IMPORTANT POINT
FIRs for offences committed before new laws must be registered under IPC, with investigations following BNSS procedures.

JUDGMENT :

1. Personal affidavit of Superintendent of Police, Hamirpur filed today is taken on record.

2. Heard Sri Sanjay Mishra, learned counsel for the petitioners as well as Sri P.C. Srivastava, Additional Advocate General, assisted by Sri J.K. Upadhyay, Additional Government Advocate and Sri Bhaiya Lal Yadav, learned counsel for the informant.

3. The present writ petition has been preferred with the prayer to quash the impugned First Information Report dated 3.7.2024, registered as Case Crime No. 0271 of 2024, under Sections 376 (2)(n), 354, 147, 452, 504, 506 IPC and Section 4 POCSO Act, PS Maudaha, District Hamirpur, and for a direction to the respondents not to arrest the petitioners in pursuance of impugned First Information Report.

4. On 23.7.2024 the following order was passed:

“The impugned FIR dated 3.7.2024 is registered under the provision of Indian Penal Code and not under Bharatiya Nyaya Sanhita (BNS) which came into force on 1st July, 2024. The Superintendent of Police, Hamirpur shall file an affidavit why the FIR has not been registered under Bharatiya Nyaya Sanhita (BNS).

Learned AGA for State submits that the victim is aged about 14 years and she was medically examined and seeks some time to get the instruction in this regard.

List again on 30.7.2024 as fresh.”

5. In compliance with the above quoted order, learned AGA has filed a personal affidavit of the Superintendent of Police, Hamirpur. In the affidavit, it is mentioned that Bharatiya Nyaya Sanhita (B.N.S.) came into force on 1.7.2024 whereas the incident in question had taken place between 2.4.2024 to 28.6.2024, therefore, the first information report was lodged under the provisions of the Indian Penal Code (I.P.C.). It is also mentioned in the personal affidavit that in respect of the procedure after commencement of B.N.S.S. a circular dated 4.7.2024 was issued by the Police Technical Services Headquarters, Uttar Pradesh which provides that if any offence is committed prior to the enforcement of B.N.S. the FIR would be registered under the provisions of Indian Penal code, and procedure of investigation would be followed as per Bhartiya Nagrik Suraksha Sanhita (B.N.S.S.). The said circular dated 4.7.2024 issued by the Police Technical Services Headquarters, Uttar Pradesh is quoted as under:

6. However, learned counsel for the petitioners has contended that the procedure mentioned in the above noted circular dated 4.7.2024 is incorrect for the offence occurred prior to the enforcement of the Bharatiya Nyaya Sanhita, 2023, because for this offence the F.I.R. is registered after enforcement of the Bharatiya Nyaya Sanhita, 2023 (hereinafter referred to as “BNS”) as well as the Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as “BNSS”), then the F.I.R. should be registered under the BNS.

7. To decide this issue, it would be relevant to quote Section 531 of BNSS as under:

“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 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.

(