The Uttarakhand High Court has referred to a larger bench the critical question of whether Section 482 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), which provides for anticipatory bail, overrides the restrictions imposed by the State of Uttarakhand under Section 438 of the Criminal Procedure Code (CrPC). The issue was raised during hearings on multiple anticipatory bail applications filed under the BNSS, in which the petitioners apprehended arrest in serious cases, including those registered under the Indian Penal Code, the Protection of Children from Sexual Offences (POCSO) Act, and the Narcotic Drugs and Psychotropic Substances (NDPS) Act.
Justice Alok Kumar Verma, who was hearing the matters, framed the question regarding whether the newly enacted provisions under Section 482 BNSS, which came into effect from July 1, 2025, prevail over the earlier restrictive provisions under Section 438 of the CrPC as amended by the State. The judge observed that the state’s amendment to Section 438 CrPC had disallowed anticipatory bail in cases involving serious and grave offences, such as those under the Unlawful Activities (Prevention) Act, NDPS Act, Official Secrets Act, and offences punishable by death or involving minors.
The court examined Section 531 of the BNSS, which repeals the CrPC but also includes a savings clause. This clause provides that any ongoing investigation, inquiry, trial, or proceeding under the CrPC shall continue under that Code, as if the BNSS had not come into force. However, the court noted that while the State of Uttarakhand had earlier amended Section 438 of the CrPC to restrict anticipatory bail, it had not enacted a similar amendment to Section 482 of the BNSS, which allows anticipatory bail in broader circumstances.
This legislative omission led the court to consider that the intent of the State Legislature might be to allow anticipatory bail under the BNSS without the earlier restrictions. This question gained further relevance because a coordinate bench of the High Court had previously, in the case of Mukesh Singh Bora v. State of Uttarakhand, denied anticipatory bail in a POCSO case on the grounds that it was barred under the State's CrPC amendments. That judgment had upheld the restrictive reading of anticipatory bail powers.
In light of this divergence of views and the significance of the legal question, the court referred the matter to a larger bench to determine whether the general provision of anticipatory bail under Section 482 BNSS could be invoked even in the absence of specific State amendments and whether it would override earlier state-imposed restrictions under the CrPC. The court emphasized that the legal interpretation of this issue was essential to ensure consistency in the application of anticipatory bail provisions under the new legal regime established by the BNSS.
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