Anticipatory bail application is not maintainable if accused is prosecuted either for an offence U/S 65 or U/S 70(2) of BNS

1. Heard Mr. A. F. N. U. Mollah, learned counsel for the petitioners. Also

heard Mr. R. R. Kaushik, learned Additional Public Prosecutor appearing for the

State of Assam as well as Mr. S. Nawaz, learned Amicus Curiae appointed by the

Court.

2. This application under Section 482 of BNSS has been filed by the

petitioners, namely, 1. Nazir Hussain, 2. Insan Ali, 3. Nazina Bibi and 4. Abdul

Wahab who are apprehending their arrest in connection with Gauripur P.S. Case

No. 15/2025 under Sections 61(2)/137(2)/303(2)/65(1)/308(2) of the BNS.

3. The gist of accusation in this case is that on 09.01.2025, one Nozmul

Hoque had lodged an FIR before the Officer-in-charge of Gauripur Police

Station, inter alia, alleging that on 26.11.2024, the accused persons named in

the FIR (present petitioners) had kidnapped the minor daughter of the

informant. However, the Police on filing of an FIR recovered the daughter of the

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informant and handed over her custody to the informant.

4. However, it is alleged in the FIR that on 09.01.2025, the accused No. 1

again kidnapped the daughter of the informant with the help of other accused

persons (the present petitioners). It is also alleged in the FIR that the petitioner

No. 1 also took an amount of Rs.1,50,000/- (One Lakh Fifty Thousand) from the

Almirah. It is further alleged that the petitioner No. 1 had committed sexual

intercourse with the daughter of the informant on pretext of marrying her. The

date of birth of the victim girl is stated to be on 07.11.2010 in the FIR.

5. The learned counsel for the petitioners has submitted that the

daughter of the informant is not a minor and her date of birth is 07.11.2006. It

is also submitted by the learned counsel for the petitioners that the informant’s

daughter had on her own accompanied the petitioner No. 1. It is also submitted

that there is a love affair between the victim girl and the petitioner No. 1 since

long back and that she has been married to the petitioner No. 1 and were

staying together happily as married couple. However, the said relationship was

not agreeable to her parents, therefore, only with an intention to harass the

petitioners, a false FIR has been lodged.

6. In support of his submissions that the victim girl is not a minor, the

petitioners have annexed the transfer/leaving certificate of the victim girl issued

by the Bilasipara Kasturba Gandhi Balika Vidyalaya, wherein her date of birth

has been stated as 07.11.2006. The learned counsel for the petitioners,

therefore, submits that the victim girl was major on the date of alleged incident

and she left with the petitioner No. 1 out of her own sweet will.

7. The learned counsel for the petitioners also submits that in the

meanwhile, petitioner Nos. 2, 3 and 4 were granted interim bail by this Court by

order dated 10.04.2025 and in pursuant to the directions of this Court, they

have co-operated in the investigation. He submits that all the petitioners,

including the petitioner No. 1 are ready to co-operate in the investigation and,

therefore, their prayer for anticipatory bail may be allowed.

8. At the beginning of the hearing of this anticipatory bail application, the

learned Additional Public Prosecutor has raised the plea of maintainability of this

anticipatory bail application as the Gauripur P.S. Case No. 15/2025 has been

registered, inter alia, under section 65(1) of the BNS, 2023. He, therefore,

submits that this application for anticipatory bail is barred by Section 482(4) of

BNSS, 2023.

9. The learned counsel for the petitioners has submitted that on the plain

reading of the Section 482(4) of BNSS, it appears that an anticipatory bail

application is not maintainable in case of a person who is accused of “an offence

under Section 65 and sub-Section (2) of Section 70” of BNS, 2023.

10. The learned counsel for the petitioners has submitted that legislature

has deliberately used the conjunction “and” in Section 482(4) in place of the

disjunction “or” in the said provision, hence, unless a person is accused of both

the offences under Section 65 and Section 70(2) of BNS 2023, the bar of

Section 482(4) will not be applicable. He, therefore, submits that as in this

case, only offence under Section 65(1) is involved without any accusation under

Section 70(2), the bar under Section 482(4) is not applicable to this case.

11. Mr. R. R. Kaushik, learned Additional Public Prosecutor, on the other

hand, has submitted that if the interpretation of Section 482(4) of BNSS, 2023

as suggested by the learned counsel for the petitioners is to be made

applicable, then it would result in absurdity and would defeat the purpose which is sought to be achieved by incorporating the bar in Section 482(4) of BNSS, 2023.

12. Mr. S. Nawaz, learned Amicus Curiae who was appointed by this Court

to assist the Court regarding the question of maintainability of an anticipatory

bail application in view of the fetters contained in Section 482(4) of BNSS, has

taken the Court through the legislative history of the provisions regarding

anticipatory bail in the Code of Criminal Procedure, 1973 as well as BNSS, 2023.

He submits that the provision corresponding to 482(4) of BNSS is the Section

438(4) of the Code of Criminal Procedure, 1973. He submits that in Section

438(4) of the Code of Criminal Procedure, 1973 it was provided that an

anticipatory bail was not maintainable in the case of a person who is accused of

the offence under Section 376(3) or Section 376 AB or Section 376 DA or

Section 376 DB of the Indian Penal Code. He also submits that in Section 438(4)

of the Code of Criminal Procedure, 1973 the disjunction “or” was used whereas

in the Section 482(4) of BNSS conjunction “and” is used.

13. He submits that the provisions of Section 482 of BNSS are in pari

materia with Section 438 of Cr.P.C. except for the use of conjunction “and” in

the Section 482(4) BNSS instead of disjunction “or” used in Section 438(4) of

the Code of Criminal Procedure, 1973.

14. He submits that the categories of the offences in respect of which the

bar was provided under Section 438(4) of the Code of Criminal Procedure, 1973

remains same even in Section 482(4) of BNSS, 2023. Hence, if literal meaning is

given to the conjunction “and” in Section 482(4) of BNSS it would mean that

only if a person has committed both the offences under Section 65 and Section

70(2) of BNS, he may not be entitled to anticipatory bail. He submits that this

interpretation would give rise to unnecessary mischief in as much as the offence

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under Section 70(2) of BNS includes within its ambit, the erstwhile offences

under Section 376 DA and 376 DB of the IPC. Whereas Section 65 of BNS

covers both the offence under Section 376(3) and Section 376 AB of the IPC.

15. The learned Amicus Curiae submits that in the statements of object and

reason of BNSS, 2023 there is nothing to suggest that the legislature intended

to give a curtailed or restricted operation of Section 482 of BNSS, rather the

provisions remains pari materia with Section 438 of Cr.P.C. which suggest that

the operation of bar to anticipatory bail in respect of certain grave offences

remain unchanged. He, therefore, submits that in order to avoid redundancy

and to avoid the legislative intent being frustrated by giving a literal

interpretation to the word “and” used in Section 482(4) BNSS, same has to be

given a purposive interpretation so as to further the object which the legislature

intended to achieve by enacting the said provision.

16. He submits that though the word “or” is normally disjunctive and the

word “and” is normally conjunctive, however, there may be circumstances when

these words to be read as vice-versa to give effect to the manifest intention of

the legislature as disclosed from the context.

17. The learned Amicus Curie has submitted that in keeping with the spirit

of legislation as well as legislative history behind the enacting of section 482(4)

of BNSS, 2023, the word “and” appearing in the said section is required to be

read down as “or”. He submits that any other interpretation may lead to the

adoption of a meaning that would be inconsistent with the legislative intent and

historical background of the law relating to exclusion of certain category of

offences from getting the benefit of anticipatory bail. To substantiate his

submissions, the learned Amicus Curiae has cited following rulings: –

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a) Dr. Jaishri Laxman Rao Patil vs. The Chief Minister and

another reported in (2021) 8 SCC 1;

b) Spentex Industries Limited vs. Commissioner of Central excise

and others reported in (2016) 1 SCC 780.

18. I have considered the submissions made by the learned counsel for both

sides as well as learned Amicus Curiae. I have also gone through the materials

available on record, including the case diary of Gauripur P.S. Case No. 15/2025,

which was called for in connection with this case.

19. First of all, let me take up the issue of maintainability of the present

anticipatory bail application raised by the learned Additional Public Prosecutor in

view of the embargo provided under Section 482(4) of BNSS. Section 482(4) of

BNSS, 2023 provides as follows:-

“(4) Nothing in this section shall apply to any case involving the arrest

of any person on accusation of having committed an offence under

Section 65 and sub-Section (2) of Section 70 of BNS, 2023”.

20. Though, the learned counsel for the petitioners has submitted the the

plain reading of Section 482(4) would show that an anticipatory bail application

is not maintainable only in a case when a person is found to be accused of an

offence under Section 65 and sub-Section (2) of Section 70 of BNS, 2023, he

further submits that if the literal meaning of the conjunction “and” used in

between the word “under Section 65” and “sub-Section (2) of Section 70” is

considered, it would mean that only if a person is accused of offences under

both the Sections i.e., Section 65(1) as well as Section 72 of BNS, the bar

provided under Section 482(4) of BNSS would be applicable, otherwise not.

21. In this regard the submissions made by learned Amicus Curiae Mr. S.

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Nawaz appears to be plausible and acceptable, which this Court is refraining

itself from repeating as same has already been discussed in the foregoing

paragraphs. This Court agrees with the submissions made by the learned

Amicus Curiae which are reproduced in paragraph Nos. 10, 11, 12, 13, 14 and

15 herein above. Considering the strong logic and reasonableness of the

submission made by the learned Amicus Curiae which has been discussed in the

foregoing paragraphs, this Court does not wish to add anything to the said

submissions made by the learned Amicus Curiae except for accepting the same.

22. We have seen that the provision contained in Section 482 of BNSS,

2023 is peri material with Section 438 of Cr.P.C. There is nothing in the

statement of objects and reasons of enacting BNSS, 2023 to suggest that the

legislature intended to give a restricted operation in respect of the exclusion

clause contained in the Section 482(4) of BNSS then that of the clause which

was there in the Section 438(4) of the Code of Criminal Procedure.

23. This Court fully agrees with the submission of the learned Amicus Curiae that if literal meaning is given to the word “and” used in Section 482(4), it would frustrate the legislative intent of restricting the operation of provisions regarding anticipatory bail in respect of certain heinous offences which was earlier provided for in Section 438(4) of Cr.P.C, 1973.

24. The Apex Court in the case of “Spentex Industries Limited vs.

Commissioner of Central excise and others”(supra) has observed as follows:-

“29. We are conscious of the principle that the word “or” is normally disjunctive and “and” is normally conjunctive (see Union of India v. Kamalabai Harjivandas Parekh [AIR 1968 SC 377 : (1968) 1 SCR 463] ). However, there may be circumstances where these words are to be read as vice versa to give effect tomanifest intention of the legislature as disclosed from the context”.

25. If we look at the provisions contained in Section 65 of BNS, it appears that it penalizes two kinds of rape i.e., under Section 65(1), it penalizes rape of a woman under the age of 16 years whereas under Section 65(2), the penalty is for rape of a woman under the age of 12 years whereas Section 70(2) penalizes gang rape (rape of a woman by one or more person constituting a group or acting in furtherance of common intention of a woman who is less than 18 years of age). The basic difference between the two penal provisions is that in case of offence under Section 65, the victim is either less than 16 years of age or less than 12 years of age and the offender is normally a single person, whereas under Section 72(1) of the BNS, the victim is under the age of 18 years and the offenders are more than one person constituting a group or acting in furtherance of common intention. There is unlikelihood of a case where a person would be charged both under Section 65 of BNS as well as under Section 70(2) of BNS. If there is a single offender and the victim is less than 16 years of age, he would be charged under Section 65 of BNS whereas if there are one or more women who is raped by one or more in a group of persons acting in furtherance of their common intention of raping the minor girl, they would be charged under Section 70(2) of BNS. To say in other words, if more than one person are involved in the offence of raping a victim under the age of 18 years, they would not be charged under Section 65 but under Section 70(2) of BNS, therefore, there is unlikelihood of a case being registered under both the sections i.e., Section 65 and Section 70(2) of BNS if there are more than one person involved and victim is less than 18 years of age.

26. Under such circumstances, giving a literal meaning to the word “and” and insisting that the bar of Section 482(4) would be applicable only if both the sections are involved in the case and the accused has been arrested of having his own accusations of committing offence under both the Sections i.e., under Section 65 and Section 70(2) of BNS would result in making the bar provided in

Section 482(4) of BNSS almost redundant in any case which would frustrate the legislative intent.

27. Hence, agreeing with the submissions made by the learned Amicus Curiae, this Court is of considered opinion that the word “and” appearing between the words “under Section 65” and “sub-Section (2) of Section 70” in Section 482(4) of BNSS shall have to be read as “or” to give effect to the manifest intention of the legislature.

28. In view of the above discussion, the contention of the learned counsel for the petitioners is rejected and it is hereby held that the embargo of Section 482(4) of BNSS would apply to any case involving the arrest of any person on accusation of having committed an offence under Section 65 or sub-Section (2) of Section 70 of BNS, 2023.

29. In the instant case, the informant who is the father of the victim girl has

stated in his statement recorded under Section 181 of BNSS that his daughter is

a minor and her date of birth is 07.11.2010 and in support of his statement he

has submitted a copy of birth certificate issued by the Registrar of Birth and

Death. Whereas, the learned counsel for the petitioners has submitted that the

victim is a major and has produced the transfer/school leaving certificate

wherein the date of birth of the victim girl has been shown as 07.11.2006.

When two different date of births are shown of the victim girl in two different

documents, namely, the first one, the birth certificate issued by the Registrar of

Birth and Death whereas the second one issued by the Warden-cumteacher/Head Teacher of the school in which she had claimed to studied, the

certificate issued by Registrar of birth and death has a statutory recognition

under the provisions of Registration of Birth and Death Act, 1969, hence, the

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same would have more acceptability and reliability when compared to the birth

certificate issued by the school authority. Hence, relying on this said certificate

at this stage, prima facie, it appears that the victim girl was minor on the date

when the alleged offence was committed.

30. The victim girl in her statement recorded under Section 183 of BNSS,

2023 has stated that she herself came to the petitioner No. 1 and stayed with

him as his wife and also had a physical relationship. However, considering the

fact that she was a minor at that time (less than 18 years of age), the said act

would still be regarded as rape within the meaning of Section 63 of the BNS,

when it is read with the circumstance No. (vi) of the said section as well as with

the Exception 2 of proviso to the explanation 2 of Section 63 of BNS.

31. As per the date of birth certificate of the victim girl issued by the

Registrar of Birth and Death, which is available in the case diary she would be

less than 16 years of age at the time of the alleged offence. Hence, prima facie,

it appears that the Section 65(1) of BNS would be applicable in this case and

hence the bar provided under Section 482(4) of BNSS would be applicable in

this case. However, as the accusation of rape has been made only against the

petitioner No. 1, the said bar would be operative against petitioner No. 1 only.

Against the rest of three petitioners, the said bar shall not be operative.

32. Considering the progress made in the investigation as well as

considering the statement of the victim girl recorded under Section 183 of

BNSS, custodial interrogation of the petitioners does not appear to be necessary

for fair completion of the investigation of Gauripur P.S. Case No. 15/2025.

Hence, the interim anticipatory bail granted to the petitioner No. 2. Insan Ali, 3.

Nazina Bibi and 4. Abdul Wahab by order dated 10.04.2025 by this Court is

hereby made absolute with a condition that they shall co-operate in the

investigation and shall not directly or indirectly make any inducement, threat or

promise to the victim girl or any other witnesses so as to dissuade them from

deposing before the Investigating Officer regarding the facts involved in this

case.

33. Though, on perusal of the case diary and considering the progress

made in the investigation as well as statement of the victim girl recorded under

Section 183 of BNSS, it appears that the custodial interrogation of petitioner No.

1 is also not necessary for fair completion of the investigation of the case.

However, as there are prima facie materials against the petitioner No. 1 under

Section 65(1) of BNS, 2023, hence, his application for anticipatory bail is barred

by Sections 482(4) of BNSS. His prayer for anticipatory bail is, therefore,

rejected. He may appear before either the Investigating Officer or may

surrender before the learned Chief Judicial Magistrate, Dhubri and may move an

application seeking bail, if so advised.

34. This anticipatory bail application is accordingly disposed of.

 JUDGE

Comparing Assistant