IMPORTANT POINT
The saving clause in Section 531(2)(a) of the BNSS ensures that pending legal proceedings initiated before its enforcement continue under the old Cr.P.C framework.

ORDER :

Heard Mr. N. Ray, learned counsel for the petitioner. Also heard Mr. T. Ete, learned Additional Public Prosecutor for the State respondent.

2. At the very outset, the learned Additional Public Prosecutor, raised objection against the filing of this bail application under section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 seeking pre arrest bail in the offence committed and registered before 01.07.2024. It is submitted that since the alleged offence was committed and the case was registered prior to the enforcement of the new BNSS, the petition ought to have been filed under section 438 of Cr.P.C and not under 482 of the BNSS,2023.

3. The cause title of this anticipatory bail read as under:

“An application under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 for granting of pre-arrest bail” and in the matter of “Namsai P.S. Case No. 71/2023 under Section 354A of Indian Penal Code, 1860 and under Section 75 of Bharatiya Nyaya Sanhita, 2023.”

4. However, on perusal of available record, it appears that on receipt of the written FIR lodged by the informant on 02.12.2023, by the Officer-In-Charge, Police Station Namsai, District Namsai, Arunachal Pradesh; a case was registered being Namsai, P.S. Case No. 71/2023 under Section 354A of IPC. On perusal of the above FIR clearly reveals that the FIR was registered on 02.12.2023 i.e., prior to coming into force of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) which came into force w.e.f., 01.07.2024.

5. In this regard, in view of the saving clause contained under Section 531(2) (a) of the BNSS, the petition ought to have been filed under the old corresponding Section 438 of Cr.P.C, 1973 and not under Section 482 of the Code, BNSS.

6. 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(1) The Code of Criminal Procedure, 1973 (2 of 1974) is hereby repealed.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 or 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.”

7. In the instant case, we are concerned with the saving clause contained in Sub Section 531(2)(a) BNSS. A perusal of the said Sub Section 531(2)(A), it clearly reflects that not only the pending trial/appeal, but even an application, inquiry, or investigation which is pending prior to coming into force of the