Since the Code of Criminal Procedure (Uttar Pradesh Amendment) Act 2018 bars the grant of anticipatory bail in cases where the offence is punishable by a death sentence, the Allahabad High Court has said courts cannot entertain pre-arrest bail pleas concerning such cases.
The Division Bench of Justice Vivek Chaudhary and Justice Narendra Kumar Johari passed this order while hearing a Criminal Misc Anticipatory Bail Application filed by Jitendra Pratap Singh Alias Jeetu.
A Single Judge by order dated 01.04.2024 passed in the matter has referred the following question for consideration by a Larger Bench of the Court.
“I. Whether Section 438 (6) (b) Cr.P.C, as it applies to the State of U.P, puts an absolute bar against applicability of Section 438 Cr.P.C to offences, in which death sentence can be awarded or the aforesaid bar would apply only where the Court comes to a conclusion after examining the facts of the case, that the case warrants imposition of the death sentence.”
The reason for such Reference is contradiction in the order dated on 02.12.2023 passed by a Judge in Criminal Misc Anticipatory Bail: Vishal Singh Vs State of U.P and the order dated 01.11.2022 passed by another Single Judge sitting at Allahabad.
The Court referred case of Deshraj Singh (supra), in which the high court held that though the provision of Section 438(6)(b) of the Cr.P.C bars granting of anticipatory bail in cases where the offence is punishable by death sentence, however, if no case for death punishment is made out, an anticipatory bail application would be maintainable. Per contra, in the case of Vishal Singh (supra), a coordinate Bench of this Court has held that in case involving commission of an offence under Section 302 I.P.C, which is punishable by death sentence, an anticipatory bail application is not maintainable.
The Court noted that,
Section 438 of the Code provides for grant of anticipatory bail when a person apprehends arrest for a non-bailable offence. The provision, in its original form, vested discretion in the Courts to grant anticipatory bail based on the facts and circumstances of each case, without explicit limitations.
However, the provision for anticipatory bail was omitted for the State of U.P by “The Code of Criminal Procedure (Uttar Pradesh Amendment) Act, 1976 (U.P. Act No. 16 of 1976).”
Subsequently it was reinstated, with certain modifications, in the State of Uttar Pradesh through “The Code of Criminal Procedure (Uttar Pradesh Amendment) Act, 2018 (U.P Act No 4 of 2019),” which was notified on 06.06.2019. Section 438 of the Cr.P.C, as applicable in Uttar Pradesh, empowers the Courts to grant anticipatory bail, subject to certain specified exceptions and conditions as contained in sub section (6). Section 438(6)(b) in particular bars grant of anticipatory bail in certain cases including cases where the offence is punishable by death sentence.
Counsel for the applicant has heavily relied upon the judgments in Subhash Kashinath Mahajan (supra) and Prithvi Raj Chauhan (supra) and submitted that if the complaint does not make out a prima facie case, for applicability of provisions of 1989 Act, the bar created by Sections 18 and 18- A of the 1989 Act shall not apply.
He submitted that the Supreme Court has interpreted Section 18 of the 1989 Act in a liberal manner and in the matter also, the Court should give a similar liberal interpretation to Section 438(6)(b) of Cr.P.C.
He further submitted that similarly where the Court is prima facie of the opinion that a death sentence cannot be awarded, an anticipatory bail application should be entertained.
On the other hand, A.G.A for the State and counsel for opposite party no 2, strongly oppose the submissions made by counsel for the applicant and submitted that the provisions of Section 438 of Cr.P.C, are not pari materia to Section 18 of the 1989 Act. The 1989 Act is a special Act and, hence, the interpretation given to the provisions of the said Act cannot be simply picked up and applied to Section 438 of Cr.P.C.
The Court observed that,
The 1989 Act is legislated to give protection to particular communities. The offences under the 1989 Act are committed by making certain statements in certain circumstances. It was found by the Supreme Court that in a large number of cases, false and fabricated F.I.Rs are being lodged, thus, strict provisions of the 1989 Act were being abused by the informants for ulterior purposes.
A bare perusal of the aforesaid judgments clearly shows that in special facts and circumstances, the Supreme Court gave a different interpretation to Section 18 of the 1989 Act. Said Section 18 is not at all pari materia to Section 438 of Cr.P.C and hence, interpretation given to Section 18 of the 1989 Act cannot be applied to Section 438 of Cr.P.C. Neither any facts or material is placed nor any submissions are made by the applicant to show that Section 18 of the 1989 Act is pari materia to Section 438 of Cr.P.C.
In this case, the State amendment explicitly prohibits anticipatory bail for offences punishable by death sentence. The statutory bar is absolute. It is not for the Courts to rewrite the law or create exceptions to a legislative mandate that is unequivocal. While the Courts are the guardians of individual liberties, they are also bound to uphold the rule of law and respect the boundaries set by the legislature, the Court said.
The argument that the nature of the offence should be considered in determining whether anticipatory bail can be granted, despite the statutory prohibition, is untenable. Such an approach would effectively render the legislative bar meaningless and open the door to judicial overreach, the Court further said.
The Court also said that any perceived hardship or injustice that may arise from the strict application of the statutory bar is a matter for the legislature to address through amendment. It is not for the Courts to fill perceived gaps in the law by exercising discretion contrary to the express provisions of the statute. However, as settled by the Supreme Court in the case of Prithvi Raj Chauhan (supra), the Court in its inherent jurisdiction under Section 482 Cr.P.C or under Article 226/227 of the Constitution of India can still grant interim protection from arrest if prima facie, the offences alleged are not made out from the contents of the complaint. Further, even an interim bail can be granted by a Court, in appropriate cases, pending a regular bail application.
“In light of the clear and unequivocal wording of Section 438 of the Cr.P.C, which prohibits filing of anticipatory bail application in cases where the offence is punishable by death sentence, the Court is of the opinion that no judicial discretion can be exercised to entertain anticipatory bail application in such cases.
The answer to the question referred to this Bench is, therefore, in the negative. The Courts cannot entertain anticipatory bail application in cases where the State amendment prohibits it,” the Court further observed.