Registration Of FIR U/S 154 CrPC After BNSS Came Into Force Not A Curable Defect: Karnataka High Court
Mustafa Plumber
9 Oct 2024 4:30 PM IST
The Karnataka High Court has held that from July 1, 2024 onwards when the Bharatiya Nagarik Suraksha Sanhita (BNSS) came into force, the police registering an FIR under the repealed Criminal Procedure Code, is incorrect.
A single judge bench of Justice K Natarajan, sitting at Kalaburagi bench, allowed the petition filed by Arunkumar and quashed the FIR registered against him under Section 376, 323, 506 and 420 of Indian Penal Code on July 1.
The court said “The FIR registered by the Lingasugur police in Crime No.180/2024 under Section 154 of Cr.P.C is hereby quashed. However, the complaint filed by the de-facto complainant is retained and remitted back to the police to register the FIR under Section 173 of BNSS and proceed to investigate the matter under BNSS and file a final report under Section 193 of BNSS.”
The complaint was filed by the victim on July 01, 2024, alleging rape and cheating.
The petitioner-accused argued that the offences alleged in the complaint occurred on June 24, 2021 and on subsequent dates on or prior to June 30, 2024, but the complaint was filed after CrPC was repealed and BNSS came into force. Therefore, the police couldn't have registered the impugned FIR under provisions of CrPC.
The police contended that it was the first FIR registered after commencement of the BNSS and it could not change the format of the FIR in the computer and enable the correction of CrPC into BNSS. Therefore, an error crept in the provisions, for having registered the FIR, but that itself is not a ground for quashing the FIR.
Further, it was claimed that the provision of the FIR can be amended at the request of the Magistrate, even otherwise the police have stated, in column No.11(C) of the FIR that investigation is taken up under Section 176 of BNSS. Therefore, it is only a clerical error, on this ground FIR cannot be quashed.
Firstly the bench referred to Sub Section (a) to (e) of Section 358 (2) of BNS which defines that any right accrued or liability acquired or obligation, suffered, prior to commencement of the BNS, the IPC will apply.
It then said, “Hence, if any offences committed prior to the commencement of BNS prior to 01.07.2024, the police are required to register FIR for the offences under the IPC but not under BNS. Therefore, the police have rightly registered an FIR for the offences against the petitioner under the IPC.”
Addressing the contention that police should have registered the FIR under Section 173 of BNSS, Court noted that no appeal/ application/ trial/ enquiry/ investigation was pending on the date prior to commencement of BNSS. Thus the savings clause under Section 531(2)(a) of BNSS will not apply. Following which it held,
“The FIR shall have to be registered by the police under Section 173 of BNSS and the investigation shall be conducted in accordance with the procedure made under Section 176 of BNSS and hence, FIR registered under Cr.P.C. as on 01.07.2024 is not correct.”
Rejecting the contention of the prosecution that the defect can be cured, the court said, “FIR is a basic document for the purpose of setting the law into motion and it is also the foundation for investigating the matter by the Police Officer for the offences registered against the accused. Therefore, it cannot be permissible to investigate the matter under Section 176 of BNSS for the FIR registered under 154 of Cr.P.C. after commencement of the BNSS on or after 01.07.2024. It cannot be considered as a curable defect.”
It held that since the basic foundation itself is not correct, the police cannot have power to investigate the case under section 176 of BNSS. It thus quashed the FIR.
The court also issued directions for the procedure to be followed by trial courts with respect of CrPC and BNSS, and IPC and BNS.
Appearance: Advocate Mahantesh Patil for Petitioner.
HCGP Jamadar Shahbuddin for R1.
Advocate S. S Mamadapur FOR R2.
Citation No: 2024 LiveLaw (Kar) 432
Case Title: Arunkumar AND State of Karnataka
Case No: CRIMINAL PETITION NO.200913 OF 2024.
