NAGANI AKRAM MOHAMMAD SHAFI v. THE UNION OF INDIA AND ANR
Discusses statutory interpretation, repeal/re-enactment impact, and the General Clauses Act's application, relevant across legal domains.
Court: Bombay High Court
Citation: 2025:BHC-AS:27479
Decision Date: 08-07-2025
List of Laws
The Prevention of Money Laundering Act, 2002 (PMLA); The Indian Penal Code, 1860 (IPC); Bharatiya Nyaya Sanhita, 2023 (BNS); Code of Criminal Procedure, 1973 (Cr.P.C.); Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS); General Clauses Act, 1897; Constitution of India, 1949; General Principles of Law
- The Prevention of Money Laundering Act, 2002 (PMLA): The judgment extensively discusses the PMLA, particularly its Schedule and the definition of "proceeds of crime" under Section 2(1)(u). It analyzes whether references to IPC offences in the PMLA Schedule should be dynamically interpreted to include corresponding offences under the Bharatiya Nyaya Sanhita (BNS). The court holds that the PMLA refers to IPC offences by section numbers and not by incorporation, meaning that references to IPC offences in the PMLA Schedule must now be read as references to the corresponding offences under the BNS. Section 2(1)(y) is also discussed, defining "Scheduled offence" and its connection to Parts A, B, and C of the Schedule. Section 3 is mentioned in the context of the offence of money laundering and its dependence on a predicate offence. Section 45 is mentioned as the section under which the applicant seeks regular bail.
- The Indian Penal Code, 1860 (IPC): The judgment discusses the repeal of the IPC and its replacement by the Bharatiya Nyaya Sanhita, 2023 (BNS). It examines whether references to IPC offences in other statutes, particularly the PMLA, should be construed as references to the corresponding provisions under the BNS. Specific IPC sections, such as 120B (criminal conspiracy), 302 (murder), 304 (culpable homicide not amounting to murder), 307 (attempt to murder), 308 (attempt to commit culpable homicide), and 420 (cheating), are mentioned as examples of offences listed in the PMLA Schedule. The judgment notes that offences previously defined under the IPC are now re-enacted and codified under different section numbers in the BNS, such as cheating, which was earlier under Section 420 IPC, is now covered under Section 318(4) of the BNS, and murder under Section 302 IPC is now defined under Section 103(1) of the BNS.
- Bharatiya Nyaya Sanhita, 2023 (BNS): The judgment discusses the enactment of the BNS and its impact on existing laws that refer to the IPC. It analyzes whether offences under the BNS can be treated as scheduled offences under the PMLA, even though the PMLA Schedule still refers to IPC sections. Specific BNS sections, such as 318(4) (cheating), 338, and 340(2), are mentioned as examples of offences that are substantially similar to their IPC counterparts. The judgment holds that references to IPC offences in the PMLA Schedule must now be read as references to the corresponding offences under the BNS. Section 483 is mentioned as the section under which the application was filed.
- Code of Criminal Procedure, 1973 (Cr.P.C.): The judgment mentions the Code of Criminal Procedure, 1973 (CrPC), in the context of whether references to it in other statutes stand vitiated by the enactment of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). Section 439 Cr.P.C./BNSS is mentioned as the section under which the applicant has approached the Court for bail.
- Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS): The judgment discusses the enactment of the BNSS and its impact on existing laws that refer to the CrPC. Section 483 of the BNSS is mentioned as the section under which the application was filed.
- General Clauses Act, 1897: The judgment extensively discusses Section 8(1) of the General Clauses Act, 1897, which deals with the construction of references to repealed enactments. It analyzes whether this provision applies to the references to IPC offences in the PMLA Schedule, such that those references should now be construed as references to the corresponding provisions under the BNS. The court holds that Section 8(1) does apply in this context, as there is no "different intention" in the PMLA that would exclude its operation. The court also discusses a notification dated 16th July 2024, issued by the Central Government, which sought to clarify that references to the IPC in existing laws should now be read as references to the BNS, by exercising its power under Section 8(1) of the General Clauses Act. The court finds that this notification does not amount to "law" within the meaning of Article 13 of the Constitution of India, as it is not based on any valid statutory provision and was not authenticated under Article 77.
- Constitution of India, 1949: The judgment discusses Article 13(3)(a) of the Constitution of India, which defines the term "law" for the purpose of protecting fundamental rights. It analyzes whether a notification issued by the Central Government, which sought to clarify that references to the IPC in existing laws should now be read as references to the BNS, amounts to "law" within the meaning of Article 13. The court finds that it does not, as it is not based on any valid statutory provision and was not authenticated under Article 77. The judgment also discusses Articles 73 and 77 of the Constitution, which deal with the scope of the executive power of the Union and the authentication of executive actions, respectively. The court finds that the Central Government's attempt to use Article 73 as a source of authority for issuing the notification goes beyond the permissible scope of executive power, and that the absence of authentication under Article 77 further deprives the notification of any legal effect.
- General Principles of Law: The judgment discusses the principles of statutory interpretation, particularly the distinction between "legislation by reference" and "legislation by incorporation." It analyzes whether the references to IPC offences in the PMLA Schedule constitute "legislation by reference" or "legislation by incorporation," and concludes that it is "legislation by reference," meaning that the references are dynamic and must be interpreted in light of the current law in force (i.e., the BNS). The judgment also discusses the doctrine of "updating construction," which allows courts to interpret ongoing statutes in a manner that accommodates changes in related laws. The court emphasizes the importance of avoiding absurd or unreasonable interpretations of statutes, and of giving effect to the legislative intent. The principle of continuity of legal effect despite legislative changes is also discussed. The separation of powers between the legislature, executive, and judiciary is also discussed.
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