BNSS and CrPC Comparative Study

📖 Hitendra Vishnu Thakur v. State of Maharashtra, (1994) 4 SCC 602

Facts: Amendments were made to a special statute while prosecutions under it were pending, and the question was which of the amended provisions applied to those pending cases. The Supreme Court set out the principles governing the retrospective operation of a change in the law.

Held: The Supreme Court stated the principles. A statute which affects substantive rights is presumed to be prospective unless made retrospective expressly or by necessary intendment, whereas a statute which merely affects procedure is presumed to be retrospective unless a contrary intention appears. The reason is that no person has a vested right in any course of procedure: he has only the right of prosecution or defence in the manner prescribed for the time being, and if a statute changes that manner, he has no vested right to complain. But the Court held that the label is not decisive: a provision which is procedural in form but which creates a new disability, attaches a new consequence, or takes away an existing remedy or defence is substantive in effect, and the presumption against retrospectivity applies to it. The Court added that where a statute deals with both procedure and substance, the two must be separated, and that a change in the forum of trial is procedural, while a change affecting the right to bail touches liberty and is treated differently.

Ratio: Procedural changes are presumed retrospective because no person has a vested right in a course of procedure; substantive changes are presumed prospective. But a provision procedural in form which creates a new disability or takes away a remedy is substantive in effect.

📖 Garikapati Veeraya v. N. Subbiah Choudhry, AIR 1957 SC 540

Facts: A change in the law affecting the right of appeal took place after the suit had been instituted but before the appeal was filed, and the question was whether the appellant’s right was governed by the law in force when the proceeding began or by the law in force when he came to appeal.

Held: The Supreme Court held that the right of appeal is not a mere matter of procedure but a substantive right, and that it vests in a party when the proceeding is first instituted — not when the appeal is actually filed. The Court reasoned that litigation is one continuous proceeding from its institution to its final determination in the highest court to which it may be carried, and that a litigant is entitled to assume, at the outset, that the avenues of appeal then available will remain open to him. It followed that the right is governed by the law in force on the date the proceeding was instituted, and that it can be taken away only by a subsequent enactment which says so expressly or by necessary intendment. The Court held that a provision merely regulating the manner in which an appeal is presented is procedural and applies at once; but one which abolishes, restricts or conditions the right itself is substantive and does not affect proceedings already instituted.

Ratio: The right of appeal is a substantive right which vests when the proceeding is instituted, litigation being one continuous proceeding. It is governed by the law then in force and can be taken away only expressly or by necessary intendment.

⚠ But section 531 displaces the ordinary rule

Left to the general principles, the procedural provisions of the Sanhita would have applied at once to pending proceedings, and only the substantive ones would not — producing endless argument about which category each provision fell into.

Section 531(2)(a) and (d) provide otherwise. Every pending appeal, application, trial, inquiry or investigation continues under the Code, as if the Sanhita had not been passed.

That is a deliberate and sensible choice. A part-heard trial conducted half under one code and half under another would generate argument about which provision governed which step, and would disadvantage whichever party the accident of timing happened to disfavour.

So the general principles matter chiefly for what section 531 does not cover, and for reading the corresponding provisions of the two codes against each other — which is what a comparative study is for.

The position stated shortly

1. The BNSS has 531 sections in 39 chapters; the CrPC had 484 in 37. The Sanhita came into force on 1 July 2024.

2. The Sanhita is not a new code in substance. Most of its sections reproduce the corresponding provisions of the Code, and the case law on them continues to apply.

3. What has changed: the numbering, a set of timelines, the victim’s position, the place of technology and forensics, and a handful of new powers.

4. The Metropolitan Magistrate category has been abolished; Judicial Magistrates and Chief Judicial Magistrates operate throughout.

5. Procedural changes are presumed retrospective, because no person has a vested right in a course of procedure; substantive changes are presumed prospective: Hitendra Vishnu Thakur.

6. But a provision procedural in form which creates a new disability, attaches a new consequence, or takes away an existing remedy is substantive in effect.

7. The right of appeal is substantive and vests when the proceeding is instituted, litigation being one continuous proceeding: Garikapati Veeraya.

8. Section 531 displaces the ordinary rule. Every pending matter continues under the Code, as if the Sanhita had not been passed — procedure and substance alike.

9. That avoids a part-heard trial being conducted half under one code and half under another, and the argument such a split would generate.

10. So the general principles matter chiefly for reading the corresponding provisions of the two codes against each other — and for identifying which provisions are carried forward and which are genuinely new.