BNSS To Be Applicable To Criminal Petitions, Bail Applications Filed After July 1, 2024 Pertaining To FIR Registered Prior To Said Date: Gauhati HC
The Gauhati High Court has held that any pre-arrest or regular bail or Criminal Petition, filed after July 1,2024, in connection with an FIR registered prior to the said date, are liable to be filed, under the provisions of Section 482, 483 and 528 of the BNSS, 2023 respectively.
The High Court was considering the issue whether an application for pre-arrest or regular bail or Criminal Petition would be filed under Section 438/439/482 of the Code of Criminal Procedure, 1973 (now repealed), if the FIR is registered prior to July 1,2024 i.e. before coming into force of the BNSS, 2023, or the same are liable to be filed under the provisions of Section 482 and 528 of the BNSS in view of the saving clause provided under Section 531(2)(a) and 358 of the BNSS, 2023.
The Division Bench comprising Chief Justice Vijay Bishnoi and Justice Devashis Baruah held, “Any pre-arrest or regular bail or Criminal Petition, filed after 01.07.2024 in connection with an FIR registered prior to 01.07.2024 i.e. before coming into force of the BNSS, 2023, are liable to be filed, under the provisions of Section 482, 483 and 528 of the BNSS, 2023 respectively.”
Senior Advocate/ Standing Counsel T.J. Mahanta represented the Petitioner while Advocate General I. Chowdhury represented the Respondents.
A Single Judge of the High Court in Sanjit Kar Vs. The State of AP 2024 Supreme (OnLine) (Gau) 1135 while relying on the decision passed by a Single Judge of Rajasthan High Court rendered in Krishan Joshi Vs. State of Rajasthan 2024 Supreme (OnLine) (Raj) 200 held that the petition seeking pre-arrest bail under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 ( BNSS) be treated as one under Section 438 of the Code of Criminal Procedure in connection with a case registered at Namsai Police Station prior to commencement of the BNSS. In Sanjit Kar (supra), the petitioner preferred a bail application under Section 482 of the BNSS seeking pre-arrest bail in relation to an offence committed and registered before July 1, 2024, the day when the BNSS came into force.
The Single Judge had observed that as there are conflicting opinions of various High Courts on the issue of interpretation of Section 531 of the BNSS, 2023, it would be appropriate to place the matter before the Chief Justice for referring the matter before the Division Bench or a Larger Bench.
Elucidating upon the law relating to interpretation, the Bench said, “It is the golden rule of interpretation that words of a statute must be understood in their natural, ordinary or popular sense and construed according to their grammatical meaning. The words of statute must prima facie be given their ordinary meaning and when the words of statute are clear, plain and unambiguous then the Courts are bound to give effect to that meaning irrespective of consequences unless such construction leads to absurdity or contrary to object of statute.”
The Bench was of the view that Section 531(2)(a) of the BNSS clearly saves only appeal, application, trial, inquiry or investigation pending prior to commencement of the BNSS and provide that the same shall be disposed of, continued, held or made, as the case may be, in accordance with the Code of Criminal Procedure, 1973 (2 of 1974), however, the proceedings continued after coming into force of BNSS are not saved.
“It is to be kept in mind that right of filing pre-arrest bail or regular bail or criminal petition for quashing an F.I.R., are the rights which exist in procedural law”, the Bench highlighted and also added, “As observed earlier, filing an application for pre-arrest bail or regular bail or for quashing of FIR are rights recognized under the procedural law and not the rights under the substantive law.”
The Bench agreed with the view of the Allahabad High Court in Deepu & Ors. Vs. State of U.P. & Ors., Criminal Misc. Writ Petition No.12287 of 2024 wherein it has been observed that if an FIR is registered on or after July 1, 2024 for the offence committed prior to July 1, 2024 then FIR would be registered under the provisions of IPC but the investigation will continue as per BNSS. In the pending investigation on July 1, 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.
Reliance was also placed upon the judgment of the Rajasthan High Court in Vijay Sharma & Anr. Vs. State of Rajasthan, through PP S.B. Criminal Misc (Pet) No.5522/2024 wherein it has been observed that in respect of an FIR registered on or after July 1, 2024 for offences under IPC committed before July 1, 2024, the applicable procedure shall be as prescribed in the Bhartiya Nagrik Suraksha Sanhita (BNSS).
The Bench answered the issue by clarifying that pre-arrest or regular bail or Criminal Petition, filed after in connection with an FIR registered prior to July 1,2024 i.e. before coming into force of the BNSS, 2023, are liable to be filed, under the provisions of Section 482, 483 and 528 of the BNSS, 2023 respectively.
The Bench concluded the matter by further ordering, "Registry is directed to treat all pre-arrest bail/regular bail/Criminal Petitions filed after 01.07.2024 in respect of an FIR registered prior to 01.07.2024 to be filed under Section 482, 483 and 528 of the BNSS, 2023 respectively."
Cause Title: In RE: XXX v. The State Of Arunachal Pradesh [Neutral Citation: 2024: GAU-AS:10973-DB]
Appearance:
Petitioner: Senior Advocate/ Standing Counsel T.J. Mahanta, Advocates P. Sarma and P.P. Das,
Respondents: Advocate General I. Chowdhury, Additional Senior Government Advocate A. Chandran, Advocate General D. Saikia, Public Prosecutor M. Phukan, Advocate P. Barua, Additional Advocate General M. Kechii, Additional Advocate General P. Bhattacharyya