Asha Mehta vs State Of Rajasthan (2025:Rj-Jd:24690)
2025 Latest Caselaw 9950 Raj

Rajasthan High Court - Jodhpur

Asha Mehta vs State Of Rajasthan (2025:Rj-Jd:24690) on 21 May, 2025

Author: Kuldeep Mathur

Bench: Kuldeep Mathur

[2025:RJ-JD:24690]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
                  S.B. Criminal Misc(Pet.) No. 3208/2025

Asha Mehta W/o Shri Gopal Mehta, Aged About 66 Years, R/o A-1,
New Shakti Nagar, Udaipur.
                                                                        ----Petitioner
                                        Versus
1.          State Of Rajasthan, Through Pp
2.          Vinod Mehta S/o Late Shri Manohar Mehta, Aged About 50
            Years, R/o B-1, New Shakti Nagar, Udaipur.
                                                                     ----Respondents


For Petitioner(s)            :     Mr. Kailash Khatri
For Respondent(s)            :     Dr. Sachin Acharya, Sr. Adv.
                                   Mr. Narendra Gehlot, PP
                                   Mr. Rahul Rajpurohit



               HON'BLE MR. JUSTICE KULDEEP MATHUR

Order

21/05/2025

1. By way of filing the present criminal misc. petition under

Section 528 BNSS, the petitioner has prayed for the following

reliefs:-

"It is, therefore, most humbly and respectfully prayed that this Criminal Misc. Petition may kindly be allowed and the Criminal proceedings in criminal case no. 375/2022. F.R. No. 01/2021 pending before the learned Additional Chief Judicial Magistrate No.1, Udaipur arising out the F.I.R. No. 46/2020 Police Station, Ghantaghar, District Udaipur lodged against the petitioner & other persons as well as order dated 24.03..2025 passed by learned Additional Chief Judicial Magistrate No.1, Udaipur may kindly be quashed & set aside and petitioner & other persons i.e. Jhamandas Mehta & Dr. Arun Mehta may kindly be heard before passing any final order in protest petition filed by the respondent no.2 (complainant) .

Any other relief, which this Hon'ble Court deems fit and proper in favour of the petitioner, may kindly be passed."

2. Learned counsel for the petitioner submitted that father of the

respondent No.2 namely Late Shri Manohar Mehta lodged an FIR

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No.46/2020, at P.S. Ghantaghar, District Udaipur against the

present petitioner and other persons named in the FIR for the

offences punishable under Sections 420, 467, 468 and 471 IPC.

The Investigating Agency after making thorough investigation in

relation to the FIR, submitted a negative final report in the month

of August, 2022 before the competent criminal Court. During

pendency of the investigation, original complainant- Manohar

Mehta passed away. The respondent No.2 thereupon, submitted an

application before the competent criminal Court seeking permission

to transpose himself as the complainant (deceased- Manohar

Mehta) and to present the protest petition. The application filed by

the respondent No.2 came to be allowed vide order dated

02.08.2024 and he was permitted to proceed with the case.

3. Learned counsel submitted that under challenge herein is an

order dated 24.03.2025 passed by the competent criminal Court

whereby the request of the accused persons to be heard in the

protest petition has been denied. Learned counsel for the petitioner

submitted that accused has right to be heard in a protest petition

as a decision by the competent criminal Court may affect him

adversely. Learned counsel submitted that Section 223 of the

BNSS, 2023 clearly states that no cognizance of an offence shall be

taken by the Magistrate without giving the accused an opportunity

of being heard. It was urged that since the order impugned dated

24.03.2025 has been passed by the competent criminal Court after

coming into force the BNSS, 2023 w.e.f. 01.07.2024, the provisions

of BNSS are applicable in the present case. Learned counsel

submitted that vide the impugned order the right of the accused to

be heard in a protest petition has been taken away. It was thus

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prayed that the impugned order dated 24.03.2025 may be quashed

and set aside. Learned counsel for the petitioner has placed

reliance upon the judgment of Hon'ble Punjab and Haryana High

Court in the case of "Abhishek Jain v. State of U.T.

Chandigarh" (CRM-M No.31808/2024) decided on 11.07.2024.

4. E converso, learned counsel appearing on behalf of the

respondent No.2 submitted that the issue whether the proceedings

in the cases where FIR was registered prior to coming into force of

the BNSS, 2023 w.e.f. 01.07.2024 should/would be dealt with in

accordance with the provisions of Cr.P.C., 1973 or the BNSS, 2023

is no more res integra. Learned counsel placed reliance on

judgment revoke by co-ordinate Bench of this Court in the case of

"Krishan Joshi v. State of Rajasthan & Ors." in S.B. Criminal

Misc. Petition No. 4285/2024 vide order dated 09.07.2024

wherein this Court after taking into consideration various provisions

of Cr.P.C., 1973 and BNSS, 2023 has held that in view of the saving

clause contained under Section 531(2)(a) of the BNSS in the cases

where FIR was registered prior to 01.07.2024, the same shall be

disposed of, continued, held or made as the case may be, in

accordance with the provisions of the Cr.P.C., 1973.

5. For ready reference paragraph Nos. 4 to 7 of the judgment

passed by the co-ordinate Bench in the case of Krishan Joshi

(Supra) are reproduced hereinbelow:-

"4. For ready reference, the entire Section 531 of BNSS is reproduced hereinbelow:

"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

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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 of 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."

(Emphasis supplied)

5. We are concerned here only with the savings clause contained in sub section 531(2)(a), ibid. A perusal thereof clearly reflect that, not only the pending trial / appeal, but even an inquiry and/or investigation, which is underway prior to coming into force of the BNSS, shall have to be dealt with in accordance with the provisions of Cr.P.C., 1973 and not under the BNSS, 2023.

6. The reasons for the same are not far too seek. What has to be been seen simply is the date of registration of the

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FIR and the law as applicable as on the date of such registration. Trite it may sound, but settled position is that, the moment an FIR is registered under section 154 of the Cr.P.C., criminal investigative/administrative machinery is set in motion under Chapter XII thereof. Thus, if an FIR is registered prior to 01.07.2024 under the Cr.P.C., it would amount to a pending enquiry/investigation within the meaning of section 531(2)(a) of BNSS. The entire subsequent investigation procedure and even the trial procedure qua such an FIR shall then be governed by Cr.P.C. and not BNSS.

6.1. Let us analyze it deeper by dwelling further on it. Legislative processes often involve simultaneous twin actions i.e. not only the creation of new law, but also the repeal of existing one at the same time. Section 531 of the new legislative code, for short referred to as "BNSS,"

envisages the repeal of the Code of Criminal Procedure, 1973, and it also incorporates crucial savings provision which is so essential to cater to the transitional period between the old code and the new code. No doubt, section 531 of BNSS effectively removes old code from the statute books, however, at the same time it is a repeal subject to the savings clause and not a repeal in toto. A certain transitional period has been provided, and rightly so. For, a forthwith repeal in totality shall lead to legal uncertainties, particularly, concerning ongoing legal proceedings that commenced under the old law. To mitigate such uncertainties, saving provision has been introduced. Saving clause ensures that the repeal of an old law does not adversely affect any legal proceedings or rights that were established under the old code. The saving provision facilitates a smooth transition from the old legal framework to the new one. It provides a buffer period during which the judicial and legal systems can adjust to the changes introduced by the new Sanhita.

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6.2. The saving clause in Section 531(2) is critical for ensuring legal continuity and stability. It stipulates that notwithstanding the repeal, any appeal, application, trial, inquiry, or investigation pending before the new Sanhita comes into force will continue to be governed by the old Code of Criminal Procedure, 1973. This shall essentially mean that all ongoing proceedings, which have already been kicked in under the old code, will not be disrupted by the new code i.e. BNSS. This is vital for maintaining the integrity of the judicial process and ensuring that justice is neither delayed nor denied due to procedural changes, should an affected party feel so. Rights of the accused in an FIR and/or under trials and/or convicts under appeal and the legal expectations formed under the old law have been and are required to be protected. Applicability of old code on pending matters prevents any retrospective adverse effects that might arise from the sudden application of new legal provisions to ongoing cases.

6.3. Furthermore, vide saving clause, the litigants already involved in legal proceedings initiated under the old code have been thus assured that their cases will be resolved under the legal framework they were initially engaged with. Saving clause thus ensures that the repeal of old code does not create a legal vacuum, leaving ongoing proceedings in limbo and, to avoid such a scenario the old legal process ought to continue seamlessly.

6.4. Speaking of judiciary, vide the savings clause which envisages dual approach i.e. ongoing cases to be disposed of under the old law and the ones registered after 01.07.2024 under the new code, even the courts can manage their workload more efficiently. Judges and lawyers familiar with the old code can continue their work without needing to adapt immediately to the new provisions. Section 531 of the new Sanhita, while repealing of the Code of Criminal Procedure, 1973, simultaneously thus

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safeguards ongoing legal proceedings through its savings clause.

7. No doubt, procedural laws can be applied retrospectively, subject of course to the judicial review, but in view of Section 531(2)(a) of the BNSS herein, it is amply clear that all the pending matters prior to coming into force of BNSS, 2023, as specifically mentioned in Section 531(2)(a) of BNSS shall continue to be governed by the old Code i.e. Cr.P.C., 1973. Therefore, the petition in hand also to has to be treated under Section 482 Cr.P.C."

6. Learned counsel for the respondent No.2 vehemently

contended that under Cr.P.C., there is no specific provision

regarding right of the accused to be heard in a protest petition. He

contended that under Section 173(8), a protest petition is filed by

the complainant against the negative final report submitted by the

Investigating Agency. Thus, the focus is on the rights of the

complainant to challenge the final report. He submitted that the

competent criminal Court by the impugned order dated 24.03.2025

has rightly rejected the application filed by the petitioner and the

other accused persons to be heard on the ground that they do not

have an inherent right to be heard at this stage as the decision to

take cognizance of the offence is yet to be taken by the Court on

the basis of the material produced before it.

7. In the alternative, learned counsel contended that Section

223 BNSS applies only in complaint cases and since the case at

hand is not a complaint case, the provisions of Section 223 BNSS

are not applicable in the present case. On these grounds, the

learned counsel implored the Court to dismiss the instant criminal

misc. petition.

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8. Heard learned counsel for the parties as well as perused the

record of the case alongwith the judgments cited at Bar.

9. It is not in dispute before this Court that the FIR was

registered prior to coming into force of the BNSS, 2023 i.e.

01.07.2024. The code of criminal procedure, 1973 does not contain

any provision conferring a right to the accused to be heard at the

stage of protest petition or in other words, prior to issue of process

against him/them. It is fairly well settled that while the

complainant has the right to file a protest petition and be heard

under Section 173(8) of Cr.P.C., the accused does not have the

right to be heard in the protest petition(s).

10. A co-ordinate Bench of this Court in the case of Krishan

Joshi (supra) in no uncertain terms has been pleased to hold that

as per provisions of Section 531(2)(a) of BNSS, all the pending

matters prior to coming into force of BNSS, 2023 specifically

mentioned in Section 531(2)(a) of BNSS shall continue to be

governed by the provisions of old Act i.e. Cr.P.C., 1973.

11. Thus, in light of the aforesaid discussion and in view of the

above mentioned precedent law, this Court has no hesitation in

reaching to the conclusion that since the FIR in the present case,

was registered on 20.07.2020 i.e. much prior to 01.07.2024 (date

on which BNSS came into force), all the proceedings in relation to

said FIR shall be governed by the provisions of Cr.P.C., 1973.

12. Consequently, the instant criminal misc. petition is dismissed.

13. However, it is expected from the learned trial Court that the

protest petition filed on behalf of the complainant shall be taken up

for hearing at the earliest and necessary orders thereupon shall be

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passed in accordance with law preferably within a period of sixty

days from the date of this order.

14. All pending applications stand disposed of accordingly.

(KULDEEP MATHUR),J 83-himanshu/-

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