Section 482(4) BNSS Bar On Pre-Arrest Bail Is Not Absolute; Court Can Examine If Prima Facie Ingredients Are Disclosed: Bombay High Court
The Bombay High Court had held that the bar on anticipatory bail under Section 482(4) of the Bharatiya Nagarik Suraksha Sanhita (BNSS) in cases involving offences under Sections 65 or 70(2) of the Bharatiya Nyaya Sanhita (BNS) is not absolute. The Court observed that the application can be examined to determine whether the ingredients of the alleged offence are prima facie made out; if they are, the statutory bar operates and the application is not maintainable.
Justice M. M. Nerlikar was hearing two applications seeking anticipatory bail in separate crimes, where the issue of maintainability arose in view of Section 482(4) BNSS. In the first case, the applicant was accused under Sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012 and Sections 64(2)(i), 64(2)(m) and 65(1) BNS. The 15-year-old victim alleged that the applicant had sexually assaulted her on multiple occasions. She was subsequently found to be two months pregnant.
In the second case, the applicant was accused under Section 137(2) BNS. The 14-year-old victim initially stated that no sexual assault had been committed and that she had gone with the applicant on her own, but subsequently alleged that he had sexually assaulted her after threatening to make her obscene photographs and videos viral.
The applicants argued that the bar under Section 482(4) BNSS was not absolute and that the Court could examine whether the ingredients attracting the statutory bar were prima facie made out.
The Court noted that Section 482(4) provides that Section 482 shall not apply to a case involving the arrest of a person accused of an offence under Section 65 or Section 70(2) BNS. The question, therefore, was whether the provision created an absolute bar or whether the Court could examine whether the ingredients of the alleged offence were prima facie disclosed.
“… when considering anticipatory bail under Section 482, the Court must first examine whether the ingredients of Sections 65 or 70(2) are made out. If they are satisfied, the application for anticipatory bail is barred and cannot be entertained. If they are not satisfied, the application remains maintainable, and bail may be granted,” the Court observed.
Hence, the Court held that Section 482(4) does not impose an absolute bar. It only applies when prima facie allegations under Section 65 or Section 70(2) exist. The Court highlighted that the Court cannot indulge in critical analysis of material on record, as it would frustrate the very purpose of the provision.
“… a very small window is open for the accused persons to claim anticipatory bail under Section 482 of BNSS… The words “accusation of having committed” appearing in Section 482[4] of BNSS has significance to mean that if the victim claims that someone is guilty of doing something wrong, her claim will have to be accepted as prima facie satisfaction of facts,” the Court remarked.
Hence, the Court observed that the application for anticipatory bail can be entertained only to the extent to see its maintainability based on prima facie case to the extent of satisfaction of ingredients of Section 65 or Section 70[2] of the BNS.
Applying this test, the Court found that in both applications Section 65(1) was invoked and that its relevant ingredients, rape having been committed and the woman being below 16 years of age, were prima facie satisfied. In the first case, the victim was 15 years and 5 months old and had alleged rape resulting in pregnancy; in the second, the victim was 14 years and 4 months old and had alleged rape under threat of making her obscene photographs and videos viral.
Accordingly, the Court held that both applications were not maintainable and rejected the criminal applications.
Case Title: Kasif Sahabuddin Khan v. State of Maharashtra [Criminal Application (ABA) No. 794 of 2026] & Ajay Ganesh Ade v. State of Maharashtra & Anr. [Criminal Application (ABA) No. 771 of 2026]