Whether All Criminal Pleas Filed After 1st July 2024 Will Be Governed By BNSS? Punjab & Haryana High Court Refers Issue To Larger Bench

The Punjab and Haryana High Court has referred the issue of applicability of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) to a larger bench.

Justice Harpreet Singh Brar disagreed with the opinion in Axxx v. UT Chandigarh where Justice Sumeet Goel had held that 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 be applicable.

As per Justice Brar, the determining factor relevant for the application of criminal codes would be the date of the incident and the date when criminal law machinery was set in motion i.e. when a complaint is made before the police or the jurisdictional Magistrate (and not when the petition/ application is filed).

Given the conflicting opinions, Justice Brar framed the following questions for reference of a larger bench:

“1. Whether the determining factor relevant for the application of criminal codes, when read in the light of Section 531 BNSS, would be the date of the incident and the date when criminal law machinery was set in motion i.e. when a complaint is made before the police or the jurisdictional Magistrate?

2. Whether, for all intents and purposes, any petition instituted on or after 1st July 2024 will exclusively be governd by the provisions of the new codes i.e. Bharatiya Nyaya Sanhita, 2023 and Bharatiya Nagarik Suraksha Sanhita, 2023?”

These observations were made while hearing the plea filed under Section 528 BNSS for setting aside and staying the operation of interim bail granted to a man accused of committing rape on a minor.

Counsel for the applicant argued that Section 438(4) CrPC categorically provides that the concession of anticipatory bail shall not be granted in cases pertaining to offences punishable under Sections 376(3), 376AB, 376DA and 376DB IPC. Therefore, in view of the bar under Section 438(4) CrPC, the accused ought not to have been granted the concession of interim bail, he added.

The counsel also raised a question on the maintainability of the bail plea filed by the accused under CrPC, stating that it ought to have been filed under Section 482 BNSS, given it was preferred after the new criminal laws came into force. Reliance was placed on the High Court's decision in Axxx (supra).

After hearing the submissions, the Court opined that bare reading of Section 438(4) CrPC would indicate that a specific bar, proscribing grant of anticipatory bail with respect to offences made punishable under Sections 376(3), 376AB, 376DA and 376DB IPC, has been put in place. However, the said bar is not absolute in nature.

"The invocation of the same is contingent upon the information received by the police being credible. In other words, only when there is reason enough to believe that the alleged offence was committed, can the bar of Section 438(4) Cr.P.C. be invoked," the Court added.

Repeal Of CrPC Not Complete But Subject To Savings Clause

On question of maintainability of the bail plea filed under CrPC after 1st July, the Court referred to Section 531 BNSS and noted that, "the repeal Cr.P.C. is not a complete repeal but is rather subject to savings clause" to ensure a smooth transition from the old law to the new one.

Justice Brar highlighted that Section 531(2)(a) BNSS specifically states that if any appeal, application, trial, inquiry or investigation was pending at the time of enforcement of the new criminal laws i.e. 1st July 2024, they would continue to be governed by Cr.P.C.

"Therefore, it is abundantly clear that if the complaint to the police, under Section 154 Cr.P.C., or to the Magistrate, under Section 156(3) Cr.P.C., is made before 1st July 2024, any subsequent proceeding(s) in furtherance of the same shall be governed by Cr.P.C."

Reliance was placed on Lalita Kumari vs. Govt. of U.P. (2013) to underscore that the Apex Court has issued detailed guidelines directing a preliminary inquiry to be conducted in certain cases to ascertain commission of a cognizable offence before registering an FIR.

"In matters such as these, where the aggrieved person approaches the police or the jurisdictional Magistrate prior to 1st July 2024 and the investigating agency embarks on a preliminary inquiry, which culminates into registration of an FIR on or after 1st July 2024, the matter shall be governed by the provisions Cr.P.C. and IPC," the Court opined.

Disagreeing with the single judge's opinion in Axxx (supra), the Court said, "A petition shall not stand automatically dismissed on the ground of not being maintainable if filed under Cr.P.C. after 1st July 2024 as it is a curable defect and the petitioner can be granted an opportunity to make the relevant changes in deserving cases."

The Court also said that any petition invoking the inherent powers of the Court under Section 482 CrPC would be not maintainable as the CrPC itself stood repealed as on 1st July 2024 and the said power now vests in Section 528 BNSS. However, any other petitions under CrPC could still be entertained in proceedings pending prior to 1st of July 2024.

"The concession of anticipatory bail and all other remedies available to the accused or the prosecution must be availed under the provisions Cr.P.C. in view of the savings clause contained in Section 531 BNSS," added the Court.

In the present case, the court rejected the contentions raised by the counsel for the petitioner and held that the FIR was registered on May 01, 2024, i.e. much prior to enforcement of BNSS, therefore bail plea will be maintainable under CrPC.

In the light of the above, the Court directed the Registry to place the matter before the Chief Justice for listing the reference before an appropriate bench.

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

Mr. Kanishk Swaroop, Advocate for the applicant/respondent No.2.

Ms. Geeta Sharma, DAG Haryana

Title: RXXXX v. STATE OF HARYANA AND ANOTHER [CRM-34395-96-2024 in/and CRM-M-33899-2024]

Citation: 2024 LiveLaw (PH) 247