Confusion at the midnight hour: Can the IPC and the BNSS co-exist?

At 12 midnight on July 1, 2024, India saw the three new criminal laws - the Bharatiya Nyaya Sanhita, 2023 (BNS); the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS); and the Bharatiya Sakhya Adhiniyam, 2023 (BSA) - coming into effect by repealing and replacing the Indian Penal Code, 1860 (IPC), the Code of Criminal Procedure, 1973 (CrPC), and the Indian Evidence Act, 1872, respectively.

The significance of this event cannot be overstated: it was only the first time that independent India had a new substantive penal code and a law on evidence, while the BNSS is only the second procedural criminal law in independent India after the CrPC.

A rather confusing and peculiar circumstance deserves consideration in the context of the applicability of the new criminal laws in the twilight period between June 30, and July 1, 2024. This circumstance relates to a possible overlap of the erstwhile and existing criminal legislation and may offer some suggestions for statutory drafting in the future.

Examining a stress test case is often critical to interpret statutory provisions and understand how the provisions hold when faced with peculiar situations. Consider a situation where a heinous crime is committed on June 30, 2024, and the complainant learns about the victim’s condition the following day on July 1, 2024. Immediately, the complainant approaches the police station and reports the crime. In such a situation, which criminal legislation applies? The question may seem simplistic at first blush, but lends itself to several interpretations as set out below.

It is clear that for an offence committed on July 1, 2024 and reported thereafter, the provisions of the BNS and the BNSS would be squarely applicable. Similarly, for an offence committed and reported on June 30, 2024 or prior thereto, the provisions of the IPC and CrPC would apply.

What happens when there is a gap between the commission of the offence on June 30, and the registration of the crime on July 1, 2024? This is a highly debated issue which has brought to rise different interpretations in the legal fraternity.

To understand the conundrum, it is worth considering the repeal provisions of the enactments in question.

Section 358 of the BNS repeals the IPC and states that notwithstanding the repeal of the IPC, such repeal shall not affect the previous operation of the IPC or anything duly done or suffered thereunder. Consequently, the IPC would be clearly applicable for acts committed prior to 12 midnight on July 1, 2024.

The BNSS borrows its repeal provision from the CrPC and at Section 531 states that the CrPC stands repealed. It further goes on to say that notwithstanding such repeal if, immediately before the date on which the BNSS comes into force, there is any appeal, application, trial, inquiry or investigation pending, then, such appeal, application, trial, inquiry or investigation shall be disposed of, continued, held or made, as the case may be, in accordance with the provisions of the CrPC as in force immediately before the commencement of the BNSS.

This confusion essentially boils down to this: if a crime is committed on a date prior to the enactment of the new criminal legislation, but reported after the enactment of the new criminal legislation, which criminal procedural legislation will apply? Would then an offence committed on June 30, 2024, but subsequently actioned upon on July 1, 2024, invoke the provisions of the IPC, and be tried under the BNSS? Such an interpretation is worth testing on the back of statutory provisions.

One possible interpretation of the laws may be that when an offence is committed before July 1, 2024, the information sought to be registered on or after July 1, 2024 will necessarily be registered under the old criminal laws. The justification of this interpretation is that since the new laws did not exist before July 1, 2024, they cannot have any applicability whatsoever. However, it is important to note that such an interpretation is untenable. As per the plain language of Section 531 of the BNSS, as on July 1, 2024, the CrPC stood expressly repealed and cannot be put into application.

A different situation would have arisen if the Central government had passed a specific order/notification stating that the CrPC would apply for offences committed prior to July 1, 2024 even though such offence could only be registered and investigated on and from July 1, 2024. A similar government order was passed by the Lieutenant Governor of Goa in 1963 (after Goa became a part of the Union of India) relating to the old Portuguese criminal laws and was upheld by the Supreme Court in Uttam Bala Ravankar v. Assistant Collector of Customs and Central Excise.

In Kolhapur Canesugar Works Ltd v. Union of India, the Supreme Court held that the normal act of repealing a statute or deleting a provision is to obliterate it from the statute book as completely as if it had never been passed, and the statute must be considered as a law that never existed.

Conversely, it cannot be said that an offence registered after July 1, 2024 but committed before such date, would be under the BNS, since as on the date of the commission of the offence, the BNS did not exist. Thus, the blanket interpretation that only the new criminal laws will apply in such a situation where a crime is reported on July 1, 2024 (or thereafter) cannot be sustained. Due consideration is also required to be given to what date the crime has occurred. Article 20(1) of the Constitution of India, 1950 clearly states that “No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the Act charged as an offence”. Thus, a person cannot be said to be guilty of an offence under BNS, which did not even exist at the time of the commission of the offence.

This brings us to the most plausible interpretation in this scenario: the offence committed prior to July 1, 2024 would attract the provisions under IPC and would be registered under the BNSS when reported on or after July 1, 2024. Thus, a case exists for co-existence of the IPC and the BNSS in the special situation contemplated. Support for this position is drawn from a reading of Section 4 of the BNSS. Section 4(1) of the BNSS makes it evidently clear that all offences under the BNS shall be dealt with according to the provisions of the BNSS. Section 4(2) of the BNSS states that “all offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions”. The words “same provisions” in Section 4(2) of the BNSS refers to the BNSS itself, as is clear from a conjoint reading of sub-sections (1) and (2) of Section 4. It is arguable that the words “any other law” in Section 4(2) of the BNSS could include provisions of the IPC, which were in force prior to July 1, 2024.

Recently, the Punjab and Haryana High Court rendered an interesting judgment in in XXX v. State of UT Chandigarh discussing the above provisions. Relying on the language in Section 358 of the BNS and Section 531 of the BNSS, it proceeded to hold that once the BNSS was brought into effect, it would apply to offences committed under the IPC, thus recognizing that the IPC can continue to be the substantive criminal law while the BNSS becomes the new procedural criminal law.

This interpretation is supported by Section 6(1) of the General Clauses Act, 1897, which states that the repeal of an Act would not affect anything duly done or suffered thereunder. Thus, when an offence is committed at a time when the IPC was in force, then only the IPC can be invoked for such offence. Thus, the registration, investigation and subsequent procedural steps will be taken in accordance with the new procedural legislation (BNSS) but the relevant substantive penal code would continue to be the IPC.

Notably, the above position seems to have been accepted and adopted by the Telangana Police, as can be seen from a memorandum issued by the Office of the Director General of Police, Telangana. The memorandum contemplates the situation discussed above and states that when the date of the occurrence of the crime is prior to July 1, 2024, but the date of registration of the crime is after July 1, 2024, the provisions of the IPC would apply as the substantive law and the provisions of the BNSS would apply as the procedural law.

A related problem arises when an FIR is registered prior to July 1, 2024 but investigation continues after such date. The question then is whether the CrPC will apply for the entirety of the criminal procedure, given that the FIR was registered prior to July 1, 2024. The Punjab and Haryana High Court in XXX v. State of UT Chandigarh held that even if an FIR had been registered prior to July 1, 2024 under the CrPC, but a petition was filed after July 1, 2024 for quashing that FIR, the BNSS would apply to govern that petition. On the other hand, the Rajasthan High Court in Krishan Joshi v. State of Rajasthan has held that if an FIR is registered prior to July 1, 2024, then the subsequent investigation as well as the trial would be governed by the CrPC. The Kerala High Court, in the case of Abdul Khader v. State of Kerala, held that an appeal filed or after July 1, 2024 would be governed by the procedure under the BNSS, while all applications filed and steps taken in the appeals filed prior to July 1, 2024 shall be under CrPC. This question has also come up before the Delhi High Court recently through the case of Shri S Rabban Alam v. CBI through its Director. The Court has left the question open and is yet to express a definitive opinion.

The answer to this conundrum is not straightforward, but needs to be considered as per the proceeding contemplated. The two critical factors which may be considered to ascertain whether the BNSS or the CrPC would apply in the aforesaid context are – (i) whether the proceeding contemplated is in respect of a vested right, such as a right of appeal; and (ii) whether it is in continuation of the previous procedural step.

It remains to be seen how the courts decide these issues in the coming weeks and months so as to ensure certainty in the implementation of the new laws.

Abhijnan Jha is a Partner, Bhagya K Yadav is a Senior Associate and Chetan Chawla is an Associate at AZB & Partners.