# Deepu & Ors v. State of U.P. & Ors. 904 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2024) 8 ILRA 903
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-08-06
- **Case number:** Criminal Misc. Writ Petition No. 12287 of 2024
- **Bench:** Vivek Kumar Birla, Arun Kumar Singh Deshwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/deepu-ors-v-state-of-u-p-ors-904-indian-law-reports-allahabad-series-52486
- **Pages:** 9

## Headnote

IPC and POCSO Act - incident occurred before
the enforcement of the new criminal laws - FIR
upheld under IPC - but investigation should
follow the BNSS procedures- law is summarised
as under:
•
if an FIR is registered on or after 1.7.2024
for the offence committed prior to 1.7.2024,
then FIR would be registered under IPC but the
investigation will continue as per BNSS.
•
In the pending investigation on 01.07.2024
(on the date of commencement of New Criminal
Laws), investigation will continue as per the
Cr.P.C. till the cognizance is taken and if any
direction is made for further investigation -
same will continue as per the Cr.P.C.
•
The
cognizance
on
the
pending
investigation on or after 01.07.2024 would be
taken as per the BNSS and all the subsequent
proceeding including enquiry, trial or appeal
would be conducted as per the procedure of
BNSS.
•
The pending trial on 01.07.2024, if
concluded on or after 01.07.2024 then appeal or
revision -will be as per the BNSS.
•
If any application is filed in appeal pending
on 01.07.2024 then the procedure of Cr.P.C. will
apply.
•
If the criminal proceeding or chargesheet
is challenged before the High Court on or after
01.07.2024,
where
the
investigation
was
conducted as per Cr.P.C. then same will be filed
u/s 528 of BNSS not u/s 482 Cr.P.C.

W.P disposed. (E-9)

List of Cases cited:

## Text

8 All. Deepu & Ors. Vs. State of U.P. & Ors.
903
crime, these are the questions of facts and
appreciation of evidence, which cannot be
decided
by
this
Court
under
writ
jurisdiction.

22. On the above point, learned
A.G.A. has placed reliance upon paragraph
4 of the judgment passed by a co-ordinate
Bench of this Court in the case of Krishna
Murari Agrawal alias Deepak Vs. District
Magistrate, Jhansi and others, 2001 CRI.
L.J. 949. Paragraph 4 reads as under :

"4. The question whether the
property attached has been acquired by a
gangster as a result of the commission of an
offence under U.P. Gangsters & Anti-Social
Activities Prevention Act, 1986 is a pure
question of fact. The claim of the petitioner
that the property has not been acquired by
commission of an offence or that it is an
ancestral property can only be established by
appraisal of the evidence. It will be open to the
petitioner to lead oral and documentary
evidence in support of his claim before the
Special Judge (Gangsters Act) where the
matter has been referred. Such appraisal of
evidence is not possible in the present
proceedings under Article 226 of the
Constitution of India. The Act provides a
complete machinery as against the decision of
the Court an appeal lies under Section 18 of
the Act."

23. The petitioners have right and
statutory remedy under Section 16 of the Act
of 1986 in which they will get the opportunity
to prove that the properties which have been
attached have not been acquired by petitioner
No.1 by the commission of the crimes, and
further if the petitioners are not satisfied by the
order confirming attachment/order of the
competent court under Section 17 of the Act of
1986, they shall get opportunity to file appeal
under Section 18 of the Act of 1986.
According to Section 20 of the Act of 1986,
the provisions of the Act of 1986 shall have
overriding
effect
over
the
inconsistent
provisions of general law.

24. It has been held by Hon'ble Supreme
Court in the case of Raj Kumar Shivhare Vs.
Director of Enforcement (2010) 4 SCC 772
that where a statutory forum is created by law
for redressal of grievance and that too in a
fiscal statue, a writ jurisdiction should not be
entertained ignoring the statutory dispensation.

25. Having considered the legal aspect
that extra ordinary remedy under Article 226
of the Constitution of India is not meant to
circumvent
the
statutory
remedies,
the
statutory provisions cannot be bypassed by
this court under its supervisory jurisdiction
under Article 226 of the Constitution of India.

26. In the light of above discussion, we
decline to entertain the writ petition under
Article 226 of the Constitution of India.

27. Accordingly, the writ petition is
rejected. However, the petitioners shall have
liberty to raise all the factual and legal issues
before the court concerned under Section 16 of
the Act of 1986.
----------
(2024) 8 ILRA 903
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.08.2024

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE ARUN KUMAR SINGH
DESHWAL, J.

Criminal Misc. Writ Petition No. 12287 of 2024

Deepu & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents
904 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Petitioners:
Sri Raul Mishra, Sri Sanjay Mishra

Counsel for the Respondents:
Sri Bhaiya Lal Yadav, G.A.

Petitioners seeks to quash FIR, registered under
IPC and POCSO Act - incident occurred before
the enforcement of the new criminal laws - FIR
upheld under IPC - but investigation should
follow the BNSS procedures- law is summarised
as under:
•
if an FIR is registered on or after 1.7.2024
for the offence committed prior to 1.7.2024,
then FIR would be registered under IPC but the
investigation will continue as per BNSS.
•
In the pending investigation on 01.07.2024
(on the date of commencement of New Criminal
Laws), investigation will continue as per the
Cr.P.C. till the cognizance is taken and if any
direction is made for further investigation -
same will continue as per the Cr.P.C.
•
The
cognizance
on
the
pending
investigation on or after 01.07.2024 would be
taken as per the BNSS and all the subsequent
proceeding including enquiry, trial or appeal
would be conducted as per the procedure of
BNSS.
•
The pending trial on 01.07.2024, if
concluded on or after 01.07.2024 then appeal or
revision -will be as per the BNSS.
•
If any application is filed in appeal pending
on 01.07.2024 then the procedure of Cr.P.C. will
apply.
•
If the criminal proceeding or chargesheet
is challenged before the High Court on or after
01.07.2024,
where
the
investigation
was
conducted as per Cr.P.C. then same will be filed
u/s 528 of BNSS not u/s 482 Cr.P.C.

W.P disposed. (E-9)

List of Cases cited:

1. Hitendra Vishnu Thakur & ors. Vs St. of Mah. & ors.

2. Neena Aneja & anr.Vs Jai Prakash Assc. Ltd.

3. Arnesh Kumar Vs St. of Bihar

4. Social Action Forum for Manav Adhikar Vs
U.O.I., Ministry of Law and Justice & ors.
5. Satendra Kumar Antil Vs Central Bureau of
Investigation & anr.

6. Vimal Kumar & ors. Vs St. of U.P. & ors.

7. XXXX Vs St. of Union Territory of Chandigarh
& anr.

8. Abdul Khadir Vs St. of Kerala

(Delivered by Hon'ble Vivek Kumar Birla, J.
&
Hon'ble Arun Kumar Singh Deshwal, J.)

1.

Personal
affidavit
of
Superintendent of Police, Hamirpur filed
today is taken on record.

2. Heard Sri Sanjay Mishra, learned
counsel for the petitioners as well as Sri
P.C.
Srivastava,
Additional
Advocate
General, assisted by Sri J.K. Upadhyay,
Additional Government Advocate and Sri
Bhaiya Lal Yadav, learned counsel for the
informant.

3. The present writ petition has been
preferred with the prayer to quash the
impugned First Information Report dated
3.7.2024, registered as Case Crime No.
0271 of 2024, under Sections 376 (2)(n),
354, 147, 452, 504, 506 IPC and Section 4
POCSO
Act,
PS
Maudaha,
District
Hamirpur, and for a direction to the
respondents not to arrest the petitioners in
pursuance of impugned First Information
Report.

4. On 23.7.2024 the following order
was passed:

" The impugned FIR dated
3.7.2024 is registered under the provision
of Indian Penal Code and not under
Bharatiya Nyaya Sanhita (BNS) which
came into force on 1st July, 2024. The
8 All. Deepu & Ors. Vs. State of U.P. & Ors.
905
Superintendent of Police, Hamirpur shall
file an affidavit why the FIR has not been
registered under Bharatiya Nyaya Sanhita
(BNS)

Learned AGA for State submits
that the victim is aged about 14 years and
she was medically examined and seeks
some time to get the instruction in this
regard.

List again on 30.7.2024 as fresh."

5. In compliance with the above
quoted order, learned AGA has filed a
personal affidavit of the Superintendent of
Police, Hamirpur. In the affidavit, it is
mentioned that Bharatiya Nyaya Sanhita
(B.N.S.) came into force on 1.7.2024
whereas the incident in question had taken
place between 2.4.2024 to 28.6.2024,
therefore, the first information report was
lodged under the provisions of the Indian
Penal Code (I.P.C.). It is also mentioned in
the personal affidavit that in respect of the
procedure
after
commencement
of
B.N.S.S., a circular dated 4.7.2024 was
issued by the Police Technical Services
Headquarters,
Uttar
Pradesh
which
provides that if any offence is committed
prior to the enforcement of B.N.S., the FIR
would be registered under the provisions of
Indian Penal code, and procedure of
investigation would be followed as per
Bhartiya
Nagrik
Suraksha
Sanhita
(B.N.S.S.). The said circular dated 4.7.2024
issued by the Police Technical Services
Headquarters, Uttar Pradesh is quoted as
under:

पुबिस तकनीकी सेवायें मुख्यािय, उिर प्रदेर्।

8वॉ ति, र्ावर-4, पुबिस मुख्यािय, अमर र्हीद
पथ, गोमतीनगर बवस्तार, िखनऊ-226002

पत्र
संख्याः
र्ीएस-सीसीर्ीएनएस06/2010(XXIV) बदनांकः जुिाई, 2024

सेवा में,

1. पुबिस महाबनदेर्क- पॉवर कारपोरेर्न,
सी०िी०सी०आई०डी०, उ०प्र० सतकशता अबिष्ठान, उ०प्र०।

2. अपर पुबिस महाबनदेर्क- आबथशक अपराि
र्ाखा, रेिवे, एस०र्ी०एफ०, उ०प्र०।

3. समस्त पुबिस आयुक्त- उिर प्रदेर्।

4.
पुबिस
महाबनरीक्षक-
ए०र्ी०एस०,
ए०एन०र्ी०एफ०, उ०प्र०।

5. समस्त जनपदीय वररष्ठ पुबिस अिीक्षक/ पुबिस
अिीक्षक, उिर प्रदेर्।

6. अपर पुबिस अिीक्षक, एस०आई०र्ी०, उ०प्र०।

बवियः- िारतीय न्याय संबहता-2023, िारतीय
नागररक सुरक्षा संबहता-2023 तथा िारतीय साक्ष्य अबिबनयम-
2023 के सफि बक्रयान्वयन के सम्िन्ि में।

जैसा बक आप अवगत है बक प्रदेर् में 03 नवीन
अबिबनयमों को बदनांक जुिाई 01, 2024 से िागू बकया जा
चुका है, बजसके बक्रयान्वयन के क्रम में सीसीर्ीएनएस एप्िीकेर्न के
माध्यम से जी०डी० प्राथबमकी इत्याबद का पंजीकरण बकया जा रहा
है। चूूँबक उक्त तीन अबिबनयम अिी प्रख्याबपत हुये है, थाना स्तर पर
प्रपत्र दजश करते समय चयन बकये जाने वािे अबिबनयम के सम्िन्ि
में संर्य की सम्िावना हो सकती है।

अतः पुबिस महाबनदेर्क, उ०प्र० महोदय से प्राप्त
अनुमोदन के क्रम में आपसे अनुरोि है बक थानों पर दजश हो रहे
प्रपत्रों के सम्िन्ि में बनम्नानुसार अबिबनयम का चयन करने हेतु
सिगसम्बण्न्धत को अिर्त कराने का कष्ट करें-
Date
of
occurrence
of Crime

Date
of
Registration
Provisions
of Laws to
be applied
Procedural
Law to be
followed

01
जुलाई
2024 से पूिग
01
जुलाई
2024 से पूिग
IPC
CrPC
01
जुलाई
2024 से पूिग
01जुलाई
2024
या
उसके पकिात
IPC
BNSS
01जुलाई
2024
या
उसके
पकिात
01जुलाई
2024
या
उसके पकिात
BNS
BNSS
नोटः- एक से अचधक घटना की नतचर्थ ि ददनााँक होने की ण्स्र्थनत में
विस्तृत र्ाइिलाइन संलग्न।
संलग्नकः SOP.
Signed by
906 INDIAN LAW REPORTS ALLAHABAD SERIES
Naveen Arora
Date 04.07.2024
अपर पुभलस महाननदेशक
तकनीकी सेिाएं मुख्यालय, उत्तर प्रदेश।

6. However, learned counsel for the
petitioners
has
contended
that
the
procedure mentioned in the above noted
circular dated 4.7.2024 is incorrect for the
offence occurred prior to the enforcement
of the Bharatiya Nyaya Sanhita, 2023,
because for this offence the F.I.R. is
registered
after
enforcement
of
the
Bharatiya Nyaya Sanhita, 2023 (hereinafter
referred to as "BNS") as well as the
Bharatiya Nagarik Suraksha Sanhita, 2023
(hereinafter referred to as "BNSS"), then
the F.I.R. should be registered under the
BNS.

7. To decide this issue, it would be
relevant to quote Section 531 of BNSS as
under:-

"531. 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 (hereinafter referred to as
the said 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
said Code and which are in force
immediately before the commencement of
this Sanhita, shall be deemed, respectively,
to have been published, issued, conferred,
specified, 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.

(3) Where the period specified for
an application or other proceeding under
the said Code had expired on or before the
commencement of this Sanhita, nothing in
this Sanhita shall be construed as enabling
any such application to be made or
proceeding to be commenced under this
Sanhita by reason only of the fact that a
longer period therefore is specified by this
Sanhita or provisions are made in this
Sanhita for the extension of time."

8. From the perusal of the above
section, it is clear that, if any, investigation
is pending on the date of repeal of Cr.P.C.
then same will continue as per Cr.P.C. As
per Section 157 Cr.P.C. (Section- 176
BNSS) investigation would start from the
date of registration of F.IR., therefore if
F.I.R. is registered before commencement
of new criminal laws then the procedure of
the investigation will continue as per the
Cr.P.C. because investigation will be
8 All. Deepu & Ors. Vs. State of U.P. & Ors.
907
deemed to be commenced on the date of
registration of the F.I.R. However, in case
the
F.I.R.
is
registered
after
the
commencement of new criminal laws for
the offence committed prior to the
enforcement of new criminal laws then the
F.I.R. would be registered under the
provision of I.P.C. as the I.P.C. is a
substantive law which was prevalent at the
time of committing the offence because as
per Article 20 of the Constitution of India a
person can be convicted of an offence for
the violation of law enforced at the time of
the commission of the act. Article 20 of the
Constitution of India reads as under:-

"20. Protection in respect of
conviction for offences.- (1) 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.

(2) No person shall be prosecuted
and punished for the same offence more
than once.

(3) No person accused of any
offence shall be compelled to be a witness
against himself."

9. However, the question arises, what
would be the procedure of investigation, if
the
F.I.R.
is
registered
after
the
commencement of new criminal laws for
the offence committed prior to the
enforcement of new criminal laws, as such
investigation is not saved by Section
531(2)(a) of the BNSS to be conducted as
per Cr.P.C. To decide this issue, it is
relevant to consider Section 6 of General
Clauses Act which provides effect of
repealing of any Central Act or Regulation.
Section 6 of General Clause Act, 1897 is
being quoted as under;

"6. Effect of repeal.- Where this
Act, or any Central Act or Regulation made
after the commencement of this Act,
repeals any enactment hitherto made or
hereafter to be made, then, unless a
different intention appears, the repeal shall
not-

(a) revive anything not in force or
existing at the time at which the repeal
takes effect; or

(b) affect the previous operation
of any enactment so repealed or anything
duly done or suffered thereunder; or

(c) affect any right, privilege,
obligation or liability acquired, accrued or
incurred under any enactment so repealed;
or

(d) affect any penalty, forfeiture
or punishment incurred in respect of any
offence committed against any enactment
so repealed; or

(e) affect any investigation, legal
proceeding or remedy in respect of any
such right, privilege, obligation, liability,
penalty,
forfeiture
or
punishment
as
aforesaid;

and any such investigation, legal
proceeding or remedy may be instituted,
continued or enforced, any any such
penalty, forfeiture or punishment may be
imposed as if the repealing Act or
Regulation had not been passed."

10. From the perusal of Section 6 of
the General Clauses Act, it appears that the
repeal of Cr.P.C. shall not affect any
investigation, legal proceeding or remedy
in respect of any liability, penalty or
punishment accrued or incurred under the
repealed Act and such investigation, legal
proceeding or remedy will continue under
the repealed Act. It is also clear from
908 INDIAN LAW REPORTS ALLAHABAD SERIES
Section-6 of the General Clauses Act, the
repeal of I.P.C. or Cr.P.C. will not affect
any right, liability accrued or incurred
under the repealed Act. Therefore, despite
repealing of IPC and Cr.P.C., liability to
get punishment under IPC will continue
and remedy like an appeal under Cr.P.C.
will remain as it is but the forum of appeal
being procedural in nature will be as per
the B.N.S.S.

11. In the case of Hitendra Vishnu
Thakur
&
Others
Vs.
State
of
Maharashtra & Others reported in
(1994) 4 SCC 602, the Hon'ble Supreme
Court considered the effect of repealed
provision by way of amendment in pending
cases and summarised the law relating to
the effect of the amendment of procedural
and substantive law. Hon'ble Supreme
Court in the case of Hitendra Vishnu
Thakur (supra) observed that while right
to forum and limitation is procedural in
nature, while right of appeal or right of
action is substantive in nature and further
observed that litigants have a vested right
in substantive law but no such right exists
in procedural law. Paragraph no.26 of the
Hitendra Vishnu Thakur (supra) is being
quoted as under:

"26. The Designated Court has
held that the amendment would operate
retrospectively and would apply to the
pending cases in which investigation was
not complete on the date on which the
Amendment Act came into force and the
challan had not till then been filed in the
court. From the law settled by this Court
in various cases the illustrative though
not exhaustive principles which emerge
with regard to the ambit and scope of an
Amending Act and its retrospective
operation may be culled out as follows:

(i) A statute which affects
substantive rights is presumed to be
prospective in operation unless made
retrospective, either expressly or by
necessary intendment, whereas a statute
which merely affects procedure, unless
such
a
construction
is
textually
impossible,
is
presumed
to
be
retrospective in its application, should
not be given an extended meaning and
should be strictly confined to its clearly
defined limits.

(ii) Law relating to forum and
limitation
is
procedural
in
nature,
whereas law relating to right of action
and right of appeal even though remedial
is substantive in nature.

(iii) Every litigant has a vested
right in substantive law but no such right
exists in procedural law.

(iv) A procedural statute should
not
generally
speaking
be
applied
retrospectively where the result would be
to create new disabilities or obligations
or to impose new duties in respect of
transactions already accomplished.

(v) A statute which not only
changes the procedure but also creates
new rights and liabilities shall be
construed
to
be
prospective
in
operation, unless otherwise provided,
either
expressly
or
by
necessary
implication."

12. Similarly, in the case of Neena
Aneja & Another Vs. Jai Prakash
Associates Ltd. reported in (2022) 2 SCC
161,
Hon'ble
Supreme
Court
again
observed that the amendment on the matter
of procedural law will be retrospective
unless a contrary intention emerges from
the statute. Relevant extract of paragraph
no.72 of Neena Aneja's case (supra) is
being quoted as under:
8 All. Deepu & Ors. Vs. State of U.P. & Ors.
909

"72. In considering the myriad
precedents that have interpreted the impact
of a change in forum on pending
proceedings and retrospectivity-a clear
position of law has emerged : a change in
forum lies in the realm of procedure.
Accordingly, in compliance with the tenets
of statutory interpretation applicable to
procedural law, amendments on matters of
procedure are retrospective, unless a
contrary intention emerges from the
statute......................"

13. Effect of Repeal of I.P.C. and
Cr.P.C. and enforcement of new Criminal
Laws
(BNS
and
BNSS)
was
also
considered by the Punjab & Haryana High
Court in the case of XXXX Vs. State of
Union Territory of Chandigarh and
Another
(CRM-M-31808-2024
dated
11.07.2024) which was subsequently relied
upon by the Kerela High Court in the case
of Abdul Khadir Vs. State of Kerala in
Crl. Appeal No.1186 of 2024 dated 15
July, 2024 and observed that a fresh appeal
or application or revision of the petitioner
after the repeal of Cr.P.C. could be filed
under the BNSS not under Cr.P.C. and
remedial
applications/petitions
after
01.07.2024 could be filed only under BNSS
not under the Cr.P.C. even though the
offence was committed prior to 01.07.2024.
Paragraph no.9 of the XXXX Vs. State of
Union Territory of Chandigarh (supra)
is being quoted as under:

"9. As a sequel to the above-said
rumination,
the
following
principles
emerge:

I.
The
Code
of
Criminal
Procedure, 1973 stands repealed w.e.f.
01.07.2024. Ergo; no new/fresh appeal or
application or revision or petition can be
filed under Code of Criminal Procedure,
1973 on or after 01.07.2024.

2. The provisions of Section 4 and
Section 531 of BNSS, 2023 are mandatory
in nature as a result whereof any
appeal/application/revision/petition/trial/in
quiry or investigation pending before
01.07.2024 are required to be disposed of
continued, held or made (as the case may
be) in accordance with the provision of
Code of Criminal Procedure, 1973. In
other
words;
any
appeal/application/revision/petition
filed
on or after 01.07.2024, is required to be
filed/instituted under the provision of BNSS
2023.

3.
Any
appeal/application/revision/petition
filed
on or after 01.07.2024 under the provisions
of Cr.P.C., 1973 is non-maintainable &
hence would deserve dismissal/rejection on
this
score
alone.
However,
any
appeal/application/revision/petition
filed
upto 30.06.2024 under the provisions of
Cr.P.C., 1973 is maintainable in law. To
clarify;
in
case
any
appeal/application/revision/petition is filed
upto 30.06.2024 but there is defect
(Registry objections, as referred to in
common parlance) and such defect is
cured/removed on or after 01.07.2024,
such
appeal/application/revision/petition
shall be deemed to have been validly
filed/instituted on or after 01.07.2024 and,
therefore, would be non- maintainable.

4. Section 531 of BNSS shall
apply to "revision", "petition" as also
"petition of complaint" (ordinarily referred
to as complaint before Magistrate) with the
same vigour as it is statutorily mandated to
apply to "appeal/application/trial/inquiry
or investigation" in terms of Section 531 of
BNSS."

14. From the above-discussed case,
the following legal position is culled out:
910 INDIAN LAW REPORTS ALLAHABAD SERIES

(i)
that
amended/repealed
procedural
law
will
be
applicable
retrospectively unless otherwise provided
in the new Act itself;

(ii) liability or right accrued
under the repealed Act will not be affected
and same will continue as if the repealing
Act did not come into force;

(iii) procedure of investigation,
trial, revision and appeal as well as a forum
of remedy is part of procedural law, and the
same will be applicable retrospectively
unless otherwise provided in the new
procedural law;

(iv) Litigants have no vested right
in procedural law but has vested right in
substantive law with accrued right or
liability. The statute which not only
changes the procedure but also creates new
rights and liabilities, shall be construed to
be prospective in nature unless otherwise
provided.

15. From the above analysis it is clear
that if any offence is committed prior to the
enforcement of new criminal laws, then if
the
F.I.R.
is
registered
after
the
enforcement of new criminal laws, then the
same will be registered under the provision
of I.P.C. in view of the Article 20 of the
Constitution of India, but the procedure for
the investigation will be as per the BNSS.
Similarly, in case the offence is committed
after the enforcement of new criminal laws
and thereafter the F.I.R. is registered, then
the investigation would be conducted as per
the BNSS. However, in case the offence is
committed prior to the enforcement of new
criminal laws, and F.I.R. is also registered
prior to the enforcement of new criminal
laws then the procedure of investigation
would be as per the Cr.P.C. in view of
Section 531(2)(a) of the BNSS. Therefore,
the procedure of investigation provided by
the circular dated 7.4.2024 of the Police
Technical Services Headquarter, U.P. is
absolutely correct.

16. On the basis of above analysis,
this Court is also summarising the law
regarding effect of repealing the IPC and
Cr.P.C. by BNS and BNSS respectively
and same is being mentioned as below:

(i) If an FIR is registered on or
after 1.7.2024 for the offence committed
prior to 1.7.2024, then FIR would be
registered under the provisions of IPC but
the investigation will continue as per
BNSS.

(ii) In the pending investigation
on
01.07.2024
(on
the
date
of
commencement of New Criminal Laws),
investigation will continue as per the
Cr.P.C. till the cognizance is taken on the
police report and if any direction is made
for further investigation by the competent
Court then same will continue as per the
Cr.P.C.;

(iii) The cognizance on the
pending
investigation
on
or
after
01.07.2024 would be taken as per the
BNSS and all the subsequent proceeding
including enquiry, trial or appeal would be
conducted as per the procedure of BNSS.

(iv) Section 531(2)(a) of BNSS
saved only pending investigation, trial,
appeal, application and enquiry, therefore,
if any trial, appeal, revision or application
is commenced after 01.07.2024, the same
will be proceeded as per the procedure of
BNSS.

(v)
The
pending
trial
on
01.07.2024, if concluded on or after
01.07.2024 then appeal or revision against
the judgement passed in such a trial will be
as per the BNSS. However, if any
application is filed in appeal, which was
pending on 01.07.2024 then the procedure
of
Cr.P.C.
will
apply.
8 All. Mahant Bhagwati Prasad Chela Late Mahant Janki Das Vs. State of U.P. & Ors.
911

(vi) If the criminal proceeding or
chargesheet is challenged before the High
Court on or after 01.07.2024, where the
investigation was conducted as per Cr.P.C.
then same will be filed u/s 528 of BNSS
not u/s 482 Cr.P.C.

17. Coming back to the facts of the
case, it has been pointed out that in view of
the statement of the victim recorded under
Section 164 CrPC, Section 376 (2)(n) has
been deleted and all other offences are
punishable with imprisonment upto seven
years.

18. Although the prayer for quashing
of FIR has been made, but without insisting
on the same, only submission is that all
alleged offences are punishable with
imprisonment upto seven years, therefore
the police authorities are bound to follow
the procedure laid down under Section 41A Cr.P.C. The petitioners have been
wrongly implicated and should not be
arrested. Reliance has been placed on the
judgement of Apex Court in Arnesh
Kumar Vs. State of Bihar, (2014) 8 SCC
273 and Social Action Forum for Manav
Adhikar Vs. Union of India, Ministry of
Law and Justice and others in Writ
Petition (Civil) No. 73 of 2015 with
Criminal Appeal No. 1265 of 2017 Writ
Petition (Criminal) No. 156 of 2017 and
in Satendra Kumar Antil vs. Central
Bureau of Investigation and Another
(2022) 10 SCC 51 and co-ordinate
Division Bench of this Court in Vimal
Kumar & 3 others Vs. State of U.P. & 3
others in 2021 (2) ACR 1147.

19. We have gone through the
impugned first information report and
without interfering in the same, we are of
the opinion that the guidelines framed by
the Apex Court in the above noted
judgement are equally applicable to the
facts of the instant case.

20. Accordingly, the instant petition
also stands disposed of in terms of the
judgements as noted above.

21. Registrar (Compliance) is directed
to send a copy of this order to the Director
General of Police, Uttar Pradesh who will
circulate the same to all the District Police
Chiefs who will further sensitize the
investigating
officers
under
their
supervision.
----------
(2024) 8 ILRA 911
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 12.08.2024

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Matters U/A 227 No.3555 of 2024

Mahant
Bhagwati
Prasad
Chela
Late
Mahant Janki Das ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Vinay Misra, Amulya Pandey

Counsel for the Respondents:
G.A.

Arms Act,1959 -Police seized a revolver of the
petitioner with live cartridges along with license
book - on the basis of a false criminal case-
revolver along with cartridges, bore and wooden
sticks were returned but Petitioner's license
book was not returned - petitioner's rights under
Article 21 of the Constitution were violated. -
Police had indeed misplaced the license book -
admitted misconduct - Second license book
issued by police .

W.P. partly allowed. (E-9)