S. 531: Repeal and savings (1) The Code of Criminal Procedure, 1973 (2 of 1974) is hereby repealed: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 (2 of 1974), 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 been published, issued, conferred, specified, defined, passed or made under the corresponding provisions of this Sanhita;
(c) any sanction accorded or consent given under the said Code in pursuance of which no proceeding was commenced under that Code, shall be deemed to have been accorded or given under the corresponding provisions of this Sanhita and proceedings may be commenced under this Sanhita in pursuance of such sanction or consent.
(3) Where the period specified for an application or other proceeding under the said Code had expired on or before the commencement of this Sanhita, nothing in this Sanhita shall be construed as enabling any such application to be made or proceeding to be commenced under this Sanhita by reason only of the fact that a longer period therefor is specified by this Sanhita or provisions are made in this Sanhita for the extension of time.
My quote
“My senior always says that, read the section as it is, understand the section as it is, and express the section as it is. If you still have doubts search for other options”.
Introduction
Section 531 BNSS 2023 deals with the continuation of proceedings only such as trial, application, inquiry, appeal e.t.c and does not speak of retrospective procedure. It is to be noted that the section has separated the terms appeal, application, trial, inquiry or investigation.
The terms ‘trial, inquiry, and application’ were not explained under the New or Old Procedural Code explicitly. However, certain procedures used for inquiries and trials are commonly listed under Chapter XXVI BNSS “General Provisions as to inquiries and trials”. Therefore, it is clear that this chapter is separated from the chapters that explain procedures for trials or inquiries. As a result, the applications for the absence of accused, recall, and cancellation of warrant (separate chapter) during the continuous trial would be made only under the BNSS 2023 and not under Cr.P.C., 1973.
My reasonings
For example, a petition filed under section 348 BNSS 2023 (old section 311 Cr.P.C) to recall a witness is an ‘application’ as per the connotation of section 531(2)(a) BNSS 2023 and not within the context of the term ‘trial’ and is not a continuous one. Therefore the petition filed u/s 348 BNSS 2023 to recall a witness who was examined before the BNSS 2023 comes into force shall be filed only as per the new section drafted under the BNSS 2023 and not as per the Cr.P.C 1973.
Now, what is the term ‘held or made’ engrafted under section 531 BNSS 2023? This term is also for pending applications only. That means if there is an application filed before the BNSS comes into force held or is returned or directed by the Higher forum to decide again, then it is to be made as per the Cr.P.C and not under BNSS 2023.
Logical Examples (not exhaustive)
(1) If a complaint is filed for hurt and the court holds (shall be held) the complaint for taking sworn but in the meantime the BNSS 2023 comes into force, then the court can continue the complaint held by it as per the Cr.P.C.
(2) If a complaint is filed for hurt and the Court finds a defect in the cause title of the complaint presented and returned for ‘amendment’ of cause title. Then, the ‘re-presentation’ of the complaint already filed to be made again after the New code came into force is a continuous one or not is a question of law to be decided by the court.
(3) If a complaint for N.I act is being filed before the cause of action arises (before the expiry of 15 days of demand notice) then the court can return the pre-mature complaint and make (shall be made) the complainant to file again. Here filing of the complaint again/afresh shall be under the N.I Act read with BNSS 2023 only inasmuch as it does not come within the meaning of ‘re-presentation’.
Right! I have heard arguments advanced as such the applications, such as absence petition is ‘part and parcel’ of the trial and hence have to be filed only under the Old Code, although this argument finds attractive indeed wrong and misconstrued as per section 531 (1) BNSS. How?
Even accepting the argument i.e., the absence application must be filed under the Cr.P.C for a continuous trial since that application is ‘part and parcel’ of the trial would not in my opinion a correct view in the eye of section 531(2)(a) BNSS 2023. If anyone has a contrasting opinion, then they must explain why the word ‘application’ was drafted into section 531 (2) (a) BNSS 2023 separately instead of ‘applications part and parcel’ of the trial. Right! coming back to the square one, if a trial is continuing based on the Cr.P.C 1973, and the accused is absent to attend the trial, how come it is possible to file an application from the Cr.P.C that is repealed as per section 531(1) BNSS? as this section does not speak about retrospective effect. So the advocate has no option except to file the absence application only from the existing law i.e., BNSS 2023.
Now, we see this in another angle, suppose we may say for instance, an application was filed under section 311 CrPC before July 1st 2024 then the new Act (BNSS) came into force and repealed the entire Cr.P.C 1973 without giving any option/provision for ‘applications’ to continue as is in section 531 BNSS 2023; then the fate of the application filed u/s 311 Cr.P.C has lost its value, and once again the court has to decide the recall application u/s 348 BNSS freshly which drags on the pending trial. The very object of drafting section 531 BNSS 2023 is for speedy trial and procedures.
The word ‘part and parcel’ denotes retrospective effect. It means even though the courts are empowered to accept the applications that are filed as per the New code (BNSS 2023), but for continuous trial (separated from the application) the courts have to accept the applications based on the retrospective effect i.e., filed under the Cr.P.C., 1973. Why? In a common view, as I already said, the word ‘part and parcel’ though found attractive is indeed wrong and misconstrued for the reason the word ‘application’ is part and parcel of section 531 (1)(a) BNSS 2023 and not of the term ‘trial’.
In the aforesaid context if we read the word ‘application’ one may easily understand that it is used only for the continuous proceedings for deciding the applications made under the Cr.P.C. Therefore, any fresh application even the trial that is being continued following the procedures contemplated as per Cr.P.C 1973., shall be filed under the BNSS 2023 only and not under the Cr.P.C if there is no continuity.
Again we shall not forget that section 531 BNSS 2023 is intended to be drafted to decide the applications which were already pending. In simple words section 531 BNSS 2023 deals with ‘doctrine of continuity of law’ and not of ‘doctrine of retrospective’.
In a layman’s view, if the Law separated two terms i.e., ‘application’ and ‘trial’, why would we spend our super-intelligence to connect those words, after all these sections are created by the hand made of justice?
[OK! Where is the necessary of debate required is; suppose in a Trial of warrant cases on police report or Sessions trial when an inquiry is being continued as per the Old code then the Judge wants to discharge an accused then he may do in view of section 239 or section 227 Cr.P.C 1973., But when it comes to file a discharge petition by the accused then the word ‘application’ becomes an obstacle].
Yours,
Ramprakash Rajagopal
Advocate. Tamilnaldu
(My sincere thanks to My colleague Mr. Ravindran Ragunathan advocate, Chennai)
