Criminal Law GK: Accused Rights, D.K. Basu Safeguards, Limitation, Arrest and Default Bail
Updated legal questions and answers for advocates, students and litigants on the right to counsel, arrest safeguards, criminal complaints, limitation, summons, proclaimed offenders, remand, undertrial detention and statutory default bail.
Current-law note: The Bharatiya Nagarik Suraksha Sanhita, 2023 came into force on 1 July 2024 and replaced the Code of Criminal Procedure, 1973 for matters governed by the new law, subject to the repeal-and-savings provision in Section 531. Older proceedings may therefore continue to be governed by the CrPC where the savings clause applies.
Rights of Accused and Criminal Complaints: Questions 1-10
| No. | Legal question | Updated answer |
|---|---|---|
| 1 | What is the right of an accused to be defended by a lawyer? | Section 340 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) provides that any person against whom proceedings are instituted under the Sanhita may, as of right, be defended by an advocate of his or her choice. Section 341 separately provides for legal aid at State expense in specified cases. |
| 2 | What protection does Article 22(1) of the Constitution give an arrested person? | Article 22(1) requires that an arrested person be informed, as soon as may be, of the grounds of arrest and must not be denied the right to consult and be defended by a legal practitioner of choice. These constitutional protections operate along with the statutory safeguards in the BNSS. |
| 3 | What are the important Supreme Court safeguards in D.K. Basu v. State of West Bengal? | The Supreme Court's D.K. Basu safeguards require transparent arrest and custody procedures, including identifiable arresting officers, preparation of an arrest memo, information to a relative or friend, proper custody records, medical safeguards and judicial oversight. Many of these protections are now reflected in statutory arrest provisions. The Supreme Court has continued to reiterate compliance with D.K. Basu in later decisions. |
| 4 | What is the current provision replacing Section 41A CrPC notice of appearance? | Section 35 BNSS now governs arrest without warrant and notice of appearance. Where arrest is not required under the statutory conditions, the police officer must issue a notice directing the person to appear. A person who complies with the notice should not ordinarily be arrested for that offence unless the officer records reasons showing why arrest has become necessary. |
| 5 | Who can file a criminal complaint? | Ordinarily, a person may set the criminal law in motion by placing facts constituting an offence before the competent Magistrate, unless the BNSS or a special law restricts who may complain or requires sanction, authorisation or a complaint by a specified person or authority. The exact locus depends on the offence and governing statute. |
| 6 | Who may file a complaint on behalf of a body corporate? | A company or other body corporate may act through a duly authorised representative in accordance with its governing law, authorisation and the special statute involved. Personal appearance of a particular officer is not universally mandatory; the court may consider representation and exemption according to the BNSS and the facts of the case. |
| 7 | Who should file or face a complaint involving a sole proprietorship? | A sole proprietorship is generally not a legal person separate from its proprietor. A complaint concerning the business is therefore ordinarily filed by or against the proprietor, while the cause title and allegations should correctly identify the proprietary concern and the individual proprietor as required by the substantive law. |
| 8 | How is a company or registered society represented when it is an accused? | Section 342 BNSS contains the procedure when a corporation or registered society is an accused. The entity acts through its representative in accordance with that provision and other applicable company, society or special-law requirements. |
| 9 | When is prior sanction required to prosecute a Judge or public servant? | Section 218 BNSS governs prosecution of Judges, Magistrates and specified public servants for offences alleged to have been committed while acting or purporting to act in discharge of official duty. Where the section applies, prior sanction of the competent Government is required before cognizance. The section also contains a statutory time framework for a decision on sanction, subject to its terms and other applicable laws. |
| 10 | Where should a criminal complaint ordinarily be filed? | Section 197 BNSS states the ordinary rule that an offence is inquired into and tried by a court within whose local jurisdiction it was committed. Sections 198 to 209 contain exceptions and special jurisdiction rules, including offences involving consequences in another area, journeys, electronic communications and offences committed outside India. |
Limitation, Summons and Conduct of Prosecution: Questions 11-20
| No. | Legal question | Updated answer |
|---|---|---|
| 11 | How are complaints relating to offences affecting administration of justice handled? | Section 215 BNSS restricts cognizance of specified offences involving contempt of lawful authority, public justice and documents given in evidence unless the complaint is made by the authority or court specified by law. The procedural provisions for such court-initiated complaints are contained in Chapter XXVIII, including Sections 379 to 382. It is therefore not treated like an ordinary private complaint. |
| 12 | What is the limitation period for taking cognizance of certain offences? | Sections 514 to 519 BNSS govern limitation for taking cognizance of certain offences. Under Section 514, the limitation is six months where the offence is punishable with fine only, one year where imprisonment does not exceed one year, and three years where imprisonment exceeds one year but does not exceed three years. Offences outside these categories may not be subject to this Chapter's limitation bar, though special laws can prescribe their own limits. |
| 13 | When does the limitation period commence? | Section 515 BNSS provides that limitation generally begins on the date of the offence. If the offence was not known to the aggrieved person or police, it begins from the first day it became known to either, whichever is earlier. If the offender's identity was unknown, it begins from the first day the identity became known to the aggrieved person or investigating police officer, whichever is earlier. |
| 14 | Can a court extend the limitation period? | Yes. Section 519 BNSS permits a court to take cognizance after expiry of the limitation period if the delay has been properly explained or if doing so is necessary in the interests of justice. Sections 516 to 518 also provide rules for exclusion of time, court holidays and continuing offences. |
| 15 | What must happen before process is issued in a private complaint? | The Magistrate follows Sections 223 to 227 BNSS, including examination of the complainant where required, any inquiry or investigation ordered before process, and a decision whether sufficient ground exists to proceed. Under Section 227, no summons or warrant is issued until the prosecution witness list has been filed, and in a written complaint the process must be accompanied by a copy of the complaint. |
| 16 | What is process fee? | Process fee is the court fee, if prescribed, for issuing or serving summons, warrants or other process. Section 227(4) BNSS recognises that where process fee or another prescribed fee is payable, process need not issue until it is paid. The amount and method of payment depend on applicable court rules and local practice. |
| 17 | When must process fee be paid? | Where the applicable rules require process fee, it should be paid within the time directed by the court. Section 227(4) BNSS provides that process may be withheld until the fee is paid and that a complaint may be dismissed if the required fee is not paid within a reasonable time. The current e-filing or court-fee procedure should be checked for the particular court. |
| 18 | Who may conduct a prosecution before a Magistrate? | Public Prosecutors and Assistant Public Prosecutors conduct prosecutions assigned to them. Under Section 339 BNSS, a Magistrate may permit another person to conduct the prosecution, subject to the statutory restrictions. A privately instructed advocate in a prosecution conducted by the Public Prosecutor ordinarily acts under the Public Prosecutor's directions as provided by Section 338. |
| 19 | How is a summons served on an accused? | Sections 63 to 71 BNSS govern summons and service. Depending on the person and circumstances, service may be personal, through prescribed substituted modes, on corporate bodies or firms, outside local limits, or through electronic means where permitted. In a written complaint case, Section 227(3) requires the summons or warrant to be accompanied by a copy of the complaint. |
| 20 | Can an accused simply avoid service of summons? | No. Deliberately evading lawful process can lead the court to use other modes of service and, where statutory conditions are satisfied, coercive process such as a warrant. The appropriate course is to comply with the summons or seek exemption, recall, cancellation or other lawful relief from the court. |
Court Appearance, Proclaimed Offender and Arrest: Questions 21-28
| No. | Legal question | Updated answer |
|---|---|---|
| 21 | What should a person do after receiving summons as an accused? | The person should comply with the summons on the date and in the manner directed, either personally or through an advocate where appearance has lawfully been dispensed with. Section 228 BNSS empowers a Magistrate in appropriate cases to dispense with personal attendance and permit appearance through an advocate. |
| 22 | How is a non-bailable warrant executed? | A warrant of arrest must be executed in accordance with Sections 72 to 83 BNSS. It is ordinarily directed to police, though the BNSS permits warrants to be directed to other persons in specified circumstances. The substance of the warrant must be notified to the person arrested, and the arrested person must be brought before the court without unnecessary delay. |
| 23 | What can an accused do if unable to appear on the date fixed by the court? | An application seeking exemption from personal appearance, adjournment or another appropriate direction should be made before the court as early as possible, preferably before the hearing date. Whether exemption is granted is a judicial decision depending on the nature of the case, previous orders, bail conditions and reasons shown. |
| 24 | What may happen if an accused does not appear before court? | Unexplained non-appearance may lead to cancellation of exemption or bail, issuance of coercive process, proceedings on bonds or bail bonds, and in appropriate cases proclamation and attachment proceedings. The consequence depends on the existing process, service, reasons for absence and orders already passed. |
| 25 | When may an accused be declared a proclaimed offender? | Section 84 BNSS permits proclamation when the court has reason to believe that a person against whom a warrant has been issued has absconded or is concealing himself so that the warrant cannot be executed. A person accused of an offence punishable with imprisonment of ten years or more, life imprisonment or death may, after the statutory inquiry and failure to appear, be declared a proclaimed offender. Attachment of property is governed principally by Sections 85 to 89. |
| 26 | What safeguards must police follow at the time of arrest? | Police must follow the Constitution, BNSS and binding Supreme Court safeguards. Important duties include lawful grounds and necessity for arrest, identification of the arresting officer, arrest memorandum and records, communication of grounds of arrest, information to a relative or nominated person, medical safeguards, avoidance of unnecessary restraint and prompt production before a Magistrate. Special restrictions apply to arrest of women, including the statutory procedure for arrest after sunset and before sunrise. |
| 27 | When must an arrested person be produced before a Magistrate? | Article 22(2) of the Constitution and Sections 57 and 58 BNSS require prompt production. A person arrested without warrant cannot ordinarily be detained by police beyond twenty-four hours, excluding necessary journey time, without authority of a Magistrate under Section 187. |
| 28 | Can a child in conflict with law be detained in a police lock-up or jail? | No. The Juvenile Justice (Care and Protection of Children) Act, 2015 contains a separate child-protection framework. A child apprehended for an alleged offence must be dealt with by the Child Welfare Police Officer or Special Juvenile Police Unit and produced before the Juvenile Justice Board. If not released on bail, the child is to be kept in an observation home or place of safety as provided by the Act, not in a police lock-up or jail. |
Police Custody, Undertrial Detention and Default Bail: Questions 29-32
| No. | Legal question | Updated answer |
|---|---|---|
| 29 | How long can an accused be kept in police custody during remand? | Section 187(2) BNSS permits police custody for a total period not exceeding fifteen days, either continuously or in parts. Unlike the earlier CrPC framework, these fifteen days may be authorised at any time during the initial forty days of a sixty-day detention period or the initial sixty days of a ninety-day detention period, as applicable, subject to judicial authorisation and production requirements. |
| 30 | What are the maximum statutory remand periods before default bail may arise? | Under Section 187(3) BNSS, total authorised custody during investigation cannot exceed ninety days where the offence is punishable with death, life imprisonment or imprisonment for ten years or more, and sixty days for other offences covered by the provision. On expiry of the applicable period, the accused is entitled to statutory or default bail if prepared to and does furnish bail, subject to settled law on when that right is invoked. |
| 31 | What is the maximum period for which an undertrial prisoner can ordinarily be detained? | Section 479 BNSS provides a separate undertrial-release rule. Subject to its exclusions and conditions, an undertrial who has undergone detention up to one-half of the maximum imprisonment prescribed for the offence is to be released on bail. A first-time offender who has never previously been convicted is to be released on bond after detention up to one-third of the maximum term. The provision does not apply in the same way to offences for which death or life imprisonment is specified, and multiple pending offences or cases are expressly addressed by Section 479(2). |
| 32 | What is default bail if investigation is not completed within 60 or 90 days? | Default bail is the statutory right arising under Section 187(3) BNSS when the investigation is not completed within the applicable sixty-day or ninety-day period and the accused is prepared to furnish bail. The ninety-day period applies to offences punishable with death, life imprisonment or imprisonment for ten years or more; the sixty-day period applies to other offences covered by the section. The right must be claimed in accordance with the governing Supreme Court law before a valid final report defeats an unexercised entitlement. |
Official References
Ministry of Home Affairs
- New Criminal Laws
India Code - Bharatiya Nagarik Suraksha Sanhita, 2023
India Code
- Juvenile Justice (Care and Protection of Children) Act, 2015
Supreme Court of India
Supreme Court
- Judgments
Disclaimer: This page provides general legal information and is not legal advice. Applicability may depend on the date of the offence or proceeding, Section 531 BNSS savings, a special statute, State amendments, court rules and binding judicial decisions. Verify the current provision before acting in a particular case.