Anticipatory Bail in Uttar Pradesh Author By: Riddhi Jain Co-Author Vidya Shankar | Volume II Issue III |

Abstract

An individual’s innocence cannot be questioned until he is proven guilty in a trial, bail is concomitant and inherently intertwined with a person’s right to innocence and freedom until proven guilty. Anticipatory bail is a step forward in this notion which allows the person to retain his right to freedom in the anticipation of his arrest with a reasonable cause. The recommendations of 41^st Law Commission Report paved the way for its institution. Pre- arrest, non- bailable offences and a reasonable cause to believe are the nucleus of anticipatory bail. The provision, since its inception, has been the topic of discussions and debate amongst the legal fraternity.

This law is designated with various negative remarks and the same has led to a number of state amendments. One such amendment took place in the state of Uttar Pradesh, during the turmoil of 1975 emergency leading to its omission. All the possible attempts made were ineffective and futile as none of them were adequate enough to retrieve the provision back in the code.However, the provision was eventually consolidated by the recent Cr.P.C Bill, 2018 in the state. The omission of this section wasin violation of Articles 14, 19 and 21 of the Indian Constitution which infringes the essence of natural justice and puts an individual to disgrace and unnecessary hassles of being accused of a false case and thereby jeopardizing his freedom. It was crucial that the grounds for anticipatory bail be constructed in Uttar Pradesh in such demeanour that paramount consideration be given to the principleof fundamental rights and to bring the mechanism at par with the other states of India.

Keywords: Anticipatory Bail, Emergency, Uttar Pradesh, Amendments, Restoration  

1. Introduction

The natural and fundamental rights of an individual are recognised at the International level and are imbedded in Article 21 of theIndian Constitution.In the human history, these rights were based on the whims and fancies of politically and socially strong individualsbut ever since the human rights have evolved the society has beenconsistentlyprogressing.

A man is presumed to respect the liberty of others in the society, hamperingthe same leads to punishment. The bail is a temporary release byaprocedureinwhich a judge or a magistrate sets at liberty the one who has been imprisoned, upon his promise to take trial at a future date. Thus, the personal liberty is the foundation for the development of the concept of bail.
A person having a rationalreason to believe that he might be accused in the near future of having committed a non-bailable offence has a right to apply for anticipatory bail. The 41^st Law Commission[1] reportrecommended the incorporation of the provision of Anticipatory Bail. It is granted ‘in the anticipation of arrest”, thereby directing the release of a person even before he is arrested.

The Schedule VII, List III and entry 2 of the Indian Constitution includes criminal procedure thereby empowering both State and Union Government to make laws in its regard. This paper limits its scope to the applicability of Section 438 of Code of Criminal procedure, 1973 (hereinafter as, “Cr.P.C, 1973”) in the state of Uttar Pradesh. The focus of this paper is to find the reasons behindthe omission of anticipatory bail in Uttar Pradesh by inserting Section 9 in Uttar Pradesh (Amendment) Act, 1976 during the emergency imposed in India by the IndiraGandhi government, on the present status andalso at the future aspects of thisprovision.

1. Meaning and Ingredients

Under the Code of 1898[2], there was no provision of bail on apprehension of arrest. The provision of Anticipatory bail was included in the Section 438 of Cr.P.C in 1973. It deals with situations where a person has a reasonable apprehension of his arrest for any non-bailable offence and he seeks to prevent his detentionin the police custody which can be prevented by moving an application to an appropriate Court. The Section 438 provides the provisions regarding the grant of the anticipatory bail to any person apprehending arrest for non-bailable offence and such provisions are: –

1. Person has a reason to believe that in near future he may be arrested for having committed non-bailableoffence.
2. Person should apply to the High Court or the Sessions Court to be released on anticipatory bail.
3. The Court is to consider the gravity and nature of the offence, past offences committed by the applicant and also that the accusations will be made against him to target the applicant by injuring and humiliating him by having him arrested.
4. Person applying for the anticipatory bail must be available for the police interrogations at all times.
5. Person should not in any manner threat or induce any person to dissuade from disclosing the true facts to the authorities.
6. Person should not leave India without prior permission from the Court.
7. The other conditions that can be imposed on the applicant shall be same as that mentioned in Section 437(3), dealing with the offences punishable with an imprisonment of 7 years or more.
8. After the anticipatory bail has been granted and the person to whom it is granted is arrested without warrant by an officer in charge of a police station on an accusation, the person shall be released on bail. The magistrate taking the cognizance of the said offence if decides to issue the warrant at the first instance against that person, the same should be complied with diligently.
9. Where the High Court or Court of Sessions didn’t pass any interim order in lieu of the application or rejected the same, it will be open to an officer in charge to arrest without warrant on the basis of his accusation apprehended in future.

After considering the above, the Court shall decide whether to issue or reject the application of anticipatory bail.

The Code does not define the expression ‘anticipatory bail’.  The utility and significance of the new provision was explained as it was being termed and learned with a wrong apprehension. The appropriate court granting anticipatory bail makes it clear that only in the event of an arrest, a person will be released on bail and it is not readily available in the anticipation of arrest.The Court also observed that the power of granting `anticipatory bail’ isextraordinary in character and only during exceptional cases where it appears that a person might be falsely implicated, or a frivolous case might be launched against him, orthere are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail that such power may be exercised.[3]

The power is only with Sessions Court or High Court. Thus, the ambit of power conferred by Section 438 of the Code was held to be limited.

Application

The main objective of anticipatory bail is to provide relief to a person from unnecessary hassles and disgrace of being accused of false case and prevent the life and liberty of the innocent person from being jeopardised.  The essential ingredients for seeking anticipatory bail are: –

1. Petitioner has a reason to believe that he may be arrested on accusation.
2. For any non-bailable offence.
3. The person shall apply in the appropriate High Court or Court of Sessions.

‘Reason to Believe’ is an essential ingredient of anticipatory bail and the same cannot be a misnomer for fear or vague apprehension. The Supreme Court propounds that it should be granted only in those cases where it can be established that the petitioner had a concrete reason for believing that he may be arrested for a non-bailable offence.The difference between ‘fear’ and ‘belief’ was distinguished on the groundsof vague apprehension. The belief of arrest of an applicant shall be adjudged and examined by the court in question, fact and series of events will determine the reasonableness of his beliefs.[4] And the court will ponder upon the facts and series of events which in turn will determine reasonableness of his beliefs.

Any person who apprehends arrest,can file for anticipatory bail.However, the High Court or Sessions Court may apply some conditions as mentionedabove provided that the lawyer has to file a “wakalatnama”in the appropriate District Court with the required anticipatory bail petition followed by a hearing. After the 2005’s amendment it is compulsory for the Court to hear the Public Prosecutor.[5]

Jurisdiction

The High Courts and the Sessions Court have a concurrent jurisdiction to grant anticipatory bail under Section 438. It’s not necessary that the accused must apply to the Sessions Court first.The conflicts regarding to the competent Court to grant anticipatory bail can lie:-

1. at the place of commission of offence, and
2. the place where apprehension of arrest lies.

The majority of courts accept the jurisdiction of the High Court or the Sessions Court where the commission of offence has taken place.The High Courts of Rajasthan, Madhya Pradesh, Gujarat and Delhi have been firm on the legal position that a court within whose jurisdiction a person apprehends arrest for a non-bailable offence is competent court to grant anticipatory bail.[6]

The High Court of Bombay held that if the offence is committed in one state but arrest is expected in another then anticipatory bail can be filed in the latter.[7]The unique stand taken by the High Court of Karnataka and Gujarat regarding the same appears to be more suitable interpretation wherein it was held that, the court not having jurisdiction to deal with offence is competent to grant anticipatory bail to the person apprehending arrest where he ordinarily resides and also where the offence has been committed.[8]InBal Chand’s[9]case, the Court held that this provision should be granted only during exceptional cases.However, in Gurbaksh Singh Sibbia[10] case, the Supreme Court further clarified that although it is extraordinary in nature, such power should be wielded wisely with due vigilance and the wise exercise of judicial power which protects Section 438 of the Cr.P.C against intemperate use.The court was of the view that the anticipatory bail shouldnot be granted as a matter of rule or right. If the court is completely convinced that the person will not flee or misuse his liberty then only the provision should be permitted.[11]

The same plea can be rejected if the above stated conditions are not fulfilled.The underlying purpose of Section 438 is to ensure that a person is not subject to go to jail if he is able to procure the anticipatory bail against such orders. Although, at the same time such directions cannot curtail police to carry forward their investigations. Accordingly, the Gujarat High Court observed that a direction of anticipatory bail would not be allowed to come in the way of a fuller consideration of the question of custody of the person when the investigations are incomplete.[12]

The legislative history of this provision reveals that the Joint Select Committee of Parliament had initiated a thought that bail should be made available in anticipation of arrest so thatthe liberty of an individual may not be unnecessarily tampered. No person should be confined in any way until and unless held guilty, as it is in violation of the very nature of right to life and personal liberty of an individual.

Under the Code of Criminal Procedure, 1898[13],the Sections 496,497 and 498 dealt with bail. There was no separate provision for anticipatory bail. It was, however, granted in certain cases under the High Courts’ inherent powers as mentioned under Section 482 of Cr.P.C,Although the preponderant view did not consider the existence of any such jurisdiction.[14].Under the old code there was an absence of specific provision which led to a difference of opinion among the High Courts of different states onthe question as to whether the courts had the inherent power to pass an order of bail in anticipation of arrest.

Some High Courts argued that bail can be granted to a person against whom

1. a report of the offence is made, and
2. when a person is suspected of the offence he may be arrested for,

While other High Courts expressed in negation of the above view.

InMP Sharma&Ors. v Satish Chandra[15] the SupremeCourtheld that a person against whom an FIR has been lodged being ‘a person accused of an offence’is entitled to bail if he appears before the Court and applies for bail.

Duration

Whether the anticipatory bail once granted will be in operation for a limited period was a question which evolved with a period of time by various courts. Thereby, with regards to the determination of the operational period of the anticipatory bail or its applicability, some Courts follow the Gurbaksh Singh Sibbia[16] stance where it was held that the Court may limit the operation of the order if there are cogent reasons, keeping it operational for a short period after filing of FIR. In such a scenario the applicant must move the Court under Section 437 of Cr.P.C within a reasonable time after filing of FIR. The Court also stated that there cannot be an absolute rule to limit the operation of the order and make it time bound.[17]After the Supreme Court judgment in SalauddinAbdulsamadShaikh v. State of Maharashtra[18], practice of limiting the duration of anticipatory bail was introduced.

• Incorporation of Provisions of anticipatory bail in India

In the midst of all the chaos and dissenting judicial opinion before 1973, the Parliament bestowed a new and independent power on High Court and Sessions Court for granting anticipatory bail.

The matter was referred to the 41^stLaw Commission for consideration about the inclusion of the remedy of grant of anticipatory bail in thethen Code of Criminal Procedure, 1898. The Law Commission was enthused to take up the suggestion and soon formulated a draftwhich ultimately got enacted as Section 438 of the Code of 1973.In this report, the Law Commission explained the necessity for introducing such a provision. The two reasons given were: –

1. Sometimes the influential people file false cases just to disgrace or humiliate their enemy or opponent in the eyes of the society.
2. If a person accused of an offence is not going to flee or in nowhere misuse his liberty then there is no rationale for him to submit to the custody and then apply for the bail.

Based on the 41^st Report of the Law Commission, the Government introduced the Criminal Procedure Code Bill, 1970. In the Statement of Objects and Reasons of the Billin respect of Clause 447 which was incorporated in the Code as Section 438stated that:-

It enables the Superior Court to grant bail even before the person is arrested on “apprehension” and it also gave the Courts power to impose certain conditions on the person applying under this provision.The conditions may be made to make the person appear for investigationand to not to do anything which may obstruct the investigation.

The Bill was referred to the Joint Committee of both the Houses, but the government also referred it to the Law Commission for its opinion on few points.The law commission submitted 48^th Report[19] on the bill and their decision was in accordance with the previous report. They were also of the view that the final order should be free of abuse and therefore be made after notice to the public prosecutor. The appropriate Courts are entrusted to take such measure as deemed fit in the interest of justice.[20]

The section incorporates the recommendations of the Joint Committee and has undergone many amendments and the recent being in 2005.It exhaustively lays down the procedural guidelines,deliberations to be taken by Court, and conditions it can impose while granting Anticipatory bail.It must be borne in minds that Section 438 of the Cr.P.C does not form a part of Article 21,The Constitution of India and it provides discretionary power to the High Courts and the Court of Sessions, in appropriate cases.[21]

Era of Emergency

By the beginning of 1973, Indira Gandhi’s popularity witnessed a downfall owing to the unfulfilled expectations of the people. The reasons which further triggered it were increasing unemployment, rampant inflation, and scarcity of food. The year 1972 and 1973 saw failed monsoon rains which led to drought and shortage of food supply in the economy. The law and order further deteriorated in the years 1974 – 1975 which were received by the strikes, student protests and other violent political demonstrations.

It was an era of ongoing political and economic downfalls when one of the most significant movements were organised in Bihar and Gujarat, supported by the opposition parties. The students protest in Gujarat while protest against corruption in Bihar was led by an eminent Gandhian, J.P.Narayan.

On a petition filed by Raj Naraian, Indira Gandhi was found guilty on 12^th August 1975 by Justice Sinhaof Allahabad High Court for corruption under Section 123(7) of Representation on People’s Act,1951. This was in regards to her election in Rae Bareilly, her own constituency of Uttar Pradesh.Thus, she was asked to dispose off her position as a national leader to which she appealed in the Supreme Court. The opposition parties took the advantage of Allahabad High Court’s judgement and were adamant on demanding resignation from her with general elections due in 8 months and hence a country wide protests were organised.

Mrs. Gandhi in response to all the agitation, protests by the anti-congress groups introduced national emergency under Article 352(1) of the Indian Constitution. She justified her actions on the grounds that India’s stability, security and democracy were in danger with the ongoing JP movements and that it was necessary to implement emergency in the interest of poor, rural and underprivileged. This proclamation suspended fundamental rights, imposed censorship on press, many national leaders were arrested.

Uttar Pradesh was one of the states where anti-emergency protests and disruptions were at peak. Indira Gandhi took it upon herself to re-write the law as she thought the existing laws of the country were too slow.

Thus, in the backdrop of all the above mentioned, the provision of anticipatory bail in Uttar Pradesh was revoked in the year of 1976 when H.N.Bahuguna was the Chief Minister with the State Legislature enacting Section 9 of Cr.P.C Uttar Pradesh (Amendment) Act 1976.

However, the same has been challengedas being in violation of Article 14, 19 and 21, Indian Constitution.In the case of Kartar Singh v.State of Punjab[22] the constitutional validity of Section 9[23] was upheld stating that the deletion of Section 438 by Section 9 of the code of Criminal Procedure (U.P.) Amendment, 1976 does not violate Article 14, 19 or 21, the Indian Constitution as the State Legislature is endowed with such powers as mentioned as one of the matters listed under the Concurrent list of the VII Schedule and is also valid under Article 254(2), the Indian Constitution.

While in the case of Jagat Prasadv.State of Uttar Pradesh[24], the Court directed the matter to be heard by the Constitutional Bench as it felt that validity must be decided by a larger Bench.

After 1976 and in recent times

The state emergency of 1975 invoked under Article 352 by then President F.A.Ahmed brought amendments in the Code in form of excluding Section 438 by the legislative assembly of Uttar Pradesh, the period of emergency continued for 21 months. It’s been over four decades and the law relating to anticipatory bail has not been incorporated in the code for the state of Uttar Pradesh until the recent Cr.P.C (Uttar Pradesh Amendment) Bill, 2018.

The cases falling under Terrorists and Disruptive Activities (Prevention) Act, 1987 commonly known as TADA Acts challenged the constitutional validity of Section 9 of the Cr.P.C (U.P. Amendment) Act, 1976. It was stated by the council Mr. Ram Jethmalani that Section 438 is the most essential safeguard for liberty of a person and that it is of utmost need to meet the obvious cases of misuse of police power. [25]Although, the Court observed that such exclusion of sections is not in violation of Article 19 and 21.

In the year 2000, the state of Uttar Pradesh was divided,leading to the birth of a new state Uttarakhand. The laws prevailing in Uttarakhand are indistinguishable as Uttar Pradesh and the section of anticipatory bail were also excluded from the territories of Uttarakhand among other things.

1. Amendments in the Provision of anticipatory bail

The provision of anticipatory bail according to the needs and requirements of the states have undergone a number of amendments since its incorporation with various suggestion proposed by law commission.

203^rd Law Commission Report

The Law Commission’s 203^rd Report on Section 438, headed by Justice Dr.A.R Lakshamnan, gave its valuable inputs to the Ministry of Affairs for the expert opinion asked by the government for the amendment of Code of Criminal Procedure (Amendment) Act, 2005 which was facing criticism nationwide. Therefore, the recommendations made by the Law Commission in view of the 2005 amendments made in the code were: –

1. Omission of the proviso to sub-section (1).
2. Omission of sub-section (1B).
3. A new sub-section on the lines of Section 397(3) to be inserted in the code.
4. To add an explanation, clarifying that a final order on seeking directions are not to made as an interlocutory order

And hence the revised Section 438 was presented to the Ministry of Affairs and Parliament.

Code of Criminal Procedure (Amendment) Act, 2005 

In the year 2005 certain amendments were proposed but the same were kept in abeyance due to lawyer’s objections. By the 2005 amendments, provisions to be introduced were:

1. The High Courts and Sessions Court to grant anticipatory bail after considering factors such as – nature and gravity, antecedent offences possibility of fleeing from justice etc. Upon such consideration the Court will either accept or reject. [sub-section (1)]
2. If application has been rejected or interim orders not passed then it will confer the powers to the Police in-charge to arrest without warrant. [ proviso to sub-section (1)]
3. Where the Court decide to grant interim bail, the notice of same shall be given to the Public Prosecutor and the Superintendent of the Police within7 days with a copy of order to be served on Public Prosecutor thereby giving them reasonable opportunity. [sub-section (1A)]
4. At the time of final hearing the presence of the applicant will be obligatory. [sub-section (1B)]

The bill after being passed by the Parliament was criticized by the lawyers’ fraternity and especially from the state of Tamil Nadu as they felt that such provisions will deny the rights of the accused to move to higher Courts for relief. On the other hand, it was believed to provide with the maximum opportunity to the Public prosecutor to present his case.

State Law Commission Report

The State Law Commission gave its third report on reinsertion of Section 438 of the Code of Criminal Procedure in 2009.By the virtue of 2005 Act, the parliament amended the various provisions of Cr.P.C, 1973. The sub section (1) of Section 438 was amended by Section38 of the said act. However, when the 2005 Actcame into force in the year of 2006, the amended Section438 was never enforced in Uttar Pradeshwhich substituted the older sub-section (1) with a new sub section (1), (1A) and (1B).

The third report of 2009 was mainly based on the decision of the Division Bench of the Allahabad High Court’s Case [26] and letter by the Kanpur Bar Association in 2005. In this case, the Division Bench of the High Court felt the need for the restoration of the provision in Uttar Pradesh and made a strong recommendation to the Government of the state to restore the same and sanction the High Court and Sessions Court to grant it thereby, repealing Section 9[27].

There are various latest judicial pronouncementswhich led to the State Law Commission to takesuo-moto cognizance on the subject and to submit a fresh report.These judicial pronouncements include the Allahabad High Court case[28] the Sessions judge held that interim bail can be granted while considering the bail application under the Section 439 of the Cr.P.C which would in turn enable the innocent person to avoid being put behind bars.
In a criminal appeal case [29], bench comprising of  Justice M.Katju and JusticeSirpurkar,  relied on the judgement made in the Amravati case[30] and directed to follow the same orders in Uttar Pradesh since the provisions of anticipatory bail was absent there and unnecessary arrest and detention can cause an incomparable loss.The Supreme Court in the case of Sukhwant Singh &Ors. v. State of Punjab[31] followed the same view of the LalKamelendraPrasand Singh[32] Case in regards to the provision of the anticipatory bail. In this particular case the reputation of an individual was discussed under Article 21.

Article 254 (2), the Indian Constitution states that the Presidential assent is needed after passing of the bill by the Legislature of the state. The reasons given by the State Law Commission includes the criminal graph and data of the state which shows no evidence in regards to the improvement of the law and order after the omission. Another reason being that a person has to travel long distances to have their cases filed under Section 482 or Article 226 before the Allahabad High Court Bench or at Lucknow High Court Bench. It is essential to take into consideration that when Section438 was omitted in Uttar Pradesh, emergency was in operation. However, now since such conditions do not exist the law and order of the state needed a desperate revision.

In reference to 203^rd Report, the Law Commission of India is of the opinion that no ex-parte order should be passed by the Court and it also recommended the state legislature to reinsert the provision for anticipatory bail. The Report also contains the text of Section 438 so modified.

In the Supreme Court case of Hema Mishra v State of U.P.&Ors.[33],Justice A.K.Sikriheld that when a relief is not available to the accused under Section 438 Cr. P.C in Uttar Pradesh then that person is not entitled for the same under Article 266, the Indian Constitution. Thus, it can’t be used as a second window for relief.It was further held that Article 266 should not be exercised liberally. When a provision is omitted specifically it cannot be reinstated via Article 266. However, it was cleared that in certain cases if protection against pre-arrest is not provided would cause miscarriage of justice then High Court can grant a relief under Article 226 in the nature of anticipatory bail.

The U.P State Assembly passed the Bill[34] to restore this provision, but the then President sent back the bill suggesting a few changes on technical grounds in 2011 and the state legislative assembly didn’t take any actions in response to that for a long period of 6 years.In the recent case of Vishnu Sahai v. State of Uttrarakhand[35] it was held that the Section 438 of the Cr.P.C shall be applicable in the state of Uttarakhand since the Section 9[36] has not been legislated. 

Further, The bench consisting of Justice S.A. Bobde and Justice N.Rao heard a petition filed by Advocate Sanjeev Bhatnagar in 2015 for such arrangements being discriminatory on grounds of Articles 14 and 15 of the Constitution as justice, equality and fraternity as its prime features of the Preamble. The bench was informed that the Uttar Pradesh Government has approved a bill for re- introduction of anticipatory bail’s provision in its territories.[37]

Re-Insertion of Anticipatory Bail in Uttar PradeshIn 2019, the C.r.P.C (Uttar Pradesh Amendment) Act, 2018 got President Ram Nath Kovind’s assent and thereby, the provisions of anticipatory bail were re-inserted in the code after 43 years. The Section is laid down on the lines of the 2005 Amendment as mentioned under section 438(1),(2), (1A) and further providing State amendments as:-1.      The High Court or Court of Sessions shall dispose of an application for grant of anticipatory bail within 30 days of such application.2.      If an application has been made by any person to the High Court the person will not have a right to move an application to the Court of Sessions.3.      The person will not be granted anticipatory bail to the offences arising out of:-(i)      The Unlawful activities (Prevention) Act, 1967(ii)    The Narcotic Drugs and Psychotropic Substances Act, 198(iii)   The Official Secret Act, 1923(iv)  The Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986(v)    The offences in which death penalty can be awarded. 

1. Comparison

The Indian Penal Code, 1860 and the Code of Criminal Procedure, 1973 provide for a uniform law for the entire country of India.

In 2019, President Ram Nath Kovind proclaimed the abrogation of Article 370 of the Indian Constitution which granted special status to the state of Jammu and Kashmir. Prior to the abrogationofArticles370and35A, it had its own Code known as Ranbir Penal Code and The Code of Criminal Procedure Svt., 1989. The Jammu and Kashmir State’s Code did not contain any explicit provision for granting anticipatory bail like Section 438 of CrPC. The state’s High Court had however expressed that the anticipatory bail may also be granted provided that the accused appears before the Court.[38]

The provision of anticipatory bail has undergone many state amendments in the states of Maharashtra, Orissa, West Bengal and Uttar Pradesh as discussed below.

In Maharashtra the section went through an amendment by the Act of 1993 where in new sub-sections were added. These sections stated that the Court has to immediately put up a notice not less than 7 days in order to provide the public prosecutor with enough time to be heard, that it is obligatory for the person seeking the bail to be present on the final hearing and in accordance to sub-section 2 the Court will either confirm, modify or cancel the bail.

In Orissa a proviso was added to the older provision by the Act of 1988 which states that final order shall not be passed in matters of death penalty, life imprisonment or imprisonment for 7 years without providing the state notice to the case at hand.

In West Bengal also the sub section (1) was substituted by the Act of 1990 which laid down the concept of mere fact and believe, and the powers of High Court and Supreme Court in disposal of the application of the bail.

The provisions for granting anticipatory bail for the offences under Scheduled Caste & Scheduled Tribes (Prevention of Atrocities, Act 1989) are not applicable.

Uttar Pradesh and Uttarakhand were the only states which did not have provision for the apprehending bail. It has now been re-introduced in these states by the Code of Criminal Procedure (Uttar Pradesh Amendment) Bill, 2018.  The bill was approved by the President Ram NathKovid in 2019, and implemented. 

1. Conclusion

The law of anticipatory bail introduced by the legislature on the recommendation of 41^st Law Commission[39] report is very much appreciable as it follows the principals of natural justice and also complies with the fundamental rights recognised at the International level and as inscribed in Article 21, the Indian constitution. The law being designated with negative remarks for plentiful reasons led to state amendment in Uttar Pradesh where the whole section was omitted. Since the day this section was omitted several endeavours have been taken up by different individuals for re-incorporation of this section in Uttar Pradesh and Uttarakhand. All the possible attempts made were ineffective and futile as none of them were adequate enough to retrieve it back in the code.At last, after 43 years of rigorous attempts the provision of anticipatory bail has been re-inserted by the Cr.P.C (Uttar Pradesh Amendment) Bill, 2018 bringing the plight of the guilty individuals to an end.

Evidently, the problems of re-incorporationweremulti-axial. The omission of this section is violative ofArticle 14, 19, and 21 of the Indian constitution and also infringed an individual’s right to natural justice. Therefore, it was imperative for the State legislature Assembly to rise to the occasion and make necessary amendments in the Code in order to avoid the forthcoming challenges, to reset the negative connotation attached with anticipatory bail, and provide a healthy environment.

The Constitution vests powers under Article 246(2) to states to make laws on the subjects enumerated in the concurrent list.  The concurrent list secures uniformity in the main principle of law throughout country and so as to avoid excessive rigidity to two-list distribution. Thereby, the states make laws in regards to their political, social, economic and other needs of that region. The emergency phase made it the need of the hour for the state to legislate on certain existing laws in order to curb socio-political demonstrations. Hence, actions taken by the state of Uttar Pradesh can be substantiated. However, the implementation should not be in an arbitrary manner where the re-insertion of the Section relating to anticipatory bail was not initiated and incorporated till next 43 years leading to the contravention of the fundamental rights enjoyed by the citizens conferred by the constitution

Thus, it was important that the grounds for anticipatory bail be constructed in Uttar Pradesh in such demeanour that paramount consideration is given to the principle of fundamental rights and bring the mechanism at par with the other states of India. 

[1]Law Commission of India, 41^st Report on Amendments to Criminal Procedure Code 1973- Provisions Relating to Bail, 1969.

[2]S.438, Code of Criminal Procedure, 1898, No. 5, Acts of Parliament, 1898 (India).

[3]Balchand Jain v. State of Madhya Pradesh, A.I.R. 1977 S.C. 366.

[4]Gurbaksh Singh Sibbia&Ors. v. State of Punjab, A.I.R.1980 S.C. 1632.

[5]S.38(1B), Code of Criminal Procedure (Amendment) Act, 2005, No. 25, Acts of Parliament, 2005 (India).

[6]Jodha Ram v. State of Rajasthan, 1994 Cri.L.J. 1962.

[7]N.K Nayar&Ors. v. State of Maharashtra &Ors., 1985 Cri.L.J. 1887.

[8]Neela J Shah v. State of Gujarat, 1998 Cri.L.J. 2228.

[9]DICKENS, supranote 4.

[10]DICKENS, supra note 5.

[11]NarsinghLalDaga&Anr. v. The State, 1977 Cri.L.J. 1776 (India).

[12]Samabhai v. State of Gujrat, 1977 Cri.L.J. 1524.

[13]DICKENS, supra note 2.

[14]Mangilal v. State ,1952 Cri.L.J. 1425 (India).; State of Gujrat v. Govind Lal Moni Lal Shah, A.I.R. 1966 All 98; State v. Kailash, A.I.R. 1955 All 98 (India); State v. Om Parkash, 1973 Cri.L.J. 824 (India).

[15]A.I.R. 1954 S.C. 300 (India).

[16]DICKENS, supra note 5.

[17]Law Commission of India, 268thReport on Amendments to Criminal Procedure Code 1973- Provisions Relating to Bail.

[18]A.I.R. 1996 S.C. 1042 (India), (1996) 1 S.C.C.  667 (India).

[19]  Law Commission of India, 48^thReport onsome questions under Codeof Criminal Procedure Bill, 1970.

[20]Law Commissionof India, 203^rdReport onS.438 of the Code of Criminal Procedure, 1973as amended by the Code of Criminal Procedure (Amendment) Act 2005.

[21]State of M.P. &Anr. v. Ram Krishna Balothia&Anr., (1995) 3 S.C.C 221.

[22](1994) 3 S.C.C. 569.

[23]Criminal Procedure Code (Uttar Pradesh Amendment) Act, 1976, No. 16, Acts of Parliament, 1976.

[24](1998) 8 S.C.C. 632.

[25]DICKENS, supra note 19.

[26]Vijay Kumar Verma v. State of Uttar Pradesh, 2002 Cri.L.J. 4561.

[27]DICKENS, supra note 23.

[28]Smt. Amravati & others v. State of Uttar Pradesh, 2005 Cri.L.J. 755.

[29]LalKamlendraPratap Singh v. State of Uttar Pradesh &Ors., (2009) 4 S.C.C. 437.

[30]DICKENS, supra note 28.

[31](2009)7S.C.C. 559.

[32]DICKENS, supranote 29.

[33](2014) 4 S.C.C. 453.

[34] Code of Criminal Procedure (U.P) Amendment Bill, 2010(passed by Rajya Sabha, 27/08/2010).

[35] MANU/UC/0693/2018

[36]DICKENS, supra note 23.

[37] Sanjeev Bhatnagar v. Union of India home of ministry affairs, Writ Petition (Crl.) No. 000070/2015.

[38]Kali Dass v. S’H.O. Police Station, Reasi, 1979 Cri.L.J. 345 (India).

[39]DICKENS supra note 1.