Applying new laws to old crimes sparks controversy

Jaipur: State’s directorate of prosecution is gearing up to implement new criminal laws for all FIRs registered after midnight on July 1, but uncertainty prevails over which laws should apply when the crime occurred before the new laws came into effect, but the FIR was filed after July 1.The prosecution department maintains that the applicable law in such cases is determined by the date of the FIR. On the other hand, criminal lawyers contend that this would be an infringement of Article 20 (1) of the Constitution, which prohibits retrospective application of criminal law. Article 20 (1) states, “No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.”A senior prosecutor told TOI, “Our stand is clear on this matter. From 12.01 am on July 1, all FIRs will be lodged under Bharatiya Nyaya Sanhita (BNS), which replaces Indian Penal Code (IPC).”Dr Ravi Sharma, the director of prosecution in the state, said that even in continuing offences such as sexual exploitation, rape on the pretext of marriage, and fraud, the law will be applicable based on the date of the FIR. However, criminal lawyers in the city argue that applying criminal laws retrospectively would be unlawful. Advocate Hemant Nahta said, “An FIR is just a written document prepared by police when they receive information about commission of a cognizable offence. Article 20(1) is clear on this subject. The conviction can be based on the law in force at the time of the commission of offence.”A K Jain, another criminal lawyer, explained that since the new criminal laws have harsher punishments for many offences, applying the laws retrospectively could lead to a flood of litigation by the accused that they be booked under IPC, not BNS. He said that in a case of sexual exploitation, for example, if the victim lodged an FIR on July 1, it would only mean the police receiving information about the offence, not the time of the commission of the offence.He added that substantive laws can be applied retrospectively only when the law needs clarification, but if there is an amendment or modification in the law, it cannot be so applied. “The laws are being completely replaced, so there is no way they can be applied retrospectively,” said Jain.A senior officer at police headquarters (PHQ), speaking on condition of anonymity, said that police may have to continue registering some FIRs under IPC even after the new laws are rolled out next month. “BNS will probably not apply to offences taking place when IPC was in force. as it is quite clear as per Article 20(1) that no penal law can have retrospective effect,” he said.