Anticipatory bail provisions under BNSS apply retrospectively, override CrPC restrictions: Allahabad High Court

The Allahabad High Court recently held that the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) removes the bar under Section 438(6) of the Code of Criminal Procedure (CrPC) on anticipatory bail in cases punishable with death or life imprisonment.

According to a State amendment, Section 438(6) CrPC restricts the grant of anticipatory bail in cases under:

(i) Unlawful Activities (Prevention) Act, 1967;

(ii) Narcotic Drugs and Psychotropic Substances Act, 1985;

(iii) Official Secrets Act, 1923;

(iv) Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986

(b) Offences in which death sentence can be awarded.

However, the provision in BNSS, which does not bar anticipatory bail in such matters, will apply retrospectively and override the State amendment restrictions, the High Court said.

While granting relief to a man who filed a second anticipatory bail plea, Justice Chandra Dhari Singh noted,

"The doctrine of beneficial legislation and the presumption in favour of retrospective application of procedural law strongly support the applicant’s case. The applicant is entitled to the benefit of the more liberal provisions introduced by BNSS, regardless of when the alleged offence was committed."

On August 13, 2011, a firing incident in a village in Uttar Pradesh led to the lodging of a first information report (FIR) against several individuals under Sections 302 (murder), 307 (attempt to murder), 323 (grievous hurt) and 504 (intentional hurt) of the Indian Penal Code (IPC).

The applicant before the Court - Abdul Hameed aged 78 years - was named in the FIR. However, he was not charge-sheeted as witness statements indicated that he was not present at the scene.

During the trial, the informant altered his version, prompting the trial court to summon Hameed under Section 319 CrPC in 2019. Hameed challenged this order and filed applications for discharge and anticipatory bail, which were dismissed.

After the introduction of the BNSS on July 1, 2024, Hameed filed a second anticipatory bail plea under Section 482 BNSS, arguing that the new law does not bar such applications and provides a changed legal framework.

He emphasised that there was no direct evidence against him, no fresh material to justify his summoning and that he was earlier denied bail only due to statutory restrictions now removed under BNSS.

Hameed asserted he was not a flight risk and sought protection from arrest, citing legal precedents allowing second bail pleas under changed circumstances and the retrospective benefit of procedural laws like BNSS.

The counsel for the State strongly opposed the second anticipatory bail plea filed by Hameed, calling it legally and factually untenable. It was further contended that Hameed’s attempt to file a second application under the BNSS was an attempt to bypass the statutory bar despite the case having originated under the CrPC regime in 2011.

According to the State counsel, BNSS cannot apply retrospectively to override earlier judicial findings or statutory bars under CrPC.

The Court found that the second anticipatory bail application was maintainable under Section 482 BNSS, given the repeal of Section 438(6) CrPC and the absence of any savings clause.

"Section 482 of the BNSS, which governs anticipatory bail applications, significantly does not contain any prohibition akin to Section 438(6) of the CrPC. This omission cannot be considered inadvertent but appears to be a conscious legislative decision to remove the bar that existed under the earlier State Amendment. The absence of such prohibition in the new enactment assumes greater significance when viewed against the backdrop of the specific inclusion of this bar in the State Amendment to CrPC," the order stated.

On whether Section 482 BNSS would apply retrospectively, the Court held,

"The provision does not create new offences, prescribe punishments, or alter the substantive rights of the parties. Instead, it provides the procedural mechanism for seeking anticipatory bail. Therefore...Section 482 of the BNSS would apply retrospectively unless there is a contrary legislative intention explicitly expressed or necessarily implied from the statutory scheme."

It further observed that the removal of the statutory bar under Section 438(6) CrPC marks a fundamental shift in the legal framework, effectively dismantling the very basis on which the first anticipatory bail application was rejected.

"The applicant has made out a prima facie case for grant of anticipatory bail, considering his peripheral role in the alleged offence, the absence of credible evidence during investigation as evidenced by his non-inclusion in the initial charge sheet, his advanced age and medical condition, and the substantial delay in proceedings. The fact that the IO initially found the allegations to be false and did not charge-sheet the applicant weighs heavily in his favour," the Court concluded.

Advocates Pradeep Kumar Rai and Prakhar Saran Srivastava appeared for the applicant.

[Read Order]