Bail Pleas or Criminal Petitions Filed After 1st July 2024 to be Governed by BNSS: Gauhati High Court

Staff Reporter

Guwahati: The Gauhati High Court recently ruled that any pre-arrest or regular bail or criminal petition filed after July 1, 2024, in connection with an FIR registered prior to the same date, i.e., before coming into force of the BNSS, 2023, is liable to be filed under the relevant provisions of the BNSS, 2023.

The bench of Chief Justice Vijay Bishnoi and Justice Devashis Baruah was constituted to answer the question referred to it by the single judge of HC’s Itanagar Permanent Bench vide order dated August 8, 2024, passed in a batch of petitions. The question “As to 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regular bail or criminal petition would be filed under Section 438/439/482 of the Code of Criminal Procedure, 1973 (now repealed), if the FIR is registered prior to 01.07.2024, i.e., before coming into force of the BNSS, 2023, or the same are liable to be filed under the provisions of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, 2023,” was answered by the HC’s principal seat at Guwahati after a discussion.

The bench held that a plain reading of the provisions of Section 531 of the BNSS, more particularly the saving clause, Sub-Section (2)(a), clearly suggests that any appeal, application, trial, inquiry, or investigation pending immediately before the date on which the BNSS comes into force is liable to be disposed of, continued, held, or made, as the case may be, in accordance with the Code of Criminal Procedure, 1973 (2 of 1974), as in force immediately before such commencement, as if the BNSS had not come into force. In other words, Section 531(2)(a) of the BNSS clearly saves only appeal, application, trial, inquiry, or investigation pending prior to the commencement of the BNSS and provides 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.

This position of law is reiterated by the Supreme Court in several cases while different High Courts have expressed the same view.

The SC made it clear that if any offense 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 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. However, in case the offense is committed prior to the enforcement of new criminal laws, and the F.I.R. is also registered prior to the enforcement of new criminal laws, then the procedure of investigation would be as per the Cr.P.C. in view of Section 531(2)(a) of the BNSS.

In view of the discussions made in respect of the interpretation by the SC and several HCs, the bench answered the referred question as follows: Any pre-arrest or regular bail or criminal petition filed after July 1, 2024, in connection with an FIR registered prior to July 1, 2024, i.e., before coming into force of the BNSS, 2023, is liable to be filed under the provisions of Sections 482, 483, and 528 of the BNSS, 2023, respectively.

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