The 3 Criminal Laws are yet to come into force.

When the new laws come into force, we will be in a position to draft petitions
and argue cases under both the Cr.P.C., 1973 (hereinafter “old Code”) and the
Bharatiya Nagarik Suraksha Sanhita (hereinafter “new Code”). In this article, we
will be looking at some of the basic areas where we need to be conscious while
drafting or arguing our case.

As per Section 531(2)(a) of the new Code, all the appeals, applications, trials,
inquiries and investigations initiated under the Code of 1973 will be governed
by the same old Code. The provision reads,

The word “inquiry” under Section 531(2)(a) will not include the preliminary
inquiry conducted by the police. This is because an “inquiry” as defined by both
the old Code1, and the new Code2,
An “investigation” does
not commence until the registration of FIR. This can be seen in the observation
3
of the Hon’ble SC in , wherein it was said

1
Section 2(g).
2
Section 2(k).
3
(2022) 13 SCC 675.
that,

Thus, irrespective of whether a preliminary inquiry had commenced under the

old Code or not, the date of registration of FIR will determine the which Code
will govern the investigation. (Although this may seem like a basic issue to warrant
discussion, this may bring up issues too)

When a Magistrate is yet to take cognizance, he is considering if there are

sufficient grounds to proceed. This also falls under the category of .
Therefore, if a chargesheet is filed before the new Code comes into force, then
even if the Magistrate takes cognizance after the new Code comes into force, he
will have to take cognizance under the provisions and in accordance with the
provisions of the old Code, since an “inquiry” was pending already.

The stage between Cognizance and trial is also “inquiry”. Therefore, the same
logic as discussed above, would apply to this stage too.

Where a Magistrate has committed a case to the Sessions Court, and before the
trial before the Sessions Court commences, the new Code comes into force, the
old Code shall still apply to the trial. This can be seen from the observation
made by the Andhra Pradesh HC in the case of
4
,wherein it had been observed that since an inquiry by the Magistrate was
over before committal, “trial” was pending before the Sessions Court, therefore
the provisions of the Criminal Code of 1898 would apply, and not those of the
Code of 1973. The same logic would apply here as well.

4
(1974) 2 AP.L.J. 204.
 These would fall under the category “application”, and if a bail/anticipatory bail
application was made and pending before the new Code comes into force, then
the old Code shall continue to be applied for such applications.

The limitation to make any application(including revision)/appeal, etc., will be

the limitation provided under the old Code. This can be seen from the case of
5
, where the Orissa HC had
taken the view that Section 484(3) of the Code of 1973 meant that limitation
provided under the Code of 1898 must apply to the proceedings initiated
therein. Likewise has to be interpreted the
same way.

A “further investigation” directed/ made at any stage of a criminal proceeding,

is still a . Hence, if the initial
investigaton had been made under the old Code, the further investigation, even
if directed/ made after the new Code comes into force, will be bound by the
provisions of the old Code only.
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5
1976 SCC OnLine Ori 105 : 1977 Cri LJ 142.