Avadhesh Narayan Mishra v. State Of U.P. Thru. Prin. Secy. Deptt. Home Lko. And Another

HON'BLE KARUNESH SINGH PAWAR, J. 1. Heard learned counsel for the applicant and learned A.G.A for the respondent State.

2. The present bail application has been filed seeking anticipatory bail in case crime No.0306/2018, under Sections 147, 148, 149, 302 I.P.C., P.S. Antoo, District Pratapgarh..

3. Briefly, the prosecution's story is that on 14.08.2018, at about 9:00 a.m., the applicant and his father namely Harischandra Singh, arrived at Chaukhar Pureanti on their motorcycles. As they approached Chaukhar Pureantı Primary School, Asad Ali alias Munna (the present applicant) and Bablu both sons of Amjad Ali, Mehroj son of Asad Ali, all are resident of Village-Kakraha, Police Station Antu, and Awadhesh Kumar Mishra son of Ram Dular Mishra, resident of Lohagpur, Police Station Antu, and one unknown person, who were traveling on two motorcycles, stopped the deceased and opened fire in which father of the complainant died from the gunshot. The complainant shouted and ran towards the village and accused persons while brandishing pistols fled towards Gadwara.

4. It is alleged that prior to the incident, Asad Ali had also shot the deceased with intention to kill him. While the proceedings for that case were going on, Asad Ali was pressurizing the deceased to reconcile. When the deceased refused, the aforementioned accused persons committed this crime. 2 ABAIL No. 1245 of 2025

5. At the outset, learned counsel for the State-respondents has opposed the bail application and submits that anticipatory bail application is not maintainable under Code of Criminal Procedure as the application is barred under Section 438 (6) of Cr.P.C. for the nature of the crime i.e. implication under Section 302 IPC. Since there is statutory bar of anticipatory bail in case of heinous offences, the application is liable to be rejected.

6. Per contra, learned counsel for the applicant opposing the aforesaid arguments has submitted that provisions of Bharatiya Nagarik Suraksha Sanhita would operate retrospectively in the present case and applicant would be entitled to the benefit of Bharatiya Nagarik Suraksha Sanhita where there is no statutory bar for moving an anticipatory bail application for offence under Section 302 IPC. Reliance has been placed by the applicant on the Division Bench judgment of this Court passed in Deepu vs. State of U.P. reported in [2024 SCC OnLine All 4289].

7. Perused the record.

8. In Deepu (supra), the court after analyzing the repeal and saving clause of Bharatiya Nagarik Suraksha Sanhita and other judicial precedent has concluded as under:- "16. On the basis of above analysis, this Court is also summarising the law regarding effect of repealing the IPC and Cr. P.C. by BNS and BNSS respectively and same is being mentioned as below: (i) If an FIR is registered on or after 1.7.2024 for the offence committed prior to 1.7.2024, then FIR would be registered under the provisions of IPC but the investigation will continue as per BNSS. (ii) In the pending investigation on 01.07.2024 (on the date of commencement of New Criminal Laws), investigation will continue as per the Cr. P.C. till the cognizance is taken on the police report and if any direction is made for further investigation by the competent Court then same will continue as per the Cr. P.C.; (iii) The cognizance on the pending investigation on or after 01.07.2024 would be taken as per the BNSS and all the 3 ABAIL No. 1245 of 2025 subsequent proceeding including enquiry, trial or appeal would be conducted as per the procedure of BNSS. (iv) Section 531(2)(a) of BNSS saved only pending investigation, trial, appeal, application and enquiry, therefore, if any trial, appeal, revision or application is commenced after 01.07.2024, the same will be proceeded as per the procedure of BNSS. (v) The pending trial on 01.07.2024, if concluded on or after 01.07.2024 then appeal or revision against the judgment passed in such a trial will be as per the BNSS. However, if any application is filed in appeal, which was pending on 01.07.2024 then the procedure of Cr. P.C. will apply. (vi) If the criminal proceeding or chargesheet is challenged before the High Court on or after 01.07.2024, where the investigation was conducted as per Cr. P.C. then same will be filed u/s 528 of BNSS not uw/5 482 Cr. P.C."

9. In this case F.I.R. was registered on 14.08.2018, trial initiated in the year 2022 and name of the applicant was dropped in the year 2018 however, he has later been summoned in this case under Section 319 Cr.P.C. on 23.05.2024. The present anticipatory bail application has been filed after the cut off date i.e. 01.07.2024 considering the guidelines laid down by the Division Bench of this Court in the case of Deepu (supra) and since in the present case the trial was pending on the cut off date i.e. 01.07.2024 and is still continuing thus, in view of the guidelines issued in Deepu (supra), fresh application filed by the applicant after the cut off date, the provisions of Bharatiya Nagarik Suraksha Sanhita shall apply and shall be treated to be application filed under Section 528 BNSS and not under Section 438 Cr.P.C. Similar view has been taken by the Co-ordinate Bench of this Court in the case of Abdul Hamid vs. State of U.P. reported in [2025 SCC OnLine All 4046] hence considering the law laid down in the Deepu (supra) and its application in Abdul Hamid (supra) the case of the present applicant is squarely covered by both the judgments and, therefore, the anticipatory bail application filed in this case is held maintainable.

10. Learned counsel for the applicant submits that applicant was named in the F.I.R. along with three other co-accused persons and 4 ABAIL No. 1245 of 2025 one unknown assailant who were assigned the role of indiscriminate firing and killing the deceased (Harishchandra Singh). Applicant was arrested and sent to jail on 17.08.2018. During investigation the Investigating Officer came to the conclusion that incident was carried out by a totally different set of persons and the location of the sons of the deceased namely Chandan Singh who is P.W.1 and Anuj Singh P.W.5 was not found at the place of incident. The incident was found to be committed by co-accused Ashraf, Imran Khan, Kaleem and Shebu (other than the named accused in the F.I.R.) thus, the police exonerated the applicant and other accused persons named in the F.I.R. Applicant was released under Section 169 Cr.P.C. and furnished his bonds before the learned magistrate. The trial has commenced and prosecution of the charge-sheeted persons continued.

11. He further submits that in the statement of P.W.1 and P.W.5 they again made allegation against the applicant, however, P.W.2, P.W.3 and P.W.4 have testified in the court that alleged incident has been committed by some other persons and they were actual witness to the incident. Relying on the statement of P.W.1 and P.W.5, the accused applicant have been summoned under Section 319 Cr.P.C. along with other persons namely, Kadir Ali, Mehroj and Awadhesh Kumar Mishra. It is contended that prosecution case has two sets of theories. On the one hand, it is alleged that Ashraf, Imran Khan, Kaleen and Shebu has committed the alleged offence and on the other hand, prosecution is also showing that alleged offence has been committed by the applicant along with Kadir Ali, Mehroj and Awadhesh Kumar Mishra hence, no solitary stand has been taken by the prosecution. Thus, there is a complete contradiction in the whole prosecution story. The applicant's name was exonerated by the Investigating Officer and no charge-sheet was filed against him. No incriminating article has been recovered from the possession of the applicant. It is submitted that applicant never evaded process of law. The custody of the applicant is not required for interrogation, no investigation is pending. the applicant submits

12. Learned counsel apprehending his arrest by the police as two other accused persons namely Kadir Ali alias Bablu and Mehroj who were also summoned by the trial court under Section 319 Cr.P.C. have been sent to jail on 29.04.2025 in this case. Applicant undertakes to cooperate in the that he 5 ABAIL No. 1245 of 2025 trial. He also submits that according to post mortem, cause of death is ante mortem firearm injury.

13. Learned counsel for the State-respondents has opposed the bail application.

14. On due consideration of the submissions advanced by learned counsel for the parties, and the fact that during investigation the complicity of the applicant was not found by the Investigating Officer and, accordingly, while filing the charge sheet, the name of the applicant was dropped, it is noted that during trial the applicant has been summoned vide order dated 23.05.2024 on the basis of the statement of P.W.-1; the co-accused Asad Ali @ Munna, who has been assigned a similar role, has already been granted anticipatory bail by this Court; the applicant undertakes to cooperate in the trial; he has explained the criminal history of one case in paragraph 13 of the affidavit filed in support of the anticipatory bail application as also considering the contradictory testimony of the prosecution witness and without entering into the merits of the case, I find it to be a fit case for granting anticipatory bail to the applicant.

15. Accordingly, the anticipatory bail application is allowed.

16. In view of the above, it is provided that the applicant shall surrender before the concerned court within 20 days' from the date of receipt of a certified copy of this order. On such surrender, the applicant shall be released on anticipatory bail on his furnishing a personal bond and two sureties of the like amount to the satisfaction of the trial court. The applicant shall cooperate in the trial and he will not influence the witnesses. The applicant shall not leave India without previous permission of the Court. Any other condition which the trial court may deem fit and proper may also be imposed. In case of default, it would be open for the trial court to proceed in accordance with law. December 4, 2025 Madhu D.R/P.S (Karunesh Singh Pawar,J.) MADHU KUMARI High Court of Judicature at Allahabad, Lucknow Bench

HON'BLE KARUNESH SINGH PAWAR, J. 1. Heard learned counsel for the applicant and learned A.G.A for the respondent State.

2. The present bail application has been filed seeking anticipatory bail in case crime No.0306/2018, under Sections 147, 148, 149, 302 I.P.C., P.S. Antoo, District Pratapgarh..

3. Briefly, the prosecution's story is that on 14.08.2018, at about 9:00 a.m., the applicant and his father namely Harischandra Singh, arrived at Chaukhar Pureanti on their motorcycles. As they approached Chaukhar Pureantı Primary School, Asad Ali alias Munna (the present applicant) and Bablu both sons of Amjad Ali, Mehroj son of Asad Ali, all are resident of Village-Kakraha, Police Station Antu, and Awadhesh Kumar Mishra son of Ram Dular Mishra, resident of Lohagpur, Police Station Antu, and one unknown person, who were traveling on two motorcycles, stopped the deceased and opened fire in which father of the complainant died from the gunshot. The complainant shouted and ran towards the village and accused persons while brandishing pistols fled towards Gadwara.

4. It is alleged that prior to the incident, Asad Ali had also shot the deceased with intention to kill him. While the proceedings for that case were going on, Asad Ali was pressurizing the deceased to reconcile. When the deceased refused, the aforementioned accused persons committed this crime. 2 ABAIL No. 1245 of 2025

5. At the outset, learned counsel for the State-respondents has opposed the bail application and submits that anticipatory bail application is not maintainable under Code of Criminal Procedure as the application is barred under Section 438 (6) of Cr.P.C. for the nature of the crime i.e. implication under Section 302 IPC. Since there is statutory bar of anticipatory bail in case of heinous offences, the application is liable to be rejected.

6. Per contra, learned counsel for the applicant opposing the aforesaid arguments has submitted that provisions of Bharatiya Nagarik Suraksha Sanhita would operate retrospectively in the present case and applicant would be entitled to the benefit of Bharatiya Nagarik Suraksha Sanhita where there is no statutory bar for moving an anticipatory bail application for offence under Section 302 IPC. Reliance has been placed by the applicant on the Division Bench judgment of this Court passed in Deepu vs. State of U.P. reported in [2024 SCC OnLine All 4289].

7. Perused the record.

8. In Deepu (supra), the court after analyzing the repeal and saving clause of Bharatiya Nagarik Suraksha Sanhita and other judicial precedent has concluded as under:- "16. On the basis of above analysis, this Court is also summarising the law regarding effect of repealing the IPC and Cr. P.C. by BNS and BNSS respectively and same is being mentioned as below: (i) If an FIR is registered on or after 1.7.2024 for the offence committed prior to 1.7.2024, then FIR would be registered under the provisions of IPC but the investigation will continue as per BNSS. (ii) In the pending investigation on 01.07.2024 (on the date of commencement of New Criminal Laws), investigation will continue as per the Cr. P.C. till the cognizance is taken on the police report and if any direction is made for further investigation by the competent Court then same will continue as per the Cr. P.C.; (iii) The cognizance on the pending investigation on or after 01.07.2024 would be taken as per the BNSS and all the 3 ABAIL No. 1245 of 2025 subsequent proceeding including enquiry, trial or appeal would be conducted as per the procedure of BNSS. (iv) Section 531(2)(a) of BNSS saved only pending investigation, trial, appeal, application and enquiry, therefore, if any trial, appeal, revision or application is commenced after 01.07.2024, the same will be proceeded as per the procedure of BNSS. (v) The pending trial on 01.07.2024, if concluded on or after 01.07.2024 then appeal or revision against the judgment passed in such a trial will be as per the BNSS. However, if any application is filed in appeal, which was pending on 01.07.2024 then the procedure of Cr. P.C. will apply. (vi) If the criminal proceeding or chargesheet is challenged before the High Court on or after 01.07.2024, where the investigation was conducted as per Cr. P.C. then same will be filed u/s 528 of BNSS not uw/5 482 Cr. P.C."

9. In this case F.I.R. was registered on 14.08.2018, trial initiated in the year 2022 and name of the applicant was dropped in the year 2018 however, he has later been summoned in this case under Section 319 Cr.P.C. on 23.05.2024. The present anticipatory bail application has been filed after the cut off date i.e. 01.07.2024 considering the guidelines laid down by the Division Bench of this Court in the case of Deepu (supra) and since in the present case the trial was pending on the cut off date i.e. 01.07.2024 and is still continuing thus, in view of the guidelines issued in Deepu (supra), fresh application filed by the applicant after the cut off date, the provisions of Bharatiya Nagarik Suraksha Sanhita shall apply and shall be treated to be application filed under Section 528 BNSS and not under Section 438 Cr.P.C. Similar view has been taken by the Co-ordinate Bench of this Court in the case of Abdul Hamid vs. State of U.P. reported in [2025 SCC OnLine All 4046] hence considering the law laid down in the Deepu (supra) and its application in Abdul Hamid (supra) the case of the present applicant is squarely covered by both the judgments and, therefore, the anticipatory bail application filed in this case is held maintainable.

10. Learned counsel for the applicant submits that applicant was named in the F.I.R. along with three other co-accused persons and 4 ABAIL No. 1245 of 2025 one unknown assailant who were assigned the role of indiscriminate firing and killing the deceased (Harishchandra Singh). Applicant was arrested and sent to jail on 17.08.2018. During investigation the Investigating Officer came to the conclusion that incident was carried out by a totally different set of persons and the location of the sons of the deceased namely Chandan Singh who is P.W.1 and Anuj Singh P.W.5 was not found at the place of incident. The incident was found to be committed by co-accused Ashraf, Imran Khan, Kaleem and Shebu (other than the named accused in the F.I.R.) thus, the police exonerated the applicant and other accused persons named in the F.I.R. Applicant was released under Section 169 Cr.P.C. and furnished his bonds before the learned magistrate. The trial has commenced and prosecution of the charge-sheeted persons continued.

11. He further submits that in the statement of P.W.1 and P.W.5 they again made allegation against the applicant, however, P.W.2, P.W.3 and P.W.4 have testified in the court that alleged incident has been committed by some other persons and they were actual witness to the incident. Relying on the statement of P.W.1 and P.W.5, the accused applicant have been summoned under Section 319 Cr.P.C. along with other persons namely, Kadir Ali, Mehroj and Awadhesh Kumar Mishra. It is contended that prosecution case has two sets of theories. On the one hand, it is alleged that Ashraf, Imran Khan, Kaleen and Shebu has committed the alleged offence and on the other hand, prosecution is also showing that alleged offence has been committed by the applicant along with Kadir Ali, Mehroj and Awadhesh Kumar Mishra hence, no solitary stand has been taken by the prosecution. Thus, there is a complete contradiction in the whole prosecution story. The applicant's name was exonerated by the Investigating Officer and no charge-sheet was filed against him. No incriminating article has been recovered from the possession of the applicant. It is submitted that applicant never evaded process of law. The custody of the applicant is not required for interrogation, no investigation is pending. the applicant submits

12. Learned counsel apprehending his arrest by the police as two other accused persons namely Kadir Ali alias Bablu and Mehroj who were also summoned by the trial court under Section 319 Cr.P.C. have been sent to jail on 29.04.2025 in this case. Applicant undertakes to cooperate in the that he 5 ABAIL No. 1245 of 2025 trial. He also submits that according to post mortem, cause of death is ante mortem firearm injury.

13. Learned counsel for the State-respondents has opposed the bail application.

14. On due consideration of the submissions advanced by learned counsel for the parties, and the fact that during investigation the complicity of the applicant was not found by the Investigating Officer and, accordingly, while filing the charge sheet, the name of the applicant was dropped, it is noted that during trial the applicant has been summoned vide order dated 23.05.2024 on the basis of the statement of P.W.-1; the co-accused Asad Ali @ Munna, who has been assigned a similar role, has already been granted anticipatory bail by this Court; the applicant undertakes to cooperate in the trial; he has explained the criminal history of one case in paragraph 13 of the affidavit filed in support of the anticipatory bail application as also considering the contradictory testimony of the prosecution witness and without entering into the merits of the case, I find it to be a fit case for granting anticipatory bail to the applicant.

15. Accordingly, the anticipatory bail application is allowed.

16. In view of the above, it is provided that the applicant shall surrender before the concerned court within 20 days' from the date of receipt of a certified copy of this order. On such surrender, the applicant shall be released on anticipatory bail on his furnishing a personal bond and two sureties of the like amount to the satisfaction of the trial court. The applicant shall cooperate in the trial and he will not influence the witnesses. The applicant shall not leave India without previous permission of the Court. Any other condition which the trial court may deem fit and proper may also be imposed. In case of default, it would be open for the trial court to proceed in accordance with law. December 4, 2025 Madhu D.R/P.S (Karunesh Singh Pawar,J.) MADHU KUMARI High Court of Judicature at Allahabad, Lucknow Bench