The provision of anticipatory bail under section 438 was omitted from the Code of Criminal Procedure (Uttar Pradesh Amendment Act), 1976. This made anticipatory bail seekers rush either to the High Court or Supreme Court. There was a continuous demand for its revival and several writ petitions were also filed. The State Law Commission had recommended restoration of this provision in its third report in 2009. A committee was constituted by the state government under the chairmanship of Principal Secretary to the Uttar Pradesh Government in the Home Department, Special Secretary in the Legislative Department, Director General of Prosecution and Additional Director General of Police (Crime) had also recommended the restoration of the provision.
Now finally, the provision of the anticipatory bail has been restored in Uttar Pradesh after a gap of 43 years, paving the way for the accused to get advance bail in non-bailable offences. The provision was revoked in the state during the Emergency in 1976. Section 438 (anticipatory bail) was removed from the Code of Criminal Procedure 1973 through the Code of Criminal Procedure (Uttar Pradesh Amendment) Bill, 1976.
The state assembly passed ‘The Code of Criminal Procedure (Uttar Pradesh Amendment) Bill, 2018 on August 31, 2018, for the restoration of anticipatory bail in the state. President Ram Nath Kovind approved the amendment bill on June 1, 2019. The Allahabad High court and the apex court had been pressing the state government to re-apply this law.
Apart from Uttar Pradesh and Uttarakhand, all other states have the provision of anticipatory bail. In 2010, a bill in this regard was cleared by the state Assembly of Uttar Pradesh and sent to the Centre for approval. However, it was put on hold. The then Mayawati government had passed a bill that year and sent it to the President but it was sent back a with suggestions for some modifications. In July last, in an application before the Supreme Court, the state government had given assurance that the provision would be re-introduced.
Earlier only Allahabad High Court and Supreme Court was authorized to give anticipatory bails but after the amendment, the district court too has got the powers with riders. Highlights of the amendment are as follows:
(i) The accused would be required to be available for interrogation as and when required.
(ii) The person cannot leave India without the permission of the court.
(iii) There is no anticipatory bail if the person is charged with an offence punishable under:
(a) The Unlawful Activities (Prevention) Act, 1967
(b) The Narcotics Drugs and Psychotropic Substances Act, 1985
(c) The Official Secrets Act, 1923
(d) The Uttar Pradesh Gangster and Anti- Social Activities (Prevention) Act, 1986
(e) Offences punishable with death
(iv) The application would be disposed within 30 days of the date of such an application by the High Court or the Session Court as the case may be.
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