State plans to bring back anticipatory bail under CrPC

The state government made this submission before the Lucknow Bench of the Allahabad High Court on Thursday in connection with a petition challenging the state government’s power to repeal the said section.

“We are considering the proposal to restore the provisions of the anticipatory bail in the state,” said D K Upadhyaya,chief standing counsel,who appeared along with Advocate General Jyotindra Mishra in a case seeking restoration of the above mentioned section.

The Bench comprising Justices Pradeep Kant and Shabihul Hasnain is hearing a petition filed by one Radhey Shyam,who was falsely implicated in a criminal case. At the last hearing,the court had asked the state counsel to take instructions from the state government on the restoration of the anticipatory bail provision.

Ashok Pandey,counsel of the petitioner,said the then N D Tiwari government had justified its decision to repeal the section by alleging that High Court’s interference came in the way of the police arresting criminals.

From time to time,the High Court,he said,had made observations against the repeal of the provision. Similar observations were also made by the Supreme Court which felt that Section 438 provides some protection from unjustified arrest by the police and abuse of power by state agencies.

The Law Commission too had stated that despite the misuse of the provision by “affluent and influential sections”,it could not be a ground for deletion and should,therefore,be retained.

Except Maharashtra,Orissa,West Bengal and Uttar Pradesh,the said Section 438 of CrPC is applicable in its original form across the country. While Uttar Pradesh had repealed the entire section,Maharashtra,Orissa and West Bengal had made some amendments.