticipatory bail, secure regular bail, challenge illegal detention, represent you at every stage of the trial, and appeal against an adverse judgment.

Legaltax will connect you with a qualified and experienced criminal lawyer who will work tirelessly to protect your rights and achieve the best possible outcome in your case.

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Types of Criminal Offences in India

Criminal offences in India can be broadly classified as follows:

Based on Severity

• Cognizable Offences: Serious offences where the police have the authority to arrest without a warrant and investigate without prior magisterial permission. Examples include murder, rape, kidnapping, robbery, dacoity, and offences under special laws such as the NDPS Act and the POCSO Act.
• Non-Cognizable Offences: Less serious offences where the police cannot arrest without a warrant. A complaint must be filed before a magistrate who will then decide whether to take cognizance of the matter. Examples include assault, cheating, defamation, and public nuisance.

Based on Bail Eligibility

• Bailable Offences: Offences where the accused has a right to be released on bail as a matter of right. The police or the court must grant bail when demanded by the accused in bailable offences.
• Non-Bailable Offences: Offences where bail is not a matter of right but is at the discretion of the court. The accused must apply for bail and the court will decide whether to grant it based on the facts and circumstances of the case.

Common Types of Criminal Cases

• Offences Against the Person: Murder, culpable homicide, attempt to murder, grievous hurt, assault, kidnapping, abduction, and wrongful confinement.
• Sexual Offences: Rape, sexual assault, stalking, voyeurism, offences against children under the Protection of Children from Sexual Offences (POCSO) Act, 2012, and offences under the Prevention of Sexual Harassment (POSH) Act.
• Offences Against Property: Theft, robbery, dacoity, extortion, cheating, criminal breach of trust, mischief, and criminal trespass.
• Economic and Financial Offences: Fraud, forgery, counterfeiting, money laundering under the Prevention of Money Laundering Act (PMLA), offences under the Benami Transactions Act, and corporate fraud under the Companies Act.
• Cyber Crimes: Hacking, phishing, identity theft, cyber stalking, online fraud, circulation of obscene material, and offences under the Information Technology Act, 2000.
• Matrimonial Offences: Domestic violence under the Protection of Women from Domestic Violence Act, 2005, cruelty by husband or relatives under Section 498A of the BNS, bigamy, and dowry harassment.
• Offences Against the State: Sedition, terrorism, waging war against the government, and offences under special laws such as the Unlawful Activities Prevention Act (UAPA) and the National Security Act (NSA).
• Drug Offences: Possession, trafficking, manufacture, and sale of narcotic drugs and psychotropic substances under the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985.
• Traffic and Motor Vehicle Offences: Rash and negligent driving, driving under the influence of alcohol or drugs, causing death by negligence, and hit-and-run cases.
• Defamation: Making or publishing false statements of fact that damage the reputation of another person, which is both a civil wrong and a criminal offence under the BNS.

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Filing an FIR — First Information Report

The First Information Report (FIR) is the first step in the criminal justice process for cognizable offences. It is a written document prepared by the police based on information given by the victim or any other person about the commission of a cognizable offence.

Who Can File an FIR?

Any person who has knowledge of a cognizable offence, whether as a victim, a witness, or any other person, can file an FIR at the police station having jurisdiction over the area where the offence was committed. If the police refuse to register the FIR, the person can approach the Superintendent of Police, or file a complaint before the Magistrate who can direct the police to register the FIR.

How to File an FIR?

1. Visit the police station having jurisdiction over the area where the offence took place.
2. Narrate the facts of the offence clearly and accurately to the duty officer.
3. The police will reduce your statement into writing and prepare the FIR.
4. Read the FIR carefully before signing it to ensure all facts are correctly recorded.
5. Obtain a free copy of the FIR, which is your legal right under the BNSS.
6. Note the FIR number for future reference.

Zero FIR

A Zero FIR is an FIR that can be registered at any police station regardless of the jurisdiction where the offence was committed. This is particularly useful in emergencies where approaching the police station having actual jurisdiction may cause delay. After registering a Zero FIR, the police station must transfer it to the police station having actual jurisdiction over the offence.

E-FIR

Many states in India now allow victims to file an FIR online through the state police's website or mobile application. This facility, known as E-FIR, is particularly useful for victims who are unable to visit the police station in person, especially in cases of theft, cheating, or other offences where physical evidence at the scene is not immediately required.

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Understanding Bail in India

Bail is the temporary release of an accused person from custody, subject to certain conditions, while the criminal case against them is pending before the court. Bail is a fundamental right that protects a person from unnecessary detention before they are proven guilty of a crime. The law recognizes the principle that every person is presumed innocent until proven guilty, and bail is a mechanism to give effect to this presumption.

Types of Bail in India

• Regular Bail: Bail granted by a court to an accused person who has already been arrested and is in police or judicial custody. An application for regular bail is filed before the court having jurisdiction over the case under Section 480 of the BNSS (formerly Section 437 and 439 of the CrPC).
• Anticipatory Bail: Bail granted by a Sessions Court or High Court to a person who apprehends arrest in connection with a non-bailable offence. Anticipatory bail is applied for before the person is actually arrested and, if granted, protects the person from arrest in relation to the specific offence mentioned in the application. It is governed by Section 484 of the BNSS (formerly Section 438 of the CrPC).
• Interim Bail: Temporary bail granted by a court for a short and fixed period, usually pending the hearing and disposal of a regular bail or anticipatory bail application. Interim bail provides immediate relief to the accused while the main bail application is being decided.
• Default Bail: Also known as statutory bail, default bail is granted when the investigating agency fails to file the chargesheet within the prescribed time limit after arrest. Under the BNSS, the chargesheet must be filed within 60 days for offences punishable with imprisonment up to 10 years, and within 90 days for offences punishable with death, life imprisonment, or imprisonment for 10 years or more. If the chargesheet is not filed within this period, the accused has an indefeasible right to bail.
• Bail on Personal Bond: In certain cases, particularly for first-time offenders or minor offences, the court may release the accused on a personal bond without requiring any surety. This means the accused signs an undertaking to appear before the court on the specified dates and is released without any monetary security.

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Factors Considered by the Court While Granting Bail

While deciding a bail application, the court takes into account several factors to balance the rights of the accused with the interests of society and the administration of justice. These factors include:

• The nature and gravity of the offence alleged.
• The severity of the punishment if convicted.
• The character, antecedents, and criminal history of the accused.
• The likelihood of the accused fleeing from justice or absconding if released on bail.
• The likelihood of the accused tampering with evidence or influencing witnesses if released.
• The health, age, and sex of the accused.
• The strength of the evidence against the accused at the stage of the bail hearing.
• The period of time the accused has already spent in custody.
• Whether the accused is a first-time offender or has previous convictions.
• The impact of the release of the accused on the safety of the victim and the community.

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Steps Involved in Applying for Bail

1. Consultation with a Criminal Lawyer: The first step after arrest is to immediately contact an experienced criminal lawyer. The lawyer will assess the facts of the case, identify the appropriate type of bail, and advise on the best strategy for securing bail.
2. Drafting the Bail Application: The lawyer will draft a comprehensive bail application setting out the facts of the case, the legal grounds for bail, and the reasons why the accused poses no flight risk or threat to witnesses or society.
3. Filing the Bail Application: The bail application is filed before the appropriate court. For bailable offences, bail can be applied for before the police or the Magistrate. For non-bailable offences, the application is filed before the Magistrate or Sessions Court. Anticipatory bail applications are filed before the Sessions Court or the High Court.
4. Notice to the Prosecution: The court will typically issue notice to the prosecution (public prosecutor) and in certain cases to the investigating officer, to file their reply to the bail application.
5. Hearing of the Bail Application: Both the accused's lawyer and the public prosecutor make arguments before the court. The lawyer for the accused will highlight the grounds in favour of bail while the prosecutor will present the case for keeping the accused in custody.
6. Court's Decision: After hearing both sides, the court will pass an order either granting or rejecting the bail application. If bail is granted, the court will specify the conditions of bail such as the bail amount, surety requirements, reporting obligations, travel restrictions, and any other conditions the court deems appropriate.
7. Compliance with Bail Conditions: After bail is granted, the accused must strictly comply with all bail conditions. Violation of bail conditions can result in the bail being cancelled and the accused being taken back into custody.
8. Appeal Against Rejection of Bail: If the bail application is rejected by a lower court, the accused can appeal to a higher court. If the Magistrate rejects bail, the accused can apply to the Sessions Court. If the Sessions Court rejects bail, the accused can apply to the High Court. If the High Court rejects bail, the accused can approach the Supreme Court of India.

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Criminal Trial Process in India

A criminal trial in India follows a structured process governed by the Bharatiya Nagarik Suraksha Sanhita, 2023. The key stages of a criminal trial are as follows:

• Registration of FIR and Investigation: The process begins with the registration of an FIR followed by a police investigation. The police collect evidence, examine witnesses, conduct searches, and prepare a chargesheet (also called a police report) to be filed before the court.
• Filing of Chargesheet: After completing the investigation, the police file a chargesheet before the Magistrate. The chargesheet sets out the name of the accused, the offence alleged, the evidence collected, and the names of witnesses.
• Cognizance and Committal: The Magistrate takes cognizance of the offence based on the chargesheet and issues process (summons or warrant) against the accused. In serious cases, the Magistrate may commit the case to the Sessions Court for trial.
• Framing of Charges: The court frames charges against the accused based on the material placed before it. The charges are read out to the accused and they are asked to plead guilty or not guilty. If the accused pleads not guilty, the trial proceeds.
• Prosecution Evidence: The prosecution presents its evidence, examines its witnesses, and produces documents in support of the charges. The defence lawyer cross-examines the prosecution witnesses to challenge their testimony.
• Statement of the Accused: After the prosecution evidence is complete, the court records a statement of the accused under Section 351 of the BNSS to give the accused an opportunity to explain the incriminating circumstances appearing against them.
• Defence Evidence: The accused has the right to present their own evidence and witnesses in defence. The prosecution can cross-examine the defence witnesses.
• Final Arguments: Both the prosecution and the defence make their final arguments before the court, summarizing the evidence and the legal submissions in support of their respective positions.
• Judgment: After hearing the final arguments, the court delivers its judgment. If the accused is acquitted, they are immediately released. If convicted, the court proceeds to the sentencing stage.
• Sentencing: After conviction, the court hears arguments on the appropriate sentence and passes a sentence of imprisonment, fine, or both as provided under the law.
• Appeal: A convicted accused can appeal against the conviction and sentence to a higher court. Similarly, the state or a private complainant can appeal against an acquittal. Appeals against Magistrate Court judgments lie before the Sessions Court. Appeals against Sessions Court judgments lie before the High Court. Appeals against High Court judgments lie before the Supreme Court of India.

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Rights of an Accused Person in India

Every accused person in India has certain fundamental rights guaranteed by the Constitution of India and the criminal law that must be respected at all times by the police, the prosecution, and the court. These rights include:

• Right to Know the Grounds of Arrest: Every arrested person has the right to be informed of the grounds of their arrest at the time of arrest.
• Right to Legal Representation: Every accused person has the right to consult and be defended by a lawyer of their choice. If they cannot afford a lawyer, the state is obligated to provide free legal aid through the Legal Services Authority.
• Right Against Self-Incrimination: No person can be compelled to be a witness against themselves. The accused cannot be forced to give a confession or make any statement that incriminates them.
• Right to a Fair Trial: Every accused person has the right to a fair and impartial trial before a competent court, with full opportunity to present their defence and cross-examine prosecution witnesses.
• Right to be Produced Before a Magistrate: Every arrested person must be produced before the nearest Magistrate within 24 hours of arrest, excluding the time taken to travel from the place of arrest to the court.
• Right Against Double Jeopardy: No person can be prosecuted and punished for the same offence more than once.
• Right to Bail: Every person accused of a bailable offence has the right to be released on bail. In non-bailable offences, the accused has the right to apply for bail and have the application heard and decided by a court.
• Right to a Speedy Trial: Every accused person has the right to have their trial concluded without undue delay. Prolonged pre-trial detention without a speedy trial has been held by the Supreme Court of India to be a violation of the right to life and personal liberty.

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Where to File a Criminal Complaint?

For Cognizable Offences

A complaint or FIR for a cognizable offence must be filed at the police station having territorial jurisdiction over the area where the offence was committed. The police will register the FIR, investigate the matter, and file a chargesheet before the appropriate Magistrate's Court.

For Non-Cognizable Offences

For non-cognizable offences, a complaint must be filed directly before the Judicial Magistrate having jurisdiction over the area where the offence was committed. The Magistrate will examine the complaint and decide whether to take cognizance of the matter and issue process against the accused.

Jurisdiction of Courts

• Minor offences punishable with imprisonment up to 3 years are tried by Judicial Magistrates of First Class (JMFC).
• Serious offences punishable with imprisonment of more than 7 years, including those punishable with death or life imprisonment, are tried by the Sessions Court.
• Special courts have been established for specific categories of offences such as POCSO cases, NDPS cases, cases under the PMLA, and economic offences.

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Required Documents for Criminal Matters

• Copy of the FIR or complaint registered with the police or court
• Copy of the chargesheet filed by the police (if available)
• All documentary evidence relevant to the offence such as contracts, invoices, photographs, medical reports, or forensic reports
• Electronic evidence such as call records, messages, emails, CCTV footage, or social media records (where applicable)
• Medical examination report in cases of physical assault, rape, or hurt
• Witness statements and contact details of witnesses
• Identity proof and address proof of the complainant or accused
• Bail order or remand order (in bail matters)
• Previous criminal record of the accused (if applicable)
• Any prior court orders or judgments in related matters
• Surety documents and property documents (for bail purposes)

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How to Handle a Criminal or Bail Matter with Legaltax?

At Legaltax, we understand that criminal matters are deeply personal, urgent, and often life-changing. Our team of experienced criminal lawyers is available to assist you at every stage of a criminal matter, from filing an FIR to securing bail, from defending you at trial to filing an appeal against an unjust conviction. Time is critical in criminal matters, and we are committed to providing you with swift, effective, and compassionate legal assistance. Just follow our 3 simple steps:

1. Fill our simple form and receive a call back from our team of experienced criminal lawyers at the earliest.
2. Provide us with all necessary details and documents related to your criminal matter.
3. Our team of legal experts will assess your situation, advise you on the best course of action, and handle the entire legal process on your behalf.

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Why Choose Legaltax?

• Free Legal Advice
• Expert and Verified Criminal Lawyers
• Lowest Fee
• Quick and Transparent Process
• Dedicated Case Manager
• 100% Confidentiality
• Pan-India Legal Network
• 24/7 Availability for Urgent Bail Matters

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Payment Structure

1. You are required to pay 50% of the case fee to start the work.
2. 25% is payable after the bail application is filed or the chargesheet is responded to.
3. Remaining 25% is to be paid before the final hearing of the case.

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FAQ's on Criminal Law and Bail Matters in India

Q1. What is the difference between a bailable and a non-bailable offence?

In a bailable offence, the accused has a right to be released on bail as a matter of right. The police officer or the court must grant bail when the accused demands it in a bailable offence. In a non-bailable offence, bail is not a matter of right but is at the discretion of the court. The accused must apply to the court for bail and the court will decide whether to grant it based on the nature of the offence, the evidence available, and the personal circumstances of the accused. Serious offences such as murder, rape, dacoity, and robbery are non-bailable offences.

Q2. What is anticipatory bail and when should I apply for it?

Anticipatory bail is a bail granted by a Sessions Court or High Court to a person who has a reasonable apprehension of being arrested in connection with a non-bailable offence. It is applied for before the person is actually arrested. If anticipatory bail is granted, the person cannot be arrested for the offence mentioned in the application, or if arrested, they must be released on bail immediately. You should apply for anticipatory bail as soon as you have reason to believe that you may be arrested, for example if you have received a notice from the police or if a complaint has been registered against you.

Q3. Can bail be cancelled after it has been granted?

Yes, bail can be cancelled by the court that granted it or by a higher court if there is sufficient reason to do so. Common grounds for cancellation of bail include violation of bail conditions by the accused, the accused tampering with evidence or threatening witnesses after being released on bail, the accused committing another offence while on bail, or new evidence coming to light that suggests the accused poses a serious risk to society or may abscond. The prosecution or the investigating agency can file an application before the court seeking cancellation of bail on these or other relevant grounds.

Q4. What is the difference between an FIR and a complaint?

An FIR (First Information Report) is a document recorded by the police based on information received about the commission of a cognizable offence. It sets the criminal law in motion and gives the police the authority to investigate and arrest without a warrant. A complaint, on the other hand, is a written or oral allegation made before a Magistrate about the commission of an offence, whether cognizable or non-cognizable. The Magistrate examines the complaint and decides whether to take cognizance of the matter. For non-cognizable offences, the proper remedy is a complaint before a Magistrate rather than an FIR at the police station.

Q5. What should I do if the police refuse to register my FIR?

If the police refuse to register your FIR, you have several legal remedies available. You can send a written complaint to the Superintendent of Police of the district, who is obligated to look into the matter and direct registration of the FIR if the complaint discloses a cognizable offence. Alternatively, you can file a complaint directly before the Judicial Magistrate having jurisdiction, who can direct the police to register the FIR and investigate the matter. You can also file a complaint before the State Human Rights Commission or the National Human Rights Commission if the refusal constitutes a violation of your rights. It is advisable to consult a criminal lawyer immediately if the police refuse to register your FIR.

Q6. What is a chargesheet and when is it filed?

A chargesheet, also called a police report or final report, is a formal document filed by the police before the Magistrate after completing the investigation of a cognizable offence. It contains the name and particulars of the accused, the offence alleged, the evidence collected during the investigation, and the names of witnesses. Under the BNSS, the chargesheet must be filed within 60 days of arrest for offences punishable with imprisonment up to 10 years, and within 90 days for offences punishable with death, life imprisonment, or imprisonment for 10 years or more. If the chargesheet is not filed within this period, the accused is entitled to default bail.

Q7. Can a criminal case be settled or compounded out of court?

Certain categories of criminal offences are compoundable, meaning they can be settled between the parties outside of court. Compoundable offences are listed in the BNSS and generally include less serious offences where the primary harm is to the victim rather than to society as a whole. Some compoundable offences can be settled with the permission of the court. However, serious offences such as murder, rape, and dacoity are non-compoundable and cannot be settled between the parties. Even in non-compoundable cases, the Supreme Court of India has in certain exceptional circumstances allowed settlement as a ground for quashing FIRs or criminal proceedings under the inherent powers of the High Court.

Q8. What is the right to free legal aid in criminal matters?

Every person accused of a criminal offence who cannot afford to engage a lawyer has the constitutional right to free legal aid provided by the state. This right is guaranteed under Article 39A of the Constitution of India and is given effect through the Legal Services Authorities Act, 1987. The National Legal Services Authority (NALSA) and the State Legal Services Authorities (SLSAs) provide free legal aid to economically weaker sections, women, children, persons with disabilities, and other vulnerable groups. If you cannot afford a lawyer, you can approach the Legal Services Authority of your district or state to seek free legal representation.

Q9. What is the procedure for quashing an FIR?

Quashing of an FIR means the court setting aside the FIR and the criminal proceedings initiated based on it. A petition for quashing an FIR can be filed before the High Court under Section 528 of the BNSS (formerly Section 482 of the CrPC) invoking the inherent powers of the High Court. The High Court can quash an FIR if it finds that the FIR does not disclose any cognizable offence, the allegations are manifestly absurd or inherently improbable, the FIR has been filed with mala fide intent to harass the accused, or if the parties to a compoundable offence have settled their dispute. Quashing of FIR in serious offences is rarely granted by courts.

Q10. What is Section 498A and how does it affect bail?

Section 498A of the old Indian Penal Code (now the corresponding provision under the Bharatiya Nyaya Sanhita, 2023) deals with cruelty by a husband or his relatives towards a married woman, including physical and mental cruelty and harassment for dowry. It is a cognizable and non-bailable offence. Cases under Section 498A are often used in matrimonial disputes, and the Supreme Court of India has issued guidelines to prevent its misuse. In cases under Section 498A, bail applications are decided by the court based on the facts and circumstances, and the accused can apply for anticipatory bail if they apprehend arrest. The Supreme Court has also emphasized that arrest should not be made mechanically in such cases without proper investigation.

Q11. What happens if an accused person jumps bail or violates bail conditions?

If an accused person fails to appear before the court on a date fixed during the trial while on bail, the court can issue a non-bailable warrant for their arrest, forfeit the bail amount, and initiate proceedings against the surety. The bail is liable to be cancelled and the accused can be taken back into custody. In addition, absconding from justice is itself an offence under the BNS. Courts take a very serious view of persons who jump bail, and it becomes significantly harder to secure bail again in the same matter after the original bail has been forfeited or cancelled due to violation of conditions.

Q12. What is custody and how long can a person be kept in police custody?

When a person is arrested, they are initially in police custody, which means they are held at the police station under the supervision of the investigating officer. Under the BNSS, a person cannot be kept in police custody for more than 24 hours without being produced before a Magistrate. The Magistrate can authorize further custody, either police custody or judicial custody (in jail), in the interest of the investigation. Police custody can be authorized by the Magistrate for a maximum period of 15 days in total, while judicial custody can be extended up to 60 or 90 days depending on the nature of the offence, after which the accused is entitled to default bail if the chargesheet has not been filed.

Q13. What is the role of a criminal lawyer in bail and trial matters?

A criminal lawyer plays an indispensable role at every stage of a criminal matter. In bail matters, the lawyer drafts and files the bail application, argues persuasively before the court for the release of the accused, and ensures compliance with bail conditions. During the investigation stage, the lawyer advises the accused on their rights, ensures that the police do not engage in illegal detention or coercive interrogation, and assists in the collection and preservation of evidence favourable to the accused. During the trial, the lawyer cross-examines prosecution witnesses, challenges inadmissible evidence, presents the defence case, and makes legal submissions to secure an acquittal or the lightest possible sentence. After conviction, the lawyer files an appeal to challenge the judgment before a higher court.

Q14. How can Legaltax help me in criminal law and bail matters?

Legaltax provides comprehensive legal assistance in all criminal matters across India. Our experienced criminal lawyers can help you file an FIR, apply for anticipatory bail before arrest, secure regular bail after arrest, challenge illegal detention, represent you at every stage of the criminal trial, file applications for quashing of FIR before the High Court, and appeal against unjust convictions before higher courts. We understand the urgency of criminal matters and our lawyers are available at short notice for emergency bail hearings. With a dedicated case manager assigned to your matter and complete confidentiality guaranteed, Legaltax ensures that your rights are protected and your case receives the best possible legal representation.