Anticipatory bail applications are maintainable under BNSS, 2023, emphasizing protection of rights against arbitrary arrest based on mere allegations.

JUDGMENT :

Manish Mathur, J.

1. Heard Mr. Nadeem Murtaza and Mr. Anjani Kumar Mishra, learned counsel for applicants and Mr. Ranvijay Singh, learned Additional Government Advocate appearing on behalf of opposite party no.1.

2. First Anticipatory Bail Application has been filed with regard to Case Crime no.632 of 2023, under Section 3 (1) of U.P. Gangsters and Anti Social Activities (Prevention) Act, 1986, P.S. Kotwali Nagar, District Barabanki.

3. Mr. Ranvijay Singh, learned AGA, at the very outset, has raised a preliminary objection regarding maintainability of this anticipatory bail application. He submits that the FIR in question has been registered in the year 2023 with a single case having been shown as Case Crime No. 102 of 2021 against the applicants under Sections 419 , 420, 467, 468, 471, 379, 504, 506 IPC in District Barabanki. He further submits that charge sheet in the said case had been filed on 11.2.2024 with summoning order being issued on 25.4.2024 and the first bailable warrant was issued on 30.5.2024 whereas second bailable warrant was issued on 2.7.2024. He has adverted to The Code of Criminal Procedure (U.P. Amendment) Bill, 2022, particularly Section 2 thereof to submit that under the aforesaid provision, an anticipatory bail application is not maintainable with regard to U.P. Gangsters and Anti Social Activities (Prevention) Act, 1986. It is, therefore, submitted that since at the time of filing of charge sheet, taking cognizance by the Trial Court and issuance of bailable warrant, the Bharatiya Nagarik Suraksha Sanhita ( BNSS 2023) had not come into force, with the same coming into force from 1.7.2024, the case of applicants would be governed by the said notification whereby the present anticipatory bail application is not maintainable.

4. Mr. Nadeem Murtaza, learned counsel for applicants has refuted submissions advanced by learned AGA with the submission that under the BNSS , 2023, provision for anticipatory bail has been clearly indicated under Section 482 Cr.P.C. and would apply when any person has reason to believe that he may be arrested for an accusation of having committed a non bailable offence. It is, therefore, submitted that the date of filing of charge sheet and issuance of summoning order by the Trial Court would be irrelevant, since it is only the apprehension of arrest which would be relevant. Moreover, since apprehension of arrest in the present case also pertains to the second bailable warrant, which was issued on 2.7.2024, i.e., after the enactment of BNSS , 2023, the present anticipatory bail application is maintainable.

5. Learned counsel for applicants has placed reliance upon a Division Bench Judgement of this Court in the case of Deepu and others Vs. State of U.P. and others (Criminal Misc. Writ Petition No. 12287 of 2024)

6. Upon consideration of submissions advanced by learned counsel for parties and perusal of material on record, it is discernible that at the time of filing of charge sheet, issuance of summoning order and issuance of first bailable warrant, the provisions of BNSS , 2023 had not come into application and the applicants case, at that time was to be governed by the Code of Criminal Procedure (U.P. Amendment) Bill, 2022 whereby the anticipatory bail applications were specifically barred with regard to provisions of Gangster Act.

7. However, it is also evident that subsequent to implementation of BNSS , 2023 on 1.7.2024, a second bailable warrant was issued on 2.7.2024.

8. It is admitted by learned AGA that no fresh prohibition a