Source: Allahabad High Court

Why in News?

Recently, the Allahabad High Court in the matter of Allama Zamir Naqvi Alias Tahir In Fir Zameen Naqvi Alias Tahir v. State of U.P. Thru. Prin. Secy. Lko. And Another, has held that the provision related to anticipatory bail amended by the Criminal Procedure Code (Uttar Pradesh Amendment) Act, 2018 is also applicable on offences committed before 2018.

Background

• The applicant in this case was seeking anticipatory bail for a case registered in 2014.
• The anticipatory bail of the applicant has been rejected by the Sessions court on the grounds that Section 438 of the Code of Criminal Procedure (CrPC) 1973 was not applicable to him.
• The Code of Criminal Procedure (UP Amendment) Act, 2018 was notified in 2019.
  • The ‘Statement of Objects and Reasons of the Amendment Act’ states that Section 438 of the CrPC, regarding the provision of anticipatory bail, was omitted by the Code of Criminal Procedure (UP Amendment) Act, 1976.

Court’s Observation

• The Allahabad HC held that “Amendment Act 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.’

Code of Criminal Procedure (Uttar Pradesh Amendment) Act, 2018

• Section 438 of CrPC granting anticipatory bail was omitted in UP through of Criminal Procedure (Uttar Pradesh Amendment Act), 1976.
• There were several requests for its revival.
• The 3^rd report of the State of Law Commission in 2009 recommended restoration of Section 438.
• The bill was passed on 31^st August 2018 and received assent of president on 1st June 2019.
• Only Allahabad HC and the Supreme Court were allowed to grant anticipatory bail earlier.
• However, after the Amendment Act of 2018, Court of Sessions also got power to grant bail under Section 438 CrPC.
• Section 438 allows the accused or any person who has a reasonable apprehension of being arrested to apply for anticipatory bail though it is not absolute right