The Allahabad High Court at Lucknow has held that an anticipatory bail application under the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, is maintainable in a Gangsters Act case, even if the underlying FIR and charge sheet predate the BNSS, so long as the apprehension of arrest arises after its commencement on 1 July 2024.
Justice Manish Mathur passed the order while disposing of the anticipatory bail plea in Tatheer Jafri (in FIR – Tatheer Jafri @ Allika) and 2 Others vs. State of U.P., in Criminal Misc. Anticipatory Bail Application No. 118 of 2025.
Case Background
The application concerned Crime No. 632 of 2023, registered under Section 3(1) of the U.P. Gangsters and Anti-Social Activities (Prevention) Act, 1986, at P.S. Kotwali Nagar, District Barabanki. The predicate offence related to Crime No. 102 of 2021 involving multiple IPC provisions (Sections 419, 420, 467, 468, 471, 379, 504, 506), and the charge sheet in that case was filed on 11 February 2024. The trial court issued a summoning order on 25 April 2024, and subsequently two bailable warrants were issued — first on 30 May 2024 and again on 2 July 2024.
State’s Objection
The State, represented by Additional Government Advocate Mr. Ranvijay Singh, objected to the maintainability of the anticipatory bail application, citing the U.P. Amendment Act, 2022 to the CrPC, which bars anticipatory bail for offences under the Gangsters Act. It was submitted that since the charge sheet and initial warrant predated 1 July 2024, the application was not maintainable under BNSS.
Applicant’s Submission
Counsel for the applicants, Mr. Nadeem Murtaza and Mr. Anjani Kumar Mishra, argued that Section 482 of the BNSS, 2023, provides for anticipatory bail and that the relevant consideration is the date when the apprehension of arrest arises—not the date of charge sheet or summoning. They contended that since the second warrant was issued on 2 July 2024, after BNSS came into force, the present application is maintainable. Reliance was placed on Deepu and Others vs. State of U.P. and M. Ravindran vs. Intelligence Officer [(2021) 2 SCC 485].
Court’s Observations
The Court observed:
“At the time of filing of charge sheet, issuance of summoning order and issuance of first bailable warrant, the provisions of BNSS, 2023 had not come into application… However, it is also evident that subsequent to implementation of BNSS, 2023 on 1.7.2024, a second bailable warrant was issued on 2.7.2024.”
It further noted:
“A perusal of Section 482 BNSS, 2023 indicates that it provides a mechanism for grant of anticipatory bail… such an application would be maintainable when a person has reason to believe that he may be arrested.”
The Court emphasized that the apprehension of arrest arose afresh after 1 July 2024:
“The apprehension of applicants for being taken into custody would, in the considered opinion of this Court, be a continuing cause of action… particularly since they have not been taken into custody even after issuance of second bailable warrant dated 2.7.2024.”
Referring to the decision in Deepu and Section 531(2)(a) of BNSS, the Court clarified that:
“The repeal clause would save only the applications which were pending as on the date of implementation of BNSS, 2023… and since in the present case, no anticipatory bail application had been filed prior to enforcement of BNSS, 2023, the aforesaid provision of repeal and saving clause would not apply…”
Emphasis on Liberty
The Court cited the Supreme Court’s judgment in EERA vs. State (NCT of Delhi) [(2017) 15 SCC 133], affirming the use of purposive interpretation in beneficial statutes:
“Provisions of anticipatory bail… are required to be given widest amplitude for their effective implementation, particularly in light of the maxim that a person is assumed to be innocent unless proved guilty.”
It also relied on M. Ravindran to note that:
“In case of any ambiguity in the construction of a penal statute, the courts must favour the interpretation which leans towards protecting the rights of the accused.”
Decision
Rejecting the preliminary objection raised by the State, the Court held:
“The preliminary objection raised regarding maintainability of the present anticipatory bail application is hereby rejected.”
On merits, noting that only one prior case was cited in the gang chart and that the applicants had earlier been granted interim protection, the Court allowed the anticipatory bail application. It directed that in the event of arrest, the applicants shall be released on personal bonds and sureties, subject to cooperation in the investigation and other standard conditions.
