In a significant legal development that underscores the transition from the old criminal laws to the new regime, the Gujarat High Court recently declared the police remand of an accused under the Bharatiya Nagarik Suraksha Sanhita (BNSS) as illegal. The court’s decision came while hearing a Habeas Corpus petition, highlighting critical procedural lapses that occurred during the switch from the Code of Criminal Procedure (CrPC) to the BNSS.
The ruling serves as a vital reminder to investigative agencies and the lower judiciary about the "Repeal and Savings" provisions, ensuring that the rights of the accused are not compromised during the implementation of India's new criminal laws.
The case revolves around a petition filed by the father of two individuals, Vipul Tiwari and Pratik Tiwari. The petitioners approached the High Court with a Writ of Habeas Corpus, a powerful legal tool used to protect individuals against illegal detention. They contended that their sons were being held in custody without proper legal authority, rendering their detention "illegal."
The core of the dispute lay in how the police handled the investigation and remand process. The FIR in the matter was registered in September 2024 for various offences under the Bharatiya Nyaya Sanhita (BNS) including sections related to assault and criminal conspiracy. While the investigation was ongoing, the police sought and obtained remand under the provisions of the BNSS, which replaced the CrPC on July 1, 2024.
The primary question before the Gujarat High Court was whether the police could apply for and obtain remand under the new BNSS for an investigation that effectively "kicked in" or related to an FIR where proceedings were governed by the timing of the transition.
Section 531 of the BNSS acts as the "Repeal and Savings" clause. It states that while the CrPC is repealed, any investigation, inquiry, or proceeding pending before July 1, 2024, should continue under the old Code (CrPC). However, the confusion often arises in cases where the crime was committed before the cutoff but the FIR or specific applications (like remand) are filed after the cutoff.
In this specific instance, the court noted that the mechanical application of the new law to a situation that required adherence to the old procedural safeguards resulted in a "lack of jurisdiction" for the remand order.
The High Court observed that a Habeas Corpus petition is maintainable even against a judicial order of remand if that order is passed in a "wholly mechanical manner" or suffers from a "total lack of jurisdiction."