Introduction:
The case Vicky Kumar @ Kashyap & Anr. v. State of Odisha placed before the Orissa High Court a significant constitutional and procedural question arising from the transition between the former Code of Criminal Procedure, 1973 (CrPC), and the newly introduced Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). The petitioners, Vicky Kumar @ Kashyap and another accused, were arrested in connection with serious offences under the Bharatiya Nyaya Sanhita (BNS), 2023, pertaining to cyber fraud and organised criminal activities. After being detained on 10.05.2025, they remained in custody beyond the statutory period of 90 days without the police submitting the final charge-sheet. As per Section 187(3)(i) of the BNSS, such delay entitled them to be released on default bail. However, the Sub-Divisional Judicial Magistrate (SDJM), Balasore, rejected their application, citing an earlier Odisha-specific amendment that allowed the State 120 days for filing the charge-sheet. The petitioners challenged this order, asserting that the amendment was repealed along with the CrPC, thereby restoring the 90-day limit under the BNSS. The Court was tasked with deciding whether the State Amendment that extended the time-limit continued post-repeal of the CrPC or stood obliterated by operation of law. The judgment delivered by Justice Aditya Kumar Mohapatra clarified the interplay between central and state legislation in criminal procedure, the legal effect of repeals, legislative saving clauses, and the right to personal liberty embodied in default bail.
Arguments of the Petitioners:
The petitioners, represented by Advocate Mr. Sk. Zafarulla, submitted that they were arrested for offences under Sections 3(5), 318(4), 319(2), 336(3), 338 and 340(2) of the BNS, along with Sections 66-C and 66-D of the Information Technology Act, 2000. These offences, although serious, fall within the category where Section 187(3)(i) of the BNSS mandates a maximum limit of 90 days for completing investigation and filing the charge-sheet. The petitioners argued that detention beyond this period without filing the charge-sheet automatically triggered their statutory entitlement to default bail—an indefeasible right recognised by the Supreme Court as a fundamental component of personal liberty under Article 21 of the Constitution.
They further submitted that the Odisha Amendment introduced through the Code of Criminal Procedure (Orissa Amendment) Act, 1997, which substituted the 90-day limit with 120 days, was part of the CrPC framework, and not an independent statute. When the CrPC was repealed by the BNSS, the Amendment also ceased to exist because it was not preserved through any saving clause. Section 531 of the BNSS, the repeal-and-savings provision, did not specifically protect the Odisha Amendment. The petitioners contended that once the parent Act is repealed, all amendments incorporated into it also fall unless expressly saved. The petitioners emphasised that Section 531(1) of the BNSS repealed the CrPC in entirety, and Section 531(2) saved only specific proceedings and rights—not statutory amendments that had merged into the CrPC fabric.
They also pointed out that the Odisha Submission of Final Form by Police Officers Rules, 2025, notified after the BNSS came into force, independently reiterated the 90-day period and explicitly provided that failure to file the charge-sheet within that period entitles an accused to default bail. Therefore, the petitioners argued, the SDJM’s reliance on unrelated Gazette notifications was not just misplaced but represented a profound misapplication of law. They maintained that their continued custody was illegal and violative of their constitutional and statutory rights.
Arguments of the State:
The State, represented by Additional Standing Counsel Smt. Sasmita Nayak, contended that although BNSS came into force replacing the CrPC, the Odisha Amendment continued to operate because it was enacted by the State Legislature in exercise of its powers under the Concurrent List of the Constitution. The State argued that the legislative intent was never to extinguish the amendment and that the amendment should continue unless expressly overridden.
They further contended that notifications referred to by the trial court—specifically the Union Government Gazette dated 16.07.2024 and the High Court’s notification dated 27.09.2024—clarified procedural aspects during the transitional phase between the CrPC and the BNSS. Thus, the SDJM’s reliance on those notifications was justified since they demonstrated the continuing effect of certain pre-existing procedural provisions.
The State argued that procedural law evolves to ensure continuity and that repeal does not automatically extinguish vested procedural mechanisms. Default bail, the State maintained, cannot be claimed mechanically without considering legislative intent and the transitional framework. The State suggested that granting bail based on technicalities would lead to miscarriage of justice, particularly in complex offences involving cybercrime, organised networks, and financial fraud. Thus, the denial of bail was not arbitrary but grounded in a broader interpretation of legal continuity.
Court’s Judgment:
Justice Aditya Kumar Mohapatra began by establishing the primacy of statutory interpretation—specifically whether a repealed Act can preserve amendments integrated into it when the repeal does not expressly save them. He noted that Section 531(1) of the BNSS categorically repealed the CrPC, and the saving clause under Section 531(2) did not include the Odisha Amendment. The Court held that once an amendment becomes part of the main statute, it shares its legislative fate. The Court emphasised that amended provisions cease to exist unless saved by explicit legislative expression, and since the BNSS did not preserve the amendment, it stood repealed by implication.
The Court relied on the principle that a State Amendment made to a Central Act becomes part of the substantive text of the Act and does not retain an independent existence. Accordingly, when the CrPC was repealed, the Odisha Amendment merged into its repeal. Justice Mohapatra pointed out that the wording in Section 531 leaves no ambiguity—only pending proceedings, rights accrued, or penalties incurred under the CrPC are saved, not statutory modifications.
Further strengthening its conclusion, the Court referred to the Odisha Submission of Final Form by Police Officers Rules, 2025, which explicitly mention that investigations must be concluded within 90 days and that failure entitles the accused to default bail. This rule, being specific to the BNSS regime, reinforced the central legislative timeline.
The Court observed that the SDJM erred gravely by relying on Gazette notifications irrelevant to the statutory scheme. The SDJM conflated administrative notifications with legislative mandates, thereby depriving the petitioners of their fundamental right. The High Court clarified that default bail is not a discretionary relief but a constitutional entitlement that flows from legislative command to prevent arbitrary and indefinite detention.
Consequently, the High Court held that the Odisha Amendment had been repealed along with the CrPC and that the 90-day period under Section 187(3)(i) of the BNSS was applicable in the case. The refusal to grant default bail was thus illegal, the impugned order was set aside, and the matter was remanded for fresh adjudication in conformity with BNSS. This judgment carries far-reaching implications as it re-establishes the supremacy of central legislation in criminal procedure while delineating the constitutional boundaries of state legislative power once a statute is repealed.