Applicability of BNSS or CrPC procedure in pre-commencement offences where post-commencement complaint filed; remand for BNSS procedure.

Resolution addresses which procedural code governs criminal proceedings where offences occurred before a new criminal statute but subsequent stages occurred after its commencement. The controlling criterion is the stage of proceedings existing immediately prior to commencement: if investigation only had commenced, investigation and conclusion remain under the prior procedure; if the case was at inquiry, trial, appeal, bail application, or complaint stage, those stages proceed under the prior procedure. Once a stage completes after commencement, subsequent stages are governed by the new statute. Applied to the facts, the complaint filed after commencement requires cognizance and further proceedings under the new procedure, prompting remand for fresh proceedings under Chapter XVII of the new law.

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ISSUES:

Whether, in a complaint pertaining to an offence committed prior to the coming into force of the Bharatiya Nagarik Surakhsha Sanhita, 2023 (BNSS), the procedure is to be governed by the Code of Criminal Procedure, 1973 (CrPC) or by the BNSS.Whether the stage of the proceedings as on the date of commencement of BNSS determines the applicable procedural law.Whether cognizance of an offence under BNSS can be taken without first giving the accused an opportunity of being heard, especially in comparison to the procedure under CrPC.Whether the issuance of process without affording the accused an opportunity of hearing under BNSS is sustainable in law.

RULINGS / HOLDINGS:

The procedure applicable to a complaint filed after the commencement of BNSS, even if the offence was committed prior thereto, is governed by the BNSS and not by the CrPC, 1973.The relevant factor for determining applicability of BNSS or CrPC is the stage of the case immediately prior to 01.07.2024; if proceedings are pending on that date, they continue under CrPC, but any subsequent stage commencing after BNSS's commencement is governed by BNSS.Section 223(1) of BNSS mandates that cognizance of an offence cannot be taken without first giving the accused an opportunity of being heard; this is a procedural requirement distinct from CrPC Section 200.The Special Judge erred by applying CrPC procedure and taking cognizance without affording the accused an opportunity of hearing, rendering the impugned order unsustainable in law.

RATIONALE:

The Court relied primarily on Section 531 of BNSS, which repeals the CrPC but contains a "Repeal and Savings" clause preserving pending appeals, applications, trials, inquiries, or investigations under CrPC if they existed immediately before BNSS came into force.Interpretation of Section 531(2)(a) of BNSS was informed by precedents from various High Courts (Punjab & Haryana, Bombay, Delhi, Kerala, Meghalaya) which uniformly hold that pending proceedings as of BNSS commencement continue under CrPC, but new proceedings after that date fall under BNSS.The Court rejected the contrary view of the Rajasthan High Court that the date of commission of the offence or FIR registration determines applicability, emphasizing instead the procedural stage as the controlling factor.The Court highlighted the procedural distinction in Section 223 of BNSS requiring an opportunity of hearing before cognizance, contrasting it with CrPC Section 200 which lacks such a requirement, thereby underscoring the necessity to apply BNSS procedure strictly for complaints filed post-commencement.The decision represents a doctrinal clarification on transitional application of criminal procedure laws following the enactment of BNSS, aligning procedural governance with the stage of proceedings rather than the date of offence.

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