INTRODUCTION 

“The provision of section 482 of Bharitya Nagrik Suraksha Sanhita, 2023 regulates the law of anticipatory bail in India, superseding the previous Section 438 of the Code of Criminal Procedure (CrPC). Anticipatory bail is an essential legal recourse for those who fear arrest in non-bailable offenses, enabling them to apply for security against arrest beforehand where bail is not a matter of right but a discretion of the Courts based on the facts and circumstances of the cases. The basic principles of anticipatory bail largely continue to be the same in both legislations; under the BNSS, Section 482(4) mentions a particular prohibition: it does not allow the grant of anticipatory bail to the accused under Section 65(1) (rape of a girl under 16 years) or Section 70(2) (gangrape of a girl under 18 years) of the Bharatiya Nyaya Sanhita (BNS). This provision seeks to enhance the protection of children where there is a heinous sexual offense and shows a legislative commitment to dealing with such offenses with extreme seriousness. Judicial interpretations in recent times, particularly from the Gauhati High Court, have interpreted the reach and ambit of this bar effectively to ensure that the law is applied uniformly and as per the protective intent. Therefore, Section 482 BNSS is an important development in reconciling individual freedom with the necessity of strict protection in serious offenses.” 

WHAT DOES THIS PROVISION MEAN? 

Section 482 of BNSS deals with the concept of anticipatory bail. The Supreme Court has laid down the structured law on anticipatory bail in the case of Siddharam Satlingappa Mhetre v. State of Maharashtra, wherein the court has discussed at length the power of arrest and the question of anticipatory bail. In anticipation of potential arrest by the arresting authority for a non-bailable offense, a person can file for anticipatory bail, and he will be entitled to bail at the court’s discretion.  

S. 482. Direction for grant of bail to person apprehending arrest. 

Sub-section 1 of section 482 provides for the jurisdiction of the court to consider bail applications. 

Sub-section 2 deals with conditions that could be applicable to the bailee These conditions are inclusive in nature. 

Sub-section 3 provides for the modus operandi if a person is arrested without a warrant. 

Sub-section 4. Provide for the exception of anticipatory bail in cases of a person accused under section 65 and Section 70(2) of BNS, 2023. 

Scope: The right to anticipatory bail can be taken away by a statute as per the precedent established under Prithvi Raj Chouhan v. Union of India (2020) 

Object: There is no effect of the order of anticipatory bail on the police power of Investigation (Hema Mishra v. State of Uttar Pradesh (2014)).  

The power to grant anticipatory bail is conferred only in a sessions court or a High Court. Also, anticipatory bail cannot be granted as a matter of right. It is essentially a statutory right conferred long after the coming into force of the Constitution. It cannot be considered an essential ingredient of Article 21 of the Constitution. And its non-application to a certain special category of offenses cannot be considered violative of Article 21. 

The filing of a first information report is not a condition precedent to the exercise of the powers under Section 438, now Section 482 BNSS. The imminence of a likely arrest founded on a reasonable belief can be shown to exist even if an FIR is not yet filed. 

The power to grant or refuse bail is discretionary and the discretion of grant or cancellation of bail can be exercised either at the instance of the accused, the public prosecutor or the complainant on finding new material or circumstances at any point of time. 

GUWAHATI HIGH COURT CASE 

Facts:  

On November 26, 2024, the minor daughter of the informant was allegedly kidnapped by the accused person who is the petitioner in this case. FIR was filed. Police took action, recovered the minor and returned her to the informant. The accused was charged under several sections of BNS including section 65(1) inter alia.  

[Section 65 provides for punishment for rape of minors (under 16 years and 12 years of age). It provides for imprisonment for a term not less than 20 years which may extend to imprisonment for life along with a fine.] 

The four petitioners filed an application under Section 482 of Bharatiya Nagrik Suraksha Sanhita seeking anticipatory bail apprehending arrest in connection with the case. The prosecution argued that as per Section 482(4), BNSS anticipatory bail is barred for those accused of offenses under Section 65 and Section 70(2) of BNS. The petitioners contended that the bar should apply only if a person is accused of both offenses, that is, section 65 and Section 70(2) since the provision uses the word ‘and’ and in this case, only Section 65(1) was invoked against one petitioner. The amicus curiae and the prosecution. The amicus curiae and the prosecution argued that the legislative intent was to bar the anticipatory bail for either offense and that reading ‘and’ literally would defeat the purpose of the law. 

Legal issues before the court:  

1. Whether the word ‘and’ in section 482 of BNSS should be interpreted as ‘and’ (conjunctive) or ‘or’ (disjunctive), thus determining if the embargo (legal prohibition) on anticipatory bail applies when an accused is charged with either Section 65. Section 70(2) of BNS, or only when both are charged together? 
2. Whether the bar on anticipatory pain was applicable to all the petitioners or only to the petitioner accused under Section 65 of BNS? 
3. Whether the legislative intent behind this section was to maintain the same scope as earlier section 438 of CrPC, which used ‘or’ and thus applied the bar to either offense individually? 

Court’s interpretation: 

The court held that the words ‘and’ in section 482(2) of BNSS must be read as ‘or’ to align with the legislative intent. This provision bars anticipatory bail for offenses under section 65 (rape of minor below 16) or section 70(2) (gangrape of minor below 18) of the BNS. 

The court noticed it is unlikely for an accused to face charges under both sections simultaneously. Both sections are mutually exclusive based on the victim’s age and the number of preparators. 

This decision relied on the Supreme Court’s ruling in Spentex Industries Limited v. Commissioner of Central Excise (2016), which permits interpreting ‘and’ as ‘or’ to avoid defeating the legislative purpose.  

To conclude, the embargo under section 482 applies if an accused faces charges under either section 65 or 70(2) of BNS.  

Courts Finding: 

The court found that the victim was under 16 years of age, making section 65(1) applicable. 

The court held that the bar on anticipatory bail applies if the accused is charged under either section 65 or section 70(2) of BNS. 

The anticipatory bail was rejected for the petitioner accused under section 65(1), as the bar was applicable, but not allowed for the other petitions who were not accused under the said section.  

IMPORTANCE OF THIS JUDGMENT 

This landmark judgment has set up a precedent for the future. 

This judgment resolves the ambiguity and provides a clear path for the application of section 482(4) of BNSS by interpreting the words ‘and’ as ‘or’ so that the embargo on anticipatory bail applies to anyone accused of either section 65 or section 70(1) of BNS. 

Secondly, this judgment aligns with the earlier section 438(4) of CrPC, which also barred anticipatory bail for these serious offenses using ‘or’ rather than ‘and,’ thereby ensuring the protection of minors in sexual offense cases. 

This reinforces the judiciary’s role in the purposive interpretation of statutes. 

Direct implications could be seen in the person charged with the specific crimes as it bars from being entitled to anticipatory bail. 

This ruling proves to be an unambiguous guide for future cases for the lower courts.  

This closes the potential loophole and upholds the legislative intent to provide greater protection to the victims of sexual offenses, particularly minors.  

CONCLUSION 

“The interpretation of Section 482(4) of the BNSS by the Guwahati High Court marks a crucial phase of development in anticipatory bail law, particularly concerning heinous sexual offenses against children. Interpreting the bare reading of the text in the said section of "and" as "or," the court resolved a grave ambiguity to the effect that the statutory prohibition against anticipatory bail applies to anyone except for those charged under either Section 65 (rape of a minor below 16 years) or Section 70(2) (gangrape of a minor below 18 years) of the BNS. Thereby avoiding the possibility of a loophole that would have enabled persons alleged to have committed grave offenses of rape and outraging the modesty of a woman, to escape the bar on the grounds that the two offenses have to be jointly charged, something which is practically not possible otherwise considering the inconsistency in these sections. 

The decision is consistent with the legislative intent of both the BNSS and the (now repealed) CrPC in preserving protection for minors and maintaining the seriousness with which the law views such grave offenses. It also sets a precedent for lower courts and police to follow, thus ensuring predictability and consistency in the application of the law. This ruling consolidates the legal framework in protecting vulnerable victims, emphasizes the judiciary's role in purposive interpretation, and fills gaps that would otherwise discredit justice in sensitive circumstances of sexual offenses against children.” 

AUTHOR: KAVYA GUPTA

REFERENCES 

1. https://www.ebcreader.com/share/991071303  
2. https://www.ebcreader.com/share/99107682  
3. https://www.livelaw.in/high-court/gauhati-high-court/s4824-bnss-and-must-be-read-as-or-no-anticipatory-bail-if-person-is-accused-of-s65-or-s70-bns-gauhati-high-court-294435