Interview with Advocate Shivang Yadav: Navigating Criminal Defense under New Criminal Laws and Commercial Arbitration in Mumbai

In an evolving legal market like the Mumbai Metropolitan Region (MMR)—spanning the corporate hubs of South Mumbai and BKC to the bustling industrial and residential corridors of Thane and Mira Road—litigation demands both procedural precision and commercial pragmatism. Legal practitioners are increasingly required to bridge the divide between hard-nosed criminal defense and sophisticated dispute resolution.

In this exclusive feature, we sit down with Advocate Shivang Yadav, a litigator with sharp focus on criminal law and commercial arbitration. We explore the profound shifts brought about by India's new criminal enactments, the realities of corporate white-collar defense, and strategic mechanisms for managing high-stakes arbitrations.

The Dual Edge: Criminal Litigation and Commercial Arbitration

APS Law: Advocate Yadav, criminal defense and commercial arbitration often seem like two disparate worlds. How do these fields intersect in your day-to-day practice?

Advocate Shivang Yadav: While they seem fundamentally different on the surface, they intersect far more frequently than people realize—especially in Mumbai’s commercial ecosystem. In India, commercial disputes rarely stay purely contractual. When high-value commercial transactions collapse, parties often resort to simultaneous strategies: invoking arbitration clauses under the Arbitration and Conciliation Act, 1996, while also filing criminal complaints alleging cheating or criminal breach of trust.

Understanding both arenas gives a litigator a distinct tactical advantage. When drafting an arbitration petition or pursuing urgent interim relief under Section 9, you must also be mindful of safeguarding your client against malicious criminal prosecution designed to exert commercial arm-twisting. Conversely, when defending criminal charges arising from a transaction, you must understand the underlying commercial ledger, accounting standards, and contractual allocations of risk.

Navigating the Paradigm Shift: BNS, BNSS, and BSA 2023

APS Law: India recently implemented the Bharatiya Nyaya Sanhita (BNS), the Bharatiya Nagarik Suraksha Sanhita (BNSS), and the Bharatiya Sakshya Adhiniyam (BSA). What are the key procedural and substantive changes you are seeing on the ground?

Advocate Shivang Yadav: The transition from the IPC, CrPC, and Indian Evidence Act to the new triad has transformed trial court practice in Magistrates’ and Sessions courts across Mumbai, Thane, and Dindoshi.

Three major shifts stand out immediately:

1. Codification of Economic and Fraud Offences under BNS

Offences that previously fell under Sections 406 and 420 of the IPC are now governed by Section 316 (Criminal Breach of Trust) and Section 318 (Cheating) of the BNS, 2023. The BNS has also explicitly defined structured financial frauds, organized crime, and economic offences, raising the threshold of scrutiny during the investigation stage.

2. Procedural Timelines and Police Custody under BNSS

Under Section 187 of the BNSS, 2023, the rules regarding police custody have undergone significant changes. Rather than restricting police custody strictly to the initial 15 days following arrest, the provision allows custody to be sought in parts across an initial window of 40 or 60 days, depending on the gravity of the offence. This requires defense advocates to be exceptionally vigilant regarding bail applications, detention records, and constitutional safeguards.

Additionally, the BNSS formalizes timeline management—mandating charges to be framed within 60 days from the first hearing on charge and pronouncements of judgment within specific statutory windows.

3. Electronic Records and Admissibility under BSA

The Bharatiya Sakshya Adhiniyam, 2023 fundamentally modernizes evidentiary standards. Under Sections 61 to 63 of the BSA, electronic records, cloud data, communication logs, and digital signatures are recognized with greater structural clarity. In white-collar crimes and cyber-enabled financial offences, proving the integrity and chain of custody of digital trails is now the centerpiece of both the prosecution and defense strategy.

Managing Corporate & White-Collar Risk

APS Law: For businesses operating in Thane, Mumbai, and Mira Road, what are the most common criminal vulnerabilities you observe?

Advocate Shivang Yadav: Corporate clients frequently face two major hurdles:

Directors' Vicarious Liability: A persistent challenge is the automatic roping-in of non-executive directors and management personnel in private complaints. While settled law maintains that vicarious liability cannot be imputed without specific statutory provisions or direct overt acts, defending these proceedings at the pre-cognizance stage remains critical.
Cyber-Financial Frauds: Companies increasingly fall prey to business email compromise (BEC), unauthorized payment gateway deviations, and data extortion. Under the Information Technology Act, 2000, coupled with relevant BNS provisions, immediate coordination with local cyber police stations (such as those in Bandra-Kurla Complex or Thane Cyber Crime Cell) and timely registration on the National Cyber Crime Reporting Portal are essential to freeze proceeds of crime before they are routed through mule accounts.

The Arbitration Landscape: Securing Commercial Interests

APS Law: Moving to arbitration, where do you see parties making the most costly strategic errors?

Advocate Shivang Yadav: Most errors occur before the dispute even formally begins—at the drafting stage of the arbitration clause itself.

Here are three practical rules every business must implement:

Define Seat vs. Venue with Unambiguous Precision: Confusing 'seat' with 'venue' continues to generate avoidable Section 11 and Section 34 litigation. If you want the supervisory jurisdiction of the Bombay High Court, clearly designate Mumbai as the juridical seat of the arbitration.
Act Decisively for Interim Protection: If a counterparty is dissipating assets, invoke Section 9 of the Arbitration and Conciliation Act, 1996 without delay. Securing bank guarantees or status quo orders at the outset often determines whether your eventual award is enforceable or merely paper victory.
Streamline Pleadings for Fast-Track Arbitrations: Modern commercial arbitration in India is evolving away from prolonged oral hearings. Utilizing procedural timetables under Section 29A and adopting institutional rules minimizes costs and curtails delay tactics.

Practical Insights: A Checklist for Litigants

For businesses and individuals facing contentious disputes in Maharashtra, Advocate Yadav highlights these immediate steps:

Preserve Digital Records: As required under the BSA 2023, do not alter devices or email chains when a dispute arises. Maintain original hash values and meta-data.
Review Statutory Notices Thoroughly: Pre-litigation notices under Section 21 of the Arbitration Act, or statutory notices under Section 138 of the Negotiable Instruments Act, set the strict boundaries of your claim or defense.
Avoid Forum Shopping: Do not misuse criminal machinery solely to bypass an agreed arbitration mechanism; High Courts and Magistrates are increasingly imposing costs on purely vexatious litigation aimed at coercing financial settlements.

Frequently Asked Questions (FAQs)

Can a party initiate arbitration and file a criminal complaint for the same dispute?

Yes, provided the dispute contains both civil and criminal elements. If a commercial contract failure also involves fraudulent inducement, forged records, or misappropriation at inception, criminal law remedies (under BNS) can run parallel to an arbitration claim. However, criminal complaints filed purely to arm-twist a party over a bona fide commercial interpretation are liable to be quashed under Section 528 of the BNSS (formerly Section 482 CrPC).

What should a director do upon receiving a summons under the new criminal procedure?

A director should immediately examine the summons under the BNSS provisions, obtain certified copies of the complaint and accompanying documents, and determine whether specific averments exist against them. Depending on the gravity, they may seek pre-arrest protective relief (anticipatory bail) or approach the High Court for quashing the process.

How long does an arbitration proceeding take in Mumbai?

Under Section 29A of the Arbitration and Conciliation Act, 1996, the arbitral tribunal must make its award within twelve months from the date of completion of pleadings. The parties may consent to extend this period by up to six months. Any further extension requires an application to the relevant Commercial Court or the High Court.

Strategic Dispute Advisory with APS Law

Navigating overlapping criminal investigations and high-value commercial arbitrations demands dedicated, forward-looking counsel. Whether you are facing complex proceedings under the BNS and BNSS, require emergency interim relief under the Arbitration Act, or seek comprehensive dispute risk management in Mumbai, Thane, or Mira Road, APS Law provides strategic representation focused on protecting your business and legal rights.

To schedule a confidential consultation with our dispute resolution team, contact APS Law today.