From now on, accused can get anticipatory bail in lower courts and high court

From now on accused in Uttarakhand can get anticipatory bail in lower courts and the high court. The Uttarakhand high court has ruled that Section 438 of the Code of Criminal Procedure (CrPC), 1973 that pertains to anticipatory bail “shall be applicable in the state of Uttarakhand”.

The HC in its order maintained that Section 9 of the CrPC (Uttar Pradesh Amendment) Act, 1976 has not been adapted/legislated by the Uttarakhand government and as such “the same will not be applicable to Uttarakhand”.

The directions were issued by a division bench of acting chief justice Rajiv Sharma and justice Manoj Kumar Tiwari while hearing a special appeal filed by Vishnu Sahai and Mohan Kumar Mittal. The order was issued on Wednesday but its copy was released on Thursday.

There has been no provision of applying for anticipatory bail in UP for over 40 years after the provision of anticipatory bail was revoked by the UP government through an amendment in 1976.

The HC said the appellants had challenged the judgment of September 11, 2018 rendered by single judge of the HC. The HC said these appeals had sought a direction, declaring the provisions contained under Section 9 of the CrPC (UP Amendment) Act, 1976, as applicable to Uttarakhand, as ultra vires (void) being violative of Articles 14, 19, 21 and 22 of the Constitution of India.

Single Judge dismissed the writ petitions on September 11, 2018, following which the appellants filed these appeals before the division bench, the HC said. The HC allowed both the appeals and set aside the judgment, challenged by the appellants. Uttar Pradesh, by an amendment carried out by way of Section 9 of CrPC (UP) Act, 1976 had omitted Section 438 of the CrPC,1973.

Uttarakhand came into existence in 2000 on the basis of the UP Reorganisation Act, 2000. The HC said according to Section 87 of this Act, in order to facilitate the application of any law in relation to the UP or Uttaranchal made before the appointed day November 9, 2000, the “appropriate government may, before the expiration of two years from that day, by order, make such adaptations and modifications of the law, whether by way of repeal or amendment...”.

The HC said chief standing counsel apprised it that Section 9 of CrPc UP Amendment Act, 1976 was not adapted.

“Adaptation/legislation is a question of vital public importance. Section 9 of the CrPC (UP Amendment) Act, 1976 affects the personal liberty of the person... We, after hearing counsel for the parties, are of the considered view that neither the CrPc (UP Amendment) Act, 1976 , as a whole, nor its Section 9 has been adapted by Uttarakhand in terms of Section 87 of the UP Reorganisation Act, 2000. Thus, Section 9 of CrpC (UP Amendment) Act, 1976 will not be applicable in Uttarakhand,” the order said.