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2024 (8) TMI 1535 - HC - Indian LawsRequirement to register FIR under Bharatiya Nyaya Sanhita (BNS) - Requiremnet to follow guidelines under Section 41-A Cr.P.C. for offences punishable with imprisonment up to seven years - 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.? - HELD THAT - From the perusal of Section 6 of the General Clauses Act it appears that the repeal of Cr.P.C. shall not affect any investigation legal proceeding or remedy in respect of any liability penalty or punishment accrued or incurred under the repealed Act and such investigation legal proceeding or remedy will continue under the repealed Act. It is also clear from Section-6 of the General Clauses Act the repeal of I.P.C. or Cr.P.C. will not affect any right liability accrued or incurred under the repealed Act. Therefore despite repealing of IPC and Cr.P.C. liability to get punishment under IPC will continue and remedy like an appeal under Cr.P.C. will remain as it is but the forum of appeal being procedural in nature will be as per the B.N.S.S. In the case of Hitendra Vishnu Thakur Others Vs. State of Maharashtra Others 1994 (7) TMI 343 - SUPREME COURT the Hon ble Supreme Court considered the effect of repealed provision by way of amendment in pending cases and summarised the law relating to the effect of the amendment of procedural and substantive law. Hon ble Supreme Court in the case of Hitendra Vishnu Thakur 1994 (7) TMI 343 - SUPREME COURT observed that while right to forum and limitation is procedural in nature while right of appeal or right of action is substantive in nature and further observed that litigants have a vested right in substantive law but no such right exists in procedural law. Similarly in the case of Neena Aneja Another Vs. Jai Prakash Associates Ltd. 2021 (9) TMI 1155 - SUPREME COURT Hon ble Supreme Court again observed that the amendment on the matter of procedural law will be retrospective unless a contrary intention emerges from the statute. Thus it is clear that if any offence is committed prior to the enforcement of new criminal laws then if the F.I.R. is registered after the enforcement of new criminal laws then the same will be registered under the provision of I.P.C. in view of the Article 20 of the Constitution of India but the procedure for the investigation will be as per the BNSS. Similarly in case the offence is committed after the enforcement of new criminal laws and thereafter the F.I.R. is registered then the investigation would be conducted as per the BNSS. However in case the offence is committed prior to the enforcement of new criminal laws and F.I.R. is also registered prior to the enforcement of new criminal laws then the procedure of investigation would be as per the Cr.P.C. in view of Section 531(2)(a) of the BNSS. Therefore the procedure of investigation provided by the circular dated 7.4.2024 of the Police Technical Services Headquarter U.P. is absolutely correct. It has been pointed out that in view of the statement of the victim recorded under Section 164 CrPC Section 376 (2)(n) has been deleted and all other offences are punishable with imprisonment upto seven years - Although the prayer for quashing of FIR has been made but without insisting on the same only submission is that all alleged offences are punishable with imprisonment upto seven years therefore the police authorities are bound to follow the procedure laid down under Section 41-A Cr.P.C. The petitioners have been wrongly implicated and should not be arrested. Conclusion - The FIR should be registered under the IPC but the investigation should follow the BNSS. Additionally the guidelines under Section 41-A Cr.P.C. must be followed for offences punishable with imprisonment up to seven years. Petition disposed off.
ISSUES PRESENTED and CONSIDERED
The core legal issues considered in this judgment are: 1. Whether the First Information Report (FIR) for an offence committed before the enforcement of the Bharatiya Nyaya Sanhita (BNS) and Bharatiya Nagarik Suraksha Sanhita (BNSS) should be registered under the Indian Penal Code (IPC) or the BNS. 2. What procedural framework should be followed for the investigation of offences committed before the enforcement of the BNS and BNSS but registered after their commencement? 3. The applicability of guidelines under Section 41-A Cr.P.C. in cases where the offences alleged are punishable with imprisonment up to seven years. ISSUE-WISE DETAILED ANALYSIS 1. Registration of FIR under IPC or BNS - Relevant Legal Framework and Precedents: The judgment refers to Article 20 of the Constitution of India, which protects against ex post facto laws, ensuring that no person is convicted of an offence except for a violation of the law in force at the time of the commission of the act. - Court's Interpretation and Reasoning: The Court interprets that if an offence is committed prior to the enforcement of the new criminal laws, the FIR should be registered under the IPC, as it was the substantive law in force at the time of the offence. - Conclusions: The FIR for offences committed before the enforcement of the BNS should be registered under the IPC, as per Article 20 of the Constitution. 2. Procedural Framework for Investigation - Relevant Legal Framework and Precedents: The Court examines Section 531 of the BNSS and Section 6 of the General Clauses Act, 1897, which address the effect of repealing laws and the continuation of legal proceedings. - Court's Interpretation and Reasoning: The Court reasons that while the substantive law applicable is the IPC, the procedural law for investigations should follow the BNSS if the FIR is registered after the commencement of the BNS and BNSS. This is supported by precedents from the Supreme Court and other High Courts, which distinguish between substantive and procedural laws. - Conclusions: Investigations for offences committed before the new laws but registered after their commencement should follow the procedural framework of the BNSS. 3. Applicability of Guidelines under Section 41-A Cr.P.C. - Relevant Legal Framework and Precedents: The judgment references the Supreme Court's guidelines in Arnesh Kumar v. State of Bihar, which mandate that police authorities should not arrest individuals for offences punishable with imprisonment up to seven years without proper justification. - Court's Interpretation and Reasoning: The Court agrees with the petitioners' argument that the police should follow the guidelines under Section 41-A Cr.P.C., as the alleged offences are punishable with imprisonment up to seven years. - Conclusions: The Court emphasizes the need for adherence to the guidelines in Arnesh Kumar v. State of Bihar, ensuring that arrests are not made without due process. SIGNIFICANT HOLDINGS - Core Principles Established: The judgment establishes that the substantive law applicable at the time of the offence governs the registration of the FIR, while the procedural law in effect at the time of registration governs the investigation. - Final Determinations on Each Issue: The Court determines that the FIR should be registered under the IPC, but the investigation should follow the BNSS. Additionally, the guidelines under Section 41-A Cr.P.C. must be followed for offences punishable with imprisonment up to seven years. Additional Observations The Court directs the Registrar (Compliance) to send a copy of this order to the Director General of Police, Uttar Pradesh, for circulation among all District Police Chiefs to ensure that investigating officers are sensitized to the procedural requirements outlined in the judgment.
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