Excelsior Correspondent
Srinagar, Apr 22: High Court in a significant decision has held that the commission of offences before enforcement of Bharatiya Nagarik Suraksha Sanhita (BNSS) shall be dealt by the criminal courts under new law (BNSS) when proceedings are filed by the aggrieved persons after enforcement of new law (BNSS).
Justice Sanjay Dhar has solved this issue by setting aside the order of Special Judge Anti-Corruption Jammu whereby the trial court had taken the cognizance of the matter under old law (Code of Criminal Procedure) citing the offence has taken place before the enforcement of new law (BNSS) while as the complaint was filed after coming into force of new criminal law.
The trial court proceedings have been challenged by the accused on the ground that the court below has committed an error while dealing with a complaint against him by proceeding under old law while the complaint was filed after enforcement of new law (BNSS).
The question of law has been raised in the present petition by the accused-petitioner as to whether, in a complaint pertaining to an offence committed prior to the coming into force of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), the procedure is to be governed by the provisions of the Code of Criminal Procedure, 1973 CrPC) or by the provisions contained in the BNSS.
Justice Dhar while setting aside the cognizance order passed in the complaint said the Special Judge, having erroneously applied the provisions of Section 200 of CrPC, 1973, to the present case, has straightway taken cognizance of the offences and issued process against the petitioner and co-accused without affording them an opportunity of hearing.
“Since the procedure adopted by the Special Judge is not in accordance with the mandate of Section 223 of the BNSS, as such the impugned order dated 30.09.2024 is unsustainable in law. For the foregoing reasons, the petition is allowed, and the order impugned is set aside”, the court concluded.
The court has remanded the matter back to the Special Judge with a direction to proceed afresh in accordance with the procedure prescribed under the BNSS while dealing with the complaint filed by the respondent-complainant against the petitioner-accused and the co-accused.
The court has held and clarified that the offences even though committed before the enforcement of new law has to be tried by the criminal court under this law when the pleadings are filed after the enforcement of the new law and remanded the matter back to the court below with the directions to proceed afresh in accordance with the procedure prescribed under the BNSS while dealing with the complaint in question.
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