Guwahati High Court: In a batch of anticipatory bail applications filed under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023(‘BNSS’), for an FIR registered under Sections 61(2), 137(2), 303(2), 65(1), 308(2) of the Bharatiya Nyaya Sanhita (‘BNS’), 2023, the Bench of Mridul Kumar Kalita, J., allowed three out of four applications, holding that though the custodial interrogation of the accused persons was not required, there was prima facie material against petitioner 1/ main accused under Section 65(1) of the BNS. Further, the Court discussed the interpretation of the word “and” appearing in Section 482(4) of the BNSS rather than “or” appearing in the same place in Section 438(4) of the Code of Criminal Procedure, 1973 (‘CrPC’).
Background
An FIR was lodged under Sections 61(2), 137(2), 303(2), 65(1), 308(2) of the BNS alleging that on 26-11-2024, the accused persons herein had kidnapped the minor daughter of the informant. However, upon filing an FIR, the police recovered the informant’s daughter and handed over her custody to the informant. The FIR also stated that accused 1 again kidnapped the daughter of the informant with the help of other accused persons. It was alleged that petitioner 1 also took an amount of Rs.1.5 Lakhs from the almirah. Further, he allegedly also committed sexual intercourse with the informant’s daughter on the pretext of marrying her.
Aggrieved, an application under Section 482 of the BNSS was filed by four accused apprehending their arrest.
The Amicus Curiae contended that Section 482 of the BNSS was similar to Section 438 of the CrPC, with a notable difference in Section 482(4) of BNSS, 2023, where the conjunction “and” is used. Instead of “or”. He contended that Section 482 of the BNSS was pari materia with Section 438 of the CrPC except of the use of the conjunction “and” in the new provision instead of “or” used in the old provision. Hence, if a literal interpretation was given to the conjunction “and” in Section 482(4) of the BNSS, it would mean that only if a person has committed both the offences under Section 65 and Section 70(2) of the BNS, he may not be entitled to anticipatory bail. This could lead to unnecessary complications, particularly regarding offenses under Section 70(2) of the BNS, which encompasses offenses previously mentioned under Sections 376-DA, 376-DB of the Penal Code, 1860 (‘IPC’); whereas, Section 65 of BNS covers both the offences under Sections 376(3) and 376-AB of the IPC. Thus, he contended that a purposive interpretation had to be given instead of a literal interpretation to the word “and” used in Section 482(4) of BNS.
Analysis and Decision
1. Maintainability of anticipatory bail application under Section 482 of the BNSS
The Court found the contentions of the amicus curie regarding the interpretation of Section 482(4) were acceptable and plausible considering his logic and reasonableness and noted that the provision contained in Section 482 of BNSS, 2023 was pari materia with Section 438 of the CrPC. There is nothing in the statement of objects and reasons of enacting BNSS to suggest that the legislature intended to give a restricted operation in respect of the exclusion clause contained in Section 482(4) of the BNSS then that of the clause which was there in Section 438(4) of the CrPC.
The Court stated that the word “and” in Section 482(4) should be read as “or” to give effect to the legislature’s intention regarding anticipatory bail provisions as literal meaning would frustrate the legislative intent.
Upon perusal of Sections 65 and 70(2) of the BNS, the Court observed that it was unlikely that a person would be charged both under Section 65 as well as under Section 70(2) of the BNS. If there is a single offender and the victim is less than 16 years of age, he would be charged under Section 65 of BNS whereas if there are one or more women who are raped by one or more men in a group who are acting in furtherance of their common intention of raping the minor girl, they would be charged under Section 70(2) of BNS. Thus, the Court held that giving a literal meaning to the word “and” and insisting that the bar of Section 482(4) would be applicable only if the accused was being charged with both the sections, would make the bar redundant.
Thus, the Court held that the embargo of Section 482(4) of the BNSS would apply to any case involving the arrest of any person on an accusation of having committed an offense under Section 65 or Section 70(2) of the BNS.
2. Discrepancy in birth dates mentioned in two different documents
The Court noted that in the present case, the informant stated that his daughter was a minor as her date of birth was 07-11-2010 and this was supported by the victim’s birth certificate. Whereas, according to the transfer/school leaving certificate mentions the date of birth as 07-11-2006.
The Court held in the cases when two documents are shown with different dates of birth namely, the birth certificate issued by the Registrar of Birth and Death and the one issued by the Warden-cum-teacher/Head Teacher of the school, the certificate issued by Registrar of Birth and Death would be more acceptable and reliable compared to the birth certificate issued by the school authority as it has a statutory recognition under the provisions of the Registration of Birth and Death Act, 1969.
Despite noting that the victim stated that she willingly went to the petitioner 1, stayed as his wife and maintained a physical relationship, the Court held that since the girl was a minor at the time of the offence, the said act would be considered rape under Section 63(vi) of the BNS, read with Exception 2 of proviso to the Explanation 2 of Section 63.
Considering the date of birth mentioned in the birth certificate, the Court noted that the victim was less than 16 years old at the time of the offence. Hence, the Court held that Section 65(1) of the BNS would be, prima facie, applicable in this case and the bar provided under Section 482(4) of the BNSS would also be applicable.
Furthermore, considering the progress made in the investigation and the statement recorded by the victim under Section 183 of the BNSS, the Court found that custodial interrogation of petitioners 2, 3, and 4 was not necessary for the completion of the investigation. Accordingly, anticipatory bail was granted to them subject to certain conditions.
However, the Court stated that it appeared that though custodial interrogation of petitioner 1 was not necessary, there were prima facie materials against him under Section 65(1) of the BNS. Hence, the Court rejected his anticipatory bail application.
[Nazir Hussain v. State of Assam, Anticipatory Bail No. 446 of 2025, decided on 02-06-2025]
Advocates who appeared in this case :
For the applicants: AFNU Mollah, R Amin, and K Zaman
For the respondent: Public Prosecutor of Assam R. R. Kaushik and Amicus Curiae Sarfaraz Nawaz
Buy Code of Criminal Procedure, 1973 HERE
Buy Penal Code, 1860 HERE
