Understanding the basics of Criminal Litigation Practice (LITIGATION BASICS 15)

Criminal litigation practice is both interesting and challenging, as it deals with offences against individuals, society, and the State, often involving serious consequences such as loss of personal liberty. Law students and junior lawyers who wish to practise criminal law must first understand the basic nuances of criminal litigation and the functioning of criminal courts. Criminal law practice is broadly divided into general criminal law and special criminal law, and a criminal law practitioner may specialise in either or practice in both, depending on experience and professional inclination.

(A) Understanding of Substantive and Procedural Laws

Criminal litigation practice requires a strong command over both substantive criminal law and procedural criminal law. Procedural law governs the manner in which criminal cases are investigated, inquired into, tried, and adjudicated, whereas substantive law defines offences and prescribes punishments. The procedural framework is now governed by the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which has replaced the Code of Criminal Procedure, 1973. BNSS lays down the procedure to be followed by criminal courts at various stages, including registration of offences, investigation, remand, bail, trial, discharge, compounding, and other miscellaneous proceedings. In addition to BNSS, several special criminal statutes prescribe special procedures for conducting trials and recording evidence in particular categories of cases.

A practical understanding of the law of evidence is indispensable for criminal litigation. The appreciation of oral and documentary evidence, examination of witnesses, and evaluation of credibility form the core of criminal trials. The law relating to evidence is now governed by the Bharatiya Sakshya Adhiniyam, 2023, which replaces the Indian Evidence Act, 1872. This statute plays a decisive role in determining the outcome of criminal cases.

Substantive criminal law defines what constitutes an offence and provides for punishments and defences. The Bharatiya Nyaya Sanhita, 2023 (BNS) has replaced the Indian Penal Code and constitutes the general criminal law in India. The BNS deals with various categories of offences such as offences against the State and public justice, offences against the human body, offences against property, offences relating to documents, and other criminal acts. Apart from the BNS, several special criminal laws have been enacted to address specific types of offences. For example, the Protection of Children from Sexual Offences Act, 2012 provides a special legal framework for offences against children.

 

(B) Cases Involved in Criminal Litigation

Criminal litigation practice involves handling cases before trial courts, higher courts, and designated special courts.

1. Trial Courts

Conducting criminal trials is one of the primary functions of trial courts. Trial courts also deal with various miscellaneous applications under the BNSS, such as remand applications, bail applications, discharge applications, transfer petitions, and applications under special criminal statutes.

 

2. High Courts and Supreme Court

The High Courts and the Supreme Court exercise writ, appellate, and revisional jurisdiction in criminal matters. These courts handle criminal writ petitions, criminal revisions, criminal appeals, and miscellaneous applications under the BNSS, including applications for bail, transfer of cases, and matters arising under special criminal laws.

3. Special Courts

Certain offences under special criminal statutes are tried by designated special courts or forums constituted under the respective laws.

 

(C) Areas of Practice in Criminal Litigation

Criminal litigation practice broadly covers general criminal law and special criminal law.

(1) General Criminal Law

The BNS/IPC constitutes the general criminal law in India. It deals with various categories of offences, including offences against the State and public justice, offences against the human body, offences against property, offences relating to documents, and other criminal acts. The BNS also prescribes punishments and lays down general exceptions governing criminal liability.

(2) Special Criminal Laws

Special criminal laws deal with specific categories of offences that require specialised treatment and procedural frameworks. Important categories include:

·         Offences relating to women, children, and vulnerable sections of society

·         Organised crimes, including narcotics and drugs, unlawful activities, human trafficking, smuggling, etc.

·         Offences relating to disruption of law and order

·         Economic and financial crimes

·         Cyber Crimes

·         Offences relating to environmental crimes