criminal law

BNSS and the pre-cognizance imperative: Procedural safeguard u/s 223 applies even to PMLA Complaints

Summary: The proviso to Section 223(1) of the BNSS, 2023, stipulates that a Magistrate shall not take cognizance of an offence without first affording the accused an opportunity to be heard. By its judgement in Kushal Kumar Agarwal v. Directorate of Enforcement[1] (“Kushal Kumar”),the Hon’ble Supreme Court has clarified that this safeguard under the BNSS shall also apply to complaints filed under Section 44(1)(b) of the Prevention of Money Laundering Act, 2002 (“PMLA”), after July 1, 2024, viz. the date BNSS came into force. The ratio from Kushal Kumar has since been followed inter alia by the High Courts of Delhi and Kerala. These judgements reinforce a significant procedural safeguard for accused persons even under the stringent PMLA, while highlighting a marked departure from the regime under the Code of Criminal Procedure, 1973 (“CrPC”). An associated issue is whether cognizance on a supplementary complaint under the PMLA, filed after July 1, 2024, will also be bound by the safeguard of Section 223(1) of the BNSS, if cognizance on the main complaint was taken prior to July 1, 2024.Continue Reading BNSS and the pre-cognizance imperative: Procedural safeguard u/s 223 applies even to PMLA Complaints

Lawful Silence, Unlawful Assumptions: Bail, Confession, and Constitutional Rights

Summary: The police are legally obligated to conduct investigations and gather evidence through lawful means. Under Article 20(3) of the Constitution, an accused person cannot be compelled to confess, as the right against self-incrimination is a protected fundamental right. Therefore, choosing not to make self-incriminating statements or confessions cannot be construed as “non-cooperation” during a police investigation. Such refusal, being constitutionally valid, cannot be used by the police as grounds to oppose bail or anticipatory bail applications.Continue Reading Lawful Silence, Unlawful Assumptions: Bail, Confession, and Constitutional Rights

Nascent stage of investigation no bar for quashing: Supreme Court clarifies High Court’s power under Section 528 BNSS

Summary: The power to quash a criminal matter under Section 528 BNSS, 2023 (erstwhile Section 482, CrPC, 1973), is well settled. It is a power to be exercised sparingly, within well accepted parameters, including no offence being disclosed, malice, abuse of criminal process, etc. If such relevant factors otherwise stand fulfilled, there is no bar to quashing an FIR, even if the investigation is at a preliminary/ nascent stage.Continue Reading Nascent stage of investigation no bar for quashing: Supreme Court clarifies High Court’s power under Section 528 BNSS

Beyond the Signature: Who Gets a Seat at the Arbitration Table?

Summary: This blog clarifies the prior steps that must be taken before approaching a magistrate with an application under Section 156(3) CrPC- with reference to a recent judgement of the Supreme Court in Anurag Bhatnagar. We explain how the judgement in Anurag Bhatnagar ought not to be taken as a blanket exemption from the pursuing the prior steps.Continue Reading Steps under Section 154 CrPC no longer mandatory? Judgment in Anurag Bhatnagar-unique outlier or shift in jurisprudence?

Breaking the Hierarchy – Power of the Trial Courts to Cancel Bail Granted by Higher Courts

Summary: In this article, we discuss the concept of cancellation of bail in the backdrop of a recent judgment of the Supreme Court that trial courts are empowered to cancel bail granted by higher courts if bail conditions are violated.Continue Reading Breaking the Hierarchy – Power of the Trial Courts to Cancel Bail Granted by Higher Courts

Summary: This article aims to examine the contours of Section 223 of the BNSS, with a special focus on courts’ interpretation of the proviso to Section 223(1) of the BNSS and its practical implications.

Introduction

On December 25, 2023, India enacted a transformative triumvirate of laws – the Bharatiya Nyaya Sanhita, 2023, the Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS”), and the Bharatiya Sakshya Adhiniyam, 2023. These new criminal laws became effective on July 1, 2024, repealing and replacing the long-standing pillars of criminal law – Indian Penal Code, 1860, the Code of Criminal Procedure, 1973 (“CrPC”), and the Indian Evidence Act, 1872, respectively.Continue Reading Demystifying Section 223 of the Bharatiya Nagarik Suraksha Sanhita, 2023

    The Prevention of Money Laundering Act, 2002 (“PMLA”), places proceeds of crime at the core of the offence of money laundering. Before delving into this article, it is imperative to understand the definition of proceeds of crime, which Section 2 (1) (u) of the PMLA[1] defines as “any property derived or obtained by any person, as a result of criminal activity relating to a scheduled offence”.Continue Reading Changing Landscape of Arrest Under the PMLA – Decoding Section 19 Through Jurisprudence

    From Clicks to Cuffs: Understanding Digital Arrest in the Indian Legal Landscapes

    In this blog, we briefly discuss the concept of digital arrest, the provisions under the Bharatiya Nyaya Sanhita, 2023, applicable in case of digital arrest and the growing awareness against steps and steps taken to mitigate the same.Continue Reading From Clicks to Cuffs: Understanding Digital Arrest in the Indian Legal Landscapes

    Is mere possession of proceeds of crime sufficient for trigerring PMLA?

    Introduction:

    A recent decision rendered by the Madras High Court in S. Srinivasan v. The Assistant Director, Directorate of Enforcement, Chennai[1], has held that being in possession of the proceeds of crime and claiming it to be untainted property can independently be perceived as money laundering under Section 3 of the Prevention of Money Laundering Act, 2002 (“PMLA”).

    Although the said decision is in line with the principles previously enunciated by various courts while interpreting the PMLA provisions, such a simple interpretation may possibly lead to unintended situations. The primary reason being that anyone who is merely in possession of proceeds of crime without any genuine knowledge or any involvement therein can be prosecuted under PMLA. This perspective may prove to be counterproductive to the principle of presumption of innocence in criminal law.Continue Reading Is mere possession of proceeds of crime sufficient for trigerring PMLA?

    Criminal Breach of Trust vs. Cheating: Decoding the Confusion

    Introduction

    Offences such as cheating and criminal breach of trust are often invoked in Indian criminal law system. It is common practice that when a First Information Report (“FIR”) is registered under Section 406 of the Indian Penal Code, 1860 (“IPC”) (Section 316 of the Bhartiya Nyaya Sanhita, 2023 (“BNS”)) for criminal breach of trust, the same is also registered under Section 420 of IPC (Section 318 of BNS) for cheating. This practice is on account of a long-drawn confusion between the two offences, wherein the two are often equated and thus understood as offences with similar ingredients.Continue Reading Criminal Breach of Trust vs. Cheating: Decoding the Confusion