PANAJI
The Bombay High Court at Goa has ruled that offences registered prior to July 01, 2024 will continue to be registered and investigated under the Code of Criminal Procedure of 1973 but that applications, especially bail applications under those same offences filed after July 01, 2024 will have to be filed under new provisions of the BNSS. Similarly the High Court also ruled that courts have the power to grant or refuse an interim bail under the BNSS.
The High Court single judge bench was hearing a petition filed by Chowgule and Co Pvt Ltd challenging bail granted to persons the company had filed a case against with the Economic Offences Wing of the Goa Police.
“The investigation in the present FIR No 1/2024 filed before the Economic Offences Cell shall continue under the provision of Cr.P.C. 1973. Bail application filed on 06.07.2024 by the Respondent/Accused will have to be considered as application under Section 482 of BNSS 2023 and the Court while dealing with application under Section 482 of BNSS 2023 is having power to grant or refuse ad interim bail pending disposal of the main application,” the High Court ruled.
“A plain and simple reading of this provision and more particularly the saving clause ie. Sub Section 2(a) as quoted above would clearly go to show that the pending investigation immediately before the date on which the said ‘Sanhita’ comes into force shall be disposed of/continued, held or made as the case may be in accordance with the code of Criminal Procedure 1973 as in force immediately before such commencement as if this Sanhita has not come into force,” the HC said.
As regards bail applications the HC found that “the provisions of Section 531 of BNSS and the discussion with regard to the repeal and saving clause would clearly depict that from the date of implementation of BNSS 2023 i.e. 01.07.2024 provisions of Code of Criminal Procedure, 1973 shall be repealed.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governed by the provisions of BNSS 2023 for the simple reason that by that date, the provisions of Cr.P.C. 1973 stands repealed.”
“NSS 2023 is admittedly a procedural law mostly governing the inquiries, investigation, bail, trial, appeals etc. As far as application of bail is concerned, it is a procedure to be followed under a specific Act or Code. Since the provisions of Section 438 of the Code of Criminal Procedure and that of Section 482 of BNSS are pari materia, the provisions of repeal would clearly apply to the matter in hand and accordingly, applications filed by Respondent/Accused persons on 06.07.2024 shall govern under the provisions of 482 of BNSS and not under Sections 438 of Cr.P.C,” the HC said.
“There is absolutely no need of further discussion in respect of the power of the Session Court or of this Court with regard to grant of ad interim relief pending application for bail in anticipation of arrest. Such power clearly exists as inherent power under the provision of grant of bail. However, it is also clear that even while granting ad interim relief, there has to be a subjective satisfaction of the Court and such ad interim relief should be on certain conditions and not blanket. It is required to be considered on the premise of Article 21 of the Constitution of India which is clearly traceable with an intent to protect life and liberty of a person and more particularly to avoid unnecessary arrest as well as to avoid any harassment at the hands of the investigating agency,” the Judge said.
