Section 438 CrPC doesn’t bar the grant of Anticipatory Bail to an accused for an offense under subsection (3) of Section 376 IPC: Allahabad HC

In a significant ruling, the Allahabad High Court granted anticipatory bail to the applicant in Criminal Misc Anticipatory Bail Application U/S 438 Cr.P.C. of 2024. 

The case, heard by Justice Shekhar Kumar Yadav, involved serious allegations under Sections 363, 376(3) IPC, and Section 3/4 of the POCSO Act, 2012. The ruling has sparked a discussion on the interplay between state and central laws regarding anticipatory bail provisions.

The appellant, represented by Sri Vivek Shandilya, a senior counsel assisted by Mr. Vaibhav Shandilya, sought anticipatory bail in the Complaint Case of 2023, registered at P.S. Kuthaundh, District Jalaun. The opposite party, the State of UP, and three others were represented by Mr. Ajay Sengar, counsel for the informant, and Mr. R. K. Srivastava, appearing for the State.

At the outset, AGA for the State raised a preliminary objection, arguing that “sub-section (4) of Section 438 of Cr.P.C. explicitly excludes the application of the provision relating to pre-arrest bail with any case involving the arrest of any person on an accusation of having committed an offense under subsection (3) of Section 376 IPC.” This contention was grounded in the recent amendments made by the Code of Criminal Procedure Amendment Act, 2018.

In defense, the counsel for the appellant Sri Vivek Shandilya, highlighted the amendments to Section 438 Cr.P.C. specific to Uttar Pradesh, introduced by the Uttar Pradesh Act No. 4 of 2019, which received Presidential assent on June 1, 2019. According to Shandilya, this state-specific amendment does not exclude pre-arrest bail for offenses under Section 376(3) IPC. He cited Article 254(2) of the Constitution of India to argue that in cases of repugnancy between state and central laws, the state law prevails if it has received Presidential assent.

Justice Yadav meticulously examined the constitutional provisions and precedents. He referred to landmark cases such as Hoechst Pharmaceuticals Ltd vs. State of Bihar (1983) and M. Karunanidhi vs. Union of India (1979), which elucidate the principles of repugnancy and the supremacy of state legislation under Article 254(2) when duly assented by the President.

Justice Yadav noted, “The argument of the learned counsel for the applicant that 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 offense 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.”

The court further underscored the importance of personal liberty enshrined under Article 21 of the Constitution of India. Citing the Supreme Court’s ruling in Sushila Aggarwal vs. State (NCT of Delhi) (2020) and Bhadresh Bipinbhai Sheth vs. State of Gujarat (2015), Justice Yadav emphasized that anticipatory bail provisions should be liberally interpreted to prevent arbitrary arrests and uphold the personal liberty of individuals presumed innocent until proven guilty.

Delving into the merits of the case, the court noted inconsistencies in the victim’s statements and the investigation’s findings. Justice Yadav remarked, “The incident was found to be untrue by the Investigating Officer, and hence no offense under Section 376(3) IPC is made against the applicant. The victim in her statement under Section 164 Cr.P.C. has not stated about rape but later on after nine months of the incident she has given her statement under Section 202 Cr.P.C. and changed her statement that she was raped by the applicant.”

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In granting anticipatory bail, the court imposed several conditions to ensure compliance and prevent misuse. Krishna is required to furnish a personal bond and two sureties, surrender his passport, and refrain from leaving the country without prior court permission. He must not make any inducements, threats, or promises to witnesses and is mandated to attend all court proceedings diligently.

Case Name: Krishna Vs. State Of Up And 3 Others

Case No.: CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. – 1135 of 2024

Bench: Justice Shekhar Kumar Yadav

Order Dated: 13.5.2024

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