ANTICIPATORY BAIL: THE JOURNEY OF

THE STATE OF UTTAR PRADESH

Submitted by

Megha Sugandhi – 17010324024

Division: C
BBA-LLB
 I. INTRODUCTION:

“Judges ought to remember that their office is jus dicere1 and not jus dare2, to interpret law,
and not to make law, or give law”.3 In other words, the great “Lord Chancellor reminded the
judiciary that while, judges can make4 laws, it is only the legislature that can create5 it.6 It is
clear that judges play a notable role in the process of making laws by interpreting and
applying the same.7 Nonetheless, it is significant to comprehend the true meaning and nature
of” the term interpretation.

As defined by Barnett8, “interpretation is the activity of determining the linguistic meaning of

a legal text”.9 In layman’s words, interpretation of statutes is the process of understanding the
law correctly which is so done with the aid of the Interpretation of Statutes Law. The term
“interpretation” is often confused with “construction”, although they mean different. 10
Writers like Cooley11 define “interpretation” as “the art of finding out the true sense of
words”, and “construction” as “the drawing of conclusions which are in the spirit, but not
within the letter of the law”.12 Although, judges use both these tools in the course of a
proceeding, while, referring to a law; they are both distinct from the other.

It is often misapprehended that judges, by virtue of the Law of Interpretation of Statutes, are
permitted to control or confine the intention of the legislation as they may deem reasonable. 13
However, the objective behind the use of the rules of interpretation is restricted to assist the
Court in ascertaining the object and intention of the legislature. 14 It is fundamental to note
that the Law of Interpretation of Statutes is used only under certain circumstances: 15 One,
when the language of the provision if ambiguous. Two, the intention of the statute is not
1
In Latin, it means to declare the law.
2
In Latin, it means to give the law.
3
Francis Bacon, The Essays (Penguin Classics, 1st ed., 1986).
4
The Concise Oxford English Dictionary (10 th Ed.) defines the word “make” as “form by putting parts
together”.
5
The Concise Oxford English Dictionary (10th Ed.) defines the word “create” as “bring into existence”.
6
Vepa P. Sarathi, Interpretation of Statutes 4 (Eastern Book Company, Lucknow, 5th ed., 2010).
7
P. Ramachandra Rao v. State of Karnataka, (2002) 4 SCC 578.
8
Randy E. Barnett is a renowned American scholar, lawyer and professor of legal theory at the Georgetown
University.
9
Randy E. Barnett, “Interpretation and Construction”, 34 Harv. J.L. & Pub. Pol'y 67 (2011).
10
CWT v. Hashmatunnisa Begum, Supp (2) SCC 43.
11
In re, Sea Customs Act, 1878, AIR 1963 SC 1760.
12
Supra note 6 at 5.
13
Alekhya Reddy, Literally Interpreting the Law – An Appraisal of the Literal Rule of Interpretation in India,
available at http://www.manupatra.com/roundup/338/Articles/Literally%20interpreting%20the%20Law.pdf.
14
Ibid.
15
Diva Rai, Statute Interpretation: Overview and Analysis, available https://blog.ipleaders.in/statute-
interpretation-overview-and-analysis/amp/.
clear. Three, when more than one meaning can be drawn out of a provision. Four, when the
provision can be viewed from more than one perspective. Five, the purpose of the statute is
defeated by the language of the provision.

The laws of interpretation are significant for justice because certain statutes have gaps and
ambiguity, making it difficult for the judiciary to implement laws uniformly and fairly. 16 If a
provision can be viewed to have multiple meanings, the true intention of the legislation fades
away into the confusion. To achieve the objective of clarifying the true intent of the
legislation towards a statute, judges use various sources, tools and rules.

Previous statutes on the same, precedents, related laws, reports, other authorities are used as
the sources.17 Tools include the title, the short title, the long title, the preamble, the definition
clause, headings, marginal notes, punctuation marks, proviso, explanations, schedules, et
cetera.18 The rules of interpretation consist of three main rules – the Literal Rule of
Interpretation19, the Mischief Rule20, the Golden Rule of Interpretation 21. Two other important
concepts for the Law of Interpretation of Statutes are the “Ejusdem Generis” 22 and “Noscitur
a Sociis”23.

As the name suggests, the Interpretation of Statutes Law is applicable to statutes of all kinds.
Over the years, the Law of Interpretation has been applied to various provisions of statutes
during the course of innumerous case proceedings. Along with providing a deeper
apprehension of statutes, the Law of Interpretation has led to major changes and amendments
being brought. This would include the Constitutional Law, the Taxation Law, the Procedural
and the Penal laws as well. Statutes may be construed strictly or liberally on the basis of their
intent and nature.24

Strict construction means that judges are required to apply the plain meaning of the language
of the provision.25 They are restricted from relying upon any such evidence that changes the
plain and clear meaning of the law. However, this is subject to the provision being

16
Supra note 7.
17
Anurag Deep, “Interpretation of Statutes”, L ASIL 751 (2013).
18
Supra note 13.
19
The literal understanding of the words is used in this rule.
20
It is the principle used to interpret the intention of the legislators in case of ambiguity.
21
Here, if the normal meaning of the words in a statute are absurd, judges can deviate from the literal meaning.
22
It literally translates to “of the same kind and of the same species”.
23
It is a rule which states that the meaning of an unclear word must be drawn from its context.
24
Supra note 14.
25
Union of India v. Deoki Nandan Aggarwal, 1992 Supp. (1) SCC 323.
unambiguous and clear.26 The Criminal Law is one branch where there is strict application of
the language used. This means that the criminal statute shall not be enlarged by implication
beyond the fair intent of the statute. Any act or individual beyond the scope of the statutes,
cannot be brought in by means of interpretation.27 Doing so would reflect the use of liberal
construction and not strict.

The focus of this paper is on the Code of Criminal Procedure; more specifically, the
Anticipatory Bail. It is a type of bail which one seeks in anticipation of his arrest. 28 However,
the bail would not be brought into effect until the person is arrested. 29 It is a way of settling
the custody of the person seeking the anticipatory bail in circumstances of his arrest. 30 The
need for granting this kind of bail was observed for convenience and societal reasons. 31 The
same was introduced into the Code of Civil Procedure in 1973 as Section 438.

The provision gives jurisdiction to both, the High Court and the Sessions Court to grant such
bail to the applicant. The entire procedure of anticipatory bail is mentioned, thereby. The
provision also states that the Court may refuse the grant of anticipatory bail upon considering
certain factors. Section 438 of CrPC, like many other provisions of different statutes, has
been interpreted and even amended a few times. This paper is an attempt to lay down
precedents from the Allahabad High Court on the same.

26
Maulvi Hussain Haji Abraham Umarji v. State of Gujarat, (2004) 6 SCC 672.
27
Simeneh Kiros Assefa, “Methods and Manners of Interpretation of Criminal Norms”,11(1) Mizan LR 91
(2017).
28
Mithun. T & Udayavani.V, “Anticipatory Bail – A Case Study”, 120(5) IJPAM 2894 (2019).
29
Ibid.
30
Shreejoyee Bhattacharya, Anticipatory Bail, available at SSRN: https://ssrn.com/abstract=2902141.  
31
Ibid.
 II. RESEARCH QUESTIONS

1) Whether the repeal of Section 438 of CrPC by the U.P. Legislature have an impact on the
State?
2) Whether the re-introduction of the said provision will be beneficial for the judicial system
of the State?
3) Whether the High Court can be approached straightaway under the section without
moving the Court of Session?
4) Whether a juvenile in conflict with law can file for anticipatory bail?

III. RESEARCH METHODOLOGY

The research for this paper is conducted through the Doctrinal methodology of research,
whereby, legal concepts and principles of all types including rules, statutes, and precedents
have been used to have an elaborate understanding of the concept. The paper has adopted
qualitative and descriptive method of research as well which consists of non-numerical data
like meanings, concepts, characteristics, or description of things. Furthermore, the nature of
the research paper is chosen to be analytical, whereby, the journey of the provision of
anticipatory bail in Uttar Pradesh is analysed. The focus of the research is to identify the need
and development of anticipatory bail through precents of the Allahabad High Court. The
research is substantially conducted based on secondary data i.e., books, journals, articles and
reports published by different Universities, publications, authorities, websites, etc. No survey
of any kind was undertaken in order to complete the research paper as doctrinal methodology
of research is being used. The necessary data has been collected from reliable sources and
appropriate search tools have been used.
 IV. RESULTS AND DISCUSSIONS

Chapter 1: Identifying the problem

The provision of Anticipatory Bail is a part of the Code of Civil Procedure (hereafter, CrPC).
The same was introduced in the year 1973 for societal reasons. Section 438 of CrPC is
applicable to all parts of India. However, the same falls under category of the State List as
well, enabling States to make amendments for their respective states. One such amendment
was the Code of Criminal Procedure (Uttar Pradesh Amendment Act), 1976. By virtue of the
same, the provision of anticipatory bail was repealed with respect to the State of Uttar
Pradesh. It was scrapped due to the Emergency that was declared in the year 1976.

The State Law Commission recommended the same in its report of 2009. The Allahabad
High Court and the Apex Court had been pressing the Uttar Pradesh Government to bring
back the law for years. There are various judgments on the same, for example, Jagat Prasad
v. State of  U.P.32 A bill to re-implement the provision was sent to the Centre in 2010 for
approval, however, it was put on hold. Then, in the same year, the then Mayawati
government had sent a bill to the President. Nonetheless, it was sent back with suggestions
for modifications. In the year 2019, the State of U.P. was finally given the provision of
anticipatory bail after 43 years.

Meanwhile, in the absence of anticipatory bail in the State, its judiciary discussed various
issues and considered many alternatives for the same. It includes the questions “whether
pending the consideration of final relief of bail under Section 389 of CrPC, the appellant can
be released on short term bail?” 33, “whether arrest during investigation can be stayed by this
Court only in rarest of rare cases”34 and “whether the arrest of an accused is a must if
cognizable offence is disclosed in the FIR or in a criminal complaint?” 35. After the re-
implementation of anticipatory bail in the State, its judiciary has begun to interpret the same
in a manner similar to that of other states. The journey of Allahabad High Court from not
having the provision to finally getting the same after more than four decades is discussed in
the following chapter.

32
Jagat Prasad v. State of U.P., 1985 SCC OnLine All 346.
33
Smt. Tara Devi & Anr. V. State of U.P., 2011 SCC OnLine All 2347.
34
Ajeet Singh v. State of Uttar Pradesh & Ors., 2006 SCC OnLine All 1409.
35
Smt. Amarawati v. State of U.P., 2004 SCC OnLine All 1112.
 Chapter 2: Identifying the need of Section 438 CrPC in the State of U.P.

In Vijay Kumar Verma v. State of U.P.36, the Court discussed various problems that the
absence of anticipatory bail has caused in the State. The Court has observed that the High
Court of Allahabad had to stay innumerous arrests as a result of such absence. The Court
shares its opinion as to how crucial it was to re-introduce the provision in the State. The
Court points out that all states of our country, even the terrorist affect states enjoy the benefit
of the provision. Through the judgment, the Court urges the State to re-implement Section
438 of CrPC.

The petitioner, in the instant case, had approached the Court for an injunction order seeking
stay of his arrest. The Court relied on the judgment given in Joginder Kumar v. State of
U.P.37, whereby, the Supreme Court had clearly stated that merely because the executive
authorities have the power to arrest, they cannot execute the power. This lawful power is be
acknowledged but its use is to be made only when justified. The Court also held that
unnecessary arrest of an individual would lead to tampering of his reputation and, thus, affect
the self-esteem of such individual and his close ones.

The Court, in the instance case, observes that despite of the clear instructions from the
Supreme Court in the above case, there is only minimal implementation of the same. In the
opinion of the Court, cases of this nature could be, clearly, avoided with the re-introduction
of Section 438 of CrPC in the State. The Court goes to the extent of making the bold
observation that the provision of anticipatory bail is available to terrorists as well in the other
States.

Referring to the case Balchand Jain v. State of Madhya Pradesh38, the Court draws attention
on the intention of the provision for anticipatory bail. The 41 st Report of Law Commission
stated that often influential people are framed by their rivals in false accusations. Otherwise,
as well, a strong argument is that not all accused are likely to take advantage of the liberty
provided or even abscond and live in hiding. There is no rationale behind requiring accused
persons to be taken into custody and, then, apply for bail after a few days. In consideration of
the same, the Court observed the need for re-implementation of Section 438 CrPC in the

36
Vijay Kumar Verma v. State of U.P., (2005) 45 ACC 534.
37
Joginder Kumar v. State of U.P., (1994) 4 SCC 260.
38
Balchand Jain v. State of Madhya Pradesh, (1976) 4 SCC 572.
State. Nonetheless, after almost four decades of waiting, the provision was, thereafter,
reintroduced in the State of Uttar Pradesh in June, 2019.

Chapter 3: Contemporary Legal Issues in relation to Section 438 CrPC:

Allahabad HC Perspective

3.1 Whether it is mandatory to approach the Sessions Court before High Court under
Section 438 CrPC?

After the re-introduction of the provision in the State, it was witnessed that the U.P. judiciary
had revisited certain crucial legal issues in relation to Section 438 CrPC in the year 2019
itself. One such question is “whether the High Court can be approached directly under
Section 438 CrPC”. This issue was raised and analyzed in the case Vinod Kumar v. State of
U.P. & Anr.39. It is significant to note that the question was not being raised for the first time
in the history of Indian Judiciary, although, this case has invited immense attraction.

Referring to the opinion of the Court in Neeraj Yadav v. State of U.P.40 and Harendra Singh
@ Harendra Bahadur v. The State of U.P.41, the counsels have contended that the statute
confers concurrent jurisdiction to the Sessions Court and the High Court. Therefore, it would
be wrong to state that the remedy of approaching the Sessions Court has to be exhausted
before approaching the High Court. This would mean that the High Court could be
approached directly only under certain special circumstances. It is to be observed that if this
view is accepted by the Court, the next question which would arise is “what are the special
circumstances under which the High Court can directly be approached under Section 438 of
CrPC”.

In order to answer the question, reference is made to the opinion of Sri. Imran Ullah in 203 rd
Report of the Law Commission of India. Therein, it is stated that CrPC has not mentioned
anything specific with regards to the order in which both the Courts are to be approached. It
is, clearly, left to the option of the applicant to decide which forum to approach. The fact that

39
Vinod Kumar v. State of U.P. & Anr., 2019 SCC OnLine All 4821.
40
Neeraj Yadav v. State of U.P., Criminal Misc. Bail Application No. 44895 of 2019.
41
Harendra Singh @ Harendra Bahadur v. The State of U.P., Bail Application No, 6478 of 2019.
both the Courts have original jurisdiction under Section 438 of CrPC is highlighted in the
Report.

However, approaching the Sessions Court first will give the applicant the benefit to approach
the High Court, later, for revision, if he desires to do so. Another important aspect noted with
regards to certain cases where the applicant had moved the High Court in the capacity of its
original jurisdiction. Under these circumstances, the Sessions Court, then, cannot grant
anticipatory bail to the applicant for the same case.

So, to say, there are many judgments with the above view. It is also observed that the
jurisdiction of the Sessions Court under the provision is as wide as that of the High Court.
The same was held by Chandrachud, C.J. in the case Gurbaksh Singh Sibbia v. The State of
Punjab42. Although, there are various conflicting views on the same, it is the opinion of this
Court that the orders issued by both the Courts are subject to revision or appeal.

3.1 Whether an application under Section 438 CrPC by a juvenile is

maintainable?

The key issue, herein, was “whether a juvenile can approach the Court or the Juvenile Justice
Board for anticipatory bail”. In order to address the issue raised in the instant case, the Court
has cited innumerous judgments, one such being Mr. X S/O Baby V.M. v. State of Kerala43,
Section 12 of the Juvenile Justice (Care and Protection) Act provides for the grant of bail
after detention by the police. This provision is, specifically, for a child in conflict with law
who is then required to be produced before the Board. The provision uses the expression
“notwithstanding anything contained in the Code of Criminal Procedure, 1973”. However,
the provision doesn’t deal with the scope of an application of anticipatory bail before any
apprehension or detention. Therefore, in the opinion of the Court, the jurisdiction of the High
Court or the Court of Session under Section 438 of CrPC is not withdrawn even by
implication under Section 12 of the Act.

Moreover, the Act does not contain any special provision dealing with granting of
anticipatory bail to a child in conflict with law. Where no special provision is made under the
Act with regard to any particular matter, the provision contained in the Code in that regard
shall be applicable. Further, there is no provision in the Act which either expressly or by
42
Gurbaksh Singh Sibbia v. The State of Punjab, AIR 1980 SC 1632.
43
Mr. X S/O Baby V.M. v. State of Kerala, Bail Appl. No. 3320 of 2018.
necessary implication excludes the general applicability of CrPC, more so specifically the
applicability of Section 438 of CrPC. Therefore, an application by a juvenile under Section
438 will be maintainable and the same was reiterated in Vishwa Mitter v. O.P. Poddar44 and
Sudhir Sharma v. State of Chhattisgarh45.

A contrary view shared by the Madras High Court in the case K. Vignesh v. State46 was
referred to by the Court in the instant matter. The Court was of the opinion that:

“Had it been the intention of the Legislature, that a police officer should be
empowered to arrest a child in conflict with law, the Legislature would
have very well used the expression “arrest” instead of using the expression
“apprehend” in Section 10 of the 2015 Act. The Legislature has, thus,
consciously omitted to use the expression ‘arrest’ to not empower the
police to arrest a child in conflict with law. The proviso to Section 10 of the
Act makes it very clear that in no case a child alleged to be in conflict with
law shall be placed in police lock-up or lodged in a jail.”

In consideration of the above observations, the Hon’ble Allahabad High Court, in the instant
case, was of the opinion that a petition by a juvenile in conflict with law under Section 438
will:

a) Not be maintainable if filed after the registration of a FIR because the same is covered
by Sections 10 and 12 of the Juvenile Justice (Care and Protection of Children) Act,
2015.

b) Be maintainable if filed before the registration of a FIR because there is no such bar
on an application under the provision of CrPC. Furthermore, the term “person” under
CrPC includes all persons irrespective of their age.

44
Vishwa Mitter v. O.P. Poddar, (1983) 4 SCC 701.
45
Sudhir Sharma v. State of Chhattisgarh, 2017 SCC OnLine Chh 1554.
46
K. Vignesh v. State, 2016 SCC OnLine Mad 7050.
 V. CONCLUSION

After decades of difficulty and hardship faced by the people of the State of Uttar Pradesh and
the judiciary of the State, the provision for anticipatory bail was re-introduced by the U.P.
Legislature in June, 2019. However, the significance and requirement of Section 438 of CrPC
has been drawn out in various judgments passed during the absence of the provision.
Nonetheless, the re-introduction of Section 438 attracted two crucial legal questions in
relation to the provision.

The first question was in regards to the jurisdictions of the Sessions Court and the High Court
under Section 438 of CrPC. The Hon’ble Allahabad High Court has relied on precedents
before giving its own opinion with regards to the subject. The Literal Rule of Interpretation
was applied on the provision to understand the same. Further, the Court also referred to the
opinion of Sri. Imran Ullah in 203rd Report of the Law Commission of India for a better
understanding of the objective of the provision.

The second question raised was about the maintainability of an anticipatory bail application
in relation to a juvenile. To answer this question Indian Courts have relied on the Literal Rule
of Interpretation. The most common approach for interpretation, in general, is the Literal
Rule. It is well-known that Courts look into the grammatical or the literal meaning of the
words in the statue to answer a legal issue and the same approach has been used by the Court
in the instant case. It is, hereby, observed that the Hon’ble High Court of Allahabad has used
the most suitable and appropriate methods of interpretation to answer the legal issues raised
in both the cases.
 VI. REFERENCES

Journals/Articles

 Francis Bacon, The Essays (Penguin Classics, 1st ed., 1986).

 Vepa P. Sarathi, Interpretation of Statutes 4 (Eastern Book Company, Lucknow, 5th
ed., 2010).

 Randy E. Barnett, “Interpretation and Construction”, 34 Harv. J.L. & Pub. Pol'y 67
(2011).

 Anurag Deep, “Interpretation of Statutes”, L ASIL 751 (2013).

 Simeneh Kiros Assefa, “Methods and Manners of Interpretation of Criminal

Norms”,11(1) Mizan LR 91 (2017).

 Mithun. T & Udayavani.V, “Anticipatory Bail – A Case Study”, 120(5) IJPAM 2894
(2019).

Websites

 Alekhya Reddy, Literally Interpreting the Law – An Appraisal of the Literal Rule of
Interpretation in India, available at
http://www.manupatra.com/roundup/338/Articles/Literally%20interpreting%20the
%20Law.pdf.

 Diva Rai, Statute Interpretation: Overview and Analysis, available

https://blog.ipleaders.in/statute-interpretation-overview-and-analysis/amp/.

 Shreejoyee Bhattacharya, Anticipatory Bail, available at SSRN:

https://ssrn.com/abstract=2902141.  
Cases
 P. Ramachandra Rao v. State of Karnataka, (2002) 4 SCC 578.

 CWT v. Hashmatunnisa Begum, Supp (2) SCC 43.

 In re, Sea Customs Act, 1878, AIR 1963 SC 1760.

 Union of India v. Deoki Nandan Aggarwal, 1992 Supp. (1) SCC 323.

 Maulvi Hussain Haji Abraham Umarji v. State of Gujarat, (2004) 6 SCC 672.
 Jagat Prasad v. State of  U.P., 1985 SCC OnLine All 346.

 Smt. Tara Devi & Anr. V. State of U.P., 2011 SCC OnLine All 2347.

 Ajeet Singh v. State of Uttar Pradesh & Ors., 2006 SCC OnLine All 1409.

 Smt. Amarawati v. State of U.P., 2004 SCC OnLine All 1112.

 Vijay Kumar Verma v. State of U.P., (2005) 45 ACC 534.

 Joginder Kumar v. State of U.P., (1994) 4 SCC 260.

 Balchand Jain v. State of Madhya Pradesh, (1976) 4 SCC 572.

 Vinod Kumar v. State of U.P. & Anr., 2019 SCC OnLine All 4821.

 Neeraj Yadav v. State of U.P., Criminal Misc. Bail Application No. 44895 of 2019.

 Harendra Singh @ Harendra Bahadur v. The State of U.P., Bail Application No,
6478 of 2019.
 Gurbaksh Singh Sibbia v. The State of Punjab, AIR 1980 SC 1632.

 Mr. X S/O Baby V.M. v. State of Kerala, Bail Appl. No. 3320 of 2018.

 Vishwa Mitter v. O.P. Poddar, (1983) 4 SCC 701.

 Sudhir Sharma v. State of Chhattisgarh, 2017 SCC OnLine Chh 1554.

 K. Vignesh v. State, 2016 SCC OnLine Mad 7050.