'CrPC (UP Amendment) Act 2018' Restoring Anticipatory Bail Law Also Applies To Persons Apprehending Arrest In Pre-2019 Offences: Allahabad HC

The bench of Justice Subhash Vidyarthi added that the 2018 Amendment Act merely restores the benefit of anticipatory bail to persons apprehending arrest, which was available to the persons in the State of UP till 1976 and hence, this being a beneficial legislation, it cannot be restricted in its operation to offences committed after enactment of Act in 2019.

Herein it may be noted that Section 438 of CrPC, 1973, which provides for the grant of bail to a person apprehending arrest in a non-bailable offence, was revived by the State's 2018 Amendment Act (with effect from June 6, 2019). The provision was removed by way of the CrPC (Uttar Pradesh Amendment) Act 1976, during the Emergency period.

The clarification came from the bench while dealing with an anticipatory bail petition filed by one Allama Zamir Naqvi in a 2014 FIR lodged under Sections 452, 354 IPC.

His anticipatory bail was rejected by the Sessions Court, Raebareli on the ground that the incident occurred in April 2014, on which date the provisions of Section 438 CrPC did not apply to the State of UP.

Taking into account the circumstances and reasons for which the 2018 Amendment Act was passed, enacted and notified on June 6, 2019, the Court observed thus:

“The Court will presume that a law, which affects substantive rights, are meant to have prospective operation only. In the same way, as regards procedural laws or the laws relating to a mere matter of procedure or of Forum, they carry retrospective impact. Declaratory, clarificatory or curative Statutes are allowed to hold sway in the past. The very nature of the said laws involve the aspect of public interest which requires sovereign Legislature to remove defects, clarify aspects which create doubt. The declaratory law again has the effect of the legislative intention being made clear.”

Against this backdrop, the Court opined that the Criminal Procedure Code (Uttar Pradesh Amendment) Act, 2018 merely restores the benefit of anticipatory bail to persons apprehending arrest, which benefit was available to similarly situate persons in the rest of India immediately before enactment of the aforesaid Amendment Act and which benefit was available to the persons in the State of U.P. also before enactment of Code of Criminal Procedure (Uttar Pradesh Amendment) Act, 1976.

Given this, the Court found that the reason given by the Session court for the rejection of the anticipatory bail application was incorrect.

Further, taking note of the facts of the case, the Court observed that there is an old animosity between the parties regarding which two FIRs had been filed on previous occasions and that besides the version of the informant, there is no other material to support the allegations.

The Court also noted that there is some variance in the version of the incident and in the statement of the victim recorded under Sections 161 CrPC and 164 CrPC, the fact that the applicant is a 60-year-old person, the Court allowed the anticipatory bail plea.