Navigating The Enforceability Of BNS and BNSS: Impacts On Offences Before and After 1 July 2024
Himadri Jaiswal
Mahatma Gandhi Kashi Vidyapith, Varanasi
This Blog is written by Himadri Jaiswal, a Fifth Year Law Student of Mahatma Gandhi Kashi Vidyapith, Varanasi
Introduction
On 1 July 2024, new criminal laws came into force in India replacing the Indian Penal Code, 1860 (IPC), Code of Criminal Procedures, 1973 (CrPC) and the Indian Evidence Act, 1872 (IEA) with The Bharatiya Nyaya Sanhita, 2023 (BNS); The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) and The Bharatiya Sakshya Adhiniyam, 2023 (BNA) respectively.
Though these laws have been already enforced, they are still very new for the judiciary and law enforcement agencies. Hence there are confusions regarding the overall applicability of these laws.
The questions regarding the applicability of these laws were answered by courts in their various judgments. The courts have clarified the applicability of these laws on offenses committed before and after 1 July 2024.
So, in this blog, we will be discussing the impact of BNS and BNSS on offenses before and after 1 July 2024.
Applicability Of The BNS & BNSS Before And After Enforcement
There are three situations in which we need to understand the applicability of BNS and BNSS, which are as follows:
1. Offences committed after 1 July 2024;
2. Offences committed and FIR also registered before 1 July 2024, but proceedings started after 1 July 2024;
3. Offences committed before 1 July 2024 but FIR got registered and proceedings started after 1 July 2024.
Now, we will understand them one by one.
Offences Committed After 1 July 2024
In this regard, it is clear that offenses committed after 1 July 2024 shall be governed by new laws which are BNS, BNSS, and BNA. Section 531 of BNSS gives provisions regarding “Repeal and savings”. Its sub-section 1 expressly says that CrPC is repealed by the BNSS. That means any offense committed after the enforcement of BNSS shall be governed only by it. Similarly, sub-section 1 of Section 358 of BNS repealed the IPC.
Offences committed and FIR also registered before 1 July 2024, but proceedings started after 1 July 2024
In the case of Krishan Joshi v State of Rajasthan (2024:Rj-Jd:27741) Rajasthan High Court held that if an offense is committed before 1 July 2024 and FIR was also filed before the said date then, provisions of CrPC will be applied. For this, the court relied upon Section 531(2)(a) of BNSS and said that if any appeal, application, trial, inquiry or investigation is pending before the enforcement of the new laws then, they shall be continued under CrPC. According to court once an FIR gets registered the procedure also gets started. Therefore, according to the court under Section 531(2)(a) of BNSS, provisions of CrPC will be applied upon all investigation, procedures, and trial procedures because once the FIR gets registered they are considered pending. Similarly, if a trial is pending, or an appeal or application is pending on 1 July 2024, they will be disposed of under the CrPC.
However, this decision was overturned by Rajasthan HC itself in the case of Vijay Sharma & Anr. V. State Of Rajasthan & Anr. (2024:RJ-JD:35171). The judgment of the Krishan Joshi case was not completely overturned. In this case, the court reaffirmed its stance that if a FIR is filed before 1 July 2024 then the investigation must be under CrPC. But, the court set aside its instance on applicable laws for subsequent proceedings. For this instance, the court again relied on Section 531(2)(a) of BNSS but changed its interpretation. The HC said that the said section approves the application of CrPC only for pending matters. So, when an FIR gets registered, only the investigation becomes pending; therefore, the investigation must follow the provisions of CrPC. But if other subsequent proceedings start after 1 July 2024 then they must follow the provisions of BNSS. The reason is they were not pending on 1 July 2024, instead, they were initiated after the enforcement of new laws. Hence such proceedings are not saved under Section 531(2)(a) and they must follow the provisions of BNSS.
Hence, after reading both the judgment the judgment of Vijay Sharma case is applicable as this case was decided after the Krishan Joshi case. It is also notable that both the judgments are delivered by the same judge, Justice Arun Monga.
A similar view was also taken by Allahabad HC in the case of Deepu & Ors. V. State of Uttar Pradesh & Ors. 2024:AHC:126843-DB; by Punjab & Haryana HC in XXXX V State of Union Territory of Chandigarh and Anr. (2024); and by Kerala HC in Abdul Khadir Vs. State of Kerala (2024). The Rajasthan HC in its judgment of the Vijay Sharma case, cited all these cases to support its instance on the applicability of new laws.
Offences committed before 1 July 2024 but FIR got registered and proceedings started after 1 July 2024
In such circumstances, two questions need to be answered:-
1. Which law will be applicable while registering the FIR- IPC or BNS?
2. Which law will be applicable for the proceedings started after registering FIR- CrPC or BNSS?
The law applicable on FIR- In the case of Vijay Sharma (supra) the Rajasthan HC held that, for offenses committed before 1 July 2024, FIR shall be filed under the provisions of IPC not under BNS. While giving the reason the court relied on Article 20 (Protection in respect of conviction for offences) of the Indian Constitution. Clause 1 of Article 20 says that a person shall be convicted only of an offense for the violation of law in force at the time of the commission of the offense. Relying on this Article, the court said that since before 1 July 2024, IPC was in force therefore FIR for an offence which is committed before 1 July 2024 shall be registered under IPC. For this judgment, Rajasthan HC also relied on the case of Deepu & Ors. (supra). In this case division bench of Allahabad HC also held the same.
The law applicable to Proceedings- In the same case of Vijay Sharma Rajasthan HC held that if an FIR gets registered after 1 July 2024 then BNSS shall apply to the proceedings, regardless of the fact whether the FIR is registered under IPC or BNS. While giving the reason the court relied on Section 531(2)(a) of BNSS. Court reasoned that the said section only saves pending trial, appeal, inquiry, or investigation and according to Section 157 CrPC. (Section 176 BNSS), the investigation starts from the date of registration of FIR. Therefore, if FIR gets registered after the enforcement date that means there were no pending investigations on 1 July 2024. Hence, BNSS will apply to the proceedings if the FIR gets registered after 1 July 2024.
A similar view was also taken by Allahabad HC in the case of Deepu & Ors.; by Punjab & Haryana HC in XXXX V State of UT (supra); and by Kerala HC in Abdul Khadir case (supra).
We must also understand one more thing regarding the enforceability of BNSS. As mentioned above it only saves pending inquiry, investigation, appeal, etc. So, let’s say when a trial is started under CrPC and it was pending on 1 July 2024. Then it is clear that it will be carried on under CrPC. But, once the decision of the trial court is finalized after 1 July 2024, and if any aggrieved party wants to appeal for such a decision then such an appeal must be filed under BNSS. As Section 531 of BNSS separately mentions the term appeal also; that means it only saves pending appeals. Since the appeal is being filed after the enforcement date that means there was no pending appeal on the enforcement date, the said appeal is commencing after the enforcement date, therefore it must be filed under BNSS.
Conclusion
While understanding the applicability of new laws it is noticeable that we only saw cases from various High Courts. Uttar Pradesh, Punjab, Haryana, Kerala, and Rajasthan have similar stances on the applicability of new laws. Apart from these in the case of Hiralal Nansa Bhavsar and Ors. V. State of Gujarat 1974 SCC OnLine Guj 65, Gujarat HC also had a similar stance. This case was related to the enforcement of CrPC when it first came into force. Like Section 531 of BNSS, CrPC also had similar provisions. In this regard, at that time Gujarat HC held that only pending matters are saved under this provision, and any proceeding which started after the enforcement of CrPC shall be governed under CrPC. Based on this judgment we can say that Gujarat HC also has a similar view that any proceeding started after the enforcement of BNSS shall be governed under BNSS.
At last, there are no Supreme Court judgments regarding the enforceability of new laws. Therefore, each High Court has to clarify its stance. So far, every HC decision we saw here has a similar view. But in the future, there is a possibility of friction from the judgment of other High Courts. Therefore, there is a need for the ultimate view of the Supreme Court for more clarity. But till then we have to rely on the various judgments of High Courts and various circulars for understanding the enforceability of new laws.
References
· https://www.scconline.com/blog/post/2024/08/23/crpc-or-bnss-the-tug-of-war-around-july-1-2024
· Vijay Sharma & Anr. V. State Of Rajasthan & Anr. (2024:RJ-JD:35171)
https://www.thehindu.com/news/national/amit-shah-on-new-criminal-laws/