Trial/Investigation For FIR Lodged Before Enforcement Of New Criminal Laws To Be Governed By CrPC, Not BNSS: Rajasthan HC

While ending all the uncertainty looming over the application of the new laws, the Rajasthan High Court at Jodhpur in a most learned, laudable, landmark, logical and latest judgment titled Krishna Joshi vs State of Rajasthan & Ors in S.B. Criminal Misc(Pet.) No. 4285/2024 and cited in 2024 LiveLaw (Raj) 155 that was finally pronounced on 9.7.2024 has explicitly ruled that where an FIR was registered under Section 154 of CrPC prior to July 1, 2023, it would amount to a pending enquiry/investigation within Section 531(2)(a) of Bharatiya Nagarik Suraksha Sanhita, 2023, (“BNSS”). Hence, the entire subsequent investigation procedure and even the trial procedure in relation to that FIR shall be governed by CrPC and not BNSS. We need to note here that the Single Judge Bench comprising of Hon’ble Mr Justice Arun Monga was addressing a petition that had been filed on July 1, 2024 under BNSS in which judicial oversight was sought into the investigation of FIR.

It must be also noted that the Rajasthan High Court observed that earlier the petition was filed under CrPC but on an objection raised by the Registry of the Court, it was converted into one under Section 528 of BNSS. While most decisively overruling the specious objection that was raised by the Registry, the High Court mandated clearly leaving no room for doubt whatsoever that what needed to be considered was the date of filing the FIR and the law applicable on that date. In the present case, since the FIR was registered prior to the application of BNSS, it would be governed under CrPC.

Interestingly enough, the Bench clearly held that, “Rights of the accused in an FIR and/or under trials and/or convicts under appeal and the legal expectations formed under the old laws have been and are required to be protected. Applicability of old code on pending matters prevents any retrospective adverse effects that might arise from the sudden application of new legal provisions to ongoing cases.” We thus see in this background that the Rajasthan High Court invoked Section 531(2)(a) of BNSS to treat the petition as under CrPC. Very rightly so!

At the very outset, this remarkable, robust, rational and recent judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice Arun Monga of Rajasthan High Court at Jodhpur sets the ball in motion by first and foremost putting forth in para 1 that, “Head Note of the petition herein reads as under:

“S.B. CRIMINAL MISC. PETITION UNDER SECTION 528 BNSS FOR FAIR, IMPARTIAL AND EFFECTIVE INVESTIGATION IN FIR NO.0068/2024 DATED 02.02.2024 POLICE STATION NOKHA DISTRICT BIKANER FOR THE OFFENCE UNDER SECTION 420, 120-B IPC.””

As we see, the Bench observes in para 2 that, “A perusal of the above clearly reveals that the FIR was registered on 02.02.2024 i.e. prior to coming into force of The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) with effect from 01.07.2024.”

Do note, the Bench notes in para 3 that, “In the premise, in view of the savings clause contained under section 531(2)(a) of the BNSS, the petition ought to have been filed under the old corresponding Section 482 of Criminal Procedure Code, 1973, (Cr.P.C.), and not under section 528 of the new Code (BNSS).”

Truly speaking, the Bench specifies in para 5 that, “We are concerned here only with the savings clause contained in sub section 531(2)(a), ibid. A perusal thereof clearly reflect that, not only the pending trial/appeal, but even an inquiry and/or investigation, which is underway prior to coming into force of the BNSS, shall have to be dealt with in accordance with the provisions of Cr.P.C., 1973 and not under the BNSS, 2023.”

Most significantly, the Bench while totally clearing the air on this propounds in para 6 holding that, “The reasons for the same are not far too seek. What has to be been seen simply is the date of registration of the FIR and the law as applicable as on the date of such registration. Trite it may sound, but settled position is that, the moment an FIR is registered under section 154 of the Cr.P.C., criminal investigative/administrative machinery is set in motion under Chapter XII thereof. Thus, if an FIR is registered prior to 01.07.2023 under the Cr.P.C., it would amount to a pending enquiry/investigation within the meaning of section 531(2)(a) of BNSS. The entire subsequent investigation procedure and even the trial procedure qua such an FIR shall then be governed by Cr.P.C. and not BNSS.

6.1. Let us analyze it deeper by dwelling further on it. Legislative processes often involve simultaneous twin actions i.e. not only the creation of new law, but also the repeal of existing one at the same time. Section 531 of the new legislative code, for short referred to as “BNSS,” envisages the repeal of the Code of Criminal Procedure, 1973, and it also incorporates crucial savings provision which is so essential to cater to the transitional period between the old code and the new code. No doubt, section 531 of BNSS effectively removes old code from the statute books, however, at the same time it is a repeal subject to the savings clause and not a repeal in toto. A certain transitional period has been provided, and rightly so. For, a forthwith repeal in totality shall lead to legal uncertainties, particularly, concerning ongoing legal proceedings that commenced under the old law. To mitigate such uncertainties, saving provision has been introduced. Saving clause ensures that the repeal of an old law does not adversely affect any legal proceedings or rights that were established under the old code. The saving provision facilitates a smooth transition from the old legal framework to the new one. It provides a buffer period during which the judicial and legal systems can adjust to the changes introduced by the new Sanhita.

6.2. The saving clause in Section 531(2) is critical for ensuring legal continuity and stability. It stipulates that notwithstanding the repeal, any appeal, application, trial, inquiry, or investigation pending before the new Sanhita comes into force will continue to be governed by the old Code of Criminal Procedure, 1973. This shall essentially mean that all ongoing proceedings, which have already been kicked in under the old code, will not be disrupted by the new code i.e. BNSS. This is vital for maintaining the integrity of the judicial process and ensuring that justice is neither delayed nor denied due to procedural changes, should an affected party feel so. Rights of the accused in an FIR and/or under trials and/or convicts under appeal and the legal expectations formed under the old law have been and are required to be protected. Applicability of old code on pending matters prevents any retrospective adverse effects that might arise from the sudden application of new legal provisions to ongoing cases.

6.3. Furthermore, vide saving clause, the litigants already involved in legal proceedings initiated under the old code have been thus assured that their cases will be resolved under the legal framework they were initially engaged with. Saving clause thus ensures that the repeal of old code does not create a legal vacuum, leaving ongoing proceedings in limbo and, to avoid such a scenario the old legal process ought to continue seamlessly.

6.4. Speaking of judiciary, vide the savings clause which envisages dual approach i.e. ongoing cases to be disposed of under the old law and the ones registered after 01.07.2023 under the new code, even the courts can manage their workload more efficiently. Judges and lawyers familiar with the old code can continue their work without needing to adapt immediately to the new provisions. Section 531 of the new Sanhita, while repealing of the Code of Criminal Procedure, 1973, simultaneously thus safeguards ongoing legal proceedings through its savings clause.”

Equally significant is what the Bench specifies in para 7 that, “No doubt, procedural laws can be applied retrospectively, subject of course to the judicial review, but in view of Section 531(2)(a) of the BNSS herein, it is amply clear that all the pending matters prior to coming into force of BNSS, 2023, as specifically mentioned in Section 531(2)(a) of BNSS shall continue to be governed by the old Code i.e. Cr.P.C., 1973. Therefore, the petition in hand also to has to be treated under Section 482 Cr.P.C.”

Be it noted, the Bench notes in para 8 that, “It so transpires that learned counsel for the petitioner had though rightly filed the instant petition initially under Section 482 Cr.P.C., but on an objection raised by Registry of this Court, it was converted into one under section 528 of BNSS.”

In the fitness of things, the Bench quite rightly observes in para 9 that, “In view of the discussion in the preceding part hereinabove, the objection raised by the Registry is overruled. The present petition is resultantly treated as one under Section 482 Cr.P.C.”

As it turned out, the Bench enunciates in para 10 that, “Adverting now to merits of the case in hand. Dissatisfied with the progress and manner of the investigation, the petitioner seeks issuance of directions to the officials respondents to conduct a fair inquiry/investigation in the FIR No. 0068/2024 dated 02.02.2024, for alleged offences under Sections 420 read with 120-B of IPC, registered at Police Station Nokha, District Bikaner.”

To put things in perspective, the Bench envisages in para 11 that, “The relevant facts of the case, briefly speaking, are as follows: Petitioner/complainant reported to the SHO P.S. Nokha District Bikaner that his late father had purchased agricultural land in question from one Ranchhor Ram through a registered sale deed dated 08.12.1961. However, the accused Sita Ram/non owner illegally initiated proceedings qua same land before the Municipal Board under section 300(1) of the Municipal Board Act, 1959. Said proceedings were dropped/dismissed on 19.04.2007. Thereafter, Sita Ram filed an appeal before the Addl. Divisional Commissioner, which too was dismissed on 20.09.2007. Sita Ram still did not give up, and filed a writ petition no. 8572/2009 before this Court which was also dismissed vide an order dated 18.02.2023.

11.1 After dismissal of statutory appeal, supra, the Municipal Board vide an order dated 07.03.2017 issued notice to Sita Ram for removing the encroachment. Against the said notice, two civil writ petitions bearing CWP No. 3376/2017 and 3665/2017 are stated to be pending before High Court of Rajasthan and a Court order to maintain status has also been passed therein.

11.2. Petitioner is aggrieved that despite his FIR, the investigating officer has not conducted the investigation to its logical conclusion in favor of the petitioner and has not even so far arrested the accused. Hence the instant petition.”

Needless to say, the Bench states in para 12 that, “In light of the aforesaid narrative pleaded in the petition, I have heard the learned counsel for the petitioner.”

Further, the Bench mentions in para 13 that, “She argues that the investigating agency is not proceeding in a fair and just manner and is intentionally stalling the investigation after registration of FIR.”

It is worth noting that the Bench notes in para 14 that, “I am unable to agree with the counsel for the petitioner. The investigation is still underway and, it so appears that owing to the ongoing civil litigation the investigating officer is treading cautiously. In my opinion, rightly so. Liberty of a citizen, who is an accused, cannot be curtailed mechanically without being certain about the criminal culpability attributed to him. Be that as it may, even otherwise, the petitioner ought to have first availed of other available legal remedies, before directly approaching this Court. Ordinarily, in case of grievance arising from unfair or improper investigation of an FIR, the aggrieved person can seek recourse for redressal thereof by approaching a superior police officer as per Section 36 of Cr.P.C. If the grievance still remains unmitigated, one can then approach a Magistrate of competent jurisdiction under Section 156(3) of Cr.P.C., who can order a further investigation and submission of a report by the police. Additionally, an aggrieved party can choose to file a criminal complaint before the competent court, if so advised.”

Resultantly, the Bench then directs in para 15 that, “In the premise, instant petition is disposed of with liberty to approach the appropriate forum, as aforesaid, if so advised.”

Finally, the Bench then concludes by holding in para 16 that, “Pending application, if any, shall also stand disposed of.”

In sum, we thus see that the Rajasthan High Court has made it indubitably clear that trial/investigation for FIR lodged before enforcement of new laws to be governed by CrPC and not BNSS. I think it is not just the lawyers but even the Courts including the Trial Courts and the High Courts which must pay heed to what the Rajasthan High Court has held in this leading case so elegantly, eloquently and effectively leaving no room of any doubt on this key issue anymore now! There can be just no denying or disputing it!

Sanjeev Sirohi, Advocate,

s/o Col (Retd) BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.