Omitted During Emergency, UP Reinserts Provision For Anticipatory Bail

The Uttar Pradesh government has reinserted the provision of anticipatory bail in the State with effect from June 6, 2019.

Section 438 Criminal Procedure Code which provides for anticipatory bail had been omitted by Uttar Pradesh government during the Emergency and has been brought back following recurrent demands for its reinsertion by way of writ petitions, recommendations of the State Law Commission and orders of various courts and the Supreme Court asking the government to consider bringing it back into effect.

In a press note, the government said there had been demands to restore Section 438 CrPC and several writ petitions had been filed for the same.

It noted that the Uttar Pradesh State Law Commission had in its third report way back in 2009 recommended reinsertion of section 438 of the CrPC in its application to Uttar Pradesh.

A committee had been constituted under the State home department to mull over the reinsertion of section 438. This committee recommended reinsertion of the Section along with some amendment. The same was passed in the State Assembly and then sent to the President for approval. The same was approved on June 1 and thereafter, published in the Gazette making the section effective from June 6.

It is to be noted that the Uttar Pradesh government had last year told the Supreme Court that it is working towards bringing back Section 438 CrPC in the state. The apex court was hearing the petition moved by advocate Sanjeev Bhatnagar for reinsertion of Section 438 in its application to Uttar Pradesh.

Section 438 CrPC was omitted in its application to Uttar Pradesh by Section 9 of the Code of Criminal Procedure (Uttar Pradesh Amendment) Act, 1976 (UP Act No. 16 of 1976).

The State Law Commission in its report submitted by Justice V C Mishra in 2009 recommended repealing Section 9 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 report says.

Back then, several state governments had criticised the working of Section 438 in that it hampers effective investigation of serious crimes, the accused misuse their freedom to criminally intimidate and even assault the witnesses and tamper with valuable evidence.

In view of the above circumstances, some State Governments like West Bengal, Maharashtra, Uttar Pradesh made local amendments to the Code of Criminal Procedure. Uttar Pradesh was the only state to have omitted the provision of anticipatory bail.

The deletion of this provision not just went against those anticipating arrest but also burdened the courts. In the case of Smt. Sudama & others vs. State of U.P. & others, the Allahabad High Court had suggested 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.

Click here to download the press release