
Abdul Hameed is against. The State of U.P., decided by Honourable Chandra Dhari Singh, J., on 3rd July 2025 is the new milestone in the scene of an anticipatory bail situation in India, especially through the new Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). The case makes very important clarifications on how subsequent anticipatory bail applications can be maintained, the retroactive effect of procedural laws such as BNSS, and the doctrine of beneficial legislation. The whole analysis conducted by the court dealt with the underlying substantial matters that have been under question highly and finally it has provided anticipatory bail to the accused Abdul Hameed.
The Real Background The real background is as follows:
The case was based upon an event on August 13, 2011, at around 8:15 AM, in Village Girdharpur, Police Station Devrania, District Bareilly, Uttar Pradesh. It was registered as an FIR. No. 647/2011 under Sections 302, 307, 323 and 504 of the Indian Penal Code, 1860 (IPC). This is the FIR registered by the informant, Firoz, which states that the accused persons (which include Abdul Hameed (the applicant) along with other accused Javed, Anwar, Jameer and Babu) confronted and attacked the informant and other members of the family with licensed pistols. In the FIR, the police are reported to have alleged that the offender opened fire indiscriminately, due to which the uncle of the informant namely Guddu @ Zakir Husain was shot by the accused and had succumbed to bullet injuries. The cause was explained by the presence of pre-existing enmity due to the elections of the Zila Panchayat and contractual conflicts.
Though Abdul Hameed was named in the FIR, as the investigation made by the police found that the charges against him were fabricated, he did not figure on the charge sheet submitted on November 7, 2011 of the three other accused persons. In the continuation of investigation, the villagers filed affidavits that the applicant was absent at the crime scene and the statements in terms of Section 161 of the CrPC proved his absence.
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But in the trial, the informant who was examined as PW-1, is said to have taken a different twist on the facts in his cross examination, and stated that the accused had fired on the rooftop, which is in contrast to the FIR and also with what he had stated earlier in his statement. On these grounds an application was made under Section 319 of the CrPC to have Abdul Hameed added as an additional accused. The learned ASJ, Court No. 3, Bareilly, permitted this application on May 22, 2019, and the learned ASJ ordered the applicant to stand trial. Abdul Hameed opposed this summoning order to the Coordinating Bench of the High Court which directed him to file a discharge application and gave him interim protection to be disposed of. The learned Trial Court, on May 12, 2022, rejected the application for discharge so filed and this rejection was affirmed by a Coordinating Bench of the High Court on September 16, 2022. Even the Honourable Supreme Court was approached through Special Leave Petition (Criminal) No. 21956/2023 and the case was initially stayed by the Supreme Court on July 10, 2023 against the trial but finally, the SLP was dismissed on December 10, 2024 vacating the said stay. Based on the dismissal by the Supreme Court, the Trial Court which was learned issued a non-bailable warrant against Abdul Hameed on February 1, 2025.
It is to be noted that he, Abdul Hameed, had earlier applied (ABAIL No. 1554/2023) under Section 438 of the CrPC as an anticipatory bail application, which was dated February 10, 2023, was denied by the court. The rejection was essentially based on the ground of maintainability since it was barred by the statute, under Section 438(6) of the CrPC, as amended by Uttar Pradesh State Amendment Act No. 4 of 2019, where no anticipatory bail can be granted in case of an offence punishable by either death or life imprisonment, including the one under Section 302 IPC. On March 10, 2025, Abdul Hameed filed an anticipatory application under Section 482 of Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) before Sessions Judge, Bareilly which was rejected. This resulted in the current-second application for anticipatory bail in the High Court.
The Second Anticipatory Bail Application is to be maintained.
One of the main questions for the High Court was that of whether the second bail on anticipation could be allowed, more so since the first one under Section 438(6) CrPC had been turned down. Successive bail applications were also addressed carefully by the court in terms of the law. It was admitted that successive bail applications under the same facts and circumstances are not permissible but where there is a material change in the facts and circumstances or in the law, where the view in the earlier case has to be interfered with or where the earlier view has become obsolete as held by the Honble Supreme Court in the following cases:
Kalyan Chandra Sarkar v. Rajesh Ranjan was modeled after Pappu Yadav.
The court considered the implementation of the BNSS, planned to go into effect on July 1, 2024, as a “dramatic alteration in the law.” Importantly, the current state of anticipatory bail applications is the result of Section 482 of the BNSS which, unlike Section 438(6) of the CrPC, does not feature any ban whatsoever. This centered addition, according to the court, was made, as a purposeful legislative choice, to eliminate the bar that existed under the prior State Amendment. So the legal basis for the disapproval of the first application was “quite destroyed” by the latter statute. The court further observed that the changing facts on the ground not only subsided when the trial was stayed by the Honble Supreme Court on July 10, 2023, but here it has rekindled upon dismissal of the SLP on December 10, 2024, and a fresh non-bailable warrant was issued on February 1, 2025. Such a combination of legal and factual developments was the reason why the second application was not maintainable.
After the fact: BNSS and productive legislation
The other important point that the court made was on the retrospective application of the BNSS as well as the doctrine of beneficial legislation. The court resorted to the principles held by the Hon’ble Supreme Court in
The case of Hitendra Vishnu Thakur & Others vs. State of Maharashtra & Others laid it down that a statute that has some impact on substantive rights is generally presumed to be prospective and a statute that only changes procedure is generally assumed to be retrospective so far as its application goes unless such a construction is expressly prohibited by the words used. Section 482 of BNSS is a procedural section which regulates the application of anticipatory bail and therefore clearly fits into the ambit of the procedural law. The court observed that there was no saving clause or transition in the BNSS to clarify that the provisions of Section 438(6) bar of the CrPC would be continued, which shows that when enacting the new regime, Parliament intended its application in all relevant cases, regardless of the time at which the offence was committed.
The concept of beneficial legislation as laid down in the case of T. Barai v. Henry Ah Hoe
In it, when a later act provides different punishment, or different proceedings, the advantage of the mitigated punishment, or the improved proceedings, must fall on the accused. The same was repeated as a principle in
Trilok Chand v. Himachal Pradesh states, that even though an ex post facto law of this nature ought to have been taken, in order to ameliorate the severity of the law. The court equally referred to
M. Ravindran Vice Intelligence Officer, Revenue Intelligence Directorate
Which has focused further that on any ambiguity arising in the construction of a penal statute, the courts should lean a preference to an interpretation which works in favour of the rights of the accused. The omission of that statutory bar by Section 438(6) of the CrPC in the new statutory regime under the BNSS was perceived by the court to be a deliberate step by the legislative to enlarge the compass of the kind of anticipatory bail and of augmenting the safeguard of individual liberty. As a result, Abdul Hameed, even though the incident of the offence had arisen on August 13, 2011, was eligible to obtain the advantage of the more liberal clauses that were brought by BNSS. The court used its decision by the Division Bench, as well.
Deepu & others Vs. State of U.P. & others
Which contained that any application made after July 1, 2024, would be dealt with pursuant to the BNSS, notwithstanding the time of the commission of an underlying offence.
In the light of the Prima Facie Case and the Mitigating Factors
The court further went on to investigate the existence of a prima facie case against Abdul Hameed with regards to the grant of anticipatory bail bearing in mind the position assigned to him and the evidence available. Some mitigating factors were brought up by the court. To begin with, the investigation officer in his rigorous investigation established the allegations against the applicant to be false and thus did not include his name on the charge sheet submitted on November 7, 2011. This early acquittal by the investigating agency was regarded as extremely vital.
Secondly, whereas on May 22, 2019, Abdul Hameed was called in under Section 319 of the CrPC, taking into account the testimony of PW-1 (the informant Firoz) during cross-examination, a detailed examination showed the reasons that made it questionable. On their part, the injured witnesses who were Zamiul Hasan and Zakir Ali in their statements made under section 161 CrPC during this investigation had said nothing about the identity of the applicant as one of the assailants, and it is important to know that they did not. Even then the FIR in itself gave an ornamental role to the applicant with no specific charge of direct assault or any charge of carrying out some specific overt act which can be attributed to his active involvement. It is pertinent to note that the post-mortem examination showed that the victim had suffered a single bullet gunshot with a single exit and entry hole, which shows that the deceased had been the victim of a single gunshot. The evidence transcript in trial, which was the foundation of the summoning of the accumulation in Section 319 CrPC, was slightly similar to the one already recorded regarding Section 161 CrPC without an additional material indication appearing.
Last but not least, the personal situation of Abdul Hameed deserves some serious attention. He is an elderly patient aged 78 years and with lung failure among other age-related conditions. His old ailment, advanced age and lack of any criminal history, meant that no constructive relationship was going to be created by having him locked up and interrogated especially considering that the police had already submitted its official report. The aspect of delay also became relevant because the accident had taken place a little over a decade back i.e. August 13, 2011 and that the applicant had been summoned only on May 22, 2019 pointing towards immense vagueness in the pursuance of proceedings.
The award of Anticipatory Bail
After looking into all details, the court decided that Section 482 of BNSS’s current second anticipatory bail application is eminently maintainable. BNSS gave rise to changed material circumstances both of law and fact which merit reconsideration on the merits. The elimination of the statutory bar as in Section 438(6) of the CrPC was the main alteration in the law configuration that erases the premise in place where the initiation was discarded in the first place. The doctrine of beneficial legislation and the presumption applying to retrospective operation of the procedural law were very much in favour of the applicant and he was entitled to the advantage of the more liberal enactment brought about by BNSS.
It was held by the court that Abdul Hameed would be entitled to anticipatory bail because he had established a prima facie case since he was involved only peripherally, credible evidence was not available against him during his investigation as reflected in the fact that he was not included in the first charge sheet, he was also extremely old and ill, and the proceedings were also very delayed. The new situations that fall upon after rejection of the initial application, such as passing of BNSS, tempering of the stay by the Hon We supersede, and the new issuing of the non-bailable warrant, were premises where fresh consideration on merit is necessary.
In this regard, the bail application was finally granted. With prejudice to the satisfaction of the concerned Court, Abdul Hameed shall be released on bail, after the fulfillment of a personal bail bond in the amount of Rs. 1,00,000/-, along with two solvent sureties of like amount. There are a few terms and conditions on which the bail is granted, such as the restriction on leaving Uttar Pradesh without prior permission, the need to surrender his passport, and to appear in the court whenever it is necessary, the need not to involve himself in any criminal act, the need not to communicate with the witnesses in the case and the family of the victim and the need to provide his mobile numbers to the I.O.. The court further explained that the observations are merely prima facie in nature only to the extent of determination of the anticipatory bail application and not to constitute the said comments by conveying any statement on the merits of the case. Sources