The Allahabad High Court held that an anticipatory bail application filed by an accused in a case under Section 376(3) CrPC is maintainable as the 2019 UP amendment to Section 438 CrPC does not exclude it.

The court, noting the U.P. State Amendment Act, 2019 to Section 438 CrPC observed that there is no bar to exclude the application of provision relating to pre arrest bail in a case under Section 376(3) IPC.

The Court was hearing an application seeking anticipatory bail in a case under Sections 363, 376(3) IPC and Section 3 and 4 of the Prevention Of Children From Sexual Offences Act, 2012, during the pendency of the trial.

The bench of Justice Shekhar Kumar Yadav observed, “…the state amendment would prevail over the Central Act find force as there is no bar to exclude the application of the provision relating to pre-arrest bail in relation to any case involving the arrest of any person on accusation of having committed an offence under subsection (3) of Section 376 IPC in view of the amendment in the State of UP under Section 438 Cr.P.C. as amended vide UP Act No. 04 of 2019, as such the application for pre-arrest bail would be equally maintainable.”

Senior Advocate Vivek Shandilya appeared for the applicant and Advocate Ajay Sengar appeared for the Informant.

Brief Facts-

It is the case of the prosecution that while the minor daughter of the informant, who is said to be a student in high school, had gone to school in the morning, the applicant is said to have reached the college and seduced her daughter and 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. It is also alleged that she was also molested by him earlier as well.

The Court mentioned Section 438 of the CrPC which provided for issuing directions for granting bail to a person apprehending arrest.

The Court further mentioned Article 254 of the Constitution of India which provided for the method of resolving conflicts between a law made by Parliament and a law made by the Legislature of a State concerning a matter falling in the Concurrent List.

The Court mentioned the decision in Hoechst Pharmaceuticals Ltd Vs State of Bihar, 1983 4 SCC 45 and quoted, “To the general rule laid down in cl. (1), cl. (2) engrafts an exception, viz., that if the President assents to a State law which has been reserved for his consideration, it will prevail notwithstanding its repugnancy to an earlier law of the Union, both laws dealing with a concurrent subject. In such a case, the Central Act will give way to the State Act only to the extent of inconsistency between the two, and no more.”

The Court stated that the provision of pre-arrest bail enshrined in Section 438 of Cr.P.C. is conceptualised under Article 21 of the Constitution of India, which relates to personal liberty. According to the Court, the law presumes an accused to be innocent till his guilt is proven therefore as a presumably innocent person, he is entitled to all the fundamental rights, including the right to liberty guaranteed under Article 21 of the Constitution of India.

The Court relied on the decision in the case of Sushila Aggarwal v. State (NCT of Delhi) and Another (AIR 2020 SC 831), where according to the Court the Apex Court held, “the provision for pe-arrest bail was specifically enacted as a measure of protection against arbitrary arrests and humiliation by the police, which Parliament itself recognised as a widespread malaise on the part of the police and since the denial of bail would amount to deprivation of personal liberty, the court should lean against the imposition of unnecessary restrictions on the scope of Section 438 Cr.P.C..”

Finally, the Court enlarged the applicant on anticipatory bail.

Accordingly, the Court disposed of the application.

Cause Title: Krishna v. State of U.P. (Neutral Citation: 2024:AHC:85825)


Appellant: Sr. Adv. Vivek Shandilya, Adv. Intekhab Alam Khan and Adv. Vaibha. Shandilya

Respondent: Adv. Ajay Sengar and Adv. R.K. Srivastava

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