Bombay HC Clarifies BNSS Anticipatory Bail Restrictions

The Nagpur bench of the Bombay High Court has recently clarified that the statutory prohibition on anticipatory bail under Section 482(4) of the Bharatiya Nagarik Suraksha Sanhita (BNSS) is not absolute. This ruling allows courts to assess whether the allegations presented meet the necessary criteria for the specified offences before determining the maintainability of a pre-arrest bail application. In this context, the court dismissed anticipatory bail requests from two individuals accused in separate cases involving minor girls.

Justice MM Nerlikar, presiding over the cases, stated that the court's review should be confined to whether the statutory requirements are prima facie established. He noted, "If they are, the bar operates; if they are not, the application remains maintainable." The judge cautioned against a comprehensive evaluation of the evidence or the broader arguments typically presented in support of anticipatory bail, emphasizing the need for a focused inquiry.

The ruling stemmed from applications filed by two men from Gadchiroli and Akola, who sought protection from arrest in cases invoking Section 65(1) of the Bharatiya Nyaya Sanhita (BNS), which pertains to the rape of a woman under the age of 16. The petitioners contended that Section 482(4) should not be interpreted as an absolute ban and referenced Supreme Court decisions that have interpreted similar restrictions in other laws. They argued that courts must first ascertain whether a prima facie case exists that would invoke the statutory bar.

Opposing the pleas, the prosecution and legal representatives for the alleged survivors argued that the provision was designed to offer stringent protection in cases of specified sexual offences against minors. They maintained that courts should not undermine the legislative intent by considering broader arguments such as claims of false implication or inconsistencies in testimonies once the statutory elements are established.

In both cases, the allegations were serious, with the Gadchiroli case involving a 15-year-old survivor who reported multiple sexual assaults leading to her pregnancy, while the Akola case involved a 14-year-old who alleged threats of disseminating explicit images if she disclosed the abuse. The High Court found that the allegations in both instances fell under Section 65(1) of the BNS, thus confirming the applicability of the bar under BNSS Section 482(4) and rejecting the anticipatory bail applications.