T.R.A. Developers Pvt. Ltd v. Dr. Vipin Rai and others) under Section
Case Details
Neutral Citation No. - 2025:AHC:21983 Court No. - 73 Case :- APPLICATION U/S 528 BNSS No. - 41766 of 2024 Applicant :- Dr Vipin Rai And 9 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Abhitab Kumar Tiwari Counsel for Opposite Party :- G.A. Hon'ble Raj Beer Singh,J.
Legal Reasoning
is against facts and law and thus, liable to be set aside and that no prima facie case is made out against applicants. The opposite party no.2 is a builder, who has developed a colony, namely, 'Anand Niketan' and that applicants are office bearers of the residential society. The alleged incident has been shown of 10.06.2024 and that Bharatiya Nyaya Sanhita, 2023 (hereinafter referred as BNS) was made applicable w.e.f. 01.07.2024 and thus, the learned Magistrate has committed illegality by proceeding the matter under provisions of BNS and Bharatiya Nagarik Suraksha Sanhita (hereinafter referred as BNSS) and on that ground alone, the impugned order is liable to be set aside. It is further submitted that the witnesses examined under section - 202 Cr.P.C. have not named any of the applicant thus, the version of complainant is not supported by the witnesses. It is further submitted that the applicants are office bearers of the residential housing society and they have merely raised their genuine concerns regarding incomplete work and they have been falsely implicated due to that reason. Referring to these facts, it was submitted that impugned proceedings are liable to be quashed. 4. Learned counsel for the opposite party no.2 concedes that as the offence in question was committed prior to enforcement of BNS, thus the provisions of Indian Penal Code would be applicable and thus, the matter may be remanded back to the learned Magistrate concerned. However, it was submitted that mere error of technicality cannot be a ground to quash the proceedings. In this connection, learned counsel has referred case of Gajanand Burange Vs. Laxmi Chand Goyal 2000 LiveLaw (SC) 682. 5. I have considered rival submissions and perused the record. 6. In case of Deepu And Ors. Vs State Of U.P. And Ors. 2024:AHC:126843-DB (decided on 6 August, 2024), the Division Bench of this Court held as under :- ''16. On the basis of above analysis, this Court is also summarising the law regarding effect of repealing the IPC and Cr.P.C. by BNS and BNSS respectively and same is being mentioned as below: (i) If an FIR is registered on or after 1.7.2024 for the offence committed prior to 1.7.2024, then FIR would be registered under the provisions of IPC but the investigation will continue as per BNSS. (ii) In the pending investigation on 01.07.2024 (on the date of commencement of New Criminal Laws), investigation will continue as per the Cr.P.C. till the cognizance is taken on the police report and if any direction is made for further investigation by the competent Court then same will continue as per the Cr.P.C.; (iii) The cognizance on the pending investigation on or after 01.07.2024 would be taken as per the BNSS and all the subsequent proceeding including enquiry, trial or appeal would be conducted as per the procedure of BNSS. (iv) Section 531(2)(a) of BNSS saved only pending investigation, trial, appeal, application and enquiry, therefore, if any trial, appeal, revision or application is commenced after 01.07.2024, the same will be proceeded as per the procedure of BNSS. (v) The pending trial on 01.07.2024, if concluded on or after 01.07.2024 then appeal or revision against the judgement passed in such a trial will be as per the BNSS. However, if any application is filed in appeal, which was pending on 01.07.2024 then the procedure of Cr.P.C. will apply. (vi) If the criminal proceeding or chargesheet is challenged before the High Court on or after 01.07.2024, where the investigation was conducted as per Cr.P.C. then same will be filed u/s 528 of BNSS not u/s 482 Cr.P.C." 7. Thus, it is clear that where an offence has been committed prior to 01.07.2024, the first information report would be registered under the provisions of Indian Penal Code. Similar analogy may be drawn in respect of complaint cases. Thus, despite the enforcement of the BNS, offences committed prior to its enactment on July 01, 2024 could still be prosecuted under the Indian Penal Code. Section - 358 of BNS contains savings provisions that allow for the application of the Indian Penal Code to offences committed before its repeal. Thus, it is clear that for the offences committed prior to 01.07.2024, the complaint has to be filed under provisions of Indian Penal Code. In the instant matter, the incident of alleged offence took place on 10.06.2024 and complaint was filed on 16.07.2024 for offences under section - 308(5), 318(2) 338, 338(3), 340(2), 352, 351(2)(3), 61(1), 3(5), 191(2), 190 of BNS. By impugned summoning order, the applicants were summoned for offences under section - 308(5), 352, 351(3) of BNS. Thus, it is clear that the matter would be govern by Indian Penal Code and thus, learned Magistrate committed error by summoning the applicants for offences under the BNS. Therefore, the impugned summoning order is liable to be set aside. 8. In view of aforesaid, the impugned summoning order dated 28.10.2024 is set aside and matter is remanded back to the learned Magistrate for passing an order afresh in accordance with law. 9. Application under section - 482 Cr.P.C. is disposed of in above terms. Order Date :- 17.2.2025 S Rawat Digitally signed by :- SHOBHIT RAWAT High Court of Judicature at Allahabad
Arguments
1. Heard learned counsel for the applicants, Sri J.P. Pandey and Sri Sanjay Agarwal, learned counsel for the opposite party no.2, learned A.G.A. for the State and perused the record. 2. The present application under Section - 528 B.N.S.S., has been filed with the following prayer :- "It is therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to allow this application and quash the entire criminal proceeding initiated against applicants as Criminal Complaint Case No. 48358 of 2024 (T.R.A. Developers Pvt. Ltd. versus Dr. Vipin Rai and others) under Section 308 (5), 352, 351 (3) of Bharatiya Nyaya Sanhita, Police Station- Maduban Bapudham District-Ghaziabad, pending in the court of Civil Judge (Junior including summoning order dated Division)/Fast Track Court-1/Judicial Magistrate, 28.10.2024(Annexure no. 1 to the Affidavit) passed by Civil Judge (Junior Division)/Fast Track Court-1/Judicial Magistrate, Ghaziabad in aforesaid case on complaint filed by opposite party no. 2, and all its consequential orders and proceedings against applicants." Ghaziabad, 3. It is submitted by learned counsel for applicants that impugned summoning order