JUDGMENT :

Sureshwar Thakur, J.

Factual Backdrop of the case/reference.

1. An application bearing No. CRM-34396-2024 became preferred on 23.08.2024 by respondent No.2 under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (in CRM-M-33899-2024), which corresponds to the therebys now replaced w.e.f. 01.07.2024, thus Section 482 of the Cr.P.C. The relief claimed thereins was for setting aside/staying the operation of the interim order dated 18.07.2024, wherebys, interim bail in petition bearing No. CRM-M-33899-2024, was granted, thus to the non-applicant/petitioner, in case arising out of FIR No.257 dated 01.05.2024, registered under Sections 450, 376(2)(n), 376 AB IPC and under Section 6 of the Protection of Children from Sexual Offences Act, 2012, thus, at Police Station Azad Nagar, Hisar.

2. For the sake of convenience, the sequence of events in the said case, are enumerated in the hereinafter extracted table.

3. The learned Single Bench while being seized of the said application formulated the hereinafter extracted questions for consideration.

1. Does Section 438(4) Cr.P.C. create an absolute bar with respect to the grant of pre-arrest bail to an accused involved in offences punishable under Sections 376(3), 376 AB, 376 DA and 376 DB IPC?

2. Whether a petition filed under Section 438 Cr.P.C. after 1st July, 2024 ie. after the enforcement of BNSS and repealing Cr.P.C., is maintainable in view of Section 531 of BNSS?

4. On the said extracted substantial questions of law, the Single Bench of this Court rendered theretos, the hereinafter extracted answers.

1. Section 438(4) Cr.P.C. does not create an absolute bar on granting of pre-arrest bail to an accused involved in offences punishable under Sections 376(3), 376AB, 376DA and 376 DB IPC. If the concerned Court is of the opinion that a prima facie case is not made out against the accused, it may consider granting pre-arrest bail in such cases.

2. The determining factor relevant for the application of criminal codes when read in the light of Section 531 BNSS would be the date of the incident and the date when criminal law machinery was set in motion Le. when a complaint is made before the police or the jurisdictional Magistrate.

5. The respective previous apposite procedural as well as substantive laws, become respectively nomenclatured as the Cr.P.C., and the IPC, both whereof became replaced through the corresponding thereto(s) presently enacted legislations, wheretos becomes respectively assigned, thus the respective nomenclatures i.e. the Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter for short called as the BNSS) and Bharatiya Nyaya Sanhita, 2023 (hereinafter for short called as the BNS). The said legislations came into force on 01.07.2024. Therefore question No. 2 (supra) became formulated by the learned Single Judge and the answer thereto, was that, the date of occurrence was the relevant date, thus for setting in motion the criminal machinery either under the previous laws or under the present laws. Resultantly therebys, it appears that the learned Single Bench concluded, that the application filed under Section 438 Cr.P.C., on 15.07.2024, thus was maintainable irrespective of the fact, that at the time of the passing of an order, thus, granting the espoused interim concession of bail to the accused, rather then the procedural law embodied in the present BNSS, thus, had then came into force, whereins, occurred the replacing theretos provisions whereunders an application was to be filed. As such, it was concluded that the application filed under Section 438 Cr.P.C., was maintainable.

6. However, a similar situation also arose before another Single Bench of this Court, upon, its becoming seized with CRM-M-31808 of 2024. titled as Abhishek Jain Is.