Offences Committed Before Coming Into Force Of BNS Still Governed By IPC, But Investigation Will Be Under BNSS If FIR Is Registered After Enforcement: Allahabad HC
The Allahabad High Court held that if an offence was committed prior to the enforcement of new criminal laws, but the F.I.R. is registered after their enforcement, the FIR will be registered under the provisions of the IPC, while the procedure for the investigation will be as per the BNSS.
The Court explained that an FIR would be registered under the provision of IPC since it is a substantive law which was prevalent at the time of committing the offence. The Bench explained that as per Article 20 of the Constitution, a person can be convicted of an offence for the violation of law enforced at the time of the commission of the act.
A Division Bench of Justice Vivek Kumar Birla and Justice Arun Kumar Singh Deshwal observed, “If any offence is committed prior to the enforcement of new criminal laws, then if the F.I.R. is registered after the enforcement of new criminal laws, then the same will be registered under the provision of I.P.C. in view of the Article 20 of the Constitution of India, but the procedure for the investigation will be as per the BNSS. Similarly, in case the offence is committed after the enforcement of new criminal laws and thereafter the F.I.R. is registered, then the investigation would be conducted as per the BNSS.”
Advocate Rahul Mishra appeared for the petitioner, while GA Bhaiya Lal Yadav represented the respondents.
A petition was filed to quash the impugned FIR registered after the enforcement of the new criminal laws under Sections 376 (2)(n), 354, 147, 452, 504, 506 of the IPC and Section 4 POCSO Act.
An affidavit was filed wherein it was mentioned that BNS came into force on 1.7.2024 whereas the incident in question had taken place between 2.4.2024 to 28.6.2024, therefore, the impugned FIR was lodged under the provisions of the IPC.
However, the accused argued that an offence that occurred prior to the enforcement of the new criminal laws should be registered under the BNS.
The Court had to determine whether an F.I.R. would be registered under the IPC or Bharatiya Nyaya Sanhita (BNS) for an offence committed prior to the enforcement of the new criminal laws.
“Although the prayer for quashing of FIR has been made, but without insisting on the same, only submission is that all alleged offences are punishable with imprisonment upto seven years, therefore the police authorities are bound to follow the procedure laid down under Section 41-A Cr.P.C. The petitioners have been wrongly implicated and should not be arrested,” the Court remarked.
Consequently, the Court summarised the law regarding the effect of repealing the IPC and Cr.P.C. by BNS and BNSS respectively:
- If an FIR is registered on or after 1.7.2024 for the offence committed prior to 1.7.2024, then FIR would be registered under the provisions of IPC but the investigation will continue as per BNSS.
- In the pending investigation on 01.07.2024 (on the date of commencement of New Criminal Laws), investigation will continue as per the Cr.P.C. till the cognizance is taken on the police report and if any direction is made for further investigation by the competent Court then same will continue as per the Cr.P.C.;
- The cognizance on the pending investigation on or after 01.07.2024 would be taken as per the BNSS and all the subsequent proceeding including enquiry, trial or appeal would be conducted as per the procedure of BNSS.
- Section 531(2)(a) of BNSS saved only pending investigation, trial, appeal, application and enquiry, therefore, if any trial, appeal, revision or application is commenced after 01.07.2024, the same will be proceeded as per the procedure of BNSS.
- The pending trial on 01.07.2024, if concluded on or after 01.07.2024 then appeal or revision against the judgement passed in such a trial will be as per the BNSS. However, if any application is filed in appeal, which was pending on 01.07.2024 then the procedure of Cr.P.C. will apply.
- If the criminal proceeding or chargesheet is challenged before the High Court on or after 01.07.2024, where the investigation was conducted as per Cr.P.C. then same will be filed u/s 528 of BNSS not u/s 482 Cr.P.C.
The Court directed sensitisation of the investigating officers under the supervision of the Director General of Police.
Accordingly, the High Court disposed of the petition.
Cause Title: Deepu & Ors. v. State Of U.P. & Ors. (Neutral Citation: 2024:AHC:126843-DB)
Appearance:
Petitioner: Advocates Rahul Mishra and Sanjay Mishra
Respondents: GA Bhaiya Lal Yadav; AAG P.C. Srivastava; AGA J.K. Upadhyay