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Rape Law in Transition, Part 1: Which Law Governs

27 September 2026 · 10 min read

This is Part 1 of nine of Rape Law in Transition, a study of section 376 of the Indian Penal Code, sections 63, 64 and 69 of the Bharatiya Nyaya Sanhita, and the trial of sexual offences from complaint to appeal. One part is published each day from 27 September to 5 October 2026.

I. Introduction

Few offences place so much weight on so narrow a question as rape. The physical act is often admitted, or proved beyond argument by a laboratory. What the court must decide is what passed between two people in a private room, and it must decide that on evidence gathered weeks or months later by investigators whose every omission will be examined. The law has answered this difficulty by surrounding the question with rules. They govern who records the complaint and where, how the woman is examined and by whom, what she may be asked and what she may not, and what the court may presume and what the prosecution must prove. A practitioner who does not command those rules will lose a case that the facts ought to have won.

This essay attempts a complete account of those rules as they stand in September 2026, and it is written at an awkward moment. On 1 July 2024 the Indian Penal Code, the Code of Criminal Procedure and the Indian Evidence Act gave way to the Bharatiya Nyaya Sanhita, the Bharatiya Nagarik Suraksha Sanhita and the Bharatiya Sakshya Adhiniyam. The definition of rape survived almost intact as section 63 of the new Sanhita, and its punishment as section 64. But the new law did one thing of real consequence. In section 69 it created a separate offence of sexual intercourse by deceitful means, including a promise to marry made with no intention of keeping it. For two generations that conduct had been prosecuted as rape through section 90 of the Penal Code. It now has a home of its own, with a lighter sentence and a different procedural regime, and the courts are only beginning to mark where its boundary with rape lies.

At the same time, every court in Uttar Pradesh is trying cases in which the act occurred before July 2024 and the complaint came after it. The old substantive law must therefore be applied through the new procedure and the new law of evidence. The evidence has changed as well. A case that once turned on a medico-legal certificate now turns on a DNA report, a chain-of-custody register and several hundred WhatsApp messages. The admissibility of those messages depends on a certificate that many investigating officers have never prepared.

The essay follows a case from beginning to end. It starts with the question that must be answered before any other, namely which law governs. It then examines the elements of the offence, the concept of consent, and the false promise of marriage under both regimes. It turns next to investigation, to the recurring contests over delay, medical evidence and DNA, and to electronic evidence. It closes with bail, charge and quashing, the conduct of the trial, final arguments, and sentence and appeal. Throughout, the aim is to state the law as the courts have laid it down, to show how each side uses it, and to say plainly where questions remain open.

II. The Temporal Question: Which Law Governs

The first question in any rape case registered since July 2024 is not whether the offence was committed but under which law it is to be judged. The answer comes in three parts, because the three new statutes carry three different transitional rules.

Substance, procedure and evidence

The substantive law is fixed by the date on which the act was done. Article 20(1) of the Constitution forbids a conviction except for violating a law in force at the time of the act, and it forbids a penalty greater than that law then allowed. Section 358 of the Nyaya Sanhita repeals the Penal Code but preserves its previous operation and anything done or suffered under it. Section 6 of the General Clauses Act likewise saves liabilities incurred under a repealed enactment. An act committed on or before 30 June 2024 is therefore an offence under section 376 of the Penal Code, whenever it comes to be reported, and it must be charged and punished as such.

Procedure obeys a different rule. Section 531(2)(a) of the Nagarik Suraksha Sanhita saves the old Code only for appeals, applications, trials, inquiries and investigations that were pending when the new Sanhita came into force. Where nothing was pending on 1 July 2024, as when the first information is lodged after that date, the saving clause is simply not engaged. The new procedure then governs from the outset. Beneath the rule lies an old principle: a litigant has a vested right in the substantive law, but none in procedure.

The Allahabad High Court settled the position for Uttar Pradesh in Deepu v. State of U.P. That was itself a rape case, in which the first information report had been lodged on 3 July 2024 under the Penal Code.1

Relying on Article 20 and on section 6 of the General Clauses Act, the Division Bench held that an FIR lodged on or after 1 July 2024 for an offence committed earlier is to be registered under the Penal Code, while the investigation proceeds under the Nagarik Suraksha Sanhita. The Bench then described the wider transition. An investigation pending on 1 July 2024 continues under the old Code until cognizance is taken, and so does any further investigation that a court later directs; but cognizance is taken under the new Sanhita, and every step thereafter, whether inquiry, trial or appeal, follows its procedure. An appeal or revision against a judgment delivered after that date lies under the new Sanhita even where the trial was conducted under the old Code, and a challenge brought in the High Court after that date lies under section 528 of the new Sanhita rather than section 482 of the old.

The Court directed that its judgment be sent to the Director General of Police for circulation to every district, so that investigating officers might be sensitised. An officer in Uttar Pradesh who today registers a pre-July rape under section 64 of the new Sanhita is therefore departing from a binding direction.

The law of evidence follows procedure rather than substance. Section 170(2) of the Sakshya Adhiniyam keeps the Evidence Act alive only for applications, trials, inquiries, investigations, proceedings or appeals pending when the Adhiniyam commenced. A trial arising from an FIR lodged after July 2024 is therefore governed by the Adhiniyam, even where the offence charged is one under the Penal Code. In practice, four familiar provisions must now be pleaded under new numbers: section 114A of the Evidence Act has become section 120 of the Adhiniyam, section 53A has become section 48, the proviso to section 146 has become the proviso to section 149, and section 65B has become section 63.

The result is a hybrid. Take a woman who alleges rape in June 2024 and reports it in August. Her case will be investigated under the Nagarik Suraksha Sanhita, proved under the Sakshya Adhiniyam, and decided under the Penal Code.

Three traps in the transition

This arrangement conceals three traps.

The first concerns conduct that straddles the date. A relationship in which intercourse is alleged on several occasions may run across 1 July 2024. The acts before that date are offences under the Penal Code, and those after it are offences under the Nyaya Sanhita. It is submitted that each set requires its own head of charge. It follows that the aggravated form in section 376(2)(n) of the Penal Code, rape committed “repeatedly” on the same woman, can aggregate only acts committed before July 2024.

The second is that section 69 BNS cannot reach conduct that predates it. The Allahabad High Court has said in terms that the provision does not operate retrospectively.2 The Supreme Court has not yet confronted the point. In Kunal Rameshbhai Kalyani v. State of Gujarat the FIR had been registered under section 69 alone, although both acts of intercourse described in the judgment took place in February and April 2024. The Court quashed the FIR on its merits without adverting to the date.3 The question therefore remains open in the Supreme Court, and the defence should raise it whenever section 69 is invoked for conduct before July 2024.

The third concerns the harsher punishments of the new law. The second limb of Article 20(1) bars any penalty greater than the law allowed on the date of the act. Section 70(2) of the Nyaya Sanhita permits a sentence of death for the gang rape of any girl under eighteen. The Penal Code confined death in gang rape to victims under twelve, under section 376DB. For a gang rape committed before July 2024 on a girl aged between twelve and seventeen, death is therefore not an available punishment, whatever the date of trial. The converse case, in which the new law is lighter, is taken up in Part V in connection with section 69.

The wrong statute in the FIR

An FIR registered under the wrong statute vitiates nothing. The section written in an FIR is a label; it is the court that frames the charge on the material before it. The court may alter or add to that charge at any time before judgment under section 239 of the Nagarik Suraksha Sanhita. An error in the charge is fatal only if it has occasioned a failure of justice. That rule is found in sections 238 and 510 of the new Sanhita, which reproduce sections 215 and 464 of the old Code.4

The defence gains nothing by attacking the label. It gains a good deal by insisting that the charge be framed under the statute that governed on the date of the act.

A note on numbering

One point of numbering causes persistent confusion. The clauses of section 376(2) of the Penal Code ran from (a) to (n); clause (i) was omitted in 2018, and the remaining clauses are carried into section 64(2) of the Nyaya Sanhita as clauses (a) to (m). Rape “repeatedly on the same woman” is therefore section 376(2)(n) of the old law and section 64(2)(m) of the new. The counterpart of section 376 of the Penal Code is section 64 of the Nyaya Sanhita. The Sakshya Adhiniyam is a law of evidence and defines no offence.

The series

Authored by Eshan Kumar Gupta, Advocate, Hon'ble Allahabad High Court, Lucknow Bench.

Footnotes

  1. Deepu v. State of U.P., Criminal Misc. Writ Petition No. 12287 of 2024, decided on 6 August 2024 (Allahabad High Court, Division Bench: Vivek Kumar Birla and Arun Kumar Singh Deshwal JJ), paras 8, 9, 15, 16 and 21. ↩

  2. Himank Singh @ Vinay v. State of U.P., Application u/s 482 No. 41284 of 2023, decided on 10 March 2026 (Allahabad High Court, Tej Pratap Tiwari J), para 16. ↩

  3. Kunal Rameshbhai Kalyani v. State of Gujarat, 2026 INSC 987, decided on 7 September 2026 (J.B. Pardiwala and K. Vinod Chandran JJ), paras 2, 5 and 7. ↩

  4. Pynchemalangaki Bareh v. State of Meghalaya, 2026 INSC 984, decided on 10 September 2026 (Prashant Kumar Mishra and N.V. Anjaria JJ), paras 42–54, applying the failure-of-justice test. ↩

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