Bombay High Court: In the present petitions, the interpretation regarding the provisions of the Nagarik Suraksha Sanhita, 2023 (‘BNSS 2023’), and particularly, the repeal provision under Section 531 of the BNSS was under consideration. A Single Judge Bench of Bharat P. Deshpande, J., held that the investigation in the present FIR 1 of 2024 filed before the Economic Offences Cell shall continue under the provision of Criminal Procedure Code, 1973 (‘CrPC’) and the bail application filed on 06-07-2024 by the Respondent 3 would be considered as application under Section 482 of BNSS 2023. The Court, while dealing with application under Section 482 of BNSS 2023 had power to grant or refuse ad interim bail pending disposal of the main application.
Background
Petitioners submitted that respondents committed offences punishable under Sections 4091, 4202, 477-A3 r/w 120-B4 of the Penal Code (‘IPC’). The FIR was registered on 14-06-2024 by the Economic Offences Cell, Goa. Respondent 3 preferred an application for bail in anticipation of arrest under Section 4385 of CrPC before the Sessions Court Panaji (‘Sessions Judge’), which was filed on 19-06-2024 and while dealing with such application, on 20-06-2024, the Sessions Judge granted ad-interim bail to Respondent 3 till the next date, i.e., on 24-06-2024.
On 05-07-2024, the Sessions Court allowed the preliminary objections raised by petitioner, thereby holding that it was not having jurisdiction; however, it granted protection to Respondent 3 for 72 hours. Respondent 3 preferred an application for bail in anticipation of arrest before Session Court, South Goa, Margao on 06-07-2024 and on the same day, Respondent 3 prayed for an ad-interim protection, however, the Court observed that since Sessions Court granted protection for a period of 72 hours which continued while filing the application for bail no further order was necessary. However, on 08-07-2024, petitioner intervened in the said application before Session Judge, South Goa, Margao which application was kept pending and thus, Sessions Court, South Goa, Margao vide impugned order dated 08-07-2024 granted interim bail to Respondent 3 which was challenged under the present petition.
Counsel for petitioner stated that BNSS 2023 came into force from 01-07-2024 and as per the repeal provisions, CrPC stands repealed. He submitted that from 01-07-2024, no proceedings under CrPC could be entertained including an application filed by Respondent 3 under Section 438 of CrPC. He also submitted that there was no provision or scope under Section 482 of the BNSS 2023 to grant any interim protection or any interim bail. Such protection could not be inferred or looked into when the Legislature in its full wisdom did not incorporate such provision of ad interim bail, though, it was available under Section 438 of CrPC. He submitted that the intention of taking away such power must be looked into, and the Court could not interpret what was not given under the said provision even by considering inherent power.
Analysis, Law, and Decision
1. Whether the investigation in the present FIR could be governed by the provision of CrPC or under the provision of BNSS 2023?
The Court took note of Section 531 of CrPC and opined that Section 531(2)(a) clearly shows that the pending investigation immediately before the date on which BNSS 2023 comes into force shall be disposed of/continued, held, or made as the case may be in accordance with CrPC as in force immediately before such commencement as if BNSS 2023 has not come into force. Thus, the saving clause in Section 531 of BNSS 2023 clearly and unambiguously saves the investigation pending prior to commencement of BNSS 2023 and Section 531(2)(a) of BNSS 2023 would make it clear that even such pending investigation shall be disposed of, continued, held, or made as the case may be in accordance with CrPC.
The Court noted that BNSS 2023 came into effect from 01-07-2024 and the FIR in the present case was lodged on 14-06-2024 which was registered as FIR 1 of 2024 before the Economic Offences Cell for offences punishable under Section 409, 420, 477-A r/w 120-B of IPC. Thus, on registration of FIR 1 of 2024 on 14-06-2024, i.e., prior to the provisions of BNSS 2023 coming into force, the investigation began and was pending. Such pending investigation was clearly saved under the provisions of Section 531 of BNSS 2023. The Court stated that the investigation must continue as provided under the provisions of CrPC under the Chapter XII till submission of the report of the Police Officer under Section 173 of CrPC to the Court concerned.
The Court relied on Natabar Parida v. State of Orissa, (1975) 2 SCC 220 (‘Natabar Parida Case’) and opined that the observations in Natabar Parida Case were squarely applicable to the facts and circumstances of the present case as far as conducting of pending investigation under the provisions of CrPC.
The Court held that the provisions of CrPC would apply with equal force to a pending investigation prior to 01-07-2024 and in the present matter, the offences alleged against respondents were clearly under the provisions of IPC and the FIR was registered even prior to 01-07-2024. The investigation commenced on 14-06-2024 and same was pending as on 01-07-2024 when the provisions of BNSS 2023 came into force.
2. Whether bail application filed by Respondent 3 on 06-07-2024 would be governed by the provisions of Section 438 of CrPC or by Section 482 of BNSS 2023?
The Court stated that from the date of implementation of BNSS 2023 i.e., 01-07-2024 provisions of CrPC shall be repealed. The saving clause only saves any appeal, application, trial, inquiry, or investigation pending as on 01-07-2024. Thus, any application filed as on 01-07-2024 or thereafter shall be governed by the provisions of BNSS 2023 as by that date, the provisions of CrPC stands repealed. The Court also stated that under Section 531 of BNSS 2023, what was saved was only pending applications and not the applications to be filed subsequent to 01-07-2024, to be governed under CrPC.
The Court noted that the application filed before Sessions Court North Goa Panaji was disposed of on 05-07-2024 on the ground that the said Court had no territorial jurisdiction and thus, once such application was disposed of which was filed prior to 01-07-2024, and therefore, second application filed on 06-07-2024 could not be considered as continuation of the earlier application, and must be considered as fresh and separate application.
The Court stated that thus, the applications filed by Respondent 3 on 06-07-2024 shall be governed under the provisions of Section 482 of BNSS 2023 and not under Section 438 of CrPC.
3. If it was observed that such bail application must be considered under Section 482 of BNSS 2023, whether the Court was empowered/having jurisdiction to grant ad interim bail pending decision of the main bail application?
The Court stated that as it had been observed that the applications filed on 06-07-2024 shall be governed under the provisions of Section 482 of BNSS 2023, it must be considered that “whether the Court while dealing under the provisions of Section 482 of BNSS 2023 was having power to grant ad interim bail?”.
The Court opined that the power of the Sessions Court or of this Court regarding grant of ad interim relief pending application for bail in anticipation of arrest, clearly existed as inherent power under the provision of grant of bail. However, it was clear that even while granting ad interim relief, there must be subjective satisfaction of the Court, and such ad interim relief should be on certain conditions and not blanket. It was required to be considered on the premise of Article 21 of the Constitution which was clearly traceable with an intent to protect life and liberty of a person and more particularly to avoid unnecessary arrest and to avoid any harassment in the hands of investigating agency.
The Court opined that while considering an application under Section 482 of BNSS 2023, the Court had inherent power to grant ad interim bail in deserving cases and by exercising its discretion on a case-to-case basis.
The Court thus held that both the applications filed and pending before the Sessions Judge, South Goa, Margao, shall be required to be considered under the provisions of Section 482 of BNSS 2023.
[Chowgule and Company (P) Ltd. v. State of Goa, 2024 SCC OnLine Bom 2501, decided on 02-08-2024]
Advocates who appeared in this case :
For the Petitioner: Rizwan Merchant, Gaurish Agni, Ramiz Shaikh, Nihal Kamat, Harshil Gandhi, Kishan Kavlekar, Advocates
For the Respondents: Shailendra Bhobe, Public Prosecutor; Nikhil Vaze, Additional Public Prosecutor; Shivan Desai, Varun Bhandanker, Maria Viegas, Parag Rao, Akhil Parrikar, Sowmya Drago, Ajay Menon, Advocates
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1. Corresponding Section 316(5) of the Nyaya Sanhita, 2023 (‘BNS 2023’)
2. Section 318(4) of the BNS 2023
3. Section 344 of the BNS 2023
5. Corresponding Section 482 of the Nagarik Suraksha Sanhita, 2023
