From July 1, 2024, the Indian Penal Code, 1860 (IPC), Code of Criminal Procedure, 1973 (CrPC) and Indian Evidence Act, 1872 have been replaced by the Bharatiya Nyaya Sanhita, 2023 (BNS), Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) and Bhartiya Sakshya Adhiniyam, 2023 (BSA), respectively.

Expectedly, a few questions have emerged on the applicability and overlap of the erstwhile and new criminal law regimes. Can the procedure prescribed under BNSS apply in respect of trial of offences committed under IPC? What determines the applicability of BNS/IPC— the date of offence or date of registration of FIR? What happens to proceedings which were pending as on July 1, 2024 (i.e. the date on which the new criminal laws came into force); do they continue under CrPC or BNSS?

These are but a few questions that are puzzling lay persons and seasoned lawyers alike. However, judgments of various High Courts have begun to straighten knots of confusion — as illustrated by a recent judgment dated August 6 of the Allahabad High Court in Deepu and Ors v State of Uttar Pradesh and Ors. The issue raised therein was that BNS, not IPC should apply as the FIR was registered on July 3, 2024 under BNSS.

In deciding the issue, the High Court provided considerable clarity on the interplay between IPC, CrPC, BNS and BNSS.

Substantive vs procedural

At its root, the applicability of the erstwhile or new criminal laws is determined by what parts are “substantive law” and what is “procedural law”. Benefits conferred by substantive law (for eg. right to a lesser punishment under IPC) can be claimed as a vested right and cannot be undone simply on repeal of the substantive law.

This principle is also found in Section 358 of the BNS, which repeals IPC but also saves “any right, privilege, obligation or liability acquired, accrued or incurred under the Code so repealed”. Pertinently, this is also in keeping with Article 20 of the Constitution, which holds that criminal liability cannot be retrospective nor exceed the one in force on the date of the offence. Hence, the BNS could not apply to an offence which was committed prior to BNS coming into force i.e. July 1, 2024.

It is also important to note that the procedure concerning the substantive right (for eg. the court/forum where an appeal can be filed) cannot be claimed as a vested right. In fact, Section 531 of the BNSS which repeals the CrPC, saves any “appeal, application, trial, inquiry or investigation” which is pending under CrPC as on July 1, 2024 — only till its conclusion. Any subsequent appeal/revision/proceeding etc, after July 1, 2024 can only be under BNSS and not CrPC.

Hence, the question of applicability of IPC or BNS relates to the date of the offence. It is the ‘law in force’ on the date which is relevant and not the date of registration of FIR. Thus, the IPC will continue to apply to any offence committed on or before June 30, 2024 and BNS will apply to any offence committed on or after July 1, 2024.

As regards the procedure, if the FIR is registered on or after July 1, 2024, the investigation, trial etc. will be governed by BNSS and not CrPC — irrespective of whether the offence is committed under IPC or BNS. However, any appeal, application etc. which is pending under CrPC as on July 1, 2024 will continue, only till its conclusion, under CrPC. Any subsequent step, appeal revision etc. will be under BNSS.

While we usher in a new criminal law regime, pending proceedings ought not to be violently upended. Similarly, the tether to the old criminal laws should not needlessly linger. The interpretation by the courts strikes a good balance in this regard.

Arora is Partner and Misra, Senior Associate, Cyril Amarchand Mangaldas

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