UP Courts Can't Entertain Anticipatory Bail Pleas For Offences Punishable By Death As State Amendment Prohibits It: Allahabad HC

The Allahabad High Court has held that 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 Courts cannot entertain pre-arrest bail pleas concerning such cases. A bench of Justice Vivek Chaudhary and Justice Narendra Kumar Johari held thus while answering a reference made by a single judge of the HC in April this year. The question referred for the consideration of the larger bench was: “Whether Section 438 (6) (b) CrPC, as it applies to the State of UP, 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 Court noted that since the State amendment explicitly prohibits anticipatory bail for offences punishable by death sentence, the statutory bar is absolute. Hence, the Courts (be it the High Court or the Sessions Court) cannot entertain anticipatory bail pleas in such cases. “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 division bench observed. With this, the Court rejected the argument that the nature of the offence should be considered in determining whether anticipatory bail can be granted despite the statutory prohibition. Such an approach would effectively render the legislative bar meaningless and open the door to judicial overreach, the Court opined. It may be noted that the reference was made to the larger bench after a contradiction appeared in two high court judgments regarding whether anticipatory bail pleas would be maintainable in cases punishable by death. For context, in the case of Deshraj Singh Vs. State of U.P. (Neutral Citation No.-2022:AHC:183606), the single judge of the HC held that although the provision of Section 438(6)(b) of the CrPC (as amended by the UP State Amendment Act 2018) bars the granting of anticipatory bail in cases where the offence is punishable by death sentence if no case for death punishment is made out, an anticipatory bail application would be maintainable. On the other hand, in Vishal Singh vs State of U.P [Criminal Misc Anticipatory Bail No.2759 of 2023], a co-ordinate Bench of the Court held that an anticipatory bail application would not be maintainable in cases involving the commission of an offence under Section 302 IPC, which is punishable by death. Before the Division bench, counsel for the applicant seeking anticipatory bail strongly argued that where the Court is prima facie of the opinion that a death sentence cannot be awarded, an anticipatory bail application should be entertained. To bolster the arguments, the counsel for the applicant referred to the top Court's judgment in the cases of Dr. Subhash Kashinath Mahajan vs The State Of Maharashtra 2018 (a judgment recalled by the SC in 2019) and Prathvi Raj Chauhan vs Union Of India 2020 [a judgment which overruled certain portion of the Subhash Kashinath case]. Both the cases arose out of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. In these cases, the Apex Court observed that if the complaint does not make out a prima facie case for the applicability of the provisions of the 1989 Act, the bar created by Sections 18 and 18- A of the 1989 Act shall not apply. Referring to these judgments, it was argued that since the Supreme Court has interpreted Section 18 of the 1989 Act liberally, the Court should also give a similar liberal interpretation to Section 438(6)(b) of the CrPC in the present matter. On the other hand, the AGA for the State and the counsel for opposite party No. 2 contended that the provisions of Section 438 of CrPC are not part materia to Section 18 of the 1989 Act. Being a special Act, the interpretation given to the provisions of the 1989 Act cannot be simply picked up and applied to Section 438 of CrPC. Finding merit in the arguments of opposite parties, the Court observed that the Supreme Court's interpretation of Section 18 of the 1989 Act cannot be applied to Section 438 of the CrPC. The Court also said that any perceived hardship or injustice arising from the strict application of the statutory bar is a matter for the legislature to address through amendment and the court can't fill the perceived gaps in the law by exercising discretion contrary to the express provisions of the statute. The division bench, however, added that the High Court, in its inherent jurisdiction under Section 482 CrPC or under Article 226/227 of the Constitution of India,...

UP Courts Can't Entertain Anticipatory Bail Pleas For Offences Punishable By Death As State Amendment Prohibits It: Allahabad HC

Sparsh Upadhyay

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