Transition to New Criminal Laws, Default Bail and Electronic Evidence
On 20 June 2024, an FIR is registered in Delhi against Vikram for cheating and forgery punishable under Sections 420 and 468 IPC: he allegedly took ₹40 lakh from investors using forged allotment letters. He is arrested on 25 June 2024. On 5 September 2024, before the charge sheet is filed, Vikram applies for default bail, claiming that 60 days have expired. The investigating officer files a charge sheet on 10 September 2024 under the new criminal laws, citing BNS sections, and relies on WhatsApp chats downloaded from Vikram's phone. The chats are accompanied by a certificate signed by a notary, not by the person who downloaded them. The trial begins in February 2025. Vikram also says the BNS cannot apply because the offence took place before 1 July 2024, and that the WhatsApp chats are inadmissible.
1. Which substantive and procedural statutes govern the trial: IPC/CrPC or BNS/BNSS? Explain the transition.
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The offence was committed on 20 June 2024, before the BNS, BNSS and BSA came into force on 1 July 2024. Article 20(1) of the Constitution prohibits conviction under a law created after the act. The BNS contains a repeal-and-savings provision (Section 358) under which the IPC continues to apply to offences committed before commencement and to pending proceedings. The BNSS has a similar savings provision in Section 531, and the BSA in Section 170.
Therefore, the charge sheet's citation of BNS sections is erroneous. The substantive offences should be under Sections 420 and 468 IPC, and the procedure should follow the CrPC as saved for pending proceedings. The error is curable: the court can permit amendment of the charge sheet or frame charges under the correct provisions if no prejudice is caused. The trial does not become void merely because the investigating agency used the new nomenclature.
The position would differ for an offence committed on or after 1 July 2024, where the BNS, BNSS and BSA would apply.
2. Did Vikram acquire a right to default bail? Compute the periods and explain the effect of the charge sheet filed on 10 September 2024.
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Sections 420 and 468 IPC are punishable with imprisonment up to seven years. Under Section 167(2)(a)(ii) CrPC, the investigation period for such an offence is 60 days. Vikram was arrested on 25 June 2024, so the 60-day period expired on 24 August 2024. He applied on 5 September 2024, by which time the period had expired and no charge sheet had been filed. His right to default bail therefore accrued.
The charge sheet filed on 10 September 2024 does not defeat that right if the application was already pending. The Supreme Court in Uday Mohanlal Acharya v. State of Maharashtra held that an accused who applies after the statutory period and before the charge sheet is filed acquires an indefeasible right; a later charge sheet cannot take it away. If the application had been filed after the charge sheet, the position would be different.
The court should therefore admit Vikram to default bail on furnishing conditions, unless the offences are shown to carry a longer period. If Section 467 IPC (forgery of a valuable security) were added and carried ten years or life, the period would be 90 days and the result could change.
3. Are the WhatsApp chats admissible? Discuss Section 65B of the Indian Evidence Act and the notary's certificate.
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WhatsApp chats are electronic records. Under Section 65B of the Indian Evidence Act, which applies to this trial because it is a pre-1 July 2024 proceeding, the contents of an electronic record may be proved by a certificate. The certificate must identify the electronic record, describe the manner of its production, give particulars of the device, and deal with the conditions in Section 65B(2). It must be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities.
A notary does not occupy that position merely because he attests documents. A certificate signed only by a notary, without the person who downloaded or extracted the chats, does not satisfy Section 65B(4). The Supreme Court in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal held that the certificate is mandatory, though the court may permit it to be produced at a later stage before the trial ends. Here, unless a competent certificate from the person who made the download is produced, the chats are vulnerable to exclusion.
The accused should object at the appropriate stage; a belated objection may be treated differently, but the absence of a competent certificate goes to admissibility, not merely weight.