BNSS or CrPC – A hitherto vexed question

From July 1, 2024, the provisions of new criminal code under the nomenclature Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS”) has come into force. It has explicitly repealed the Code of Criminal Procedure, 1973 (“CRPC”) after half a century of its enforcement in criminal justice administration.

Instead of going into a discussion on whether there is any major efficacious change (other than the lengthy name) in the BNSS vis-à-vis procedural aspects as compared to CrPC, there is need to provide a definitive solution to an actual and practical difficulty (read confusion) for lawyers while filing different applications/ petitions/ appeals with respect to First Information Reports/ Criminal Complaints (“FIR/CC”) which have been lodged on or before June 30, 2024, that is prior to coming into force of the BNSS.

Trial courts, and also High Courts for that matter, around the country will be faced with a question (or preliminary objection, as the opposite party would certainly pose it) more often than not for next few days, or say months, as to what would be the appropriate statute - BNSS or CrPC - for procedural aspects in all enquiries/ trials/ investigations which are pending on July 1, 2024 (which will surely be remembered as the most important day, for reasons known, by the nation’s criminal lawyers/ jurists).

This particular question has already been raised and answered by certain High Courts.

In the matter of Abhishek Jain v. State of UT Chandigarh [CRM-M-31808-2024], which was decided on July 11, 2024, the petitioner filed the petition on July 3, 2024 under Section 482 of CrPC for quashing an FIR which was lodged against him on November 4, 2023.

The Public Prosecutor for the State raised a ‘preliminary objection’ that, in view of mandatory provisions contained in Section 531 of BNSS, the quashing petition filed under the provisions of CrPC is not maintainable as the BNSS has now come into force.

The Hon’ble High Court went through the relevant provisions of several statutes like the BNSS, CrPC, Constitution of India, General Clauses Act, 1897 and judgments of the Hon’ble Supreme Court and High Courts. The Court observed that BNSS is essentially a criminal procedural law as against the Bharatiya Nyaya Sanhita, 2023 (“BNS”) which is a criminal substantive law. The Court went further to hold that the presumption against a retrospective constructive has no application with respect to statutes which merely affects practice and procedure of courts.

The Court held,

“No person has a vested right in any course of procedure. He has only the right of prosecution or defence in the manner prescribed for the time being, by or for the Court in which he sues, and, if an Act of Parliament alters that mode of procedure, he has no other right than to proceed according to the altered mode…”.

The Court finally ruled that any appeal/ application/ revision/ petition/ trial/ inquiry or investigation pending before July 1, 2024 are required to be disposed of, continued, held or made (as the case may be) in accordance with the provisions of CrPC.

It specifically held that since the CrPC stood repealed with effect from July 1, 2024, no new/ fresh appeal or application or revision or petition can be filed under CrPC.

Accordingly, the quashing petition filed under Section 482, CrPC was dismissed as being not-maintainable.

In the matter titled Krishan Joshi v. State of Rajasthan [SB CRLMP 4285/2024; date of judgment - July 9, 2024], a similar situation arose before the Hon’ble High Court wherein the petitioner approached the Court to seek directions for a fair, impartial and effective investigation in relation to an FIR which was lodged by him on February 2, 2024.

The facts of the case relevant for the discussion, as they are revealed in the Judgment, are that the counsel for the petitioner actually filed the petition under the provisions of CrPC. However, the Court’s registry raised an objection and directed the petitioner to convert the petition into one under the provisions of BNSS. The counsel for the petitioner complied with the direction.

The Court interpreted Section 531 of BNSS, more specifically clause (a) of sub-section (2) of that Section. It held in no uncertain terms that not only pending trial/ appeals, but even an inquiry and/or investigation which is underway prior to the coming into force of the BNSS, shall have to be dealt with in accordance with the provisions of CrPC and not under the BNSS.

The Court further held,

“…settled position is that, the moment an FIR is registered under section 154 of the Cr.P.C., criminal investigative/ administrative machinery is set in motion under Chapter XII thereof. Thus, if an FIR is registered prior to 01.07.2023 under the Cr.P.C., it would amount to a pending enquiry/ investigation within the meaning of section 531(2)(a) of BNSS. The entire subsequent investigation procedure and even the trial procedure qua such an FIR shall then be governed by Cr.P.C. and not BNSS.”

As per the Court, the repeal of CrPC in Section 531(1) is subject to a savings clause and not a repeal in toto. The Hon’ble High Court, therefore, overruled the objection raised by its Registry.

In the matter of Abdul Khader v. State of Kerala [CRL.A. 1186/2024; date of judgment - July 15, 2024], this very dilemma presented itself before the Hon’ble Court wherein the appellant filed the criminal appeal on July 10, 2024, under Section 374(2) of CRPC against the judgment/ order of conviction dated June 12, 2024.

It was argued before the Court that since the entire trial was held under the provisions of CrPC and since the appeal was a continuation of trial, the appeal should also be dealt with as per the same procedure under which the trial was held.

The Court examined the relevant ‘Repeal and Savings’ provisions of the CrPC (Section 484) and BNSS (Section 531) and found both as largely pari materia. The Court discussed and referred to judgments of other High Courts as well as the one (supra) passed by Punjab and Haryana High Court (PHC).

The Court agreed with the conclusions arrived at by PHC except one.

The Court finally ruled that, “…appeal filed on or after 01.07.2024 shall be governed by the procedure provided under the BNSS and not by the provisions of the Code of 1973.”

It was further ruled that irrespective of the date of judgment of conviction, if the appeal is filed on or after July 1, 2024, the same shall follow the procedure laid down in BNSS.

The Court disagreed with the PHC at one point where the latter Court held that if the appeal/ petition/ application has been filed under the CrPC prior to July 1, 2024 and the same contains some defects, and the same are removed on or after July 1, 2024, then such appeal/ petition/ application under CrPC is not maintainable.

Whereas this Court ruled that such appeal/ petition/ application which is represented after curing filing defects, its date of filing shall relate back to the date of its first presentation. Therefore, the provisions which were in force on the date of filing shall remain applicable in such cases.

The Hon’ble High Court, on at least two occasions, had the chance to discuss this legal aspect after the coming into force of BNSS-

(i) In the matter of S. Rabban Alam v. CBI [CRL.A. 578/2024; Date of judgment - July 10, 2024], the Court was called upon to decide on the maintainability of the criminal appeal impugning the judgment passed against the appellant on June 5, 2024. Admittedly, the trial in the case was conducted and completed under the CrPC. Interestingly, the Hon’ble Court kept the question of maintainability of the appeal under the provisions of BNSS or CrPC left open to be considered subsequently. However, the Court at least observed that, “…the wording of section 531(2)(a) of the BNSS is amenable to a possible interpretation that if an appeal is pending before the coming into force of the BNSS, only then would such appeal be continued under the Cr.P.C.” It further observed, referring to an apex court ruling, that an appeal is considered to be a continuation of trial as a general settled principle of law.

(ii) Again, the same bench of the Hon’ble High Court was called to consider the issue in a matter concerning anticipatory bail titled Prince Vs. State of Govt. of NCT of Delhi [Bail Application No.2399/2024; Date of judgment - July 12, 2024], which was filed under the provisions of the CrPC, in a case where the FIR lodged on May 18, 2024. The Court, on plain reading of Section 531(2)(a) of BNSS, opined, “…proceedings are to be “… …disposed of, continued, held or made… … in accordance with the Cr.P.C. only in cases where such proceedings, viz. …any appeal, application, trial, inquiry or investigation… … was pending immediately before the date on which the BNSS came into force, i.e. 01.07.2024." The Court further opined that the present petition (bail application), since filed after July 1, 2024, ought to have been filed under BNSS. The Court itself treated the petition as one under the provisions of BNSS subject to any objection in this regard to be decided subsequently.

The above instances show the difficulties in interpreting the provisions in the interregnum period, which has presented itself as ‘a vexed question’ before courts.

The issue is real, and far from resolved. It is a time of transition from the old to the new. It involves the evolution and acceptance of new laws. Though it is not disputed that changes were necessary in view of the challenges brought by technology-based violations and infractions, which the repealed laws were ill-equipped to handle, it will take time for the new laws to be absorbed into the system.

At present, in view of multiple different interpretations coming from constitutional courts, the author is looking forward to further judicial opinions that will surely come with respect to the correct binding precedents. The entire fraternity awaits a conclusive decision from the apex court for sure.

About the authors: Mahua Roy Chowdhury is the Managing Partner of Royzz & Co. Jitendra Bohra is a Partner at the Firm.

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