Punjab & Haryana High Court Stays Arrest Of Accused Who Wrongly Sought Pre-Arrest Bail Under CrPC, Grants Time To File Under BNSS

The Punjab & Haryana High Court has stayed the arrest of an accused who had filed anticipatory bail plea under the Code of Criminal Procedure (CrPC) instead of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).

Arshdeep Singh was apprehending arrest for an incident which allegedly occurred on July 18, 2024, as per the FIR. The plea was filed under Section 438 of the CrPC, 1973 which is repealed with effect from midnight of June 30, 2024, and was replaced by the BNSS, 2023.

Justice Anoop Chitkara said, "unintentionally choosing a wrong legal remedy should not become a technical hindrance for exercising Constitutional and statutory rights in pursuit of Justice. Given this, the appropriate relief under these compelling circumstances is limited protection and relief to exercise the correct option."

The Court stayed the arrest for two weeks to give time to the petitioner, accused under Arms Act, to file the pre-arrest bail plea under BNSS. 

Perusing Section 358 of the BNSS, the Court said that the Indian Penal Code, 1860 eclipsed on the mid night of June 30, 2024, and the application of the Bharatiya Nyaya Sanhita, 2023 started to apply to all the incidents that have taken place w.e.f. July 01, 2024.

Similarly the Code of Criminal Procedure, 1973 eclipsed on the mid night of June 30, 2024, and the application of the BNSS started to apply to all the incidents occurred w.e.f. July 01, 2024, it added.

The Court relied on catena of judgements of High Courts on applicability of BNSS from July 01, 2024. It concluded that once a statute is repealed, it dies and loses all prospective legal force except that the legislature saved under the specific repealing provisions.

"Thus, the appropriate provision for any proceedings regarding applicable incidents that occurred after June 30, 2024, and did not form part of the transaction of the incidents that had taken place till June 30, 2024, would be BNSS, 2023, not CrPC, 1973," the judge said.

The Court also gave example of repealing of CrPC of 1898, stating that just like no petitions are entertained if filed under the CrPC 1898, similarly, no petitions can be entertained if filed under CrPC 1973.

The judge noted that in the present case the alleged offence has occurred after 30th June 2024 under the provisions of BNS, 2023, and thus, the correct provision for filing bail applications would be Sections 482 or 483 of BNSS, 2023 and not Sections 438 or 439 of CrPC, 1973.

In the light of the above, the plea was disposed of "with liberty reserved to file under S. 482 of BNSS, 2024."

Mr. Sant Pal Singh Sidhu, Advocate for the petitioner.

Ms. Swati Batra, DAG Punjab

Mr. Karanyog Singh Riar, Advocate for the Complainant

Title: Arshdeep Singh alias Arsh and another v. State of Punjab

Citation: 2024 LiveLaw (PH) 241

Click here to read/download the order