IMPORTANT POINT
The transition from the Code of Criminal Procedure, 1973 to the BNSS does not affect the substantive right to appeal, and procedural amendments are applicable only to appeals filed after the new law's enactment.

ORDER :

1. This is an appeal against conviction. The appellant invoked the provisions of Section 374(2) of the Code of Criminal Procedure, 1973 (Code of 1973, for short) to file the appeal. The appeal was filed on 10.07.2024. A question arises whether this appeal could be filed under the provisions of the Code of 1973 or should have been filed under the provisions of Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS, for short). Section 415 of the BNSS is the provision corresponding to Section 374 of the Code of 1973.

2. The learned counsel for the appellant would submit that the trial was held under the provisions of the Code of 1973, and therefore the appellant's right to appeal accrued as per the provisions of the Code of 1973. It is contended that the appellant cannot be compelled to invoke the provisions of the BNSS to file the appeal since the trial took place under the Code of 1973.

3. The learned counsel for the appellant invites my attention to Pylikunju and others v. State of Kerala and others, 1977 KLT 252 and also Hiralal Nansa Bhavsar and another v. State of Gujarat, 1976 Crl. LJ 84 in order to fortify his contention that in a case where the trial took place under the provisions of the Code of 1973, the appeal shall be filed and decided by the provisions of the Code of 1973 itself. It is the further submission of the learned counsel that the appeal being continuation of the trial, the appeal shall also be dealt with as per the same procedure under which the trial was held. In that regard, the learned counsel places reliance on Soban v. State of Kerala, 2021 (3) KHC 383.

4. The appellants herein were convicted as per the judgment dated 12.06.2024. Needless to say that the trial and conviction were as per the provisions of the Code of 1973. But the appeal was filed on 10.07.2024. If so, which provisions; whether Section 374(2) of the Code of 1973 or Section 415(2) of the BNSS that governs the appeal filed by the appellant? A similar question would arise when an application is filed in a pending appeal which was filed before 01.07.2024. This question has larger ramification since its answer delineates the procedure to be followed in the investigation, inquiry, trial, appeal and applications pending on 01.07.2024; whether the provisions of the Code of 1973 or the BNSS.

5. Sections 484(1) and (2)(a) of the Code of 1973, which are relevant to answer the aforementioned question, read:

Section 484 - Repeal and savings:

(1) The Code of Criminal Procedure, 1898 (V of 1898) is hereby repealed.

(2) Notwithstanding such repeal:

(a) If, immediately before the date on which this Code 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, 1898 (V of 1898), as in force immediately before such commencement (hereinafter referred to as the old Code), as if this Code had not come into force:

Provided that every inquiry under Chapter XVIII of the old Code, which is pending at the commencement of this Code, shall be dealt with and disposed of in accordance with the provisions of this Code.

(b) xxxx

(c) xxxx

(d) xxxx

(3) xxxx

6. The corresponding provision in the BNSS is Section 531. Sub-sections (1) and (2)(a) of Section 531 read as follows:

Section 531 - Repeal and savings:

(1) The Code of Criminal Procedure, 1973 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, as in force immediately before such commencement (hereinafter referred to as the said Code), as if this Sanhi