Word 'and' in BNSS Section 482(4) read as 'or' to bar anticipatory bail for offences under BNS Section 65 or 70(2), as literal interpretation renders provision otiose given distinct nature of individual minor rape and gang rape offences.

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. 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 tha