Court Rules Statutory Bar Under Section 482(4) of Bharatiya Nagarik Suraksha Sanhita Not Absolute but Strictly Applies When Prima Facie Case is Made Out in Cases Involving Victims Below 16 Years
In a significant ruling delivered on October 6, 2026, the Bombay High Court (Nagpur Bench), presided over by Justice M.M. Nerlikar, clarified the scope and application of the statutory bar on anticipatory bail under Section 482(4) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023. The judgment arose from two separate criminal applications filed by accused persons seeking anticipatory bail in cases involving serious sexual offences against minors.
The two accused, Kasif Sahabuddin Khan and Ajay Ganesh Ade, faced allegations under Sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO), and Sections 64 and 65 of the Bharatiya Nyaya Sanhita (BNS), 2023. Both cases involved female victims under the age of 16, with allegations of repeated rape leading to pregnancy in one case, and sexual assault under threat in the other.
The crux of the legal debate centered on the interpretation of Section 482(4) of BNSS, which excludes the applicability of anticipatory bail provisions to accused persons charged under Sections 65 or 70(2) of BNS - provisions that deal with aggravated rape offences involving minors and gang rape respectively. The applicants contended that this bar should not be absolute and that courts should retain limited jurisdiction to examine whether a prima facie case is made out before rejecting anticipatory bail. They relied on precedents from other statutes with similar provisions, such as the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, and decisions by various High Courts and the Supreme Court that allow some judicial scrutiny.
The State and the victim's counsel, however, argued for a strict and literal interpretation, emphasizing the legislative intent behind these provisions as a response to heinous crimes against minors. They submitted that the statutory bar aims to ensure immediate arrest and speedy trial without dilution through anticipatory bail, to protect vulnerable victims from further trauma.
Justice Nerlikar, after detailed examination of legislative intent, statutory language, and relevant judicial precedents, held that the language of Section 482(4) of BNSS is clear and unambiguous. The Court cannot rewrite or dilute the statute under the guise of interpretation. The bar on anticipatory bail applies when a prima facie case under Sections 65 or 70(2) of BNS is established, i.e., when the basic ingredients of these offences are met on the face of the record. The Court's role is thus limited to a threshold inquiry into whether the allegations disclose a prima facie offence under these sections.
Applying this principle to the facts of both cases, the Court found that in the first case, the victim aged 15 years and 5 months had alleged repeated rape by the applicant resulting in pregnancy. Her statement under Section 183 of BNSS supported the prosecution case. In the second case, the victim was aged 14 years and 4 months and alleged sexual assault under threats to release obscene videos. Despite an initial exculpatory statement, her subsequent detailed account disclosed serious allegations satisfying the prima facie case requirement.
Accordingly, the Court held that the applications for anticipatory bail were barred under Section 482(4) of BNSS and rejected both applications. The judgment reinforced the legislative intent to provide stringent safeguards for victims below 16 years of age and ensure that accused persons in such cases are not granted anticipatory bail lightly.
This ruling clarifies that while the statutory bar on anticipatory bail is not an absolute prohibition in all circumstances, it applies firmly where prima facie ingredients of aggravated sexual offences involving minors are satisfied, restricting judicial interference except for a limited threshold inquiry.
Bottom Line:
Bharatiya Nagarik Suraksha Sanhita, 2023 Section 482 - Anticipatory bail - Bar against pre-arrest bail in cases involving accusation under Sections 65 or 70(2) of Bharatiya Nyaya Sanhita, 2023 is not absolute - Court can examine only limited issue whether prima facie ingredients of said offences are made out - If prima facie case exists, application is not maintainable - In present cases, victims being below 16 years and specific allegations of rape having been made, bar under Section 482(4) held applicable and anticipatory bail applications rejected.
Statutory provision(s):
Bharatiya Nagarik Suraksha Sanhita, 2023 Section 482(4), Bharatiya Nyaya Sanhita, 2023 Sections 65, 70(2), Protection of Children from Sexual Offences Act, 2012 Sections 4, 6
Kasif Sahabuddin Khan v. State of Maharashtra, (Bombay)(Nagpur Bench) : Law Finder Doc Id # 2994083
