The enactment of the BNSS allows for anticipatory bail applications to be considered retrospectively, removing restrictions previously imposed by Section 438(6) CrPC, thereby enabling relief for the accused based on changed circumstances.

JUDGMENT :

Chandra Dhari Singh, J.

FACTUAL MATRIX

Occurrence of the Offence and FIR Lodging

1. On 13.08.2011, at approximately 08:15 AM, an incident occurred in Village Girdharpur, Police Station Devrania, District Bareilly, Uttar Pradesh, leading to the lodging of FIR No. 647/2011 under Sections 302, 307, 323, and 504 the INDIAN PENAL CODE , 1860 (hereinafter “IPC”). The FIR was lodged by the informant, Firoz, alleging that the accused persons, including Abdul Hameed (applicant herein), along with one Javed Anwar, Anwar Jameer, and Babu, armed with licensed pistols, attacked the informant and his family members. The FIR alleged that the accused fired indiscriminately, resulting in the death of Guddu @ Zakir Husain, the informant’s uncle, who succumbed to a gunshot injury. The motive was attributed to prior animosity arising from Zila Panchayat elections and contractual disputes. The deceased was declared dead at Shri Ram Murti Hospital, and the postmortem conducted on 13.08.2011 revealed a single bullet injury with entry and exit wounds.

Investigation and Charge Sheet

2. The investigation was conducted by the police, and the charge sheet was filed on 07.11.2011 under Sections 302, 307, 323, and 504 of the IPC against three accused persons (Javed Anwar, Anwar Jameer, and Babu). Notably, the applicant, Abdul Hameed, was not charge-sheeted as the investigating officer found the allegations against him to be false. During further investigation, villagers submitted affidavits stating that the applicant was not present at the scene, and their statements were recorded under Section 161 of the Code of Criminal Procedure, 1973 (hereinafter “CrPC”), corroborating his absence.

Trial Proceedings and Summoning Under Section 319 of the CrPC.

3. The trial commenced, and the informant was examined as PW-1. During his cross-examination, he allegedly introduced a new version of events, alleging that the accused fired from a rooftop, contradicting the FIR and his earlier statements. Based on this testimony, an application was filed under Section 319 of the CrPC. to summon the applicant as an additional accused. Accordingly, the learned ASJ, Court No. 3, Bareilly, allowed the application on 22.05.2019, summoning the applicant to face trial.

Litigation History

4. Application under Section 482 of the CrPC bearing No.23900/2019 was filed whereby the applicant challenged the summoning order dated 22.05.2019 before the Coordinate Bench of this Court. On 28.06.2019, the Coordinate Bench disposed of the said application, directing the applicant to file a discharge application before the trial court and granted interim protection from coercive measures until its disposal.

5. Thereafter, it appears from the record that the applicant filed a discharge application, which was rejected by the learned Trial Court on 12.05.2022. This rejection was challenged before a Coordinate Bench of this Court in Applicatio