New Criminal Laws in Action: Supreme Court and High Courts Reshape Procedural Landscape

New Delhi – The initial phase of India's new criminal law regime has triggered a flurry of judicial interpretation, with the Supreme Court and various High Courts actively defining the contours of the Bharatiya Nagarik Suraksha Sanhita (BNSS) and Bharatiya Nyaya Sanhita (BNS). Recent judgments have addressed critical procedural aspects, from the quashing of FIRs and the jurisdiction for anticipatory bail to the nuances of joint trials and the rights of victims, signaling a significant period of jurisprudential evolution for the country's criminal justice system.

These early pronouncements are providing crucial clarity and setting foundational precedents that will guide lower courts, investigators, and legal practitioners in navigating the transition from the erstwhile Criminal Procedure Code (CrPC) and Indian Penal Code (IPC).

Quashing Petitions: A Tale of Two Remedies and a Four-Step Test

The Supreme Court has decisively clarified the procedural pathway for seeking the quashing of criminal proceedings, drawing a sharp line between remedies available before and after a court takes cognizance of an offence. In Pradnya Pranjal Kulkarni v. State of Maharashtra , the apex court ruled that a writ petition under Article 226 of the Constitution is the appropriate remedy to quash an FIR or chargesheet before a judicial order of cognizance is passed.

However, the moment a magistrate applies their judicial mind and takes cognizance, the goalposts shift. The Court held that the inherent power of the High Court under Section 528 of the BNSS (the successor to the widely-invoked Section 482 of the CrPC) becomes the correct recourse.

“So long cognisance of the offence is not taken, a writ or order to quash the FIR/charge-sheet could be issued under Article 226; however, once a judicial order of taking cognisance intervenes, the power under Article 226 though not available to be exercised, power under Section 528, BNSS was available to be exercised,” the bench observed.

Further solidifying the principles for exercising this inherent power, the Supreme Court, in Pradeep Kumar Kesarwani v. The State of Uttar Pradesh , laid down a stringent four-step test for High Courts to apply when considering quashing petitions under Section 528 BNSS: 1. Quality of Material: Is the evidence presented by the accused of "sterling and impeccable quality"? 2. Overruling Assertions: Does this material conclusively negate the factual assertions in the complaint? 3. Irrefutability: Has the material gone unrefuted by the prosecution, or is it irrefutable? 4. Abuse of Process: Would continuing the trial constitute an abuse of the court's process and fail to serve justice?

This structured test aims to prevent the arbitrary quashing of cases while providing a clear framework for weeding out malicious or baseless prosecutions. Reinforcing this, in Nitin Ahluwalia v. State of Punjab , the Court cautioned High Courts against mechanically dismissing quashing pleas, emphasizing that the "background in which the case was filed," including the possibility of it being a retaliatory "counterblast," must be considered.

The Anticipatory Bail Conundrum: Concurrent Jurisdiction Under Scrutiny

A significant procedural debate has emerged regarding the jurisdiction for anticipatory bail. While the BNSS, like the CrPC, confers concurrent jurisdiction on both the Sessions Court and the High Court, the Supreme Court has expressed its disapproval of the practice of litigants directly approaching the High Court, bypassing the lower court.

In Mohammed Rasal.C & Anr. v. State of Kerala & Anr. , a bench of Justice Vikram Nath and Justice Sandeep Mehta initiated a suo motu examination of this practice. The Court opined that direct entertainment of such applications by the High Court should be reserved for "exceptional cases" with "special reasons to be recorded." Issuing notice to the Kerala High Court and appointing Senior Advocate Sidharth Luthra as amicus curiae, the Supreme Court has set the stage for a definitive ruling on this matter of judicial propriety.

Despite the Supreme Court's pending examination, the Kerala High Court, in Venu Gopalakrishnan and Ors. v. State of Kerala and Anr. , reiterated its long-held position that anticipatory bail applications are maintainable directly before it, citing existing precedents. This divergence highlights a critical jurisdictional issue that awaits resolution by the apex court.

Interpreting New Substantive and Procedural Provisions

High Courts across the country have been actively interpreting various provisions of the new codes, offering vital guidance on their application.

Victim's Rights and Bail: The Calcutta High Court, in a significant ruling on victim-centric jurisprudence, suspended the bail granted to a POCSO accused because the victim was not heard, as mandated by Section 483(2) of the BNSS. This decision underscores the judiciary's commitment to upholding the participatory rights of victims in criminal proceedings.

Powers of Investigation: The Andhra Pradesh High Court, in V D Moorthy v. The State of AP , placed important restrictions on police powers under Section 179(1) BNSS. It ruled that a police officer's authority to compel the attendance of a person acquainted with a case is territorially limited to their own or an adjoining police station, preventing overreach. In a separate matter, the same court has admitted a petition challenging the constitutionality of Section 20(8) BNSS, which empowers the Deputy Director of Prosecution to "examine and scrutinize" police reports, raising questions about the separation of investigative and prosecutorial functions.

Discharge Applications: The Orissa High Court addressed a legislative gap in Narottam Prusty v. State of Odisha & Anr. , clarifying the timeline for filing discharge applications in POCSO cases. It held that an accused can file for discharge under Section 250(1) BNSS within 60 days of receiving police papers, harmonizing the provisions of the BNSS with the special statute.

Substantive Offences Under BNS: The judiciary has also begun clarifying the scope of new and re-codified offences under the BNS. * Cheating vs. Criminal Breach of Trust: The Supreme Court, in Arshad Neyaz Khan v. State of Jharkhand , held that the offences of cheating (S. 318 BNS) and criminal breach of trust (S. 316 BNS) are "antithetical" and cannot co-exist based on the same allegations, as the former requires criminal intent from inception while the latter involves a subsequent misappropriation of lawfully entrusted property. * Grave Offences: The Allahabad High Court granted bail to a man charged with 'waging war' under the BNS for sharing a video critical of the Prime Minister, balancing national security concerns with the right to a speedy trial. * Negligence vs. Murder: The Himachal Pradesh High Court ruled that accidentally shooting a person mistaken for a wild animal constitutes death by negligence (S. 106 BNS), not murder (S. 103 BNS), highlighting the critical element of intent.

Conclusion: A System in Transition

The initial months under the new criminal laws have demonstrated the judiciary's proactive role in interpreting statutes, resolving ambiguities, and ensuring that the procedural framework aligns with constitutional principles of fairness, justice, and efficiency. The principles being laid down—from the four-step quashing test to the re-evaluation of bail jurisdictions and the emphasis on victim's rights—are not mere procedural tweaks but fundamental shifts that will shape the practice of criminal law in India for years to come. As the legal community continues to adapt, these judicial pronouncements will serve as the essential guideposts in this new era of criminal justice.