FIR Lodged On Or After July 1 Would Be Under IPC If Offence Committed Before That Date; Investigation Will Be As Per BNSS: Allahabad HC

A bench of Justice Vivek Kumar Birla and Justice Arun Kumar Singh Deshwal further summarised the law regarding the effect of repealing the IPC and CrPC by BNS and BNSS, respectively, and the same is being mentioned below:

• If an FIR is registered on or after July 1, 2024, for an offence committed before that date, it would be registered under the provisions of the IPC, but the investigation will continue as per BNSS.
• In the pending investigation on July 1, 2024 (on the date of commencement of New Criminal Laws), the investigation will continue as per the CrPC till the cognizance is taken on the police report, and if any direction is made for further investigation by the competent Court, then the same will continue as per the CrPC
• The cognizance of the pending investigation on or after July 1, 2024, would be taken as per the BNSS, and all the subsequent proceedings, including enquiry, trial, or appeal, would be conducted as per the procedure of BNSS.
• Section 531(2)(a) of BNSS saved only pending investigation, trial, appeal, application and enquiry; therefore, if any trial, appeal, revision or application is commenced after July 1, 2024, the same will be proceeded as per the procedure of BNSS.
• If the trial pending on July 1, 2024, is concluded on or after July 1, 2024, then an appeal or revision against the judgement passed in such a trial will be as per the BNSS.
• However, if any application is filed in appeal, pending on July 1, 2024, then the procedure of CrPC will apply.
• If the criminal proceeding or chargesheet is challenged before the High Court on or after July 1, 2024, where the investigation was conducted as per CrPC, then the same will be filed u/s 528 of BNSS, not u/s 482 CrPC.

The Court made these observations while dealing with an FIR quashing plea filed by Deepu and four other accused persons booked in the alleged rape case. In this case, the FIR, lodged on July 3, contained provisions of the Indian Penal Code.

In view of this, the Court had earlier questioned the Superintendent of Police, Hamirpur, over not invoking the provisions of Bharatiya Nyaya Sanhita (BNS) even though the FIR was lodged on July 3.

Filing a personal affidavit in the matter, the SP Concerned submitted before the Court that in respect of the procedure after the commencement of BNSS, a circular (dated July 4, 2024) was issued by the Police Technical Services Headquarters, Uttar Pradesh, which provided that if any offence is committed prior to the enforcement of BNC, the FIR would be registered under the provisions of IPC, and procedure of investigation would be followed as per Bhartiya Nagrik Suraksha Sanhita (B.N.S.S.)

Against this backdrop, it was submitted that since the alleged incident occurred before July 1, 2024, an FIR was not lodged under the BNS but the IPC.

Finding the personal affidavit and the reasoning given therein satisfactory, the Court said that the circular of the Police Technical Services Headquarters, UP, was 'absolutely correct' in view of Article 20 of the Constitution of India.

“…in case the F.I.R. is registered after the commencement of new criminal laws for the offence committed prior to the enforcement of new criminal laws then the F.I.R. would be registered under the provision of I.P.C. as the I.P.C. is a substantive law which was prevalent at the time of committing the offence because as per Article 20 of the Constitution of India a person can be convicted of an offence for the violation of law enforced at the time of the commission of the act,” the Court remarked.

Further, the Court also addressed the question as to what would be the procedure of investigation, if the FIR is registered after the commencement of new criminal laws for the offence committed prior to the enforcement of new criminal laws, as such investigation is not saved by Section 531(2)(a) of the BNSS to be conducted as per CrPC.

To answer the query, the Court referred to Section 6 of the General Clause Act, 1897 to note that the repeal of CrPC shall not affect any investigation, legal proceeding or remedy in respect of any liability, penalty or punishment accrued or incurred under the repealed Act and such investigation, legal proceeding or remedy will continue under the repealed Act.

“It is also clear from Section-6 of the General Clauses Act, the repeal of I.P.C. or Cr.P.C. will not affect any right, liability accrued or incurred under the repealed Act. Therefore, despite repealing of IPC and Cr.P.C., liability to get punishment under IPC will continue and remedy like an appeal under Cr.P.C. will remain as it is but the forum of appeal being procedural in nature will be as per the BNSS,” the Court observed.

Importantly, while examining the effect of repeal of IPC and CrPC and enforcement of new Criminal Laws (BNS and BNSS), the Court also referred to the Punjab and Haryana High Court's Judgment in the case of XXX v. State of UT, Chandigarh 2024 LiveLaw (PH) 252, which was also relied upon subsequently by Kerala High Court in the case of Abdul Khader v State of Kerala 2024 LiveLaw (Ker) 450, wherein it was held that a fresh appeal or application or revision of the petitioner after the repeal of CrPC could be filed under the BNSS, and not under CrPC and remedial applications/petitions after July 1, 2024 could be filed only under BNSS not under the CrPC even though the offence was committed prior to July 1, 2024.

From the above-discussed case, the Court alos culled out the following legal position:

• The amended/repealed procedural law will be applicable retrospectively unless otherwise provided in the new Act itself;
• A liability or right accrued under the repealed Act will not be affected and same will continue as if the repealing Act did not come into force;
• The procedure of investigation, trial, revision and appeal as well as a forum of remedy is part of procedural law, and the same will be applicable retrospectively unless otherwise provided in the new procedural law;
• The litigants have no vested right in procedural law but have vested right in substantive law with accrued right or liability.
• The statute which not only changes the procedure but also creates new rights and liabilities, shall be construed to be prospective in nature unless otherwise provided.

Further, on the merits of the case, the Counsel for the applicant submitted that given the statement of the victim recorded under Section 164 CrPC, Section 376 (2)(n) had been deleted, and all other offences are punishable with imprisonment up to seven years; therefore, the police authorities are bound to follow the procedure laid down under Section 41-A CrPC.

In view of this, the Court disposed of the petition in view of the Apex Courts' Judgments in the cases of Arnesh Kumar Vs. State of Bihar and Social Action Forum for Manav Adhikar Vs. Union of India, Ministry of Law and Justice and others and Satendra Kumar Antil vs. Central Bureau of Investigation and Another.

The Court also directed the Registrar (Compliance) to send a copy of the order to the Director General of Police, Uttar Pradesh, who will circulate it to all the District Police Chiefs, who will further sensitize the investigating officers under their supervision.

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

Appearances

Counsel for Petitioner: Rahul Mishra, Sanjay Mishra

Counsel for Respondent: Bhaiya Lal Yadav, G.A.

Counsel for Opposite Party: G.A., Rakesh Dwivedi

Case title – Deepu And 4 Others vs. State Of U.P. And 3 Others 2024 LiveLaw (AB) 517

Case citation: 2024 LiveLaw (AB) 517

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