Prayer: Criminal Original Petition is filed under Section 528 of BNSS, to set aside the docket order dated 20.09.2024 passed in unnumbered Criminal M.P.S.R.57948 of 2024 in C.C.No.6821 of 2023 consequently direct that the said petition to be numbered and taken on file of the learned Metropolitan Magistrate for Exclusive Trial of CCB Cases (relating to cheating cases in Chennai) and CBCID Metro Cases Court, Egmore, Chennai.

O R D E R

The petitioner is an accused in C.C.No.6821 of 2023 on the file of learned Metropolitan Magistrate for Exclusive Trial of CCB Cases (relating to cheating cases in Chennai) and CBCID Metro Cases Court, Egmore, Chennai.

2. After receipt of the copies under Section 207 of Cr.P.C, the petitioner has filed the application for discharge. In the said application in Crl.MP.SR.No.57948 of 2024 dated 20.09.2024, the petitioner has specifically stated that since FIR is prior to BNSS Act came into effect, the petition to discharge is filed under the old Code. In any event, if there is any delay in filing discharge petition under BNSS, the said delay may be condoned.

3. The learned Magistrate has returned the application for discharge with the following endorsement :

“ On careful perusal of entire case records in C.C.No.6821 of 2023 (i) As per the BNSS Act case entered into BNSS act as on 01.07.2023. (ii) Under Section 262 of BNSS stated that discharge petition should be file within 60 days from the date of receipt of copies. (iii) The petitioner received copies on 09.01.2024 and the time period was lapsed. Hence how this petition is maintainable to be explained accordingly this petition is returned”.

4. Being aggrieved, the present petition is filed stating that the FIR was registered under provisions of IPC Sections 419, 420, 465, 467, 468, 471, 474, 447 r/w 34 and 120(B) of IPC. As BNSS Act, was given effect from 01.07.2024, under Section 531(2) of BNSS all proceedings initiated prior to the date of effect of BNSS Act, the Code of Criminal Procedure, 1973 has to be applied since the case in hand was for offence under IPC. While so, the learned Metropolitan Magistrate ought not to have returned the application for discharge citing limitation prescribed under the BNSS Act.

5. The learned Government Advocate (Crl.Side) appearing for the respondent police submits that the combined reading of Section 358 of BNS Act and 531 of BNSS Act it is without any ambiguity that any offence committed before BNS Act came into force, the provisions of IPC will apply and wherever offences under IPC is tried, code of Criminal Procedure, 1973 would apply and not the provisions of BNSS Act.

6. He further state that reading of Section 531(3) would clarify that if any limitation prescribed under the old Code and for offences under IPC. If the limitation is expired before BNSS come into force, the provisions of BNSS cannot be applied. Thus, both positively as well as negatively, the BNSS has made clear that for the offence committed before 01.07.2024 will be under IPC and procedure to be followed in the code of Criminal Procedure, 1973 and not BNSS, 2023.

7. On Considering the provisions of law, it is very clear that as far as offences committed prior to 01.07.2024 and which attracts the provisions of Indian Penal Code, the procedure to be adopted for conducting trial, enquiry or investigation shall only the procedure contemplated under the code of Criminal Procedure, 1973. This is made clear by the non-obstante clause under Section531(2)(a) of BNSS which reads as below:

“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