After a gap of 43 years, the state government has decided to amend Section 438 of the CrPC to restore provisions of anticipatory bail to be given by lower courts on the premises that the decision will take pressure off from the High Court.
The UP Cabinet on Tuesday approved the new amended ‘Code of Criminal Procedure (UP) Amendment Bill, 2018’ to be tabled in the legislature during the coming Monsoon session starting from August 23.
The provision to grant anticipatory bail by the lower court was withdrawn in the state during Emergency in 1975. The Supreme Court and High Court had advocated restoration of the right of the lower court to grant anticipatory bail. The State law Commission had also suggested that provision of anticipatory bail be restored with sessions court.
At present in UP, only Allahabad High Court is authorised to grant anticipatory bails but after this amendment, lower courts can also grant such bails with certain riders. Except for UP and Uttarakhand, all states in the country have the provision of anticipatory bail in the lower court.
Briefing reporters about the amended law, Principal Secretary (Home) Arvind Kumar said on Tuesday that the new process would be enforced in the state once it was passed by the legislature and approved by the Centre as that was an amendment in the Cr PC.
“However, the main clause of the anticipatory bail will be that the court will have to dispose of the case within a month’s time after informing and giving time to the government to present its views in the court,” Kumar said.
“Earlier, it was a routine that a person after taking an anticipatory bail delayed his case. But now the anticipatory bail cannot be extended for more than a month,” he said, adding that the amended law clearly said that the court would have to dispose of the case within 30 days.
Under the amended anticipatory bail process, investigating officer can call the accused any time and he will have to give an undertaking that he will not threaten the witness. “We have also made it mandatory that a person getting anticipatory bail will not leave the country,” Kumar said, adding that there would be no anticipatory bail in the case of Gangster Act or for cases lodged under IPC whose punishment was death sentence.
Earlier, the Mayawati government in 2010 had moved a proposal to introduce anticipatory bail. However, the law then was not notified after the President of India returned it to the Governor seeking clarifications.
In 2004, Allahabad High Court had asked the government to get the law amended for anticipatory bail by lower courts and it was also recommended by the law Commission in 2009.