FIR In Rape Case Lodged On July 3 Under IPC Sections: Allahabad HC Questions SP On Not Invoking BNS Provisions

BNS, which replaced the IPC, came into effect on July 1, 2024, two days before the registration of the FIR in this case.

A bench of Justice Arvind Singh Sangwan and Justice Mohd Azhar Husain Idrisi sought an affidavit from the Superintendent of Police, Hamirpur, explaining why the FIR was not registered under Bharatiya Nyaya Sanhita (BNS).

“The impugned FIR dated 3.7.2024 is registered under the provision of Indian Penal Code and not under Bharatiya Nyaya Sanhita (BNS) which came into force on 1st July, 2024. The Superintendent of Police, Hamirpur shall file an affidavit why the FIR has not been registered under Bharatiya Nyaya Sanhita (BNS),” the Court's order reads.

The Court passed this order last week while hearing an FIR quashing plea filed by Deepu and four other accused persons booked in the alleged rape case.

As per the facts of the case, the 14-year-old victim alleged that on June 28, the accused persons, including Deepu, entered her home with an illegal pistol and performed 'obscene' acts, and when she made noises, her family members came there and saved her.

Additionally, the victim also claimed that in April 2024, Deepu had entered her home with a pistol, raped her at gunpoint, and recorded a video of the said act. After that, he allegedly used that video to threaten her and continued to abuse her physically.

The FIR against the accused persons was lodged on July 3 under Sections 376 (2)(n), 354, 147, 452, 504, and 506 IPC and Section 4 of the POCSO Act. The accused persons challenged the FIR and moved to the High Court.

Hearing the matter on July 23, the HC sought an affidavit from the Hamirpur SP and posted the matter for further hearing on July 30.

It may be noted here that Union Home Minister Amit Shah recently clarified that if the date of crime is before July 1, 2024, then it will be tried under old laws, and if it is later (on or after July 1), then it will be tried under new laws.

In fact, the Director General of Police, Telangana, recently issued a memorandum to the state's Police Department stating that if a crime is committed before 1 July but an FIR in relation to that crime is registered on or after July 1^st, then the provisions of the IPC would apply. The Delhi Police Department also issued a similar order.

Importantly, the BNS also attempts to clarify this position. Section 358 of the Sanhita states that notwithstanding the repeal of the code (IPC), such repeal shall not affect the previous operation of the code (IPC) or anything duly done or “suffered” thereunder.

This provision can be interpreted to mean that the 1860 code would apply to acts or offences committed before July 1, 2024.

Additionally, it is only reasonable to say that since the BNS did not exist on the date of the offence's commission (in the case at hand, the crime was allegedly committed in April and June 2024 and reported on July 3), the BNS may not have any applicability in the case. However, this explanation is subject to the Court's interpretation.

Also read: Applicability Of CrPC After July 1, 2024: A Conflict In The Twilight Zone

Advocates Rahul Mishra and Sanjay Mishra appeared for the accused persons