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Synopsis

In a recent judgment, the Allahabad High Court clarified the limitations of the courts in entertaining anticipatory bail pleas under Section 438 of the Code of Criminal Procedure (CrPC) as amended in Uttar Pradesh.

A division bench comprising Justices Vivek Chaudhary and Narendra Kumar Johari held that in cases where the offence is punishable by death sentence, no judicial discretion can be exercised to entertain anticipatory bail application, as per the Code of Criminal Procedure (Uttar Pradesh Amendment) Act, 2018.

A single judge bench by order dated April 1, 2024, referred the following question for consideration by a larger bench of the high court:

"Whether Section 438 (6) (b) CrPC, as it applies to the State of U.P., puts an absolute bar against applicability of Section 438 CrPC 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 was a contradiction in judgments in Deshraj Singh Vs. State of UP (2022) and Vishal Singh Vs State of UP (2023).

In the case of Deshraj Singh, it was held that the provision of Section 438(6)(b) of the CrPC 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.

On the other hand, in the case of Vishal Singh, a division bench of the high court held that in case involving commission of an offence under Section 302 of the IPC, which is punishable by death sentence, an anticipatory bail application is not maintainable.

In examining this issue, the present division bench noted that while Section 438, CrPC typically empowers courts to grant anticipatory bail, Uttar Pradesh’s amendments impose specific exceptions, including cases where offenses are punishable by death. According to the court, the language of the amendment leaves no room for judicial discretion, establishing an unequivocal prohibition against granting anticipatory bail in such cases, regardless of the case specifics.

In the matter at hand, the pre-arrest bail applicant’s counsel had argued that the court should interpret Section 438(6)(b) in a manner similar to the Supreme Court's liberal interpretation of Sections 18 and 18A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. However, the bench rejected this analogy, noting that the two statutes serve different purposes and legal contexts. The court asserted that any relief provided under anticipatory bail cannot circumvent clear legislative intent.

The court further clarified that any perceived hardship arising from the strict application of this bar is a legislative matter and not for judicial remedy. However, it acknowledged that, under its inherent jurisdiction, the court could still grant interim protection from arrest in exceptional cases where the allegations are not prima facie supported by the facts, as allowed by Article 226/227 of the Constitution or Section 482, CrPC.

Concluding its judgment, the division bench underscored that courts must respect the statutory framework and cannot exercise judicial discretion to override the clear legislative mandate.

"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," said the bench.

It directed that the matter be referred back to the single judge for further proceedings in accordance with this interpretation.

Case Title: Jitendra Pratap Singh Alias Jeetu Vs. State Of U.P Thru. Prin. Secy. Home Civil Secrt. Lko.