The Madras High Court, while quashing a defamation suit against the Tamil Nadu Speaker M. Perumal Appavu, said that the complaint registered on an incident that took place before the new criminal laws came into force is maintainable under the now repealed Code of Criminal Procedure, 1973 (CrPC).

The Court was hearing a Criminal Original Petition under Section 528 of the The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) to quash a case registered under Section 499 of the Indian Penal Code, 1860.

The Single Judge Bench of Justice Dr. G. Jayachandran held the complaint filed under the now-repealed CrPC to be maintainable, taking into account the ‘repeal and savings’ clause of the General Clauses Act, 1897, the IPC, the BNSS and the Bharatiya Nyaya Sanhita, 2023.

Taking note of the ‘repeal and savings’ clause of the General Clauses Act, 1897 and the BNS, the Court said that is “made explicitly clear that the right, privilege, obligation or liability acquired, accrued or incurred under the Code (IPC) shall not be affected in view of the repeal.”

The Court also said that the interpretation given by courts to 484 (Repeal and savings) of the CrPC cannot apply mutatis mutandis to Section 531 (Repeal and savings) since “when Criminal Procedure Code, 1973 put into force, Indian Penal Code, 1860 was intact. Whereas when CrPC., 1973 repealed and replaced by BNSS, 2023, correspondingly IPC was also repealed and replaced by BNS, 2023 with repeal and saving provision.”

A deeming fiction is provided by Section 358(3) (Repeal and savings) of the BNS when it declares that “notwithstanding such repeal, anything done or any action taken under the said Code shall be deemed to have been done or taken under the corresponding provisions of this Sanhita.” The effect is that action taken under IPC shall be deemed to have done or taken under the corresponding provision of BNS, the Court said.

However, for offences committed before the enactment of the new criminal laws, the CrPC alone will apply, the Court clarified, in view of Section 4 (Trial of offences under Bharatiya Nyaya Sanhita, 2023 and other laws) and Section 531(2) of the BNSS. Section 531(2) holds that CrPC’s repeal would not affect any pending appeal, application, trial, inquiry or investigation. The same would be disposed of according to the CrPC “as if this Sanhita had not come into force”.

The High Court said, the word ‘pending’ in Section 531(2) “cannot be given a restricted meaning ignoring Section 4 of the BNSS, 2023 and Section 358 of BNS. If such restricted meaning is given, it will be prejudicial to the litigants, whenever limitation is prescribed in one Act and not prescribed in another Act or different limitation is prescribed or if there is change in the procedure itself."

If saving provided under Section 531(2)(a) of BNSS, is restricted only to matters pending on or before July 1 2024, when the new criminal laws came into force, then a FIR or complaint regarding an occurrence prior to that date, but registered after that date could be proceeded following the BNSS, the Court said. "This will be contrary to the saving of rights and privileges, acquired ensured protection under Section 358 of BNS, 2023 and Section 4 of General Clause Act."

Cause Title: Muthuvelaydha Perumal Appavu @ M.Appavu v. R.M.Babu Murugavel [Crl.O.P. 25334 of 2024 and Crl.M.P. 14210 and 14212 of 2024]

Appearance:

Petitioner: Senior Advocate P. Wilson

Respondent: Senior Advocate R. John Sathyan

Click here to read/download the Order


Tushar Kohli