On July 1st, 2024, India witnessed a crucial transformation in its criminal justice system as the Indian Penal Code 1860, Code of Criminal Procedure 1973 (“CrPC/new Code”) and the Indian Evidence Act 1872, were repealed, giving way to three newly enacted laws, the Bharatiya Nyaya Sanhita 2023, Bharatiya Nagarik Suraksha Sanhita 2023 (“BNSS”) and the Bharatiya Sakshya...
On July 1st, 2024, India witnessed a crucial transformation in its criminal justice system as the Indian Penal Code 1860, Code of Criminal Procedure 1973 (“CrPC/new Code”) and the Indian Evidence Act 1872, were repealed, giving way to three newly enacted laws, the Bharatiya Nyaya Sanhita 2023, Bharatiya Nagarik Suraksha Sanhita 2023 (“BNSS”) and the Bharatiya Sakshya Adhiniyam 2023.
Proponents of this legislative overhaul regard it to be a watershed moment – a deliberate effort to distance India from its colonial legacy and establish a more robust and effective criminal justice framework. Conversely, critics contend that the new laws bring little innovation, dismissing them as a mere rebranding of the old laws, if not more stringent.
While the metal of the new laws can only be tested by the anvil of time, it is important to recognise that their introduction has not been without challenges. One major concern has been the applicability of the BNSS to fresh bail applications filed on/post 1st July in ongoing investigations, inquiries and trials initiated under the CrPC. Moreover, questions have been raised as to whether the CrPC or the BNSS would govern the applications arising from these bail orders.
This conundrum can be explained through the medium of this example: Suppose an FIR dated 28.06.2024 has been filed against Mr. X and Y. During the pendency of this investigation, Mr. X., anticipating his arrest, files an anticipatory bail application under under Section 438 of CrPC on 30.06.2024. Mr. Y also decides to file his anticipatory bail application on 01.07.2024, this time under Section 482 of the BNSS.
Given that these bail applications arise from an investigation initiated under the CrPC, two legal questions are raised in this situation:
- Which law applies to Mr. Y's anticipatory bail application – the CrPC or the BNSS?
- If Mr. X's anticipatory bail application is denied on 02.07.2024, should he file an application invoking the High Court's inherent powers under the CrPC or the BNSS?
However, as demonstrated in the following analysis, Section 531(2)(a) of the BNSS unequivocal limits its temporal applicability to fresh applications and appeals filed on or after July 1st, 2024, i.e., the critical date. Prior to this critical date, the CrPC remains the applicable legislation for bail applications.
Question No. 1: The Prospective Operation of the BNSS
Before proceeding, it would be appropriate to discuss the relevant portions of Section 531 of the BNSS:
531. Repeal and savings: (1) The Code of Criminal Procedure, 1973 is hereby repealed.
(2) Notwithstanding such repeal-
(a) if, immediately before the date on which this Sanhita 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 Code of Criminal Procedure, 1973, as in force immediately before such commencement (hereinafter referred to as the said Code), as if this Sanhita had not come into force;
A plain reading of sub-section (2)(a) reveals that any bail application filed in any pending investigation, inquiry and trial before the critical date, would be governed within the contours of the CrPC as if the BNSS had never come into force. It is a fundamental principle of statutory interpretation that Courts cannot inject new meanings/requirements into statutory provisions when their language qua legislative intent is clear and unambiguous.[1] Section 531(2)(a) of the Act is explicit in its intent in as much that its inclusion reflects the Legislature's desire to avoid any confusion regarding the prospective application of the BNSS.
Even otherwise, under Section 6 of the General Clauses Act, 1897, unless a different legislative intention appears in the Central Act, pending legal proceeding initiated under the repealed Act and not affected by the repeal and are deemed to continue as if the repealing Act had not been passed. In other words, in the absence of contrary legislative intent, bail applications initiated under the repealed CrPC prior to the critical date, continue unaffected by the BNSS. Consequently, the BNSS only operates prospectively for applications and appeals filed on or after the critical date.
In this regard, the legal maxim expressio unius est exclusio alterius assumes significant importance. Under this maxim, if a statute provides for an act to be done in a particular manner, then other actions are impliedly and necessarily forbidden.[2] Therefore, since, Section 531(2)(a) categorically expresses the applicability of the CrPC for pending applications before the critical date, it implicitly excludes the application of the BNSS to these matters.
Finally, it is noteworthy that the Bombay High Court has recently adjudicated upon this precise issue in the case of Chowgule and Company (P) Ltd. v. State of Goa.[3] Here, the High Court was tasked with considering the applicable law that would govern the anticipatory bail application filed by the respondent/accused on 06.07.2024. The relevant portion of the judgement is produced below:
“69. …….repeal and saving clause would clearly depict that from the date of implementation of BNSS 2023 i.e. 01.07.2024 provisions of Code of Criminal Procedure, 1973 shall be repealed. The saving clause only saves any appeal, application, trial, inquiry or investigation pending as on 01.07.2024. Thus, any application filed as on 01.07.2024 or thereafter shall be governed by the provisions of BNSS 2023 for the simple reason that by that date, the provisions of Cr.P.C. 1973 stands repealed.”
Put another way, Mr. Y's anticipatory bail application will be governed under Section 482 of the BNSS and not Section 438 of the CrPC since, the latter stood repealed on the date of the filing of the application.
Question No. 2: Bearing of the BNSS to Appeals and Applications Arising from Pre-Commencement Proceedings
Notwithstanding the aforesaid, an answer to question 2 can also be found via judicial interpretations of Section 484(2)(a) of the CrPC, a repeal and savings provision, pari materia to Section 531(2)(a) of the BNSS.
Particularly, Section 484(2)(a) of the CrPC provided that all pending appeals, applications, trials, inquiries and/or investigations initiated under the provisions of the Code of Criminal Procedure, 1898 (“old Code”) would continue to be heard or disposed off in accordance with the old CrPC until the commencement of the new Code on 1st April 1974.
Pertinently, in interpreting the interplay between the applicability of the new and old Codes, the Bombay High Court in the case of State of Maharashtra v. Jawaharlal Shamlal Ujawane,[4] noted that while a plain reading and construction of Section 484(2) made it clear that the old Code would apply only to pending applications and appeals before 1st April, 1974, there was nothing in the section's phraseology that would save the provisions of the old Code from being invoked and implemented for the purpose of appeals, revisions, etc. filed after the commencement of the new Code against any proceedings which had been filed in the Trial Court before the coming into force of the new Code.[5]
Accordingly, while the CrPC governs appeals or applications filed within an ongoing inquiry or trial prior to the critical date,[6] those appeals or applications initiated on or after that date, even arising from a previously commenced inquiry or trial, fall under the purview of the BNSS.
Thus, if Mr. X's anticipatory bail application is denied on 02.07.2024, he will have to file an application, invoking the High Court's inherent power under Section 528 of the BNSS and not Section 482 of the CrPC.
While the introduction of the new criminal laws may have ushered in a new exciting era for Indian criminal jurisprudence, the transition period has presented several challenges, particularly the applicability of the CrPC and BNSS to pending proceedings. However, a careful textual analysis of Section 531(2)(a) of the BNSS, coupled with relevant judicial precedents unequivocally suggest that the Act operates prospectively. Consequently, bail applications filed before the BNSS's commencement are governed by the CrPC, while subsequent ones, including related applications rising from thereunder, fall under the BNSS. This clarity is essential to ensure uniformity and predictability in the application of criminal law during this transitional phase.
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