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be governed by the Bhartiya Nagarik Suraksha Sanhita 2023 (BNSS 2023), as the Criminal Procedure Code (CrPC) will be repealed by that date.

The single headed bench of Justice Bharat P. Deshpande stated, "Any application filed on or after July 1, 2024, shall be governed by the provisions of BNSS 2023, as by that date, the provisions of the CrPC 1973 stand repealed."

A petition was filed seeking the interpretation of the Bhartiya Nagarik Suraksha Sanhita (BNSS), particularly regarding Section 531's repeal provision. The petitioners, a Private Limited Company, lodged a complaint against the private respondents for alleged offenses 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. 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the petitioners, argued that the Sessions Court lacked jurisdiction to entertain or grant interim bail under the repealed provisions. He highlighted that considering interim bail under the old code would result in legal inconsistencies.

Advocate Parag Rao, representing respondent no 3, argued that the bail application filed during the investigation should be preserved under the repealed code. He contended that Section 531 of BNSS is analogous to Section 484 of the Old Code 1973, meaning pending investigations under the old code are preserved by the saving clause of Section 531 of BNSS. Although Section 482 of BNSS doesn't explicitly mention interim relief, Rao argued that the Court has inherent power to grant it to protect personal liberty under Article 21 of the Constitution of India.

Public Prosecutor Shailendra Bhobe, representing the State, stated that once the power is implied in the Act, the application can be filed under Section 438 of the CrPC or Section 482 of BNSS 2023. He referenced the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, noting the Supreme Court's allowance for anticipatory bail applications under certain circumstances, implying that court power can't be restricted unless clearly stated by the Legislature.

The court noted that Section 531 of BNSS 2023 indicates investigations pending before July 1, 2024, should continue under CrPC. The FIR in this case was lodged on June 14, 2024, making the investigation subject to CrPC. The court reiterated that procedural statutes like BNSS 2023 should not apply retrospectively to pending investigations. Thus, the ongoing investigation must continue under CrPC.

The court held that applications filed by Respondent/Accused persons on July 6, 2024, should be governed by Section 482 of BNSS, not Section 438 of CrPC. The court also highlighted that BNSS must align with Article 21 of the Constitution, which guarantees personal liberty, thereby allowing for ad interim bail as an inherent power of the Court.

Accordingly, the court ruled that while the investigation into economic offences would continue under CrPC, 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)