Repeal and Savings Section 531 and Transitional Law

Section 531, BNSS 2023 — the substance

(1) The Code of Criminal Procedure, 1973 is hereby repealed.

(2) Notwithstanding such repeal —

(a) if, immediately before the date on which this Sanhita comes into force, there is any appeal, application, trial, inquiry or investigation pending, then such appeal, application, trial, inquiry or investigation shall be disposed of, continued, held or made, as the case may be, in accordance with the provisions of the Code, as if this Sanhita had not come into force;

(b) all notifications published, proclamations issued, powers conferred, forms provided by rules, local jurisdictions defined, sentences passed and orders, rules and appointments — not being appointments as Special Magistrates — made under the Code and in force immediately before the commencement, shall be deemed to have been made under the corresponding provisions of this Sanhita;

(c) any sanction accorded or consent given under the Code in pursuance of which no proceeding was commenced shall be deemed to have been accorded or given under the corresponding provisions of this Sanhita, and proceedings may be commenced under this Sanhita in pursuance of it;

(d) the provisions of the Code shall continue to apply in relation to every inquiry, trial, appeal, application or investigation referred to in clause (a), as if this Sanhita had not been passed.

⚠ Clause (d) is the one most often overlooked

It is not merely that a pending matter is disposed of under the old law. The whole of the Code continues to apply to it.

So the old provisions on bail, remand, evidence, the charge, judgment, appeal and revision govern that case to its end — and the Sanhita has nothing to say about it.

An accused in a pre-July-2024 case therefore applies for bail under section 437 or 439 of the Code, not under sections 480 or 483 of the Sanhita; and a remand in that case is under section 167 of the Code, not section 187.

The practical consequence is that both codes will be in use for years. A court may hear a CrPC trial in the morning and a BNSS trial in the afternoon, and an advocate must know which code governs each file — the answer turning on a single date.

📖 Kolhapur Canesugar Works Ltd. v. Union of India, (2000) 2 SCC 536 (five Judges)

Facts: A rule under which proceedings had been initiated was omitted while those proceedings were pending, and the question was what happened to them. The Constitution Bench examined the effect of a repeal on pending proceedings, and the role of the saving provisions in the repealing enactment and in the General Clauses Act.

Held: The Constitution Bench held that the normal effect of repealing a provision is to obliterate it from the statute book as completely as if it had never been passed, and that the consequence is that pending proceedings lapse unless something saves them. What saves them is either a saving clause in the repealing enactment or, where the repealed provision is an Act, the general saving in section 6 of the General Clauses Act. The Court held that the first question in every case is whether the repealing enactment contains a saving provision, and that where it does, that provision governs and the general saving has no independent role to play; the enquiry then is simply what the saving clause says. It held that a saving clause is to be given its plain meaning, since its whole purpose is to state precisely what survives the repeal, and that a court should neither cut it down nor enlarge it by reference to what it supposes the legislature would have wished.

Ratio: The normal effect of a repeal is to obliterate the provision as if it had never been passed, so that pending proceedings lapse unless saved. Where the repealing enactment contains a saving clause, that clause governs and is given its plain meaning.

📖 State of Punjab v. Mohar Singh, AIR 1955 SC 84

Facts: An enactment was repealed and simultaneously re-enacted with modifications, and proceedings commenced under the old law were continued. The question was whether the general saving in section 6 of the General Clauses Act applied, or whether the new enactment evinced a contrary intention.

Held: The Supreme Court held that whenever there is a repeal of an enactment, the consequences laid down in section 6 of the General Clauses Act will follow unless a different intention appears. The Court held that the enquiry is not whether the new Act expressly keeps alive old rights and liabilities — that would make section 6 unnecessary — but whether it manifests an intention to destroy them; and that a court must look to the whole of the new enactment and to its scheme, since a contrary intention may appear by necessary implication as well as expressly. Where the repeal is followed by fresh legislation on the same subject, the Court held, it is necessary to compare the two enactments and to see whether the new one contains provisions inconsistent with the continuance of rights and liabilities accrued under the old — and only to that extent is the saving displaced.

Ratio: On a repeal the consequences in section 6 of the General Clauses Act follow unless a different intention appears. The enquiry is not whether the new Act preserves old rights but whether it manifests an intention to destroy them, judged from its whole scheme.

The position stated shortly

1. The BNSS came into force on 1 July 2024, and section 531(1) repealed the Code of Criminal Procedure, 1973.

2. The governing rule is that the date on which the proceeding began decides which law applies.

3. Section 531(2)(a): any appeal, application, trial, inquiry or investigation pending immediately before that date shall be continued in accordance with the Code, as if the Sanhita had not come into force.

4. Section 531(2)(d): the provisions of the Code continue to apply to every such matter — so the old provisions on bail, remand, evidence, charge and judgment govern that case to its end.

5. An investigation pending on the appointed day carries the Code forward into the trial that follows it.

6. The right of appeal is a substantive right which vests when the proceeding is instituted, so an appeal from a pre-July-2024 conviction is governed by the Code, whenever it is filed.

7. Section 531(2)(b): notifications, proclamations, powers, forms, local jurisdictions, sentences, orders, rules and appointments in force on the appointed day are deemed to be under the corresponding provisions of the Sanhita — except appointments as Special Magistrates.

8. Section 531(2)(c): a sanction or consent under which no proceeding was commenced is deemed to be under the Sanhita, and proceedings may be commenced under it.

9. The normal effect of a repeal is to obliterate the provision as if never passed, so pending matters lapse unless saved; where the repealing Act contains a saving clause, that clause governs and is given its plain meaning: Kolhapur Canesugar; Mohar Singh.

10. The practical consequence: both codes will be in use for years, and an advocate must know which code governs each file — the answer turning on a single date.