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Synopsis

The Bombay High Court, recently, held that an application filed on or after July 1, 2024, will be governed by the Bhartiya Nagarik Suraksha Sanhita 2023 (BNSS 2023) as by that date the CrPC stands repealed. 

The bench of Justice Bharat P. Deshpande held “Any application filed as on 01.07.2024 or thereafter shall be governed by the provisions of BNSS 2023 for the simple reason that by that date, the provisions of Cr.P.C. 1973 stands repealed”. 

A petition was filed seeking the interpretation of BNSS, particularly Section 531's repeal provision, which was under consideration. The Petitioners, a Private Limited Company, filed a complaint against the Private Respondents for alleged offences under Sections 409, 420, 477A read with 120-B of the Indian Penal Code (IPC), leading to a First Information Report registered by the Economic Offences Cell in Goa.

Respondent No. 3 applied for anticipatory bail under Section 438 of the Criminal Procedure Code, 1973, in the Sessions Court, Panaji. The court granted ad-interim bail, however, the Petitioners opposed the bail application, challenging the court's territorial jurisdiction. However, the North Goa Sessions Court ruled it lacked jurisdiction but granted Respondent No. 3 72 hours of protection.

Respondent No. 3 then applied for anticipatory bail in the Sessions Court, South Goa. The court noted the existing protection but issued no further orders. The Petitioners intervened again, but, the court granted interim bail to Respondent No. 3, which the Petitioners challenged.

Advocate Rizwan Merchant, representing the Petitioners argued that the Sessions Court lacked jurisdiction to entertain or grant interim bail under the repealed provisions, highlighting that interim bail consideration under the old code would result in legal inconsistencies.

Advocate Parag Rao, representing respondent no 3, contended that the filing of a bail application occurred during the investigation. Once the investigation is preserved under the repealed code, an application filed under Section 438 of the Code of 1973 is also preserved. He argued that the provisions of Section 531 of BNSS are analogous to the Old Code 1973, specifically Section 484 of the Old Code, and therefore, the provisions should be governed when a specific saving clause exists. He contended that the pending investigation under the old code of 1973 is preserved under the saving clause of Section 531 of BNSS. 

Advocate Rao argued that although Section 482 of BNSS does not explicitly mention the power to grant interim relief, there is no restriction on the Court. He contended that the interpretation should advance justice rather than obstruct the provisions. He emphasized that personal liberty, as provided under Article 21 of the Constitution of India, cannot be curtailed except by the procedure established by law. When BNSS provides the power to grant bail in anticipation of arrest, this power must be interpreted to include the inherent power to grant interim relief, otherwise, the application would become infructuous if the accused or applicant is arrested before the final decision on the application.

Public Prosecutor Shailendra Bhobe, representing the State, argued that once such power is implied in the Act, it becomes irrelevant whether the application is filed under Section 438 of the CrPC or Section 482 of BNSS 2023. Additionally, Mr. Bhobe referenced the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, which explicitly prohibits anticipatory bail applications. Nevertheless, he noted that the Supreme Court had acknowledged that, under specific circumstances, the Sessions Court or the High Court could entertain such applications. Therefore, he contended that the power of the court could not be restricted unless explicitly stated by the Legislature.

The court noted that a straightforward interpretation of the saving clause in Subsection 2(a) of Section 531 of BNSS 2023 shows that investigations pending before the BNSS's commencement on July 1 2024 must be resolved or continued as per CrPC, as if BNSS had not taken effect. This preservation was affirmed in various cases. The FIR in this matter was lodged on June 14, 2024, before BNSS came into force, making the investigation subject to CrPC. The court reiterated the Apex Court’s judgment that procedural statutes like BNSS 2023 should not apply retrospectively to pending investigations. Consequently, the investigation related to the case, which began before BNSS 2023 took effect, must continue under CrPC.

Furthermore, the court observed that the provisions of Section 531 of the BNSS and the discussion concerning the repeal and saving clause indicated that, effective from July 1, 2024, the provisions of the CrPC, were repealed. The saving clause only preserved any appeal, application, trial, inquiry, or investigation that was pending. Consequently, any application filed on or after July 1, 2024, was governed by the BNSS 2023, given that by that date, the provisions of the CrPC had been repealed.

The court held that since Section 438 of the CrPC and Section 482 of BNSS are materially similar, the provisions of repeal apply to the current matter. Accordingly, applications filed by Respondent/Accused persons on July 6, 2024, shall be governed by Section 482 of BNSS and not by Section 438 of CrPC. 

The court further examined whether the court, while acting under section 482 of BNSS possessed the power to grant ad interim bail, highlighted that the BNSS must align with fundamental rights enshrined in Article 21 of the Constitution of India, which guarantees personal liberty. Consequently, considerations of arrest and bail must adhere to this constitutional provision.

The court further outlined that although anticipatory bail was first introduced in Section 438, the fundamental right to bail is well-established and does not require further discussion, the court added. Ad interim relief is thus an inherent power of the Court, contingent upon subjective satisfaction and specific conditions, aligning with Article 21 of the Constitution. 

Accordingly, the court held that the investigation into economic offences would continue under CrPC. However, the bail application filed by respondent no 3 would be governed by BNSS, 2023. 

Case Title: Chowgule and Company Pvt. Ltd. v The Public Prosecutor (2024:BHC-GOA:1244)