At the junction: Should procedures stick with CrPC or take the BNSS detour?

Introduction
The introduction of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, along with the Bharatiya Nyaya Sanhita, 2023 and the Bharatiya Sakshya Adhiniyam 2023, through the bill passed in December, 2023 and its subsequent implementation on July 1st, 2024, marked a significant transition in India's criminal justice system from its colonial foundations to a modern, twenty-first-century framework. Enacted to address contemporary legal challenges and inefficiencies as well as modern technological requirements, the BNSS, 2023 aims to streamline judicial processes, enhance law enforcement capabilities, and ensure the swift and effective delivery of justice by eliminating redundancies. As the foundational pillars of the criminal justice system, it was essential to modernize the law to reflect current socio-legal requirements.

Shifting focus from the merits and/or demerits of this paradigm altering legislation, it is essential to understand the procedural response of the judicial system, to a change of this magnitude. While substantial portions of the BNSS, 2023, remain identical to its predecessor, the removal of redundancies in sections and the inclusion and deletion of provisions has led to the alteration of the section numbers of all the sections of the previous CrPC, 1973. More over there is also a significant change in nomenclature with respect to the name of the act itself as well as the removal of the term “Metropolitan” from the lexicon of the BNSS, 2023. While this seems rather benign, within one month of the implementation of the BNSS, 2023 several instances have already arisen across the nation wherein the bar and bench both have had to muster over the applicability of the new BNSS, 2023 on investigations, inquiries, appeals, petitions or applications for matters pending prior to the implementation of the new acts or relating to matters pending prior to the implementation of the new acts.

In the absence of a landmark decision with respect to the BNSS, 2023 in particular of the Apex Court, it is important to rely on the far and few judgements of the various High Courts of the country interpreting the savings clause of Section 531 of the BNSS, 2023, past precedents and the impact of the same on the principles of natural justice.

Understanding the Savings clause
The Hon’ble Kerala High Court in the matter of Abdul Khader v State of Kerala1 decided over a Criminal Appeal against conviction in a POCSO case filed on July 10th, 2024, under Section 374 (2) of the CrPC, 1973 which dealt with Appeals from conviction. The High Court rejected said appeal on the grounds that the same was to be filed under Section 415 of the BNSS, 2023 as the same had been implemented on July, 1st, 2024.

The Appellant argued that the trial court had convicted him on June 12th, 2024 as per the provisions of the CrPC, 1973 and therefore the appeal ought to be decided under same act. The Appellant argued that an appeal is merely a continuation of the trial and therefore must be heard under the provisions of the CrPC, 1973. The Appellant relied upon the decisions in Pylikunju and others v. State of Kerala and Others 2 and also Hiralal Nansa Bhavsar and another v. State of Gujarat 3in order to fortify his contention that in a case where the trial took place under the provisions of the Code of 1973, the appeal shall be filed and decided by the provisions of the Code of 1973 itself.

The Court framed the issue as to whether the Appellant who was convicted on June 12th, 2024 and filed the Appeal on July 10th, 2024 would be governed by the CrPC 1973, or the BNSS, 2023 with respect to section under which the appeal against conviction is filed. The Court opined that the answer to the question of the Appellant would have much larger ramifications since its answer delineates the procedure to be followed in the investigation, inquiry, trial, appeal and applications pending on July1st, 2024; whether the provisions of the Code of 1973 or the BNSS, 2023.

Prior to delving into the decision of the Court it is essential to reproduce the repeal and savings provision of the BNSS, 2023.

  1. (1) The Code of Criminal Procedure, 1973 is hereby repealed.
    (2) Notwithstanding such repeal-
    (a) if, immediately before the date on which this Sanhita comes into force, there is any appeal, application, trial, inquiry or investigation pending, then, such appeal, application, trial, inquiry or investigation shall be disposed of, continued, held or made, as the case may be, in accordance with the provisions of the Code of Criminal Procedure, 1973, as in force immediately before such commencement (hereinafter referred to as the said Code), as if this Sanhita had not come into force;
    (b) all notifications published, proclamations issued, powers conferred, forms provided by rules, local jurisdictions defined, sentences passed and orders, rules and appointments, not being appointments as Special Magistrates, made under the said Code and which are in force immediately before the commencement of this Sanhita, shall be deemed, respectively, to have been published, issued, conferred, specified, defined, passed or made under the corresponding provisions of this Sanhita;
    (c) any sanction accorded or consent given under the said Code in pursuance of which no proceeding was commenced under that Code, shall be deemed to have been accorded or given under the corresponding provisions of this Sanhita and Proceedings may be commenced under this Sanhita in pursuance of such sanction or consent.
    (3) Where the period specified for an application or other proceeding under the said Code had expired on or before the commencement of this Sanhita, nothing in this Sanhita shall be construed as enabling any such application to be made or proceeding to be commenced under this Sanhita by reason only of the fact that a longer period therefor is specified by this Sanhita or provisions are made in this Sanhita for the extension of time.
As a whole compared to Section 484 of the CrPC, 1973, which is the Repeal and Savings clause. No substantive changes have been made in the BNSS, 2023, except proviso to Clause (a) of Sub-section (2) and Clause (d) of Sub-section (2) in the Code of 1973 which do not form part of Section 531 of the BNSS.

Substantive Rights
The Kerala High Court laid down the essential difference between substantial and procedural rights in its analysis of the its decision in Pylikunju and others v. State of Kerala and Others wherein the Kerala High Court decided over the appeal of an appellant convicted under the CrPC of 1898. The appellant was convicted and sentenced to pay a fine of Rs.100 which was being appealed. The imbroglio arose as the CrPC, 1973, repealed the provision for a fine amount of Rs.100 and did not have any provisions allowing the same. Therefore, the High Court held that since the appeal related to a trial prior to the Code coming into force, and since the Appeal would become infructuous if the new Code were applied as no section allowing such an appeal existed in the CrPC, 1973, the Old Code would be applicable as the same was affecting the vested rights of the applicant.

The Kerala High Court in the present case observed that “the principle of law laid down in the aforesaid decision can have applications to decide only the question as to the substantive right of a convicted person to appeal. How far that principle applies inasmuch as the procedural provisions applicable to the appeals is a different question altogether.”

The Court further analysed the case of Hiralal Nansa Bhavsar and another v. State of Gujarat wherein it was held that the right to file an appeal in itself is a substantive right and therefore must be governed by the Old Code. The Gujarat High Court had further held that proceedings in respect of appeal against the said order of conviction would be governed by the provisions of the old Code because the right of appeal is a substantive right which accrued to the parties, to the prosecution at the time when the Court takes its cognizance. However, the Kerala High Court disagreed with this point of view and held that a party to the prosecution has no vested rights in the procedural provisions.

The Kerala High Court thus held that:

“the intention of the Parliament in that regard is apparent from the wordings of Section 531(2)(a) of the BNSS. The right saved therein is only that each of the proceedings, namely; investigation, inquiry, trial, appeal and application commenced before commencement of the BNSS shall be continued or held or made according to the provisions of the Code of 1973 as if the BNSS has not been come into force. On completion of one such proceedings initiated under the Code of 1973 in a matter, further steps are to be taken according to the provisions of the BNSS.”

Retrospective Effect
The Kerala High Court relied upon the Supreme Court decision in Hitendra Vishnu Thakur and others v. State of Maharashtra and Others4 wherein the Court considered the retrospective effect of the amendment to the TADA Act of 1985. The Apex court in this regard laid down its decision on when an amendment to an act can have a retrospective effect. The Apex Court held :

"(i) A statute which affects substantive rights is presumed to be prospective in operation, unless made retrospective, either expressly or by necessary intendment, whereas a Statute which merely affects procedure, unless such a construction is textually impossible is presumed to be retrospective in its application, should not be given an extended meaning, and should be strictly confined to its clearly defined limits.
(ii) Law relating to forum and limitation is procedural in nature, whereas law relating to right of action and right of appeal, even though remedial, is substantive in nature.
(iii) Every litigant has a vested right in substantive law, but no such right exists in procedural law.
(iv) A procedural Statute should not generally speaking be applied retrospectively, where the result would be to create new disabilities or obligations, or to impose new duties in respect of transactions already accomplished.
(v) A Statute which not only changes the procedure but also creates a new rights and liabilities, shall be construed to be prospective in operation, unless otherwise provided, either expressly or by necessary implication.”

The Apex Court in Neena Aneja and another v. Jai Prakash Associates Ltd.5 held that in the absence of a contrary intent express or implied, procedural amendments are presumed to be retrospective.

Contemporary Decisions
The Punjab and Haryana High Court in XXXX v. State of UT Chandigarh and Another6 when deciding on the applicability of the BNSS, juxtaposing Section 531 of the BNSS, 2023 and Section 484 of the CrPC 1973, culled out the following principles:

  1. The Code of Criminal Procedure, 1973 stands repealed w.e.f. 01.07.2024. Ergo; no new/fresh appeal or application or revision or petition can be filed under Code of Criminal Procedure, 1973 on or after 01.07.2024.
     
  2. The provisions of Section 4 and Section 531 of BNSS, 2023 are mandatory in nature as a result whereof any appeal/application/revision/petition/trial/inquiry or investigation pending before 01.07.2024 are required to be disposed of, continued, held or made (as the case may be) in accordance with the provisions of Code of Criminal Procedure, 1973. In other words; any appeal/application/revision/petition filed on or after 01.07.2024, is required to be filed/instituted under the provisions of BNSS, 2023.
     
  3. Any appeal/application/revision/petition filed on or after 01.07.2024 under the provisions of Cr.P.C., 1973 is non-maintainable & hence would deserve dismissal/rejection on this score alone. However, any appeal/application/revision/petition filed upto 30.06.2024 under the provisions of Cr.P.C., 1973 is maintainable in law. To clarify; in case any appeal/application/revision/petition is filed upto 30.06.2024 but there is defect (Registry objections, as referred to in common parlance) and such defect is cured/removed on or after 01.07.2024, such appeal/application/revision/petition shall be deemed to have been validly filed/instituted on or after 01.07.2024 and, therefore, would be non - maintainable.
     
  4. Section 531 of BNSS shall apply to "revision", "petition" as also "petition of complaint" (ordinarily referred to as complaint before Magistrate) with the same vigour as it is statutorily mandated to apply to "appeal/application/trial/inquiry or investigation" in terms of Section 531 of BNSS.”

The Punjab and Haryana High Court in this decision have evidently taken a strict approach towards interpretation of Section 531 of the BNSS, 2023. The Kerala High Court in the aforementioned case while agreeing with the position of the Punjab and Haryana Court on the applicability of the BNSS, 2023 recognized the monumental transition and difficulties in adapting to the new norm and criticized the judgment of the Punjab and Haryana High Court that a mistake in misquoting the provisions of the CrPC instead of the BNSS, 2023 in filing of an appeal will not in itself make the appeal non - maintainable as the same is a curable defect that may be corrected. The Court held that “it is trite that omission or error in mentioning the correct provision of law by itself would not denude the power of the authority so long as source of power is traceable from enabling provision.”

Therefore while the Kerala High Court concluded that the matter ought to be filed under the BNSS, 2023, the Application was not dismissed, rather the Applicant was given an opportunity to amend the Application to incorporate the provisions of BNSS, 2023.

On condonation of delay and the General Clauses Act of 1897
The High Court of Punjab and Haryana in the case of Mandeep Singh vs Kulwinder Singh and Another7 presided over an issue concerning the applicability of the BNSS, 2023 on a Criminal Revision Application (“CRA”) in a matter concerning Section 138 of the Negotiable Instruments Act, 1881. The CRA had been filed belatedly and beyond the period of limitation and therefore the petitioner sought condonation of delay. The matter at hand differed from the cases discussed above as the petition while being filed after implementation of the BNSS, 2023, the same ought to have been filed prior to the implementation of the BNSS, 2023 and therefore the delay was to be condoned.

The Court relied on the interpretation of Section 6 of the General Clauses Act, 1897 which reads as follows :

S.6, The General Clauses Act, 1897 Effect of repeal.-Where this Act, or any 4[Central Act] or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not-

(a) revive anything not in force or existing at the time at which the repeal takes effect; or
(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed.

A perusal of Section 6 (c) makes it apparent that no right, privilege, obligation, or liability acquired, accrued, or incurred under any enactment which has been repealed shall be affected by such repeal. Clause (e) makes it evident that any legal proceeding or remedy regarding such right, privilege, obligation, liability penalty, forfeiture, or punishment shall remain unaffected and governed by the old Act.

The Court relying on a full bench judgement of the Punjab and Haryana High Court in National Planners v. Contributories8, highlighted the importance of saving clauses and held that under common law, when a statute is repealed, courts lose jurisdiction over actions initiated under that statute, rendering the statute as though it never existed, except for actions completed while it was in force. If a statute is repealed without a saving clause, all ongoing actions must cease, and no final relief can be granted post-repeal. This principle also applies to laws that grant jurisdiction; if such a law is repealed, the court loses the right to continue any proceedings unless the repealing act or a general act explicitly preserves that right. To counter this harsh rule, legislatures often include saving clauses in repealing statutes, ensuring ongoing actions are unaffected. Section 6 of the General Clauses Act, 1897, serves as a saving clause, stating that unless a contrary intention is evident in the repealing act, repeals do not affect ongoing investigations or legal proceedings. These actions can continue as if the statute had not been repealed, allowing courts to proceed to final judgment as if the statute remained in force. This provision is automatically part of every Central Act passed post the year 1897, safeguarding the continuity of legal proceedings despite statutory repeals.

The Court ultimately held that:
“the effect of condonation of delay is that the delay is forgiven, and the plea is treated as filed within the limitation period; thus, it would relate back to the date on which the limitation expired. The said date would be the determining factor, and the procedure that was applicable on that date would apply to the revision. Section 531 of the Bharatiya Nagarik Suraksha Sanhita, 2023 explicitly specifies that pending appeals shall be disposed of or continued as if the new law had not yet taken effect, following the provisions of CrPC. The petition and the accompanying application seeking an extension of time were filed and registered in the registry of this Court when CrPC, 1973 was in force and were pending on the July 1st, 2024; hence, they would fall under the scope of Section 531(2)(a) of the Bharatiya Nagarik Suraksha Sanhita, 2023. Therefore, based on the above, this petition shall have to be adjudicated under S. 401 of the CrPC, 1973 and not under S. 442 of the Bharatiya Nagarik Suraksha Sanhita, 2023.”

On the importance of the Savings clause
The High Court of Rajasthan in Krishan Joshi v State of Rajasthan9 decided over a petition for fair and impartial investigation of an offence wherein the FIR was filed much prior to the implementation of the BNSS, 2023. The petition was originally filed under the CrPC, 1973 however the registry objected to the same and it was converted to a petition under BNSS, 2023. However the Court opined that since the matter pertained to an FIR filed prior to the implementation of the BNSS, 2023 the matter ought to be filed under the provisions of the CrPC. The Court held that:

“The saving clause in Section 531(2) is critical for ensuring legal continuity and stability. It stipulates that notwithstanding the repeal, any appeal, application, trial, inquiry, or investigation pending before the new Sanhita comes into force will continue to be governed by the old Code of Criminal Procedure, 1973. This shall essentially mean that all ongoing proceedings, which have already been kicked in under the old code, will not be disrupted by the new code i.e. BNSS. This is vital for maintaining the integrity of the judicial process and ensuring that justice is neither delayed nor denied due to procedural changes, should an affected party feel so. Rights of the accused in an FIR and/or under trials and/or convicts under appeal and the legal expectations formed under the old law have been and are required to be protected. Applicability of old code on pending matters prevents any retrospective adverse effects that might arise from the sudden application of new legal provisions to ongoing cases.

No doubt, procedural laws can be applied retrospectively, subject of course to the judicial review, but in view of Section 531(2)(a) of the BNSS herein, it is amply clear that all the pending matters prior to coming into force of BNSS, 2023, as specifically mentioned in Section 531(2)(a) of BNSS shall continue to be governed by the old Code i.e. Cr.P.C., 1973. Therefore, the petition in hand also to has to be treated under Section 482 Cr.P.C.

In view of the discussion in the preceding part hereinabove, the objection raised by the Registry is overruled. The present petition is resultantly treated as one under Section 482 Cr.P.C.”

Therefore, as per the High Court of Rajasthan if an FIR is registered prior to July 1st, 2024, under the Cr.P.C., it would amount to a pending enquiry/investigation within the meaning of Section 531(2)(a) of BNSS. The entire subsequent investigation procedure and even the trial procedure qua such an FIR shall then be governed by Cr.P.C. and not BNSS.

Interpretations of the Savings Clause
The Goa bench of the High Court of Bombay in the case of Chowgule and Company v State of Goa10, decided over an application for anticipatory bail, in a case where the FIR was registered prior to the implementation of the BNSS, 2023. The Single Judge Bench of the Bombay High Court raised two pertinent issues as follows:

  1. In a case where an FIR is lodged/registered prior to July 1st, 2024, what could be the procedure of investigation that is whether it should be continued under the provisions of Cr.P.C. 1973 or under the provisions of BNSS 2023.
  2. Whether bail application filed by the Respondent after July 1st, 2024 would be governed by the provisions of Section 438 of CrPC, 1973 or by Section 482 of BNSS, 2023.

Strict Interpretation
The Bombay High Court held that a strict reading of Section 531(2)(a) of the BNSS, 2023 clearly shows that the pending investigation immediately before the date on which the said Sanhita comes into force shall be disposed off, continued, held or made as the case may be in accordance with the CrPC, 1973 in a manner as if the Sanhita had never come into force. The Court stated that it was unambiguously clear that Section 531(2)(a) of the BNSS, 2023, saves the investigation pending prior to commencement of the BNSS, 2023.

In accordance with the facts of the matter at hand, the Bombay High Court observed that the FIR was registered in June, 2024, prior to implementation of the BNSS, 2023, therefore the Police Officer is obligated to carry out the investigation under the provisions of the CrPC, 1973. Since the investigation began under the provisions of the CrPC, 1973, the same shall continue to be governed by the old law as if the BNSS, 2023 does not exist.

The Bombay High Court in its aforesaid decision on the issue, referred to the abovementioned decision of the Rajasthan High Court in Krishan Joshi v State of Rajasthan. The Bombay High Court held on similar lines that “if the FIR is registered prior to 01.07.2023 under the provisions of Cr.P.C it would amount to the pending inquiry/investigation within the meaning of Section 531(2)(a) of BNSS 2023 and thus, entire subsequent investigation and even the trial procedure qua such a FIR shall be then governed by CrPC and not under BNSS.”. However, the Bombay High Court, not being concerned in the present matter with trials or appeals thereof, limited the scope of its reliance on the Rajasthan High Court judgement to inquiries and investigations in deciding the present matter.

The Bombay High Court further discussed similar judgements of the Punjab and Haryana High Court as well as the Kerala High Court, including the abovementioned case of Abdul Khader v State of Kerala. The Bombay High Court observed that in these cases the various High Courts held that investigations pending prior to the implementation of the BNSS, 2023 would be governed by the CrPC, 1973, however, any fresh applications filed thereafter in these matters shall be governed by the BNSS, 2023.

Whether bail application filed by the Respondent after July 1st, 2024 would be governed by the provisions of Section 438 of CrPC, 1973 or by Section 482 of BNSS, 2023.
The Bombay High Court when answering this issue, held its stance that the saving clause only saves any appeal, application, trial, inquiry or investigation pending as on July 1st, 2024, Thus, any application filed as on July 1st, 2024, or thereafter shall be governed by provisions of BNSS, for the simple reason that by that date, the provisions of Cr.P.C., 1973, stands repealed.

In the present case the Respondent No. 3 filed a bail application before the Sessions Court on June 19th, 2024, which was disposed off as not maintainable and beyond territorial jurisdiction. The application was disposed off on July 5th , 2024. The subsequent bail application was filed before the appropriate authority on July 6th, 2024. Therefore the Bombay High Court held that once the application was disposed off on July 5th, 2024, no applications prior to the implementation of the BNSS, 2023, remained pending. Therefore any separate and independent application filed after the first application was disposed off, would be governed under the provisions of the BNSS, 2023 as the same is not a continuation of the previous application. Only the first application filed prior to implementation will be considered as pending and protected by the savings clause as discussed above.

“BNSS 2023 is admittedly a procedural law mostly governing the inquiries, investigation, bail, trial, appeals etc. As far as application of bail is concerned, it is a procedure to be followed under a specific Act or Code. Since the provisions of Section 438 of the Code of Criminal Procedure and that of Section 482 of BNSS are pari materia, the provisions of repeal would clearly apply to the matter in hand and accordingly, applications filed by Respondent/Accused persons on 06.07.2024 shall govern under the provisions of 482 of BNSS and not under Sections 438 of Cr.P.C.”

Conclusion
A central issue following the implementation of BNSS is its application to cases pending under the CrPC, 1973. Courts across India have encountered difficulties in determining whether ongoing investigations, trials, or appeals initiated under the CrPC, 1973 should continue under the old code or transition to the BNSS. The absence of a landmark decision by the Supreme Court on this matter has left lower courts to navigate these challenges, often relying on past precedents and interpreting the savings clause under Section 531 of the BNSS.

One illustrative case is the Kerala High Court's ruling in Abdul Khader v. State of Kerala. The court had to decide whether an appeal filed after the BNSS's implementation should be governed by the CrPC 1973 or the BNSS 2023. The court concluded that while procedural aspects of ongoing cases should align with the BNSS, substantive rights, such as the right to appeal, are preserved under the old code. This decision reflects the court's attempt to balance legal continuity with the new legislative framework, emphasizing that procedural changes should not undermine vested rights.

Other High Courts, like Punjab and Haryana, have taken a more stringent approach, asserting that any legal action initiated after July 1, 2024, must adhere strictly to the BNSS, even if the underlying matter began under the CrPC 1973. This strict interpretation underscores the judiciary's struggle to adapt to the new legal framework while ensuring justice is not compromised during this transitional phase.

The Bombay High Court in its strict and literal interpretation of the savings clause of the BNSS, 2023, has made a clear and distinct observation that pending investigations are to be governed solely by the CrPC, 1973, however once a pending application is disposed off after the implementation date , any subsequent application even if in relation to an FIR registered prior to the implementation of the BNSS, 2023, shall be governed by the new code. This is a departure from the Rajasthan High Court Judgement which has taken a broader and more liberal approach with respect to applications related to pending investigations wherein the application was held to be governed by the CrPC, 1973, despite the same being filed after the date of implementation.

In conclusion, the BNSS 2023 represents a monumental shift in India's legal landscape, aiming to bring the criminal justice system in line with modern needs. However, its implementation has raised significant questions about the applicability of its provisions to ongoing cases initiated under the CrPC 1973. Courts are currently navigating these challenges, balancing the need for legal continuity with the requirements of the new framework, all while ensuring that substantive rights are protected. As these issues continue to unfold, the judiciary's interpretations and rulings will be crucial in shaping the future application of the BNSS 2023.

By - Parshva Shah

  1. CRL.A NO. 1186 OF 2024 Kerala High Court
  2. 1977 KLT 252
  3. 1976 Crl.LJ 84 Gujrat High Court.
  4. (1994) 4 SCC 602.
  5. (2022) 2 SCC 161.
  6. CRM-M-31808-2024
  7. CRR No. 2914 of 2023 (O&M).
  8. AIR 1958 Punjab 230.
  9. S.B. Criminal Misc(Pet.) No. 4285/2024.
  10. Cri. WP 618 of 2024.
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