BNSS Has Removed CrPC (UP Amendment) Bar On Grant Of Anticipatory Bail In Offences Punishable With Death Or Life Term: Allahabad HC
In a significant ruling, the Allahabad High Court has held that with the enforcement of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) from July 1, 2024, which repealed the CrPC, the restriction contained under Section 438(6) of the CrPC (as was applicable in the State of UP) on granting anticipatory bail in cases punishable with death or life imprisonment, no longer...
In a significant ruling, the Allahabad High Court has held that with the enforcement of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) from July 1, 2024, which repealed the CrPC, the restriction contained under Section 438(6) of the CrPC (as was applicable in the State of UP) on granting anticipatory bail in cases punishable with death or life imprisonment, no longer applies.
In other words, the Court clarified that since Section 482 of the BNSS, which now governs anticipatory bail, does not retain any such prohibition as contained under Section 438 (6) CrPC, there is no bar on granting anticipatory bail in cases punishable with death or life imprisonment.
A bench of Justice Chandra Dhari Singh held thus while allowing the second anticipatory bail application filed by one Abdul Hameed, who was summoned to face trial in a 2011 murder case but was not charge-sheeted during the investigation.
Case in brief
The applicant and three others, armed with licensed pistols, allegedly opened fire due to political rivalry arising out of Zila Panchayat elections, due to which the uncle of the informant died in 2011.
During the investigation, the allegations against applicant-Abdul Hameed were found to be false and hence, he was not charge-sheeted. However, later, in 2019, based on the testimony of PW-1, the trial court summoned the applicant under Section 319 CrPC.
The applicant's first anticipatory bail plea was rejected in February 2023 by a Coordinate Bench of the High Court, in view of the bar contained under Section 438(6) CrPC.
The bar inter alia on the grant of anticipatory bail for offences punishable with death or life imprisonment was introduced by the U.P. Amendment Act, 2019.
Post July 1, 2024, with the BNSS coming into force, the applicant filed a fresh application under Section 482 BNSS seeking anticipatory bail. The Sessions Court rejected it in March 2025, prompting him to move to the High Court.
It was argued on behalf of the applicant that the statutory bar under Section 438(6) CrPC no longer exists under BNSS, and the current application is filed under a completely different statutory regime.
It was further contended that the instant second anticipatory bail plea is moved under changed circumstances and that the dismissal of the earlier application was not on merits but on maintainability.
On the other hand, the AGA for the state argued that the applicant was trying to circumvent this statutory embargo by invoking Section 482 of the newly enacted BNSS, which does not contain a similar bar.
It was submitted that since the offence in question was committed in 2011, and the charge sheet was filed under the CrPC regime, and even the cognizance was taken well prior to the BNSS coming into force, BNSS cannot retrospectively override the bar under Section 438(6) as applicable in UP.
It was lastly argued that a mere change in law does not automatically revive a right once extinguished by a judicial order, especially in a case where the first anticipatory bail application was rejected specifically on the grounds of non-maintainability.
Having heard the counsels for both parties, the bench framed the following four legal issues:
- Whether the second anticipatory bail application under Section 482 BNSS is maintainable in light of the earlier rejection under Section 438(6) CrPC?
- Whether the provisions of Section 482 BNSS would apply retrospectively to cases where the offence was committed prior to its enforcement, and the doctrine of beneficial legislation?
- Whether the changed circumstances subsequent to dismissal of the first anticipatory bail application justify fresh consideration on merits
- 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?
Regarding the first question, the bench noted that the omission under Section 482 of BNSS, which governs anticipatory bail, regarding the bar under Section 438(6) CrPC was conscious and deliberate, which indicated that the Parliament did not intend to continue the restriction introduced by the U.P. Amendment Act, 2019.
"…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 bench opined.
Regarding the third question, the Court noted that the dismissal of the SLP filed by the applicant in December 2024, followed by the issuance of NBW in February 2025, created a fresh apprehension of arrest.
The Court also noted that "the enactment of BNSS has created material changed circumstances, both in law and fact, that justify fresh consideration on merits. The removal of the statutory bar contained in Section 438(6) of CrPC represents a fundamental change in the legal framework that obliterates the foundation upon which the first application was rejected".
The Court opined that since the first application was dismissed purely on maintainability and not merits, and since the legislative landscape has now changed, and thus, the present application was maintainable.
About the second question, the Court referred to HC's 2024 order in the case of Deepu And 4 Others vs. State Of U.P. And 3 Others 2024 LiveLaw (AB) 517, to note that the present application, filed after July 1, 2024, falls squarely within the ambit of BNSS, and thus, the applicant is entitled to the benefit of the more liberal provisions thereof.
"The absence of the Section 438(6) bar in BNSS, as interpreted in Deepu (Supra), removes the primary impediment that led to the rejection of the first anticipatory bail application", the bench noted.
Now, with the three issues answered, the Court turned towards the fourth issue and examined as to whether on merits, the relief was liable to be granted to the applicant.
The bench noted that the IO had initially not charge-sheeted the applicant, having found the allegations to be false and that even the injured eyewitnesses did not name him.
The court also took into account that the role assigned to the applicant in the FIR was vague and ornamental, and the postmortem revealed a single bullet injury, which contradicted claims of indiscriminate firing by multiple accused.
It also noted that the applicant is 78 years old and is suffering from lung failure and age-related ailments, and has no criminal antecedents.
Furthermore, noting that the incident occurred over 13 years ago and there was a considerable delay in his summoning (summoned only in 2019), this fact also weighed in his favour.
Thus, his anticipatory bail plea was allowed.