UP Amendment To S. 438 CrPC Doesn't Bar Grant Of Anticipatory Bail To Accused Booked U/S 376(3) IPC: Allahabad HC

A bench of Justice Shekhar Kumar Yadav observed this while granting anticipatory bail to a 17.5-year-old boy who has been accused of molesting a 16-year-old girl.

As per the case of the prosecution, in October 2022, the minor daughter of the informant had gone to school at 8 in the morning; the applicant is said to have reached the college, took her to a Guest house and kept her locked in a room for two hours and did “wrong things” by molesting the delicate parts of her body.

Seeking anticipatory bail in the case, the accused moved the Court, wherein his counsel argued that the applicant was innocent of the offences alleged against him and he had been falsely implicated in the case.

Counsel for the applicant contended that, as per the victim's statement recorded under Sections 161 & 164 CrPC and the medical report, the Investigating Officer found the incident to be untrue, and hence, no offence under Section 376(3) IPC was made against the applicant.

It was further submitted that the victim, in her statement under Section 164 CrPC, has not stated about rape. Still later on nine months after the incident, she gave her statement under Section 202 CrPC and changed her statement that the applicant raped her.

On the other hand, the state's counsel contending raised a preliminary objection that sub-section (4) of Section 438 of CrPC explicitly bars the grant of pre-arrest bail to an accused who has been arrested on the accusation of having committed an offence under subsection (3) of Section 376 IPC.

For context, Section 438(4) states thus:

“Nothing in this section shall apply to any case involving the arrest of any person on accusation of having committed an offence under sub-section (3) of Section 376 or Section 376-AB or Section 376-DA or Section 376-DB of the Indian Penal Code.”

In reply to the said argument, the counsel for the applicant submitted that Section 438 CrPC, as applicable in the State of Uttar Pradesh [vide Uttar Pradesh Act No. 4 of 2019 (assented by the President on June 1, 2019)] does not exclude the person seeking pre-arrest bail for an offence committed under Section 376 (3) IPC.

It was further contended that in case of repugnancy, if any, between the State Act and Central Legislation on a subject in the concurrent list, the same would stand cured if the State Act receives the assent of the President under Article 245(2) of the Constitution of India. Such repugnancy cannot, therefore, be grounds to invalidate the State Act.

Taking into account the arguments of the counsel for the applicant as well as considering the apex court's ruling in the cases of Hoechst Pharmaceuticals Ltd Vs State of Bihar 1983 and C.S. Gopalakrishnan Etc Vs The State of Tamil Nadu and others, 2023 LiveLaw (SC) 413, the Court said that in the instant case, the state amendment would prevail over the Central Act.

Thus, the Court ruled that anticipatory bail for an accused booked under Section 376 (3) IPC is not barred.

Even otherwise, the Single Judge, while referring to the Top Court's verdict in the case of Hema Mishra v. State of Uttar Pradesh and Others, said that a writ court is even empowered to grant pre-arrest bail despite a statutory bar imposed against the grant of such relief.

Against this backdrop, considering the nature of the accusations and antecedents of the applicant, the Court granted anticipatory bail to the accused applicant on certain conditions.

Case title - Krishna vs. State Of Up And 3 Others 2024 LiveLaw (AB) 309

Citation: 2024 LiveLaw (AB) 309

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