Conundrums in the new criminal laws

Several seminal questions are raised during discussions on the three new Criminal Acts, which I propose to answer to the best of my ability and knowledge.

Question 1: A person commits a murder on 25.06.2024 and it comes to light only on 05.07.2024. Should the investigation be conducted under the Code of Criminal Procedure (CrPC), 1973 or under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)?

i. The answer to the above question lies in Section 358(2)(e) of the Bharatiya Nyaya Sanhita (BNS) read with Section 4(1) of CrPC, Section 4(1) of the BNSS and Section 6 of the General Clauses Act. 

Section 4(1) of the BNSS clearly states that the offences committed under the BNS shall be investigated, enquired into, tried and otherwise dealt with according to the provisions hereinafter contained.  Section 4(1) of the BNSS does not refer to the Indian Penal Code at all. So, the BNSS will apply only to offences under the BNS committed on and after July 1, 2024. 

Section 358(2)(e) of the BNS states that any proceeding, investigation or remedy in respect of any such penalty or punishment as aforesaid, and any such proceeding or remedy may be instituted, continued or enforced, and any such penalty may be imposed as if that Code (IPC) had not been repealed.

So, for the murder committed on 25.06.2024, the investigation that was instituted on 05.07.2024 would continue under the CrPC, 1973 in terms of Section 4(1) of the CrPC, 1973.

ii. We cannot use Section 8 of the General Clauses Act to telescope IPC into Section 4(1) of the BNSS because IPC was not repealed by the BNSS, but by a separate enactment (BNS), which itself has a sunset clause in Section 358, as stated above. A substantial portion of Section 358(2)(e) of the BNS has been imported from Section 6(e) of the General Clauses Act. Section 6(e) deals with the repeal of an enactment and its legal consequence. It permits the institution of an investigation even after the repeal of a penal enactment.

iii. Section 531(2)(a) of the BNSS will be of no avail because it governs an investigation that was pending as on 01.07.2024 in respect of offences committed before 01.07.2024. 

As of 25.06.2024, only the Indian Penal Code was in force, so the accused can be charged only under Section 302 IPC and not under the BNS. 

The IPC did not have a sunset clause because it was a new enactment, and it did not repeal any earlier law.  However, the BNS has a sunset clause in Section 358 since it is repealing the IPC. 

iv. Thus, the answer to the above question is that the investigation for the murder committed on 25.06.2024 should be instituted and conducted under the CrPC 1973 and not under the BNSS.

Question 2: Should the Courts of the Chief Metropolitan Magistrate, Additional Chief Metropolitan Magistrates and Metropolitan Magistrates be abolished from 01.07.2024?

The answer is an emphatic ‘No’ for the following reasons:

i. Under the old CrPC, 1898, the courts of the Chief Presidency Magistrate and Presidency Magistrates were functioning. 

Section 8(2) of the CrPC 1973 states, “As from the commencement of this Code, each of the Presidency Towns of Bombay, Calcutta and Madras and the city of Ahmedabad shall be deemed to be declared under sub-section (1) to be a Metropolitan area.” 

By virtue of Section 8(2) of CrPC, 1973, Madras Town, which was a Presidency town, with a Chief Presidency Magistrate sitting in Egmore and having Metropolitan Magistrates under him, became a Metropolitan Area with a Chief Metropolitan Magistrate and Metropolitan Magistrates under him.

The BNSS does not state that Bombay, Calcutta, Madras and Ahmedabad would cease to be metropolitan areas.

ii. The repealing of the CrPC by the BNSS will not, ipso facto, abolish the institutions created under the former, unless explicitly declared by the repealing enactment.

For instance, let us imagine the institution of Chief Metropolitan Magistrate Court as a satellite and the CrPC as a rocket. The rocket has put the satellite in orbit. Thereafter, if the rocket explodes (repealed by BNSS), the satellite will not fall. The satellite will function in orbit until the completion of its mission and, thereafter, it will become obsolete.

Likewise, the institutions of the Chief Metropolitan Magistrate, Additional Chief Metropolitan Magistrates and Metropolitan Magistrates in Chennai city are satellites which have been put into orbit by the rocket called CrPC and they will not automatically stand extinguished if the rocket is extinguished. These institutions have to complete the cases that are pending before them.

iii. Section 531 of the BNSS deals with Repeal and Savings. Section 531(2)(a) clearly states that notwithstanding the repeal of CrPC, 1973, inquiries and trials pending in various courts shall be continued as if the BNSS has not come into force. 

This means that the inquiries and trials pending before the Chief Metropolitan Magistrate and other Metropolitan Magistrates should continue under the procedure laid down in CrPC to be brought to their logical end.

Question 3: An offence under Section 138 of the Negotiable Instruments (NI) Act is completed in the Chennai city before 01.07.2024 and within the period of limitation, the complainant comes forward to file the complaint on 05.07.2024. Where should he file the complaint?

i. An offence under Section 138 NI Act will not be saved by Section 358 of the BNS or by Section 4(1) of the BNSS. Such a case will be covered by Section 4(2) of the BNSS read with Section 8 of the General Clauses Act. Section 4(2) of the BNSS states that all offences under any other law (Section 138 will fall within the expression ‘any other law’) will be inquired into and tried under the BNSS.

Section 8 of the General Clauses Act states that when any Central Act repeals and re-enacts, with or without modifications, any provision of a former enactment, references in any other enactment to the provision so repealed, unless a different context appears, will be construed as reference to the provision so re-enacted.

Now, let us analyse this step by step.

ii. BNSS has completely repealed CrPC with effect from 01.07.2024. CrPC had created the institutions of Metropolitan Magistrates. These courts should continue till all the cases pending before them are completed. But, on and after 01.07.2024, these Metropolitan Magistrates cannot entertain fresh cases under any law other than the IPC.

iii. The reference to the word “Magistrate” in all other laws, including Section 138 of the NI Act, would mean only Judicial Magistrate for cases after 01.07.2024 as the BNSS has completely jettisoned the institution of Metropolitan Magistrates. This is the import of Section 8 of the General Clauses Act.

iv. Therefore, the High Court should have to declare the Chief Metropolitan Magistrate at Egmore as Chief Metropolitan Magistrate-cum-Chief Judicial Magistrate. Similarly, the Metropolitan Magistrates in Chennai should be re-christened as Metropolitan Magistrates-cum-Judicial Magistrates.

Even if the name change notification takes time to come or does not come at all, by virtue of Section 8 of the General Clauses Act, in the absence of a different intention, the Chief Metropolitan Magistrate and the Metropolitan Magistrates in the Chennai city will be construed as Chief Judicial Magistrate and Judicial Magistrates respectively. 

It would be a strange situation if offenders in Chennai city could get themselves out of prosecutions on a specious interpretation that there are no Judicial Magistrate courts in Chennai after 01.07.2024.

v. On and from 01.07.2024, a complaint for the offence under Section 138 of the NI Act should be filed before the Metropolitan Magistrate concerned, who would take it on file as a Judicial Magistrate and deal with the same under the BNSS.

Question 4: The BNSS does not speak about the Assistant Sessions Court so, should all the cases that are pending before the various Assistant Sessions Courts be transferred to the Courts of Session?

i. It is not necessary to transfer the pending cases from the Assistant Sessions Court to the Courts of Session in light of Section 531(2)(a) of the BNSS.

On and from 01.07.2024, the Principal District and Sessions Judge cannot make over any case to the Assistant Sessions Courts. 

Even after 01.07.2024, appeals from the trials pending on the file of the Assistant Sessions Courts as on 01.07.2024 can be maintained only in the Courts of Session under CrPC, 1973.

Question 5: Should amendments be brought into the Criminal Rules of Practice, 2019, as a consequence of the BNSS?

i. There is no necessity to bring in any amendment to the Criminal Rules of Practice, 2019, as of now. 

The Criminal Rules of Practice, 1958 was saved by Section 484(2)(b) of CrPC 1973. Since it was outdated, the Madras High Court thought it fit to put in place new rules by incorporating the directions that were issued by the superior courts from time to time and also from the experience gained over a period of time. 

Section 531(2)(b) of the BNSS is in pari materia with Section 484(2)(b) of CrPC, 1973.  By virtue of Section 531(2)(b) of the BNSS, the Criminal Rules of Practice, 2019 would be deemed to have been made under the corresponding provision of the new law. Section 523 of the BNSS is almost in pari materia with Section 477 of CrPC, except clause (d) of sub-section(1) of Section 523 in which the power of the High Court to frame rules appears to be controlled by the words “provided by rules made by the State Government”. 

In other words, the High Court can frame rules only in respect of matters provided by rules made by the State government. This appears to violate the principle of separation of the judiciary from the executive laid down in Article 50 of the Constitution of India.

In fine, it is not necessary to amend the Criminal Rules of Practice, 2019, for the present and after gaining experience in the working of the BNSS, necessary amendments can be made from time to time under Article 227 of the Constitution of India.

ii. In the meanwhile, a recommendation may be sent to the government to amend Section 523(1)(d) or inter alia, declare the portion “provided by rules made by the State Government” in Section 523(1)(d) as unconstitutional. There cannot be two power centers for framing rules for the criminal courts functioning under the High Court.

While concluding, a fundamental doubt cropped up in my mind.

Will these new enactments affect the administration of justice adversely? 

I deeply pondered over this question and concluded that these laws may not seriously affect the administration of justice in this country. The stark reality is that justice is actually not administered in this country in accordance with law, but in accordance with individual judges' understanding of the law and his notion of justice.

Codified laws should have, by now, elbowed out precedents and law journals in this country, but that has not happened. That is because, these criminal codes were drafted in English by the English who thought in English, whereas we think in our native tongues and try to translate our thoughts in English and vice versa. Sir James Fritzjames Stephen, the author of the Indian Evidence Act, wrote in his book Criminal Law:

“Human language is not so constructed that it is possible to prevent people from misunderstanding it if they are determined to do so, and over-definition for that purpose is like the attempt to rid a house of dust by mere sweeping. You make more dust than you remove. If too fine a point is put upon language, you suggest a still greater refinement in quibbling. This I think is a not uncommon fault in Indian legislation, and the Penal Code was the first example of it."

Very few people know the correct distinction between culpable homicide and culpable homicide amounting to murder. Similarly, the provisions of the Indian Evidence Act are so abstruse to the Indians’ minds that they are seldom understood and applied in our law courts. Despite lack of correct knowledge of the laws, our justice system functions and has not crumbled.  Hence, our judicial system will continue to function like how it was functioning before July 1, 2024.

Justice PN Prakash is a former judge of the Madras High Court. Advocate Sharath practices at the Madras High Court.