Thus after carefully considering the above decisions of the
Apex Court and of this Court and the provisions of Section
531(2)(a) of BNSS 2023 thereby saving the provisions of Cr.P.C.
in connection with pending investigation, there is no confusion
or even doubt about the fact that provisions of CrPC 1973 would
apply with equal force to a pending investigation prior to
01.07.2024. In the present matter, the offences alleged against
the Respondents are clearly under the provisions of Indian Penal
Code and the FIR was registered even prior to 01.07.2024. The
investigation commenced on 14.06.2024 and same was pending
as on 01.07.2024 when the provisions of BNSS came into force.
67. Accordingly, the provisions of Cr.P.C. 1973
shall apply and continue to apply to the investigation carried out
by the investigation agency in respect of FIR Nol. 1/2024
registered before the Economic Offences Cell Panaji Goa. Point
No. 1 is answered accordingly. {Para 66}
IN THE HIGH COURT OF BOMBAY AT GOA
CRIMINAL WRIT PETITION NO.618 OF 2024(F)
Chowgule and Company Pvt. Ltd. Vs The Public Prosecutor,
CORAM: BHARAT P. DESHPANDE, J.
PRONOUNCED ON: 02nd August, 2024
1. Heard Mr. Rizwan Merchant along with Mr. Gaurish Agni,
Mr. Ramiz Shaikh, Mr. Nihal Kamat, Mr. Harshil Gandhi and
Mr. Kishan Kavlekar, learned Advocates for the Petitioner; Mr.
Shailendra Bhobe learned Public Prosecutor along with Mr.
Nikhil Vaze, Additional Public Prosecutor for Respondent Nos. 1
and 2; Mr. Shivan Desai along with Mr. Varun Bhandanker and
Ms. Maria Viegas, learned Advocates for the Respondent No.3 in
WPCR (F) No.618/2024 and Mr. Parag Rao along with Mr. Akhil
Parrikar, Ms. Sowmya Drago and Mr. Ajay Menon, learned
Advocates for Respondent No.3 in WPCR(F) No. 619/2024
2. Both these petitions are taken up together as it raises the
same grounds and the prayers in connection with two
anticipatory bail applications filed by the Respondents arising
out of the same First Information Report (FIR).
3. Rule.
4. Rule is made returnable forthwith.
5. Both the matters are taken up for final disposal at the
admission stage itself with the consent of the parties as it raises
an important question regarding the interpretation of the new
laws introduced by the Parliament which came into effect from
6. In the above petitions, the interpretation with regard to the
provisions of the New Act/Code i.e. ‘Bhartiya Nagarik Suraksha
Sanhita 2023’, and more particularly, the repeal provision under
Section 531 of the said Sanhita is under consideration.
7. The Petitioners in both these petitions is a Private Limited
Company who filed a complaint against the Private Respondent
on the allegations that said Private Respondents committed
offences punishable under Sections 409, 420, 477A r/w 120-B of
the Indian Penal Code (I.P.C. for Short). The First Information
Report was registered on 14.06.2024 by the Economic Offences
Cell Goa.
8. The Private Respondents/Respondent No.3 preferred an
application for bail in anticipation of arrest under Section 438 of
Criminal Procedure Code, 1973 before the learned Sessions
Court Panaji, which was filed on 19.06.2024. While dealing with
such application and on 20.06.2024, the learned Sessions Judge
North Goa Panaji granted ad-interim bail to Respondent No. 3
till the next date, i.e. on 24.06.2024. The Petitioners filed an
intervention application before the learned Sessions Court at
Panaji on 24.06.2024 by opposing the bail application.
Similarly, the Petitioner filed a Miscellaneous Application in the
said bail matter on 25.06.2024 thereby raising maintainability
of bail application before Panaji Court for want of territorial
jurisdiction.
9. It so happened that on 05.07.2024, learned Sessions Court
North Goa Panaji allowed the preliminary objections raised by
the Petitioner thereby holding that the said court is not having
jurisdiction. However, while deciding such aspect, learned
Session Judge Panaji granted protection to the Respondent No.3
for a period of 72 hours.
10. The Respondent No. 3 then preferred an application for
bail in anticipation of arrest before learned Session Court at
South Goa Margao on 06.07.2024. On the same day, the
Respondent No.3 prayed for an ad-interim protection, however,
the Court observed that since learned Sessions Judge Panaji
granted such protection for a period of 72 hours which continued
while filing the application for bail no further order is necessary
and issued notices. However, on 08.07.2024, the Petitioner
intervened in the said application before learned Session Judge
South Goa Margao which application was kept pending as on
date. Learned Sessions Court at Margao vide impugned order
dated 08.07.2024 granted interim bail to Respondent No.3
which is challenged under the present proceedings.
11. Mr. Merchant learned counsel appearing for the
Petitioners strenuously urged that first of all new Code, herein
after referred as ‘Bhartiya Nagarik Suraksha Sanhita, 2023’
(‘BNSS’ 2023 for short) came into force from 01.07.2024 and as
per the repeal provisions, Code of Criminal Procedure, 1973
(Cr.P.C. 1973 for short) stands repealed. He would submit that
from 01.07.2024, no proceedings under the repealed Code could
be entertained including an application filed by Respondent
No.3 under Section 438 of Cr.P.C. 1973.
12. Mr. Merchant would further submit that the interim
protection granted by the learned Sessions Judge Panaji
automatically came to an end when the application was
presented for grant of bail in anticipation of arrest before South
Goa Court and more specifically when no interim protection was
granted or continued, as on 06.07.2024. He would therefore,
submit that entertaining any application under Section 438 of
the Code of 1973 by the learned Sessions Court at South Goa
Margao is itself erroneous. He submits that such application
ought to have been rejected at the inception itself as not
maintainable since by that time all the procedure which was
available prior to 01.07.2024 stands repealed and the effect of
such repeal is that provisions of code of 1973 are not on statute
book. He would submit that any application for grant of bail in
anticipation of arrest on or after 01.07.2024 must be under the
provisions of BNSS 2023 and more particularly under Section
482. He submits that the Petitioners filed an application for
intervention before the Session Judge at South Goa which is now
kept for arguments and orders. However, allowing interim bail
during pendency of main application is itself without
jurisdiction.
13. Mr. Merchant would submit that there is no provision or
scope under Section 482 of BNSS to grant any interim protection
or any interim bail. Such protection cannot be inferred or looked
into when the Legislature in its full wisdom did not incorporate
such provision of ad interim bail, though, it was available under
Section 438 of Code of 1973. He submits that the intention of
taking away such power has to be looked into and the Court
cannot interpret what is not given under the said provision even
by considering inherent power.
14. Mr. Merchant would submit that Section 531 of BNSS will
have to be read with Section 358 of ‘The Bhartiya Nyaya Sanhita,
2023’ (BNS 2023 for short). He would submit that the BNS 2023
also repeals all the provisions of the Indian Penal Code 1860 and
therefore, both the provisions will have to be read together.
15. Mr. Merchant would then submit that the word
investigation as referred to in Section 358(2)(d) of BNS 2023 will
have to be taken into consideration only with regard to
penalty/punishment that too after the entire trial is over. He
submitted that the saving clause is limited to the part of the
investigation with regard to penalty and punishment but not
otherwise. According to him the repeal provisions clearly goes to
show that no provisions of the repealed Code shall be in force
from 01.07.2024 and the investigation is also required to be
conducted from 01.07.2024 as provided under BNSS 2023. In
other words, Mr. Merchant submits that even though the FIR is
registered on 14.06.2024 and the investigation commenced as
per the code of 1973, it has to continue only up to 30.06.2024
but from 01.07.2024, even investigation shall be conducted
under the provisions of BNSS 2023. He tried to elaborate this
submission on the ground that the object and reasons of BNSS
2023 are loud and clear and there are certain chapters added
with regard to Scientific and technical investigation. He also
submits that such investigation also expands beyond the
territories of India and therefore, the FIR which has been lodged
against Respondent no.3 will have to be conducted by
investigating as per the provisions of BNSS of 2023. He submits
that if there are any additional offences carved out during the
investigation, the same must be investigated as per the
provisions of BNSS 2023 and such additional offences could be
on the basis of BNS 2023 and not under the provisions of IPC
1860. He further submitted that the Evidence Act is also now
repealed and its place a new ‘The Bhartiya Sakhsya Adhiniyam,
2023’ is introduced which also came into effect from 01.07.2024.
16. The main thrust of Mr. Merchant is on the entertainment
of application under Section 438 of the Code of 1973 by the
learned Sessions Court and by granting ad interim relief in terms
of interim bail. While relying on various decisions on the
interpretation as well as on the repeal of the provisions, he would
submit that there is no question of reviving earlier orders which
has been tried to be resorted by the learned Sessions Court. The
intention of Legislature in BNSS 2023 clearly shows that there is
no power to grant any interim bail. Even otherwise, when the
application under Section 438 of the Code of 1973 is not
maintainable, the learned Sessions Court was not empowered
even to grant interim bail under the repealed provision.
17. Mr. Merchant would submit that there is no question of
considering the application for bail in anticipation of arrest filed
under Section 438 of the Code of 1973 to an application under
Section 482 of BNSS 2023. When the provision itself does not
exist, the power to exercise the jurisdiction under such provision
cannot be exercised.
18. With regard to interpretation of the provisions, Mr.
Merchant claimed that internal and external aids are required to
be taken into account and that the parliament while enacting
BNSS 2023 clearly avoided to include the power of grant of
interim bail under Section 482 of BNSS, it cannot be read into it
by taking aid of the decisions.
19. Mr. Merchant while elaborating his submissions also
claimed that if such power is considered as existing for grant of
interim anticipatory bail, then even incase of regular bail, the
Accused would apply for interim bail during pendency of regular
bail application filed under Section 439 under the Code of 1973
or even under the provisions of BNSS 2023. Such interpretation
would lead to absurdity.
20. Mr. Merchant would further submit that procedural law
though could be applied retrospectively there is no vested right
to grant interim bail to an accused under the provisions of BNSS
2023.
21. Mr. Merchant would submit that the object and reason in
enacting BNSS 2023 is to bring transparency in investigation,
trial and all other proceedings in a time bound frame. However,
it is the experience that such investigation is hampered and
delayed due to ad interim protection granted pending bail in
anticipation of arrest. Such proceedings were protracted and
kept pending for months together, with a purpose to avoid
joining investigation and thereby destroying valuable evidence
in the meantime. A conscious decision taken by the legislature
not to incorporate any provision of interim bail in BNSS 2023
which has to be respected by the Court. He submits that the
Court cannot read between the lines which is not intended to be
incorporated by the legislature.
22. The f0llowing decisions are referred by Mr. Merchant,
learned counsel for the Petitioner: (a) State of Uttar Prades
Vs. Mohd. Afzal & Ors., in Criminal Appeal No. – of
2023 arising out of SLP(Crl.) No. 6740 of 2022 dated
18.07.2023, (b) Bipinchandra Parshottamdas Patel Vs.
State of Gujarat and Others, (2003) 4 SCC 642,
(c)Krishna Joshi Vs. State of Rajasthan, though
Director General of Police Headquarters, Rajasthan
Jaipur, 2024:RJ-JD:27741; (d) Abhishek Jain Vs. State
of U.T. Chandigarh and anr.,CRM-M-31808-2024
decision dated 11.07.2024,(e) Abdul Khader Vs. State
of Kerala order in CRL.A no.1186 of 2024 dated
15.07.2024;(f)S.Rukmini Madegowda Vs. State
Election Commission and Others, 2022 SCC OnLine SC
1218;(g) Pernod Ricard India (P) Ltd., Vs. the State of
Madhya Pradesh & Ors., 2024 LiveLaw (SC) 321;(h)
Prince Vs. State of Government of NCT Delhi
&Ors.,(2023) 300 DLT 714.
23. Per contra, Mr. Shivan Desai learned Advocate appearing
for Respondent No. 3 in WPCR. 618 of 2024(F) would submit
that quoting wrong provisions of law would not in any manner
preclude the concerned Court from considering the application
for grant of bail in anticipation of arrest under the correct
provisions though the Code of 1973 is now repealed, since similar
provision by way of Section 482 under BNSS 2023 which could
be considered for deciding the application.
24. Besides, Mr. Desai would submit that the filing of bail
application is itself during investigation and once the
investigation is saved under the repealed code, application filed
under Section 438 of the Code of 1973 is also saved.
25. Mr. Desai would submit that the provisions of Section 531
of BNSS are in pari materia of the old Code 1973 and more
specifically Section 484 of the Old Code and therefore the
provisions will have to be governed when a specific saving clause
exist. He submits that the pending investigation under the old
code of 1973 is clearly saved under the saving clause of Section
531 of BNSS. Thus, when FIR was registered on 14.06.2024, the
investigation commenced under the Code of 1973 and such
investigation has to be considered as pending investigation as on
the date of 01.07.2024, when BNSS 2023 came into effect. Mr.
Desai would submit that the word ‘pending’ clearly means what
was going on as on the date BNSS 2023 came into force. He
would further submit that the allegations against Respondent
No. 3 is clearly with regard to the offences concluded prior to
filing of the FIR and that too under the Indian Penal Code which
is also saved by the provisions of BNS 2023 and more specifically
by Section 358 in Chapter XX dealing with repeal and savings.
26. Mr. Desai would submit that earlier bail application was
admittedly filed under Section 438 of Code of 1973 and though
it was withdrawn from the Sessions Court at Panaji, separate
application was filed before the session Court South Goa Margao
by mentioning in the title itself that such application is under
Section 438 of the Code of 1973 or under Section 482 of BNSS of
2023.
27. Mr. Desai would further submit that it is well settled
proposition of law that if the Court is having power to grant final
relief in the form of bail in anticipation of arrest the Court is also
having power to grant interim relief. For that purpose, there is
no requirement of such power to be mentioned in the particular
Section as it is inherent power to grant any relief till the
application is decided on merit.
28. Mr. Desai would further submit that though under Section
482 of BNSS, there is no mention of any power to grant interim
relief likewise there is no restriction on the Court. He therefore
submits that the interpretation has to be for advancing justice
and not scuttling the provisions. He submits that liberty of a
person is of utmost importance as provided under Article 21 of
Constitution of India which cannot be curtailed except by the
procedure established by law. When BNSS provides power to
grant of bail in anticipation of arrest, such power must be
interpreted of having inherent power to grant interim relief
otherwise application itself would become infructuous in case
the accused or the applicant is arrested before finally deciding
the application.
29. Mr. Desai placed reliance on the flowing decisions:
Natabar Parida Bisnu Charan Parida Batakrusna
Parida Babaji Parida Vs. State of Orissa (1975) 2 SCC
220, (b)Hitendra Vishnu Thakur & Ors. Vs. State of
Maharashtra & ors.(1994) 4 SCC 602;(c) Pragya Singh
Chandrapalsingh Thakur Vs. State of Maharashtra
(2017) SCC Online Bom 493, (d) Lal Kamlendra Pratap
Singh Vs. State of U.P. & Ors. (2009) 4 SCC 437, (e)
Sukhwant Singh & Ors. Vs. State of Punjab (2009) 7
SCC 559; (f) Manorati Mukund Gaude & Ors. Vs. Guru
Sheddu Gaude & Ors., (Writ Petition No. 102 of 2024),
(g) Sakiri Vasu Vs. State of Uttar Pradesh (2008) 2 SCC
409 and Dr. Ashok Shrawan Bawaskar Vs. National
Medical Commission, (2022) 4 Mah LJ 691; (h)
Gurbaksh Singh Sibbia & Ors. Vs. State of Punjab
(1980) 2 SCC 565.
30. Mr. Parag Rao learned Advocate appearing for
Respondent No. 3 in WPCR. 619 of 2024(F) would submit that
by filing a complaint dated 08.04.2024 and by registering an
offence on 14.06.2024 by the Economic Offences Wing,
investigation commenced under the provisions of Cr.P.C. 1973
and with the connection of the offences allegedly committed by
the Respondent/Accused persons under the provisions of IPC.
He would submit that the allegations in the complaint clearly
goes to show that the offences were committed much prior to the
date of registration of the complaint and such offences were
completed and accordingly the relevant provisions/Sections of
IPC were invoked. He, therefore, would submit that the
collection of evidence during investigation must be under the
provisions of Cr.P.C. and not under BNSS 2023.
31. Mr. Rao would submit that Section 4 of BNSS 2023 deals
with trial of offences which are referred to as an offence under
the BNS 2023 and not under IPC. He therefore, would submit
that by way of saving clause in the repeal Section, investigation
is clearly saved as if, the provisions of Cr.P.C. are still in force.
32. Mr. Rao would further submit that the purpose of
considering the anticipatory bail application will have to be
looked into, qua the offences alleged against Accused persons
which are basically covered under Indian Penal Code and not
under BNS 2023.
33. Mr. Rao would further submit that the offences alleged
against the Respondents are squarely covered under the
provisions of IPC and are made cognisable under the Schedule I
of Cr.P.C. Thus, investigation which commenced immediately on
registration of FIR as provided under Section 154 of Cr.P.C., the
investigating agency is entitled to invoke the provisions of
Section 41 of Cr.P.C. for the purpose of carrying out arrest of the
accused if required and that too without warrant. Such arrest
would certainly be a part of investigation which is saved under
the provisions of Repeal Section of BNSS 2023 and therefore,
even Section 41 of Cr.P.C is applicable to the matter in hand. He
would further submit that if it is considered that the arrest shall
govern under Section 41 of Cr.P.C., the Respondents are also
entitled to avail their right to protect their liberty by filing
application under Section 438 of Cr.PC. and not under the
provisions of Section 482 of BNSS 2023. He would further
submit that the Court will have to consider inter alia the nature
and gravity of accusation, the role of accused, the possibility of
tampering, the availability of the accused at the time of Trial, etc.
while considering either regular bail or bail in anticipation of
arrest.
34. Mr. Rao would further submit that even if it is considered
that the application for bail in anticipation of arrest has to be
under the provisions of Section 482 of BNSS 2023, such
provision being pari materia with Section 438 of Cr.P.C, implied
in it the power to grant ad interim bail during pendency of such
application. In this respect, he also placed reliance on the
decisions cited by Mr. Desai including the decision of the
Constitutional Bench in the case of Gurbaksh Singh (supra).
35. Mr. Rao would submit that the power under Section 438
of Cr.P.C. and now of Section 482 of BNSS 2023 which are pari
materia are widely couched and no unnecessary restrictions
should be read into, more particularly when the intent is to
protect life and liberty which is a cherished goal of the
Constitution and traceable to Article 21 of the Constitution of
India. He would submit that the object and purpose of bail in
anticipation of arrest is to avoid unnecessary harassment, and
curtailment of liberty, by allowing the accused to participate in
the investigating process on certain conditions.
36. Mr. Rao would submit that the Legislature with intent
avoided putting any particular provision for the grant of interim
bail in the provision of Section 482 since the Legislature is well
aware of the settled proposition of law that the power to grant
final reliefs includes the power to grant interim relief.
37. Mr. Rao placed reliance on the following decisions: (a)
Gurbaksh Singh Sibia and Ors. Vs. State of Punjab
(1980) 2 SCC 575, (b) Sakiri Vasu Vs. State of Uttar
Pradesh and Ors., (2008) 2 SCC 409, (c) Shail Kumari
Devi and Anr. Vs. Krishan Bhagwan Pathak, (2008) 9
SCC 632, (d) Manorati Mukund Gaude & Anr. Vs. Guru
Sheddu Gaude & Ors., W.P. No.102/2024; (e)Bhadresh
Bipinbhai Sheth Vs. State of Gujarat and Anr.(2016) 1
SCC 152
38. Mr. Shailendra Bhobe, the learned Public Prosecutor
appearing for the State while supporting the contentions raised
by Mr. Shivan Desai and Mr. Parag Rao further elaborated that
original Section 438 of Cr.P.C. introduced in the year 1973, is
pari materia with provision of Section 482 of BNSS 2023. He
would therefore submit that the interpretation of Section 438 by
the Constitutional Bench in the case of Gurbaksh Singh
(supra) would apply to Section 482 of BNSS 2023 with full
force.
39. Mr. Bhobe would submit that the amendment brought in
the year 2005 to Cr.P.C. and mainly to Section 438 (1) though
was inserted by the Amendment 2005 was never notified till
date. He would therefore submit that such amendment by Act 25
of 2005 to the Code of Criminal Procedure has not been brought
on the statute book since no effective date was notified and thus
it remains only on in the Amendment Act without making it as a
provision which is applicable or becoming a law.
40. Mr. Bhobe submits that subsequently such amendment
was introduced by some of the States by way of State amendment
and one of such State is the State of Maharashtra. Thus,
according to Mr. Bhobe, the original Section 438 is pari materia
with Section 482 of BNSS of 2023. In both these provisions there
is no disclosure of powers to grant ad interim bail pending the
decision of the main bail application. However, when the Apex
Court and that too a Constitutional Court observed that the
Sessions Court or the High Court while dealing under Section
438 of Cr.P.C . is having such power, it implied in this the power
to grant ad interim bail.
41. Mr. Bhobe would then submit that once such power is
implied in the Act itself, the question whether the application is
filed either under Section 438 of Cr.P.C. or under Section 482 of
BNSS 2023 would make no difference.
42. Mr. Bhobe would further submit that in Schedule Caste
and Schedule Tribes (Prevention of Atrocities) Act, there is
specific bar to entertain anticipatory bail application, however,
in spite of this, the Apex Court has observed that under certain
circumstances the Sessions Court or the High Court is entitled to
entertain application in anticipation of arrest. Accordingly, the
power cannot be restricted to curtail the jurisdiction of the Court
when such curtailment is not mentioned by the Legislature.
43. Mr. Bhobe placed reliance in the case of Dr. Sameer
Narayanrao Paltewar Vs. State of Maharashtra, dated
21.082021 in Criminal Application (APL) No. 393 of
2021 that “it is perhaps for this reason that such an amendment
never found its way in Section 438 of the Cr.P.C., as applicable
to the other parts of the country.”
44. In rejoinder, Mr. Merchant while reiterating his earlier
submission would submit that the investigation must continue
after 01.07.2024 under the provisions of BNSS 2023 including
the offences if found during the investigation. He would further
submit that the decision in case of Gurbaksh Singh (supra)
cannot be relied upon as a dicta since such observations are
within the specific power of the Apex Court under Article 142 and
the same were completely on different context. He submits that
the discussion in the case of Gurbaksh Singh (surpra) are
only regarding final decision in the anticipatory bail application
and not on any interim application.
45. With the able assistance of the learned counsel appearing
for the respective parties and after going through the entire
record, decisions, provisions, or the relevant Acts, the points for
determination are as under together with my findings against it:-
Point No.1- In a case where an FIR is
lodged/registered prior to 01.07.2024, what
could be the procedure of investigation that is
whether it should be continued under the
provisions of Cr.P.C. 1973 or under the
provisions of BNSS 2023.
Point No.2- Whether bail application filed by
Respondent No.3 on 06.07.2024 would be
governed by the provisions of Section 438 of
Cr.P.C. or by Section 482 of BNSS 2023.
Point No. 3- If it is observed that such bail
application has to be considered under Section
482 of BNSS 2023, whether the Court is
empowered/having jurisdiction to grant ad
interim bail pending decision of the main bail
application.
POINT NO.1
46. Firstly, I would like to discuss whether the investigation in
the present FIR could be governed by the provision of Cr.P.C. or
under the provision of BNSS 2023. In this regard, Section 531
which deals with repeal and savings, reads thus:-
531. Repeal and savings. -(1) The Code of Criminal
Procedure, 1973 (2 of 1974) 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 (2
of 1974), 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 therefor is specified by this
Sanhita or provisions are made in this Sanhita for the
extension of time.
47. A plain and simple reading of this provision and more
particularly the saving clause ie. Sub Section 2(a) as quoted
above would clearly go to show that the pending investigation
immediately before the date on which the said ‘Sanhita’ comes
into force shall be disposed of/continued, held or made as the
case may be in accordance with the code of Criminal Procedure
1973 as in force immediately before such commencement as if
this Sanhita has not come into force.
48. Thus the saving clause in Section 531 of BNSS 2023 clearly
and unambiguously save the investigation pending prior to
commencement of the BNSS 2023. The wordings in sub Section
2(a) of Section 531 of the BNSS 2023 would make it clear, that
even such pending investigation shall be disposed of, continued,
held or made as the case may be in accordance with the Code of
Criminal Procedure 1973.
49. Admittedly, BNSS 2023 came into effect from 01.07.2024.
The FIR in the present proceedings was lodged admittedly on
14.06.2024 which was registered as FIR no. 1 of 2024 before the
Economic Offences Cell for offences punishable under Section
409, 420, 477A r/w 120-B of IPC.
50. Thus, the investigation commenced immediately on
registration of FIR as provided under Section 157 of the Code of
Criminal Procedure which provides about the procedure for
investigation. The officer incharge of the Police Station on
receipt of information of a cognisable offence or he has reason to
suspect commission of an offence which he is empowered under
Section 156 to investigate shall forthwith send a report to the
Magistrate empowered to take cognisance and shall proceed in
person or shall depute one of his sub ordinate officer not below
such rank as the State Government may by general or special
order prescribe in this behalf to proceed, to the spot, to
investigate the fact and circumstances of the case and if
necessary, to take measures for the discovery of the arrest of the
offender. Such investigation must continue as provided under
the provisions of the Cr.P.C. under the Chapter XII till
submission of the report of the Police Officer under Section 173
of Cr.P.C to the concerned Court.
51. Thus, on registration of the FIR no.1/2024 on 14.06.2024
i.e. prior to the provisions of BNSS 2023 coming into force, the
investigation began and was pending. Such pending
investigation is clearly saved under the provisions of Section 531
of the BNSS 2023 as quoted above. Such investigation must
conclude under the provisions of Cr.P.C., as if provisions of
BNSS 2023 are not on the Statute Book or had not come into
force.
52. In the case of Krisha Joshi (supra), the Rajasthan High
Court while dealing with a similar petition observed in para 6
that if the FIR is registered prior to 01.07.2023 under the
provisions of Cr.P.C it would amount to the pending
inquiry/investigation within the meaning of Section 531(2)(a) of
BNSS 2023 and thus, entire subsequent investigation and even
the trial procedure qua such a FIR shall be then governed by
CrPC and not under BNSS.
53. We are only concerned in this petition with regard to
conclusion of investigation or continuation of investigation
under the provisions of Cr.P.C. and not with regard to the trial
or appeals etc. The observations of Rajasthan High Court only to
the effect that the subsequent investigation must conclude under
the provisions of Cr.P.C., has to be considered and the same is
required to be accepted for deciding the present proceedings.
54. In the case of Abhishek Jain (supra) the Punjab and
Haryana High Court after discussing various decisions of the
Apex Court clearly observed that the provisions of BNSS 2023
shall apply only with effect from 01.07.2024 but not to prior
proceedings including pending investigation, applications, trial,
appeals, etc. It is clearly observed that only pending proceedings
should be continued and disposed of in accordance with the
provision of Cr.P..C. 1973.
55. In the case of Prince (supra) the Delhi High Court
endorsing a similar view but in a different context observed that
the bail application filed in case FIR was registered prior to
01.07.2024, shall be governed by the provisions of Cr.P.C.1973,
however, petition filed after 01.07.2024 will have to be governed
by the BNSS 2023. The Delhi High Court observed that the
petition could be considered as filed under Section 482 of BNSs
2023.
56. In the case of Abdul Khader (supra) the Kerela High
Court considered the question of filing of appeal on 10.07.2024
as objections were raised with regard to the applicability of
provisions of criminal procedure code 1973 or that of BNSS
2023. In that context it has been observed that when an appeal
is filed after 01.07.2024, the same has to be under the provisions
of BNSS 2023 and not under the provisions of Cr.P.C. 1973.
57. Though, all the above judgments were referred by MR.
Merchant he was trying to canvass that the investigation will
have to be carried out under the provisions of BNSS after
01.07.2024. With respect, I am not inclined to accept such
contention for the simple reason that the saving clause under
Section 531 (2) (a) in clear and unambiguous terms saved the
provisions of Cr.P.C. 1973 with regard to pending investigation.
The contention of Mr. merchant cannot be accepted for the
purpose of continuing investigation partly under Cr.P.C. and
thereafter, from 01.07.2024 under the provisions of BNSS.
58. In the case of Pernod Richard India Limited
(supra), the Apex Court considered the distinction between
supersession of the rule and substitution of the rule and
observed that the process of substitution consists of 2 steps- (i)
the old rule is repealed and the next, a new rule is brought into
existence in its place. While considering various decision of the
Apex Court, para 13 it is observed that the operation of repeal or
substitution of a statutory provision is thus clear, a repealed
provision will cease to operate from the date of repeal and a
substituted provision will commence to operate from the date of
its substitution. This principle is subject to specific statutory
prescription. Statute can enable the repealed provision to
continue to apply to transactions that have commenced before
the repeal. Similarly, the substituted provisions which operates
prospectively, if it affects vested rights, subject to statutory
prescription can also operate retrospectively.
59. The above observations are infact supporting the
contention raised by the Respondent for the simple reason that
while repealing provisions of Cr.P.C 1973, the Legislature in its
full wisdom protected the pending investigation, applications,
inquiry, appeals, etc. to be governed by the repealed Act as if the
provisions of BNSS 2023 had not come into force. Thus, while
repealing the old Act, the provisions of the repealed Act are saved
and shall continue to apply to the transactions that have
commenced before the repeal. Admittedly, registration of FIR in
the matter is before the provisions of BNSS 2023 came into
effect.
60. Thus, by such a saving clause which is construed to be an
internal aid for the purpose of construction of a statute, save the
provisions of the old Code/repealed Code for certain categories
of investigation, inquiry, appeals, application etc.
61. In the case of Bipinchandra (supra) it has been held
that a statute is to be construed according to the intent of the
legislature as the golden rule of interpretation of the statute is
that it has to be given its literal and natural meaning. The
intention of the Legislature must be found out from the language
implied in the statute itself. The question is not what is supposed
to have been intended but what has been said. The Court is not
concerned with the reasons as to why the Legislature thought it
fit to lay emphasis on one category then the rest. This principle
would certainly apply to the matter in hand with full force. The
provision of repeal and savings under Section 531 of BNSS with
clear and unambiguous terms express the intention of the
legislature which is found in the language implied therein. Thus,
what has been stated in the said provision will have to be
considered in its letter and spirit. When there is no ambiguity,
the plain meaning of such provision will have to be taken into
account.
62. In the case of Natabar Parida (surpa), the Apex Court
while discussing the provisions of Section 167(2) of Cr.P.C.
observed that an occurrence took place on 08th March 1974
which resulted in filing FIR on 09.03.1974 and accordingly the
police investigation started for the offence punishable under
Section 147, 148, 307, 302 r/w 149 f IPC. The Accused persons
were arrested by the Police during the course of investigation on
10.03.1974 and 14/03/1974, respectively. The said Accused
person were produced before the magistrate for remand from
time to time. The learned Sessions Judge released 4 Accused
persons on bail but refused to grant bail to others. An argument
was raised that in accordance with the provisions of Section
167(2)(a) of Cr.P.C. 1973 that the remaining Accused persons are
entitled to bail in default for filling of Chargesheet within time
was rejected. The Apex Court observed that the provisions of
Cr.P.C. 1973 came into force from 01.04.1974 and Section 484
(1) deals with repeal and saving clause of the old Code of
Criminal Procedure 1898. While dealing with this aspect, the
Apex Court observed that immediately before 01.04.1974, the
investigation into the FIR was pending and thus, as per the
saving clause (a) enjoins that the said investigation shall be
continued or made in accordance with old Code provisions.
(1898). The police officer conducting investigation has to
continue and complete it in accordance with the provisions of
old Code, and Section 167 of the Code of Criminal Procedure,
1973 could not enable the Magistrate to remand the Accused
persons to Jail custody during the pendency of the investigation.
Even the aid to Section 344 of the old Code would not be helpful.
In such decision, the Apex Court observed that remaining
Accused persons were not entitled to claim benefit of Section 167
(2) (a) of Cr.P.C. 1973 for claiming default bail.
63. Above observations in the case of Natabar Parida
(supra) are squarely applicable to the Facts and circumstances
of the matter in hand as far as conducting of pending
investigation under the provisions of Cr.P.C. 1973.
64. In the case of Hitendra Thakur(supra) it is observed
in para 26 that 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. Such observations
necessarily apply to the matter in hand since the provisions of
BNSS 2023 are procedural in nature and more particularly, to
the investigation part, thereby replacing the provisions of CRPC
1973. The Legislature with utmost care and caution provided
saving clause under Section 531(2)(a) of BNSS with an intention
to avoid any confusion, anomaly or controversy. Therefore, such
procedural statute has to be considered as prospective in nature
and would not apply to the pending investigation.
65. Similar is the view taken by the Division Bench of this
Court in the case of Pragya Singh (supra) which is found
from para 39-41 and mostly relying upon the decision of
Hitendra Thakur (supra).
66. Thus after carefully considering the above decisions of the
Apex Court and of this Court and the provisions of Section
531(2)(a) of BNSS 2023 thereby saving the provisions of Cr.P.C.
in connection with pending investigation, there is no confusion
or even doubt about the fact that provisions of CrPC 1973 would
apply with equal force to a pending investigation prior to
01.07.2024. In the present matter, the offences alleged against
the Respondents are clearly under the provisions of Indian Penal
Code and the FIR was registered even prior to 01.07.2024. The
investigation commenced on 14.06.2024 and same was pending
as on 01.07.2024 when the provisions of BNSS came into force.
67. It is also necessary to note the specific allegations against
Respondent No. 3 which are found in para 12 of the FIR wherein
it is claimed that the said Accused persons being the chairman
and Financial advisor of CCPL, brought the proposal of
establishing a wholly owned subsidiary overseas known as
‘Rudra’ respectively, having great opportunity in shipping
industries and one of the Accused by masterminding the entire
operation of ‘Rudra’ convinced the Board of Director and
thereafter, the said ‘Rudra’ wholly owned subsidiary was
incorporated on 31.07.2009 in Europe at the instance of accused
person and thereafter, CCPL consistently infused money and
further the Accused person under the false pretext of investment
in shipping business advanced unsanctioned and unsecured
loans to entirely new entities owned and operated by Accused no.
3 and the loans provided therein were written off thereby
causing huge loss to the complainant and CCPL.
68. Thus, it is clear that such offense commenced somewhere
in 31.07.2009 by incorporating ‘Rudra’ as a subsidiary and then
transferring money into the said entity from time to time. All the
offences alleged against the Accused person had completed and
covered under the provisions of IPC and the FIR is registered
prior to 01.07.2024. Accordingly, the provisions of Cr.P.C. 1973
shall apply and continue to apply to the investigation carried out
by the investigation agency in respect of FIR Nol. 1/2024
registered before the Economic Offences Cell Panaji Goa. Point
No. 1 is answered accordingly.
POINT NO.2
69. Point No. 2 would not require any further debate since the
provisions of Section 531 of BNSS and the discussion with regard
to the repeal and saving clause would clearly depict that from the
date of implementation of BNSS 2023 i.e. 01.07.2024 provisions
of Code of Criminal Procedure, 1973 shall be repealed. The
saving clause only saves any appeal, application, trial, inquiry or
investigation pending as on 01.07.2024. Thus, any application
filed as on 01.07.2024 or thereafter shall be governed by the
provisions of BNSS 2023 for the simple reason that by that date,
the provisions of Cr.P.C. 1973 stands repealed.
70. It is admitted fact that the application for bail were filed by
Respondent No.3 only on 06.07.2024 before the learned
Sessions Court at South Goa Margao. It is no doubt true that said
Respondents/Accused persons earlier preferred bail application
before the Sessions Court at North Goa Panaji which they filed
on 19.06.2024. However, such bail applications were disposed of
as not maintainable or beyond the territorial jurisdiction of the
concerned Court by order dated 05.07.2024. The Respondents
were granted a period of 72 hours for applying before the
concerned Court having jurisdiction. Thus, when the application
filed on 19.06.2024 was disposed of on 05.074.2024, no
application was pending before any Court.
71. Admittedly, separate and independent application for bail
in anticipation of arrest was filed on 06.07.2024 by the
Respondents and therefore as on 06.07.2024, there was no
pending application filed prior to 01.07.2024 for the purpose of
saving the provisions. It is not the case that the application filed
before the Sessions Court at North Goa Panaji was transferred to
the Court of competent jurisdiction. The application filed before
North Goa Panaji was disposed of on 05.07.2024 on the ground
that said Court had no territorial jurisdiction. Thus, once such
application is disposed of which was admittedly filed prior to
01.07.2024, second application filed on 06.07.2024 cannot be
considered as continuation of the earlier application. The second
application filed on 06.07.2024 has to be considered as fresh and
separate application.
72. Applying the same analogy while deciding the point no. 1
about the repeal and saving clause under Section 531 of BNSS
2023 it is clear that what is saved is only pending application and
not the applications to be filed subsequent to 01.07.2024, to be
governed under the Code of Criminal Procedure 1973.
73. BNSS 2023 is admittedly a procedural law mostly
governing the inquiries, investigation, bail, trial, appeals etc. As
far as application of bail is concerned, it is a procedure to be
followed under a specific Act or Code. Since the provisions of
Section 438 of the Code of Criminal Procedure and that of
Section 482 of BNSS are pari materia, the provisions of repeal
would clearly apply to the matter in hand and accordingly,
applications filed by Respondent/Accused persons on
06.07.2024 shall govern under the provisions of 482 of BNSS
and not under Sections 438 of Cr.P.C.
74. The applications filed by Respondents before the learned
Sessions Court at South Goa Margao, would clearly go to show
that the same is filed under Section 438 of the Code of Criminal
Procedure 1973 or Section 482 of BNSS 2023 which is the title
itself. Accordingly, it has to be accepted that the application filed
on 06.07.2024 must be considered as an application under
Section 482 of BNSS. The answer to point no.2 would be
therefore as held above that such application must be considered
as filed under Section 482 of BNSS 2023.
POINT NO.3
75. Point No.3 involves the aspect of power to grant ad interim
bail pending main application. Since while deciding point no. 2
it has been observed that the applications filed on 06.07.2024
shall be governed under the provisions of 482 of BNSS 2023, it
has to be considered whether the Court while dealing under the
provisions of Section 482 of BNSS is having power to grant ad
interim bail. Mr. Merchant strongly contended that such power
cannot be read into the provisions of Section 482 when it is not
found therein. He would submit that the legislature with specific
intent avoided to grant such a power to the Court with an object
and purpose that the investigation must be concluded with a
great speed and it is a fact that if such ad interim bail is granted,
the investigating agency is unable to investigate the matter
properly and the Accused persons would get an opportunity to
destroy material evidence
76. However, the object and reasons of BNSS is to streamline
the procedure for arrest, investigation, trial of evidence by fast
and efficient justice system for good governance. It is also
provided that for the use of technical and forensic sciences in the
investigation of crime and furnishing and lodging of
information, service of summons etc., through electronic
communication as well to provide specific time lines for time
bound investigation, trial and pronouncement of judgments.
Similarly, it is the object that incase of punishment which is
seven years or more, the victim shall be given an opportunity of
being heard before withdrawal of cases by the government. A
summary trial has to be examined through electronic means
through Video conferencing etc., and the Magisterial system has
also to be streamlined. However, the objects and reasons of
enacting BNSS 2023 has to be looked into along with
fundamental rights of a person enshrined under Article 21 of the
Constitution of India with regard to his right and liberty. When
the question of arrest and grant of bail is required to be
addressed, the provisions of Article of 21 of the Constitution of
India are required to be kept in mind.
77. As rightly pointed out by Mr. Bhobe that the provisions of
Section 438(prior to amendment of 2005) and Section 482 of
BNSS are pari materia.
78. In the case of Dr. Sameer (supra) learned Single Judge
of this Court (Coram: Manish Pitale, J.) has clearly observed in
para 23 that the Law Commission of India has specifically
referred to the concurrent jurisdiction of the Sessions Court and
the High Court in the context of exercise of original jurisdiction
under Section 438of Cr.P.C. and after taking into consideration
the said aspect, it was found that such an amendment, making
presence of the Accused obligatory is antithetical to the right of
Accused to anticipatory bail. The Law Commission of India has
also recommended that it is conscious of the fact that the State
amendment of Maharashtra incorporating Sub Section (4) to
Section 438 of Cr.P.C. has already come into effect from the year
1993 and yet a clear opinion is expressed that such an
amendment is an antithesis to the right of anticipatory bail. A
recommendation in para no. 7.1 of the Law Commission of India
in its 203rd Report submitted in December 2007 recommended
that sub Section (1) (b) identically worded to Sub-Section 4 of
Section 438 of Maharashtra amendment to CR.P.C must be
omitted. It is perhaps for this reason that such amendment
(2005 amendment) never found its way in Section 438 of Cr.P.C.
as applicable to other parts of the country.
79. It is thus clear that the amendment of 2005 in Cr.P.C. and
more specifically inserting clause (1) to (4) in Section 438 was
not given effect to, till date. Thus, the original Section 438(1)
reads thus:-
When any person has reason to believe that
he may be arrested on an accusation of
having committed a non bailable offence, he
may apply to the High Court or the Court of
Session for a direction under this Section: and
that the Court may, if it thinks fit, direct that
in the event of such arrest, he shall be released
on bail.”
80. The provisions of Section 482 of BNSS and more
particularly, sub-Section (1) is pari materia with the provisions
of Section 438(1) as quoted above.
81. Thus, as rightly pointed out by Mr. Bhobe, the
observations of the Constitutional Bench of the Apex Court in
the case of Gurbaksh(supra) shall apply with full force to
Section 482 of BNSS.
82. The contentions of Mr. Merchant that the observation in
the case of Gurbaksh Singh(supra) are under the powers of
the Apex Court under Article 142 and the same is case specific
and that it shall apply only for the final disposal of the
Anticipatory bail, cannot be accepted.
83. The issue involved before the Court as clearly spelt out in
para one itself wherein it has been observed that personal
liberty and investigation powers of the Police are required to be
balanced as a society has vital stake in both these interests. The
task which the Supreme Court considered in the said appeals is
how best to balance these interest while determining the scope
of Section 438 of Cr.P.C. 1973. Thus the interpretation of
Section 438 of Cr.P.C. was discussed, deliberated and decided
by the Constitutional Bench and accordingly it is the law laid
down by the Apex Court which is binding on all Courts in India
under Article 141 of Constitution of India.
84. While dealing with the above Aspect, Section 438
(unamended) as quoted in para 2, as already observed that such
provision is pari materia with Section 482(1) of BNSS, the
observations of the Apex Court in the said decision will apply
with full force to Section 482 of BNSS.
85. The Apex Court observed in para 12 that by any known
canon of construction, words of width and amplitude ought not
generally to be cut down so as to raid into the language of the
statute restraints and conditions which the legislature itself did
not think it proper or necessary to impose. This is essentially true
when the statutory provision which falls for consideration is
designed to secure a valuable right like the right to personal
freedom and involves the application of a presumption as
salutary and deep grained in our criminal jurisprudence as the
presumption of innocence. Though the right to apply for
anticipatory bail was conferred for the first time by Section 438,
while enacting that provision the legislature was not writing on
a clean slate in the sense of taking an unprecedented step,
insofar as the right to apply for bail is concerned.
86. Further the Apex Court observed thus:-
“The provisions of Sections 437 and 439
furnished a the legislature to copy while
enacting Section 438. If it has not done so and
has departed from a pattern which could
easily be adopted with the necessary
modifications, it would be wrong to refuse to
give to the departure its full effect by
assuming that it was not intended to serve
any particular or specific purpose. The
departure, in our opinion, was made
advisedly and purposefully: Advisedly, at
least in part, because of the 41st Report of the
Law Commission which, while pointing out
the necessity of introducing a provision in the
Code enabling the High Court and the Court
of Session to grant anticipatory bail, said in
paragraph 39.9 that it had "considered
carefully the question of laying down in the
statute certain conditions under which alone
anticipatory bail could be granted" but had
come to the conclusion that the question of
granting such bail should be left "to the
discretion of the court" and ought not to be
fettered by the statutory provision itself, since
the discretion was being conferred upon
superior courts which were expected to
exercise it judicially. The legislature
conferred a wide discretion on the High Court
and the Court of Session to grant anticipatory
bail because it evidently felt, firstly, that it
would be difficult to enumerate the conditions
under which anticipatory bail should or
should not be granted and secondly, because
the intention was to allow the higher courts in
the echelon a somewhat free hand in the grant
of relief in the nature of anticipatory bail.
That is why, departing from the terms of
Sections 437 and 439, Section 438(1) uses the
language that the High Court or the Court of
Session "may, if it thinks fit" direct that the
applicant be released on bail. Sub-section (2)
of Section 438 is a further and clearer
manifestation of the same legislative intent to
confer a wide discretionary power to grant
anticipatory bail. It provides that the High
Court or the Court of Session, while issuing a
direction for the grant of anticipatory bail,
"may include such conditions in such
directions in the light of the facts of the
particular case, as it may think fit", including
the conditions which are set out in clauses (i)
to (iv) of sub-section (2). The proof of
legislative intent can best be found in the
language which the legislature uses.
Ambiguities can undoubtedly be resolved by
resort to extraneous aids but words, as wide
and explicit as have been used in Section 438,
must be given their full effect, especially when
to refuse to do so will result in undue
impairment of the freedom of the individual
and the presumption of innocence. It has to be
borne in mind that anticipatory bail is sought
when there is a mere apprehension of arrest
on the accusation that the applicant has
committed a non-bailable offence. A person
who has yet to lose his freedom by being
arrested asks for freedom in the event of
arrest. That is the stage at which it is
imperative to protect his freedom, insofar as
one may, and to give full play to the
presumption that he is innocent. In fact, the
stage at which anticipatory bail is generally
sought brings about its striking dissimilarity
with the situation in which a person who is
arrested for the commission of a non-bailable
offence asks for bail. In the latter situation,
adequate data is available to the court, or can
be called for by it, in the light of which it can
grant or refuse relief and while granting it,
modify it by the imposition of all or any of the
conditions mentioned in Section 437.
87. Finally, the Apex Court in para 42 observed thus:-
42. There was some discussion before us on
certain minor modalities regarding the
passing of bail orders under Section 438(1).
Can an order of bail be passed under the
section without notice to the Public
Prosecutor? It can be. But notice should issue
to the Public Prosecutor or the Government
Advocate forthwith and the question of bail
should be re-examined in the light of the
respective contentions of the parties. The ad
interim order too must conform to the
requirements of the section and suitable
conditions should be imposed on the
applicant even at that stage. Should the
operation of an order passed under Section
438(1) be limited in point of time? Not
necessarily. The court may, if there are
reasons for doing so, limit the operation of the
order to a short period until after the filing of
an FIR in respect of the matter covered by the
order. The applicant may in such cases he
directed to obtain an order of bail under
Section 437 or 439 of the Code within a
reasonably short period after the filing of the
FIR as aforesaid. But this need not be
followed as an invariable rule. The normal
rule should be not to limit the operation of the
order in relation to a period of time.
88. Thus, there is absolutely no need of further discussion in
respect of the power of the Session Court or of this Court with
regard to grant of ad interim relief pending application for bail
in anticipation of arrest. Such power clearly exists as inherent
power under the provision of grant of bail. However, it is also
clear that even while granting ad interim relief, there has to be a
subjective satisfaction of the Court and such ad interim relief
should be on certain conditions and not blanket. It is required to
be considered on the premise of Article 21 of the Constitution of
India which is clearly traceable with an intent to protect life and
liberty of a person and more particularly to avoid unnecessary
arrest as well as to avoid any harassment in the hands of
investigating agency.
89. The decision in the case of Sakeri Vasu (supra) which
also deals with the powers of the Court to monitor investigation
directed by it under Section 156 of Cr.P.C., provide that when the
Court is having power to direct registration of FIR, it also got
inherent powers to monitor such investigation.
90. In the case of the grant of bail. However, it is also clear that
even while granting Ad interim relief, there has to be a subjective
satisfaction
91. In the case of Shail Kumari Devi (supra) the Apex
Court was dealing with the provisions of Section 125 of the
Cr.P.C. observed that when the Magistrate is having power to
grant maintenance, implied in it power to grant interim
maintenance. The reasons of such power is also discussed by the
Apex Court that if such interim maintenance is not granted, the
wife would not be able to sustain till the main order is passed,
without any financial aid. Such observations apply with full force
to the matter in hand. If in a deserving case, ad interim relief is
not granted and in the meantime the arrest is effected, certainly
the application would become infructuous and the Accused will
have to resort to regular bail procedure. Thus, though such
power exists, the same has to be used by exercising the discretion
on case to case basis.
92. In the case of Bhadresh (supra) the Apex Court
discussed in detail the principles and guidelines regarding grant
of Anticipatory Bail under Section 438 of Cr.P.C which shall
apply with equal force to the provisions of Section 482 of BNSS
since both these provisions are pari materia.
93. Having given anxious consideration to all the above
aspects it is clear that while considering an application under
Section 482 of BNSS, the Court is having inherent power to grant
ad interim bail in deserving cases and by exercising its discretion
on case to case basis.
94. Both applications filed and pending before the learned
Sessions Judge, South Goa, Margao, shall be required to be
considered under the provisions of Section 482 of BNSS 2023.
After considering the above discussion, points no. 1, 2 and 3 are
therefore answered as under:
(A)The investigation in the present FIR No 1/2024 filed
before the Economic Offences Cell shall continue under
the provision of Cr.P.C. 1973.
(B)Answer No. 2- Bail application filed on 06.07.2024 by
the Respondent/Accused will have to be considered as
application under Section 482 of BNSS 2023.
(C)Answer No. 3- The Court while dealing with application
under Section 482 of BNSS 2023 is having power to grant
or refuse ad interim bail pending disposal of the main
application.
95. With the able assistance of the learned counsel and the
learned Public prosecutor, above points are answered,
accordingly.
96. Rule is made absolute in above terms
BHARAT P. DESHPANDE, J.
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