2025 (4) TMI 1671 - HC - Indian Laws

Cognizance of the offences on a complaint filed by the respondent against the petitioner and the co-accused by the learned Special Judge - complaint pertaining to an offence committed prior to the coming into force of the Bharatiya Nagarik Surakhsha Sanhita 2023 - procedure to be governed by the provisions of the Code of Criminal Procedure 1973 or by the provisions contained in the BNSS? - HELD THAT - A meticulous analysis of the provisions contained in Section 531 of BNSS leaves no manner of doubt in holding that the relevant factor for determining the applicability of BNSS or CrPC 1973 is the stage of the case prevailing immediately prior to 01.07.2024. If the stage of the case at the relevant date is investigation then the investigation has to be conducted and concluded under CrPC 1973. If the case is at the stage of inquiry or trial it has to be concluded under the Cr.PC. Similarly if the stage is that of an appeal application for bail or complaint the same has to be governed by the provisions of CrPC 1973. However once the investigation is completed and the challan or complaint is laid before the Court after 01.07.2024 then the procedure provided under BNSS would govern the subsequent proceedings. Likewise if a bail application is filed after 01.07.12024 in a case where the offence had been committed prior to the said date such an application has to be dealt with in accordance with the procedure prescribed under BNSS and not under the CrPC. However once the case progresses to the next stage after coming into the force of BNSS then the subsequent stage has to be governed by the provisions contained in BNSS and not by the provisions contained in CrPC 1973. Coming to the facts of the present case as already stated although the offences alleged against the petitioner have been committed prior to 01.07.2024 but the complaint against him has been filed on 22.08.2024 i.e. after the BNSS had come into force. Therefore the procedure prescribed under the BNSS for taking cognizance of offences and for proceeding further in the matter would hold the field. Therefore the learned Special Judge while passing order dated 30.09.2024 has fallen into grave error in holding that because ECIR was recorded prior to 01.07.2024 therefore the provisions of CrPC would apply to the present case - The learned Special Judge having erroneously applied the provisions of Section 200 of CrPC 1973 to the present case has straightway taken cognizance of the offences and issued process against the petitioner and co-accused without affording them an opportunity of hearing. Since the procedure adopted by the Special Judge is not in accordance with the mandate of Section 223 of the BNSS as such the impugned order dated 30.09.2024 is unsustainable in law. The matter is remanded to the learned Special Judge with a direction to proceed afresh in accordance with the procedure prescribed under Chapter XVII of the BNSS while dealing with the complaint filed by the respondent against the petitioner and the co-accused - Petition allowed by way of remand.

Summary

ISSUES:

Whether, in a complaint pertaining to an offence committed prior to the coming into force of the Bharatiya Nagarik Surakhsha Sanhita, 2023 (BNSS), the procedure is to be governed by the Code of Criminal Procedure, 1973 (CrPC) or by the BNSS.Whether the stage of the proceedings as on the date of commencement of BNSS determines the applicable procedural law.Whether cognizance of an offence under BNSS can be taken without first giving the accused an opportunity of being heard, especially in comparison to the procedure under CrPC.Whether the issuance of process without affording the accused an opportunity of hearing under BNSS is sustainable in law.

RULINGS / HOLDINGS:

The procedure applicable to a complaint filed after the commencement of BNSS, even if the offence was committed prior thereto, is governed by the BNSS and not by the CrPC, 1973.The relevant factor for determining applicability of BNSS or CrPC is the stage of the case immediately prior to 01.07.2024; if proceedings are pending on that date, they continue under CrPC, but any subsequent stage commencing after BNSS's commencement is governed by BNSS.Section 223(1) of BNSS mandates that cognizance of an offence cannot be taken without first giving the accused an opportunity of being heard; this is a procedural requirement distinct from CrPC Section 200.The Special Judge erred by applying CrPC procedure and taking cognizance without affording the accused an opportunity of hearing, rendering the impugned order unsustainable in law.

RATIONALE:

The Court relied primarily on Section 531 of BNSS, which repeals the CrPC but contains a "Repeal and Savings" clause preserving pending appeals, applications, trials, inquiries, or investigations under CrPC if they existed immediately before BNSS came into force.Interpretation of Section 531(2)(a) of BNSS was informed by precedents from various High Courts (Punjab & Haryana, Bombay, Delhi, Kerala, Meghalaya) which uniformly hold that pending proceedings as of BNSS commencement continue under CrPC, but new proceedings after that date fall under BNSS.The Court rejected the contrary view of the Rajasthan High Court that the date of commission of the offence or FIR registration determines applicability, emphasizing instead the procedural stage as the controlling factor.The Court highlighted the procedural distinction in Section 223 of BNSS requiring an opportunity of hearing before cognizance, contrasting it with CrPC Section 200 which lacks such a requirement, thereby underscoring the necessity to apply BNSS procedure strictly for complaints filed post-commencement.The decision represents a doctrinal clarification on transitional application of criminal procedure laws following the enactment of BNSS, aligning procedural governance with the stage of proceedings rather than the date of offence.