Key Changes in Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023 {Part 1}

 A. Leniency and First-Time Offender Provisions

1. Enhanced Plea Bargaining Benefits

BNSS Section 293 reduces punishment for first-time offenders to 1/4th and 1/6th of minimum punishment (previously 1/2 and 1/4th under CrPC Section 265E). This shows the law's humanitarian approach toward first-time offenders.

2. Mandatory Bail for First-Time Undertrials

BNSS Section 479 allows first-time offenders to get mandatory bail after serving 1/3rd of punishment (previously 1/2 under CrPC Section 436A). Jail superintendents now have a duty to apply for release of eligible prisoners.

B. Gender Equality and Inclusive Language

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Supreme Court: Procedure the High court or Session Court must follow while entertaining Anticipatory bail application

We may remind the High Court of what this Court observed

in the case of Srikant Upadhyay & Ors. v. State of Bihar &

Anr., reported in 2024 INSC 202. We quote the relevant

observations as under:

“… A bare perusal of Section 438(1), Cr.PC, would

reveal that taking into consideration the factors

enumerated thereunder the Court may either reject

the application forthwith or issue an interim order

for the grant of anticipatory bail. The proviso

thereunder would reveal that if the High Court or,

the Court of Sessions, as the case may be, did not

pass an interim order under this Section or has

rejected the application for grant of anticipatory

bail, it shall be open to an officer in-charge of a

police station to arrest the person concerned

without warrant, on the basis of the accusation

apprehended in such application. In view of the

proviso under Section 438(1), Cr.PC, it cannot be

contended that if, at the stage of taking up the

matter for consideration, the Court is not rejecting

the application, it is bound to pass an interim

order for the grant of anticipatory bail. In short,

nothing prevents the court from adjourning such an

application without passing an interim order. This

question was considered in detail by a Single Bench

of the High Court of Bombay, in the decision in

Shrenik Jayantilal Jain and Anr. v. State of

Maharashtra through EOW Unit II, Mumbai 2014 SCC

Online Bom 549 and answered as above and we are in

agreement with the view that in such cases, there

will be no statutory inhibition for arrest. Hence,

the appellants cannot be heard to contend that the

application for anticipatory bail filed in November,

2022 could not have been adjourned without passing

interim order.…

We have already held that the power to grant

anticipatory bail is an extraordinary power. Though

in many cases it was held that bail is said to be a

rule, it cannot, by any stretch of imagination, be

said that anticipatory bail is the rule. It cannot

be the rule and the question of its grant should be

left to the cautious and judicious discretion by the

Court depending on the facts and circumstances of

each case. While called upon to exercise the said

power, the Court concerned has to be very cautious

as the grant of interim protection or protection to

the accused in serious cases may lead to miscarriage

of justice and may hamper the investigation to a

great extent as it may sometimes lead to tampering

or distraction of the evidence. We shall not be

understood to have held that the Court shall not

pass an interim protection pending consideration of

such application as the Section is destined to

safeguard the freedom of an individual against

unwarranted arrest and we say that such orders shall

be passed in eminently fit cases. At any rate, when

warrant of arrest or proclamation is issued, the

applicant is not entitled to invoke the

extraordinary power. Certainly, this will not

deprive the power of the Court to grant pre-arrest

bail in extreme, exceptional cases in the interest

of justice. …”{Para 16}

 IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No.5456 OF 2024

DEEPAK AGGARWAL  Vs  BALWAN SINGH & ANR.

Dated: 18th December, 2024.

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Supreme Court: Filing Of Anticipatory Bail Application Through Advocate Can't Be Considered As Appearance Of Absconding Accused

Bearing in mind the aforesaid provisions and position, we will refer to certain relevant decisions. In Savitaben Govindbhai Patel and Ors. v. State of Gujarat   MANU/GJ/0220/2004, the High Court of Gujarat observed thus:

9. Filing of an Anticipatory Bail Application by the Petitioners-Accused through their advocate cannot be said to be an appearance of the Petitioners-Accused in a competent Court, so far as proceeding initiated Under Section 82/83 of the Code is concerned; otherwise each absconding Accused would try to create shelter by filing an Anticipatory Bail Application to avoid obligation to appear before the court and raises the proceeding Under Section 83 of the Code claiming that he cannot be termed as an absconder in the eye of law. Physical appearance before the Court is most important, if relevant scheme of Sections 82 and 83, is read closely. {Para 19}

(underline supplied)

20. We are in full agreement with the view taken by the Gujarat High Court that filing of an anticipatory bail through an advocate would not and could not be treated as appearance before a court by a person against whom such proceedings, as mentioned above are instituted. 

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1552 of 2024.

Decided On: 14.03.2024

Srikant Upadhyay and Ors. Vs. State of Bihar and Ors.

Hon'ble Judges/Coram:

C.T. Ravikumar and P.V. Sanjay Kumar, JJ.

Author: C.T. Ravikumar, J.

Citation:  MANU/SC/0198/2024.

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Whether Absconder/ Proclaimed Offender are Entitled To get Anticipatory Bail?

 In this regard it is relevant to rely upon the judgment passed by

Supreme Court in Prem Shankar Prasad vs. State of Bihar and another, AIR 2021 SC 5125 where in similar facts since proceedings under Sections 82 and 83 Cr.P.C. were initiated, the Supreme Court has relied on the judgment passed in State of Madhya Pradesh v. Pradeep Sharma, (2014) 2 SCC 171 and reiterated that if anyone has been declared as absconder/ proclaimed offender under Section 82 Cr.P.C., he is not entitled for relief of anticipatory bail. The relevant paragraphs of the judgement in Prem Shankar Prasad (supra) are reproduced as under:

“7.2. Despite the above observations on merits and despite the fact that it was brought to the notice of the High Court that Respondent No. 2-Accused is absconding and even the proceedings Under Sections 82-83 of Code of Criminal Procedure have been initiated as far as back on 10.01.2019, the High Court has just ignored the aforesaid relevant aspects and has granted anticipatory bail to Respondent No. 2-Accused by observing that the nature of accusation is arising out of a business transaction. The specific allegations of cheating, etc., which came to be considered by learned Additional Sessions Judge has not at all been considered by the High Court. Even

the High Court has just ignored the factum of initiation of proceedings Under Sections 82-83 of Code of Criminal Procedure by simply observing that "be that as it may". The aforesaid relevant aspect on grant of anticipatory bail ought not to have been ignored by the High Court and ought to have been considered by the High Court very seriously and not casually.

12. In view of above discussion the applicant is not entitled for

anticipatory bail on the ground that applicant was not only declared proclaimed offender under Section 82 Cr.P.C. but proclamation of attachment of property was also issued under Section 83 Cr.P.C. and, therefore, as held in Prem Shankar Prasad (supra) applicant is not entitled for anticipatory bail.

ALLAHBAD HIGH COURT

Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438

CR.P.C. No. - 20357 of 2021

Applicant :- Yogendra Kumar Mishra

Opposite Party :- State of U.P. and Another

Delivered on 06.04.2022

Bench: Hon'ble Saurabh Shyam Shamshery,J.

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Under which circumstances the court can lift attachment from immovable property of proclaimed offender prosecuted for the dishonour of cheque after passing of two years?

The scope of Section 83 Cr.P.C is to attach the property of a person who is absconding or concealing himself defying warrant against him. Once proclamation is issued against such person, his property can be attached as per Section 82 Cr.P.C. Under Section 85 (1) Cr.P.C., the proclaimed person shall appear within the time specified in the proclamation order and on his appearance, the Court shall make an order to release the property from attachment. Under Section 85 (2), if the proclaimed person does not appear, within the time specified in the proclamation, the property under the attachment shall be at the disposal of the State Government; but it shall not be sold until the expiration of six months from the date of the attachment or until any claim preferred or objection made under Section 84 Cr.P.C. Sub-clause (3) of Section 85 Cr.P.C., which is relevant for the present case is that if within two years from the date of attachment, any person whose property is or has been at the disposal of the State Government, under sub-section (2), appears voluntarily or is apprehended and brought before the Court by whose order the property was attached, proves to the satisfaction of such Court that he did not abscond or conceal himself for the purpose of avoiding execution of the warrant, and that he had no such notice of the proclamation as to enable him to attend within the time specified therein, such property shall be delivered to him or if it had been sold after satisfying all the cost incurred in consequence of the attachment his residue shall be returned.

 From the petition filed before the Court below, this Court could not find particulars about the date of proclamation, attachment and subsequent arrest. To some extent, the order of the trial Court is correct that de hors of the outcome of the criminal proceedings, proclamation for absconding or concealing is an independent cause of action. At the same time, if reasonable cause shown the attachment made consequent to the proclamation can be raised. The two years period referred for lifting the attachment cannot be read literally to say the belated application are not maintainable, even if there is a justifiable cause for not appearing before the Court or for not seeking relief of raising the attachment after two years. If the petitioner makes out a justifiable cause for filing the present application after 12 years of attachment and able to convince the trial Court that he has not absconded himself wantonly, then, the Court has every right to consider the application and lift the attachment. Procedure is hand maid of justice. The endeavour of the Court should be to render justice by appropriate interpretation of statute.

IN THE HIGH COURT OF MADRAS

Crl. O.P. No. 18113 of 2017

Decided On: 01.09.2017

 K. Govindaraj  Vs.  Subbian and Ors.

Hon'ble Judges/Coram:

Dr. G. Jayachandran, J.

Citation: MANU/TN/2809/2017

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Madhya Pradesh HC: Accused can apply for Anticipatory bail even if the police has declared him proclaimed offender

Law laid down:

1- Anticipatory bail application is maintainable even after filing of

charge-sheet, till the person is arrested as per the mandate of

Apex Court in the cases of Gurbaksh Singh Sibbia etc. Vs.

The State of Punjab, AIR 1980 SC 1632, Sushila Aggarwal

and others Vs. State (NCT of Delhi) and another in SLP

(Criminal) Nos.7281-7282/2017 passed on 29-01-2020,

Bharat Chaudhary and another Vs. State of Bihar and

another, (2003) 8 SCC 77 and Ravindra Saxena Vs. State of

Rajasthan, (2010) 1 SCC 684.

2- So far as maintainability of anticipatory bail is concerned, it ismaintainable even the person is declared absconder under

Section 82 of Cr.P.C. but on merits case would be governed by

the judgment of Apex Court rendered in the case of Lavesh Vs.

State (NCT Of Delhi), (2012) 8 SCC 73.

3- Section 82/83 Cr.P.C. is transient provision subject to finality of

proceedings as provided under Sections, 84, 85 and 86 of

Cr.P.C.

 Therefore, in the considered opinion of this Court, even if the

police authority has declared award or prepared Farari

Panchnama even then anticipatory bail application is

maintainable, however, it is to be seen on merits that whether

that application deserves to be considered and allowed as per

the factors enumerated in Section 438 of Cr.P.C. itself and if any

of those factors are not satisfied then the Court certainly has

discretion to reject it. The said discretion has been given by

Constitutional Bench decision of Hon'ble Apex Court in the

case of Gurbaksh Singh Sibbia etc. (supra).

HIGH COURT OF MADHYA PRADESH

BENCH AT GWALIOR

:SINGLE BENCH:

 SHRI JUSTICE ANAND PATHAK

MISCELLANEOUS CRIMINAL CASE NO.5621/2020

Balveer Singh Bundela Vs. State of Madhya Pradesh

{Delivered on 12th day of May, 2020}

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Supreme Court: Court should not release absconding accused on Anticipatory bail

 From these materials and information, it is clear that the present appellant was not available for interrogation and investigation and declared as “absconder”. Normally, when the accused is “absconding” and declared as a “proclaimed offender”, there is no question of granting anticipatory bail. We reiterate that when a person against whom a warrant had been issued and is absconding or concealing himself in order to avoid execution of warrant and declared as a proclaimed offender in terms of Section 82 of the Code is not entitled the relief of anticipatory bail.
Reportable

Supreme Court of India

Lavesh vs State (Nct Of Delhi) on 31 August, 2012

Bench: P. Sathasivam, Ranjan Gogoi

Citation:(2012) 8 SCC 730

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