Research › Search › Judgment

Allahabad High Court · body

2026 DAILYLAW 4581 (ALL)

Sagar v. State Of U. P.

2026-03-10

Rajiv Lochan Shukla

body2026
JUDGMENT : RAJIV LOCHAN SHUKLA, J. 1. Heard Sri Amit Rai, learned counsel for the applicant, Sri Brahma Kumar Tiwari, learned counsel for the informant/opposite party no. 2 as well as Sri Surendra Singh, learned A.G.A. for the State and perused the record. 2. This Court on 23.02.2026 passed the following order:- "1. Shri Brahma Kumar Tiwari, Learned counsel for the opposite party No.2 has raised a preliminary objection stating that as the offences, that have been levelled against the applicant involve Section 70(2) of the BNS 2023, in view of the sub section 4 of Section 482 of the BNSS, this application is not maintainable. 2. Shri Amit Rai, Learned counsel for the applicant, replying to the preliminary objection raised by Shri Tiwari, contends that a bare reading of Section 482 (4) BNSS would indicate that an anticipatory bail application is barred only when Section 65 and 70(2) BNS are both applicable in a particular case. 3. Replying to this submission, Shri Tiwari relying upon a decision of the Gauhati High Court in the case of Nazir Hussain and three other vs. State of Assam, Case No.:AB/446/2025, where a Single Judge of the Gauhati High Court, while concurring with the submissions made by the Amicus Curiae appointed in the case, has concluded that the word 'and' used in Section 482(4) BNSS shall be read as 'or' to give full effect to the intent of the legislature. 4. The matter requires consideration on this legal issue. 5. Put up as fresh on 10.03.2026. In the meantime, Learned AGA shall file a counter affidavit, as also Shri Tiwari. 6. 4. The matter requires consideration on this legal issue. 5. Put up as fresh on 10.03.2026. In the meantime, Learned AGA shall file a counter affidavit, as also Shri Tiwari. 6. Till the next date of listing, in the event of arrest of the applicant- Sagar, involved in the Case Crime No.29 of 2025 under Sections 137(2), 351(2), 70(2) BNS and Section 5(G), 6 POCSO Act, P.S. Charthawal, District Muzaffar Nagar, he shall be released on interim anticipatory bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the Station House Officer of the police station/Court concerned with the following conditions:- (i) The applicant shall not tamper with evidence and that he would appear before the trial Court on the date fixed unless exempted by the Court concerned; (ii) The applicant shall not directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her/them from disclosing such facts to the Court or to any police officer; (iii) The applicant would co-operate during trial and would not misuse the liberty of bail. (iv) The applicant shall not leave India without prior permission of the Court concerned. (v) that the applicant shall not pressurize/intimidate the prosecution witness; 7. In default of any of the conditions, the prosecution shall be at liberty to file appropriate application for cancellation of interim anticipatory bail granted to the applicant." 3. Today, when the case has been called on, the learned A.G.A. and learned counsel for the informant have prayed for further time to file a counter affidavit. However, with the consent of the parties, this matter is being disposed of without awaiting for counter affidavits. 4. Sri Rai submits that a bare reading of the statute specifically Section 482(4) BNSS clearly indicates that an anticipatory bail application is barred only when both Section 65 and Section 70(2) of the Bharatiya Nyaya Sanhita, 2023 (hereinafter referred to as 'the BNS') are applicable in a case. He submits that in the present case as Section 65 of the BNS is not attracted and only Section 70(2) of the BNS is attracted, the anticipatory bail application would be maintainable. 5. Sri Tiwari, learned counsel for the opposite party no. He submits that in the present case as Section 65 of the BNS is not attracted and only Section 70(2) of the BNS is attracted, the anticipatory bail application would be maintainable. 5. Sri Tiwari, learned counsel for the opposite party no. 2, who has raised the objection with respect to the maintainability of the present case has relied upon a decision of the High Court of Gauhati in Nazir Hussain and Others vs. State of Assam Rep by the PP, Assam reported in 2025 SCC OnLine Gau 2971 , where agreeing with the submissions made by the amicus curiae appointed in the case, the Court found that the word "and"used in the provision would be considered to be "or". 6. Learned A.G.A. has also questioned the maintainability of the application for anticipatory bail and has adopted the arguments of Sri Tiwari. 7. Before proceeding to decide the legal issue certain relevant facts may be noted in the present case. Initially, the First Information Report in this case was registered against the applicant and the other accused for offences under Section 64(2), 61(2) of the BNS and Section 3 and 4 of the Prevention of Children from Sexual Offences Act, 2012 (hereinafter referred to as 'the POCSO Act'). The applicant is said to have been arrested and then bailed out on 04.04.2025. It is thereafter that during investigation when the second statement of the mother of victim was recorded that Section 70(2) of the BNS was added in the said case. The thrust of the contention of learned counsel for the applicant is that no offence under Section 70(2) BNS is made out and as such, even if the argument of learned counsel for the opposite party no. 2 with respect to the maintainability of the application is to be taken into account, the application for anticipatory bail would be maintainable. 8. Before adverting to the arguments on Section 482(4) BNSS, the contention of the learned counsel for the applicant that no offence under Section 70(2) is made out, is required to be dealt with. From a perusal of the record, it is borne out that no role of participating in the sexual assault of the victim has been given to the applicant in the First Information Report and in the statement of the victim under Section 180 and 183 BNSS. From a perusal of the record, it is borne out that no role of participating in the sexual assault of the victim has been given to the applicant in the First Information Report and in the statement of the victim under Section 180 and 183 BNSS. The first statement of the mother of the victim also does not make any allegation against the applicant of sexual assault on the victim. It is almost after a month of the incident that the applicant is said to have been nominated for an offence under Section 70(2) BNS where the role assigned to the applicant is of dragging the victim after accompanying her and other accused on motorcycles to the field where co-accused Himanshu committed rape upon the victim. On the strength of this, learned counsel for the applicant states that as these allegations are absent from the statement of the victim made under Section 180 and 183 BNSS, the subsequent improvement in the second statement is only to defeat the bail granted to the applicant for the other sections. He contends that this improvement is required to be discarded and the anticipatory bail application would then be maintainable. 9. I have considered the submission of learned counsel for the applicant on the point of no offence being made out. The reliability of a particular statement is not to be taken note of while deciding whether the offence is made out or not. What is to be seen is that from the materials collected during investigation and the allegations that appear against an accused, what offence is made out. It is no doubt true that in the earlier statements of the victim and her mother, no allegation pertaining to Section 70(2) of the BNS is made out, however in the second statement of the mother of the victim specific allegation of dragging the victim to the fields where she was subjected to rape by the co-accused has been made. Thus she states was later told by the victim to her. 10. The contention of the learned counsel for the applicant that the subsequent improvement in the second statement of the mother of the victim is only for the purposes of enhancing the gravity of the offence after the applicant had obtained bail in the other offences alleged against him, cannot be looked into when considering the maintainability of this application for anticipatory bail. The merits of the allegations are not to be taken note of as the provision for anticipatory bail itself is not to be applied in cases where there is an accusation against the applicant of having committed an offence under Section 65 and Section 70(2) of the BNS. In the opinion of this Court, without commenting on the merits of the allegations as such, offence under Section 70(2) of the BNS is made out against the applicant. 11. With respect to the second contention raised by Sri Rai regarding Section 65 and Section 70(2) both being applicable to a case and only then an application for anticipatory bail would not be maintainable, in the opinion of this Court, is also misconceived. Literal interpretation of words in a statute sometimes lead to conclusions which may not be in consonance with the intention of the legislature. The courts must determine the intent of the legislature in enacting the provision and in the present case it was to bar the applicability of Section 482 BNSS in certain cases. Section 482(4) of BNSS reads as under:- " Section 482. Direction for grant of bail to person apprehending arrest. (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 the Bharatiya Nyaya Sanhita, 2023." 12. The literal interpretation as is being sought to be canvassed by learned counsel for the applicant would indicate that both Section 65 and Section 70(2) of the BNS are to be necessarily made out in a case for the bar to apply and it is only in those cases that application for anticipatory bail would not be maintainable. 13. Section 65 of the BNS reads as under:- "65. (1) Whoever, commits rape on a woman under sixteen years of age shall be Punishment punished with rigorous imprisonment for a term which shall not be less than twenty years, for rape in certain cases but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and shall also be liable to fine: Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim: Provided further that any fine imposed under this sub-section shall be paid to the victim. (2) Whoever, commits rape on a woman under twelve years of age shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and with fine or with death: Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim: Provided further that any fine imposed under this sub-section shall be paid to the victim." 14. Section 70(2) reads as under:- "(2) Where a woman under eighteen years of age is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished with imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and with fine, or with death: Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim: Provided further that any fine imposed under this sub-section shall be paid to the victim." 15. Perusal of Section 65 and Section 70(2) of the BNS, in the opinion of the court, leave no room for doubt that they are distinct offences. Section 65 deals with one person who commits rape upon a woman under 16 years of age or 12 years of age and the punishment provided therefor. Section 70(2) deals with one or more persons acting as a group and committing rape upon a woman under 18 years of age and every person who acts in furtherance of the common intention of the group would be deemed to have committed the offence of rape. Thus, a perusal of the provisions clearly indicate that for a person who is said to have individually committed an act under Section 65, no charge under Section 70(2) could be brought against him. There is also similarly no likelihood of a group of persons committing an offence under Section 70(2) of the BNS to be charged under Section 65, as gang rape is a distinct offence to rape on a minor under 16 years or under 12 years of age committed by an individual. There is also similarly no likelihood of a group of persons committing an offence under Section 70(2) of the BNS to be charged under Section 65, as gang rape is a distinct offence to rape on a minor under 16 years or under 12 years of age committed by an individual. The applicability of both the provisions with respect to the age of the victim i.e. less than 18 years in Section 70(2) and less than 16 years and 12 years in Section 65 also makes it highly unlikely for a person to be charged with both the offences. 16. The Gauhati High Court while considering a similar controversy in the case of Nazir Hussain and Others vs. State of Assam Rep by the PP, Assam reported in 2025 SCC OnLine Gau 2971, has very concisely and appropriately discussed the differences between Section 65 and Section70(2) of the BNS and opined as under:- " 24. The Apex Court in the case of “Spentex Industries Limited v.Commissioner of Central excise”(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 to manifest 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. 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 Section65 or sub-Section (2) of Section 70 of BNS, 2023." 17. The statute which provides for grant of anticipatory bail can also restrict the operation of such exercise by the courts for a particular class of offences. The Supreme Court in the case of State of M.P. vs. Ram Kishna Balothia; (1995) 3 SCC 221 while examining the contention with respect to bar to applicability of Section 438 Cr.P.C. under Section 18 of the SC & ST Act violating Article 21 of the Constitution held as under:- "7. We have next to examine whether Section 18 of the said Act violates, in any manner, Article 21 of the Constitution which protects the life and personal liberty of every person in this country. Article 21 enshrines the right to live with human dignity, a precious right to which every human- being is entitled; those who have been, for centuries, denied this right, more so. We find it difficult to accept the contention that Section 438 of the Code of Criminal Procedure is an integral part of Article 21. In the first place, there was no provision similar to Section 438 in the old Code of Criminal Procedure. The Law Commission in its 41st Report recommended introduction of a provision for grant of anticipatory bail. It observed: "We agree that this would be a useful advantage. Though we must add that it is in very exceptional cases that such power should be exercised." In the light of this recommendation, Section 438 was incorporated, for the first time, in the Code of Criminal Procedure of 1973. Looking to the cautious recommendation of the Law Commission, the power to grant anticipatory bail is conferred only on a Court of Session or the High Court. Looking to the cautious recommendation of the Law Commission, the power to grant anticipatory bail is conferred only on a Court of Session or the High Court. Also, anticipatory bail cannot be granted as a matter of right. It is essentially a statutory right conferred long after the coming into force of the Constitution. It cannot be considered as an essential ingredient of Article 21 of the Constitution. And its non-application to a certain special category of offences cannot be considered as violative of Article 21." 18. Thus, once the statute has granted the right to seek anticipatory bail such right can be restricted and also taken away for a particular offence or particular class of offences and in the present case, Section 65 and Section 70(2) of the BNS. The intent of the legislature of course was to deny the benefit of anticipatory bail to persons accused of offences under Section 65 or Section 70(2) of the BNS. Accepting the contention of learned counsel for the applicant would render the bar granted under Section482(4) of the BNSS otiose. 19. This Court is in agreement with the determination on the point by the High Court of Gauhati and for the reasons as discussed above, the word "and" as mentioned in Section 482(4) of BNSS appearing between "Section 65 and sub-section (2) of Section 70" has to be read as "or". 20. As held above, as offence under Section 70(2) of the BNS is made out, this application is not maintainable in view of the bar under Section482(4) of the BNS. This application is therefore, dismissed. 21. It is made clear that the observations made hereinabove are only restricted to the disposal of this anticipatory bail and shall not be construed to be an opinion on the merits of the case. The applicant may appear and apply for regular bail, which shall be considered and disposed of on its own merits without being influenced by the observations made in this order.