S.482(4) BNSS | 'And' Must Be Read As 'Or'; No Anticipatory Bail If Person Is Accused Of S.65 Or S.70 BNS : Gauhati High Court

The Gauhati High Court recently held that the embargo under Section 482(4) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, on granting anticipatory bail will apply to offences either under Section 65 or Section 70(2) of the Bharatiya Nyaya Sanhita (BNS), 2023.The Court held that the word "and" appearing in Section 482(4) must be read as "or" to give effect to the intention of the legislature.Section 65 of the BNS deals with the offence of rape of a woman aged below 16 years of age. Section 70(2) deals with the offence of gangrape of a woman aged under the age of 18 years of age.The Court noted that it was unlikely that a person would be accused of both these offences. Hence, to hold that the embargo will apply only if a person is accused of both Section 65 and Section 70(2) would be absurd. The single judge bench of Justice Mridul Kumar Kalita observed: “……..this Court is of considered opinion that the word “and” appearing between the words “under Section 65” and “sub-Section (2) of Section 70” in Section 482(4) of BNSS shall have to be read as “or” to give effect to the manifest intention of the legislature.”Reliance was placed on the Supreme Court judgment in Spentex Industries Limited vs. Commissioner of Central Excise (2016) which held that "and" can be read as "or" in certain circumstances to give effect to the intention of the legislature. The Court was hearing an application under Section 482 of BNSS filed by four accused-petitioners apprehending their arrest in connection with a case under Sections 61(2), 137(2), 303(2), 65(1), 308(2) of the BNS. The brief of the accusation was that on November 26, 2024, the accused persons named in the FIR (present petitioners) had kidnapped the minor daughter of the informant. However, the Police on filing of an FIR recovered the daughter of the informant and handed over her custody to the informant. It was alleged that on January 9, 2025, the accused No. 1 again kidnapped the daughter of the informant with the help of other accused persons. It was also alleged in the FIR that the petitioner No. 1 also took an amount of Rs.1,50,000/- from the Almirah. It was further alleged that the petitioner No. 1 had committed sexual intercourse with the daughter of the informant on pretext of marrying her. The date of birth of the victim girl is stated to be on November 07, 2010 in the FIR. The Counsel appearing for the petitioner submitted that that the victim girl was major on the date of alleged incident and she left with the petitioner No. 1 out of her own will. It was also submitted that in the meanwhile, petitioner Nos. 2, 3 and 4 were granted interim bail by the High Court by order dated April 10, 2025 and in pursuant to the directions of the Court, they have co-operated in the investigation. On the other hand, the Additional Public Prosecutor has raised the plea of maintainability of the anticipatory bail application on the ground that the same is barred by Section 482(4) of BNSS, 2023. However, the petitioner's Counsel argued that on the plain reading of the Section 482(4) of BNSS, it appears that an anticipatory bail application is not maintainable in case of a person who is accused of “an offence under Section 65 and sub-Section (2) of Section 70” of BNS, 2023. It was submitted that legislature has deliberately used the conjunction “and” in Section 482(4) in place of the disjunction “or” in the said provision, hence, unless a person is accused of both the offences under Section 65 and Section 70(2) of BNS 2023, the bar of Section 482(4) will not be applicable. It was therefore, submitted that as in the present case, only offence under Section 65(1) is involved without any accusation under Section 70(2), the bar under Section 482(4) is not applicable. The Amicus Curiae submitted that Section 482 of BNSS are in pari materia with Section 438 of CrPC except for the use of conjunction “and” in the Section 482(4) BNSS instead of disjunction “or” used in Section 438(4) of the CrPC. It was submitted that the categories of the offences in respect of which the bar was provided under Section 438(4) of the CrPC remains same even in Section 482(4) of BNSS, 2023. Hence, it was argued that if literal meaning is given to the conjunction “and” in Section 482(4) of BNSS it would mean that only if a person has committed both the offences under Section 65 and Section 70(2) of BNS, he may not be entitled to anticipatory bail. He further submitted that this interpretation would give rise to unnecessary mischief in as much as the offence under Section 70(2) of BNS includes within its ambit, the erstwhile offences under Section 376 DA and 376 DB of the IPC. Whereas Section 65 of BNS covers both the offence under Section 376(3) and Section 376 AB of the IPC. The Court noted: “We have seen that the provision contained in Section 482 of BNSS, 2023 is peri material with Section 438 of Cr.P.C. There is nothing in the statement of objects and reasons of enacting BNSS, ...

S.482(4) BNSS | 'And' Must Be Read As 'Or'; No Anticipatory Bail If Person Is Accused Of S.65 Or S.70 BNS : Gauhati High Court

Udit Singh

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