Enactment Of BNSS Constitutes Fundamental Change In Law, Justifying Fresh Consideration Of Application For Anticipatory Bail: Allahabad High Court

The Allahabad Excessive Courtroom made such an statement whereas contemplating a second anticipatory bail software filed underneath Part 482 of the BNSS. The applicant’s first anticipatory bail software underneath Part 438 of the CrPC was rejected by a Coordinate Bench.

The Single Bench of Justice Chandra Dhari Singh stated, “Within the current case, the enactment of BNSS constitutes a elementary change in regulation that satisfies the check laid down in Kalyan Chandra Sarkar (Supra). The earlier rejection was predicated solely on the statutory bar underneath Part 438(6) of the CrPC, which bar not exists underneath the brand new statutory regime. The authorized basis upon which the primary software was rejected has been utterly obliterated by the following laws.”

“…upon dismissal of the stated SLP on 10.12.2024 and consequent trip of the keep, contemporary warrant proceedings had been initiated, culminating within the issuance of non-bailable warrant on 01.02.2025. This renewed apprehension of arrest underneath the brand new statute constitutes a cloth change in circumstances that justifies contemporary consideration of the appliance for anticipatory bail”, it added.

Advocate Pradeep Kumar Rai represented the Applicant whereas Authorities Advocate represented the Respondent.

Factual Background

The incident dates again to the yr 2011, which occurred in Village Girdharpur, resulting in the lodging of an FIR underneath Sections 302, 307, 323, and 504 of the Indian Penal Code, 1860 (IPC). The FIR was lodged by the informant, alleging that the accused individuals, together with Abdul Hameed (applicant herein), together with one Javed Anwar, Anwar Jameer, and Babu, armed with licensed pistols, attacked the informant and his members of the family. The FIR alleged that the accused fired indiscriminately, ensuing within the loss of life of 1 Guddu @ Zakir Husain, the informant’s uncle, who succumbed to a gunshot damage.

The motive was attributed to prior animosity arising from Zila Panchayat elections and contractual disputes. The deceased was declared lifeless and the postmortem revealed a single bullet damage with entry and exit wounds. The applicant filed his first anticipatory bail software underneath Part 438 of the CrPC earlier than a Coordinate Bench which was rejected. After the enactment of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), the applicant filed an anticipatory bail software underneath Part 482 of BNSS which was additionally rejected. Aggrieved thereby, the applicant approached the Excessive Courtroom by submitting a second anticipatory bail software underneath Part 482 of the BNSS.

Reasoning

The Bench famous that the applicant’s first anticipatory bail software was rejected by a Coordinate Bench not on deserves however purely on the grounds of maintainability as a result of statutory prohibition contained in Part 438(6) of the CrPC, as launched by the Uttar Pradesh State Modification Act No. 4 of 2019. This provision categorically prohibits the grant of anticipatory bail in instances the place the offence is punishable with loss of life or imprisonment for all times, together with offences underneath Part 302 of the IPC.

The authorized panorama underwent a elementary transformation with the enactment of the BNSS w.e.f. July 1, 2024, which repealed the CrPC in its entirety. Part 482 of the BNSS, which governs anticipatory bail purposes, considerably doesn’t include any prohibition akin to Part 438(6) of the CrPC. As per the Bench, this omission can’t be thought-about inadvertent however seems to be a aware legislative determination to take away the bar that existed underneath the sooner State Modification.

Contemplating the difficulty of whether or not the second anticipatory bail software underneath Part 482 of the BNSS was maintainable given the sooner rejection of the primary anticipatory bail software underneath Part 438(6) of the CrPC, the Bench referred to the judgment of the Apex Courtroom in Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav (2005) whereby it has been noticed that whereas the submitting of successive bail purposes on the identical info and circumstances is impermissible and constitutes an abuse of the method of regulation, subsequent bail purposes are maintainable the place there’s a materials change within the reality state of affairs or in regulation which requires the sooner view to be interfered with, or the place the sooner discovering has turn into out of date.

The Bench said that the factual matrix of the current case additionally demonstrated clear modified circumstances that warranted contemporary consideration. When the primary anticipatory bail software was filed and rejected, the applicant’s apprehension of arrest had subsequently subsided when the Supreme Courtroom stayed the trial proceedings. Nevertheless, upon dismissal of the SLP and consequent trip of the keep, contemporary warrant proceedings had been initiated, culminating within the issuance of non-bailable warrant. “This renewed apprehension of arrest underneath the brand new statute constitutes a cloth change in circumstances that justifies contemporary consideration of the appliance for anticipatory bail”, it stated.

“Nevertheless, the state of affairs modified dramatically upon dismissal of the stated SLP on 10.12.2024 and consequent trip of the keep. Following the dismissal of the SLP, contemporary warrant proceedings had been initiated by the trial courtroom, culminating within the issuance of non-bailable warrant on 01.02.2025. This improvement has created renewed and speedy apprehension of arrest, which is the foundational requirement for sustaining an anticipatory bail software. The contemporary issuance of non-bailable warrant represents a cloth change within the factual matrix that justifies the submitting of a contemporary software”, it stated.

The Bench additional famous that the FIR assigned an ‘decorative position’ to the applicant, with no particular allegation of direct assault by him. The FIR didn’t attribute any particular overt act to the applicant that might represent his energetic participation within the fee of the offence. The truth that the deadly damage was attributable to a single bullet raised questions concerning the variety of energetic individuals within the fee of the offence and the particular position attributed to the applicant herein.

The Courtroom additionally observed that the applicant is a 78-year-old man affected by lung failure and different age-related illnesses. His superior age and medical situation, coupled with the absence of any felony antecedents, indicated that no helpful objective could be served by his custodial interrogation, significantly when the police had already filed their closing report. The cost sheet, on this case, was filed within the yr 2011, and the applicant was summoned within the yr 2019, which indicated a considerable delay in proceedings. Thus, holding that the second anticipatory bail software underneath Part 482 of BNSS was manifestly maintainable, the Bench allowed the identical.

Trigger Title: Abdul Hameed v. State of U.P (Impartial Quotation: 2025:AHC:102975)

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Applicant: Advocates Pradeep Kumar Rai, Prakhar Saran Srivastava

Reverse Occasion: Authorities Advocate

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