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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 ..... ny right, liability accrued or incurred under the repealed Act.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 State of Maharashtra & Others [1994 (7) TMI 343 - SUPREME COURT], the Hon'ble Supreme Court considered the effect of repealed provision by way of amendment in pending cases and summarised the law relating to the effect of the amendment of procedural and substantive law.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 ret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The present writ petition has been preferred with the prayer to quash the impugned First Information Report dated 3.7.2024, registered as Case Crime no. 0271 of 2024, under Sections 376 (2)(n), 354, 147, 452, 504, 506 IPC and Section 4 POCSO Act, PS Maudaha, District Hamirpur, and for a direction to the respondents not to arrest the petitioners in pursuance of impugned First Information Report. 4. On 23.7.2024 the following 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2352;्थिक अपराध शाखा, रेलवे, एस०टी०एफ०, उ०प्र० । 3. समस्त पुलिस आयुक्त- उत्तर प्रदेश। 4. पुलिस महानिरीक्षक- ए०टी०एस० ए०एन०टी०एफ०, उ०प्र०। 5. समस्त जनपदीय वरिष्ठ पुलिस अधीक्षक/ पुलिस अधीक्षक, उत्तर प्रदेश। 6. अपर पुल ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;, थाना स्तर पर प्रपत्र दर्ज करते समय चयन किये जाने वाले अधिनियम के सम्बन्ध 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;श। 6. However, learned counsel for the petitioners has contended that the procedure mentioned in the above noted circular dated 4.7.2024 is incorrect for the offence occurred prior to the enforcement of the Bharatiya Nyaya Sanhita, 2023, because for this offence the F.I.R. is registered after enforcement of the Bharatiya Nyaya Sanhita, 2023 (hereinafter referred to as "BNS") as well as the Bharatiya Nagarik 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 sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spect of conviction for offences.- (1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the Act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. (2) No person shall be prosecuted and punished for the same offence more than once. (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vishnu Thakur (supra) is being quoted as under: "26. The Designated Court has held that the amendment would operate retrospectively and would apply to the pending cases in which investigation was not complete on the date on which the Amendment Act came into force and the challan had not till then been filed in the court. From the law settled by this Court in various cases the illustrative though not exhaustive principles 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 su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etition can be filed under Code of Criminal Procedure, 1973 on or after 01.07.2024. 2. The provisions of Section 4 and Section 531 of BNSS, 2023 are mandatory in nature as a result whereof any appeal/application/revision/petition/trial/inquiry or investigation pending before 01.07.2024 are required to be disposed of continued, held or made (as the case may be) in accordance with the provision of Code of Criminal Procedure, 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y BNS and BNSS respectively and same is being mentioned as below: (i) If an FIR is registered on or after 1.7.2024 for the offence committed prior to 1.7.2024, then FIR would be registered under the provisions of IPC but the investigation will continue as per BNSS. (ii) In the pending investigation on 01.07.2024 (on the date of commencement of New Criminal Laws), investigation will continue as per the Cr.P.C. till the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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