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Process at a Glance
How the Criminal Trial Process Moves
1
FIR / Complaint — First Step
→
2
Police Investigation & Chargesheet
→
3
Bail Application
→
4
Committal and Framing of Charges
→
5
Trial — Evidence and Arguments
→
6
Judgment, Sentence & Appeal
Overview
Criminal Trials & Bail — Framework
Criminal law in India has been comprehensively revised with the Bharatiya Nyaya Sanhita, 2023 (BNS — replacing IPC 1860), the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS — replacing CrPC 1973), and the Bharatiya Sakshya Adhiniyam, 2023 (BSA — replacing Indian Evidence Act 1872), all in force from 1 July 2024. Criminal proceedings begin with an FIR (S.173 BNSS) or complaint (S.223 BNSS). Bail is classified as: (1) Regular bail — after arrest, under BNSS S.480–483; (2) Anticipatory bail — before arrest, under BNSS S.482; (3) Default bail — indefeasible right when chargesheet is not filed within 60 or 90 days (BNSS S.187(3)); (4) Interim bail — short-term pending hearing. The Supreme Court in Arnesh Kumar v. State of Bihar (2014) issued binding guidelines restricting automatic arrest in offences punishable up to 7 years. Trial hierarchy: Magistrate Court → Sessions Court → High Court → Supreme Court. Pending cases (offences before 1 July 2024) continue under IPC/CrPC. In simple terms: when a person is accused of a crime, an FIR is registered at the police station, the police investigate and file a chargesheet, and the trial then takes place in court. While proceedings are ongoing, the accused may apply for bail — regular bail (after arrest), anticipatory bail (before arrest, where arrest is apprehended), default bail (where the chargesheet is not filed in time), or interim bail (short-term). All new FIRs registered from 1 July 2024 cite BNS section numbers.
Key Takeaways
- Bail is the rule, not the exception — the Supreme Court in Satender Kumar Antil v. CBI (2022 & 2026 INSC 115) has repeatedly reaffirmed that Article 21 personal liberty favours release; courts must not use bail conditions as a substitute for refusal.
- Written grounds of arrest mandatory (BNSS S.47) — under Mihir Rajesh Shah v. State of Maharashtra (2025 INSC 1288), every arrestee must receive grounds of arrest in writing, in a language they understand, at least two hours before production before a Magistrate; failure renders the arrest illegal.
- Section 480(3) BNSS conditions restricted — the Supreme Court in Narayan v. State of M.P. (SLP Crl. 7011/2026, decided 22 April 2026) held that the stringent conditions under S.480(3) BNSS do not apply to offences punishable with imprisonment up to seven years; courts cannot impose them routinely.
- Default bail is an indefeasible right — under BNSS S.187(3), if the chargesheet is not filed within 60/90 days as applicable, the accused acquires a statutory right to bail; courts cannot deny it absent compliance by the prosecution within time.
- Anticipatory bail can be indefinite — the Constitution Bench in Sushila Aggarwal v. State (NCT of Delhi) (2020) settled that anticipatory bail need not be limited to the chargesheet stage and can continue till conclusion of trial unless specially curtailed.
- Section 35 BNSS — notice before arrest mandatory — for offences punishable up to seven years, a Section 35(3) BNSS notice (earlier S.41-A CrPC) is the rule; direct arrest without notice requires recorded satisfaction of specific grounds under S.35(1)(b).
Types of Bail
Types of Bail Under BNSS 2023
Regular Bail — BNSS S.480 & S.483
After Arrest
Bailable offences — bail as of right
Non-bailable — court discretion (nature, flight risk, tampering)
Refused by Magistrate → Sessions Court
Refused by Sessions → High Court
Half-sentence in custody → entitled to bail (BNSS S.187(3))
Anticipatory Bail — BNSS S.482
Before Arrest
Apprehension of arrest in non-bailable offence
Application to Sessions Court or High Court
Sushila Aggarwal (2020): Can be indefinite — no fixed end date
Conditions: surrender passport, cooperate with investigation
No need to surrender to custody after chargesheet is filed
Default Bail — BNSS S.187(3)
Indefeasible Statutory Right
Chargesheet not filed in 60 days (up to 10-year offences)
Chargesheet not filed in 90 days (death / life / 10+ years)
Accused must apply — court must grant on appropriate bond
Right lost if chargesheet filed before application
Rakesh Kumar Paul (2017): Fundamental right once period expires
Interim Bail & Medical Bail
Short-Term Protection
Granted pending hearing of regular or anticipatory bail
Medical bail: for ill or injured accused — treatment purpose
Any court can grant interim bail
Typically 1–4 weeks while main application is listed
Condition: return to custody after treatment if medical bail
Old Law vs New
IPC / CrPC vs BNS / BNSS — Key Changes
| Aspect | Old Law (IPC / CrPC 1973) | New Law (BNS / BNSS 2023) |
|---|---|---|
| Governing Code | IPC 1860 + CrPC 1973 + Evidence Act 1872 | BNS 2023 + BNSS 2023 + BSA 2023 — in force from 1 July 2024 |
| Default bail provision | Section 167(2) CrPC — 60/90 days | Section 187(3) BNSS — same 60/90-day timelines; first-time offenders may also get bail after serving 1/3rd sentence (S.479 BNSS) |
| Anticipatory bail | Section 438 CrPC | Section 482 BNSS — Sushila Aggarwal (2020): no fixed end date, can be indefinite |
| Organised crime / terrorism | UAPA / MCOCA used — no IPC equivalent | BNS S.111-112: Organised crime. BNS S.113: Terrorist act — partially transferred from UAPA |
| Trial timeline | No mandatory deadline — trials ran for years | BNSS S.346: Judgment within 45 days of completion of arguments |
| Electronic evidence | Limited recognition under IT Act amendments | BSA 2023 — electronic records fully recognised; e-FIR; digital documents; video recording of evidence |
| FIR filing | Section 154 CrPC — at local police station | Section 173 BNSS — e-FIR, Zero FIR codified; complaint to SP if police refuse registration |
| Sedition | Section 124A IPC — Sedition | Section 152 BNS — Acts against national integrity (modified scope) |
Procedure
Criminal Trial Procedure — Step by Step
1
FIR / Complaint — First Step
Criminal proceedings begin with: FIR (First Information Report) at the police station under BNSS S.173 — for cognisable offences; or Complaint under BNSS S.223 before a Magistrate — for non-cognisable offences or where police refuse to register FIR. If police refuse FIR — complaint to SP under BNSS S.173(4), or application to Magistrate under BNSS S.175(3) directing police to register. Zero FIR: can be filed at any police station regardless of jurisdiction — codified under BNSS.
2
Police Investigation & Chargesheet
Police investigate — examine witnesses, collect evidence, make arrests. Must file chargesheet within 60 or 90 days (depending on offence severity) — failure gives the accused an indefeasible default bail right. Chargesheet (BNSS S.193) filed before the Magistrate. Magistrate takes cognisance. If accused not arrested — police may file chargesheet against absconding accused (proclaimed offender). Under BNSS, video recording of crime scene, search, and arrest is mandated.
3
Bail Application
File bail application at the earliest — before the arresting court for regular bail, or Sessions Court or HC for anticipatory bail. Attach: FIR copy, chargesheet (if filed), affidavit, grounds for bail, sureties' details. For non-bailable offences — court hears both sides. Triple test: flight risk, tampering with evidence, likelihood of repeat offence. If Magistrate rejects — Sessions Court. If Sessions rejects — High Court. If HC rejects — SLP before Supreme Court.
4
Committal and Framing of Charges
For Sessions-triable offences — Magistrate commits the case to Sessions Court after taking cognisance of the chargesheet. Sessions Court frames charges — reads the accusation to the accused, who pleads guilty or claims trial. If accused pleads guilty — court may convict without full trial. If not guilty — trial begins. Charges must be specific and clear — vague or defective charges can be challenged through application for discharge or revision before the HC.
5
Trial — Evidence and Arguments
Prosecution leads evidence first — examination in chief, cross-examination, re-examination. Under BSA 2023, electronic records (CCTV footage, call detail records, digital messages) are fully recognised as documents and admissible. Defence leads evidence — accused has the right to remain silent and cannot be compelled to testify against themselves (Article 20(3) Constitution). After evidence — both sides make final arguments. Under BNSS S.346 — judgment must be pronounced within 45 days of completion of arguments.
6
Judgment, Sentence & Appeal
Court pronounces judgment — conviction or acquittal. If convicted — separate hearing on sentence. Appeals: against Magistrate's order → Sessions Court; against Sessions order → High Court; against HC order → Supreme Court by SLP. Revision petitions available against interlocutory orders. Time limits for filing appeals are strict under BNSS — must be adhered to. Limitation Act applies to criminal appeals in certain situations. Victim has the right to be heard in appeal proceedings under BNSS.
Important Note
From 1 July 2024, all FIRs and criminal proceedings are governed by the Bharatiya Nyaya Sanhita, 2023 (BNS), Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), and Bharatiya Sakshya Adhiniyam, 2023 (BSA) — replacing the IPC, CrPC, and Indian Evidence Act respectively. Bail provisions are now under BNSS Sections 478–483 (corresponding to old CrPC Sections 436–439). Cases registered before 1 July 2024 continue under the old law; cases registered on or after that date follow the BNSS. When citing judgments delivered under the CrPC, confirm that the underlying principle (e.g., bail being the rule) still applies under the corresponding BNSS provision.
Documents
Documents Required
For Bail Application
Copy of FIR
Chargesheet / remand orders (if available)
Accused's Aadhaar / ID proof
Affidavit stating grounds for bail
Surety's identity and property documents
Passport-size photographs — accused and sureties
Income proof — for setting bail bond amount
Medical certificate — if medical bail sought
For Trial Defence
All chargesheet documents and witness statements
Electronic evidence — call records, CCTV, messages (BSA 2023)
Alibi documents and defence evidence
Witness statements in support of defence
Key Points
Key Points — Criminal Trials & Bail
Key Points — BNS / BNSS 2023
Default bail — chargesheet deadline (up to 10-year offences)60 days from arrest
Default bail — chargesheet deadline (10+ years / life / death)90 days from arrest
Judgment deadline after arguments (BNSS S.346)45 days
Appeal — against Sessions acquittalHC — within 90 days
Arnesh Kumar guidelines — arrest in 7-year offencesPolice must apply mind — not automatic
Anticipatory bail durationIndefinite — no fixed end date (Sushila Aggarwal 2020)
BNS / BNSS / BSA in force from1 July 2024
Right to free legal aidArticle 39A Constitution — BNSS S.341
Pending cases (pre 1 July 2024)Continue under old IPC / CrPC
Applicable Laws
Relevant Statutes
Relevant Section — S.483 (Bharatiya Nagarik Suraksha Sanhita, 2023) +
Section 483 — Special powers of High Court or Court of Session regarding bail.
(1) A High Court or Court of Session may direct,—
(a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-section (3) of section 480, may impose any condition which it considers necessary for the purposes mentioned in that sub-section;
(b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified:
Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice:
Provided further that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence triable under section 65 or sub-section (2) of section 70 of the Bharatiya Nyaya Sanhita, 2023, give notice of the application for bail to the Public Prosecutor within a period of fifteen days from the date of receipt of the notice of such application.
(2) The presence of the informant or any person authorised by him shall be obligatory at the time of hearing of the application for bail to the person under section 65 or sub-section (2) of section 70 of the Bharatiya Nyaya Sanhita, 2023.
(3) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody. Source: Section 483, Bharatiya Nagarik Suraksha Sanhita, 2023 (corresponds to Section 439 CrPC, 1973) — India Code (indiacode.nic.in).
(1) A High Court or Court of Session may direct,—
(a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-section (3) of section 480, may impose any condition which it considers necessary for the purposes mentioned in that sub-section;
(b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified:
Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice:
Provided further that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence triable under section 65 or sub-section (2) of section 70 of the Bharatiya Nyaya Sanhita, 2023, give notice of the application for bail to the Public Prosecutor within a period of fifteen days from the date of receipt of the notice of such application.
(2) The presence of the informant or any person authorised by him shall be obligatory at the time of hearing of the application for bail to the person under section 65 or sub-section (2) of section 70 of the Bharatiya Nyaya Sanhita, 2023.
(3) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody. Source: Section 483, Bharatiya Nagarik Suraksha Sanhita, 2023 (corresponds to Section 439 CrPC, 1973) — India Code (indiacode.nic.in).
Bharatiya Nyaya Sanhita, 2023 (BNS) — replaces IPC 1860
In force from 1 July 2024. 358 sections. Key new provisions: S.111-112 Organised Crime (new), S.113 Terrorist Act (partially transferred from UAPA), S.69 promise of marriage or employment offence, S.304 Hit-and-Run, community service as sentence. Sedition (IPC S.124A) replaced by S.152 BNS (acts endangering national integrity — modified scope). Most IPC offences continue with new section numbers — advocates must note IPC-to-BNS mapping for all new FIRs.
View BNS on legislative.gov.in →
Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) — replaces CrPC 1973
In force from 1 July 2024. Key provisions: S.173 FIR (replaced S.154 CrPC); S.187(3) default bail (replaced S.167(2) CrPC); S.482 anticipatory bail (replaced S.438 CrPC); S.346 judgment within 45 days of arguments; e-FIR; video recording of crime scene and search; victim's right to be heard in appeal; Zero FIR codified; BNSS S.341 free legal aid; BNSS S.187 mandatory medical examination of rape accused; first-time offender bail after serving 1/3rd sentence.
View BNSS on legislative.gov.in →
Bharatiya Sakshya Adhiniyam, 2023 (BSA) — replaces Evidence Act 1872
In force from 1 July 2024. Electronic records now"documents" — admissible without special certificate in most cases (S.57-58 BSA). e-FIR, video statements, digital documents, CDR (Call Detail Records), CCTV footage all admitted as electronic records. Confession to police officer still inadmissible — fundamental protection retained. Presumptions updated. Secondary evidence rules relaxed for electronic records. Joint trial provisions revised.
View BSA on legislative.gov.in →
Prevention of Money Laundering Act, 2002 (PMLA)
Bail in PMLA cases is extremely difficult — S.45 PMLA twin conditions: court must be satisfied that accused is not guilty and will not commit offence while on bail — both conditions must be met simultaneously. Enforcement Directorate (ED) arrests are made under PMLA. SC in Vijay Madanlal Choudhary (2022) upheld S.45 twin conditions. Tried before Special PMLA Courts. Accused has limited rights compared to regular criminal cases — chargesheet called"complaint" filed by ED.
Vijay Madanlal Choudhary v. Union of India (2022) on Indian Kanoon →
Unlawful Activities (Prevention) Act, 1967 (UAPA)
Anti-terrorism legislation — bail almost impossible. S.43D(5) UAPA: bail not to be granted if chargesheet discloses a prima facie case — court cannot re-appreciate evidence at bail stage. SC in NIA v. Zahoor Ahmad Shah Watali (2019) held chargesheet evidence must be accepted at face value at bail stage. Investigated by NIA (National Investigation Agency). BNSS S.187: 90-day chargesheet deadline applies but extension with court permission is possible under UAPA.
NIA v. Zahoor Ahmad Shah Watali (2019) on Indian Kanoon →
Protection of Children from Sexual Offences Act, 2012 (POCSO)
Special law for offences against children under 18. POCSO Court (Special Court) has exclusive jurisdiction. Bail: stringent — public prosecutor must be heard before bail is granted to the accused. Accused bears reverse burden of proof in certain offences. Mandatory reporting of offences. Trial must be completed within 1 year. Victim's identity cannot be disclosed. Strict media reporting restrictions. POCSO cases in Delhi are tried before Special Courts designated under the Act.
View POCSO on legislative.gov.in →
Judgments
Landmark Judgments
1
Recent — BNSS S.35 Notice Mandatory (2026)
Satender Kumar Antil v. Central Bureau of Investigation
Supreme Court of India | 2026 INSC 115 | Justice M.M. Sundresh & Justice Nongmeikapam Kotiswar Singh | Decided: 15.01.2026
In a critical follow-up to the 2022 landmark, the Court held that S.35(3) BNSS notice (equivalent to old S.41-A CrPC) is mandatory for all offences punishable up to seven years imprisonment — arrest without such notice requires specific recorded satisfaction under S.35(1)(b)(i) & (ii). Reaffirmed that arrest must remain the exception, not the rule, for lesser offences. Failure to issue notice renders the arrest itself legally infirm and entitles the accused to raise illegality of arrest as a ground for bail.
View on Indian Kanoon →
2
Recent — Written Grounds of Arrest Mandatory Art.22(1) (2025)
Mihir Rajesh Shah v. State of Maharashtra & Anr.
Supreme Court of India | 2025 INSC 1288 | CJI B.R. Gavai & J. Augustine George Masih | Decided: 06.11.2025
Every arrested person must be furnished the grounds of arrest in writing, in a language they understand — this is a constitutional mandate flowing from Article 22(1) and Article 21. Mere oral communication is insufficient. The obligation applies to all offences, whether under general law (BNS/IPC) or special statutes (UAPA, PMLA, NDPS). Non-compliance renders the arrest and subsequent custody unconstitutional. Written grounds must be provided at least two hours before production before the Magistrate so that the arrestee can meaningfully instruct counsel and oppose remand. Exception: in flagrant offences requiring immediate arrest, oral communication at arrest is permissible if written grounds follow within a reasonable time thereafter.
View on Indian Kanoon →
3
Recent — 2024 | Prolonged Incarceration
Manish Sisodia v. Directorate of Enforcement
Supreme Court of India | 2024 INSC 595 | Decided: 09.08.2024 | Justice B.R. Gavai & Justice K.V. Viswanathan
Prolonged incarceration before conviction, with the trial not progressing, violates the right to a speedy trial under Article 21 and cannot be justified merely by the gravity of the alleged offence (here under the PMLA and the connected CBI case). Bail remains the rule and refusal the exception even in economic offences; the right to liberty cannot be defeated by keeping an undertrial in custody indefinitely as a form of punishment.
View on Indian Kanoon →
4
Landmark — Bail is the Rule
Satender Kumar Antil v. Central Bureau of Investigation
Supreme Court of India | (2022) 10 SCC 51 | Decided: 11.07.2022 | Justice S.K. Kaul & Justice M.M. Sundresh
Comprehensive guidelines on bail — held that bail is the rule and jail is the exception in non-special law offences. Courts should not mechanically refuse bail. Factors: nature and gravity of offence, accused's antecedents, flight risk, danger to society. Directed that courts should not impose onerous bail conditions as a substitute for refusing bail outright. Directed government to set up Bail Adalats to reduce undertrial prisoners. Reinforced that personal liberty under Article 21 is paramount and extended incarceration without trial is constitutionally suspect.
View on Indian Kanoon →
5
Recent — Statutory Bar vs Article 21
Union of India v. K.A. Najeeb
Supreme Court of India | (2021) 3 SCC 713 | Decided: 01.02.2021 | Justice N.V. Ramana, Justice Surya Kant & Justice Aniruddha Bose
Even where a special statute imposes stringent bail conditions (here Section 43D(5) of the UAPA), constitutional courts retain the power to grant bail to protect fundamental rights. Where the trial is unlikely to conclude within a reasonable time and the undertrial has already suffered prolonged incarceration, the statutory restriction does not oust the court’s power under Article 21. Statutory bars and constitutional liberty operate on different planes.
View on Indian Kanoon →
6
Landmark — Anticipatory Bail Duration
Sushila Aggarwal v. State (NCT of Delhi)
Supreme Court of India | (2020) 5 SCC 1 | Constitution Bench | Decided: 29.01.2020
Constitution Bench settled the duration of anticipatory bail — held that it can be granted for an indefinite period without specifying an end date. The court is not required to limit anticipatory bail to a fixed period. The accused need not surrender to custody after chargesheet is filed — the AB continues. Conditions may be imposed. Sessions Court can modify or cancel AB on application by the State or complainant. Overruled the earlier position requiring AB to end on arrest or chargesheet. This judgment is of fundamental importance in all anticipatory bail applications.
View on Indian Kanoon →
7
Landmark — Presumption of Innocence
Dataram Singh v. State of Uttar Pradesh
Supreme Court of India | (2018) 3 SCC 22 | Decided: 06.02.2018 | Justice Madan B. Lokur & Justice Deepak Gupta
Reaffirmed that the grant of bail is the general rule and committing a person to jail is the exception, flowing from the presumption of innocence. Courts should be slow to incarcerate at the pre-trial stage, and conditions imposed while granting bail must not be so onerous as to defeat the order itself. Each case turns on its own facts, but liberty cannot be denied mechanically.
View on Indian Kanoon →
8
Landmark — Default Bail as Fundamental Right
Rakesh Kumar Paul v. State of Assam
Supreme Court of India | (2017) 15 SCC 67 | Justice Madan B. Lokur & Justice Deepak Gupta
Held that the right to default bail under S.167(2) CrPC (now BNSS S.187(3)) is an indefeasible fundamental right once the prescribed period expires without chargesheet being filed. The right cannot be defeated by prosecution filing an incomplete chargesheet. The accused must apply for default bail — if they do not, and a complete chargesheet is filed thereafter, the right is lost. Courts cannot suo motu grant default bail without an application. Protects the foundational right against indefinite incarceration without trial — one of the most important criminal law judgments.
View on Indian Kanoon →
9
Landmark — Arrest Guidelines
Arnesh Kumar v. State of Bihar & Anr.
Supreme Court of India | (2014) 8 SCC 273 | Decided: 02.07.2014 | Justice Chandramauli Kumar Prasad & Justice Pinaki Chandra Ghose
Landmark guidelines restricting automatic arrest in offences punishable up to 7 years. Police must satisfy themselves about necessity of arrest by applying their mind to BNSS S.35 conditions (formerly S.41 CrPC) — offence continuance, evidence tampering, flight risk. Mandatory checklist before arrest. Magistrate must apply mind before authorising further detention — mere production is insufficient. Non-compliance may lead to contempt proceedings. Particularly protects accused in matrimonial cases (S.85 BNS / S.498A IPC) from automatic arrest.
View on Indian Kanoon →
10
Landmark — Speedy Trial
Hussainara Khatoon (I) v. Home Secretary, State of Bihar
Supreme Court of India | (1980) 1 SCC 98 | Decided: 09.03.1979 | Justice P.N. Bhagwati & Justice D.A. Desai
Speedy trial is an integral part of the right to life and personal liberty under Article 21. Undertrial prisoners detained for periods longer than the maximum sentence for their alleged offences must be released. The bail system cannot be so property-oriented as to keep the poor in custody merely because they cannot furnish monetary sureties — a foundational decision for undertrial rights and free legal aid.
View on Indian Kanoon →
Recent Developments
Recent Developments in Criminal Law
2026 — Bail Conditions Narrowed
Narayan v. State of M.P. — S.480(3) BNSS Restricted
The Supreme Court in Narayan v. State of Madhya Pradesh (SLP Crl. 7011/2026, decided 22 April 2026, 2026 LiveLaw SC 426) held that the mandatory conditions under S.480(3) BNSS do not apply to offences punishable with up to seven years imprisonment. Courts cannot impose these onerous conditions as a routine matter — a significant ruling correcting widespread misapplication by trial courts since BNSS came into force in 2024.
2024 — New Laws in Force
BNS / BNSS / BSA — 1 July 2024
Bharatiya Nyaya Sanhita, Bharatiya Nagarik Suraksha Sanhita, and Bharatiya Sakshya Adhiniyam in force from 1 July 2024 — replacing IPC, CrPC, and Evidence Act. New offences, revised bail provisions, e-FIR, video evidence, 45-day judgment timeline. All FIRs from 1 July 2024 cite BNS sections. Pending cases continue under old law.
2022 — SC Bail Reform
Satender Kumar Antil — Bail is the Rule
The SC in Satender Kumar Antil v. CBI (2022) reiterated that bail is the rule, jail is the exception. Directed courts not to impose onerous conditions as substitute for refusing bail. Recommended Bail Adalats to reduce undertrial population. Reinforced Article 21 personal liberty — undertrial incarceration without trial is constitutionally unsound.
2014 — Arrest Reform
Arnesh Kumar — Police Cannot Auto-Arrest
In Arnesh Kumar v. State of Bihar (2014), the SC held that police must apply their mind before arresting in offences punishable up to 7 years. Mandatory checklist. Magistrate must apply mind before remand. Protects accused in matrimonial, cheque bounce, and other cases from automatic arrest — a major safeguard for personal liberty.
Practical Tip
When filing a bail application in Sessions Court or High Court under BNSS S.483 or S.482, always annex a copy of the FIR, the arrest memo, the ground-of-arrest communication (mandatory under S.47 BNSS after Mihir Rajesh Shah), the custody certificate, and previous bail orders (if any) with reasons for rejection. If grounds of arrest were not given in writing at the time of arrest, raise an illegal-arrest argument at the threshold — it entitles the accused to immediate release under Prabir Purkayastha v. State (NCT of Delhi) (2024) and Mihir Rajesh Shah (2025 INSC 1288). For default bail under S.187(3) BNSS, file a specific application before the Magistrate clearly computing the 60/90-day period and producing proof of non-filing of chargesheet.
FAQ
Frequently Asked Questions
What is anticipatory bail and who can apply?
Anticipatory bail (BNSS S.482 — formerly S.438 CrPC) is granted before arrest to a person who reasonably apprehends arrest in a non-bailable offence. Application is made to the Sessions Court or the High Court. The court considers: nature of accusation, antecedents, flight risk, and whether the accusation appears motivated or false. The SC in Sushila Aggarwal v. State NCT Delhi (2020) held that anticipatory bail can be granted for an indefinite period — the accused need not surrender after chargesheet is filed. Conditions like surrendering passport, reporting to police, or not leaving India may be imposed by the court.
What is default bail and when does the right arise?
Default bail (BNSS S.187(3) — formerly S.167(2) CrPC) is an indefeasible statutory right that arises when police fail to file a chargesheet within: 60 days (for offences punishable up to 10 years), or 90 days (for offences punishable with death, life imprisonment, or 10 or more years). The accused must apply for default bail — the court cannot grant it suo motu. If the accused does not apply and a chargesheet is filed within the deadline, the right is lost. SC in Rakesh Kumar Paul (2017): this is a fundamental right once the period expires without chargesheet being filed.
What did the Arnesh Kumar case decide about arrest?
In Arnesh Kumar v. State of Bihar (2014) 8 SCC 273, the SC issued binding guidelines: police cannot automatically arrest a person in offences punishable up to 7 years. Before arrest, police must satisfy themselves — using a mandatory checklist — that arrest is necessary (to prevent further offence, for investigation, to prevent evidence tampering, or because the accused will flee). Magistrates must apply their mind before authorising further detention — mere production of the accused is not sufficient. Failure to comply can lead to contempt proceedings. These guidelines particularly benefit accused in S.85 BNS (cruelty — formerly S.498A IPC) and similar matrimonial cases.
What is the difference between bailable and non-bailable offences?
Bailable offences: bail is a right — the accused is entitled to bail under BNSS S.480 as a matter of right. The police officer or court must grant bail on execution of a bond. Examples: theft under ₹5,000, simple hurt, public nuisance. Non-bailable offences: bail is at the court's discretion. The accused must apply and the court considers multiple factors — nature of offence, prima facie case, flight risk, evidence tampering risk, antecedents. Serious offences like murder (BNS S.103), rape (BNS S.64), and dacoity (BNS S.310) are non-bailable. The First Schedule to BNSS classifies offences as bailable or non-bailable.
What happens if bail is rejected by the Magistrate?
If the Magistrate rejects bail — the accused can file a fresh bail application before the Sessions Court. If the Sessions Court also rejects — the accused can approach the High Court. If the HC rejects — the accused may file a Special Leave Petition (SLP) before the Supreme Court under Article 136. At each stage, new grounds or changed circumstances can be urged — courts expect something new before entertaining a repeat application. Fresh grounds include: prolonged incarceration, health grounds, changed family circumstances, or the progress of trial. Simply repeating the same arguments without change is generally not entertained.
What changed with BNS and BNSS from 1 July 2024?
Key changes: (1) IPC 1860 replaced by BNS 2023 — most offences continue with new section numbers. New: organised crime (S.111-112 BNS), terrorism (S.113 BNS), promise of marriage offence (S.69 BNS), Hit-and-Run (S.304 BNS); (2) CrPC 1973 replaced by BNSS 2023 — new: e-FIR, video recording of crime scene, 45-day judgment deadline (S.346), victim's right to be heard in appeal, first-time offender bail after 1/3rd sentence; (3) Evidence Act 1872 replaced by BSA 2023 — electronic records fully recognised, certificate requirement relaxed; (4) All new FIRs from 1 July 2024 cite BNS sections. Cases filed before 1 July 2024 continue under old law throughout.
Can bail conditions be modified or challenged?
Yes — bail conditions can be challenged or modified. If conditions are unduly onerous and prevent the accused from practically exercising the bail — they can apply to the same court for modification. Examples: requiring a surety deposit beyond the accused's means; restricting travel in a way that prevents employment or education; requiring daily reporting to a police station in a distant location. The SC in Satender Kumar Antil (2022) directed that courts should not impose burdensome conditions as a substitute for refusing bail — conditions must be proportionate and practical. An application for modification of conditions can be filed before the court that granted bail.
What is a Zero FIR and how is it filed?
A Zero FIR can be filed at any police station regardless of the territorial jurisdiction where the crime occurred — it is then transferred to the police station having actual jurisdiction. Codified in BNSS — any police station must register a Zero FIR and transfer it immediately. This prevents the common problem of police refusing to register FIRs saying the crime occurred in another jurisdiction. Zero FIRs are especially important in cases of sexual assault, kidnapping, or any urgent criminal matter where the victim is at a police station far from where the crime occurred. Zero FIRs have the same legal validity as regular FIRs after transfer.
What is the accused's right if police refuse to register FIR?
If police refuse to register an FIR for a cognisable offence: (1) Complaint to the Superintendent of Police (SP) in writing under BNSS S.173(4) — SP must investigate or direct registration; (2) Application before the Judicial Magistrate under BNSS S.175(3) — the Magistrate can direct police to register and investigate; (3) Writ petition before the High Court under Article 226 directing registration — the SC in Lalita Kumari v. Govt. of UP mandated registration for all cognisable offences; (4) Private complaint before Magistrate under BNSS S.223. The Supreme Court has consistently held that police cannot refuse to register FIR in cognisable offences.
Can a person be tried twice for the same offence?
No — the principle of double jeopardy (autrefois convict / acquit) protects against this. Article 20(2) of the Constitution: no person shall be prosecuted and punished for the same offence more than once. Section 337 BNSS (formerly S.300 CrPC) codifies this — a person once convicted or acquitted by a court of competent jurisdiction shall not be tried again for the same offence. Protection applies only where there has been a complete trial and a final order — not where proceedings were dropped or withdrawn before completion. Appeal by the State against an acquittal is NOT double jeopardy — it is a continuation of the same proceedings, not a fresh prosecution.
Self-Assessment
Test Your Knowledge — Criminal Law Quiz
Criminal Trials & Bail — BNS / BNSS 2023
Glossary
Key Legal Terms — Criminal Law
BNS 2023
Bharatiya Nyaya Sanhita 2023 — replaces IPC 1860 from 1 July 2024. Defines offences and punishments. New additions: organised crime (S.111-112), terrorism (S.113), community service as sentence. Most IPC offences continue with renumbered sections.
BNSS 2023
Bharatiya Nagarik Suraksha Sanhita 2023 — replaces CrPC 1973 from 1 July 2024. Governs criminal procedure: FIR, investigation, trial, bail, appeals. New: e-FIR, 45-day judgment deadline (S.346), zero FIR codified, victim's right to be heard.
Anticipatory Bail (AB)
Bail granted before arrest — BNSS S.482. Sessions Court or HC. Protects a person who apprehends arrest in a non-bailable offence. Sushila Aggarwal (2020): can be indefinite — no fixed end date. Accused need not surrender after chargesheet.
Default Bail
Indefeasible right under BNSS S.187(3) — if chargesheet not filed within 60 days (up to 10-year offences) or 90 days (10+ year / life / death). Accused must apply. Rakesh Kumar Paul (2017): fundamental right once period expires without chargesheet.
Chargesheet
Police report filed before the Magistrate under BNSS S.193 after completing investigation — contains FIR, statements, evidence, list of accused and witnesses, and specific offences alleged. Triggers court proceedings and cognisance.
Triple Test (Bail)
Three factors courts consider for non-bailable bail: (1) Prima facie case — sufficient evidence? (2) Tampering risk — will accused tamper with evidence or intimidate witnesses? (3) Flight risk — will accused flee justice? All three must be weighed.
Sessions Trial
Trial before Sessions Court for offences punishable with 7 or more years imprisonment. Presided over by Sessions Judge or Additional Sessions Judge. Case committed to Sessions Court by Magistrate after taking cognisance of chargesheet.
Arnesh Kumar Guidelines
SC guidelines (2014) restricting automatic arrest in offences punishable up to 7 years. Police must apply mind using mandatory checklist. Magistrate must apply mind before remand. Failure to comply — contempt proceedings. Particularly relevant in matrimonial cases.
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This is an informational guide and is reviewed periodically against the official sources cited above. If any provision appears outdated or an inadvertent error is noticed, it may be pointed out using the contact details on this page so that the content can be reviewed and corrected. Readers should verify the current statutory text and case law from authentic sources before relying on it.
