By June 19, 2019 December 20th, 2019 No Comments

The State of Uttar Pradesh vide Criminal Procedure (Uttar Pradesh Amendment)
Act, 2018
(hereinafter referred to as the “said Amendment”) had reinstated the
provision of Anticipatory Bail granted under Section 438 of Code of Criminal
Procedure, 1973 (hereinafter referred to as the “Cr.P.C.”) in the State with effect from June 6, 2019 after almost
43 years. The provision of Anticipatory
bail was scrapped in 1976 vide UP Act 16 of 1976 (hereinafter
referred to as the “1976 Amendment”). Since then, there has
been repetitive demand for reinserting Section 438 of Cr.P.C., by way of writ
petitions, recommendations of the State Law Commission and orders of various
The constitutional validity
of the 1976 Amendment was previously challenged before the Hon’ble Supreme
Court in Kartar Singh vs. State of
with other writ petitions. Hon’ble Supreme Court opined in favor of the
Government and held that the deletion of the application of Section 438 of
Cr.P.C. in the State of Uttar Pradesh by Section 9 of the 1976 Amendment does
not offend either Article 14 or 19 of the Constitution and the State
Legislature is competent to delete the aforesaid section as it is one of the subjects
enumerated in the Concurrent List ( List III  of the Seventh Schedule of the Constitution of
India) and therefore, State Legislature is competent to amend the provisions of
Cr.P.C. under the power vested in it by Clause 2 of Article 254 of the
Furthermore, the major issue
faced by the High Court due to the omission of the Section 438 of Cr.P.C. was
the deletion of the provision of Section 438
of Cr.P.C. has strained the capacity and resources of the already overburdened
High Courts in Uttar Pradesh as huge amount of petitions were being filed under
Section 482 of the Cr.P.C. seeking relief pertaining to pre-arrest bail. This
issue has been pointed by the Hon’ble Allahabad High Court in various of its
The Hon’ble Allahabad High Court in the case
of Smt. Sudama & others vs. State of U.P. & others[2],
opined that if the provision on anticipatory bail were available in the State
of Uttar Pradesh, the burden on the High Court and other courts would
substantially reduce and would allow judges to deal with more pressing matters.
In the absence of a provision for Anticipatory Bail, the High Court has to deal
with large number of Writ Petition for stay of arrest or quashing of complaints
under the extraordinary jurisdiction of High Court granted under Section 482 of
the Cr.P.C. The Court also stated that there has been no evidence to suggest
that the existence of the anticipatory bail provision in other states has led
to its gross misuse. It further stated that reinstating the provision would
also be beneficial for the poor, who, in case of abuse by the police, would
have to apply to the High Court, which is an expensive and cumbersome process.
The Court observed that it would be even more useful to the poor if the power
to approach a Sessions Court were also provided under Section 438. In the same
judgment the Court made the explicit recommendation to the Uttar Pradesh to
repeal the 1976 Amendment which scrapped the provision on anticipatory bail.
The aforesaid stand of the Hon’ble High Court was further reiterated in the Vijay
Kumar Verma case[3]
wherein the Division Bench
had made the same recommendation to the State Government.
Even the Hon’ble Supreme  Court felt the importance of having Section
438 of Cr.P.C. in State of U.P. and expressed it desire in the case of Som
Mitta vs. Government of Karnataka[4]
wherein, Hon’ble Apex Court observed and sated that because of absence of the
provision for anticipatory bail in U.P., thousands of writ petitions and
Section 482 Cr.P.C. applications are being filed in the Allahabad High Court
praying for stay of the petitioners arrest and/or quashing the FIR which
unnecessary increases the work load of the High Court and adding to the
arrears, apart from the hardship to the public, and overcrowding in jails. The
Hon’ble Apex Court made a strong recommendation to the Government of U.P. to
immediately issue an ordinance to restore the provision for anticipatory bail
by repealing Section 9 of 1976 Amendment and to empower the Allahabad High
Court as well as the Sessions Courts in U.P. to grant anticipatory bail.
Owing to such mounting and
continuous demand of reinserting the Section 438 of the Cr.P.C. in the State of
Uttar Pradesh and to lessen the burden of the UP Judicial System, a commission
was constituted under the aegis of the Principal Secretary, Home Department,
Government of Uttar Pradesh to consider re-introducing the provision with the
chairmanship of the Hon’ble Justice V.C. Mishra as Chairman of the committee.
The committee recommended reinsertion of the Section along with some amendment.
The Commission in its report
submitted by Justice V C Mishra in 2009 recommended repealing of Section 9 of
the 1976 Amendment and notes that, “the
only reason given in the Statement of Objects and Reasons for its (S. 438)
omission, “has been creating practical difficulties
. It is well-known reasons behind the
proclamation of the emergency. Now such conditions do not exist. The law and
order situation in the State is much better than earlier. The machinery
responsible to maintain the law and order situation in the State is also
functioning well
”. The same was passed in the State Assembly and then sent
to the President for approval in 2010.
Pursuant thereto, the State Government introduced
the Criminal Procedure Code (Uttar Pradesh Amendment) Bill, 2018
 before the State
Legislature and thereafter, it was presented to the State Governor for his
approval. The Amendment was approved by the President on June 01, 2019 and has
been brought in force with effect from June 06, 2019.
In view thereof, Section
438 has been added after Section 437-A of Cr.P.C., which states that if a
person has reason to believe or he has reasonable apprehension that he may be
arrested on accusation of having committed a non-bailable offence, he may
approach to the High Court or the Court of Sessions that if he is arrested on
accusation of such offence, he shall be released on the bail. Therefore, it
would fare to conclude that it is a welcome step by the State Legislature and
will certainly help in reducing the workload of the High Courts. It will
further grant opportunities to the poor as they can now approach Court of
Sessions without going to cumbersome and expensive forum of High Court. 
are certain requisites which a Court has to follow while hearing to the
Anticipatory Bail Applications under Section 438 of Cr.P.C., which includes:
a.      The nature and gravity of
b.     Whether or not the accused
was previously convicted for any cognizable offence.
c.      Whether or not the accused
is trying to escape from justice.
d.     Whether or not the
accusation has been made in order to injure or humiliate the applicant.
the Court rejects the application filed under Section 438 of Cr.P.C., then the
officer -in-charge of a police station shall have the power to arrest the
applicant without the warrant on the basis of accusation mentioned in the
application. If the Court accepts the application then the Court has to
indicate the date, on which the application shall be finally heard for passing
an order in regard of anticipatory bail.

[1] (1994) 3 SCC 569
[2] Criminal Miscellaneous Writ Petition No. 5774 of
2006 dated
May 9, 2006
[3] 2002 CriLJ 4561
[4] AIR 2008 SC 1126

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