From July 1, 2024, the Bharatiya Nagrik Suraksha Sanhita, 2023 (BNSS) has replaced the Criminal Procedure Code, 1973 (CrPC) in India. While it is beyond any doubt that if the date of occurrence of the alleged offence is prior to July 1, 2024, the offence will be registered under the Indian Penal Code, 1860. However, when it comes to procedural law, i.e. enforcement of BNSS, the Judges, law enforcers and lawyers are facing challenges with respect to the applicability of the law pertaining to the registration of the First Information Report (FIR), Investigation and the Trial.
While the Union Home Minister had earlier clarified that if the date of crime is before July 1, 2024, then it will be tried under old laws, if it is later, it will be tried under new laws, there still exists an ambiguity with regard to the procedure to be implemented during the transition phase into the new laws.
In one of the first orders passed by the Delhi High Court, after the enforcement of the new laws, while deciding an anticipatory bail application filed under the CrPC, the High Court deemed the Application to be filed under the new Sanhita and held that even if an FIR is filed before the implementation of new criminal laws, the anticipatory bail plea filed on or after July 1, 2024 will be decided under the BNSS. The Punjab and Haryana High Court also has expressed a similar view.
The Rajasthan High Court has however expressed a contrasting view. The High Court invoking Section 531(2)(a) of the BNSS held that where an FIR was registered prior to July 1, 2024, it would amount to a pending enquiry/investigation under the ambit of Section 531(2)(a) of the Sanhita and the entire the subsequent investigation procedure and even the trial procedure in relation to that FIR shall be governed by the CrPC and not the Sanhita.
In the most recent ruling by the Bombay High Court, a single judge bench has further held that while conducting the investigation for an offence registered prior to July 1, 2024, the investigating agency should adhere to the CrPC while bail Applications filed vis-à-vis the same FIR shall be dealt with under the BNSS.
In case of cognizable offences, there is a major contradiction with respect to registration of FIR, while it has been laid down by the Supreme Court that a police officer must mandatorily register an FIR if the information received discloses any cognizable offence under the CrPC while in the case of BNSS, as soon as the local Police is intimated that a cognizable offence has been committed in their local jurisdiction, the police officer in charge may with the prior permission of a senior officer conduct a preliminary enquiry within a period of 14 days to determine whether a prima facie case for proceeding in the matter exists under Section 173(3) of the Sanhita.
It is germane to mention that aforesaid rulings of the various High Courts have been passed by Single Bences and per se do not set any precedent to be followed leaving the interpretation of saving clause under Section 531 of the Sanhita on the facts and circumstances in each case.
It, therefore, remains to be seen as to what the Apex Court shall hold with respect to the applicability of the procedure of Criminal Trials and Bail Applications and the interpretation of Section 531 once these orders are challenged before the Supreme Court or in case it takes it up suo moto on the issue of the ambiguity at hand.
The above article is authored by Mr. Anil Kumar Tiwari(Partner) and Mr. Nicholas Choudhury(Principal Associate).
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