Divergent views

The Rajasthan High Court in Krishan Joshi v. State of Rajasthan^[2] was seized of an issue whether a petition (filed after 1-7-2024) seeking quashing of an FIR (registered on 2-2-2024) would be governed by the provisions of Section 482 CrPC or Section 528 of the BNSS. In dealing with the said issue and holding that the quashing petition would be governed by the provisions of Section 482 CrPC and not Section 528 of the BNSS, the Court held that:

6.2. … Section 531(2) … 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. the BNSS. The Court further held that … rights of the accused in an FIR and/or under trials and/or convicts under appeal and the legal expectations formed under the CrPC are required to be protected.

7. … 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 the BNSS, 2023, as specifically mentioned in Section 531(2)(a) of the BNSS shall continue to be governed by the old Code i.e. the CrPC, 1973.^[3]

Subsequently, the Punjab & Haryana High Court took a diametrically opposite view regarding the maintainability of a petition (filed post 1-7-2024) seeking quashing of an FIR (registered prior to 1-7-2024). The Court observed that “… once the altered procedural law, namely, the BNSS has been brought in vogue, it would apply to cases initiated under the IPC as well from and after 1-7-2024 as well as to future proceedings except the pending appeal, application, etc. as stated under Section 531(2)(a) of the BNSS”. The Court additionally held that “any appeal/application/revision/petition filed on or after 1-7-2024 is required to be filed/instituted under the provisions of the BNSS, 2023”.^[4]

In a similar vein, the Kerala High Court seized of the issue of applicability of the BNSS or the CrPC to appeal proceedings arising out of a trial that was conducted under the provisions of the CrPC, held that a party to the prosecution has no vested right in procedural provisions.^[5] The Court held that “… 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.”^[6] Thus, the Court concluded that regardless of date of the judgment of conviction, if an appeal is filed on or after 1-7-2024, the BNSS would apply.^[7]

Similarly, the Delhi High Court, held that a bail application filed post 1-7-2024, in respect of an FIR registered in May 2024, ought to have been filed under the BNSS and not under the CrPC.^[8]

Thereafter, the Bombay High Court, in Chowgule and Co. (P) Ltd. v. State of Goa^[9] was inter alia seized of the issue of whether a bail application filed after 1-7-2024, relating to an FIR registered prior to the said date, was to be governed by the provisions of the CrPC or the BNSS. In this regard, the Bombay High Court heldthat on registration of the FIR prior to 1-7-2024, the 51. … investigation began and was pending.… such investigation must conclude under the provisions of the CrPC, as if provisions of the BNSS, 2023 are not on the statute book and had not come into force.^[10] However, a bail application filed post 1-7-2024 will have to be considered as an application under Section 482 of the BNS.^[11]

Most recently, the Allahabad High Court in Deepu v. State of U.P.^[12], decided an issue regarding the applicable procedure for investigation pursuant to an FIR registered after the commencement of new criminal laws for an offence committed prior to the enforcement of new criminal laws.^[13] The Court held that an FIR registered on or after 1-7-2024, for an offence committed prior to 1-7-2024, would be under the provisions of the Penal Code, 1860 (IPC) but the investigation would continue as per the BNSS. Pertinently, the Court has also held that: (a) a pending investigation on 1-7-2024 “will continue as per the CrPC till the cognizance is taken on the police report and if any direction is made for further investigation by the competent court then the same will continue as per the CrPC”; (b) “the cognizance on the pending investigation on or after 1-7-2024 would be taken under the BNSS and all the subsequent proceedings including enquiry, trial or appeal would be conducted as per the procedure of the BNSS”; (c) “… if any trial, appeal, revision or application is commenced after 1-7-2024, the same will be proceeded as per the BNSS”; (d) “… pending trial on 1-7-2024, if concluded on or after 1-7-2024 then the appeal or revision against the judgment passed in such trial will be as per the BNSS”; and (e) challenge to a criminal proceeding or charge-sheet before a High Court on or after 1-7-2024 (where investigation was conducted as per the CrPC) would be filed under Section 528 of the BNSS and not under Section 482, CrPC.^[14]

Analysis

A perusal of the above discloses an inconsistency in the interpretation of the repeal and savings clause as under Section 531(2)(a) of the BNSS. While, the Rajasthan High Court has granted primacy to the date of registration of the FIR for interpreting the phrase “pending” under Section 531(2)(a) the Punjab & Haryana, Kerala, Delhi, Bombay and Allahabad High Courts have sought to treat the pendency of each stage of an investigation/proceeding independent of the other. In doing so, the pendency of an investigation has been treated as independent of proceedings/challenges therefrom, and a consequential appeal has been treated independent of the trial it arises from.

While the approach followed by the Punjab & Haryana High Court appears to be the more popular approach (broadly similar approaches having been taken by the Kerala, Delhi, Bombay and Allahabad High Courts) it does come with its own set of challenges which require ironing out. A few such issues which come to mind are as follows:

• Further investigation: Section 173(8), CrPC enabled further investigation in respect of an offence for which aSection 173(2) CrPC report had been forwarded to the Magistrate and the investigation stood complete. In terms of the Kerala High Court judgment, on completion of the stage of investigation (assuming the same to be under the CrPC) further steps are required to be taken under the BNSS. As such, upon filing of the charge-sheet, the investigation may no longer be said to be “pending” and further investigation may now be interpreted to have to be undertaken in terms of the corresponding provision of the BNSS i.e. Section 193(9). The same may lead to the following difficulties:
  • Firstly, the investigation against the same accused, for the same offence, from the same set of facts, would be undertaken under two different statutes which set out different standards for the purposes of investigation.
  • Secondly, while under the CrPC, no prior permission was required to be sought by the investigating authorities for conducting further investigation, such obligation is cast by virtue of the proviso to Section 193(9) of the BNSS.
  • Thirdly, while the BNSS under Section 193(9) sets out a time-limit of 90 days for completion of such further investigation, no such timeline is stipulated under the CrPC. Should the investigation be carried out in a period of more than 90 days, there could be confusion as to whether the investigation has been conducted with procedural regularity or not.

While, the Allahabad High Court has shed some light on this inconsistency to hold that a direction for “further investigation” (which may be directed post completion of the first stage of investigation) will “continue as per the CrPC”^[15], the same discords with the observations of the Kerala High Court which treats each stage of a proceeding independent of the others.^[16]

• Appeals from trials conducted under the CrPC: In terms of the decision of the Kerala High Court, any appeals filed post 1-7-2024 are required to be filed under the provisions of the BNSS. Therefore, investigations and resulting trials carried out under the provisions of the CrPC are effectively going to be tested by a court exercising powers under the BNSS. The appeal court in exercising powers under the BNSS is effectively recognising that the provisions of the CrPC stand repealed and no longer survive. That being the position, it may be difficult to contemplate a situation where the court concerned could still test the procedural regularity of the investigation/trial undertaken under the CrPC i.e. an Act which stands repealed. While different courts are attempting to iron out this issue, it would be interesting to note how the same is eventually dealt with.

• Investigation under the CrPC and trial under the BNSS: Another interesting potential issue that arises is regarding the obligation cast by virtue of Section 176 of the BNSS. Section 176(3) of the BNSS casts an obligation on a police officer to cause a forensic expert to collect forensic evidence from thecrime scene, and also cause videography of the crime scene, where an offence punishable with 7 years or more has been committed. Such an obligation was absent under the CrPC. Taking the position of Allahabad High Court to be correct, any trial commencing after 1-7-2024 would be required to be conducted under the provisions of the BNSS, even in investigations carried out under the provisions of the CrPC. As such, in the course of a trial being conducted under the BNSS for commission of an offence punishable with 7 years or more, would the absence of forensic evidence being collected in accordance with Section 176 of the BNSS lead to a procedural irregularity?

Conclusion

The judgments as aforestated present various nuanced interpretations and have the potential of creating confusion in relation to the law which is to be followed for the purposes of criminal investigations, trials arising therefrom and subsequent appeals/revisions, if any.

Owing to different High Courts arriving at different interpretations, there is potential at this juncture, for different States adopting different approaches in relation to the law to be applicable to criminal matters. Illustratively, a set of facts resulting in investigation in two different States has the potential to be regulated by different law at different stages.

An identical question had arisen for consideration before the Full Bench of the Gujarat High Court in Hiralal Nansa Bhavsar v. State of Gujarat^[17], at the time of enforcement of the CrPC, which had a similar provision to Section 531 of the BNSS. The Court was seized of the issue of whether the CrPC would apply to an appeal arising out of a trial conducted under the Code of Criminal Procedure, 1898 (which was repealed by the CrPC). While answering the issue, the Gujarat High Court held that if a trial is conducted under a particular procedural law, an appeal against the judgment rendered in such trial will also be governed by that particular procedural law, irrespective of its repealment.

It is trite that an appeal is a continuation of a trial.^[18] However, the interpretation of the Punjab & Haryana High Court (and other courts taking the same interpretation) may disturb this principle of law. It would surely be interesting to note how this issue is finally resolved.

Probably, a case-to-case approach may lead to a myopic view of the larger issue. Given the conflict in views of the High Courts, the time may be ripe for the Supreme Court to step in and decide the issue holistically before further conflicting views arise across the country.

Footnote

[1] Krishan Joshi v. State of Rajasthan, 2024 SCC OnLine Raj 2042, para 6.

[2] 2024 SCC OnLine Raj 2042.

[3] Krishan Joshi case, 2024 SCC OnLine Raj 2042.

[4] X v. State (UT of Chandigarh), CRM-M-31808/2024, decided on 11-7-2024 (P&H) paras 8.7 and 9(II).

[5] Abdul Khader v. State of Kerala, 2024 SCC OnLine Ker 3919, para 11.

[6] Abdul Khader case, 2024 SCC OnLine Ker 3919.

[7] Abdul Khader case, 2024 SCC OnLine Ker 3919, para 18(2).

[8] Prince v. State (NCT of Delhi), 2024 SCC OnLine Del 4909, paras 4 and 5.

[9] 2024 SCC OnLine Bom 2501.

[10] Chowgule case, 2024 SCC OnLine Bom 2501.

[11] Chowgule case, 2024 SCC OnLine Bom 2501, para 94(B).

[12] Criminal Misc. Writ Petition 12287/2024, decided on 23-7-2024 (All).

[13] Deepu case, Criminal Misc. Writ Petition 12287/2024, decided on 23-7-2024 (All) para 9.

[14] Deepu case, Criminal Misc. Writ Petition 12287/2024, decided on 23-7-2024 (All) para 16.

[15] Deepu case, Criminal Misc. Writ Petition 12287/2024, decided on 23-7-2024 (All) para 16(ii).

[16] Abdul Khader v. State of Kerala, 2024 SCC OnLine Ker 3919, para 11.

[17] 1974 SCC OnLine Guj 65.

[18] Akhtari Bi v. State of M.P., (2001) 4 SCC 355.

This article was originally published in SCC Online on 23 August 2024 Co-written by: Aditya Mukherjee, Partner; Jayati Sinha, Associate. Click here for original article

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