S.482(4) BNSS | 'And' Must Be Read As 'Or'; No Anticipatory Bail If Person Is Accused Of S.65 Or S.70 BNS : Gauhati High Court

The Gauhati High Court recently held that the embargo under Section 482(4) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023,  on granting anticipatory bail will apply to offences either under Section 65 or Section 70(2) of the Bharatiya Nyaya Sanhita (BNS), 2023.

The Court held that the word "and" appearing in Section 482(4) must be read as "or" to give effect to the intention of the legislature.

Section 65 of the BNS deals with the offence of rape of a woman aged below 16 years of age. Section 70(2) deals with the offence of gangrape of a woman aged under the age of 18 years of age.

The Court noted that it was unlikely that a person would be accused of both these offences. Hence, to hold that the embargo will apply only if a person is accused of both Section 65 and Section 70(2) would be absurd.

The single judge bench of Justice Mridul Kumar Kalita observed:

“……..this Court is of considered opinion that the word “and” appearing between the words “under Section 65” and “sub-Section (2) of Section 70” in Section 482(4) of BNSS shall have to be read as “or” to give effect to the manifest intention of the legislature.”

Reliance was placed on the Supreme Court judgment in Spentex Industries Limited vs. Commissioner of Central Excise (2016) which held that "and" can be read as "or" in certain circumstances to give effect to the intention of the legislature.

The Court was hearing an application under Section 482 of BNSS filed by four accused-petitioners apprehending their arrest in connection with a case under Sections 61(2), 137(2), 303(2), 65(1), 308(2) of the BNS.

The brief of the accusation was that on November 26, 2024, the accused persons named in the FIR (present petitioners) had kidnapped the minor daughter of the informant. However, the Police on filing of an FIR recovered the daughter of the informant and handed over her custody to the informant.

It was alleged that on January 9, 2025, the accused No. 1 again kidnapped the daughter of the informant with the help of other accused persons. It was also alleged in the FIR that the petitioner No. 1 also took an amount of Rs.1,50,000/- from the Almirah. It was further alleged that the petitioner No. 1 had committed sexual intercourse with the daughter of the informant on pretext of marrying her. The date of birth of the victim girl is stated to be on November 07, 2010 in the FIR.

The Counsel appearing for the petitioner submitted that that the victim girl was major on the date of alleged incident and she left with the petitioner No. 1 out of her own will. It was also submitted that in the meanwhile, petitioner Nos. 2, 3 and 4 were granted interim bail by the High Court by order dated April 10, 2025 and in pursuant to the directions of the Court, they have co-operated in the investigation.

On the other hand, the Additional Public Prosecutor has raised the plea of maintainability of the anticipatory bail application on the ground that the same is barred by Section 482(4) of BNSS, 2023.

However, the petitioner's Counsel argued that on the plain reading of the Section 482(4) of BNSS, it appears that an anticipatory bail application is not maintainable in case of a person who is accused of “an offence under Section 65 and sub-Section (2) of Section 70” of BNS, 2023.

It was submitted that legislature has deliberately used the conjunction “and” in Section 482(4) in place of the disjunction “or” in the said provision, hence, unless a person is accused of both the offences under Section 65 and Section 70(2) of BNS 2023, the bar of Section 482(4) will not be applicable.

It was therefore, submitted that as in the present case, only offence under Section 65(1) is involved without any accusation under Section 70(2), the bar under Section 482(4) is not applicable.

The Amicus Curiae submitted that Section 482 of BNSS are in pari materia with Section 438 of CrPC except for the use of conjunction “and” in the Section 482(4) BNSS instead of disjunction “or” used in Section 438(4) of the CrPC.

It was submitted that the categories of the offences in respect of which the bar was provided under Section 438(4) of the CrPC remains same even in Section 482(4) of BNSS, 2023. Hence, it was argued that if literal meaning is given to the conjunction “and” in Section 482(4) of BNSS it would mean that only if a person has committed both the offences under Section 65 and Section 70(2) of BNS, he may not be entitled to anticipatory bail. He further submitted that this interpretation would give rise to unnecessary mischief in as much as the offence under Section 70(2) of BNS includes within its ambit, the erstwhile offences under Section 376 DA and 376 DB of the IPC. Whereas Section 65 of BNS covers both the offence under Section 376(3) and Section 376 AB of the IPC.

The Court noted:

“We have seen that the provision contained in Section 482 of BNSS, 2023 is peri material with Section 438 of Cr.P.C. There is nothing in the statement of objects and reasons of enacting BNSS, 2023 to suggest that the legislature intended to give a restricted operation in respect of the exclusion clause contained in the Section 482(4) of BNSS then that of the clause which was there in the Section 438(4) of the Code of Criminal Procedure.”

It was opined by the Court that if literal meaning is given to the word “and” used in Section 482(4), it would frustrate the legislative intent of restricting the operation of provisions regarding anticipatory bail in respect of certain heinous offences which was earlier provided for in Section 438(4) of CrPC.

“…..There is unlikelihood of a case where a person would be charged both under Section 65 of BNS as well as under Section 70(2) of BNS. If there is a single offender and the victim is less than 16 years of age, he would be charged under Section 65 of BNS whereas if there are one or more women who is raped by one or more in a group of persons acting in furtherance of their common intention of raping the minor girl, they would be charged under Section 70(2) of BNS. To say in other words, if more than one person are involved in the offence of raping a victim under the age of 18 years, they would not be charged under Section 65 but under Section 70(2) of BNS, therefore, there is unlikelihood of a case being registered under both the sections i.e., Section 65 and Section 70(2) of BNS if there are more than one person involved and victim is less than 18 years of age,” the Court observed.

Thus, the Court held that that the embargo of Section 482(4) of BNSS would apply to any case involving the arrest of any person on accusation of having committed an offence under Section 65 or sub-Section (2) of Section 70 of BNS, 2023.

“As per the date of birth certificate of the victim girl issued by the Registrar of Birth and Death, which is available in the case diary she would be less than 16 years of age at the time of the alleged offence. Hence, prima facie, it appears that the Section 65(1) of BNS would be applicable in this case and hence the bar provided under Section 482(4) of BNSS would be applicable in this case. However, as the accusation of rape has been made only against the petitioner No. 1, the said bar would be operative against petitioner No. 1 only. Against the rest of three petitioners, the said bar shall not be operative,” the Court said.

Accordingly, the Court rejected the application for anticipatory bail of petitioner No. 1 by observing that as there are prima facie materials against the petitioner No. 1 under Section 65(1) of BNS, 2023, hence, his application for anticipatory bail is barred by Sections 482(4) of BNSS.