INDIA Law and Practice Contributed by: Vijayendra Pratap Singh, Asif Ahmed, Bhanu Jindal and Khushi Mittal, AZB & Partners
AZB & Partners Plot No. A-8, Sector 4 Noida – 201301 Uttar Pradesh India Tel: +91 120 4179999 Fax: +91 120 4179900
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1. Criminal Law 1.1 Criminal Offences
compoundable. However, courts exercising inherent powers under Section 528 of the BNSS may quash proceedings even in respect of non-compoundable offences, if necessary to serve justice or prevent abuse of process. Constituents of an Offence Broadly, in order to establish criminal liability, the pros - ecution must prove the existence of the following two elements, beyond reasonable doubt: • mens rea or guilty intention (the accused must be proven to have knowingly committed the crime, with full knowledge of their actions, and must have mala fide – ie, intent; however, heinous crimes such as rape do not necessarily require guilty intent and the act itself is sufficient); and • actus reus or commission of the illegal act or omis - sion. An attempt to commit an offence, including abetment of a crime, is also punishable under Indian law. 1.2 Burden of Proof Indian criminal law follows the principle of “innocent until proven guilty”. Unless a statute specifically pro - vides for reversing the onus of proof, the burden of proof rests with the prosecution, which must prove its case “beyond reasonable doubt” against the accused. A reverse onus clause is prescribed under certain special statutes, such as the Prevention of Money Laundering Act, 2002 (PMLA) and the Income Tax Act, 1961 (“IT Act”). They provide for a presumption of guilt against the accused persons who must prove
Effective from 1 July 2024, the criminal law regime in India underwent a major overhaul. Presently, Bharatiya Nyaya Sanhita , 2023 (BNS) is the primary legislation enumerating general criminal offences and prescribing punishment. BNS repealed and replaced the Indian Penal Code, 1860 (IPC). Similarly, the previous Code of Criminal Procedure, 1973 (CrPC) and the earlier Indian Evidence Act, 1872, have been repealed and replaced by Bharatiya Nagarik Surkasha Sanhita , 2023 (BNSS), and Bharatiya Sak- shya Adhiniyam , 2023 (BSA), respectively. Cognisable offences are considered serious, allow - ing a police officer to arrest a person without a court warrant. Conversely, for non-cognisable offences, an officer requires a court’s permission before making an arrest. Bailable offences are those where an arrested per - son may seek bail from the police officer/jurisdictional court as a matter of right, on presentation of a bond/ undertaking to ensure their future appearance. In non- bailable offences, bail cannot be claimed as a right and must be applied for before the jurisdictional court. Compoundable offences are those which can be set - tled between the complainant and the accused. The BNSS provides methods for compounding, with or without court involvement. Some offences require court permission to be compounded. Serious offenc - es and certain socio-economic offences are non-
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