Criminal Procedure: Code of Criminal Procedure, 1973 / Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)
When the BNSS Applies and When the CrPC Continues to Apply: Section 531, Savings, Pending Cases and the Transition Rules
On 1 July 2024 the Bharatiya Nagarik Suraksha Sanhita, 2023 came into force and the Code of Criminal Procedure, 1973 was repealed. The repeal did not clear the field. Section 531(2)(a) saves every appeal, application, trial, inquiry and investigation that was pending immediately before that date and directs that it continue under the repealed Code. The result is that two complete codes of criminal procedure are in simultaneous operation in India, each governing a different set of proceedings, and will remain so until the last matter begun before 1 July 2024 has been finally disposed of.
This topic sets out the rule, the situations it answers, the situations it does not answer, and the principles the courts apply to the residue.
Figure 1: The two codes in parallel operation
1. Section 531: the Text
Section 531, BNSS 2023: repeal and savings (1) The Code of Criminal Procedure, 1973 is hereby repealed.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 of Criminal Procedure, 1973, as in force immediately before such commencement, 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 made under the said Code which are in force immediately before the commencement of this Sanhita shall be deemed, respectively, to have been published, issued, conferred, provided, defined, passed or made under the corresponding provisions of this Sanhita; (c) any sanction accorded or consent given under the said Code in pursuance of which no proceeding was commenced under that Code 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 such sanction or consent; (d) any bar to the taking of cognizance of an offence under the said Code shall continue to apply to any proceeding in a court under this Sanhita. |
1.1 The architecture of the section
The section does three distinct things and it is worth separating them, because they point in different directions.
- Clause (a) freezes proceedings. A matter that was pending on 30 June 2024 continues under the old Code entirely, as if the Sanhita had never been enacted. This is a saving of the proceeding, not of particular provisions.
- Clauses (b) and (c) transplant instruments. A notification, proclamation, appointment, local jurisdiction, sanction or consent made under the old Code is treated as made under the corresponding provision of the Sanhita. This is a saving of the instrument, which is carried forward into the new regime rather than left behind in the old one.
- Clause (d) preserves bars to cognizance. A bar that applied under the 1973 Code continues to apply to a proceeding under the Sanhita, so the transition cannot be used to revive a prosecution that the older law barred.
The distinction between the first and the second is the most useful thing in the section. A pending proceeding stays with the old Code. An instrument travels to the new one. A Special Judicial Magistrate appointed under section 13 of the 1973 Code does not have to be reappointed; a sanction accorded under section 197 of the 1973 Code on which no proceeding had been launched supports a prosecution launched under the Sanhita.
2. The Test and How to Apply It
Figure 2: The test under section 531(2)(a)
The question clause (a) asks is not when the offence was committed. It is what was pending immediately before 1 July 2024. The two can diverge: an offence committed in May 2024 in respect of which no first information report was registered until August 2024 is investigated and tried under the Sanhita, because nothing was pending on the appointed day, even though the conduct predates it. The substantive law applicable to that conduct is a different question, governed by Article 20(1) and answered by the Indian Penal Code.
Situation | Governing code | Reason |
|---|---|---|
FIR registered on or before 30 June 2024; investigation continuing | CrPC, 1973 | An investigation was pending on the appointed day and is expressly saved |
FIR registered on or after 1 July 2024, whenever the offence was committed | BNSS, 2023 | Nothing was pending; the Sanhita applies of its own force |
Trial begun before 1 July 2024 and continuing after it | CrPC, 1973 | A trial was pending on the appointed day |
Complaint filed before 1 July 2024, cognizance not yet taken | CrPC, 1973 | An application or inquiry was pending; the hearing requirement in section 223 BNSS does not apply to it |
Complaint filed on or after 1 July 2024 in respect of an earlier offence | BNSS, 2023 | The proceeding is instituted under the Sanhita, and section 223 requires the accused to be heard before cognizance |
Investigation begun before 1 July 2024; charge sheet filed after it | CrPC, 1973 | The investigation was pending and continues under the old Code, and the report is filed under section 173 CrPC |
Sanction accorded under CrPC section 197 but no proceeding commenced | BNSS, 2023 | Clause (c) deems the sanction to have been accorded under section 218 of the Sanhita |
Appointment of a Special Judicial Magistrate made under the CrPC | Continues under the BNSS | Clause (b) deems it made under the corresponding provision |
Offence for which cognizance was barred by limitation under the CrPC | The bar continues | Clause (d) preserves any bar to the taking of cognizance |
Fresh petition, appeal or revision instituted on or after 1 July 2024 | Unsettled in part | See section 4 below |
2.1 What counts as pending
The words “appeal, application, trial, inquiry or investigation” are wide but not unlimited. Three points of construction arise.
- Investigation is defined in section 2(1)(l) of the Sanhita and was defined in section 2(h) of the 1973 Code as all proceedings for the collection of evidence conducted by a police officer or an authorised person. An investigation is pending from the registration of the first information report until the report under section 173 of the 1973 Code is filed, and further investigation keeps it alive.
- Inquiry is every inquiry other than a trial conducted by a Magistrate or court. A proceeding on a complaint before cognizance, a committal proceeding and a proceeding under Chapter IX or XI are all inquiries.
- Application is the widest of the five words and covers an application for bail, for discharge, for the return of property, for transfer and for the exercise of the inherent power, provided it was actually filed and undisposed of on 30 June 2024.
What is not saved is a mere entitlement to institute a proceeding. A person who could have filed a revision before 1 July 2024 but had not done so has nothing pending, and the proceeding he institutes afterwards is instituted under the Sanhita.
3. The Substantive Law Runs on a Different Rule
It is essential not to carry the transitional rule for procedure across to the substantive law. Which procedural code governs depends on what was pending. Which penal statute governs depends on when the act was done, and that is a constitutional question.
Article 20(1), Constitution of India No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. |
An act done before 1 July 2024 is therefore an offence under the Indian Penal Code, 1860 and is charged under it, whatever the procedural code may be. The two questions are answered independently, and the combination that results is common: a prosecution for an offence under the Indian Penal Code, investigated and tried under the Code of Criminal Procedure, 1973 because the investigation was pending, appearing in a court that is simultaneously trying cases under the Bharatiya Nyaya Sanhita and the Sanhita.
📖 T. Barai v. Henry Ah Hoe, (1983) 1 SCC 177 Facts: An amendment to the Prevention of Food Adulteration Act, 1954 altered the punishment for an offence. The question was which punishment applied to an act committed before the amendment, and more generally how Article 20(1) operates where the law changes between the act and the trial. Held: The Supreme Court held that Article 20(1) prohibits the ex post facto operation of a law that creates an offence or enhances a penalty, but it does not prohibit the retrospective application of a law that reduces the punishment. The protection is a shield for the accused and not a restriction on the legislature’s power to be lenient; accordingly the accused is entitled to the benefit of a reduced penalty enacted after the commission of the offence. Ratio: Article 20(1) is a one-way protection. A change in the substantive law is applied against an accused only if the law was in force when the act was done, but a change in his favour may be applied even if it came later. |
The practical consequence for the present transition is that where the Bharatiya Nyaya Sanhita prescribes a lighter punishment than the Indian Penal Code for the same conduct, the benefit of the lighter punishment is available to a person tried for an act done before 1 July 2024, while a heavier punishment under the new statute is not.
4. The Questions Section 531 Does Not Answer
Clause (a) answers cleanly where the proceeding is continuous. It answers less cleanly where a new step is taken after 1 July 2024 in relation to a proceeding begun before it. Four situations recur.
4.1 A fresh petition arising out of a saved proceeding
An investigation registered in March 2024 continues under the 1973 Code. In September 2024 the accused seeks to have the first information report quashed. Is that petition part of the saved investigation, so that it lies under section 482 of the 1973 Code, or a fresh proceeding, so that it lies under section 528 of the Sanhita?
The High Courts have converged on the proposition that no fresh petition may be filed under the repealed Code on or after 1 July 2024, because a repealed statute cannot found a new proceeding, and that such a petition is therefore to be filed under the corresponding provision of the Sanhita. They have differed on whether the court, once seised of it, applies the old Code or the new one to the merits. The better view, and the one that reconciles the two, is that the forum and the enabling provision are supplied by the Sanhita while the substance of the proceeding under challenge continues to be governed by the old Code, since that is what clause (a) preserves. Because the inherent power in section 528 is in identical terms to section 482 of the 1973 Code, nothing practical turns on it in a quashing petition; it matters where the two codes differ.
4.2 An appeal from a trial conducted under the old Code
A right of appeal is not merely a matter of procedure. It is a substantive right which vests in a party when the proceeding is instituted, and is governed by the law as it stood at that date unless the legislature provides otherwise. Where a trial was pending on 30 June 2024 and concludes in 2026, the appeal against the resulting conviction is governed by the appellate provisions of the 1973 Code, both because the appeal arises out of a saved proceeding and because of the principle about vested rights of appeal.
📖 Rakesh Kumar Paul v. State of Assam, (2017) 15 SCC 67 Facts: The accused was investigated for an offence for which the maximum punishment was ten years but not a minimum of ten years. The investigation exceeded sixty days but was completed before ninety. The question was whether the applicable period under the proviso to section 167(2) of the Code of Criminal Procedure, 1973 was sixty days or ninety days, and whether the accused had to apply expressly for default bail in those terms to claim the right. Held: The Supreme Court held that the ninety-day period applies only where the offence is punishable with imprisonment for a term of not less than ten years, so that an offence punishable with imprisonment up to ten years attracts the sixty-day period. The right to default bail on the expiry of the period is an indefeasible right flowing from Article 21; it need not be claimed in any particular form of words, and the accused is entitled to it so long as he is prepared to and does furnish bail before the charge sheet is filed. Ratio: Default bail is a right that accrues on the expiry of the statutory period and is not a matter of discretion. Being an accrued right founded on Article 21, it is not defeated by the form in which it is claimed. |
The decision matters for the transition because default bail is the clearest example of a right that accrues during a proceeding. Where an investigation registered before 1 July 2024 continues afterwards, the periods in section 167 of the 1973 Code apply to it, and the right that accrues on their expiry is a right under the old Code. The changes in section 187 of the Sanhita, in particular the widened window for police custody, have no application to that investigation. Conversely, an investigation registered on or after 1 July 2024 is governed by section 187 throughout.
4.3 A provision with no counterpart
Where the Sanhita creates a power that the 1973 Code did not contain, the power is not available in a saved proceeding, because clause (a) directs that the proceeding be conducted as if the Sanhita had not come into force. A trial pending on 30 June 2024 cannot be continued in absentia under section 356, and a search in a saved investigation is not invalidated by the absence of the audio-video recording that section 105 would require. The converse is also true: a provision of the old Code that the Sanhita did not carry forward continues to apply to the saved proceeding.
4.4 The characterisation problem
Where a provision is neither clearly part of the saved proceeding nor clearly outside it, the general principles on the operation of statutes in time supply the method. A provision that merely regulates the mode of proceeding applies at once; a provision that creates a new disability or obligation, or impairs a vested or accrued right, does not. The point was stated comprehensively in Hitendra Vishnu Thakur v. State of Maharashtra, which is examined in the topic comparing the two codes.
⚠ Three habits that avoid most transitional errors Name the statute, not just the section. “A petition under section 482” means inherent powers if the proceeding is under the CrPC and anticipatory bail if it is under the Sanhita. The number alone no longer identifies the provision. Fix the institution date first. Before citing any provision, establish what was pending on 30 June 2024 and what the present step forms part of. Every other question follows from that. Keep the procedural and the substantive questions apart. The procedural code is chosen by what was pending; the penal statute is chosen by when the act was done, subject to Article 20(1) and to the benefit of a lighter punishment under T. Barai. |
5. How Long the Overlap Will Last
The overlap is not transitional in any short sense. A trial pending on 30 June 2024 may take years to conclude, an appeal from it more years, and a revision or a further appeal more still. Section 531(2)(a) keeps the repealed Code alive for the whole of that chain, because each stage is either the saved proceeding itself or arises directly out of it. Matters registered in the last week of June 2024 may therefore be governed by the Code of Criminal Procedure, 1973 into the late 2030s.
Two practical consequences follow. Both codes must be known, and the correspondence between them must be known, for the whole of a professional lifetime beginning now. And a citation practice that distinguishes them is not pedantry: where the two differ, as they do on police custody, on preliminary inquiry, on the hearing before cognizance and on the release of undertrial prisoners, naming the wrong code states the wrong law.
6. Key Takeaways
The position stated shortly 1. Section 531(1) repeals the Code of Criminal Procedure, 1973 with effect from 1 July 2024. 2. Section 531(2)(a) saves every appeal, application, trial, inquiry and investigation pending immediately before that date, which continues under the repealed Code as if the Sanhita had not come into force. 3. The test is what was pending on 30 June 2024, not when the offence was committed. 4. Clauses (b) and (c) work in the opposite direction: notifications, appointments, local jurisdictions, sanctions and consents made under the old Code are deemed made under the corresponding provisions of the Sanhita and travel forward. 5. Clause (d) preserves any bar to the taking of cognizance that existed under the old Code. 6. The substantive law follows a different rule. An act done before 1 July 2024 is an offence under the Indian Penal Code, 1860, by force of Article 20(1), though the benefit of a lighter punishment under the new law is available: T. Barai. 7. A fresh petition or appeal instituted on or after 1 July 2024 is filed under the Sanhita, because a repealed statute cannot found a new proceeding, while the substance of the saved proceeding it challenges remains under the old Code. 8. Rights that accrue during a saved proceeding, such as default bail on the expiry of the period in section 167, accrue under the old Code: Rakesh Kumar Paul. 9. Powers created for the first time by the Sanhita, such as trial in absentia under section 356, are not available in a saved proceeding. |
7. Frequently Asked Questions
Which code applies to an FIR registered before 1 July 2024?
The Code of Criminal Procedure, 1973. The investigation was pending immediately before the appointed day and is saved by section 531(2)(a), so it is continued under the old Code, and the trial that follows from it is likewise conducted under that Code.
An offence was committed in May 2024 but the FIR was registered in August 2024. Which code applies?
The Bharatiya Nagarik Suraksha Sanhita, because nothing was pending on 30 June 2024. The offence itself, however, is an offence under the Indian Penal Code, 1860, since Article 20(1) requires the substantive law in force at the time of the act to be applied.
Can a petition be filed under section 482 of the CrPC after 1 July 2024?
No. A repealed statute cannot found a new proceeding, so a fresh petition invoking the inherent jurisdiction is filed under section 528 of the Sanhita, even where the proceeding it challenges is governed by the old Code. Note that section 482 of the Sanhita is anticipatory bail, not inherent powers.
Does section 187 of the BNSS apply to an investigation begun before 1 July 2024?
No. That investigation is saved and continues under section 167 of the 1973 Code, including the rule that police custody may be authorised only within the first fifteen days, and including the periods on the expiry of which the right to default bail accrues.
Does a sanction granted under the CrPC remain valid after the repeal?
Yes. Under section 531(2)(c), a sanction accorded or consent given under the repealed Code in pursuance of which no proceeding had been commenced is deemed to have been accorded under the corresponding provision of the Sanhita, and proceedings may be commenced under the Sanhita in pursuance of it.
How long will the two codes run in parallel?
For as long as any proceeding begun before 1 July 2024 remains alive, including through appeal and revision. Matters registered shortly before the appointed day may be governed by the 1973 Code for a decade or more.
Related Topics
- Application and Commencement of the BNSS, 2023
- BNSS, 2023 vs Code of Criminal Procedure, 1973: Section Mapping
- Major Changes Introduced by the BNSS, 2023
- Section 187 BNSS: Remand, Police Custody and Default Bail
- Object, Scope and Scheme of the BNSS, 2023