BNSS Has Removed CrPC (UP Amendment) Bar On Grant Of Anticipatory Bail In Offences Punishable With Death Or Life Term: Allahabad HC
In a major ruling, the Allahabad Excessive Court docket has held that with the enforcement of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) from July 1, 2024, which repealed the CrPC, the restriction contained below Part 438(6) of the CrPC (as was relevant within the State of UP) on granting anticipatory bail in instances punishable with demise or life imprisonment, not applies.
In different phrases, the Court docket clarified that since Part 482 of the BNSS, which now governs anticipatory bail, doesn’t retain any such prohibition as contained below Part 438 (6) CrPC, there’s no bar on granting anticipatory bail in instances punishable with demise or life imprisonment.
A bench of Justice Chandra Dhari Singh held thus whereas permitting the second anticipatory bail software filed by one Abdul Hameed, who was summoned to face trial in a 2011 homicide case however was not charge-sheeted through the investigation.
Case briefly
The applicant and three others, armed with licensed pistols, allegedly opened fireplace as a consequence of political rivalry arising out of Zila Panchayat elections, as a consequence of which the uncle of the informant died in 2011.
Through the investigation, the allegations towards applicant-Abdul Hameed have been discovered to be false and therefore, he was not charge-sheeted. Nevertheless, later, in 2019, based mostly on the testimony of PW-1, the trial courtroom summoned the applicant below Part 319 CrPC.
The applicant’s first anticipatory bail plea was rejected in February 2023 by a Coordinate Bench of the Excessive Court docket, in view of the bar contained below Part 438(6) CrPC.
The bar inter alia on the grant of anticipatory bail for offences punishable with demise or life imprisonment was launched by the U.P. Modification Act, 2019.
Publish July 1, 2024, with the BNSS coming into drive, the applicant filed a recent software below Part 482 BNSS looking for anticipatory bail. The Periods Court docket rejected it in March 2025, prompting him to maneuver to the Excessive Court docket.
It was argued on behalf of the applicant that the statutory bar below Part 438(6) CrPC no longer exists below BNSS, and the present software is filed below a fully totally different statutory regime.
It was additional contended that the moment second anticipatory bail plea is moved below modified circumstances and that the dismissal of the sooner software was not on deserves however on maintainability.
On the opposite hand, the AGA for the state argued that the applicant was attempting to avoid this statutory embargo by invoking Part 482 of the newly enacted BNSS, which doesn’t include an identical bar.
It was submitted that because the offence in query was dedicated in 2011, and the cost sheet was filed below the CrPC regime, and even the cognizance was taken effectively prior to the BNSS coming into drive, BNSS can not retrospectively override the bar below Part 438(6) as relevant in UP.
It was lastly argued {that a} mere change in regulation doesn’t robotically revive a proper as soon as extinguished by a judicial order, particularly in a case the place the primary anticipatory bail software was rejected particularly on the grounds of non-maintainability.
Having heard the counsels for each events, the bench framed the next 4 authorized points:
- Whether or not the second anticipatory bail software below Part 482 BNSS is maintainable in gentle of the sooner rejection below Part 438(6) CrPC?
- Whether or not the provisions of Part 482 BNSS would apply retrospectively to instances the place the offence was dedicated previous to its enforcement, and the doctrine of useful laws?
- Whether or not the modified circumstances subsequent to dismissal of the primary anticipatory bail software justify recent consideration on deserves
- Whether or not the applicant has made out a prima facie case for the grant of anticipatory bail, contemplating the position attributed to him and the proof on document?
Concerning the first query, the bench famous that the omission below Part 482 of BNSS, which governs anticipatory bail, concerning the bar below Part 438(6) CrPC was aware and deliberate, which indicated that the Parliament did not intend to proceed the restriction launched by the U.P. Modification Act, 2019.
“…this omission can’t be thought-about inadvertent however seems to be a aware legislative resolution to take away the bar that existed below the sooner State Modification. The absence of such prohibition within the new enactment assumes larger significance when considered towards the backdrop of the precise inclusion of this bar within the State Modification to CrPC”, the bench opined.
Concerning the third query, the Court docket famous that the dismissal of the SLP filed by the applicant in December 2024, adopted by the issuance of NBW in February 2025, created a recent apprehension of arrest.
The Court docket additionally famous that “the enactment of BNSS has created materials modified circumstances, each in regulation and truth, that justify recent consideration on deserves. The removing of the statutory bar contained in Part 438(6) of CrPC represents a basic change within the authorized framework that obliterates the muse upon which the first software was rejected”.
The Court docket opined that because the first software was dismissed purely on maintainability and not deserves, and because the legislative panorama has now modified, and thus, the current software was maintainable.
In regards to the second query, the Court docket referred to HC’s 2024 order within the case of Deepu And 4 Others vs. State Of U.P. And 3 Others 2024 LiveLaw (AB) 517, to observe that the current software, filed after July 1, 2024, falls squarely inside the ambit of BNSS, and thus, the applicant is entitled to the advantage of the extra liberal provisions thereof.
“The absence of the Part 438(6) bar in BNSS, as interpreted in Deepu (Supra), removes the major obstacle that led to the rejection of the primary anticipatory bail software”, the bench famous.
Now, with the three points answered, the Court docket turned in direction of the fourth problem and examined as to whether or not on deserves, the aid was liable to be granted to the applicant.
The bench famous that the IO had initially not charge-sheeted the applicant, having discovered the allegations to be false and that even the injured eyewitnesses didn’t identify him.
The courtroom additionally took under consideration that the position assigned to the applicant within the FIR was obscure and decorative, and the postmortem revealed a single bullet harm, which contradicted claims of indiscriminate firing by a number of accused.
It additionally famous that the applicant is 78 years previous and is affected by lung failure and age-related illnesses, and has no felony antecedents.
Moreover, noting that the incident occurred over 13 years in the past and there was a substantial delay in his summoning (summoned solely in 2019), this truth additionally weighed in his favour.
Thus, his anticipatory bail plea was allowed.
