(This is a guest post by Ammar Shahid)
Section 8 of the General Clauses Act
Section 482 BNSS corresponds with Section 438 CrPC. Both carry the heading of anticipatory bail and provide the same relief to the same class of persons in the same procedural context. When Parliament enacted the BNSS, it was re-enacting an existing one under a different statutory number. By operation of Section 8 of the General Clauses Act, Section 18’s reference to Section 438 CrPC must now be read as a reference to Section 482 BNSS.
Neither Dinesh Kumar Srivastava nor Sushil Kumar consider Section 8, which is a serious flaw. The legal question, at its foundation, was one of statutory interpretation across a legislative transition. Section 8 of the General Clauses Act is the rule Parliament has itself put in place for resolving exactly this question. Its absence from the reasoning of both decisions is a significant gap.
The only caveat Section 8 carries is the phrase “unless a different intention appears.” One would need to find, within the SC/ST Act or Section 18 itself, some indication that Parliament intended the bar to be tied specifically and permanently to Section 438 CrPC as a provision, rather than to the institution of anticipatory bail as such. No such intention is apparent. Section 18 was aimed at the relief of anticipatory bail, not at a particular section number. The number was simply the address at which that relief resided at the time.
What the 2018 Amendment Tells Us
The suggestion that this same Parliament, in 2023, inadvertently allowed the Section 18 bar to lapse through the BNSS transition without any express amendment is difficult to accept. When a legislature has demonstrated such attentiveness to a particular provision, the more reasonable inference is that it relied on established principles of statutory interpretation, specifically Section 8 of the General Clauses Act, to ensure continuity. If Parliament had wanted to lift the bar, it could have done so expressly in the BNSS. It did not.
The Prathvi Raj Chauhan Exception
The inherent jurisdiction of the High Court in criminal matters vested in Section 482 CrPC, which corresponds to Section 528 of the BNSS, not Section 482 BNSS, which is the anticipatory bail provision. Section 18’s bar has always applied to the anticipatory bail route, not to the exercise of inherent jurisdiction in exceptional cases. These are two separate heads of power, and conflating them misrepresents both.
Beyond this structural issue, the Prathvi Raj Chauhan exception is not a straightforward gateway to routine merits review. The Supreme Court was clear that this inherent power is available “sparingly” in “very exceptional cases” to prevent a “miscarriage of justice or abuse of process of law,” and was explicit that “a liberal use of the power to grant pre-arrest bail would defeat the intention of Parliament.” The Court in Sushil Kumar, having identified Prathvi Raj Chauhan as a primary ground for remand, does not specify how the trial court is to apply this demanding threshold on reconsideration. Without any guidance, the remand functions as an implicit invitation to conduct the kind of routine merits review that Prathvi Raj Chauhan cautioned against.
Conclusion
The question raised by these two decisions is ultimately not a complicated one. Section 8 of the General Clauses Act provides a clear and direct answer: the bar under Section 18 travels with the legislative transition from CrPC to BNSS because Section 482 BNSS is the corresponding provision to Section 438 CrPC. The legislative history of Section 18, including the 2018 amendment, makes it implausible that Parliament intended this bar to lapse silently. The Prathvi Raj Chauhan exception operates through inherent jurisdiction in exceptional cases, not through anticipatory bail as a matter of routine.
The SC/ST Act is protective legislation enacted for a specific purpose. Its provisions are intended to give effect to that purpose, not to be read in ways that drain them of content through procedural technicality. Courts interpreting special protective statutes are expected to favour readings that advance the statute’s objects. A reading that allows the bail bar to lapse because a provision number changed does the opposite.
[Note: at the time of writing, it is not clear whether either decision has been challenged in the Supreme Court, or has been questioned by a bench of larger strength in the High Court itself]
