Allahabad High Court: In an anticipatory bail application filed by a 78-year-old man in an FIR filed under Sections 302, 307, 323, and 504 the Penal Code, 1860 (‘IPC’), the Single Judge Bench of Chandra Dhari Singh, J., allowed the application, holding that the present bail application under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (‘BNSS’) was manifestly maintainable and the accused made out a prima facie case for grant of anticipatory bail.
Background
In 2011, allegedly, the accused herein, along with three co-accused, armed with licensed pistols, attacked the informant and his family members. Aggrieved, the informant lodged the FIR alleging that the accused persons fired indiscriminately, resulting in the death of the informant’s uncle (‘the deceased’). The motive was attributed to prior animosity arising from Zila Panchayat elections and contractual disputes.
The investigation was conducted by the police, and the charge sheet was filed against the three co-accused persons. Notably, the accused was not charge-sheeted as the investigating officer found the allegations against him to be false. During further investigation, villagers submitted affidavits stating that the accused was not present at the scene, and their statements were recorded under Section 161 of the Code of Criminal Procedure, 1973 (‘CrPC’), corroborating his absence.
The accused filed his first anticipatory bail application under Section 438 of the CrPC before a Coordinate Bench of the Court, which was rejected for being barred under Section 438(6) of the CrPC. After the enactment of the BNSS, the accused filed another anticipatory bail application under Section 482 of the BNSS before the Sessions Judge, Bareilly, which was also rejected. Hence, he filed the present application.
Issues and Analysis
1. Whether the present second anticipatory bail application under Section 482 of the BNSS was maintainable considering the rejection of the first anticipatory bail application under Section 438(6) of the CrPC?
At the outset, the Court noted that the accused’s first anticipatory bail application was rejected not on merits but purely on the grounds of maintainability due to the statutory prohibition contained in Section 438(6) of the CrPC, as introduced by the Uttar Pradesh State Amendment Act, 2019 (‘State Amendment’). This provision categorically prohibited the grant of anticipatory bail in cases where the offence is punishable with death or imprisonment for life, including offences under Section 302 of the IPC.
The Court added that thereafter, the legal landscape underwent a fundamental transformation with the enactment of the BNSS, which repealed the CrPC in its entirety. Section 482 of the BNSS, which governs anticipatory bail applications, significantly does not contain any prohibition akin to Section 438(6) of the CrPC. The Court stated that this omission could not be considered inadvertent as it appeared to be a conscious legislative decision to remove the bar that existed under the State Amendment. The absence of such a prohibition in the new enactment assumed greater significance when viewed against the backdrop of the specific inclusion of this bar in the State Amendment to the CrPC.
The Court referred to Kalyan Chandra Sarkar v. Rajesh Ranjan, (2005) 2 SCC 42, wherein the Supreme Court held that subsequent bail applications are maintainable where there is a material change in the fact situation or in law which requires the earlier view to be interfered with, or where the earlier finding has become obsolete. Noting this, the Court stated that in the present case, the enactment of the BNSS constituted a fundamental change in law that satisfied the test laid down in Kalyan Chandra Sarkar (supra). The Court said, “The legal foundation upon which the first bail application was rejected has been completely obliterated by the subsequent legislation.”
The Court also found persuasive support from the Coordinate Bench decision in Sudhir v. State of U.P., 2025 SCC OnLine All 3434, wherein, it was specifically observed that there is no specific intention indicated in the subsequent enactment of BNSS 2023 to continue with the State Amendment and that it was consciously decided by the Parliament to do away with the prohibitions indicated in Section 438(6) of the CrPC. The Court further held that the re-enacted provisions can be said to have been deliberately obliterated by Parliament while enacting Section 482 in the BNSS.
The Court further noted that the facts of the present case demonstrated the changed circumstances that warranted fresh consideration. When the first anticipatory bail application was filed and rejected, the accused’s apprehension of arrest subsequently subsided when the Supreme Court stayed the trial proceedings in an SLP filed by the accused. However, upon dismissal of the said SLP and consequent vacation of the stay, fresh warrant proceedings were initiated, culminating in the issuance of a non-bailable warrant. The Court held that this renewed apprehension of arrest under the new statute constituted a material change in circumstances that justified fresh consideration of the anticipatory bail application.
2. Whether the provisions of Section 482 of the BNSS would apply retrospectively to cases where the offence was committed prior to its enforcement, and the doctrine of beneficial legislation?
The Court referred to Hitendra Vishnu Thakur v. State of Maharashtra, (1994) 4 SCC 602, wherein it was held that a statute which affects substantive rights is presumed to be prospective in operation unless made retrospective, either expressly or by necessary intendment, whereas a statute which merely affects procedure, unless such a construction is textually impossible, is presumed to be retrospective in its application.
The Court underscored that the distinction between substantive and procedural law assumed critical importance in the present case as Section 482 of the BNSS was a procedural provision. Therefore, relying on the principle established in Hitendra Vishnu Thakur (Supra), the Court held that Section 482 of the BNSS would apply retrospectively unless there was a contrary legislative intention explicitly expressed or necessarily implied from the statutory scheme. The Court added that the absence of any saving clause or transitional provision in BNSS indicating continuation of Section 438(6) of the CrPC bar demonstrated that the Parliament intended the new regime to apply universally, irrespective of when the offence was committed.
Regarding the doctrine of beneficial legislation, the Court referred to T. Barai v. Henry Ah Hoe, (1983) 1 SCC 177, which mandated that when a later statute imposes different punishment or varies the procedure, the accused must have the benefit of the reduced punishment or ameliorated procedure. This principle recognizes that the law should evolve in favour of the liberty of the individual, and when Parliament enacts more liberal provisions, the benefit thereof should be available to all persons who may be affected, regardless of when their cases originated. The Court further referred to M. Ravindran v. Directorate of Revenue Intelligence, (2021) 2 SCC 485, wherein the Supreme Court emphasised that in case of any ambiguity in the construction of a penal statute, the Courts must favour the interpretation which leans towards protecting the rights of the accused and that this principle is applicable not only in the case of substantive penal statutes but also in the case of procedures providing for the curtailment of the liberty of the accused.
Noting the aforesaid, the Court stated that the present case was a paradigmatic example of beneficial legislation. The removal of the statutory bar contained in Section 438(6) of the CrPC from the new statutory framework under the BNSS represented a conscious legislative decision to expand the scope of anticipatory bail and enhance the protection of personal liberty.
Thus, the Court held that the accused was entitled to the benefit of the more liberal provisions introduced by BNSS.
“The procedural framework governing bail applications has undergone transformation with BNSS, and the accused cannot be denied the benefit of these beneficial changes merely because the offence antedated the enactment of the new law.”
3. Whether the changed circumstances subsequent to the dismissal of the first anticipatory bail application justify fresh consideration on merits?
The Court stated that the doctrine of changed circumstances, as crystallized in Kalyan Chandra Sarkar (supra), was applicable in the present case. The Court explained that multiple factors constitute changed circumstances that warranted fresh consideration in the present case, which were as follows:
- Material change in the statutory framework for anticipatory bail, which renders the earlier finding completely obsolete, as the legal foundation of the same was entirely removed by subsequent legislation.
- Material change in factual circumstances as the Supreme Court vacated the stay, previously granted by it, on the accused’s arrest. Following the dismissal of the SLP, fresh warrant proceedings were initiated by the Trial Court, culminating in the issuance of non-bailable warrants. This development has created renewed and immediate apprehension of arrest, which is the foundational requirement for maintaining an anticipatory bail application.
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Material change in the procedural posture of the case. The first application was dismissed on purely maintainability grounds without any consideration of merits due to the statutory bar contained in Section 438(6) of CrPC. The present application, being filed under a different statutory regime (BNSS), presents an opportunity for adjudication on merits for the first time.
4. Whether the applicant has made out a prima facie case for the grant of anticipatory bail, considering the role attributed to him and the evidence on record?
The Courts stated that the examination of the role attributed to the accused in the alleged offence revealed the following mitigating factors that weighed significantly in favour of the grant of anticipatory bail. These factors were:
- The investigating officer, after a thorough investigation, found the allegations against the accused to be false and consequently did not include his name in the charge sheet. This initial exoneration indicates the absence of credible evidence against the accused during the investigation.
- The accused was subsequently summoned, under Section 319 of the CrPC, based on the testimony of the informant during cross-examination. However, a careful analysis of the evidence revealed several factors that cast doubt on the reliability and sufficiency of this testimony. The injured witnesses in their statements under Section 161 of the CrPC did not name the accused as one of the assailants.
- The FIR assigned an ‘ornamental role’ to the accused, with no specific allegation of direct assault by him. It did not attribute any specific overt act to him that would constitute his active participation in the commission of the offence. Such vague and general allegations in the FIR, without specific details of the accused’s role, suggested that his inclusion might have been more a matter of suspicion rather than concrete evidence.
- The post-mortem examination revealed that the deceased suffered a single bullet injury with one entry and one exit wound. This raised questions about the number of active participants in the commission of the offence and the specific role attributed to the accused.
- No fresh material evidence emerged during the trial, and it does not appear to have added any new dimension to the case that was not already available during the investigation.
- The accused was a 78-year-old man suffering from lung failure and other age-related ailments. His advanced age and medical condition, coupled with the absence of any criminal antecedents, indicated that no useful purpose would be served by his custodial interrogation, particularly when the police had already filed their final report.
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Moreover, the incident occurred in 2011, over 13 years ago, and the accused was summoned in 2019, indicating a substantial delay in proceedings. Such a prolonged delay in itself created a case for bail, as the accused was living under the shadow of criminal proceedings for an extended period.
Decision
Based on the aforesaid legal and factual analysis, the Court held that the present bail application under Section 482 of the BNSS was manifestly maintainable and the accused made out a prima facie case for the grant of anticipatory bail.
Accordingly, the application was allowed, subject to a bail bond of Rs 1 Lakh along with two solvent sureties of like amount, subject to the satisfaction of the Trial Court.
[Abdul Hameed v. State of U.P., 2025 SCC OnLine All 4046, decided on 03-00-2025]
Advocates who appeared in this case:
For the applicant: Pradeep Kumar Rai and Prakhar Saran Srivastava
For the respondent: Government Advocate
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