By a saving clause, which is construed to be an internal aid for the purpose of construction of a statute, saves the provisions of the old Code/repealed Code, i.e, in the present case, Criminal Procedure Code, 1973, for certain categories of investigation, inquiry, appeals, application, etc.
Bombay High Court: In these petitions, the Court examined the interpretation of certain provisions of the Nagarik Suraksha Sanhita, 2023 (‘BNSS 2023’), particularly the repeal clause under Section 531. A Single Judge Bench led by Justice Bharat P. Deshpande ruled that the investigation related to FIR 1 of 2024, filed with the Economic Offences Cell, would proceed under the Criminal Procedure Code, 1973 (‘CrPC’). The bail application submitted by Respondent 3 on 06-07-2024 would be considered under Section 482 of BNSS 2023. The Court also acknowledged its authority to grant or deny interim bail while the main application is pending.
Background :
The petitioners alleged that the respondents committed offenses under Sections 409, 420, 477-A, and 120-B of the Indian Penal Code (IPC). The FIR was lodged by the Economic Offences Cell in Goa on 14-06-2024. Respondent 3 subsequently applied for anticipatory bail under Section 438 of the CrPC in the Sessions Court in Panaji on 19-06-2024. On 20-06-2024, the Sessions Judge granted Respondent 3 temporary bail until the next hearing on 24-06-2024.
On 05-07-2024, the Sessions Court accepted the petitioner’s objections, stating it lacked jurisdiction, but still granted Respondent 3 protection for 72 hours. Respondent 3 then applied for anticipatory bail in the Sessions Court of South Goa, Margao, on 06-07-2024, and requested temporary protection. The Court noted that since Respondent 3 was already protected for 72 hours by the previous order, no further action was needed at that time. However, on 08-07-2024, the petitioner intervened in the bail application. The court kept the application pending but granted interim bail to Respondent 3 on 08-07-2024, which is now being challenged in this petition.
The petitioner’s counsel argued that with the BNSS 2023 coming into effect on 01-07-2024, the CrPC was repealed. He asserted that from this date, no proceedings under the CrPC, including Respondent 3’s application under Section 438, should be entertained. He further argued that Section 482 of BNSS 2023 does not allow for interim protection or interim bail. Such protection cannot be assumed, especially since the Legislature intentionally did not include a provision for ad-interim bail, which was available under Section 438 of the CrPC. He stressed that the Court should respect the Legislature’s decision to remove this power and should not interpret the law to include what is not explicitly provided, even by considering inherent powers.
Analysis, Law, and Decision
Whether the investigation in the present FIR could be governed by the provision of CrPCor under the provision of BNSS 2023?
The Court examined Section 531 of the CrPC and highlighted that Section 531(2)(a) clearly states that any investigation pending before BNSS 2023 takes effect should be handled according to the CrPC as it was before BNSS 2023 began. This means that the saving clause in Section 531 of BNSS 2023 ensures that investigations pending before the new law must continue or be resolved under the CrPC. Section 531(2)(a) of BNSS 2023 makes it clear that these ongoing investigations must follow CrPC rules.
The Court noted that BNSS 2023 took effect on 01-07-2024, but the FIR in this case was filed on 14-06-2024 and registered as FIR 1 of 2024 with the Economic Offences Cell for offenses under Sections 409, 420, 477-A, and 120-B of the IPC. Since the FIR was registered before BNSS 2023 came into effect, the investigation started and was ongoing. This ongoing investigation is protected under Section 531 of BNSS 2023. The Court stated that the investigation should continue following CrPC rules until the Police Officer submits their report under Section 173 of the CrPC to the Court.
The Court referred to the Natabar Parida v. State of Orissa case (1975) 2 SCC 220 and determined that its findings were relevant to the current situation regarding the handling of ongoing investigations under the CrPC.
The Court ruled that CrPC rules should still apply to investigations that began before 01-07-2024. In this case, the offenses were under the IPC, and the FIR was filed before BNSS 2023 took effect. The investigation started on 14-06-2024 and was still ongoing when BNSS 2023 came into force.
Whether bail application filed by Respondent 3 on 06-07-2024 would be governed by the provisions of Section 438of CrPC or by Section 482 of BNSS 2023?
The Court explained that from 01-07-2024, when BNSS 2023 came into effect, the CrPC would be repealed. The saving clause only applies to appeals, applications, trials, inquiries, or investigations that were ongoing as of 01-07-2024. Any new applications filed on or after this date will be governed by BNSS 2023, as the CrPC has been repealed. The Court clarified that Section 531 of BNSS 2023 preserves only pending matters, not those filed after 01-07-2024, which will be governed by BNSS 2023.
The Court noted that the application filed with the Sessions Court North Goa, Panaji, was dismissed on 05-07-2024 due to lack of jurisdiction. Since this application was addressed before 01-07-2024, the new application filed on 06-07-2024 was treated as a separate matter rather than a continuation of the earlier one.
The Court stated that Respondent 3’s new application filed on 06-07-2024 would be handled under Section 482 of BNSS 2023, not under Section 438 of the CrPC.
If it was observed that such bail application must be considered under Section 482of BNSS 2023, whether the Court was empowered/having jurisdiction to grant ad interim bail pending decision of the main bail application?
The Court noted that since the applications filed on 06-07-2024 fall under Section 482 of BNSS 2023, it needed to determine whether it had the authority to grant ad interim bail while the main bail application is pending.
The Court recognized that both the Sessions Court and this Court have the inherent power to grant temporary relief during a pending bail application. However, it emphasized that such relief should not be granted automatically; the Court must carefully consider the circumstances and set specific conditions. This is crucial to protect a person’s life and liberty under Article 21 of the Constitution, avoid unnecessary arrests, and prevent harassment by the investigating agency.
The Court also stated that when dealing with applications under Section 482 of BNSS 2023, it has the discretion to grant temporary bail in appropriate cases.
Therefore, the Court decided that the applications pending before the Sessions Judge, South Goa, Margao, should be reviewed under Section 482 of BNSS 2023.
[Chowgule and Company (P) Ltd. v. State of Goa, Criminal Writ Petition No. 618 of 2024, decided on 02-08-2024]
