BNSS Will Be Applicable To All Criminal Appeals Filed After 1st July: Kerala High Court Frames Guidelines

1. An appeal filed on or after 01.07.2024 shall be governed by BNSS
2. Irrespective of whether the conviction was given on or before 01.07.2024 or if the appeal is filed on or after 01.07.2024, BNSS is to be followed
3. All applications filed and steps taken in appeals prior to 01.07.2024 shall be governed by Cr. P.C
4. When an appeal/ application is re-presented after curing defects, its date of filing shall be the date of its first presentation.

The Court adopted these principles from the decision of Punjab & Haryana High Court in xxx v State of UT Chandigarh and Another (2024). The Court accepted most of the principles laid down by the Punjab High Court except one.

The Punjab Court had held that any appeal/ revision/ application/ revision filed on or after 01.07.2024 under Cr.P.C will be non-maintainable and would be dismissed/ rejected. If any appeal/ application/ revision/ petition filed before 30.06.2024 had defects and it was cured on/after 01.07.2024, such petitions/appeals/ revisions shall be deemed to have been filed on or after 01.07.2024 and would be non-maintainable if it was filed under Cr.P.C

Justice P. G. Ajithkumar said that he was unable to agree with the proposition of the Punjab High Court. He held that the petition would not fail only for the reason that incorrect provision was mentioned in the petition. The petitioner/ appellant can be directed to amend the petition to make it proper. And in case of applications which had defects which was subsequently cured, the date of filing shall be the date on which the application was first presented.

In this case, the appellant submitted that the trial was held under Cr.P.C. Therefore, his right to appeal comes from Cr.P.C.

The Court examined the concerned provisions - S. 531 (1) and S. 531 (2)(a) of BNSS:

S. 531: Repeal and Savings:

(1) The Code of Criminal Procedure is hereby repealed

(2) Notwithstanding such repeal –

(a) if immediately before the date on which the Sanhita came 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, 1972, as in force immediately before such commencement (hereinafter referred toas the said Code), as if the Sanhita had not come into force.

The petitioner relied on Pylikunju and Others v State of Kerala and Others (1977) and Sobhan v State of Kerala (2021) to argue that the appeal is to be filed under the provisions of Cr.P.C

The Court held that all these decisions dealt with the right of appeal. These decisions held that if a person had a right of appeal as per the laws under which they were convicted in a trial, this right could not be taken away by subsequent legislation unless there are clear indications to that effect. It is not applicable in this case. What is to be decided in this case is the procedural provisions applicable to the appeal.

The Court held that the accused has a vested right only with respect to the right to appeal. There is no such vested right in procedural provisions.

“The principles laid down in the aforementioned decision fortify the view that a party to a prosecution has no vested right in procedural provisions and therefore on the commencement of BNSS on 01.07.2024 the procedure prescribed therein shall apply to all appeals, applications, trial, enquiry and investigation commenced on or after the date.”

The Court held that if any of the proceedings mentioned, namely, investigation, inquiry, trial, appeal and application is ongoing on 01.07.2024, provisions of Cr. P.C is applicable. If any of the proceedings are already completed before 01.07.2024, further steps have to be taken as per the provisions of BNSS.

The Court directed the appellant to make necessary amendments to the appeal and file it under the provisions of BNSS.

Counsel for the Appellant: Advocates Sidharth O., Anwin John Antony, P. C. Moideen, Susanth Shaji, Mohammed Asif P., Albin A. Joseph

Counsel for the Respondent: Public Prosecutor Adv. Sheeba Thomas

Case Title: Abdul Khader v State of Kerala

Case No: Crl.A. No. 1186 of 2024

Citation: 2024 LiveLaw (Ker) 455