An overview of the criminal law system in India

• Context
• Arrest and detention
• Your rights under the Vienna Convention on Consular Relations
• Investigation and bail
• The criminal trial
• Duration of a trial and sentencing
• Transfer to a Canadian prison
• Clemency intervention in death penalty cases 
• Related links

This document is intended to give you basic information on how India’s criminal law system functions. It is not a substitute for legal advice, which can only be provided by a lawyer qualified to practice in India. It should be read in conjunction with A Guide for Canadians Imprisoned Abroad.

If you break the laws of another country, you are subject to the judicial system of that country. Being a foreigner or not knowing the local laws is not an excuse. Global Affairs Canada can neither protect you from the consequences of your actions nor override the decisions of local authorities.

The Indian and Canadian criminal law systems are significantly different. This can increase the stress and practical problems arising from arrest and imprisonment in India. Please note that in India: 

• You may be initially held without official charges for up to 24 hours.
• You may be detained for up to three months, or longer for complex crimes, while the investigation is ongoing.
• The trial process can be lengthy and may extend for up to several years in particularly complex cases.

The Government of Canada will seek to ensure that you are not penalized for being a foreigner and that you are neither discriminated against nor denied justice because you are Canadian. It cannot, however, seek preferential treatment for you or try to exempt you from the due process of local law. The Government of Canada cannot interfere in the judicial system of another country, just as Canadians would not stand for another government interfering in Canada’s judicial process.

For further information on the services consular officials can and cannot provide, consult A Guide for Canadians Imprisoned Abroad , as well as the Canadian Consular Services Charter page.

Your choice of legal representation in India can be critically important and should be made with care. Consular officials can provide a list of lawyers who practice in the area of law related to your particular type of case. They cannot, however, recommend specific lawyers. You may prefer to hire a lawyer who is not on the list. This decision remains your responsibility. If you are unable to hire a private lawyer, you may ask for a court-appointed lawyer, who will be appointed free of charge. For further information, consult Hiring a foreign lawyer in A Guide for Canadians Imprisoned Abroad.

Please Note: India is an INTERPOL member country. You may be subject to an INTERPOL notice.

Indian criminal law is applicable to both citizens of India and foreigners who commit crimes within the territory of India.

Under Indian law, you may be arrested in a variety of circumstances. The arrest and detention can be for committing offences under the Indian Penal Code and/or under various laws (for example, the Narcotic Drugs and Psychotropic Substances Act and the Foreign Exchange Management Act).

For offences committed under the Indian Penal Code, investigations will be conducted in accordance with India’s Code of Criminal Procedure, 1973. This is a comprehensive set of rules that defines the powers of the police and the judiciary and lays down the procedures to be followed in the conduct of an inquiry or trial. For offences committed under other legislation, investigations will be conducted in accordance with procedures outlined in this legislation, coupled with India’s Code of Criminal Procedure, 1973.

If your presence is necessary for an investigation, and if there is sufficient evidence suggesting that you may flee, hide or destroy evidence, you may be detained. Indian authorities may confiscate your travel documents, such as your passport, while the investigation is ongoing, until charges are withdrawn or you complete your sentence.

The arrested person has certain rights upon arrest: 

• The police officer making the arrest must communicate the full particulars of the offence for which the arrest is being made.
• If arrested for a bailable offence, it is the duty of the arresting officer to inform the arrested person that he or she has a right to be released on bail and to arrange sureties for him- or herself.
• The police have the duty to inform at least one relative or friend of the arrested person that he or she has been arrested and where he/she is being kept in custody.
• The arrested person has a right to be produced before a magistrate within 24 hours of being arrested.
• The arrested person has a right to obtain legal aid. Arrested persons and parties to the litigation are expected to make their own arrangements as to legal representation and payment of fees of lawyers. Sometimes, the court may direct the State Legal Services Authority to provide representation for the arrested person.
• The arrested person has a right to be represented by a lawyer in court.
• The arrested person has a right to apply to the magistrate for bail if the offence is non-bailable.
• The arrested person has a right to have a lawyer present during police interrogation.

In addition, there are rights provided specifically for the arrest of women:  

• Women cannot be arrested after sunset and before sunrise.
• Only a female police officer can search a woman who is being arrested.
• Any medical examination that is conducted must be done by a female medical practitioner, or under her supervision.
• The arrested woman has a right to free legal aid.
• The arrested woman has a right to be kept in a cell that is meant specifically for women only. 

If you are detained or arrested abroad and wish to have Canadian consular officials notified, you should communicate that request clearly to Indian authorities. Indian authorities have an obligation, under the Vienna Convention on Consular Relations, to advise you of your right of access to a consular representative. They are not, however, obliged to inform a Canadian consular post of your detention or arrest, unless you ask them to do so.

Under the convention, Indian authorities are also required to send any communication you address to a consular post. For example, if you write a letter to the High Commission of Canada in India or to another Canadian consular office in India, that letter must be delivered. This is in accordance with your rights to communicate with, and have access to, a consular official. These rights must be exercised in conformity with the laws and regulations of India.

If you choose to speak with Canadian consular officials, any information you give them will remain confidential, subject to the provisions of Canada’s Privacy Act. It will not normally be passed on to anyone other than the consular officials concerned with your case without your permission. Under the Privacy Act, however, personal information may be disclosed in certain circumstances, such as in cases where disclosure would clearly benefit you, where the public interest in disclosure clearly outweighs any invasion of your privacy or pursuant to a court order. Consult the Consular Services Privacy Notice Statement for more details.

At your meeting with a consular official, please inform him or her if Indian authorities did not inform you of your right to request that Canadian officials be advised of your arrest or detention, or if at any time they denied you the right to communicate with or have access to a Canadian consular official.

Dual citizenship is not legally recognized in India. If local authorities consider you an Indian citizen, they may refuse to grant you access to Canadian consular services, thereby preventing Canadian consular officials from providing you with those services. You should always travel using your valid Canadian passport and present yourself as Canadian to foreign authorities at all times to minimize this risk. Citizenship is determined solely by national laws, and the decision to recognize dual citizenship rests completely with the country in which you are located when seeking consular assistance.

If detained, Canadian citizens with dual citizenship of another country should notify the local authorities about their Canadian citizenship should they like to receive consular assistance.

See Travelling as a dual citizen for more information.

Investigation and bail

When a person is arrested, the police will keep him or her in police custody for investigation. The police must produce the arrested person before a magistrate within 24 hours of his or her arrest. If the investigation has not been completed within that period, the police may request an extension of police custody to continue with the investigation. The police custody cannot be extended beyond 14 days.

Once the arrested person is brought before a magistrate, the magistrate will decide if there is sufficient evidence to proceed with further detention (either judicial custody until the trial is concluded or police custody if the police investigation has not been concluded) or if the arrested person can be released on bail until the trial.

After the registration of the First Information Report (police report), the police must file a charge sheet within 90 days of the date of arrest (if arrested under the Indian Penal Code) or 180 days (if arrested under other legislation). If no charge sheet is filed, the arrested person is entitled to be released on bail.

An application for bail may be requested at any time during this process. In reviewing a bail request, the magistrate has significant discretion and will consider the type of crime, type of offence and any risk that the person may flee. Bail is less likely to be granted if you have been charged with a serious crime, such as murder or narcotics trafficking. You should consult a lawyer to find out how bail may apply to your circumstances.

After an application for bail has been made, a magistrate may release the arrested person on certain conditions and ask for financial security to ensure that he or she cooperates in the investigation. The magistrate may also reject the bail application and remand the arrested person to either police custody or judicial custody.

In cases of further detention, the arrested person will be brought to appear before a magistrate every 15 days. Detention periods can be quite lengthy.

Criminal trial

Criminal matters are heard in the court of first instance, which is the district court, then may proceed to a high court for appeal and eventually to the Supreme Court for final appeal.

At the preliminary hearing, the prosecution presents its case before a magistrate. All evidence collected by the police during their investigation should be produced in court. The arrested person is given the opportunity to be heard or given more time to set up his or her defence. The magistrate decides whether there is sufficient evidence for trial.

If the magistrate determines that the investigation is not satisfactory, the case will be sent back to the investigating officer for further investigation. If the magistrate determines that there is insufficient evidence and no offence, the arrested person will be discharged and released. If it is decided that there is sufficient evidence, the case will proceed to trial. The arrested person could remain in custody until the trial is concluded.

During the trial, the prosecution presents its case against the arrested person, and the defence has the right to present arguments against the case. The arrested person is given the opportunity to be heard by the court and explain the facts and circumstances appearing in the evidence against him or her. Both prosecution and defence can present evidence and call witnesses for examination and cross-examination. After final arguments have been made, the trial is concluded.

Duration of a trial and sentencing

 The justice system in India is slow, and the entire process can be lengthy. A trial may last several years, particularly in complex cases. Backlogs and delays may vary from one region to another. There can be frequent delays and adjournments, which may be caused by a number of factors, including absences of lawyers or judges, a slow investigation process or difficulties in summoning witnesses. The arrested person may serve a good part of his or her potential maximum term before the trial concludes.

After the final hearing, the magistrate will deliver the final judgment holding the arrested person guilty of the offence or acquitting him or her of the offence. If a person is acquitted, the prosecution is given time to file an appeal. If a person is convicted, then a date is fixed for arguments by prosecution and defence on the sentence. The court will decide and deliver the final sentence. If the appeal is rejected in a high court, an appeal can be filed by the arrested person in a high court or the Supreme Court.

Transfer to a Canadian prison

Canada and India are both parties to the Inter-American Convention on Serving Criminal Sentences Abroad, which allows Canadians convicted of offences in India the possibility of serving their prison sentence in a Canadian penal institution if both the Canadian and Indian governments consent to the transfer. Transfers are not automatically granted. An application for transfer can be submitted only after you have been convicted and sentenced. You should consult your lawyer if you are considering applying for a transfer. For further information on transfer requests, please consult A Guide for Canadians Imprisoned Abroad.

Clemency intervention in death penalty cases

The death penalty remains an extreme punishment to be granted in the rarest of cases, but the Indian Supreme Court has held that undue and unexplained delays in the execution of a death sentence can result in commutation of the death sentence itself.

The Ministry of Home Affairs, Government of India, outlined the broad parameters for considering mercy petitions, listing long delays in investigation or trial as well as age and mental deficiency of the applicant as grounds on which clemency may be justified.

The president of India or a state governor can grant a pardon or reduce the sentence of a convicted person, particularly in cases involving capital punishment.

If you have been charged with or convicted of a crime punishable by death, you should consult your lawyer and speak to a Canadian consular official. The Government of Canada opposes the use of the death penalty in all cases, everywhere, and will undertake clemency intervention in your case. Clemency intervention is defined as any diplomatic effort, at any stage of the process after detention, aimed at avoiding imposition of the death penalty or the sentence being carried out.