Criminal Defence at the Sessions Court, Indore

The chambers appear on the criminal side before the courts at Indore in sessions trials, in criminal complaint cases, in applications for bail, and in matters under special statutes including the Narcotic Drugs and Psychotropic Substances Act 1985 and the Motor Vehicles Act 1988.

The change in the criminal law

Three statutes replaced the older criminal codes with effect from 1 July 2024.

The change is not retrospective. An offence committed before 1 July 2024 continues to be tried under the Indian Penal Code, and a case registered before that date continues under the Code of Criminal Procedure. In practice the courts at Indore are running both sets of provisions side by side, and will be for some years. One of the first things to establish in any criminal matter is therefore the date of the alleged offence and the date of registration, because they determine which code applies, which section numbers are correct, and which procedure governs.

Which court hears what

• Judicial Magistrate, First Class. Offences punishable with imprisonment up to three years, and the bulk of complaint cases.
• Chief Judicial Magistrate. Offences with higher punishment within magisterial jurisdiction.
• Sessions Judge and Additional Sessions Judge. Offences exclusively triable by the Court of Session, and appeals from the magistracy. Matters under the NDPS Act come before the Special Judge.

Stages of a criminal matter

1. FIR or complaint. Information of a cognizable offence is recorded under Section 173 of the BNSS, previously Section 154 of the CrPC. For certain offences punishable with three to seven years, Section 173(3) permits a preliminary enquiry before registration.
2. Investigation and arrest. Investigation by the police, with the safeguards on arrest, notice of appearance, and custody.
3. Bail. Dealt with separately on the bail page.
4. Charge sheet and cognizance. The final report is filed and the court takes cognizance.
5. Framing of charge. The stage at which discharge may be sought if the material does not disclose an offence. This is an important stage and is often treated too lightly.
6. Prosecution evidence and cross examination.
7. Statement of the accused, defence evidence, arguments and judgment.
8. Appeal or revision.

Criminal complaint cases

A significant proportion of the criminal matters listed at Indore are complaint cases rather than police cases. These include private complaints, and complaints under Section 138 of the Negotiable Instruments Act, which are criminal in form though commercial in substance and are dealt with separately on their own page. Complaint cases begin with the recording of the complainant's statement, followed by an enquiry and the issue of process.

Quashing

Where the allegation does not disclose an offence, or the proceeding is an abuse of process, the remedy is an application to the High Court under Section 528 of the BNSS, previously Section 482 of the CrPC, invoking the inherent powers of the High Court. The power exists to give effect to orders under the Sanhita, to prevent abuse of the process of the court, and to secure the ends of justice. It is exercised sparingly and within accepted parameters, and the Supreme Court has clarified that an early stage of investigation is not in itself a bar to quashing where those parameters are otherwise satisfied.

NDPS matters

Proceedings under the NDPS Act are governed by a separate scheme. The quantity involved, small, intermediate or commercial, determines the punishment and, critically, whether the restrictions on bail in Section 37 apply. Compliance by the investigating agency with Sections 42, 50, 52 and 55, dealing with the recording of information, the right to be searched before a Gazetted Officer or Magistrate, and the seizure and safe custody of the substance, is examined closely by the courts. These are matters of record rather than of argument, and the record has to be examined carefully at the outset.

Motor Vehicles Act, Section 185

Prosecutions for driving under the influence are tried by the magistracy at Indore and appear in the cause lists as complaint cases. The evidentiary basis, the manner of testing and the procedure followed are the matters usually in issue.

Frequently asked questions

Which law applies to a criminal case at Indore, the IPC or the BNS?

It depends on the date of the alleged offence. An offence committed on or after 1 July 2024 is dealt with under the Bharatiya Nyaya Sanhita 2023 and the procedure under the Bharatiya Nagarik Suraksha Sanhita 2023. An offence committed before that date continues under the Indian Penal Code 1860 and the Code of Criminal Procedure 1973. Both sets of provisions are currently in use before the courts at Indore.

Can an FIR be cancelled or quashed?

An FIR can be quashed by the High Court in exercise of its inherent powers under Section 528 of the BNSS, previously Section 482 of the CrPC, where no offence is disclosed, where the proceeding is malicious, or where it amounts to an abuse of the process of the court. The power is exercised sparingly. Separately, the police may file a closure report on completing the investigation, which the Magistrate may accept or reject.

What happens at the stage of framing of charge?

The court examines the material filed with the charge sheet to decide whether there is sufficient ground to proceed. If there is not, the accused is discharged. If there is, a charge is framed and the trial proceeds. It is the last point at which the case can be brought to an end without a full trial, and the material should be examined carefully before the stage is reached.

Is a person required to attend every hearing in a criminal case?

Ordinarily the accused must be present, because criminal trials proceed in the presence of the accused. Exemption from personal appearance can be sought under the provisions of the Sanhita where there is sufficient reason, and is commonly granted for routine dates in complaint cases once the accused has appeared and furnished bail. Presence is necessary at the framing of charge, at the recording of the accused's statement, and at judgment.

What is the difference between a sessions case and a complaint case?

A sessions case is one committed to the Court of Session because the offence is exclusively triable by that court, and it arises from a police investigation and charge sheet. A complaint case begins with a private complaint filed directly before a Magistrate rather than with an FIR, and the court proceeds by recording the complainant's statement and holding an enquiry before issuing process.