Criminal Investigation in India: Process, Rights and Legal Remedies

A criminal case usually begins long before a courtroom: with a complaint, a police inquiry, and a series of decisions about evidence, arrest, and custody. What happens at this stage often shapes the outcome of the trial. This guide explains how criminal investigation works in India under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), the rights of complainants and accused persons, and the legal remedies available when the process goes wrong.

The Legal Framework

Criminal investigation in India is governed mainly by three laws that came into force on 1 July 2024:

• Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS): Procedure for FIRs, investigation, arrest, bail, and trial. It replaced the Code of Criminal Procedure, 1973.

• Bharatiya Nyaya Sanhita, 2023 (BNS): Defines offences and punishments. It replaced the Indian Penal Code.

• Bharatiya Sakshya Adhiniyam, 2023 (BSA): Rules on evidence. It replaced the Indian Evidence Act.

Cases involving offences committed before 1 July 2024 continue under the older laws. Constitutional guarantees sit above all of them, especially Article 20 (protection against self-incrimination and double jeopardy), Article 21 (life and personal liberty), and Article 22 (safeguards on arrest and detention).

Types of Offences and Why They Matter

The nature of the offence decides what the police can do.

• Cognizable offences (such as murder, rape, robbery): Police can register an FIR, investigate, and arrest without a warrant.

• Non-cognizable offences (such as simple hurt or defamation): Police generally need a magistrate's order to investigate or arrest.

• Bailable and non-bailable offences: Bail is a right in the first category and a matter of judicial discretion in the second.

Step 1: Registering the FIR

The First Information Report (FIR) sets the investigation in motion. Any person can report a cognizable offence to the police, and the BNSS has widened the ways of doing so.

• Oral or written complaint: The officer must record it, read it back, and obtain the informant's signature. A free copy must be given to the informant.

• E-FIR: A complaint can be filed electronically, and the informant must sign it within three days for it to be registered.

• Zero FIR: Any police station must register a cognizable offence regardless of where it occurred, then transfer it to the correct station.

• Preliminary enquiry: For offences punishable with three to seven years, the officer may, with prior permission of a Deputy Superintendent of Police, hold a preliminary enquiry, generally within 14 days, before registering the FIR.

In Lalita Kumari v. State of Uttar Pradesh (2013), the Supreme Court held that registration of an FIR is mandatory when the information discloses a cognizable offence.

Step 2: The Investigation

Once the FIR is registered, the investigating officer collects evidence. This typically includes:

• Examining witnesses: Police can require a person acquainted with the case to appear and can record statements. These statements are not signed by the witness.

• Searches and seizures: Under the BNSS, search and seizure must be recorded by audio-video means, which improves the reliability of the record.

• Forensic evidence: For offences punishable with seven years or more, forensic experts must visit the crime scene to collect evidence.

• Documents and digital records: Police can direct a person to produce documents, devices, or electronic records needed for the investigation.

• Medical examination: Available for accused persons and victims, with additional safeguards for survivors of sexual offences.

• Recording confessions and statements before a magistrate: A statement made to a magistrate under the prescribed provision carries a different weight from a statement made to the police.

A confession made to a police officer is generally not admissible as evidence against the accused, although information that leads to the discovery of a fact may be used in a limited way.

Step 3: Arrest and Custody

Arrest is not automatic, even in a cognizable case. The Supreme Court's decisions in Joginder Kumar v. State of UP (1994) and Arnesh Kumar v. State of Bihar (2014) require the police to justify the need for arrest.

For offences punishable with less than seven years: Police must ordinarily issue a notice of appearance rather than arresting. If the person complies with the notice, arrest generally should not follow unless the officer records reasons.

Safeguards on arrest (D.K. Basu v. State of West Bengal, 1997, and the BNSS):

• The officer must show identification and prepare an arrest memo.

• The person must be told the grounds of arrest.

• A relative or friend must be informed of the arrest.

• The person must be medically examined, and may consult a lawyer during interrogation.

• The person must be produced before a magistrate within 24 hours, excluding travel time.

Remand: A magistrate can authorise police custody of up to 15 days in total, which the BNSS allows to be availed in parts within the first 40 or 60 days of detention, depending on the offence. After that, the accused is held in judicial custody.

Default bail: If the chargesheet is not filed within 60 days (or 90 days for offences punishable with death, life imprisonment, or imprisonment of ten years or more), the accused has a right to default bail.

Step 4: Conclusion of the Investigation

At the end of the investigation, the police either file a final report or close the case.

• Chargesheet (police report): Filed before the magistrate when the evidence supports prosecution. The police must supply copies of documents to the accused.

• Closure report: Filed when there is insufficient evidence. The magistrate can accept it, reject it, or order further investigation. The informant must be given notice and an opportunity to be heard.

• Progress updates: The BNSS requires police to inform the victim or informant of the progress of the investigation within 90 days.

• Further investigation: Permitted even after a chargesheet, with the court's involvement.

Rights of the Accused During Investigation

• Right to know the grounds of arrest and, for bailable offences, the right to be released on bail.

• Right to legal counsel: The accused can consult a lawyer of choice and is entitled to free legal aid if unable to afford one.

• Protection against self-incrimination: Article 20(3) protects the accused from being compelled to be a witness against themselves. In Selvi v. State of Karnataka (2010), the Supreme Court held that narco-analysis, polygraph, and brain-mapping tests cannot be forced on a person.

• Protection from torture and custodial violence: Custodial torture violates Article 21, and courts have awarded compensation in such cases.

• Right to bail: Regular, interim, and anticipatory bail are available, depending on the case.

• Presumption of innocence: The prosecution must prove guilt beyond reasonable doubt.

Rights of Victims and Complainants

• The right to a free copy of the FIR.

• The right to be informed of the investigation's progress.

• The right to be heard on certain applications, including closure reports.

• The right to medical treatment, and free treatment for survivors of certain offences.

• The right to victim compensation under state schemes and court orders.

• Special safeguards for women and children, such as recording of statements by a woman officer and, where possible, at the victim's residence.

Legal Remedies When the Police Fail or Overreach

If the Police Refuse to Register an FIR

1. Send the complaint in writing to the Superintendent of Police.

2. If that fails, apply to the Magistrate, who can direct the police to register an FIR and investigate. Under the BNSS, such an application must be supported by an affidavit, and the magistrate may seek the police's response first.

3. In serious cases, approach the High Court under Article 226.

If the Investigation Is Biased or Inadequate

• Seek further investigation or a change of investigating agency from the court.

• The High Court and the Supreme Court can direct investigation by an independent body such as the CBI or a special investigation team in exceptional cases.

If Arrest Is Illegal or Unnecessary

• File for bail (regular or anticipatory).

• File a habeas corpus petition in the High Court or Supreme Court if a person is detained unlawfully.

• Challenge non-compliance with arrest safeguards before the magistrate.

If the FIR Is False or an Abuse of Process

• Approach the High Court to quash the FIR or proceedings under its inherent powers (Section 528 BNSS). The Court examines whether the allegations disclose an offence, and quashing is used sparingly, particularly in serious offences.

• For compoundable offences, the parties can settle and seek disposal of the case.

If There Is Custodial Abuse

• Complain to the magistrate, the State Human Rights Commission or the National Human Rights Commission, or file a writ petition seeking compensation and action against the officers.

Practical Guidance for Citizens

• Stay calm and cooperate lawfully. You need not admit guilt, and you have the right to remain silent on incriminating questions.

• Ask for the reason for detention and ensure someone close to you is informed.

• Request a lawyer before giving a detailed statement.

• Do not sign blank or unread papers.

• Keep records: copy of the FIR, notices, medical reports, and receipts for seized items.

• Respond to notices on time. Ignoring a notice can lead to warrants and arrest.

• Approach the courts early for anticipatory bail if arrest seems likely.

• Preserve digital evidence, including messages, call logs, and CCTV, without altering it.

Conclusion

Criminal investigation in India has to balance two duties: bringing offenders to justice and protecting individuals from misuse of state power. The BNSS adds technology, timelines, and victim-focused provisions, but the core safeguards of the Constitution and the Supreme Court's guidelines remain central. Knowing how the process works, what rights you hold, and which court to approach when the system falters helps you act promptly and avoid costly mistakes. In any criminal matter, early advice from a qualified criminal lawyer is the most reliable protection.