New Criminal Laws Take Effect Amidst Legal Ambiguity: Interpretation Challenges Loom

At the stroke of midnight on July 1, 2024, India ushered in three new criminal laws—the Bharatiya Nyaya Sanhita, 2023 (BNS); the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS); and the Bharatiya Sakhya Adhiniyam, 2023 (BSA)—repealing and replacing the Indian Penal Code, 1860 (IPC), the Code of Criminal Procedure, 1973 (CrPC), and the

Indian Evidence Act, 1872, respectively. This momentous shift marks the first instance of independent India enacting a new substantive penal code and law on evidence, with the BNSS is only the second procedural criminal law post-independence.

However, the transition period from June 30 to July 1, 2024, has introduced a unique legal conundrum regarding the applicability of the existing and new criminal legislations, particularly for crimes committed before but reported after the changeover.

A critical case to consider is a heinous crime committed on June 30, 2024, with the complainant reporting it the following day, July 1, 2024. This raises the question: Which criminal legislation applies? A surface-level interpretation might suggest that crimes committed before July 1 fall under the IPC, while those committed after this date are under the BNS. However, this scenario isn't straightforward due to overlapping legislative provisions.

Section 358 of the BNS states that the repeal of the IPC does not affect its previous operations or actions done under it. Thus, the IPC would apply to acts committed before July 1, 2024. On the other hand, Section 531 of the BNSS repeals the CrPC but allows ongoing appeals, applications, trials, inquiries, or investigations to continue under the CrPC if they were initiated before the BNSS came into force.

One interpretation posits that offences committed before July 1, 2024, should be registered under the IPC, while procedural steps post-July 1 should follow the BNSS. This aligns with Section 4 of the BNSS stipulates that all offences, including those under previous laws, should be dealt with according to BNSS provisions.

Recent court rulings provide further insights. In a recent judgment, the Punjab and Haryana High Court acknowledged that while the IPC remains the substantive law for pre-July 1 offences, the BNSS would govern procedural aspects from July 1 onwards. This view is supported by Section 6(1) of the General Clauses Act, 1897, which indicates that repealed statutes do not affect actions already undertaken under them.

The Telangana Police memorandum concurs with this interpretation, specifying that crimes occurring before July 1, 2024, should be processed under the IPC, with procedural actions under the BNSS from July 1 onward. This stance ensures a pragmatic approach, balancing historical legal frameworks with the new legislation.

However, a gray area persists for FIRs registered before July 1, with investigations continuing afterward. While the Punjab and Haryana High Court suggests that subsequent procedural steps should follow the BNSS, the Rajasthan High Court holds that the CrPC should govern the entire process for such cases. The Kerala High Court differentiates between applications filed before and after July 1, applying the BNSS to the latter.

The Supreme Court and other judicial bodies must clarify these interpretations to ensure a smooth transition and consistent application of the new laws. The forthcoming decisions in cases like Shri S Rabban Alam v. CBI will be crucial in shaping the legal landscape and resolving these ambiguities.

As India navigates this significant legal transition, the co-existence of the IPC and BNSS for crimes spanning the legislative changeover period seems to be the most plausible approach, ensuring fairness and legal continuity.

Author: Anushka Taraniya
News Writer