Bail Pleas, Criminal Petitions Filed After July 01, 2024 For FIRs Lodged Prior To Said Date To Be Governed By BNSS: Gauhati High Court

The Gauhati High Court on Monday held that all pre-arrest bail, regular bail, and criminal petitions filed after July 01, 2024 in respect of FIR registered prior to July 01, 2024 i.e. before coming into force of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) are liable to be filed, under Sections 482, 483 and 528 of the BNSS respectively.

The division bench comprising the Chief Justice Vijay Bishnoi and Justice Devashis Baruah was hearing a reference by a Single Judge bench of Gauhati High Court (Itanagar Permanent Bench) on the following issue:

“As to whether an application for pre-arrest or regular bail or Criminal Petition would be filed under Section 438/439/482 of the Code of Criminal Procedure, 1973 (now repealed), if the FIR is registered prior to 01.07.2024 i.e. before coming into force of the BNSS, 2023, or the same are liable to be filed under the provisions of Section 482 and 528 of the BNSS, 2023 in view of the saving clause provided under Section 531(2)(a) and 358 of the BNSS, 2023.”

Facts

A Single Judge bench of the Gauahti High Court in Sanjit Kar v. The State of Arunachal Pradesh (2024) held that the petition seeking pre-arrest bail under Section 482 of the BNSS be treated as one under Section 438 of the CrPC in connection with a case registered at Namsai Police Station prior to commencement of the BNSS. The petitioner in the above-mentioned case had preferred a bail application under Section 482 of the BNSS seeking pre-arrest bail in relation to an offence committed and registered before July 01, 2024, the day when the BNSS came into force.

While recording his disagreement with the view expressed in Sanjit Kar (supra), the Single Judge made the above referred reference vide order dated August 08, 2024. He further observed that, however, as there are conflicting opinions of various High Courts on the issue of interpretation of Section 531 of the BNSS, it is appropriate to place the matter before the Chief Justice for referring the matter before the Division Bench or a Larger Bench.

Arguments

The Counsels appearing for the Gauhati High Court and the States of Arunachal Pradesh, Nagaland and Mizoram submitted that the various High Courts have expressed their views that the saving clause Section 531(2) of the BNSS saves only pending appeal, application, trial, inquiry or investigation and therefore, any appeal, application, trial, inquiry or investigation commences after coming into force of the BNSS is required to be dealt with as per the provisions of the BNSS.

Court's Observation

The Court noted that it is the golden rule of interpretation that words of a statute must be understood in their natural, ordinary or popular sense and construed according to their grammatical meaning.

“The words of statute must prima facie be given their ordinary meaning and when the words of statute are clear, plain and unambiguous then the Courts are bound to give effect to that meaning irrespective of consequences unless such construction leads to absurdity or contrary to object of statute,” the Court said.

The Court further observed that a plain reading of the provisions of Section 531 of the BNSS, more particularly, saving clause, Sub-Section (2)(a) clearly suggests that any appeal, application, trial, inquiry or investigation pending, immediately before the date on which the BNSS comes into force, are liable to be disposed of, continued, held or made, as the case may be, in accordance with the CrPC, as in force immediately before such commencement, as if the BNSS has not come into force.

“In other words, Section 531(2)(a) of the BNSS clearly saves only appeal, application, trial, inquiry or investigation pending prior to commencement of the BNSS and provide that the same shall be disposed of, continued, held or made, as the case may be, in accordance with the Code of Criminal Procedure, 1973 (2 of 1974), however, the proceedings continued after coming into force of BNSS are not saved,” the Court added.

The Court opined that if the above referred provision is interpreted differently, it would lead to unjust results which legislature never intended.

The Court relied upon the judgment of the Supreme Court in Hitendra Vishnu Thakur & Ors. v. State of Maharashtra & Ors. (1994) 4 SCC 602 wherein it was observed that while right to forum and limitation is procedural in nature, while right of appeal and right of action is substantive in nature. It was further held that litigants have a vested right in substantive law but no such right exists in procedural law.

The Court agreed with the views expressed by the division bench of Allahabad High Court in Deepu & Ors. v. State of U.P. & Ors. Criminal Misc. Writ Petition No.12287 of 2024 in which the Court, among other diretions, held that 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 01, 2024, the same will be proceeded as per the procedure of BNSS.

Thus, the Court concluded that any pre-arrest or regular bail or Criminal Petition, filed after July 01, 2024 in connection with an FIR registered prior to July 01, 2024 i.e. before coming into force of the BNSS are liable to be filed, under the provisions of Sections 482, 483 and 528 of the BNSS respectively.

“The Registry is directed to treat all pre-arrest bail/regular bail/Criminal Petitions filed after 01.07.2024 in respect of an FIR registered prior to 01.07.2024 to be filed under Section 482, 483 and 528 of the BNSS, 2023 respectively,” it said.

Citation: 2024 LiveLaw (Gau) 82

Case Title: In Re: XXX v. The State of Arunachal Pradesh & Ors.

Case No.: Crl. Ref./1/2024

Click Here To Read/Download Order