Applicability Of CrPC After July 1, 2024: A Conflict In The Twilight Zone
Within days of coming into force, the much celebrated new criminal laws which repealed the "colonial remnants" have provoked a legal conundrum qua their applicability to offences registered prior to July 1, 2024.There is also uncertainty regarding applicability of the old statues to proceedings after the said date. This article is an attempt to dissect some of these issues.If an offence...
Within days of coming into force, the much celebrated new criminal laws which repealed the "colonial remnants" have provoked a legal conundrum qua their applicability to offences registered prior to July 1, 2024.
There is also uncertainty regarding applicability of the old statues to proceedings after the said date. This article is an attempt to dissect some of these issues.
If an offence is committed on or after July 1, 2024, clearly, the newly enacted Bharatiya Nyaya Sanhita (which repealed the Indian Penal Code) and Bharatiya Nagarik Suraksha Sanhita (which repealed the Code of Criminal Procedure, 1973) will apply at both investigation and trial stage. Crimes reported and being tried prior to the said date will continue to be governed by IPC and CrPC.
However, the first issue crops up when the FIR is lodged prior to July 1, 2024 but the trial commences after enforcement of the new laws. Which law will apply to such trial? CrPC or BNSS?
Second issue is- when a crime is committed prior to July 1, 2024 but is reported only thereafter, FIR will be lodged under IPC or BNS?
Third issue which the article will delve into is whether appeals filed after July 1 2024 qua trials conducted under CrPC will be governed by CrPC or BNSS?
Conflicting judgments
So far as the first issue is concerned, in Krishna Joshi v State of Rajasthan & Ors. [2024 LiveLaw (Raj) 155], the Rajasthan High Court on July 9 held that the moment an FIR is registered, criminal law is deemed to be set in motion and hence, the law as applicable on the date of registration of FIR will be the governing law. So to say, trial for FIRs lodged on or after July 1 will be governed by BNSS. However, trial for FIRs lodged prior to that, even if it commences after July 1, will be governed by the CrPC.
The reasoning delineated by the Court, on first blush, is fairly simple- Rights of the accused in an FIR and the legal expectations formed under the old law are required to be protected.
However, viewed from the lens of Punjab & Haryana High Court, if a FIR is lodged under IPC but the application or petition in relation to it is filed after July 01, then provisions of BNSS will apply. In XXX v. State of UT, Chandigarh [2024 LiveLaw (PH) 252] delivered on July 11, the High Court ruled "once the altered procedural law namely BNSS has been brought in vogue, it would apply to cases initiated under IPC as well from and after the date of its commencement i.e. 01.07.2024 as well as to future proceedings except the pending appeal, application etc. as specifically stated in Section 531(2)(a) of BNSS."
Both the judgments, dated two days apart, have been rendered by single-judge benches. At least, as apparent from the judgment copy, the Rajasthan High Court's decision- which though would hold only persuasive value in Chandigarh, was not placed before the High Court seated there.
The divergent views expressed by the two Courts reminds of law school lesson- Rules of Interpretation of Statutes. This article will attempt a 'literal interpretation' of the provisions, understand the intention of law makers (through Statement of Objects) under 'mischief rule' and analyse the precedents under 'golden rule'.
What statute says?
Section 531 of BNSS is the repeal and savings clause. It repeals CrPC with a stipulation under sub-clause (a) of clause 2 that any appeal, application, trial, inquiry or investigation pending prior to coming into force of BNSS shall be continued and disposed of in accordance with provisions of CrPC. Statute available here.
A straight forward reading of the provision indicates that investigation pending under CrPC will be carried on under the old Code itself. However, what if the judicial proceedings emanating from such investigation are launched only after July 1, 2024? Will that be considered a trial "pending" before enforcement of the new criminal laws? The two High Courts have answered distinctly.
If one takes a look at sub-clause (c) of clause 2 of Section 531, it states that if proceedings are not commenced before July 1 for which sanction was accorded under CrPC, such sanction shall be deemed to have been given under BNSS and proceedings may be commenced under BNSS.
This incidentally suggests that if judicial proceedings are not launched before July 1 2024, they will have to be instituted subsequently under BNSS. However, since the legislature has woven the provision in relation to prosecutions that require sanction alone, assuming a generic application of the rule across board will not be safe since- had the Parliament intended so, it would have stated so.
What is the Statement of Objects and Reasons behind the new laws?
The delay in delivery of justice due to "complex legal procedures" and "delays in investigation system" are the prime reasons for enactment of BNSS. The new law comes with specific time-lines for "time bound investigation and trial".
BNSS prescribes a sixty-day timeline for framing the charges and a sixty-day window has been prescribed for filling out the discharge application by the accused. Criminal courts are bound to pronounce the Judgment within forty-five days after conclusion of hearing. No such timelines are prescribed under the CrPC. Would this change in procedure beneficially or adversely affect the rights of accused? Is that permissible?
Section 6 of the General Clauses Act makes it apparent that no right, privilege, obligation, or liability acquired under any law, which has been repealed, shall be affected by such repeal. At this juncture, it is significant to recapture Union of India v. Sukumar Pyne (1965) where five-Judge bench of the Supreme Court held that an accused has no vested right in any particular procedure. Another five-Judges bench decision of the Apex Court in Rao Shiv Bahadur Singh And Another v. State Of Vindhya Pradesh (1953) held that trial under a procedure different from what obtained at the time of the commission of the offence cannot ipso facto be held to be unconstitutional.
This can also be read in light of Article 20(1) of the Constitution which prohibits conviction and sentence in a criminal proceeding under ex post facto law, not trial- which is a matter of procedure.
The above implies that FIR for an offence committed on say June 30, 2024 if lodged after July 1 should be registered under IPC (substantive law operating on the date of commission of offence) but, the procedural law applicable in this case should be the law holding field on date of lodging FIR, i.e. BNSS. A Circular issued by the Delhi Police Headquarters supports this inference. Hence, giving quietus to the second issue.
Precedents
It is worthy to note that Section 531 BNSS discussed above is to a great extent pari materia to Section 484 CrPC 1973, which repealed CrPC of 1898. Hence, an analysis of the judgments rendered at the time may give some guidance.
In Hiralal Nansa Bhavsar and Ors. v. State of Gujarat (1974), a Full bench of the Gujarat High Court was faced with similar issues we face today. It had to decide the forum of appeal for an offence committed prior to enforcement of CrPC 1973 on April 1, 1974. The offence was committed on August 25, 1973, the trial commenced in December 1973 but the judgment was passed when the new law had taken effect, on April 8, 1974.
This judgment addressed both the first and third issue at hand.
Let's first look at the third issue- whether appeals filed after enforcement of new Code qua trials conducted under old Code will be governed by the new law or the old one?
The Gujarat High Court held that since appeal is considered as a continuation of the trial, Section 484(2)(a) of CrPC 1973 would save the appeal from repeal (of CrPC 1898) and it will be governed under the old Code (same procedure under which the trial was held). In other words, if trial is conducted under a particular procedural law, an appeal against the judgment rendered in such trial will also be governed by that particular procedural, irrespective of its repeal.
But only earlier this week, on July 15, a single bench of the Kerala High Court disagreed. In Abdul Khader v State of Kerala [2024 LiveLaw (Ker) 450], it held that appeals filed on or after July 01 2024 will be governed by BNSS (the new Code), irrespective of trial under CrPC.
Again, the judgment of Gujarat High Court, though rendered by a five-judge bench, would have held only a persuasive value. But the Kerala High Court in this case, unlike the Rajasthan High Court or the Punjab & Haryana High Court, was made aware of the precedent and it chose to disagree.
The reasoning offered by the Kerala High Court is that a party to a prosecution has no vested right in procedural provisions. This is exactly what the Supreme Court Constitution Bench said in Rao Shiv Bahadur Singh (supra). Kerala High Court added that on the commencement of BNSS, the procedure prescribed therein shall apply to all appeals, applications, trial, enquiry and investigation commenced on or after that date.
The decision, in my view, also finds force in the fact that Section 531(2)(a) BNSS saves only "pending" trials and appeals. An appeal filed after July 1 2024, though a continuation of trial, would not qualify as either a "pending" appeal or trial. This argument draws strength from the Supreme Court's recent judgment in Sukhpal Singh Khaira v. State of Punjab [2022 LiveLaw (SC) 1009] where it was held that conclusion of trial means 'before the pronouncement of judgment'. So, a trial ends with the judgment and cannot be said to be "pending" at the time of filing of appeal.
Moreover, the Delhi High Court also commented on this issue in Shri S. Rabban Alam v. CBI Though Its Director [2024 LiveLaw (Del) 797], stating that the wording of section 531(2)(a) 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 CrPC. However, the Court did not fully decide the issue and left it open.
In Prince vs State Of Govt Of Nct Of Delhi & Ors [2024 LiveLaw (Del) 800], the Delhi High Court held that an application for anticipatory bail in an offence registered prior to enforcement of the new criminal laws, ought to be filed under BNSS. It reasoned that as per Section 531(2)(a) BNSS, proceedings are to be disposed of/ continued in accordance with CrPC only in cases where such proceedings viz. any appeal, application, trial, inquiry or investigation was "pending".
If such reasoning is acceptable qua anticipatory bail, which is ordinarily filed during investigation (which in this case is conducted under CrPC), would it be a stretch to apply the same reasoning to appeals?
Taking on the first issue, it is significant to note that the Gujarat High Court had also held that what is saved under Section 484(2)(a) CrPC 1973 are only "pending proceedings". Thus, if a proceeding [trial] is instituted subsequent to the commencement of the 1973 Code in respect of the act or omission committed prior to the coming into force of the new Code, it would only be governed by the provision of the new Code. Meaning thereby, accused persons against whom the Court takes cognizance after April 1, 1974 in respect of an offence committed prior to coming into force of the new Code (of 1973) will be governed by the new Code only.
In 1976, a single bench of Punjab & Haryana High Court affirmed this view. In Ramesh Chander and Ors. v. Chandigarh Administration (1976) it held, "if a proceeding is initiated by presenting a challan subsequent to the commencement of the new Code in respect of the act or omission committed prior to the coming into force of the new Code, it would only be governed by the provisions of the new Code, because when investigation is initiated in respect of an alleged offence before the coming into force of the new Code, the investigation has to be made according to the provisions of the old Code and on completion of such investigation, further steps, such as, filing of a police report in the Court, have to be taken in accordance with the provisions of the new Code. It is so because investigation is only a procedural matter in respect of which no vested right accrues to the accused. Vested right accrues to the accused only when the Court takes cognizance of the prosecution against him after the police has presented a challan against him."
These judgments lend support to the view expressed by the Punjab & Haryana High Court in XXX v. State of UT, Chandigarh (supra).
Coming back to the Rajasthan High Court judgment which held "legal expectations formed under the old law are required to be protected", can accused be said to have a right to any particular procedure? Supreme Court has said no. Can trial be said to be "pending", as stipulated by Section 531(2)(a) BNSS, on mere registration of FIR, even in absence of trial Court taking cognizance? A Constitution Bench of the Supreme Court in Hardeep Singh v. State of Punjab (2014) held that trial commences with the framing of charge (not on registration of FIR or police investigation).
What did law makers say?
The new criminal laws were cleared by the Parliament without much debate, as over 140 opposition MPs were suspended from both houses at the time. Hence, not much comes forth from there. However, recently Union Home Minister Amit Shah said in a press conference that the new criminal laws will apply to cases if the date of crime is on or after July 1, 2024.
Responding to a question by the press, Shah said, “I want to make it clear for old and new laws- if date of crime is before July 1, 2024, then the old laws will apply. All crimes committed after July 1, 2024, will be governed by the three new laws. There's no confusion about it.”
However, Shah's statement was seemingly made in reference to date of commission of offence. The statement does not lend much clarity to the scepticism surrounding date of commencement of trial. The Report of the Department-related Parliamentary Standing Committee also didn't address these issues.
The question had arisen 50 years ago before at least four High Courts (list below). However, it went unnoticed in the Parliament. Perhaps, a strong Opposition could have dug deeper.
Food for Thought
Another upshot to the Punjab & Haryana High Court's interpretation in XXX (supra) would be that offences registered under the IPC would be tried as per procedure prescribed under BNSS (if trial commences after July 1). Was that the objective of the legislature?
Section 4 of BNSS states that all offences under the BNS shall be dealt with according to the provisions of BNSS. Sub-section (2) thereof states all offences under any other law shall be dealt with according to the same provisions (i.e. BNSS), subject to any enactment for the time being in force regulating the manner or place of investigation.
Would "any other law" under sub-section (2) include provisions of a repealed law (IPC), remains a matter of debate.
Conclusion
On the strength of reasons stated above, I would argue the following:
-For FIRs lodged and trials commenced prior to July 1 2024, CrPC will hold field (Section 531(2)(a) BNSS);
-For FIRs lodged prior to July 1 2024, CrPC will apply so far as investigation is concerned. But if trial commences after July 1, BNSS will apply (since CrPC will continue to apply only to "pending" trials, etc.);
-For offence occurred prior to enforcement of new laws but FIR lodged after July 1 2024, FIR will be under IPC but probe and trial will be under BNSS (since substantive law at the time of commission of offence will hold field but accused has no vested right to old procedure);
-For trials pending as on July 1 2024, appellate proceedings, if any, will be governed by BNSS (since appeal, though continuation of trial, was not "pending").
These are only a limited set of issues. In the foreseeable future, applicability of procedure for revision, quashing petitions in relation to trials or appeals pending/ concluded under CrPC are likely to emerge. What about persons seeking suspension of sentence imposed after trial under CrPC? Will they approach the Courts under CrPC or BNSS? Can Courts exercise inherent power to import lenient, reformative punishment (like community service adopted under BNS) while sentencing an accused during trial under IPC/CrPC?
Few judgments rendered on related issues under Section 484 of CrPC, 1973:
1. Hiralal Nansa Bhavsar and Ors. v. State of Gujarat
2. Ramesh Chander and Ors. v. Chandigarh Administration [MANU/PH/0245/1976]
4. Vasudeo Agrawal and Ors. Vs. State of Bihar
The author is a Senior Associate Editor with LiveLaw. Views personal. She can be reached at akshita@livelaw.in