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is construed to be an internal aid for the purpose of construction of a statute, saves the provisions of the old Code/repealed Code, i.e, in the present case, Criminal Procedure Code, 1973, for certain categories of investigation, inquiry, appeals, application, etc.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 considered how to interpret certain provisions of the Nagarik Suraksha Sanhita, 2023 (‘BNSS 2023’), especially the repeal clause under Section 531. A Single Judge Bench led by Justice Bharat P. Deshpande decided that the investigation related to FIR 1 of 2024, filed with the Economic Offences Cell, would continue under the Criminal Procedure Code, 1973 (‘CrPC’). The bail application submitted by Respondent 3 on 06-07-2024 would be treated as an application under Section 482 of BNSS 2023. The Court also noted that it has the authority to grant or deny interim bail while the main application is being resolved.
Background :
The petitioners claimed that the respondents committed offenses under Sections 409, 420, 477-A, and 120-B of the Indian Penal Code (IPC). The FIR was filed on 14-06-2024 by the Economic Offences Cell in Goa. Respondent 3 then 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 didn’t have jurisdiction, but still gave 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 also 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 the BNSS 2023 came into effect on 01-07-2024, which led to the repeal of the CrPC. He stated that from this date onward, no proceedings under the CrPC, including Respondent 3’s application under Section 438, should be considered. He further argued that Section 482 of BNSS 2023 does not provide for granting any interim protection or interim bail. Such protection cannot be assumed or inferred, especially when the Legislature intentionally chose not to include a provision for ad-interim bail, which was previously available under Section 438 of the CrPC. He emphasized that the Court should respect the Legislature’s intent 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 looked at Section 531 of the CrPC and pointed out that Section 531(2)(a) clearly states that any investigation pending before the BNSS 2023 takes effect should be handled according to the CrPC as it was before BNSS 2023 started. This means that the saving clause in Section 531 of BNSS 2023 ensures that investigations pending before the new law are to be continued or resolved under the CrPC. Section 531(2)(a) of BNSS 2023 makes it clear that these ongoing investigations must follow the CrPC rules.
The Court noted that BNSS 2023 started 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 crimes 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 said the investigation should continue following the CrPC rules until the Police Officer submits their report under Section 173 of the CrPC to the Court.
The Court looked at the Natabar Parida v. State of Orissa case (1975) 2 SCC 220 and decided that its findings applied to the current situation regarding how to handle ongoing investigations under the CrPC.
The Court ruled that the CrPC rules should still be used for investigations that were underway before 01-07-2024. In this case, the offenses were under the IPC, and the FIR was filed before BNSS 2023 started. The investigation began on 14-06-2024 and was still ongoing when BNSS 2023 took effect.
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 took effect, the CrPC would be repealed. The saving clause only preserves appeals, applications, trials, inquiries, or investigations that were pending as of 01-07-2024. Any new applications filed on or after 01-07-2024 will be governed by BNSS 2023, as the CrPC has been repealed. The Court also clarified that Section 531 of BNSS 2023 only saves 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 because the court did not have the right jurisdiction. Since this application was dealt with before 01-07-2024, the new application filed on 06-07-2024 was considered separate and not a continuation of the earlier one.
The Court said that the new application filed by Respondent 3 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 482 of BNSS 2023, whether the Court was empowered/having jurisdiction to grant ad interim bail pending decision of the main bail application?
Court noted that since the applications filed on 06-07-2024 would be governed by Section 482 of BNSS 2023, it needed to determine whether the Court, while acting under Section 482 of BNSS 2023, had the authority to grant ad interim bail.
The Court noted that both the Sessions Court and this Court have the inherent power to grant temporary relief while a bail application is pending. However, it stressed that such temporary relief should not be granted automatically; the Court must carefully consider the circumstances and set specific conditions. This is important 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 said that when considering an application under Section 482 of BNSS 2023, it has the power to grant temporary bail in deserving cases, using its discretion based on each case.
As a result, the Court decided that the applications filed and 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]
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