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TMI Blog2024 (8) TMI 1535X X X X Extracts X X X X X X X X Extracts X X X X ..... lowing 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... रदेश। 4. पुलिस महानिरीक्षक- ए०टी०एस० ए०एन०टी०एफ०, उ०प्र०। 5. समस्त जनपदीय वरिष्ठ पुलिस अधीक्षक/ पुलिस अधीक्षक, उत्तर प्रदेश। 6. अपर पुलिस अधीक्षक, एस०आई०टी०, उ०प्र०। विषयः- भारतीय न्याय संहिता-2023, भारतीय नागर ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2343; में संशय की सम्भावना हो सकती है। अतः पुलिस महानिदेशक, उ०प्र० महोदय से प्राप्त अनुमोदन के क्रम में आपसे अनुरोध है कि थानों पर दर्ज हो रहे प्रपत्रों के सम्बन्ध में निम्नानुसार अधिनियम का चयन करने हेतु सर्व ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 - (1) The Code of Criminal Procedure, 1973 is hereby repealed.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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (3) No person accused of any offence shall be compelled to be a witness against himself." 9. However, the question arises, what would be the procedure of investigation, if the F.I.R. is registered after the commencement of new criminal laws for the offence committed prior to the enforcement of new criminal laws, as such investigation is not saved by Section 531(2)(a) of the BNSS to be conducted as per Cr.P.C. To decide this issue, it is relevant to consider Section 6 of General Clauses Act which provides effect of repealing of any Central Act or Regulation. Section 6 of General Clause Act, 1897 is being quoted as under; "6. Effect of repeal.- Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not-- (a) revive anything not in force or existing at the time at which the repeal takes effect; or (b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es which emerge with regard to the ambit and scope of an Amending Act and its retrospective operation may be culled out as follows: (i) A statute which affects substantive rights is presumed to be prospective in operation unless made retrospective, either expressly or by necessary intendment, whereas a statute which merely affects procedure, unless such a construction is textually impossible, is presumed to be retrospective in its application, should not be given an extended meaning and should be strictly confined to its clearly defined limits. (ii) Law relating to forum and limitation is procedural in nature, whereas law relating to right of action and right of appeal even though remedial is substantive in nature. (iii) Every litigant has a vested right in substantive law but no such right exists in procedural law. (iv) A procedural statute should not generally speaking be applied retrospectively where the result would be to create new disabilities or obligations or to impose new duties in respect of transactions already accomplished. (v) A statute which not only changes the procedure but also creates new rights and liabilities shall be construed to be prospective in ope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure, 1973. In other words; any appeal/application/revision/petition filed on or after 01.07.2024, is required to be filed/instituted under the provision of BNSS 2023. 3. Any appeal/application/revision/petition filed on or after 01.07.2024 under the provisions of Cr.P.C., 1973 is non-maintainable & hence would deserve dismissal/rejection on this score alone. However, any appeal/application/revision/petition filed upto 30.06.2024 under the provisions of Cr.P.C., 1973 is maintainable in law. To clarify; in case any appeal/application/revision/petition is filed upto 30.06.2024 but there is defect (Registry objections, as referred to in common parlance) and such defect is cured/removed on or after 01.07.2024, such appeal/application/revision/petition shall be deemed to have been validly filed/instituted on or after 01.07.2024 and, therefore, would be non- maintainable. 4. Section 531 of BNSS shall apply to "revision", "petition" as also "petition of complaint" (ordinarily referred to as complaint before Magistrate) with the same vigour as it is statutorily mandated to apply to "appeal/application/trial/inquiry or investigation" in terms of Section 531 of BNSS." 14. From the above- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e cognizance is taken on the police report and if any direction is made for further investigation by the competent Court then same will continue as per the Cr.P.C.; (iii) The cognizance on the pending investigation on or after 01.07.2024 would be taken as per the BNSS and all the subsequent proceeding including enquiry, trial or appeal would be conducted as per the procedure of BNSS. (iv) Section 531(2)(a) of BNSS saved only pending investigation, trial, appeal, application and enquiry, therefore, if any trial, appeal, revision or application is commenced after 01.07.2024, the same will be proceeded as per the procedure of BNSS. (v) The pending trial on 01.07.2024, if concluded on or after 01.07.2024 then appeal or revision against the judgement passed in such a trial will be as per the BNSS. However, if any application is filed in appeal, which was pending on 01.07.2024 then the procedure of Cr.P.C. will apply. (vi) If the criminal proceeding or chargesheet is challenged before the High Court on or after 01.07.2024, where the investigation was conducted as per Cr.P.C. then same will be filed u/s 528 of BNSS not u/s 482 Cr.P.C. 17. Coming back to the facts of the case, it ..... X X X X Extracts X X X X X X X X Extracts X X X X
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