CrPC (UP Amendment) Act, 2018 Is A Beneficial Legislation Reviving Benefit Of Anticipatory Bail, Hence It Is Applicable Even For Offences Committed Prior To Enactment: Allahabad HC

Section 438 of the Code of Criminal Procedure 1973, regarding the provision of anticipatory bail, was omitted by the Code of Criminal Procedure (Uttar Pradesh Amendment) Act, 1976.

Holding the view taken by the Sessions Judge to be incorrect, Justice Subhash Vidyarthi thus observed, “…the Criminal Procedure Code (Uttar Pradesh Amendment) Act, 2018 merely restores the benefit of anticipatory bail to persons apprehending arrest, which benefit was available to similarly situate persons in the rest of India immediately before enactment of the aforesaid Amendment Act and which benefit was available to the persons in the State of U.P. also before enactment of Code of Criminal Procedure (Uttar Pradesh Amendment) Act, 1976. This being a beneficial legislation, it cannot be restricted in its operation to offences committed subsequent to enactment of Act, 2019 and it will be available to all the persons ‘apprehending arrest’ after enactment of the Amendment Act, 2018, even if the offence was committed prior to enactment of the Amendment Act, 2018”.

Advocate Prateek Tewari appeared for the Applicant and AGA Jayant Singh Tomar appeared for the State.

The applicant had sought anticipatory bail for the offences under Sections 452, 354 IPC, where it was alleged that the applicant along with another accused molested a girl at her house, and when she cried for help, they ran away.

In the matter, the incident occurred on April 27, 2014, on which date the provisions of Section 438 CrPC were not applicable to the State of U.P., therefore, the Sessions Court, Raebareli rejected the anticipatory bail application on the ground that application under Section 438 CrPC is prospective and not retrospective in nature.

Pertinently, after considering the recommendation of the State Law Commission’s third report, it was decided to amend the Code of Criminal Procedure, 1973 in its application to Uttar Pradesh to revive the provisions of section 438 with certain modifications. Thus, the Code of Criminal Procedure (Uttar Pradesh Amendment) Act, 2018 (U.P. Act No. 4 Of 2019) was notified on June 6, 2019.

“The Court will presume that a law, which affects substantive rights, are meant to have prospective operation only. In the same way, as regards procedural laws or the laws relating to a mere matter of procedure or of Forum, they carry retrospective impact. Declaratory, clarificatory or curative Statutes are allowed to hold sway in the past. The very nature of the said laws involve the aspect of public interest which requires sovereign Legislature to remove defects, clarify aspects which create doubt. The declaratory law again has the effect of the legislative intention being made clear”, the bench had further observed in the order.

Cause Title: Allama Zamir Naqvi Alias Tahir In Fir Zameen Naqvi Alias Tahir State Of U.P. Thru. Prin. Secy. Lko. And Another [Neutral Citation: 2023:AHC-LKO:74172]