The Bombay High Court, Nagpur Bench has held that the bar under Section 482(4) of the Bharatiya Nagarik Suraksha Sanhita (BNSS) on anticipatory bail is not absolute, holding that the Court can examine whether the ingredients of Section 65 or Section 70(2) of the Bharatiya Nyaya Sanhita (BNS) are prima facie made out. If the statutory ingredients are satisfied, the application for anticipatory bail would not be maintainable; if they are not satisfied, the application can be entertained.
Justice M.M. Nerlikar was dealing with two anticipatory bail applications arising from separate criminal cases. The Court noted that Section 482(4) BNSS specifically excludes cases involving accusations under Section 65 and Section 70(2) BNS from the general provision for anticipatory bail. At the same time, relying on the principles laid down by the Supreme Court while considering similar statutory bars, the Court held that the existence of a prima facie case attracting the statutory bar must first be examined.
The Court clarified that this examination is confined to maintainability and does not permit detailed appreciation of evidence or consideration of the various grounds ordinarily available in an anticipatory bail application. It observed that only a ‘very small window’ is available to an accused to seek anticipatory bail in such cases and cautioned that expanding the scope of inquiry would defeat the legislative intent behind Section 482(4).
In the first case, the applicant faced allegations under the POCSO Act and Section 65(1) BNS, with the victim stated to be 15 years and 5 months old. The allegations included repeated sexual assault, threats to the victim and her family, and the victim was subsequently found to be pregnant. The applicant sought to rely on the fact that the victim had initially implicated another person, but the Court found that her subsequent statement prima facie attributed the offence to the applicant.
In the second case, the victim was 14 years and 4 months old. The applicant relied on an earlier statement indicating that she had been with him voluntarily, while her subsequent statement alleged sexual assault and threats to circulate obscene photographs and videos. The Court noted the variation between the statements but found that the subsequent allegations prima facie disclosed the ingredients of the offence.
Since Section 65(1) BNS requires, for the purpose of the statutory bar, that rape be committed against a woman below 16 years of age, and the Court found these ingredients prima facie satisfied in both matters, it held that the applications were not maintainable. The bar under Section 482(4) BNSS consequently operated, and both anticipatory bail applications were rejected.
