Source: Kerala High Court 

Why in News? 

Recently, the Kerala High Court in the matter of Abdul Khader v. State of Kerala has held that the petition filed on or after 1st July 2024 shall be proceeded as per the provisions of Bharatiya Nagarik Suraksha Sanhita 2023 (BNSS). 

What was the Background of the Abdul Khader v State of Kerala Case? 

• In this case, the appellant was convicted by the trial court. 
• The proceedings in trial court were held as per the provisions of Code of Criminal Procedure (CrPC). 
• The appellant aggrieved by the decision of the Trial Court filed an appeal invoking the provisions of Section 374(2) of CrPC on 10th July 2024. 
• The question was whether appeal to be filed under CrPC or BNSS. 

What were the Court’s Observations? 

• The Kerala High Court observed the reading of Section 531 (1) and 531 (2)(a) of BNSS. 
• It was inferred from these provisions that the appellate has the right to appeal but does not have the vested right in respect of the procedural law that is to be followed for filing an appeal unless it is expressly provided in a statute. 
• In this case the appellant had the right to appeal. 
• It was held by the court that for ongoing proceedings on 1st July 2024 the provisions under CrPC are applicable while if the proceedings have been concluded before 1st July 2024 then provisions of BNSS shall be applicable. 

What is Section 531 (1) and (2)(a) of BNSS? 

• Repeal  
  • Clause (1) of Section 531 repeals the CrPC. 
• Savings Clause  
  • Clause (2) introduces a savings provision, preserving certain aspects of the repealed CrPC. 
• Pending Matters  
  • Clause (2)(a) specifically addresses pending legal proceedings, including:  
    • Appeals 
    • Applications 
    • Trials 
    • Inquiries 
    • Investigations 
• Continuation of Pending Matters  
  • Any proceeding pending immediately before the BNSS comes into force will continue under the old law. 
  • These matters will be disposed of, continued, held, or made in accordance with the provisions of the CrPC. 
• Application of Old Law  
  • The CrPC, as it existed immediately before the commencement of BNSS, will apply to these pending matters. 
  • This application occurs as if the BNSS had not come into force. 

What is Provision Related to Appeals from Conviction Under BNSS? 

• It is given under Section 415 of BNSS while under Section 374 of CrPC which reads as: 
  • Appeals to Supreme Court  
    • Applicable to: Persons convicted by High Court in its extraordinary original criminal jurisdiction 
  • Appeals to High Court  
    • Applicable to persons convicted by Sessions Judge or Additional Sessions Judge 
    • Applicable to persons convicted in any court where sentence of imprisonment exceeds seven years 
  • Appeals to Court of Session  
    • Persons convicted by Magistrate of first class or second class can prefer appeal. 
    • Persons sentenced under section 364 can prefer appeal. 
    •  
    • Persons against whom an order or sentence has been passed under section 401 by any Magistrate can prefer appeal. 
  • Exceptions  
    • Sub-section (3) begins with "Save as otherwise provided in sub-section (2)". 
    • This indicates that the provisions for appeal to the Court of Session do not apply if the case falls under sub-section (2). 
  • Hierarchical Appeal Structure  
    • The section establishes a clear hierarchy for appeals based on the convicting court and the severity of the sentence. 
  • Right to Appeal  
    • This section ensures that convicted persons have the right to appeal their convictions to a higher court, depending on the circumstances of their case 
  • Note 
    • Under the new provision “a Metropolitan Magistrate or Assistant Sessions Judge" are excluded. 

Case Laws 

• XXX v. State of UT Chandigarh and Another (2024): The guidelines have been issued by the Punjab & Haryana High Court as: 
  • An appeal filed on or after 1st July 2024 shall be governed by BNSS. 
  • Irrespective of whether the conviction was given on or before 1st July 2024 or if the appeal is filed on or after 1st July 2024, BNSS is to be followed. 
  • All applications filed and steps taken in appeals prior to 1st July 2024 shall be governed by CrPC. 
  • When an appeal/ application is re-presented after curing defects, its date of filing shall be the date of its first presentation. 
  • any appeal/ revision/ application/ revision filed on or after 1st July 2024 under CrPC will be non-maintainable and would be dismissed/ rejected. 
• Anoop K. A. @ Anoop @ Anu v. Union of India (2021): The court in this case held that procedural amendments are applied retrospectively unless until expressly provided otherwise.