CrPC restriction on granting anticipatory bail no longer applicable in cases punishable with death or life term: Allahabad HC

The Allahabad High Court has held that restriction under a CrPC section on granting anticipatory bail in cases punishable with death or life imprisonment is no longer applicable.

The court said that since Section 482 of the Bharatiya Nagarik Suraksha Sanhita 2023 (BNSS), which now governs anticipatory bail, does not retain any such prohibition as contained under section 438 (6) of Code of Criminal Procedure (CrPC), there is no bar on granting anticipatory bail in cases punishable with death or life imprisonment.

Justice Chandra Dhari Singh gave this observation in a judgement passed on July 3 while allowing the second anticipatory bail application filed by Abdul Hameed, who was summoned to face trial in a 2011 murder case but was not charge-sheeted during the investigation.

Hameed'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, when the BNSS came into force, Hameed filed a fresh application under section 482 BNSS seeking anticipatory bail. The session court rejected it in March 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.

On the other hand, the Uttar Pradesh government's counsel argued that 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 Uttar Pradesh.

Having heard the counsels for both parties, the court framed the four legal issues.

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 U.P. 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''.

It said 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.

In its judgement on Thursday, the bench referred to the high court's 2024 order in the case of Deepu and 4 Others vs. State Of U.P. and 3 Others 2024 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.

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