# Abdul Hameed v. State of U.P

- **Citation:** (2025) 7 ILRA 207
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-07-03
- **Case number:** Criminal Misc. Anticipatory Bail Application U/S 482 B.N.S.S. No. 2756 of 2025
- **Bench:** Chandra Dhari Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/abdul-hameed-v-state-of-u-p-53485
- **Pages:** 15

## Headnote

and sustainable in law, notwithstanding earlier
rejection of anticipatory bail u/s 438(6) of CrPC
(as amended by U.P. Act No. 4 of 2019), and
whether
subsequent
enactment
of
BNSS,
coupled with dismissal of SLP, issuance of fresh
non-bailable
warrant
and
proclamation
constitute 'changed circumstances' warranting
reconsideration of anticipatory bail.

Head Notes
208 INDIAN LAW REPORTS ALLAHABAD SERIES
Indian Penal Code, 1860 - ss.302, 307,
323, 504 - Code of Criminal Procedure,
1973 - ss.82/83, 161, 319, 438(6) -
Present case arises out of incident dated
13.08.2011, wherein at about 08:15 A.M.,
assault
was
allegedly
committed
by
certain
accused
persons
armed
with
licensed pistols on informant and his
family members, resulting in death of one
Guddu @ Zakir Husain, uncle of informant,
succumbed to gunshot injury, leading to
registration of FIR u/s 302, 307, 323, and
504
IPC
-
During
investigation,
Investigating Officer found allegations
against applicant to be false, as injured
witnesses
and
villagers'
affidavits
corroborated his absence from scene, and
accordingly, he was not charge-sheeted -
During trial, on basis of deposition of
informant
(PW-1),
learned
Additional
Sessions
Judge
vide
order
dated
22.05.2019, summoned applicant u/s 319
CrPC - Applicant's subsequent efforts to
seek discharge and quashment u/s 482
CrPC were rejected up to Supreme Court,
where
his
SLP
was
dismissed
on
10.12.2024, vacating the stay earlier
granted on trial - Thereafter, trial court
issued
non-bailable
warrant
on
01.02.2025, prompting applicant, aged 78
years and suffering from serious ailments,
to file present second anticipatory bail
application u/s 482 of BNSS asserting
changed circumstances and contending
that statutory bar u/s 438(6) CrPC stood
removed under new enactment, thereby
entitling him to anticipatory relief.

Held: Upon due consideration of record and
rival submissions, Court finds that second
anticipatory bail application u/s 482 BNSS is
manifestly maintainable - Enactment of BNSS
has created material changed circumstances,
both in law and fact, that justify fresh
consideration on merits - Removal of statutory
bar contained in Section 438(6) of CrPC
represents
fundamental
change
in
legal
framework that obliterates foundation upon
which first application was rejected - Doctrine of
beneficial legislation and presumption favoring
retrospective application of procedural law
supports applicant and entitled him to liberal
provisions of BNSS, regardless of when alleged
offence
was
committed
-
Applicant
has
established prima facie case for anticipatory
bail, given his peripheral role, absence of
credible evidence, non-inclusion in initial charge
sheet, advanced age, medical condition and
delay in proceedings, coupled with IO's initial
finding of false allegations - Supervening
circumstances - BNSS enactment, Supreme
Court stay vacated and fresh issuance of nonbailable warrant - justify fresh consideration on
merits. [Paras 50 to 54] (E-13)

Case Law Cited
Anurag Dubey v. State of UP, Order dated
20.09.2022,
passed
in
ABAIL
No.1327/2022- relied on

Asha Dubey v. State of MP, Judgment dated
12.11.2024,
Criminal
Appeal
no.
4564/2024; Lavesh v. State (NCT of Delhi),
[(2012) 8 SCC 730]; Sudhir Kumar Chaurasia
v. State of U.P., (Cri. Misc. Anti. Bail Appl.
No. 447/2025); T. Barai v. Henry Ah Hoe,
(1983) 1 SCC 177; Trilok Chand v. State of
Himachal
Pradesh,
(Cri.
Appeal
No.
1831/2010); M. Ravindran v. Intelligence
Officer, Directorate of Revenue Intelligence,
(2021) 2 SCC 485; Tatheer Jafri & Ors. v.
State of U.P., decided on 01.04.2025;
referred to

Kalyan Chandra Sarkar v. Rajesh Ranjan @
Pappu Yadav, [(2005) 2 SCC 42]; Deepu &
others v. State of U.P. & others., 2024 (10)
ADJ 370 - Hitendra Vishnu Thakur & Others v.
State of Maharashtra & Others, (1994) 4 SCC
602; followed

List of Acts
Penal Code, 1860; Code of Criminal Procedure,
1973;
Criminal
Procedure
(Uttar
Pradesh
Amendment) Act, 2018.

List of Keywords
Sum

## Text

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7 All. Abdul Hameed Vs. State of U.P.
207

19. The view expressed by learned
Single Judge of Delhi High Court in the
matter of Ravinder Lal Airi (supra), cited
by learned counsel for the applicants, is
contrary to the Full Bench decision of this
Court in the matter of Father Thomas
(supra), therefore, in my opinion, same is
not liable to be considered. Facts and
circumstances of the case of Imran
Pratapgadhi (supra), cited by learned
counsel for the applicants are quite
distinguishable
from
the
given
circumstances of the present case.

20. Having considered the impugned
judgment passed by the learned Magistrate,
I am of the view that it would be difficult to
infer that the order has been passed in a
perfunctory or mechanical manner without
application of mind. He has discussed the
case in detail, having considered the reply
submitted by General Manager of the Bank,
namely, Amrendra Kumar (opposite party
no.1 in the complaint), police report and
other documents, and expressed his view
that prima facie cognizable offence appears
to have committed by the opposite parties
and in such a case registration of an F.I.R.
at the concerned police station and
conducting appropriate investigation is
justified.
After
going
through
the
complaint, documents and hearing the
complainant, what weighed with the
Magistrate to order an investigation under
173(3) B.N.S.S., has succinctly been
reflected in the order under challenge. He
has assigned cogent reasons for the
requirement of investigation of the matter.

21. In this conspectus, as above, I am
of the considered view that the present
applicants,
who
are
the
prospective
accused, have no locus standi to assail the
direction for investigation under Section
173(4) read with 175 (3) B.N.S.S. before
the summoning/cognizance stage. There is
neither any abuse of process of court nor
any ground made out to pass an order to
interfere with the complaint u/s 173(4) for
securing the ends of justice, in exercise of
the inherent jurisdiction of this Court under
Section 528 B.N.S.S.

22. Resultantly, instant application at
the behest of the prospective accused, the
person who is suspected to have committed
the crime, is dismissed as not maintainable.
---------
(2025) 7 ILRA 207
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.07.2025

BEFORE

THE HON'BLE CHANDRA DHARI SINGH, J.

Criminal Misc. Anticipatory Bail Application U/S
482 B.N.S.S. No. 2756 of 2025

Abdul Hameed ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Pradeep
Kumar
Rai,
Prakhar
Saran
Srivastava

Counsel for the Opposite Party:
G.A.

Issue for Consideration
Whether applicant's present second anticipatory
bail application u/s 482 of BNSS, is maintainable
and sustainable in law, notwithstanding earlier
rejection of anticipatory bail u/s 438(6) of CrPC
(as amended by U.P. Act No. 4 of 2019), and
whether
subsequent
enactment
of
BNSS,
coupled with dismissal of SLP, issuance of fresh
non-bailable
warrant
and
proclamation
constitute 'changed circumstances' warranting
reconsideration of anticipatory bail.

Head Notes
208 INDIAN LAW REPORTS ALLAHABAD SERIES
Indian Penal Code, 1860 - ss.302, 307,
323, 504 - Code of Criminal Procedure,
1973 - ss.82/83, 161, 319, 438(6) -
Present case arises out of incident dated
13.08.2011, wherein at about 08:15 A.M.,
assault
was
allegedly
committed
by
certain
accused
persons
armed
with
licensed pistols on informant and his
family members, resulting in death of one
Guddu @ Zakir Husain, uncle of informant,
succumbed to gunshot injury, leading to
registration of FIR u/s 302, 307, 323, and
504
IPC
-
During
investigation,
Investigating Officer found allegations
against applicant to be false, as injured
witnesses
and
villagers'
affidavits
corroborated his absence from scene, and
accordingly, he was not charge-sheeted -
During trial, on basis of deposition of
informant
(PW-1),
learned
Additional
Sessions
Judge
vide
order
dated
22.05.2019, summoned applicant u/s 319
CrPC - Applicant's subsequent efforts to
seek discharge and quashment u/s 482
CrPC were rejected up to Supreme Court,
where
his
SLP
was
dismissed
on
10.12.2024, vacating the stay earlier
granted on trial - Thereafter, trial court
issued
non-bailable
warrant
on
01.02.2025, prompting applicant, aged 78
years and suffering from serious ailments,
to file present second anticipatory bail
application u/s 482 of BNSS asserting
changed circumstances and contending
that statutory bar u/s 438(6) CrPC stood
removed under new enactment, thereby
entitling him to anticipatory relief.

Held: Upon due consideration of record and
rival submissions, Court finds that second
anticipatory bail application u/s 482 BNSS is
manifestly maintainable - Enactment of BNSS
has created material changed circumstances,
both in law and fact, that justify fresh
consideration on merits - Removal of statutory
bar contained in Section 438(6) of CrPC
represents
fundamental
change
in
legal
framework that obliterates foundation upon
which first application was rejected - Doctrine of
beneficial legislation and presumption favoring
retrospective application of procedural law
supports applicant and entitled him to liberal
provisions of BNSS, regardless of when alleged
offence
was
committed
-
Applicant
has
established prima facie case for anticipatory
bail, given his peripheral role, absence of
credible evidence, non-inclusion in initial charge
sheet, advanced age, medical condition and
delay in proceedings, coupled with IO's initial
finding of false allegations - Supervening
circumstances - BNSS enactment, Supreme
Court stay vacated and fresh issuance of nonbailable warrant - justify fresh consideration on
merits. [Paras 50 to 54] (E-13)

Case Law Cited
Anurag Dubey v. State of UP, Order dated
20.09.2022,
passed
in
ABAIL
No.1327/2022- relied on

Asha Dubey v. State of MP, Judgment dated
12.11.2024,
Criminal
Appeal
no.
4564/2024; Lavesh v. State (NCT of Delhi),
[(2012) 8 SCC 730]; Sudhir Kumar Chaurasia
v. State of U.P., (Cri. Misc. Anti. Bail Appl.
No. 447/2025); T. Barai v. Henry Ah Hoe,
(1983) 1 SCC 177; Trilok Chand v. State of
Himachal
Pradesh,
(Cri.
Appeal
No.
1831/2010); M. Ravindran v. Intelligence
Officer, Directorate of Revenue Intelligence,
(2021) 2 SCC 485; Tatheer Jafri & Ors. v.
State of U.P., decided on 01.04.2025;
referred to

Kalyan Chandra Sarkar v. Rajesh Ranjan @
Pappu Yadav, [(2005) 2 SCC 42]; Deepu &
others v. State of U.P. & others., 2024 (10)
ADJ 370 - Hitendra Vishnu Thakur & Others v.
State of Maharashtra & Others, (1994) 4 SCC
602; followed

List of Acts
Penal Code, 1860; Code of Criminal Procedure,
1973;
Criminal
Procedure
(Uttar
Pradesh
Amendment) Act, 2018.

List of Keywords
Summoning Order; Discharge Application; Nonbailable Warrant; Proclamation u/s 82 CrPC;
Surrender; Interim Protection; Anticipatory Bail;
Successive
Bail
Application;
Maintainability;
Procedural
Law
;
Doctrine
of
Changed
Circumstances;
Doctrine
of
Beneficial
Legislation;
Doctrine
of
Finality;
Judicial
Discipline; Statutory Bar; Legislative Intention;
Procedural
Mechanism;
Prima
facie
Case;
7 All. Abdul Hameed Vs. State of U.P.
209
Material Change in Law / Facts; Peripheral Role;
Substantive Right; Retrospective Applicability;
Legislative Benevolence; Personal Bail Bond;
Absence of credible evidence; Vague and
general allegations; Vacating of the stay;
Issuance of proclamation.

Case Arising From
ORIGINAL JURISDICTION: Criminal Misc.
Anticipatory Bail Application U/s 482 BNSS No. -
2756 of 2025

From the Judgment and Order dated 10.03.2025
of Additional Sessions Judge, Court No.3,
District Bareilly, in Case Crime No. 647 of 2011

Appearances for Parties
Advs. for the Applicant:
Pradeep Kumar Rai, Prakhar Saran Srivastava

Adv. for the Party:
G.A.
(Delivered by Hon'ble Chandra Dhari
Singh, J.)

FACTUAL MATRIX

Occurrence of the Offence and FIR
Lodging

1. On 13.08.2011, at approximately
08:15 AM, an incident occurred in Village
Girdharpur,
Police
Station
Devrania,
District Bareilly, Uttar Pradesh , leading to
the lodging of FIR No. 647/2011 under
Sections 302, 307, 323, and 504 the Indian
Penal Code, 1860 (hereinafter "IPC"). The
FIR was lodged by the informant, Firoz ,
alleging that the accused persons, including
Abdul Hameed (applicant herein), along
with one Javed Anwar, Anwar Jameer, and
Babu, armed with licensed pistols, attacked
the informant and his family members. The
FIR
alleged
that
the
accused
fired
indiscriminately, resulting in the death of
Guddu @ Zakir Husain, the informant's
uncle, who succumbed to a gunshot injury.
The motive was attributed to prior
animosity arising from Zila Panchayat
elections and contractual disputes. The
deceased was declared dead at Shri Ram
Murti
Hospital,
and
the
postmortem
conducted on 13.08.2011 revealed a single
bullet injury with entry and exit wounds.

Investigation and Charge Sheet

2. The investigation was conducted by
the police, and the charge sheet was filed
on 07.11.2011 under Sections 302, 307,
323, and 504 of the IPC against three
accused persons (Javed Anwar, Anwar
Jameer, and Babu). Notably, the applicant,
Abdul Hameed , was not charge-sheeted as
the
investigating
officer
found
the
allegations against him to be false. During
further investigation, villagers submitted
affidavits stating that the applicant was not
present at the scene, and their statements
were recorded under Section 161 of the
Code
of
Criminal
Procedure,
1973
(hereinafter "CrPC"), corroborating his
absence.

Trial
Proceedings
and
Summoning
Under Section 319 of the CrPC.

3. The trial commenced, and the
informant was examined as PW-1. During
his
cross-examination,
he
allegedly
introduced a new version of events,
alleging that the accused fired from a
rooftop, contradicting the FIR and his
earlier statements. Based on this testimony,
an application was filed under Section 319
of the CrPC. to summon the applicant as an
additional
accused.
Accordingly,
the
learned ASJ, Court No. 3, Bareilly, allowed
the application on 22.05.2019, summoning
the applicant to face trial.

Litigation History
210 INDIAN LAW REPORTS ALLAHABAD SERIES

4. Application under Section 482 of
the CrPC bearing No. 23900/2019 was filed
whereby the applicant challenged the
summoning order dated 22.05.2019 before
the Coordinate Bench of this Court. On
28.06.2019, the Coordinate Bench disposed
of the said application, directing the
applicant to file a discharge application
before the trial court and granted interim
protection from coercive measures until its
disposal.

5. Thereafter, it appears from the
record that the applicant filed a discharge
application, which was rejected by the
learned Trial Court on 12.05.2022. This
rejection
was
challenged
before
a
Coordinate
Bench
of
this
Court
in
Application under Section 482 of the CrPC
bearing No. 18901/2022, which was
dismissed on 16.09.2022, upholding the
Trial Court's order.

6. Subsequent to the aforesaid
events, on 14.10.2022, the learned
Trial Court issued a non-bailable
warrant against the applicant. This was
challenged
in
another
Application
under Section 482 of the CrPC bearing
No. 12669/2023, wherein a Coordinate
Bench of this Court, on 12.04.2023,
directed the applicant to surrender and
apply for bail, staying the warrant for
two weeks.

7. Meanwhile, in Special Leave
Petition (Criminal) No. 21956/2023, the
applicant approached the Hon'ble Supreme
Court against the High Court's order dated
16.09.2022. The Hon'ble Supreme Court
initially stayed the trial on 10.07.2023 but
ultimately dismissed the said SLP on
10.12.2024, vacating the stay.

Anticipatory Bail Applications

8. The applicant filed his first
anticipatory bail application (ABAIL No.
1554/2023), under Section 438 of the CrPC
before a Coordinate Bench of this Court,
which was rejected on 10.02.2023 as barred
under Section 438(6) of the CrPC (since
Section 302 IPC attracts punishment up to
death, therefore, the application being not
maintainable).

9. After the enactment of the Bharatiya
Nagarik
Suraksha
Sanhita,
2023
(hereinafter "BNSS"), the applicant filed a
anticipatory bail application under Section
482 of BNSS before the Sessions Judge,
Bareilly,
which
was
rejected
on
10.03.2025.

Submissions
on
behalf
of
the
applicant/petitioner

10. The applicant has now filed the
present second anticipatory bail application
under Section 482 of the BNSS before this
Court, registered as Criminal Misc. 2nd
Anticipatory Bail Application No. of
2765/2025. The grounds contended on
behalf of the applicant include:

I. Learned counsel appearing on
behalf of the applicant/petitioner submitted
that during the course of investigation, while
the informant reiterated the version of the FIR
in his statement (Annexure A-5), the injured
witnesses namely Zamiul Hasan and Zakir Ali
did not name the applicant. A perusal of the
statements of the injured witnesses makes it
evident that the applicant was neither present
nor was a part of the alleged incident.
Accordingly, the IO found the allegations
against the applicant to be false and thus, he
was not chargesheeted.

II.
The
applicant
has
been
assigned an ornamental role as per the FIR
7 All. Abdul Hameed Vs. State of U.P.
211
and statement of the informant. There is no
specific allegation in the FIR or the
statement of the informant that the
applicant
mounted
any
assault.
The
deceased suffered a single bullet injury
with one entry and one exit wound. The
evidence recorded during the trial was
nothing more than the statement which was
already there under Section 161 of the
CrPC, at the time of investigation of the
case. As such, no fresh material was before
the learned Trial Court, on the basis of
which it could have summoned the
applicant under Section 319 of the CrPC.

III. It is submitted that earlier, the
applicant had filed his anticipatory bail
application, however, it was rejected being
barred by Section 438 (6) of the CrPC.
After the enactment of BNSS, w.e.f.,
01.07.2024, the applicant's right to file
such anticipatory bail application prevails
as there is no such bar under Section 482
(4) of the BNSS. Moreover, no State
Amendment has been brought in force
amending the provisions of Section 482 of
the BNSS.

IV. It is further submitted that
maintainability of second anticipatory bail
application is no longer res integra. The
Coordinate Benches of this Court has, in
various decisions, held that subsequent
anticipatory bail application may be filed
under changed circumstances. Reliance has
been placed upon Anurag Dubey v. State
of UP1.

V. It is vehemently submitted that
the present application is being filed under
changed circumstances. On 10.02.2023, the
first anticipatory bail was dismissed being
not maintainable as was filed prior to the
enactment of the BNSS. Thereafter, the
trial was stayed by the Hon'ble Supreme
Court
thereby
culminating
the
apprehension of arrest. It is only when the
said SLP was dismissed on 01.12.2024, that
the warrants were issued on 01.02.2025,
giving rise to the apprehension of arrest. As
such,
the
present
anticipatory
bail
application, being filed under the changed
circumstances and the reason for rejecting
the first anticipatory bail application has
been washed off.

VI. It is contended that as per the
judgment of the Division Bench of this
Court in Deepu & others us. State of U.P.
& others.2, any application filed after
01.07.2024 will have to be proceeded as
per the BNSS. Since the present application
has been instituted much after 01.07.2024,
it will be governed by provisions of Section
482 of the BNSS. Learned counsel avers
that the aforesaid decision supports the
applicant's case as the Division Bench in
the said case granted benefit of anticipatory
bail provided by the CrPC, Criminal
Procedure (Uttar Pradesh Amendment) Act,
2018 (UP Act No. 4 of 2019), notified on
06.06.2019, in a case where the incident
occurred on 27.04.2014. The Court held
that being a beneficial legislation, it cannot
be restricted in its operation to offences
committed subsequent to enactment of Act,
2019 and it will be available to all the
persons
'apprehending
arrest'
after
enactment of the Amendment Act, 2018,
even if the offence was committed prior to
enactment of the Amendment Act, 2018.

VII. Bail and anticipatory bail,
being matters of procedural law, are by
nature applied retrospectively. However, if
the right to seek bail is recognized as a
substantive right, even then, it would apply
retrospectively being advantageous to the
accused applicant. The law in this regard is
fairly well settled. The rule of beneficial
212 INDIAN LAW REPORTS ALLAHABAD SERIES
construction requires that even ex post
facto law providing benefit to the accused
should be applied to mitigate the rigor of
the law. If any subsequent legislation
downgrades the harshness of the sentence
for the same offence, it is the salutary
principle for administration of criminal
justice to suggest that the said legislative
benevolence can be extended to the
accused
who
awaits
judicial
verdict
regarding sentence.

VIII. It is submitted that the
applicant has no criminal antecedents, and
no useful purpose would be served by his
incarceration as police investigation has
already been concluded, and he is not a
flight risk. Additionally, issuance of
proclamation under Section 82 of the CrPC
shall not be a bar to grant anticipatory bail
in terms of Asha Dubey v. State of MP3.
Further, he could not surrender because of
his illness since the applicant is 78 years
old man suffering from lung failure and
other old age ailments, however, upon
instructions, the learned counsel undertakes
that if granted bail, the applicant shall abide
by all the terms and conditions imposed
upon him by this Court.

Submissions on behalf of the State of
UP/respondent

11.
Per
Contra,
learned
AGA
appearing on behalf of the State of UP,
vehemently
opposed
the
instant
bail
application submitting to the effect that
present second anticipatory bail application
is not maintainable either in law or on facts
and deserves outright rejection by this
Court. The applicant, Abdul Hameed, is
facing trial in respect of heinous and grave
offence punishable under Section 302 of
the IPC. The following contentions have
been advanced:

I. It is pertinent to note that
following the examination of witnesses
during trial, the learned Trial Court vide
order dated 22.05.2019, acting upon the
material brought on record during the
deposition of PW-1, summoned the present
applicant under Section 319 CrPC, having
found prima facie involvement in the
offence.
Thereafter,
the
applicant's
challenge under Section 482 of the CrPC
was rejected and the matter even reached
the Hon'ble Supreme Court which stood
dismissed on 10.12.2024, thus affirming
the validity of the summoning order and
refusal to discharge.

II. It is submitted that after the
rejection of the first anticipatory bail
application on 10.02.2023 under Section
438 of the CrPC, the present second
application is a clear attempt to re-litigate
the same issue under the guise of changed
circumstances.

III. The Coordinate Bench of this
Court had earlier rejected the bail plea
relying upon the statutory bar contained in
Section 438(6) CrPC, introduced by the
U.P. State Amendment Act No. 4 of 2019,
which prohibits grant of anticipatory bail in
cases punishable with death or life
imprisonment, such as offences under
Section 302 IPC. The applicant now seeks
to circumvent this statutory embargo by
invoking Section 482 of the newly enacted
BNSS, which does not contain a similar
bar. However, it is submitted that the
offence in question was committed in 2011,
and the charge sheet was filed under the
CrPC regime, and the entire proceedings
are governed by CrPC and not the BNSS,
as cognizance was taken well prior to the
BNSS coming into force on 01.07.2024.
Therefore, BNSS cannot retrospectively
override the bar under Section 438(6) of the
7 All. Abdul Hameed Vs. State of U.P.
213
CrPC applicable through the U.P. State
Amendment.

IV. Furthermore, mere change in
law does not automatically revive a right
once extinguished by a judicial order,
especially in a case where the first
anticipatory bail application was rejected
specifically
on
grounds
of
nonmaintainability. Once the application is
rejected
under
a
statutory
bar,
the
maintainability of a second application
under a different statute (BNSS) would
offend the doctrine of finality and judicial
discipline, unless there is an amendment to
that effect, which does not exist in the
present case. It is further submitted that no
amendment has been introduced in BNSS
adopting or harmonizing the U.P. State
Amendment Act No. 4 of 2019, and
therefore, Section 438(6) CrPC continues
to operate in the State of U.P. in respect of
prosecutions already initiated under the
CrPC.

V.
Reliance
placed
by
the
applicant on Deepu (Supra), is misplaced
and distinguishable, as in that case, the
Court was concerned with proceedings
initiated post 01.07.2024, and the question
of retrospective applicability of BNSS to
cases already governed by CrPC was not
conclusively adjudicated. Moreover, the
applicantâ€TMs
argument
of
'changed
circumstances'
stemming
from
the
dismissal of SLP and issuance of fresh
NBW and proclamation under Sections
82/83 of the CrPC is not a ground for the
grant of anticipatory bail, especially in
view of well-established precedents such as
Lavesh v. State (NCT of Delhi)4 , which
clearly lays down that once a person is
declared an absconder under Section 82 of
the CrPC, his entitlement to anticipatory
bail
is
negated.
The
issuance
of
proclamation under Section 82 CrPC on
01.03.2025 is a statutory acknowledgment
that the applicant is deliberately evading
the process of law.

VI. The State further relies upon
the principle laid down by the Hon'ble
Supreme Court in Kalyan Chandra Sarkar
v. Rajesh Ranjan @ Pappu Yadav5, which
states that successive bail applications are
maintainable only if there is a substantial
change in circumstances or law, neither of
which is truly demonstrated in the present
case. The applicant seeks to take benefit of
Section 482 BNSS, while the trial is still
governed by the CrPC, and the offence
continues to remain triable under CrPC, as
the offence occurred and cognizance was
taken well before 01.07.2024.

VII. Finally, it is submitted that
the merits of the case remain grave and
serious. The applicant was summoned
under Section 319 of the CrPC on the basis
of sworn evidence in court, where the
eyewitnesses attributed a direct role to him.
The reliance placed on the age and health
of the applicant or absence of criminal
antecedents cannot override the nature of
the offence (Section 302 IPC), the
postmortem findings, and the gravity of
allegations, which involve cold-blooded
murder by firearm. The applicant's conduct
in evading process and delaying surrender
also
militates
against
any
grant
of
discretionary
relief.
Hence,
in
these
circumstances, the State opposes the grant
of anticipatory bail and prays for dismissal
of the present application.

Analysis

12. Heard the learned counsel for the
parties and perused the material placed on
record. From the above submissions, the
214 INDIAN LAW REPORTS ALLAHABAD SERIES
issues that emerge for adjudication by this
Court
are
'(i)
whether
the
second
anticipatory bail application is maintainable
under the BNSS given the prior rejection
under Section 438 (6) CrPC and the
absence
of
explicit
retrospective
applicability of BNSS to pending CrPC
proceedings?, '(ii) whether Section 482
BNSS can be invoked for an offence (2011)
and proceedings (summoning in 2019)
initiated under CrPC, absent explicit
legislative clarity?', '(iii) whether the
dismissal of the SLP, enactment of BNSS,
and
issuance
of
NBW
qualify
as
'substantive changed circumstances' to
justify a second bail application?, and '(iv)
whether the applicant's health and postproclamation conduct justify overriding the
strictures of Section 82 of the CrPC?'

ISSUE NO. 1: Whether the present
second anticipatory bail application
under Section 482 of the BNSS is
maintainable in view of the earlier
rejection of the first anticipatory bail
application under Section 438(6) of the
CrPC?

13. The maintainability of the present
second
anticipatory
bail
application
presents a complex legal question that
requires examination through the lens of
statutory interpretation, judicial precedent,
and the doctrine of changed circumstances.

14. The applicant's first anticipatory
bail application bearing ABAIL No.
1554/2023 was rejected on 10.02.2023 by a
Coordinate Bench of this Court. The
rejection was not on merits but purely on
the grounds of maintainability due to the
statutory prohibition contained in Section
438(6) of the CrPC, as introduced by the
Uttar Pradesh State Amendment Act No. 4
of 2019. This provision categorically
prohibits the grant of anticipatory bail in
cases where the offence is punishable with
death or imprisonment for life, including
offences under Section 302 of the IPC.

15. The legal landscape underwent a
fundamental
transformation
with
the
enactment of the BNSS w.e.f. 01.07.2024,
which repealed the CrPC in its entirety.
Section 482 of the BNSS, which governs
anticipatory bail applications, significantly
does not contain any prohibition akin to
Section 438(6) of the CrPC. This omission
cannot be considered inadvertent but
appears to be a conscious legislative
decision to remove the bar that existed
under the earlier State Amendment. 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.

16. The Hon'ble Supreme Court in
Kalyan Chandra Sarkar v. Rajesh Ranjan
@ Pappu Yadav6, has established the
settled legal position regarding subsequent
bail applications. The Hon'ble Court
observed that while the filing of successive
bail applications on the same facts and
circumstances
is
impermissible
and
constitutes an abuse of the process of law,
subsequent
bail
applications
are
maintainable where there is a material
change in the fact situation or in law which
requires the earlier view to be interfered
with, or where the earlier finding has
become obsolete. The Court specifically
noted that 'even though there is room for
filing a subsequent bail application in cases
where earlier applications have been
rejected, the same can be done if there is a
change in the fact situation or in law which
requires the earlier view being interfered
with.'
7 All. Abdul Hameed Vs. State of U.P.
215

17. In the present case, the enactment
of BNSS constitutes a fundamental change
in law that satisfies the test laid down in
Kalyan Chandra Sarkar (Supra). The
earlier rejection was predicated solely on
the statutory bar under Section 438(6) of
the CrPC, which bar no longer exists under
the new statutory regime. The legal
foundation upon which the first application
was
rejected
has
been
completely
obliterated by the subsequent legislation.

18. This is not merely a procedural
modification but a substantive change in
the
statutory
framework
governing
anticipatory bail applications.

19. This Court also finds persuasive
support from the Coordinate Bench decision in
Sudhir Kumar Chaurasia vs State of U.P.7 ,
wherein, it was specifically observed that 'there
is no specific intention indicated in the
subsequent enactment of BNSS 2023 to
continue with the State amendment made by
means of Act No.4 of 2019' and that it was
consciously decided by the Parliament to do
away with the prohibitions indicated in Section
438(6) of the CrPC. The Court further held that
the re-enacted provisions can be said to have
been deliberately obliterated by Parliament
while enacting Section 482 in the BNSS.

20. The factual matrix of the present
case also demonstrates clear changed
circumstances
that
warrant
fresh
consideration. When the first anticipatory
bail application was filed and rejected, the
applicant's apprehension of arrest had
subsequently subsided when the Hon'ble
Supreme Court stayed the trial proceedings
vide order dated 10.07.2023 in SLP
(Criminal) No. 21956/2023.

21. However, upon dismissal of the said
SLP on 10.12.2024 and consequent vacation
of the stay, fresh warrant proceedings were
initiated, culminating in the issuance of nonbailable warrant on 01.02.2025. This renewed
apprehension of arrest under the new statute
constitutes a material change in circumstances
that justifies fresh consideration of the
application for anticipatory bail.

ISSUE NO. 2: Whether the provisions of
Section
482
BNSS
would
apply
retrospectively to cases where the offence
was committed prior to its enforcement,
and the doctrine of beneficial legislation?

22.
The
question
of
retrospective
application of procedural law and the doctrine
of beneficial legislation forms the cornerstone
of this analysis. The Hon'ble Supreme Court
in Hitendra Vishnu Thakur & Others vs.
State of Maharashtra & Others8, laid down
comprehensive
principles
governing
the
retrospective
application
of
statutory
provisions. The Hon'ble Court categorically
held that 'a statute which affects substantive
rights is presumed to be prospective in
operation unless made retrospective, either
expressly or by necessary intendment, whereas
a statute which merely affects procedure,
unless such a construction is textually
impossible, is presumed to be retrospective in
its application." The Court further observed
that 'every litigant has a vested right in
substantive law but no such right exists in
procedural law.'

23. The distinction between substantive
and
procedural
law
assumes
critical
importance in the present context. Section 482
of the BNSS, being a procedural provision
governing anticipatory bail applications, falls
squarely within the ambit of procedural law.

24. The provision does not create new
offences, prescribe punishments, or alter
the substantive rights of the parties.
216 INDIAN LAW REPORTS ALLAHABAD SERIES
Instead,
it
provides
the
procedural
mechanism for seeking anticipatory bail.
Therefore,
following
the
principle
established in Hitendra Vishnu Thakur
(Supra), Section 482 of the BNSS would
apply retrospectively unless there is a
contrary legislative intention explicitly
expressed or necessarily implied from the
statutory scheme.

25. The absence of any saving clause
or
transitional
provision
in
BNSS
indicating continuation of the Section
438(6) of the CrPC bar demonstrates that
Parliament intended the new regime to
apply universally, irrespective of when the
offence was committed. Had the Parliament
intended to preserve the effect of State
amendments
to
the
CrPC,
specific
provisions to that effect would have been
incorporated in the BNSS or in the
accompanying notification or rules.

26.
The
doctrine
of
beneficial
legislation, as enunciated by the Hon'ble
Supreme Court in T. Barai v. Henry Ah
Hoe9, mandates that when a later statute
imposes different punishment or varies the
procedure, the accused must have the
benefit of the reduced punishment or
ameliorated
procedure.
This
principle
recognizes that the law should evolve in
favour of the liberty of the individual, and
when Parliament enacts more liberal
provisions, the benefit thereof should be
available to all persons who may be
affected, regardless of when their cases
originated.

27. The Hon'ble Supreme Court in
Trilok Chand v. State of Himachal
Pradesh.10
reiterated
this
principle,
observing that the rule of beneficial
construction requires that even ex post
facto law of such a type should be applied
to mitigate the rigour of the law. The Court
emphasized that where the subsequent
legislation
provides
more
favourable
treatment to accused persons, they are
entitled to claim the benefit of such
provisions even if the offence was
committed under the earlier regime.

28. More recently, in M. Ravindran v.
Intelligence
Officer,
Directorate
of
Revenue
Intelligence11,
the
Hon'ble
Supreme Court emphasized 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' and
that this principle is applicable not only in
the case of substantive penal statutes but
also in the case of procedures providing for
the curtailment of the liberty of the
accused.

29. The present case presents a
paradigmatic
example
of
beneficial
legislation. The removal of the statutory bar
contained in Section 438(6) of the CrPC
from the new statutory framework under
the BNSS represents a conscious legislative
decision
to
expand
the
scope
of
anticipatory bail and enhance the protection
of personal liberty.

30. The applicant, whose offence was
committed on 13.08.2011, with FIR No.
647/2011 lodged under Sections 302, 307,
323, and 504 of the IPC, is entitled to the
benefit of the more liberal provisions
introduced by BNSS. The charge sheet was
filed on 07.11.2011, and the applicant was
subsequently summoned under Section 319
of the CrPC on 22.05.2019. The procedural
framework governing bail applications has
undergone transformation with BNSS, and
the applicant cannot be denied the benefit
of these beneficial changes merely because
7 All. Abdul Hameed Vs. State of U.P.
217
the offence antedated the enactment of the
new law.

31. At this juncture, this Court finds it
imperative to the decision of the Division
Bench of this Court in Deepu & others vs.
State of U.P. & others,12 which has been
relied upon by both the parties to support
their respective arguments. The said
judgment provides crucial guidance on the
application of BNSS to cases where
offences were committed prior to its
enforcement.

32. In Deepu (Supra), the Division
Bench was confronted with the question of
whether BNSS provisions would apply to
cases pending at the time of its enforcement,
particularly where the offences had been
committed under the earlier statutory regime.
The Court, after extensive analysis of the
statutory scheme and relevant precedents, held
that any application filed after 01.07.2024
shall be proceeded with as per BNSS,
regardless of when the underlying offence was
committed. This ruling was based on the
fundamental principle that procedural laws
apply
to
pending
proceedings
unless
specifically excluded by the legislature.

33. In the context of the present case,
the Deepu (Supra) judgment provides
direct
support
for
the
applicant's
contention. The present application, filed
after 01.07.2024, falls squarely within the
ambit of BNSS, and the applicant is
entitled to the benefit of the more liberal
provisions thereof. The absence of the
Section 438(6) bar in BNSS, as interpreted
in Deepu (Supra), removes the primary
impediment that led to the rejection of the
first anticipatory bail application.

ISSUE NO. 3: Whether the changed
circumstances subsequent to dismissal of
the first anticipatory bail application
justify fresh consideration on merits?

34.
The
doctrine
of
changed
circumstances, as crystallized in Kalyan
Chandra Sarkar (supra), finds complete
application in the present case. The
Supreme Court's jurisprudence recognizes
that the law is not static and that changed
circumstances, whether factual or legal,
may warrant reconsideration of earlier
judicial decisions.

35. Multiple factors constitute changed
circumstances
that
warrant
fresh
consideration in the present case. First and
foremost, the legislative change brought
about by BNSS has fundamentally altered
the legal landscape governing anticipatory
bail applications. The statutory bar under
Section 438(6) of CrPC, which was the sole
ground for rejection of the first application,
no longer exists under the new statutory
framework. This constitutes a material
change in law that renders the earlier
finding completely obsolete. The legal
foundation upon which the first application
was rejected has been entirely removed by
subsequent legislation, creating a situation
where the earlier order has lost its legal
basis.

36. Second, the factual circumstances
have undergone significant transformation
since the rejection of the first application.
When the first anticipatory bail application
was rejected on 10.02.2023, the applicant's
immediate apprehension of arrest was
subsequently allayed by the stay granted by
the Hon'ble Supreme Court on 10.07.2023
in SLP (Criminal) No. 21956/2023. This
stay provided temporary relief to the
applicant and removed the immediate threat
of arrest that necessitated the filing of the
anticipatory bail application.
218 INDIAN LAW REPORTS ALLAHABAD SERIES

37. However, the situation changed
dramatically upon dismissal of the said
SLP
on
10.12.2024
and
consequent
vacation of the stay. Following the
dismissal of the SLP, fresh warrant
proceedings were initiated by the trial
court, culminating in the issuance of nonbailable warrant on 01.02.2025. This
development has created renewed and
immediate apprehension of arrest, which is
the
foundational
requirement
for
maintaining
an
anticipatory
bail
application. The fresh issuance of nonbailable warrant represents a material
change in the factual matrix that justifies
the filing of a fresh application.

38. Third, the procedural posture of
the case has changed significantly. The first
application was dismissed on purely
maintainability
grounds
without
any
consideration of merits. The Court was
precluded from examining the substantive
aspects of the case due to the statutory bar
contained in Section 438(6) of CrPC. The
present application, being filed under a
different statutory regime (BNSS), presents
an opportunity for adjudication on merits
for the first time. This represents a
fundamental change in the procedural
context that justifies fresh consideration.

39. The coordinate bench decisions in
Anurag Dubey v. State of UP13 and
Tatheer Jafri & Ors. vs. State of U.P.14
have
recognized
that
subsequent
anticipatory bail applications may be filed
under changed circumstances, particularly
where there is a change in the statutory
framework or where new facts emerge that
were not available at the time of the earlier
application.

40. The principle underlying the
doctrine of changed circumstances is rooted
in the concept of fairness and the
recognition that the law must be capable of
adapting to evolving situations. Where the
legal or factual foundation of an earlier
decision has been altered by subsequent
developments, the doctrine permits fresh
consideration of the matter. This principle
ensures
that
individuals
are
not
permanently prejudiced by earlier adverse
orders that have been rendered obsolete by
changed circumstances.

ISSUE NO. 4: Whether the applicant has
made out a prima facie case for grant of
anticipatory bail considering the role
attributed to him and the evidence on
record?

41. The examination of the role
attributed to the applicant in the alleged
offence reveals several mitigating factors
that weigh significantly in favour of grant
of anticipatory bail. The investigation
conducted by the police presents a
compelling narrative that supports the
applicant's case for anticipatory relief.

42. The investigating officer, after
thorough
investigation,
found
the
allegations against the applicant to be false
and consequently did not include his name
in the charge sheet filed on 07.11.2011.
This initial exoneration by the investigating
agency assumes critical importance as it
indicates the absence of credible evidence
against the applicant at the stage of
investigation.