IMPORTANT POINT
The court ruled that bail applications filed after the BNSS's enforcement for FIRs registered before its enactment must comply with the BNSS provisions, emphasizing the retrospective application of procedural laws.

JUDGMENT :

Vijay Bishnoi, C.J.

Heard Mr. T.J. Mahanta, learned Senior Counsel/Standing Counsel, Gauhati High Court, assisted by Ms. P. Sarma and Ms. P.P. Das, learned counsel for the petitioner. Also heard Mr. I. Chowdhury, learned Advocate General, Arunachal Pradesh, assisted by Mr. A. Chandran, learned Additional Senior Government Advocate, Arunachal Pradesh, appearing for the respondent No.1; Mr. D. Saikia, learned Advocate General, Assam, assisted by Mr. M. Phukan, learned Public Prosecutor, Assam and Ms. P. Barua, learned counsel appearing for the respondent No.2; Ms. M. Kechii, learned Additional Advocate General, Nagaland, appearing for the respondent No.3 and Ms. P. Bhattacharyya, learned Additional Advocate General, Mizoram, appearing for the respondent No.4.

2. This Bench is constituted to answer the following question referred to it by the learned Single Judge of this Court (Itanagar Permanent Bench) vide order dated 08.08.2024 passed in Crl.Petn. No.112/2024, BA No.78/2024, AB No.108/2024, AB No.110/2024, Crl.Petn. No.113/2024, Crl.Petn. No.115/2024 and Crl. Petn. No.116/2024 :

“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regular bail or Criminal Petition would be filed under Section 438/439/482 of the Code of Criminal Procedure, 1973 (now repealed), if the FIR is registered prior to 01.07.2024 i.e. before coming into force of the BNSS, 2023, or the same are liable to be filed under the provisions of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 in view of the saving clause provided under Section 531(2)(a) and 358 of the BNSS, 2023.”

3. Without going into the much detail, we deem it appropriate to mention the relevant facts, which led to make this reference, are that a learned Single Judge of this Court in Sanjit Kar Vs. The State of AP, reported in 2024 Supreme (OnLine) (Gau) 1135 [AB No.102/2024, order dated 19.07.2024], while relying on the decision passed by a Single Judge of Rajasthan High Court rendered in Krishan Joshi Vs. State of Rajasthan, reported in 2024 Supreme (OnLine) (Raj) 200 [CRLMP No.4285/2024, dated 09.07.2024], has held that the petition seeking pre-arrest bail under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter to be referred as the BNSS) be treated as one under Section 438 of the Code of Criminal Procedure, 1973 in connection with a case registered at Namsai Police Station prior to commencement of the BNSS. In Sanjit Kar (supra), the petitioner preferred a bail application under Section 482 of the BNSS seeking pre-arrest bail in relation to an offence committed and registered before 01.07.2024, the day when the BNSS came into force.

4. While recording his disagreement with the view expressed in Sanjit Kar (supra), the learned Single Judge has made the above referred reference vide order dated 08.08.2024. The learned Single Judge, while referring to the various decisions of different High Courts, has observed that he disagrees with the view expressed and the decision and observations made by Co-ordinate Bench of this Court in the case of Sanjit Kar (supra). He further observed that, however, as there are conflicting opinions of various High Courts on the issue of interpretation of Section 531 of the BNSS, 2023, it is appropriate to place the matter before the Hon’ble Chief Justice for referring the matter before the Division Bench or a Larger Bench.

SUBMISSIONS:-

5. Mr. T.J. Mahanta, learned Senior Counsel/Standing Counsel, Gauhati High Court, Mr. D. Saikia, learned Advocate General, Assam, Mr. I. Chowdhury, learned Advocate General, Arunachal, Ms. M. Kechii, learned Additional Advocate General, Nagaland and Ms. P. Bhattacharyya, learned Additional Advocate General, Mizoram have submitted that the various High Courts have expressed their views that the saving clause Sub-Section (2) of Section 531 of the BNSS saves only pending appeal, application, trial, inquiry or investigation and therefore, any appeal, application, trial, inquiry or investigation commences after coming into f