Appeal Filed On Or After July 1, 2024 Shall Be Governed By Procedure Provided Under BNSS Instead Of CrPC: Kerala HC

The Kerala High Court directed that an appeal filed on or after July 1, 2024 shall be governed by the procedure provided under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), rather than the provisions of the Criminal Procedure Code, 1973 (CrPC).

The Court was dealing with a criminal appeal preferred by the accused against his conviction by invoking Section 374(2) of CrPC to file the appeal.

A Single Bench of Justice P.G. Ajithkumar said, “An appeal filed on or after 01.07.2024 shall be governed by the procedure provided under the BNSS and not by the provisions of the Code of 1973. … Whether the judgment of conviction was before or after 01.07.2024, if the appeal is filed on or after 01.07.2024, the same can be filed following the procedure contained in the provisions of the BNSS.”

The Bench further clarified that all applications filed and steps taken in the appeals filed prior to July 1, 2024 shall be under the provisions of the CrPC and when an appeal/application is represented after curing filing defects, its date of filing shall relate back to the date of its first presentation.

Advocate Sidharth O. appeared for the appellant/accused while Public Prosecutor Sheeba Thomas appeared for the respondent/State.

In this case, the appellant/accused filed an appeal on July 10, 2024 under the provisions of CrPC. Section 415 of BNSS is the provision corresponding to Section 374 of CrPC. The counsel for the appellant submitted that the trial was held under the provisions of CrPC and therefore, the appellant’s right to appeal accrued as per CrPC provisions. The appellant was convicted as per the judgment passed on June 12, 2024 but the appeal was filed on the said date. Hence, the question that arose before the High Court was whether Section 374(2) of CrPC or Section 415(2) of the BNSS that governs the appeal filed by the appellant shall be applicable.

The High Court in the above regard observed, “The contents and substance of Section 374 of the Code of 1973 and Section 415 of the BNSS are identical. The changes in Section 415 are to suit the other provisions in the BNSS which do not affect the substratum of the precursor. To the same effect is Section 389 of the Code under which execution of sentence is suspended on the application of a convicted person and the corresponding provision in the BNSS i.e., Section 430.”

The Court added that for the reason of stating wrong provision under which the appeal/application is filed, the same cannot be dismissed as not maintainable and in order to make the proceedings regular and proper, the appellant/applicant shall be directed to amend/correct by adding correct provision in the appeal/application.

“If an appeal requires representation owing to some filing defects or there is delay in filing the appeal what shall be the date of filing of the appeal is another question. What the Punjab and Haryana High Court held is that if in an appeal/application/revision/petition filed on or before 30.06.2024 there is a filing defect and such defect is cured on or after 01.07.2024, such appeal/application/revision/petition shall be deemed to have been validly instituted on or after 01.07.2024 and not maintainable. I am unable to agree with that view also”, it enunciated.

The Court also emphasised that once the filing defect is cured and the appeal/application/revision/petition is properly represented, its date of filing shall relate back to the date of its first presentation and the applicable law shall be decided with reference to the date of its first presentation and not to its representation.

The Court said that the guidelines issued by the Punjab and Haryana High Court in the case of XXXX v. State of Chandigarh and Another (CRM-M-31808-2024) can be followed except one contained in its paragraph no. 9(iii).

“I hold that this appeal filed on 10.07.2024 should have been filed under Section 415(2) of the BNSS. The appeal, however, does not require a dismissal as not maintainable. The appellant shall file petition/s for amendment/correction of the memorandum of appeal and application appropriately”, it concluded.

Accordingly, the High Court issued directions.

Cause Title- Abdul Khader v. State of Kerala

Appearance:

Appellant: Advocates Sidharth O., Anwin John Antony, P.C. Moideen, Susanth Shaji, Mohammed Asif P., and Albin A. Joseph.

Respondent: PP Sheeba Thomas

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