Criminal Trials & Bail आपराधिक मुकदमे और जमानत — BNS 2023 / BNSS 2023 / Delhi Courts

Anticipatory bail (BNSS S.484 / 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. 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 to custody after chargesheet is filed. Conditions like surrendering passport, reporting to police, or not leaving India may be imposed.

Default bail (BNSS S.479 / 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+ years). The accused must apply for default bail — the court cannot grant it suo motu. If the accused does not apply and the chargesheet is filed within the deadline, the right is lost. SC in Rakesh Kumar Paul (2017): default bail is a fundamental right once the period expires.

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 — by checking 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 — a mere production of the accused is not sufficient. Failure to comply can lead to contempt of court proceedings. These guidelines particularly benefit accused in S.498A BNS (cruelty) and similar matrimonial cases.

Bailable offences: bail is a right — the accused is entitled to bail as a matter of right under BNSS S.480. The police officer or court must grant bail on the accused executing a bond. Examples: theft under Rs.5,000, simple hurt, public nuisance. Non-bailable offences: bail is at the discretion of the court. The accused must apply to the court and the court considers multiple factors — nature of offence, prima facie case, flight risk, evidence tampering, antecedents. Serious offences like murder (BNS S.103), rape (BNS S.64), dacoity (BNS S.310) are non-bailable. The First Schedule to BNSS classifies offences as bailable / non-bailable.

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. At each stage, new grounds or changed circumstances can be urged. The accused can also file fresh applications based on: prolonged incarceration, health grounds, changed family circumstances, or the stage of the trial. Courts expect something new — repeating the same arguments without change is not normally entertained.

Key changes: (1) IPC 1860 replaced by BNS 2023 — most offences continue with new section numbers. New offences: organised crime (S.111-112 BNS), terrorism transferred from UAPA (S.113 BNS), promise of marriage offence (S.69 BNS); (2) CrPC 1973 replaced by BNSS 2023 — new provisions: e-FIR, video recording of crime scene, 45-day judgment deadline (S.346 BNSS), victim's right to hear appeal; (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/BNSS. Cases pending before 1 July 2024 continue under old law.

Yes — bail conditions can be challenged or modified. If conditions are unduly onerous — preventing the accused from exercising the bail — they can apply to the same court for modification. Examples of conditions that may be challenged: requiring the accused to deposit a surety amount beyond their means; restricting travel in a way that prevents employment; requiring daily reporting to 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 not render the bail illusory.

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. The concept has been 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.

If police refuse to register an FIR for a cognisable offence: (1) Complaint to the Superintendent of Police (SP) in writing — BNSS S.173(4); the SP must either 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 Constitution — directing registration of FIR (Lalita Kumari v. Govt. of UP — SC mandated registration for cognisable offences); (4) Private complaint before Magistrate under BNSS S.223.

No — the principle of double jeopardy protects against this. Article 20(2) of the Constitution provides that no person shall be prosecuted and punished for the same offence more than once. Section 300 CrPC (now BNSS S.337) codifies this — a person once convicted or acquitted of an offence by a court of competent jurisdiction shall not be tried again for the same offence. However, the protection applies only where there has been a complete trial and a final order — not where proceedings were dropped or case withdrawn before trial. Appeal by the State against acquittal is NOT double jeopardy — it is a continuation of the same proceedings.