BASIC PRINCIPLES OF

CRIMINAL LAW
CRIMINAL JUSTICE SYSTEM
 Criminal Justice refers to the agencies of government
charged with enforcing law, adjudicating crime, and
correcting criminal conduct.
 The criminal justice system is essentially an instrument
of social control.
 Only the criminal justice system has the power to
control crime and punish criminals.
 The relevance of our criminal justice system is in both
forms : substantive and procedural.
Objectives of Criminal Justice
System
 To prevent the occurrence of crime.
 To punish the transgressors and the criminals.
 To rehabilitate the transgressors and the criminals.
 To compensate the victims as far as possible.
 To maintain law and order in the society.
 To deter the offenders from committing any criminal
act in the future.
Hierarchy of Criminal Courts in
India
 Supreme Court
 High Court
 Court of Session
 Judicial Magistrate of first class and, in any
metropolitan area metropolitan magistrates
 Judicial Magistrates of Second Class
 Executive Magistrates
Punishments which may be imposed by the High Court
& Session courts
Criminal Procedure Code, 1973
Section 28
COURTS PUNISHMENTS

Supreme Court & High Courts Any punishment prescribed by law

A Sessions Judge or Additional Sessions Any sentence authorized by law; but

Judge any sentence of death passed by any
such Judge shall be subject to
confirmation by the High Court.

Assistant Sessions Judge Any sentence authorised by law except

a sentence of death or of imprisonment
for life or of imprisonment for a term
exceeding ten years.

Section 28 of the CrPC, 1973, has been renumbered and

incorporated as Section 22 in the Bhartiya Nagrik Suraksha
Sanhita (BNSS), 2023.
 Punishments which may be imposed by the
Magistrates
Criminal Procedure Code, 1973
Section 29
COURTS PUNISHMENTS
Chief Metropolitan Any sentence authorised by law except a
Magistrate sentence of death or of imprisonment for
life or of imprisonment for a term
exceeding seven years.

Metropolitan Magistrate Imprisonment for a term not exceeding

three years, or of fine not exceeding ten
thousand rupees, or of both.

Section 29 of the CrPC, 1973, has been renumbered and

incorporated as Section 23 in the Bhartiya Nagrik Suraksha
Sanhita (BNSS), 2023.
 Changes as per Section 23 of
BNSS
 Increase in Fine Amounts:
• The maximum fine has been increased from Rs. 10,000
to Rs. 50,000.
• The minimum fine has been increased from Rs. 5,000
to Rs. 10,000.
 Definition of "Community Service":
• The Explanation in Section 23 defines the term
"community service".
 Exclusion of Sub-section 29(4) of CrPC:
• Sub-section 29(4) of the CrPC has been excluded from
the new provisions under the BNSS.
 Removal of CMM and MM Designations:
• The designations of Chief Metropolitan Magistrate
(CMM) and Metropolitan Magistrate (MM) have been
removed.
GENERAL PRINCIPLES
OF CRIMINAL LAW
 DEFINITION OF CRIME
 According to Blackstone, “An act committed or
omitted in violation of a public law either
forbidding or commanding it.”

 According to Stephen, “Crime is a violation of a

right considered in reference to the evil tendency
of such violation as regards the community at
large.”

 According to Oxford Dictionary, “An act

punishable by law as forbidden by statute or
injurious to the public welfare.”
 ELEMENTS OF CRIME
There are four elements which constitute a
crime :
Human being
Mens rea or guilty intention
Actus reus or illegal act or omission
Injury
 HUMAN BEING
 The first element requires that the wrongful act must be
committed by a human being.
 A human being who- must be under the legal obligation
to act in a particular manner and should be a fit subject
for awarding appropriate punishment.
 Section 11 of the Indian Penal Code (2(26)BNS) provides
that word ‘person’ includes a company or association or
body of persons whether incorporated or not.
 The word ‘person’ includes artificial or juridical persons.
 Mens rea or guilty intention

 The second important essential element of a crime is mens

rea or evil intent or guilty mind.

 There can be no crime of any nature without mens rea or

an evil mind.

 The basic requirement of the principle mens rea is that the

accused must have been aware of those elements in his act
which make the crime with which he is charged.

 There is a well known maxim in this regard, i.e. “actus non

facit reum nisi mens sit rea” which means that, the
guilty intention and guilty act together constitute a crime.
 Actus Reus
(Guilty Act Or Omission)

 The third essential element of a crime is actus reus.

 In other words, some overt act or illegal omission

must take place in pursuance of the guilty
intention.

 Actus reus is the manifestation of mens rea in the

external world.

 Prof. Kenny defines Actus Reus as “such result of

human conduct as the law seeks to prevent”.
 INJURY
 The fourth requirement of a crime is injury to another person or
to the society at large.

 The injury should be illegally caused to any person in body,

mind, reputation or property.

 According to Section 44 of IPC, 1860 the injury denotes any

harm whatever illegally caused to any person in body, mind,
reputation or property.

 Injury under BNS is now defined under section 2(14)

wherein the word “denotes” is replaced with “means”.
 STAGES OF CRIME
 Intention

 Preparation

 Attempt

 Accomplishment or Completion of Crime

 INTENTION
 Intention is the first stage in the commission of an offence and
known as mental stage.
 Intention is the direction of conduct towards the object chosen
upon considering the motives which suggest the choice.
 The law does not take notice of an intention, mere intention to
commit an offence not followed by any act, cannot constitute an
offence.
 The obvious reason for not prosecuting the accused at this stage
is that it is very difficult for the prosecution to prove the guilty
mind of a person.
 PREPARATION
 Preparation is the second stage in the commission of a
crime.
 It means to arrange the necessary measures for the
commission of the intended criminal act.
 Intention alone or the intention followed by a preparation is
not enough to constitute the crime.
 Preparation has not been made punishable because in most
of the cases the prosecution has failed to prove that the
preparations in the question were made for the commission
of the particular crime.
PREPARATION WHEN PUNISHABLE
 Preparation to wage war against the Government - Section 122, IPC;

(Section 149 BNS)

 Preparation to commit depredation on territories of a power at peace

with Government of India- Section 126, IPC; (Section 154 BNS)

 Preparation to commit dacoity- Section 399, IPC; [Section 310(4) BNS]

 Preparation for counterfeiting of coins or Government stamps- Sections

233-235 & 257 IPC (Section 181 BNS), Section 255 IPC (Section 178

BNS)

 Possessing counterfeit coins, false weight or measurement and forged

documents. Sections 242, 243 & 259 (Section 180 BNS), and 474

(Section 339 BNS)

 ATTEMPT
 Attempt is the direct movement towards the
commission of a crime after the preparation is
made.
 There are three essentials of an attempt:-
 Guilty intention to commit an offence;
 Some act done towards the commission of the
offence;
 The act must fall short of the completed offence.
 ACCOMPLISHMENT
OR
COMPLETION OF CRIME
 The last stage in the commission of an offence is its accomplishment
or completion.

 If the accused succeeds in his attempt to commit the crime, he will be

guilty of the complete offence and if his attempt is unsuccessful he
will be guilty of an attempt only.

 For example, A fires at B with the intention to kill him, if B dies, A will
be guilty for committing the offence of murder and if B is only injured
or not injured at all, it will be a case of attempt to murder.
 CRIMINAL
PROCEDURE
 CRIMINAL PROCEDURE CODE, 1973
 The object of Criminal Procedure Code is to provide machinery for the
punishment of offenders against the substantive Criminal law.
 In layman's language, the Criminal Procedure Code lays (CrPC) the
rules for conduct of proceedings against any person who has
committed an offence under any Criminal law, whether it is IPC or
other Criminal law.
 The legal meaning and whether an act will constitute a criminal
offence or not is provided in the IPC.
 The Procedure of initiating proceeding/Prosecution for a criminal
offence is provided in Criminal Procedure Code (CrPC).
 CrPC provides the manner and place, where investigation inquiry and
trial of an offence shall take place.
 BHARTIYA NAGRIK SURAKSHA
SANHITA 2023 (BNSS)
 The Bhartiya Nagrik Suraksha Sanhita (BNSS) serves as a
modernized procedural framework for the investigation, inquiry, and
trial of criminal offenses. It replaces the traditional Criminal Procedure
Code (CrPC) to streamline processes and enhance the efficiency of
India’s criminal justice system.
 In simpler terms, the BNSS lays down the rules for the conduct of legal
proceedings against any individual accused of violating criminal laws,
including the Indian Penal Code (IPC) or other specific criminal laws.
While the IPC defines what constitutes a criminal offense and its
substantive aspects, the BNSS outlines how these offenses will be
prosecuted.
 The BNSS specifies:
• The procedure for initiating and conducting investigations.
• The jurisdiction and venue for inquiries and trials.
• Rules for maintaining fairness and expediting the judicial process.
 The primary objective of the BNSS is to ensure citizen safety, improve
access to justice, and adapt the criminal justice framework to
contemporary needs, while maintaining uniformity in the enforcement of
laws across the country.
CLASSIFICATION OF OFFENCES
 Depending on the nature and gravity of an
offence, they can be classified under any of
the following heads:

Bailable and non bailable offence.

Cognizable and non-cognizable offence.

Compoundable and non compoundable offence.

Bailable and Non Bailable Offence
 BAILABLE OFFENCE
 In case of bailable offence, the grant of bail is a mater of
right.
 It may be either given by a police officer who is having the
custody of Accused or by the court.

 NON BAILABLE OFFENCE

 A non-bailable offence is one in which the grant of Bail is

not a matter of right.
 Here the accused will have to apply to the court, and it will
be the discretion of the court to grant Bail or not.
Cognizable and non-cognizable offence

 COGNIZABLE OFFENCE
 Cognizable offences are those where a police officer can
arrest without warrant.
 In such cases, after arrest has been made, the accused will
be produced before a magistrate within 24 hours (Section
57 Cr.P.C.) (Section 58 BNSS)

 NON COGNIZABLE OFFENCE

 Non cognizable offences are those, where a police officer
cannot arrest without a warrant.
 No police officer shall investigate a non-cognizable offence
case without the order of a Magistrate (Section 155(2)
Cr.P.C.) (Section 174 BNSS)
 Compoundable and
Non compoundable offence
 Compoundable Offence
 Compoundable offences are those offences where, the
complainant (one who has filed the case, i.e. the victim), enter
into a compromise, and agrees to have the charges dropped
against the accused.
 However such a compromise, should be a "Bonafide," and not for
any consideration to which the complainant is not entitled to.

 Non Compoundable Offence

 There are some offences, which cannot be compounded.
 They can only be quashed.
 The reason for this is, because the nature of offence is so grave
and criminal, that the Accused cannot be allowed to go scot-free.
 Here, in these types of cases generally, it is the "state", i.e. police,
who has filed the case, and hence the question of complainant
entering into compromise does not arise.
Classification of Offences Against
Other Laws
 If punishable with death, imprisonment for life, or
imprisonment for more than 7 years – Cognizable,
Non-bailable and Court of Session.
 If punishable with imprisonment for 3 years, and
upwards but not more than 7 years – Cognizable,
Non-bailable and Magistrate of the first class.
 If punishable with imprisonment for less than 3
years or with fine only – Non-cognizable, bailable
and Any Magistrate.
 FIRST INFORMATION REPORT (FIR)
SECTION 154 Cr. PC
 An information given under sub-section (1) of section 154 Cr.PC
is commonly known as first information report (FIR) though this
term is not used in the Criminal Procedure Code, 1973.
 A copy of the information as recorded under sub-section (1)
shall be given forthwith, free of cost, to the informant.

 What you will do when police officer refuse to register

FIR
When a police officer-in-charge of a police station or any other
police officer, acting under the directions of the officer-in-
charge of police station refuses to register information, any
person aggrieved by such refusal may send in writing and by
post, the substance of such information disclosing a cognizable
offence, to the Superintendent of Police under section 154(3) or
to the Magistrate concerned under section 156(3) of the Cr.PC.
 FIRST INFORMATION REPORT
UNDER SECTION 173 BNSS
• Preliminary Inquiry: Introduced for cognizable offenses
(3-7 years imprisonment). Must be completed within 14
days with DSP approval.
• e-FIR & Digitization: FIRs can be filed electronically;
acknowledgment within 3 days. Digitized tools for
summons, warrants, trials, and statements.
• Investigation Timelines: Mandatory forensic
investigations for offenses with 7+ years imprisonment.
Electronic documentation emphasized.
• Forensic Evidence: Compulsory for serious penalties with
electronic recording of crime scenes.
• Victim Rights: Victims/informants updated on
investigation progress via electronic communication within
90 days.
• Procedural Efficiency: Reduced adjournments and stricter
deadlines for expedited justice.
OBJECT AND PURPOSE OF FIR
 To reduce the substance of information disclosing commission
of a cognizable offence, if given orally, into writing.
 If given in writing to have it signed by the complainant.
 To maintain record of receipt of information as regards
commission of cognizable offences.
 To initiate investigation on receipt of information as regards
commission of cognizable offence.
 To inform Magistrate forthwith of the factum of the
information received.
EVIDENTIARY VALUE OF FIR
 FIR is not a piece of substantive evidence.
 It can be used only for limited purposes, like corroborating
under section 157 of the Evidence Act (Section 160 BSA)
or contradicting (cross-examination under section 145 of
Evidence Act) (Section 148 BSA) the maker thereof, or to
show that the implication of the accused was not an after-
thought.
 It can also be used under section 8 and section 11 of the
Evidence Act. (Section 6 & 9 BSA, respectively)
 It cannot be used for corroborating the statement of a third
party.
 If the FIR is of a confessional nature it cannot be proved
against the accused-informant, because according to
section 25 of the Evidence Act [Section 23(1) BSA], no
confession made to a police officer can be proved as
against a person accused of any offence.
 PROCESS OF INVESTIGATION
SECTION 157 Cr.PC. Cont…
 Forwarding exhibits and getting reports or opinion from the
scientific experts (section 293 Cr.PC) (Section 329 BNSS)
 Formation of the opinion as to whether on the materials
collected, there is a case to place the accused before a
magistrate for trial and if so, taking necessary steps for filing a
charge sheet
 Submission of a Final Report to the court (section 173 Cr.P.C.)
(Section 193 BNSS) in the form of a CHARGE SHEET along with
a list of documents and a Memo of Evidence against the accused
person(s) or in the form of a REFERRED CHARGE SHEET or a
report referring the case as UN, Civil nature and Action dropped,
as the case may be, on the basis of the evidence collected
during the course of the investigation.
 PROCESS OF TRIAL
 Filing of the charge sheet
 Framing of charges/Serving the Notice
 Recording of the Prosecution Evidence
 Statement of the accused
 Evidence of Defence
 Final Arguments of both the sides
 Delivery of Judgment
 Arguments on sentence
 Judgment with punishment
 FAIR TRIAL
 The concept of fair trial is based on the basic ideology that
State and its agencies have the duty to bring the offenders before
the law.

 The right to a fair trial is a fundamental safeguard to ensure that

individuals are protected from unlawful or arbitrary deprivation of
their human rights and freedoms, most importantly of the right to
liberty and security of person.

 In Zahira Habibullah Sheikh and ors v. State of Gujarat and

ors. (2006) 3 SCC 374 The Supreme Court of India observed
“each one has an inbuilt right to be dealt with fairly in a criminal
trial. Denial of a fair trial is as much injustice to the accused as it
is to the victim and to society. Fair trial obviously would mean a
trial before an impartial judge, a fair prosecutor and an
atmosphere of judicial calm. Fair trial means a trial in which bias
or prejudice for or against the accused, the witness or the cause
which is being tried, is eliminated.”
PRINCIPLES OF FAIR TRIAL
 Adversary trial system
 Presumption of innocence
 Independent, impartial and competent judges
 Autrefois Acquit and Autrefois Convict : According to this
doctrine, if a person is tried and acquitted or convicted of an
offence he cannot be tried again for the same offence or on
the same facts for any other offence. This doctrine has been
substantially incorporated in the Article 20(2) of the
Constitution and is also embodied in section 300 of the Cr.
P.C. (Section 337 BNSS)
 RIGHTS OF ARRESTED PERSONS
 Rights of the accused include the rights of the accused at
the time of arrest, at the time of search and seizure, during
the process of trial and the like.

 In the leading case of Kishore Singh Ravinder Dev v.

State of Rajasthan, it was said that the laws of India i.e.
Constitutional, Evidentiary and procedural have made
elaborate provisions for safeguarding the rights of accused
with the view to protect his (accused) dignity as a human
being and giving him benefits of a just, fair and impartial
trial.

 However in another leading case of Maneka Gandhi v.

Union of India it was interpreted that the procedure
adopted by the state must, therefore, be just, fair and
reasonable.
 RIGHTS OF ARRESTED PERSONS
cont…
 Right to silence
 Right To Know The Grounds of Arrest
 Information Regarding The Right To Be Released On Bail
 Right To Be Taken Before A Magistrate Without Delay
 Right of Not Being Detained For More Than 24 Hours Without Judicial
Scrutiny
 Right To a Fair and Speedy Trial
 Right To Consult A Legal Practitioner
 Rights of Free Legal Aid
 Right To Be Examined By A Medical Practitioner
 Right of The Accused To Produce An Evidence
 D. K. Basu vs. State of West
Bengal AIR 1997 SC 610
 Police arresting and interrogating suspects should wear
“accurate, visible and clear” identification and name tags.
 A memo of arrest must be prepared at the time of arrest having
the time and date of arrest attested by at least one witness who
may either be a family member of the person arrested or a
respectable person of the locality where the arrest was made.
 The person arrested, detained or being interrogated has a right to
have a relative, friend or well-wisher informed as soon as
practicable, of the arrest and the place of detention or custody.
 Where the friend or relative of the person arrested lives outside
the district, the time and place of arrest and venue of custody
must be notified by police within 8 to 12 hours after arrest.
 The person arrested should be told of the right to have someone
informed of the arrest, as soon as the arrest or detention is made.
 An entry must be made in the diary at the place of detention
about the arrest, the name of the person informed and the name
and particulars of the police officers in whose custody the person
arrested is.
D. K. Basu vs. State of West Bengal AIR
1997 SC 610
cont….
 The person being arrested can request a physical examination at
the time of arrest. Minor and major injuries if any should be
recorded. The "Inspection Memo" should be signed by the person
arrested as well as the arresting police officer. A copy of this memo
must be given to the person arrested.
 The person arrested must have a medical examination by a
qualified doctor every 48 hours during detention.
 Copies of all documents including the arrest memo have to be sent
to the Area Magistrate for his record.
 The person arrested has a right to meet a lawyer during the
interrogation, although not for the whole time.
 There should be a police control room in every District and State
headquarters where information regarding the arrest and the place
of custody of the person arrested must be sent by the arresting
officer. This must be done within 12 hours of the arrest. The control
room should prominently display the information on a notice board.
 BAIL
 Bail, in law, means procurement of release from custody of
a person awaiting trial or an appeal, by the deposit of
security to ensure his submission at the required time to
legal authority.
 According to Black's Law Dictionary 177 (4th ed.),
“procure the release of a person from legal custody, by
undertaking that he/she shall appear at the time and place
designated and submit him/herself to the jurisdiction and
judgment of the court.”
 The concept of bail can traced back to 399 BC, when Plato
tried to create a bond for the release of Socrates. The
modern bail system evolved from a series of laws
originating in the middle ages in England
Factors to be taken into consideration
in determining the application of bail
 The nature of the offence committed by the accused.
 The length of his residence in the community.
 His employment status history and his financial condition.
 His family ties and relationships.
 His reputation character and monetary conditions.
 His prior criminal records, including any record or prior
release on recognizance or on bail.
 Identity of responsible members of the community who
would vouch for his reliability.
 The nature of the offence charged and the apparent
probability of conviction and the likely sentence in so far as
these factors are relevant to the risk of non-appearance.
 JUDICIAL TRENDS ON BAIL
State Of Rajasthan v. Balchand
1977 AIR 2447
 In this case, the accused was convicted by the trial court.
 When he went on appeal to the High Court, it acquitted him.
 The State went on appeal to the Hon'ble Supreme Court under Art.
136 of the Constitution through a special leave petition.
 The accused was directed to surrender by the Court. He then filed
for bail.
 It was then for the first time that Hon’ble Supreme Court raised
his voice against this unfair system of bail administration. Justice
Krishna Iyer said that though while the system of pecuniary bail
has a tradition behind it, a time for rethinking has come. It may
well be that in most cases an undertaking would serve the
purpose.
 Guruchand Singh v/s State Delhi
Administration
AIR 1978 SC 179
 In this case, Hon’ble Supreme Court has laid down factors
to be taken into consideration while granting bail and they
are as follows:

 The nature and gravity of circumstances in which the

offence is committed,
 The position and status of accused with reference to the
victim and the witnesses,
 The likelihood of the accused fleeing from justice of
repeating the offence of jeopardizing his own life being
faced with a grim prospect of possible conviction in the
case of tempering with witnesses,
 The history of the case as well as of its investigation
 Other relevant grounds
 Moti Ram and Ors. v. State of M.P
AIR 1978 SC 1594
 The accused who was a poor mason was convicted.
 The apex court had passed a sketchy order, referring it to the
Chief Judicial Magistrate to enlarge him on bail, without making
any specifications as to sureties, bonds etc.
 The CJM assumed full authority on the matter and fixed Rs.
10,000 as surety and bond and further refused to allow his
brother to become a surety as his property was in the adjoining
village.
 MR went on appeal once more to the apex court and Justice
Krishna Iyer condemned the act of the CJM, and said that the
judges should be more inclined towards bail and not jail.
 Rasiklal v/s Kishore Khanchand
Wadhwani
(2009) 4 SCC 446
 Hon’ble Supreme Court in this case held that incase of
bailable offences, right to claim bail is an absolute and
indefeasible right and if the accused is prepared, court/
police officer is bound to release him on bail and only
choice available is in demanding security in surety and if
the accused is wiling to abide by reasonable conditions
which may be imposed on him.
 Order of granting bail is judicial act and not ministerial act
and thus reasons must form the basis for any order on bail
application.
 Sanjay Chandra v. CBI
(2012) 1 SCC 40
 In May 2011, the Delhi High Court authorized their pre-trial
detention even though the investigation was complete and
there were no substantiated allegations of intimidation or
tampering with the documentary evidence.
 However, the Supreme Court granted bail to the accused in
November, 2011, recognizing that the right to life and
personal liberty was the “most basic of all fundamental
rights.”
 The Court reversed the High Court’s order by taking
cognizance of the completion of investigation, prospective
delay in concluding the trial and the six month
incarceration, stating that the “right to bail is not to be
denied merely because of the sentiments of the community
against the accused”.
Arnesh Kumar v. State Of Bihar & Anr.
Criminal Appeal No. 1277 of 2014
 The important verdict arises from an appeal preferred by an
husband who apprehended his arrest in a case under Section 498-
A of the Indian Penal Code, 1860 and Section 4 of the Dowry
Prohibition Act, 1961.
 The Court in strong words possible has expressed its
dissatisfaction as to how the power of arrest and detention is dealt
equally by Police and Magistrates.
 In this case, the Court observed that the power to authorize
detention is a very solemn function.
 It affects the liberty and freedom of citizens and needs to be
exercised with great care and caution.
 Before a Magistrate authorizes detention under Section 167,
Cr.PC, he has to be first satisfied that the arrest made is legal
and in accordance with law and all the constitutional rights of the
person arrested is satisfied.
 We believe that no arrest should be made only because the
offence is non-bailable and cognizable and therefore, lawful
for the police officers to do so. The existence of the power
to arrest is one thing, the justification for the exercise of it
is quite another. Apart from power to arrest, the police
officers must be able to justify the reasons thereof. No
arrest can be made in a routine manner on a mere
allegation of commission of an offence made against a
person. It would be prudent and wise for a police officer
that no arrest is made without a reasonable satisfaction
reached after some investigation as to the genuineness of
the allegation.
 Section 41(1)(b), Cr.PC which is relevant for the purpose reads as follows:
“41. When police may arrest without warrant.-(1) Any police officer may without an
order from a Magistrate and without a warrant, arrest any person (Section 35
BNSS)
(a)x x x x x x
(b)against whom a reasonable complaint has been made, or credible information has
been received, or a reasonable suspicion exists that he has committed a
cognizable offence punishable with imprisonment for a term which may be less
than seven years or which may extend to seven years whether with or without
fine, if the following conditions are satisfied, namely:
(i) x x x x x
(ii) the police officer is satisfied that such arrest is necessary – to prevent such
person from committing any further offence; or for proper investigation of the
offence; or to prevent such person from causing the evidence of the offence to
disappear or tampering with such evidence in any manner; or to prevent such
person from making any inducement, threat or promise to any person acquainted
with the facts of the case so as to dissuade him from disclosing such facts to the
Court or to the police officer; or as unless such person is arrested, his presence in
the Court whenever required cannot be ensured, and the police officer shall record
while making such arrest, his reasons in writing:
Provided that a police officer shall, in all cases where the arrest of a
person is not required under the provisions of this sub-section, record the reasons
in writing for not making the arrest.
 In pith and core, the police office before arrest must
put a question to himself, why arrest? Is it really
required? What purpose it will serve? What object it will
achieve? It is only after these questions are addressed
and one or the other conditions as enumerated above is
satisfied, the power of arrest needs to be exercised. In
fine, before arrest first the police officers should have
reason to believe on the basis of information and
material that the accused has committed the offence.
Apart from this, the police officer has to be satisfied
further that the arrest is necessary for one or the more
purposes envisaged by sub-clauses (a) to (e) of clause
(1) of Section 41 of Cr.PC (Section 35 BNSS).
 Before a Magistrate authorises detention
under Section 167, Cr.PC (Section 187
BNSS) he has to be first satisfied that the
arrest made is legal and in accordance with
law and all the constitutional rights of the
person arrested is satisfied. If the arrest
effected by the police officer does not
satisfy the requirements of Section 41 of the
Code, Magistrate is duty bound not to
authorise his further detention and release
the accused (Section 35 BNSS).
 Other Provisions of Bail

 When False / malicious FIR is alleged to have been registered

or is anticipated that such false / frivolous FIR may be
registered by any person, the person concerned may apply for
Anticipatory Bail before the Sessions Court / High Court.

 When false FIR / Complaint is registered before the Police

station, and the Police, in exercise of their powers, have
effected the arrest of the person named as accused in the said
FIR, then, notwithstanding the offence alleged is Non-
Bailable, the officers In-charge of the Police station, are
empowered to grant Bail in Non-bailable offence cases, where if
it appears to such officer, at any stage of the investigation, that
there are no reasonable grounds for believing that the accused
has committed a non-bailable offence.
 Other Provisions of Bail

 Any person who is arrested must be produced before the nearest

Judicial Magistrates court within 24 hours of his arrest (Section 57
of CrPC, 1973) (Section 58 BNSS)
 When the arrested person is produced before the Judicial
Magistrates, the arrested person or his relative / friend may
present a simple Bail Application, before concerned Magistrates
Court and inform the Magistrate, among other things, that the
said arrest is patently illegal, for being effected without following
the due process of law and in wilful disregard / defiance of
guidelines framed by SC, and may pray for immediate release, on
Bail on execution of Personal Release Bond; and where court
insists for surety, then, some reasonable time may be sought for
furnishing of surety and release may be sought on depositing of
reasonable amount of cash in lieu of furnishing surety thereof; and
before moving Bail Application, an Application for opposing the
remand to the Police may be moved.
 Other Provisions of Bail

 When the person is arrested by Police and is presented before the

nearest judicial Magistrate within 24 hours of his arrest u/s 57 of
Cr.PC, 1973, this Bail Application may be moved before the
concerned Magistrates Court, on the conclusion of the Police
Custody so granted by the Magistrate on the earlier occasion, and
therefore opposing the further Remand; or where the maximum
Remand period of 14 days is over, and thereby the Accused is
compulsorily to be sent to Judicial Custody (Jail) (Section 58
BNSS)

 When a Criminal Prosecution is initiated by way of Complaint

before Magistrates Court, and the offence alleged is a “Bailable
offence, then, at the first hearing of the case, where the Accused
“does not plead guilty” before the Magistrates, then he has to
move an Application before the Magistrates Court, that he be
released on Bail, till the conclusion of trial.
 Other Provisions of Bail

 When the Police fails to file the Charge sheet within the
stipulated time as prescribed under section 167(2), the accused
has a statutory right to be released on Bail. (Section 187
BNSS)

 Where a person has, during the period of investigation, inquiry

or trial under this Code of an offence under any law (not being
an offence for which the punishment of death has been
specified as one of the punishments under that law) undergone
detention for a period, extending up to one-half of the maximum
period of imprisonment specified for that offence under that law,
the said person may move a Bail Application, through Jail or
through the Advocate, praying that he shall be released by the
Court on his personal bond with or without sureties (Section
436A) (Section 479 BNSS)
 Other Provisions of Bail
 When the Police file the Charge sheet in the concerned
Magistrates Court; or where under Private Complaint u/s 200,
the Magistrate takes cognizance of the offence; and in either
of cases, the Magistrate issues Summons / Warrant against
the Accused persons, the Accused Person, in case he “Pleads
not guilty”, he is required to secure Bail from the trial court
(223 BNSS).

 If, in any case triable by a Magistrate, the trial of a person

accused of any non-bailable offence is not concluded within a
period of sixty days from the first date fixed for taking
evidence in the case, such person shall, if he is in custody
during the whole of the said period, be released on bail to the
satisfaction of the Magistrate, unless for reasons to be
recorded in writing, the Magistrate otherwise directs.
 Other Provisions of Bail

 When the Applicant person is convicted of any offence to which

he is charged of, on the date and at the time of order of
conviction, the said guilty person, may make a Bail application
u/s 389(3) of Cr.PC, 1973, before the said trial court itself, so as
to facilitate the said person to prefer an Appeal to the said order
of conviction, before the higher court (Section 430 BNSS)

 Where an appeal is filed by a convicted person and which is

pending, the said person, u/s 389(1) of Cr.PC, 1973, may prefer a
Bail Application before the said Appellate court, inter alia,
praying that order of trial Court / Appellate Court may be
suspended for the time being, and he be released on bail or on
his own bond.
 PRESUMPTIONS
 A presumption is an acceptance of a fact as true or existent
based upon its strong probability evident from the
circumstances.
 According to English Law, a presumption can be of two kinds -
presumption of fact and presumption of law.
 Presumption of Fact : Presumption of fact are those
presumption about things or events that happen in day to
day life, which we accept as true due to inference drawn
logically and naturally by our mind. Such presumptions are
rebuttable from further evidence.
 Presumption of Law : Presumption of law are arbitrary
consequences that are annexed by law to particular facts.
They are legal fiction. They may not be same as the
inferences that we may ordinarily draw but the law prescribes
that such inference may be drawn.
PRESUMPTIONS UNDER THE INDIAN EVIDENCE ACT,
1872/ BHARATIYA SAKSHYA ADHINIYAM, 2023
“MAY” PRESUMPTION
 These presumptions are also known as “Discretionary”
Presumptions.
 The Sections of the Indian Evidence Act which deal with
Discretionary Presumptions relating to documents are
sections 86, 87, 88, 90 and 90-A. (Section 88, 89, 90 &
93 BSA)
 These Presumptions are those in which the words “may
presume” are used in the sections and the words may
presume signifies that the courts of law have discretion to
decide as to whether a presumption is allowed to be
raised or not.
 In the case of such presumptions the courts of law will
presume that a fact is proved unless and until it is said to
be disproved before the court of law or it may call for
proof of a fact brought before it.
PRESUMPTIONS UNDER THE INDIAN EVIDENCE ACT,
1872/ BHARATIYA SAKSHYA ADHINIYAM, 2023
“SHALL” PRESUMPTION

 The words “shall” presume signify that the courts have to

mandatorily raise a presumption.
 Such a presumption when raised shall be considered to
be proved unless and until the presumption is said to be
disproved and there is no discretion left to the court
therefore there is no need for call of proof in this case.
 It is like command of the legislature to the court to raise
a presumption and the court has no choice but to do it.
 The similarity between discretionary and mandatory
presumptions is that both are rebuttable presumptions.
PRESUMPTIONS UNDER THE INDIAN EVIDENCE ACT,
1872/ BHARATIYA SAKSHYA ADHINIYAM, 2023
“CONCLUSIVE PROOF”
 Conclusive Proof is also known as Conclusive
Evidence.
 Conclusive Proof is defined as that one fact is said to
be conclusive proof of another fact when the court
shall on the proof of a certain fact regard another fact
to be proved and the court shall not allow any
evidence which shall be given for the purpose of
disproving such a fact.
 It gives finality to the existence of a fact which is
sought to be established.
 This generally occurs in cases where it is in the larger
interest of society or it is against the governmental
policy.
 This is an irrebuttable presumption.
 The Indian Evidence Act, 1872
Section 112 (Section 116 BSA)
Birth during marriage, conclusive proof of legitimacy

The fact that any person was born during the

continuance of a valid marriage between his mother
and any man, or within two hundred and eighty days
after its dissolution, the mother remaining
unmarried, shall be conclusive proof that he is the
legitimate son of that man, unless it can be shown
that the parties to the marriage had no access to
each other at any time when he could have been
begotten.
 The Indian Evidence Act, 1872
Section 113-A (Section 117 BSA)
Presumption as to abetment of suicide by a married
woman
When the question is whether the commission of suicide by a
woman had been abetted by her husband or any relative of
her husband and it is shown that she had committed
suicide within a period of seven years from the date of her
marriage and that her husband or such relative of her
husband had subjected her to cruelty, the court may
presume, having regard to all the other circumstances of
the case, that such suicide had been abetted by her
husband or by such relative of her husband.

Explanation.--For the purposes of this section, "cruelty" shall

have the same meaning as in section 498A of the Indian
Penal Code (45 of 1860).
 The Indian Evidence Act, 1872
Section 113-B (Section 118 BSA)
Presumption as to dowry death.
When the question is whether a person has committed the
dowry death of a woman and it is shown that soon before her
death such woman had been subjected by such person to
cruelty or harassment for, or in connection with, any demand
for dowry, the court shall presume that such person had
caused the dowry death.

Explanation.--For the purposes of this section, "dowry death"

shall have the same meaning as in section 304B of the Indian
Penal Code.
 The Indian Evidence Act, 1872
Section 114A (Section 120 BSA)
Presumption as to absence of consent in certain
prosecutions for rape

In a prosecution for rape under clause (a) or clause (b) or

clause (c) or clause (d) or clause (e) or clause (g) of sub-
section (2) of section 376 of the Indian Penal Code, where
sexual intercourse by the accused is proved and the
question is whether it was without the consent of the
woman alleged to have been raped and she states in her
evidence before the Court that she did not consent, the
Court shall presume that she did not consent.
 BURDEN OF PROOF
 The responsibility to prove a thing is called burden of proof.
 When a person is required to prove the existence or truthfulness of
a fact, he is said to have the burden of proving that fact.
 The burden of proof is the obligation on a party to establish such
facts in issue or relevant facts in a case to the required degree of
certainty in order to prove its case.
 In general, every party has to prove a fact that goes in his favor or
against his opponent, this obligation is nothing but burden of proof.
 The rules for allocation of burden of proof are governed primarily by
the provisions in Section 101 to 111.
 BURDEN OF PROOF UNDER
INDIAN EVIDENCE ACT, 1872
SECTION CASE ON WHOM THE BURDEN
OF PROOF LIES

103 Burden of proof as to Person who wishes the Court

particular fact to believe in its existence

104 Burden of proving fact to Person who wishes to give

be proved to make such evidence.
evidence admissible

105 Burden of proving that Person accused in such case

case of accused comes
within exceptions
 BURDEN OF PROOF UNDER
INDIAN EVIDENCE ACT, 1872 cont….
SECTIO CASE ON WHOM THE
N BURDEN OF PROOF
LIES
106 Burden of proving fact especially Person with the
within knowledge knowledge of such
fact

107 Burden of proving death of person Person who affirms it

known to have been alive within
thirty years.

108 Burden of proving that person is Person who affirms it

alive who has not been heard of
for seven years.
 ALTERNATIVE
DISPUTE
RESOLUTION
IN CRIMINAL CASES
 PLEA BARGAINING
Chapter XXI-A of Code of Criminal Procedure, 1973
Section 265-A TO 265-L (Section 289-300 BNSS)

 Plea bargaining in criminal cases refers to pre-trial

negotiations between the accused through his/her counsel
and the prosecution during which the accused agrees to
plead guilty in exchange for lesser punishment.
 In plea bargain proceedings, the Investigating Officer, the
Public Prosecutor, the victim of a crime, the complainant
and the person accused of an offence join hands to
voluntarily settle a pending criminal case to each other’s
mutual satisfaction.
 The process is completely voluntary.
 If the plea bargain succeeds, the criminal case is disposed
of in terms of the agreed settlement. If the plea bargain
does not succeed, the criminal case proceeds from the
stage when the plea bargain application was filed.
 WHO CAN APPLY FOR
PLEA BARGAINING
 By any adult accused of an offence that is punishable with
imprisonment of less than seven (7) years,
 The applicant should not have been earlier convicted of a
similar offence.
 Not available if such offence affects the socio-economic
condition of the country or has been committed against a
woman, or a child below the age of 14 years.
 Can be moved at all the stage, cognizance.
 SPECIAL FEATURES OF PLEA
BARGAINING
 The process is 100% voluntary,
 The applicant is likely to get a much reduced punishment,
 There will be quick disposal of the pending criminal case,
 The applicant will avoid the trouble of coming to the court
for several hearings,
 If successful, a plea bargain will result in an amicable and
mutually satisfactory disposition of the pending criminal
case.
WHERE TO FILE APPLICATION
 An application for Plea Bargaining should be filed in the
Court of the Metropolitan Magistrate where the case is
pending.
 No court fee is to be paid on the application or the
accompanying affidavit.

CONTENTS OF PLEA BARGAINING APPLICATION

 The case number (if any),

 The FIR number and date,
 The police station and district concerned,
 The statute and its sections alleged to have been violated,
 The next date of hearing.
 TYPES OF BARGAINING
 Charge Bargaining: It is a bargain or promise between the
prosecutor and defendant to deduct some of the charges brought
against the defendant in exchange of guilty acceptance. When
accused accepts for guilty that he has committed the wrong then
with the approval of prosecution, there can be charge bargaining
but it solely depends upon the will of prosecution. Prosecution
may accept or neglect it. After charge bargaining the defendant
will face specific charge.
 Sentence Bargaining: It is a promise by the prosecutor, after
acceptance of guilty, to recommend the court specific sentence or
bargained sentence or it can be done directly with the trial judge.
For this purpose, accused must be informed about the sentence
likely to be imposed in case he does not accepts his guilt but if he
does so then prosecutor demands for lesser sentence or favorable
sentence instead what he was demanding earlier because of
showing some sort of innocence regarding his guilt or for saving
court’s time.
 REASONS FOR INTRODUCING
PLEA BARGAINING IN INDIA
 Speedy disposal of criminal cases i.e. reduction in
heavy backlogs
 Less time consuming
 End of uncertainty of a case
 Saving legal expenses of both the parties i.e. accused
and state.
 Less congestion in jails
 Under present system, 75% to 90% of the criminal
cases results in acquittal, in this situation it is
preferable to introduce this concept in India.
 It is not fair to keep the accused with hard-core
criminals.
BENEFITS OF PLEA BARGAINING
 IN RESPECT OF VICTIM
 He can easily get the compensation.
 He can save himself from long drawn Judicial Process.
 Less time and money consuming.
 IN RESPECT OF ACCUSED
 In case of minimum Punishment, he will get half punishment.
 If no such punishment is provided, then he will get one fourth of
the punishment provided.
 He may be released on probation or admonition.
 He may get the gain of period already undergone in custody under
section 428 of Cr.P.C. (Section 468 BNSS)
 No appeal lies against the judgment in favour of him.
 Admission of accused cannot be used for any other purposes
except for Plea-bargaining.
 Less time and money consuming.
 COMPOUNDING IN COURT
IN CRIMINAL CASES
 A composition is an arrangement whereby there is
settlement of the differences between the injured party
and the person against whom the complaint is made.
 It is not necessary that the composition should be in
writing. It may be oral.
 If both the parties agree that there has been compromise,
then the Court has to dispose of the case in terms of that
compromise and the petitioner is to be acquitted.
 If, on the other hand, parties differ, then the Court has to
call upon them to lead evidence and then record a finding
on such evidence.
 The offences punishable under laws other than the Penal
Code can be compoundable as well as non-compundable.
 COMPOUNDABLE OFFENCES
SECTION 320 Cr.PC

COMPOUNDABLE WITH THE PERMISSION OF

THE COURT
Section 325, 337, 338, 343, 344, 346, 354, 357,
379, 381, 403, 406, 408, 411, 414, 417, 418, 419,
420, 421, 422, 423, 428, 429, 430, 451, 482,
483,486, 494, 509 IPC

COMPOUNDABLE WHERE THE PERMISSION OF

THE COURT IS NOT REQUIRED
Section 323, 334, 341, 342, 352, 355, 358, 426,
427, 447,448, 491, 497, 498, 500, 501, 502, 504,
506, 508 IPC
 COMPOUNDABLE OFFENCES
SECTION 359 BNSS
COMPOUNDABLE WITH THE PERMISSION OF
COURT

Section 117(2), 125(a), 125(b), 127(1), 127(4), 127(6),

74, 135, 303(2), 306, 314, 316(2), 316(4), 317(2),
417(5), 318(3), 319(2), 318(4), 320, 321, 322, 325,
326(a), 332(c), 347(1), 349, 82(1), 79 BNS

COMPOUNDABLE WHERE THE PERMISSION OF THE

COURT IS NOT REQUIRED
Section 115(2), 122(1), 126(2), 127(2), 131, 133, 136,
324(2), 324(4), 329(3), 329(4), 357, 84, 356(2), 356(3),
356(4), 352, 351(2), 354 BNS