# Tatheer Jafri & Ors v. State of U.P

- **Citation:** (2025) 4 ILRA 738
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-04-01
- **Case number:** Criminal Misc Anticipatory Bail Application u/s 438 CR.P.C. No. 118 of 2025
- **Bench:** Manish Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/tatheer-jafri-ors-v-state-of-u-p-54597
- **Pages:** 7

## Headnote

Law
-Criminal
Procedure
Code,1973-Section
438-BNSS,2023Section
482-U.P.
Gangsters
and
Anti
Social
Activities(Prevention)
Act,1986Maintainability-The
applicant
sought
anticipatory bail in connection with a case
registered under Gangster act-The State
opposed the application , citing the U.P.
Amendment
to
the
CrPC,1973
which
barred anticipatory bail in Gangster Act
cases-the
application
was
not
maintainable since the chargsheet and
bailable warrants were issued before the
BNSS 2023 came into effect on 1st july
2024-The Court rejected the objection,
holding that the second bailable warrant
issued on 2nd july 2024(post enforcement
of BNSS 2023) constituted a fresh cause
of action and anticipatory bail would be
governed by section 482 BNSS 2023 which
permits such applications-Relying on the
Deepu Vs. St. of UP and Eera Vs. St., the
court emphasized that anticipatory bail is
a beneficial provision linked to Article 21
and must be interpreted broadly-Finding
only
one
previous
case
against
the
applicants, in which bail was earlier
granted, the Court granted anticipatory
bail
subject
to
condition-Thus,
Anticipatory
bail
application
is
maintainable under BNSS 2023.(Para 1 to
24)

The application is allowed. (E-6)

List of Cases cited:
4 All. Tatheer Jafri & Ors. Vs. State of U.P.
739

## Text

738 INDIAN LAW REPORTS ALLAHABAD SERIES
of a Magistrate, the Magistrate has to
proceed with the trial, record evidence,
form an opinion that the accused is guilty
and thereafter form an opinion that the
accused should be given a punishment
higher than that which he is empowered to
inflict. Thereafter that he can submit the
proceedings
to
the
Chief
Judicial
Magistrate,
who
may
commit
the
proceedings to the Court of Sessions.
Therefore, trial of the offence by a
Magistrate does not mean that the accused
cannot be inflicted with the maximum
punishment for the offence prescribed by
law.

15. Therefore, the submission of
learned counsel for the applicant that if the
case is tried by the Magistrate, the
applicant can be punished with a sentence
of imprisonment up to seven years only and
transfer of trial to the special court would
prejudice the applicant as in that case he
may be awarded a punishment of seven
years is misconceived.

16. No other submission was
advanced by the learned Counsel for the
applicant.

17. In view of the foregoing
discussion, no case for any interference in
the impugned order dated is made out. The
application under Section 528 BNSS lacks
merit and the same is dismissed.
----------
(2025) 4 ILRA 738
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 01.04.2025

BEFORE

THE HON'BLE MANISH MATHUR, J.

Criminal Misc Anticipatory Bail Application u/s
438 CR.P.C. No. 118 of 2025

Tatheer Jafri & Ors. ...Applicants
Versus
State of U.P. ...Respondent

Counsel for the Applicants:
Anjani
Kumar
Mishra,
Nadeem
Murtaza,
Shashank Tilhari

Counsel for the Respondent:
G.A.

Criminal
Law
-Criminal
Procedure
Code,1973-Section
438-BNSS,2023Section
482-U.P.
Gangsters
and
Anti
Social
Activities(Prevention)
Act,1986Maintainability-The
applicant
sought
anticipatory bail in connection with a case
registered under Gangster act-The State
opposed the application , citing the U.P.
Amendment
to
the
CrPC,1973
which
barred anticipatory bail in Gangster Act
cases-the
application
was
not
maintainable since the chargsheet and
bailable warrants were issued before the
BNSS 2023 came into effect on 1st july
2024-The Court rejected the objection,
holding that the second bailable warrant
issued on 2nd july 2024(post enforcement
of BNSS 2023) constituted a fresh cause
of action and anticipatory bail would be
governed by section 482 BNSS 2023 which
permits such applications-Relying on the
Deepu Vs. St. of UP and Eera Vs. St., the
court emphasized that anticipatory bail is
a beneficial provision linked to Article 21
and must be interpreted broadly-Finding
only
one
previous
case
against
the
applicants, in which bail was earlier
granted, the Court granted anticipatory
bail
subject
to
condition-Thus,
Anticipatory
bail
application
is
maintainable under BNSS 2023.(Para 1 to
24)

The application is allowed. (E-6)

List of Cases cited:
4 All. Tatheer Jafri & Ors. Vs. State of U.P.
739
1. Deepu & ors.Vs St. of U.P. & ors.(Cri.M.W.P.
No. 12287 of 2024)

2. Eera Vs St. (NCT of Delhi) & anr.(2017) 15
SCC 133

3. M. Ravindran Vs Intelligence Officer, Dir. of
Revenue Intelligence (2021) 2 SCC 485

(Delivered by Hon'ble Manish Mathur, J.)

1. Heard Mr. Nadeem Murtaza and
Mr. Anjani Kumar Mishra, learned counsel
for applicants and Mr. Ranvijay Singh,
learned Additional Government Advocate
appearing on behalf of opposite party no.1.

2. First Anticipatory Bail Application
has been filed with regard to Case Crime
no.632 of 2023, under Section 3(1) of U.P.
Gangsters and Anti Social Activities
(Prevention) Act, 1986, P.S. Kotwali Nagar,
District Barabanki.

3. Mr. Ranvijay Singh, learned AGA,
at the very outset, has raised a preliminary
objection regarding maintainability of this
anticipatory bail application. He submits
that the FIR in question has been registered
in the year 2023 with a single case having
been shown as Case Crime No. 102 of 2021
against the applicants under Sections 419,
420, 467, 468, 471, 379, 504, 506 IPC in
District Barabanki. He further submits that
charge sheet in the said case had been filed
on 11.2.2024 with summoning order being
issued on 25.4.2024 and the first bailable
warrant was issued on 30.5.2024 whereas
second bailable warrant was issued on
2.7.2024. He has adverted to The Code of
Criminal Procedure (U.P. Amendment) Bill,
2022, particularly Section 2 thereof to
submit that under the aforesaid provision,
an anticipatory bail application is not
maintainable with regard to U.P. Gangsters
and Anti Social Activities (Prevention) Act,
1986. It is, therefore, submitted that since
at the time of filing of charge sheet, taking
cognizance by the Trial Court and issuance
of bailable warrant, the Bharatiya Nagarik
Suraksha Sanhita (BNSS 2023) had not
come into force, with the same coming into
force from 1.7.2024, the case of applicants
would be governed by the said notification
whereby the present anticipatory bail
application is not maintainable.

4. Mr. Nadeem Murtaza, learned
counsel
for
applicants
has
refuted
submissions advanced by learned AGA
with the submission that under the BNSS,
2023, provision for anticipatory bail has
been clearly indicated under Section 482
Cr.P.C. and would apply when any person
has reason to believe that he may be
arrested for an accusation of having
committed a non bailable offence. It is,
therefore, submitted that the date of filing
of charge sheet and issuance of summoning
order by the Trial Court would be
irrelevant, since it is only the apprehension
of arrest which would be relevant.
Moreover, since apprehension of arrest in
the present case also pertains to the second
bailable warrant, which was issued on
2.7.2024, i.e., after the enactment of BNSS,
2023,
the
present
anticipatory
bail
application is maintainable.

5. Learned counsel for applicants has
placed reliance upon a Division Bench
Judgement of this Court in the case of
Deepu and others Vs. State of U.P. and
others (Criminal Misc. Writ Petition No.
12287 of 2024).

6. Upon consideration of submissions
advanced by learned counsel for parties and
perusal of material on record, it is
discernible that at the time of filing of
charge sheet, issuance of summoning order
740 INDIAN LAW REPORTS ALLAHABAD SERIES
and issuance of first bailable warrant, the
provisions of BNSS, 2023 had not come
into application and the applicants case, at
that time was to be governed by the Code
of Criminal Procedure (U.P. Amendment)
Bill, 2022 whereby the anticipatory bail
applications were specifically barred with
regard to provisions of Gangster Act.

7. 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.

8. It is admitted by learned AGA
that no fresh prohibition as indicated in
the Code of Criminal Procedure (U.P.
Amendment) Bill, 2022 has subsequently
been notified with regard to BNSS, 2023.

9. A perusal of Section 482 BNSS,
2023
indicates
that
it
provides
a
mechanism for grant of anticipatory bail.
Sub section 1 of the aforesaid Section
clearly indicates that such an application
would be maintainable when a person has
reason to believe that he may be arrested.

10. Upon application of the said
provision in the present facts and
circumstances, such an apprehension of
applicants clearly came into force at the
time of issuance of first bailable warrant
on 30.5.2024. It is, however, also relevant
that the second bailable warrant was
issued against applicants on 2.7.2024. It
is also an admitted fact that applicants
have not yet been arrested in terms of
either of the two bailable warrants.

11. The wordings of Section 482
BNSS, 2023 do not indicate any aspect as
to when a person would have reason to
believe that he may be arrested.

12. It is relevant that Section 438
Cr.P.C.,
regarding
provision
of
anticipatory bail, was omitted for the
State of U.P. by U.P. Act No. 16 of 1976
and has thereafter been reincorporated by
means of U.P. Act No. 4 of 2019. The
statement of objects and reasons for such
reincorporation is that there was a
continuous demand for its revival for
which writ petitions had also been filed
before this
Court. The
State
Law
Commission also in its third report in 2009
recommended
revival
of
the
said
provisions, which were also reiterated by a
committee constituted under chairmanship
of Principal Secretary to the Government of
U.P., Home Department.

13. The aforesaid statement of objects
and reasons clearly indicates the continuous
demand for reincorporation of provisions of
anticipatory
bail
which
are
directly
relatable to Article 21 of the Constitution of
India. The purpose as indicated in the
statement of objects and reasons and
recommendations for revival of provisions
of anticipatory bail clearly are to safeguard
the life and liberty of the accused who
should not be arrested merely on the basis
of allegations leveled against them in a first
information report unless and until there is
some cogent evidence against them.

14. The Hon'ble Supreme Court in the
case of EERA Vs. State (NCT of Delhi)
and another (2017) 15 SCC 133 has
adverted to purposive interpretation of a
statute in the following manner:"

"41. On a proper analysis of the
aforesaid authority, it is clear as crystal
that when two constructions are reasonably
possible, preference should go to one which
helps to carry out the beneficent purpose of
the Act;
and
that
apart,
the
said
4 All. Tatheer Jafri & Ors. Vs. State of U.P.
741
interpretation should not unduly expand the
scope of a provision. Thus, the Court has to
be careful and cautious while adopting an
alternative reasonable interpretation. The
acceptability of the alternative reasonable
construction
should
be
within
the
permissible ambit of the Act. To elaborate,
introduction of theory of balance cannot be
on thin air and in any case, the courts, bent
with the idea to engulf a concept within the
statutory parameters, should not pave the
path of expansion that the provision by so
stretch of examination envisages.

47. In Deepak Mahajans, the
Court referred to a passage from Maxwell
on Interpretation of Statutes, 10th Edn., at
p. 229 which is extracted below: (SCC p.
454, para 25)

"25. ... 'Where the language of a
statute, in its ordinary meaning and
grammatical construction, leads to a
manifest contradiction of the apparent
purpose of the enactment, or to some
inconvenience or absurdity, hardship or
injustice, presumably not intended, a
construction may be put upon it which
modifies the meaning of the words, and
even the structure of the sentence.... Where
the main object and intention of a statute
are clear, it must not be reduced to a nullity
by
the
draftsman's
unskilfulness
or
ignorance of the law, except in a case of
necessity, or the absolute intractability of
the language used."

The Court also referred to
various other decisions and finally ruled
that it is permissible for courts to have
functional approaches and look into the
legislative intention and sometimes it may
be even necessary to go behind the words
and enactment and take other factors into
consideration
to
give
effect
to
the
legislative intention and to the purpose and
spirit of the enactment so that no absurdity
or practical inconvenience may result and
the legislative exercise and its scope and
object may not become futile. As the
aforesaid statement would show that the
Court has been inclined to adopt a
functional approach to arrive at the
legislative
intention.
Needless
to
emphasise, there has to be a necessity to do
so.

64. I have referred to the
aforesaid authorities to highlight that
legislative intention and the purpose of the
legislation regard being had to the fact that
context has to be appositely appreciated. It
is the foremost duty of the Court while
construing a provision to ascertain the
intention of the legislature, for it is an
accepted principle that the legislature
expresses itself with use of correct words
and in the absence of any ambiguity or the
resultant consequence does not lead to any
absurdity, there is no room to look for any
other aid in the name of creativity. There is
no quarrel over the proposition that the
method of purposive construction has been
adopted keeping in view the text and the
context of the legislation, the mischief it
intends to obliterate and the fundamental
intention of the legislature when it comes to
social welfare legislations. If the purpose is
defeated, absurd result is arrived at. The
Court need not be miserly and should have
the broad attitude to take recourse to in
supplying a word wherever necessary.
Authorities
referred
to
hereinabove
encompass various legislations wherein the
legislature intended to cover various fields
and address the issues. While interpreting a
social welfare or beneficent legislation one
has to be guided by the "colour", "content"
and the "context of statutes" and if it
involves human rights, the conceptions of
Procrustean
justice
and
Lilliputian
hollowness approach should be abandoned.
The Judge has to release himself from the
chains of strict linguistic interpretation and
742 INDIAN LAW REPORTS ALLAHABAD SERIES
pave the path that serves the soul of the
legislative intention and in that event, he
becomes a real creative constructionist
Judge.

65. I have perceived the approach
in Hindustan Lever Ltd. and Deepak
Mahajan, Pratap Singh and many others. I
have also analysed where the Court has
declined to follow the said approach as in
R.M.D. Chamarbaugwalla and other
decisions. The Court has evolved the
principle that the legislative intention must
be gatherable from the text, content and
context of the statute and the purposive
approach should help and enhance the
functional principle of the enactment. That
apart, if an interpretation is likely to cause
inconvenience, it should be avoided, and
further personal notion or belief of the
Judge as regards the intention of the
makers of the statute should not be thought
of. And, needless to say, for adopting the
purposive approach there must exist the
necessity. The Judge, assuming the role of
creatively
constructionist
personality,
should not wear any hat of any colour to
suit his thought and idea and drive his
thinking process to wrestle with words
stretching
beyond
a
permissible
or
acceptable limit. That has the potentiality
to cause violence to the language used by
the legislature. Quite apart from, the Court
can take aid of casus omissus, only in a
case of clear necessity and further it should
be discerned from the four corners of the
statute. If the meaning is intelligible, the
said principle has no entry. It cannot be a
ready tool in the hands of a Judge to
introduce as and what he desires."

15. Learned counsel for the applicants
has placed reliance on paragraph 17.9 of
the judgement rendered by the Hon'ble
Supreme Court in the case of M. Ravindran
Vs. Intelligence Officer, Directorate of
Revenue Intelligence reported in (2021) 2
SCC 485 which reads as under:

"17.9. Additionally, it is wellsettled 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, given the ubiquitous power
disparity between the individual accused
and the State machinery. This 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."

16. Upon applicability of the
aforesaid judgments in the present facts and
circumstances of the case, it is evident that
provision of anticipatory bail is in the
nature of a beneficial provision in order to
prevent a person being taken into custody
merely on the basis of an accusation made
in the first information report. It is also
evident that the purpose of a provision of
statute is required to be given wide
amplitude in order to provide effective
interpretation of such a statute instead of
stifling the said provision.

17. In view of the aforementioned
definitions of law as laid down by the
Hon'ble Supreme Court, it is evident that
the provisions of anticipatory bail as
indicated in Section 482 of the BNSS, 2023
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.

18. In the present case, since it is
evident that the applicants were not taken
into custody in terms of the first bailable
warrant dated 30.5.2024, the apprehension
4 All. Tatheer Jafri & Ors. Vs. State of U.P.
743
of applicants for being taken into custody
would, in the considered opinion of this
Court, be a continuing cause of action
pertaining
to
such
apprehension
particularly, since they have not been taken
into custody even after issuance of second
bailable warrant dated 2.7.2024.

19. The aforesaid aspect has also been
considered by a Division Bench of this
Court in terms of Section 531(2)(a) BNSS,
2023 in the case of Deepu (Supra) in the
following manner:

"16. On the basis of above
analysis, this Court is also summarising the
law regarding effect of repealing the IPC
and Cr.P.C. by BNS and BNSS respectively
and same is being mentioned as below:

(i) If an FIR is registered on or
after 1.7.2024 for the offence committed
prior to 1.7.2024, then FIR would be
registered under the provisions of IPC but
the investigation will continue as per BNSS.

(ii) In the pending investigation
on
01.07.2024
(on
the
date
of
commencement of New Criminal Laws),
investigation will continue as per the
Cr.P.C. till the cognizance is taken on the
police report and if any direction is made
for further investigation by the competent
Court then same will continue as per the
Cr.P.C.;

(iii) The cognizance on the
pending
investigation
on
or
after
01.07.2024 would be taken as per the BNSS
and
all
the
subsequent
proceeding
including enquiry, trial or appeal would be
conducted as per the procedure of BNSS.

(iv) Section 531(2)(a) of BNSS
saved only pending investigation, trial,
appeal, application and enquiry, therefore,
if any trial, appeal, revision or application
is commenced after 01.07.2024, the same
will be proceeded as per the procedure of
BNSS.

(v)
The
pending
trial
on
01.07.2024, if concluded on or after
01.07.2024 then appeal or revision against
the judgement passed in such a trial will be
as per the BNSS. However, if any
application is filed in appeal, which was
pending on 01.07.2024 then the procedure
of Cr.P.C. will apply.

(vi) If the criminal proceeding or
chargesheet is challenged before the High
Court on or after 01.07.2024, where the
investigation was conducted as per Cr.P.C.
then same will be filed u/s 528 of BNSS not
u/s 482 Cr.P.C."

20. The aforesaid provision of Section
531 as taken into consideration by Division
Bench of this Court also indicates that
repeal of earlier provisions would save only
pending
investigation,
trial,
appeal,
application and enquiry. It, therefore,
naturally follows 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 in the present case which
would in fact be governed by BNSS, 2023.

21. In view of the aforesaid
discussions, the
preliminary
objection
raised regarding maintainability of the
present anticipatory bail application is
hereby rejected.

22. On the merits of issue, a perusal
of gangchart clearly indicates that only a
single case indicating involvement of
applicants in Case Crime No. 102 of 2021,
as indicated hereinabove, in which, this
744 INDIAN LAW REPORTS ALLAHABAD SERIES
Court
had
initially
granted
interim
anticipatory bail to the applicants vide
order dated 3.3.2023 passed in Crl. Misc.
Anticipatory Bail Application No. 650 of
2023 and the said order was thereafter
made absolute vide order dated 19.7.2023
and the anticipatory bail application was
allowed. It is also relevant that earlier this
Court had granted protection to the
applicants vide order dated 19.6.2023 in
Crl. Misc. Writ Petition No. 4726 of 2023
which,
however,
was
dismissed
as
withdrawn vide order dated 5.12.2024 due
to filing of charge sheet.

23. In view of the above, it is
provided that in the event of arrest, the
applicants Tatheer Jafri(in FIR-Tatheer
Jafri @ Allika), Roshani Rizvi and
Sayyad Naseem shall be released on
anticipatory bail in aforesaid Case
Crime number on their furnishing a
personal bond with two sureties each in
the like amount to the satisfaction of
the
arresting
officer/investigating
officer/S.H.O.
concerned
with
the
following conditions:-

(1)
The
applicant(s)
shall
cooperate in the investigation and they
will not influence the witnesses.

(2) The accused-applicant(s)
will remain present as and when the
arresting officer/1.O./S.H.O. concerned
call(s) for investigation/interrogation.

(3) The applicant(s) shall not
leave India without previous permission
of the Court.

(4) In case of default, it would
be open for the investigating agency to
move application for vacation of this
interim protection.

24. The application stands disposed
of.
----------
(2025) 4 ILRA 744
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 09.04.2025

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Criminal Misc Bail Application No. 8027 of 2024

Rajeev Yadav @ Rinku ...Applicant
Versus
State of U.P. ...Respondent

Counsel for the Applicant:
Karunesh Singh, Arun Sinha, Ram Chandra
Singh, Vijay Pratap Singh

Counsel for the Respondents:
G.A., Rina Pandey, Sanjay Shankar Pandey

Criminal
Law
-
Criminal
Procedure
Code,1973-Section
439-
Indian
Penal
Code,1860-Section 302/34-The applicant
sought bail regarding the murder of the
deceased-The prosecution primarily relied
on the custodial confessional statement of
a
co-accused
and
a
disputed
dying
declaration
inferred
from
a
witness
statement under section 161 CrPC- The
only material directly linking the applicant
was the co-accused's confession, which is
not sufficient alone for conviction-Santosh
Yadav's statement, claimed to be a dying
declaration , lacked crucial details such as
timing
and
direct
threat
from
the
applicant-The
court
found
that
the
statement did not specifically implicate
the applicant, nor was it proximate in time
or content to the deceased's death, thus
affecting its evidentiary weight-The court
also held that subsequent FIR alleging
witness
threats
did
not
involve
the
applicant
directly-Questions
of
admissibility and evidentiary value should
be examined during the trial-Bail could be
granted subject to conditions.(Para 1 to
26)

The
application
is
allowed.
(E-6)