LOC

If you need help with loc, this guide sets out the legal position and the next steps. Legals365 is the legal platform of Advocate B.K. Singh and associates, based in Delhi NCR.

In short. Criminal trial defence means protecting the accused at every stage after the chargesheet: scrutiny of documents, discharge, framing of charge, cross-examination of prosecution witnesses, the accused's statement, defence evidence and final arguments. If the trial court convicts, an appeal lies under section 415 of the BNSS, within 60 days to the High Court or 30 days to the Sessions Court, with suspension of sentence and bail pending appeal.

A criminal trial is where the accusation in an FIR or complaint is finally tested. Until the chargesheet is filed, the case belongs to the police; once the court takes cognizance, it belongs to the court, and the rules change. Witnesses have to come and say on oath what they claimed to the IO, documents have to be proved in the proper way, and the accused, who does not have to prove innocence, gets to cross-examine every witness and to argue that the prosecution has not proved its case beyond reasonable doubt. Most acquittals are won in the trial court, not in the High Court, and most of them are won through careful work on the record long before final arguments.

This page explains how a criminal trial runs under the Bharatiya Nagarik Suraksha Sanhita 2023 (BNSS) and the Bharatiya Sakshya Adhiniyam 2023 (BSA), what the defence can do at each stage, how appeals, revisions and suspension of sentence work after a conviction, and how the approach changes with the offence, the accused and the court. It applies to a trespass case before a magistrate, a cheating case with a thick chargesheet, a prosecution under a special law, or a serious offence tried by a Sessions Court.

Law

Bharatiya Nagarik Suraksha Sanhita 2023 (procedure), Bharatiya Nyaya Sanhita 2023 (offences), Bharatiya Sakshya Adhiniyam 2023 (evidence), with the CrPC, IPC and Evidence Act still applying to many older cases; special Acts where the offence is under one

Forum

Judicial Magistrate or Chief Judicial Magistrate for most offences; Sessions Court for offences punishable with death, life or more than seven years; special courts for NDPS, POCSO, PMLA, CBI and similar cases; appeals and revisions to the Sessions Court or High Court

Time limit

Discharge application within 60 days of committal or supply of documents; appeal from conviction within 60 days to the High Court or 30 days to the Sessions Court; revision within 90 days; SLP within 90 days of the High Court judgment

Documents

FIR, chargesheet and all annexed statements and documents, order sheets, bail orders, charge, deposition of witnesses, certified copy of judgment and order on sentence, vakalatnama

What criminal trial defence covers

Criminal trial defence covers everything from the day the chargesheet or complaint reaches the court to the day the judgment is pronounced, and then whatever follows: appeal, revision, suspension of sentence, or a petition to the Supreme Court. The work is different from bail or quashing. Bail asks whether a person should be in custody while the case goes on. Quashing asks whether the case should exist at all. Trial defence accepts that the case exists and sets out to show that the evidence does not prove it.

The trial starts with cognizance. A magistrate takes cognizance on a police report (the chargesheet) under the BNSS, or on a private complaint after examining the complainant and, under the new law, hearing the proposed accused before cognizance (section 223). Summons or warrant follows, the accused appears, bail is dealt with, and copies of the police report and documents are supplied. If the offence is exclusively triable by the Court of Session, the magistrate commits the case there.

The law that governs a criminal trial

Types of criminal trial and where they are held

Supply of documents and the first hearings

The first job in any trial is to get every document the prosecution relies on. In a case on police report, section 230 of the BNSS requires the magistrate to supply the accused, free of cost and within 14 days of appearance, copies of the police report, the FIR, statements recorded under section 180, confessions and statements recorded by a magistrate under section 183, and the other documents forwarded with the report. Bulky documents may be offered for inspection instead, and the new law allows supply in electronic form.

Read the supplied set against the chargesheet's list of documents line by line. Missing pages, unsigned statements, illegible seizure memos and electronic records sent without the certificate are common. Point them out in writing and ask the court to direct supply before the case moves to discharge or charge, because the 60-day clock for a discharge application usually runs from supply. A note on the order sheet that documents were supplied when they were not can later be used against the accused.

In a sessions case, the magistrate commits the case to the Court of Session after supply of documents, and section 232 asks for committal within 90 days of cognizance, extendable to 180 days for reasons in writing. Keep bail bonds in order and attend these early dates unless exempted.

Discharge: the first real chance to end the case

A discharge application asks the court to release the accused before the trial begins, because the material on record does not give sufficient ground to proceed. In a sessions case it is filed under section 250 of the BNSS within 60 days of committal; in a warrant case on police report, under section 262 within 60 days of supply of documents. These deadlines are new. Under the old CrPC there was no fixed time, and some courts now treat a late application strictly, so file within time even if the arguments will take longer.

The test at this stage is limited. The court does not weigh the evidence as at the end of the trial. It asks whether the material, taken at face value, discloses the ingredients of the offence and raises a grave suspicion against the accused. A discharge succeeds where the chargesheet itself does not show an essential ingredient (no entrustment in a breach of trust case, no deception at the start in a cheating case, no intent in a trespass case), where the only evidence is inadmissible, or where sanction or another legal bar is missing.

Defence material outside the chargesheet is generally not considered at discharge. If discharge is refused, the order can be challenged in revision. A partial discharge often changes the whole case, because a non-bailable or sessions-triable charge may drop away.

Framing of charge, plea and plea bargaining

If the court does not discharge, it frames a charge in writing, within 60 days of the first hearing on charge under the BNSS (sections 251 and 263). Read it carefully. A charge that lumps different transactions together, names the wrong law or leaves out particulars causes prejudice later, and objections are easiest at this stage.

The charge is read and explained to the accused, who pleads guilty or claims trial. A plea of guilty ends the trial and leaves only a narrow appeal on sentence, so it should never be entered casually; check the effect on a government job, passport, visa or professional licence first.

Plea bargaining under Chapter XXIII of the BNSS (sections 289 to 300) is available for offences punishable up to seven years, other than offences affecting the socio-economic condition of the country and offences against women or children. The application is now to be filed within 30 days of the framing of charge. A mutually satisfactory disposition is worked out with the victim and prosecution, and the court may give a reduced sentence, with first offenders eligible for a further reduction. It is used far less than it could be, often because nobody raises it in time.

Prosecution evidence and cross-examination

Cross-examination is where most criminal trials are won or lost. The prosecution calls its witnesses: the complainant, eyewitnesses, the IO, seizure witnesses, doctors, forensic officers and officials who produce records. Each gives examination-in-chief, and the defence cross-examines to test memory, bring out contradictions with earlier statements, expose motive, and establish facts that help the defence version. Contradictions with a section 180 statement can be proved by confronting the witness with the relevant part and then proving it through the IO.

Good cross-examination is short, planned and based on documents. It does not repeat the chief, does not argue with the witness, and does not ask a question whose answer the advocate does not already know. In cases that reach Advocate B.K. Singh's office mid-trial, the weak point is often that the defence version was never put to the prosecution witnesses at all, so the court later treats the defence evidence as an afterthought. If the defence says the accused was elsewhere, or the money was a loan, or the complainant had a property quarrel with him, that has to be suggested to the relevant witnesses.

Witnesses who turn hostile are common, and the parts of their evidence that support either side can still be used. Section 346 of the BNSS allows no more than two adjournments at a party's request where the circumstances are not beyond its control, and witnesses can now be examined by audio-video means. Section 348 lets the court recall a witness where that is essential to a just decision, which is the remedy if earlier counsel cross-examined badly.

Electronic records, forensics and documents in a criminal trial

Electronic evidence is now in almost every chargesheet: CCTV footage, call detail records, WhatsApp chats, emails, bank statements and location data. Under section 63 of the BSA, a copy of an electronic record is admissible only with a certificate in the prescribed form, signed by the person in charge of the device and by an expert, giving details such as the hash value. A missing or defective certificate is a frequent defence point, though courts may allow the prosecution to file it later if the trial is still going on.

Forensic evidence has become more central under the BNSS. For offences punishable with seven years or more, section 176(3) requires a forensic team to visit the scene and record the process on video. Search and seizure are to be recorded by audio-video means under section 105. The defence should ask for those recordings, check the chain of custody of seized articles (when sealed, where kept, when sent to the laboratory, whether the seals matched), and examine the forensic report for gaps. A report that does not match the seizure memo is worth more than an hour of general argument.

The accused's statement and defence evidence

After the prosecution closes, the court questions the accused personally under section 351 of the BNSS (old section 313 CrPC) on every incriminating circumstance in the evidence. The accused is not on oath, cannot be punished for refusing to answer or for giving false answers, and the answers can be considered for or against him. Any circumstance not put to the accused generally cannot be used against him, so a careless questionnaire is a ground of appeal. Prepare the answers with counsel and keep them consistent with the suggestions made in cross-examination.

If, after the prosecution evidence and the accused's statement, there is no evidence that the accused committed the offence, the Sessions Court must acquit at that point under section 255. Otherwise the accused is called to enter on his defence. Defence evidence is optional and should be led only if it helps: an alibi with documentary support, a bank record showing a loan, a doctor explaining an injury, an official proving a record. A weak defence witness can do more harm than good, because the prosecution cross-examines him too.

The accused can also give evidence on oath, but only on his written request, and he is then cross-examined by the public prosecutor. In many cases the safer route is to rely on the prosecution's own record and let the burden stay where the law puts it.

Bail, attendance and conduct during the trial

Bail granted during investigation usually continues through trial, and an accused who appears on summons after a chargesheet filed without arrest is often admitted to bail on furnishing bonds, in line with the Supreme Court's guidelines in Satender Kumar Antil v CBI (2022). Where custody continues, section 479 of the BNSS entitles an undertrial who has served half the maximum sentence to release, and a first-time offender to release after one third. Bail applications during trial go to the trial court under section 480 or 483, and then to the High Court. Our pages on regular and interim bail and anticipatory bail cover those applications in detail.

Attendance matters. The accused must be present when the charge is framed, when the statement under section 351 is recorded and when judgment is pronounced, and on other dates unless exempted. Repeated absence can lead to cancellation of bail, issue of warrants, and in serious cases proclamation as an absconder. Under section 356, a proclaimed offender who has absconded to evade trial can now be tried and even convicted in his absence after notices, which makes absence far more dangerous than under the old Code.

Final arguments, judgment and sentence

Final arguments pull the record together. Give the court a short written synopsis: each ingredient of the offence, the witnesses relied on for it, the contradictions, the legal defects (sanction, certificate, chain of custody, delay in FIR), and the defence version with its support on record.

Section 258 of the BNSS requires the Sessions Court to give judgment within 30 days of the end of arguments, extendable to 45 days for specific reasons. If the accused is convicted, the court must hear him on sentence before passing it, separately from the judgment. This hearing is not a formality. Age, family responsibilities, health, absence of previous convictions, time already spent in custody, conduct during the trial and any settlement with the victim all go in, with documents.

Sentencing options include fine, imprisonment, community service for certain petty offences, probation under section 401 of the BNSS or the Probation of Offenders Act 1958, and compensation to the victim under section 395. Custody already undergone is set off under section 468. For short sentences, ask the trial court on the day of conviction to suspend the sentence so an appeal can be filed.

How to file a criminal appeal against conviction

The steps below apply to an appeal by a convicted accused. An appeal against acquittal by the state or the complainant follows a different route, explained after this section.

1. Apply for the certified copy at once

   Apply for the certified copy of the judgment and order on sentence the same day. The time taken to obtain it is excluded from limitation, but only from the date of application, so delay in applying eats into the appeal period. Free copies are given to an accused sentenced to imprisonment.

2. Check the appeal court and the deadline

   From a magistrate's conviction the appeal lies to the Sessions Court within 30 days; from a Sessions Court conviction, to the High Court within 60 days (Article 115 of the Limitation Act). Where the sentence is very small, section 417 of the BNSS may bar an appeal, and revision is the remedy.

3. Prepare grounds from the record

   Grounds should be specific: misreading of a witness's evidence, reliance on inadmissible material, a circumstance not put under section 351, missing sanction, a defective section 63 certificate, an unexplained delay in the FIR, or a sentence out of proportion. Attach the judgment, the charge, the depositions and the exhibits the grounds rely on.

4. File the appeal with an application for suspension of sentence

   The appeal memo, vakalatnama and an application under section 430 for suspension of sentence and bail are filed together. If the accused is in custody, a jail appeal is also possible, but a properly drafted appeal through counsel is usually heard faster.

5. Get the record and prepare for hearing

   The appeal court calls for the trial court record. Prepare a paper book with the depositions and exhibits in order. Criminal appeals in the High Court can take years to reach final hearing, so keep the bail conditions and address details current.

6. Final hearing and further remedy

   The appeal court can acquit, reduce the sentence, alter the conviction to a lesser offence, or order a retrial in rare cases. Against a Sessions Court's appellate judgment, revision lies to the High Court; against a High Court judgment, a special leave petition lies to the Supreme Court within 90 days.

Never let the appeal period lapse while waiting for a settlement. File within time and pursue the settlement in parallel.

Appeal routes: who can appeal, and where

A convicted person appeals under section 415 of the BNSS: from a magistrate to the Sessions Court, and from a Sessions Court or special court to the High Court. A conviction on a guilty plea can only be appealed on the extent or legality of the sentence. The state can appeal against an inadequate sentence under section 418, and in such an appeal the accused can argue for acquittal or reduction.

An appeal against acquittal is filed under section 419. The state appeals to the High Court with leave (to the Sessions Court in certain cases on the District Magistrate's direction), within 90 days. A complainant in a complaint case needs special leave from the High Court, sought within 60 days, or six months if the complainant is a public servant. Courts are slow to reverse an acquittal, because the presumption of innocence is strengthened by it; the appellant has to show the view taken was not a possible view of the evidence.

A victim also has a separate right of appeal against acquittal, conviction for a lesser offence or inadequate compensation, now in section 413 of the BNSS, which does not depend on the state deciding to appeal. Further appeals lie to the Supreme Court by special leave under Article 136; see our page on Supreme Court SLPs and criminal appeals.

Suspension of sentence and bail pending appeal

An appellate court can suspend the sentence and release the convicted person on bail while the appeal is pending, under section 430 of the BNSS (old section 389). For a sentence of three years or less, the trial court itself can grant bail for a period to allow the appeal to be filed, and appeal courts usually suspend such sentences as a matter of course. For fines, suspension may be conditional on deposit of part of the amount. In cheque bounce appeals, the court may order deposit of at least 20 percent of the fine or compensation under section 148 of the NI Act.

For longer sentences the court looks at the gravity of the offence, the strength of the conviction on a first reading, the time already spent in custody and the likely delay in hearing the appeal. Where the appeal cannot be heard soon and the convict has served a large part of a fixed-term sentence, courts often suspend it. For life sentences, the High Courts and the Supreme Court have treated long custody (commonly several years) with the appeal not in sight as a strong ground. The public prosecutor must be given an opportunity to oppose suspension in cases punishable with death, life or ten years or more.

Revision, quashing and other High Court remedies during trial

Revision under sections 438 to 442 of the BNSS lets the Sessions Court or the High Court examine the legality, correctness or propriety of an order of a lower criminal court. It is used against orders refusing discharge, framing charge, summoning additional accused, or rejecting an important application, and against final orders in petty cases where no appeal lies. Limitation is 90 days. No revision lies against a purely interlocutory order, and a person who has chosen revision in the Sessions Court cannot file a second revision in the High Court.

The High Court's inherent power under section 528 of the BNSS (old section 482) can be used during trial to quash proceedings that are an abuse of process, including on compromise in cases that are mainly private in nature. Quashing at the trial stage is harder than at the FIR stage because evidence may have been led, but it remains possible where the dispute has been settled or a clear legal bar exists. Our page on quashing of FIR and criminal proceedings deals with this in detail.

How the defence changes with the kind of offence

In general offences under the BNS, such as theft, trespass, hurt, intimidation or obstruction of a public servant, the case usually rests on oral evidence and the defence turns on witness credibility, delay in the FIR, motive and the medical or site evidence. In cheating, forgery and breach of trust cases the paper trail decides: the agreement, the payments, the communications and whether the dispute is really civil. Our page on economic offences and EOW cases covers those investigations.

Under special laws the burden can shift. The NDPS Act presumes culpable mental state once possession is shown, so the defence concentrates on search safeguards under sections 42 and 50, sampling and chain of custody (see our page on NDPS and drug cases). In counterfeit goods cases under the Trade Marks Act and Copyright Act, the questions are who owns the mark, whether the seized goods were actually compared with genuine ones, and whether the search followed the Act's safeguards. In smuggling cases under the Customs Act, statements to customs officers are not hit by the bar on police confessions, so their voluntariness and retraction become the battleground.

Regulatory offences, such as illegal dumping or pollution offences, often turn on sanction, the authority of the complaining officer and the sampling procedure. Since the Jan Vishwas (Amendment of Provisions) Act 2023, several environmental contraventions carry monetary penalties instead of prosecution, so check whether the offence charged still exists in that form. Cyber offences turn on electronic evidence; see our page on cyber crime cases.

How it changes with the accused and the court

A first-time accused in a minor case has the widest range of options: compounding under section 359 where the offence allows it, plea bargaining, probation, or an argued acquittal. A company and its directors are tried differently: the company appears through a representative, and a director is liable only where the law makes officers in charge liable or his own role is shown. A public servant usually needs sanction to prosecute, and its absence or a defective sanction order is a complete answer at that stage. A person who was under 18 on the date of the offence is dealt with by the Juvenile Justice Board, not an ordinary court, and the age claim can be raised at any stage.

For an NRI or someone working outside Delhi NCR, attendance is the practical problem. Courts allow exemption applications and video appearance for some stages, but the accused must be physically present for key steps unless excused, so plan travel around those dates.

The court also shapes the case. Delhi's criminal courts sit at Tis Hazari, Karkardooma, Rohini, Dwarka, Saket, Patiala House and Rouse Avenue; Noida and Greater Noida cases are heard at the Surajpur district court, and Ghaziabad cases at the Ghaziabad district court. Each has its own listing habits, described on our page on district court cases in Delhi NCR.

Papers to collect for a criminal trial or appeal

• Copy of the FIR or complaint, and the date of registration
• Complete chargesheet with all statements, seizure memos, site plans, medical and forensic reports, and the list of witnesses and documents
• Electronic evidence supplied (CDs, pen drives, CCTV clips) and the section 63 BSA or section 65B certificate
• Certified copies of all order sheets, bail orders and bail bonds
• Order on discharge and the charge as framed
• Depositions of every witness and the exhibits marked through them
• The accused's statement under section 351 BNSS or section 313 CrPC
• Certified copy of the judgment and the separate order on sentence, with the date of applying for it
• Documents for the sentence hearing: age proof, medical records, family responsibilities, employment, and custody certificate from jail

Mistakes that hurt a criminal defence, and what to do this week

The mistakes repeat. People miss the 60-day window for discharge because nobody checked when documents were supplied. They let a key witness go without putting the defence version. They skip dates and face a warrant just as the case was going well. And after a conviction they wait for a settlement while the appeal period runs out.

When Advocate B.K. Singh takes over a trial file midway, the first thing he does is rebuild the record: every order sheet, every deposition, every exhibit, in date order, with a note of what is still pending and which deadline is next. That alone often shows a witness who was never cross-examined, a document that was never proved, or an application that the court never decided. It is unglamorous work, and it is where the defence is usually found.

This week, collect the FIR, chargesheet and order sheets, and note the next date and what is listed. Check whether all documents were supplied, and when. If a judgment has come, apply for the certified copy today and diary the appeal deadline. If the trial is near its end, make sure the defence version has been put to every relevant witness. If you want the papers checked before the next date, the team of Advocate B.K. Singh at Legals365 can review them and tell you the next step. Where the case also involves bail or a fresh FIR, our page on FIRs and police complaints explains the earlier stage.

Frequently asked questions

How long does a criminal trial take in India?

A summons case before a magistrate can finish in a year or two, while a sessions trial often takes three to five years or more. The BNSS sets timelines for discharge, charge and judgment and limits adjournments, but the number of witnesses and the court's workload still decide the pace. Regular attendance and prompt applications by the defence help avoid avoidable delay.

What is the difference between discharge and acquittal?

Discharge happens before the charge is framed, when the court finds no sufficient ground to proceed. Acquittal comes after the trial, when the prosecution fails to prove the charge beyond reasonable doubt. Both end the case for the accused, but an order of discharge can be challenged in revision and fresh material can sometimes revive the case.

What is the time limit for filing a discharge application under the BNSS?

In a sessions case the application under section 250 must be filed within 60 days of committal. In a warrant case on police report, the application under section 262 must be filed within 60 days of supply of documents. File within time even if the documents are incomplete, and point out the missing documents in the same application.

Can an accused refuse to answer questions under section 351 BNSS?

Yes. The accused is not on oath and cannot be punished for refusing to answer or for giving false answers. The court can, however, draw an inference from the answers or from silence, so the answers should be prepared carefully and match the defence suggestions in cross-examination.

What is the limitation period for a criminal appeal against conviction?

An appeal to the High Court must be filed within 60 days, and an appeal to the Sessions Court within 30 days, from the date of the sentence. Time spent obtaining the certified copy is excluded if the copy was applied for promptly. Delay can be condoned for sufficient cause, but each day must be explained.

Can the victim appeal against an acquittal?

Yes. Under section 413 of the BNSS a victim can appeal against an acquittal, a conviction for a lesser offence or inadequate compensation, to the court that hears appeals from that court. This right does not depend on the state filing an appeal. A complainant in a private complaint case uses the special leave route under section 419.

Will I go to jail immediately if I am convicted?

Not always. If the sentence is three years or less and the accused was on bail, the trial court can grant bail for a period to allow an appeal to be filed. For longer sentences the convict is usually taken into custody and has to seek suspension of sentence and bail from the appeal court under section 430.

Can a criminal case be settled during trial?

Compoundable offences can be settled under section 359 of the BNSS with or without the court's permission, depending on the offence. Non-compoundable offences that are mainly private in nature can sometimes be quashed by the High Court on compromise under section 528. Serious offences against society generally cannot be ended by a private settlement.

Is it compulsory for the accused to attend every hearing?

The accused must attend unless the court grants exemption from personal appearance. Presence is usually required at the framing of charge, the statement under section 351 and the judgment. Repeated absence can lead to warrants, cancellation of bail and, for an absconding proclaimed offender, trial in absence under section 356.

What happens to cases filed before the BNSS came into force?

Under section 531 of the BNSS, trials, appeals and other proceedings pending on 1 July 2024 continue under the CrPC. Offences committed before that date remain governed by the IPC even if the FIR is registered later. Many Delhi NCR trials therefore still use the old section numbers.

Can I change my lawyer in the middle of a criminal trial?

Yes. A new advocate files a vakalatnama, usually with a no-objection from the earlier advocate or after informing the court. The new counsel should inspect the full record before the next date, and where a witness was cross-examined badly, an application to recall the witness under section 348 of the BNSS can be considered.

Can a criminal appeal be filed in the Supreme Court directly?

Generally no. A special leave petition under Article 136 lies against a High Court judgment, within 90 days. Appeals from trial courts first go to the Sessions Court or the High Court. Only an Advocate-on-Record can file in the Supreme Court.