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Above: Prodded by the Supreme Court, the Yogi Adityanath government is restoring anticipatory bail in Uttar Pradesh/Photo: UNI

Scrapped during the Emergency with the intention of making arrests and incarceration of political opponents easier, the provision makes a return after 42 years in Uttar Pradesh

By Atul Chandra in Lucknow

Over four decades after it was scrapped, the anticipatory bail provision is all set to be re-introduced in Uttar Pradesh with the state government referring the Code of Criminal Procedure (Uttar Pradesh Amendment) Bill, 2018, for the president’s approval. The bill, which proposes amendments to Section 438 (anticipatory bail) of the CrPC only for Uttar Pradesh, was approved by the state assembly on August 31.

A senior government official said that being “a single state amendment”, the bill should face no hurdle, although a constitution bench of the Supreme Court had upheld its abrogation in 1976. Barring Uttar Pradesh and Uttarakhand, all other states have the provision of anticipatory bail.

The anticipatory bail provision was revoked in the state during the Emergency in 1976, when Hemvati Nandan Bahuguna was the chief minister. With the state legislature enacting Section 9 of CrPC Uttar Pradesh (Amendment) Act 1976, Section 438 of CrPC was deleted with respect to its application to Uttar Pradesh. The provision was done away with, primarily to make arrests and incarceration of those opposing the Emergency easier.

In July, the state government infor­med the Supreme Court that it would reintroduce anticipatory bail. The additional advocate-general of the state, Aishwarya Bhati, told a bench of Justices SA Bobde and L Nageswara Rao of the government’s decision to bring back the law.

The assurance came on a PIL filed by advocate Sanjeev Bhatnagar who argued that the anticipatory bail provision should be introduced not only in Uttar Pradesh but also in Uttarakhand.  The absence of the anticipatory bail provision in the two states was “discriminatory”, Bhatnagar contended. “Articles 14 and 15 of the Indian Constitution provide the fundamental right of equality and no discrimination, whereas the Preamble of the Constitution of India prominently considers justice, equality and fraternity as its prime features,” the petition stated.

In 2008, the Supreme Court asked the Uttar Pradesh government to bring an ordinance for restoring the anticipatory bail provision. Subsequently, the Mayawati government passed the Code of Criminal Procedure Uttar Pradesh (Amendment) Bill, 2010, to reintroduce the anticipatory bail law in the state.

The bill was sent for President Pratibha Patil’s assent. President Patil, however, returned it in September 2011 on some technical grounds. The president’s decision was intimated to the state government through a letter dated September 8, 2011, which simply said that “in pursuance of proviso to Article 201 read with Article 200 of the Constitution of India, the president has been pleased to hold her assent” to the bill.

Ever since, the bill has been on the backburner. The Samajwadi Party government of Akhilesh Yadav, too, did nothing to restore the provision.

With the PIL for restoration of the provision pending before it, the Supreme Court in March 2018 gave one last chance to the state government to decide on the amendment. Advocate Bhati then told the Court that “we are examining the issue at the highest level, for which six weeks’ time is required.” At this, Justice Bobde reportedly said, “You are taking lot of time. Don’t ask for more time.” Bhati then requested for “one last opportunity”.

But for the apex court’s tough stance, the state government may have still slept over the bill. One reported query from the bench in the March hearing explains the point. “Are you willing to act or not… why the government did not discharge its constitutional duties by getting the proposal passed in the assembly,” the bench had asked.

According to an official, under Sec­tion 438 of the CrPC Bill, 2010, it had been left to the Court to impose conditions or riders before allowing anticipatory bail. In the amendment bill passed by the UP assembly this year, the government has made the following riders for grant of anticipatory bail mandatory:

  • That the applicant shall make himself available for interrogation by a police officer as and when required;
  • That the applicant shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or any police officer;
  • That the applicant shall not leave India without the previous permission of the Court; and,
  • Such other conditions as may be imposed under sub-Section (3) of Section 437, as if bail were granted under that Section.

Like the law in West Bengal, another amendment proposed by Uttar Pradesh is about the period in which a Court must decide on an anticipatory bail application. This has been fixed within 30 days. “The High Court or the Court of Session, as the case may be, shall finally dispose of an application for grant of anticipatory bail… within 30 days of the date of such application,” the amendment bill says.

Sub-section 6 of the latest amendment bill lays down that the anticipatory bail provisions shall not be applicable to those charged under the Unlawful Act­ivities (Prevention) Act, 1967, the Nar­cotics Drugs and Psychotropic Substances Act, 1985, the Official Secrets Act, 1923 and the Uttar Pradesh Gang­sters and Anti-Social Activities (Prevention) Act, 1986.

The bill also keeps out of its purview those committing offences warranting the death sentence. Interestingly, the 1976 amendment withstood a legal challenge before a constitution bench which rejected the contention that the Act was unconstitutional and that deletion of Section 438 in its application in UP violated constitutional provisions. In Kartar Singh vs State of Punjab, the Supreme Court ruled, “The deletion of the application of Section 438 in the State of Uttar Pradesh by Section 9 of the Code of Criminal Procedure (UP) Amendment, 1976, does not offend either Article 14 or Article 19 or Article 21 of the constitution and the state legislature is competent to delete that section, which is one of the matters enumerated in the concurrent list (List III of the Seventh Schedule) and such deletion is valid under Article 254(2) of the constitution.” This judgment of the Supreme Court was cited by Justice Ravindra Singh and Justice Devendra Kumar Upadhyay of the Lucknow Bench of Allahabad High Court seeking a writ of mandamus directing the president of India to “accord assent to the Criminal Procedure Uttar Pradesh (Amendment) Bill 2010”. Dismissing the petition in their 2015 judgment, the judges said, “The said prayer cannot be accepted as no such mandamus can be issued by this Court in exercise of its jurisdiction under Article 226…”

In the statement of objects and reasons for re-introducing Section 438 of CrPC, Chief Minister Yogi Adityanath, who formed a committee of senior officials to decide on the matter, said, “There is a continuous demand for its revival. Writ petitions have also been filed before the Hon’ble Courts. The state law commission has, in its third report in 2009, also recommended for reviving the provisions of the said section. The bill was drafted and placed before the House after the committee’s recommendations.”

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