Judicial Analysis Court Copy Headnote Facts Arguments Court observation

RAJASTHAN HIGH COURT
Arun Monga, J.
Krishan Joshi – Petitioner
versus
State of Rajasthan, Through Director General of Police and Ors. – Respondents
S.B. Criminal Misc (Pet.) No.4285 of 2024
Decided on 9.7.2024

Advocates:
Counsel for the Parties:
For the Petitioner:Ms. Swati Shekhar, Advocate
For the Respondents: Mr. Mukhtyar Khan, P.P.

IMPORTANT POINTS
(1) Bharatiya Nagarik Suraksha Sanhita, 2023 – Section 531(2)(a) – Not only pending trial / appeal, but even an inquiry and/or investigation, which is underway prior to coming into force of BNSS, shall have to be dealt with in accordance with provisions of Cr.P.C., 1973 and not under BNSS, 2023.
(2) Liberty of a citizen, who is accused, cannot be curtailed mechanically without being certain about criminal culpability attributed to him.

Headnote:
(A) Bharatiya Nagarik Suraksha Sanhita, 2023 – Section 531(2)(a) – Saving clause – Not only pending trial / appeal, but even an inquiry and/or investigation, which is underway prior to coming into force of BNSS, shall have to be dealt with in accordance with provisions of Cr.P.C., 1973 and not under BNSS, 2023 – What has to be been seen simply is date of registration of FIR and law as applicable as on date of such registration – If FIR is registered prior to 01.07.2023 under Cr.P.C., it would amount to pending enquiry/investigation within meaning of Section 531(2)(a) of BNSS – Entire subsequent investigation procedure and even trial procedure qua such FIR shall then be governed by Cr.P.C. and not BNSS.(Paras 5 and 6)
(B) Bharatiya Nagarik Suraksha Sanhita, 2023 – Section 531(2)(a) – Saving clause – Saving clause in Section 531(2) is critical for ensuring legal continuity and stability – Rights of accused in an FIR and/or under trials and/or convicts under appeal and legal expectations formed under old law have been and are required to be protected – Procedural laws can be applied retrospectively, subject to judicial review, but in view of Section 531(2)(a) of BNSS, all pending matters prior to coming into force of BNSS, 2023, as specifically mentioned in Section 531(2)(a) of BNSS shall continue to be governed by old
Code i.e. Cr.P.C., 1973 – Petition in hand also to has to be treated under Section 482 Cr.P.C.(Paras 6.2, 7 and 9)
(C) Criminal Procedure Code, 1973 – Section 173 – Indian Penal Code, 1860 – Sections 420 read with 120-B – Crime investigation – Dissatisfied with progress and manner of investigation, petitioner seeks issuance of directions to officials respondents to conduct fair inquiry/investigation in alleged offences – Investigation is still underway and owing to ongoing civil litigation Investigating Officer is treading cautiously and rightly so – Liberty of a citizen, who is accused, cannot be curtailed mechanically without being certain about criminal culpability attributed to him – Even otherwise, petitioner ought to have first availed of other available legal remedies, before directly approaching this Court – Ordinarily, in case of grievance arising from unfair or improper investigation of FIR, aggrieved person can seek recourse for redressal thereof by approaching a superior police officer as per Section 36 of Cr.P.C. – If grievance still remains unmitigated, one can then approach Magistrate of competent jurisdiction under Section 156(3) of Cr.P.C., who can order further investigation and submission of report by police – Additionally, aggrieved party can choose to file criminal complaint before competent court – Petition disposed of with liberty to approach appropriate forum.(Paras 10, 14 and 15)
Result: Petition disposed of with directions.

ORDER

Head Note of the petition herein reads as under:—

“S.B. Criminal Misc. Petition under Section 528 BNSS for fair, impartial and effective investigation in FIR No.0068/2024 dated 02.02.2024 Police Station Nokha district Bikaner for the offence under Section 420, 120-B IPC.”

2. A perusal of the above clearly reveals that the FIR was registered on 02.02.2024 i.e. prior to coming into force of The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) with effect from 01.07.2024.

3. In the premise, in view of the savings clause contained under section 531(2)(a) of the BNSS, the petition ought to have been filed under the old corresponding Section 482 of Criminal Procedure Code, 1973, (Cr.P.C.), and not under section 528 of the new Code (BNSS).

4. For ready reference, the entire Section 531 of BNSS is reproduced hereinbelow:

“531. Repeal and savings.—(1) The Code of Criminal Procedure, 1973 (2 of 1974) is hereby repealed.

(2) Notwithstanding such repeal—

(a) if, immediately before the date on which this Sanhita comes into force, there is any appeal, application, trial, inquiry or investigation pending, then, such appeal, application, trial, inquiry or investigation shall be disposed of, continued, held or made, as the case may be, in accordance with the provisions of the Code of Criminal Procedure, 1973, (2 of 1974), as in force immediately before such commencement (hereinafter referred to as the said Code), as if this Sanhita had not come into force;

(b) all notifications published, proclamations issued, powers conferred, forms provided by rules local jurisdictions defined, sentences passed and orders, rules and appointments, not being appointments as Special Magistrates, made under the said Code and which are in force immediately before the commencement of this Sanhita, shall be deemed, respectively, to have been published, issued, conferred, specified, defined, passed or made under the corresponding provisions of this Sanhita;

(c) any sanction accorded or consent given under the said Code in pursuance of which no proceeding was commenced under that Code, shall be deemed to have been accorded or given under the corresponding provisions of this Sanhita and proceedings may be commenced under this Sanhita in pursuance of such sanction of consent;

(3) Where the period specified for an application or other proceeding under the said Code had expired on or before the commencement of this Sanhita, nothing in this Sanhita shall be construed as enabling any such application to be made or proceeding to be commenced under this Sanhita by reason only of the fact that a longer period therefor is specified by this Sanhita or provisions are made in this Sanhita for the extension of time.” (Emphasis supplied)

5. We are concerned here only with the savings clause contained in sub section 531(2)(a), ibid. A perusal thereof clearly reflect that, not only the pending trial / appeal, but even an inquiry and/or investigation, which is underway prior to coming into force of the BNSS, shall have to be dealt with in accordance with the provisions of Cr.P.C., 1973 and not under the BNSS, 2023.

6. The reasons for the same are not far too seek. What has to be been seen simply is the date of registration of the FIR and the law as applicable as on the date of such registration. Trite it may sound, but settled position is that, the moment an FIR is registered under section 154 of the Cr.P.C., criminal investigative/administrative machinery is set in motion under Chapter XII thereof. Thus, if an FIR is registered prior to 01.07.2023 under the Cr.P.C., it would amount to a pending enquiry/investigation within the meaning of section 531(2)(a) of BNSS. The entire subsequent investigation procedure and even the trial procedure qua such an FIR shall then be governed by Cr.P.C. and not BNSS.

6.1. Let us analyze it deeper by dwelling further on it. Legislative processes often involve simultaneous twin actions i.e. not only the creation of new law, but als

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