Under BNSS, no bar on anticipatory bail in cases with death, life punishment: HC
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Prayagraj: The Allahabad high court has held that with the enforcement of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) from July 1, 2024, the restriction on granting anticipatory bail in cases punishable with death or life imprisonment under section 438(6) of the CrPC (as was applicable in the state of UP), no longer applies.
The court clarified that since Section 482 of BNSS, which now governs anticipatory bail, does not retain any such prohibition as was contained under section 438 (6) of the CrPC, there is no bar on granting anticipatory bail in cases punishable with death or life imprisonment.
With this clarification, Justice Chandra Dhari Singh, in its judgment dated July 3, allowed 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.
The applicant's first anticipatory bail plea was rejected in Feb 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 UP Amendment Act, 2019.
After July 1, 2024, with the BNSS coming into force, the applicant filed a fresh application under Section 482 of the BNSS seeking anticipatory bail.
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The sessions court rejected it in March 2025, prompting him to move the high court.
The applicant argued that the statutory bar under Section 438(6) CrPC no longer existed under BNSS, and the current application was filed under a completely different statutory regime.
The state govt's counsel said 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 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.
Having heard the counsels for both parties, the court said 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 UP Amendment Act, 2019.
"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 court said.
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 said that the first application was dismissed on maintainability and not merits, and since the legislative landscape had changed, the present application was maintainable.
In its judgment dated July 3, the court cited a high court order in a case of 2024 to note that the present application filed after July 1, 2024, falls within the ambit of BNSS, and the applicant is entitled to benefit from more liberal provisions thereof.
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