While allowing the anticipatory bail plea of a 78-year-old man in a case of murder, the Allahabad High Court has observed that renewed apprehension of arrest under the new statute (Bharatiya Nagarik Suraksha Sanhita, 2023) constitutes a material change in circumstances that justifies fresh consideration of the application for anticipatory bail.

The Allahabad High Court made such an observation while considering a second anticipatory bail application filed under Section 482 of the BNSS. The applicant’s first anticipatory bail application under Section 438 of the CrPC was rejected by a Coordinate Bench.

The Single Bench of Justice Chandra Dhari Singh said, “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.”

“...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 non-bailable 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”, it added.

Advocate Pradeep Kumar Rai represented the Applicant while Government Advocate represented the Respondent.

Factual Background

The incident dates back to the year 2011, which occurred in Village Girdharpur, leading to the lodging of an FIR under Sections 302, 307, 323, and 504 of the Indian Penal Code, 1860 (IPC). The FIR was lodged by the informant, 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 one 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 and the postmortem revealed a single bullet injury with entry and exit wounds. The applicant filed his first anticipatory bail application under Section 438 of the CrPC before a Coordinate Bench which was rejected. After the enactment of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), the applicant filed an anticipatory bail application under Section 482 of BNSS which was also rejected. Aggrieved thereby, the applicant approached the High Court by filing a second anticipatory bail application under Section 482 of the BNSS.

Reasoning

The Bench noted that the applicant’s first anticipatory bail application was rejected by a Coordinate Bench 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.

The legal landscape underwent a fundamental transformation with the enactment of the BNSS w.e.f. July 1, 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. As per the Bench, 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.

Considering the issue of whether the second anticipatory bail application under Section 482 of the BNSS was maintainable given the earlier rejection of the first anticipatory bail application under Section 438(6) of the CrPC, the Bench referred to the judgment of the Apex Court in Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav (2005) wherein it has been 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 Bench stated that the factual matrix of the present case also demonstrated clear changed circumstances that warranted fresh consideration. When the first anticipatory bail application was filed and rejected, the applicant’s apprehension of arrest had subsequently subsided when the Supreme Court stayed the trial proceedings. However, upon dismissal of the SLP and consequent vacation of the stay, fresh warrant proceedings were initiated, culminating in the issuance of non-bailable warrant. “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”, it said.

“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 non-bailable 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 non-bailable warrant represents a material change in the factual matrix that justifies the filing of a fresh application”, it said.

The Bench further noted that the FIR assigned an ‘ornamental role’ to the applicant, with no specific allegation of direct assault by him. The FIR did not attribute any specific overt act to the applicant that would constitute his active participation in the commission of the offence. The fact that the fatal injury was caused by a single bullet raised questions about the number of active participants in the commission of the offence and the specific role attributed to the applicant herein.

The Court also noticed that the applicant is a 78-year-old man suffering from lung failure and other age-related ailments. His advanced age and medical condition, coupled with the absence of any criminal antecedents, indicated that no useful purpose would be served by his custodial interrogation, particularly when the police had already filed their final report. The charge sheet, in this case, was filed in the year 2011, and the applicant was summoned in the year 2019, which indicated a substantial delay in proceedings. Thus, holding that the second anticipatory bail application under Section 482 of BNSS was manifestly maintainable, the Bench allowed the same.

Cause Title: Abdul Hameed v. State of U.P (Neutral Citation: 2025:AHC:102975)

Appearance

Applicant: Advocates Pradeep Kumar Rai, Prakhar Saran Srivastava

Opposite Party: Government Advocate

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Allahabad High CourtJustice Chandra Dhari Singh

Tulip Kanth

Assistant Editor

Tulip Kanth is an Assistant Editor at Verdictum having over 5 years of experience in the field of legal journalism and editing. She extensively covers judgments of the Supreme Court, High Courts as well as Tribunals. She has previously worked with a legal publishing website where she oversaw the work of other editors and has also created updates on notifications of different Government Ministries. She holds an English Honours Degree from SGTB Khalsa College, Delhi University and has completed her LLB course with specialisation in Corporate Law from Amity University.