The Allahabad High Court has held that a second anticipatory bail application filed under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) is maintainable even for offences committed prior to the enactment of BNSS, provided there are material changes in law and fact. The Court emphasized that the statutory bar contained in Section 438(6) of the Code of Criminal Procedure (CrPC), as amended by the Uttar Pradesh Amendment Act, 2019, no longer applies under the BNSS.
Justice Chandra Dhari Singh delivered the judgment on July 3, 2025, in Criminal Misc. Anticipatory Bail Application U/S 482 BNSS No. 2756 of 2025 filed by Abdul Hameed, an accused in a 2011 murder case (FIR No. 647/2011, P.S. Devrania, District Bareilly).
Background of the Case
The case pertains to an incident dated August 13, 2011, in which the informant’s uncle, Guddu @ Zakir Hussain, was shot dead. The FIR was lodged against Abdul Hameed and three others. However, during investigation, the applicant was found not to be present at the scene and was not charge-sheeted.
Despite this, during trial proceedings in 2019, the informant introduced a new version in court leading the trial court to summon Abdul Hameed under Section 319 CrPC. This order was unsuccessfully challenged up to the Supreme Court.
His first anticipatory bail application under Section 438 CrPC was dismissed on February 10, 2023, as being barred by Section 438(6), which restricts anticipatory bail in offences punishable with death or life imprisonment.
After the BNSS came into force on July 1, 2024, the applicant filed a fresh anticipatory bail application under Section 482 BNSS, contending that there was no corresponding bar in the new law.
Submissions and Arguments
Counsel for the applicant argued that:
- The initial investigation found the allegations against him to be false.
- Injured witnesses did not name him.
- His prior bail rejection was due to statutory bar which is no longer applicable under BNSS.
- The enactment of BNSS constitutes a material change in law.
- Fresh apprehension of arrest arose after the Supreme Court vacated stay and fresh non-bailable warrants were issued.
- He is 78 years old, suffers from serious medical conditions, and has no criminal antecedents.
The State opposed the application, arguing that:
- The case is governed by CrPC and the bar under Section 438(6) CrPC continues to apply.
- There is no substantial change in law or fact.
- The applicant has evaded arrest and was declared an absconder under Section 82 CrPC.
- The seriousness of the offence (Section 302 IPC) militates against grant of anticipatory bail.
Court’s Analysis and Findings
The Court framed key questions including:
- Whether a second anticipatory bail application is maintainable under BNSS after earlier rejection under CrPC.
- Whether Section 482 BNSS applies to pre-2024 offences.
- Whether dismissal of the SLP and issuance of warrants constitute changed circumstances.
- Whether the applicant made out a prima facie case for bail.
The Court held:
- The BNSS repealed CrPC and removed the anticipatory bail bar under Section 438(6) CrPC.
- The legislative change in BNSS is substantive and applies retrospectively, being procedural and beneficial in nature.
- In light of precedents such as Kalyan Chandra Sarkar v. Rajesh Ranjan and Deepu & Others v. State of U.P., the new law must apply to applications filed after its enforcement.
- The absence of fresh incriminating material during trial and the fact that the applicant was not originally charge-sheeted supports his claim.
- The applicant’s age, health condition, and absence of prior criminal record are mitigating factors.
Decision
Allowing the application, the Court granted anticipatory bail to Abdul Hameed on furnishing a personal bond of ₹1,00,000 with two solvent sureties, subject to several conditions including:
- Not leaving Uttar Pradesh without court’s permission.
- Surrendering passport and cooperating with trial.
- Avoiding contact with prosecution witnesses and not indulging in criminal activity.
The Court clarified that observations are prima facie and limited to the bail adjudication.
Case Title: Abdul Hameed v. State of U.P.
Case No.: Criminal Misc. Anticipatory Bail Application U/S 482 BNSS No. 2756 of 2025
