E-Paper
Anticipatory bail: HC seeks govt reply
THE ALLAHABAD High Court has asked the government advocate to file a reply within six weeks regarding the court?s previous recommendation to the State Government to consider framing of an ordinance to restore the provision of anticipatory bail in Uttar Pradesh. The court directed that the case be listed on July 10,2006 for further hearing.
THE ALLAHABAD High Court has asked the government advocate to file a reply within six weeks regarding the court’s previous recommendation to the State Government to consider framing of an ordinance to restore the provision of anticipatory bail in Uttar Pradesh.
The court directed that the case be listed on July 10,2006 for further hearing.
A Division Bench, comprising Justice Imtiyaz Murtaza and Justice Amar Saran, said, “Since the matter is of considerable importance, we will require the presence of the advocate-general to assist the court on the question of appropriateness of an ordinance being issued in the State of UP restoring section 438, as it presently exists in the Criminal Procedure Code, in a modified form as in the case of Maharashtra or elsewhere, or after incorporating other reasonable amendments.”
A Division Bench of this court had passed orders on July 29,2002, strongly recommending to the State Government to consider framing an ordinance to restore provisions of anticipatory bail by repealing section 9 of the UP Act No- 16 of 1976, and empowering the sessions court, as well as the High Court, to grant anticipatory bail.
Quoting this order, the court said, “Almost four years have elapsed since those directions were issued in the aforesaid decision. We now call upon government advocate Vijay Shankar Mishra, representing the State Government to positively file counter affidavit (reply) within six weeks.” The court passed this order on a writ petition filed by Sudaman and others of Jaunpur district after hearing counsel for the petitioner and the government advocate.
Section 438 of the Criminal Procedure Code (provisions for anticipatory bail) was omitted in Uttar Pradesh in 1976. However, this provision has been retained in an amended form in Maharashtra, Orissa and West Bengal.
The court rejected the presumption that powers of anticipatory bail would be arbitrarily and improperly exercised by sessions courts if this provision was restored in UP, and that undeserving criminals would be let off lightly. The court observed, “Sessions judges are experienced and senior judges, immediately subordinate to the High Court judges and there is no reason to presume that they will act in an arbitrary, whimsical or non-judicial manner in disposing of applications under Section 438 of the Cr PC. Moreover, an unjustified order of the sessions court granting anticipatory bail can always be corrected by the High Court, in exercise of powers under section 439 (2) of the Cr PC.”
Observing that poor persons would also be protected by the sessions court if this provision was restored, the court said, “Poor persons would be benefited, as approaching the High Court under Section 226 may be beyond the means of an indigent accused. Presently, the relief of stays of arrests under Article 226 (writ jurisdiction) can only be availed by the solvent and the affluent.”
Besides, the court said that if this provision was restored, the two judges, hearing writ petitions at the stage of investigation, would be freed for more important work such as regular hearing of criminal appeals.
