# Allama Zamir Naqvi @ Tahir In Fir Zameen Naqvi @ Tahir v. State of U.P. & Anr

- **Citation:** (2023) 11 ILRA 7
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-11-08
- **Case number:** Criminal Misc. Anticipatory Bail Application U/S 438 CR.P.C. No. 2553 of 2023
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/allama-zamir-naqvi-tahir-in-fir-zameen-naqvi-tahir-v-state-of-u-p-anr-49392
- **Pages:** 5

## Headnote

Law-The
Code
of
Criminal
Procedure, 1973-Section 438--Anticipatory
bail rejected by the Sessions court on the
ground
that
the
incident
occurred
on
27.04.2014, on which date the provisions of
Section 438 Cr.P.C. were not applicable to the
St. of U.P---The Criminal Procedure Code (U.P.
Amendment) Act, 2018 merely restores the
benefit
of
anticipatory
bail
to
persons
apprehending
arrest,
which
benefit
was
available to similarly situate persons in the rest
of India immediately before enactment of the
aforesaid Amendment Act and which benefit
was available to the persons in the St. of U.P.
also before enactment of Code of Criminal
Procedure (U.P. Amendment) Act, 1976. This
being a beneficial legislation, it cannot be
restricted in its operation to offences committed
subsequent to enactment of Act, 2019 and it will
be available to all the persons 'apprehending
arrest' after enactment of the Amendment Act,
2018, even if the offence was committed prior
to enactment of the Amendment Act, 2018---
The reason given by the learned Session court
for rejection of the anticipatory bail application
is incorrect---- Old animosity between the
parties regarding which two FIRs had been filed
on previous occasions; that besides the version
of the informant, there is no other material to
support the allegations; there is some variance
in the version of the incident and in the St.ment
of victim recorded under Sections 161 Cr.P.C.
and 164 Cr.P.C. and the applicant is 60 years
old person.

Anticipatory bail granted.(E-15)

List of the cases referred-:

## Text

11 All. Allama Zamir Naqvi @ Tahir In Fir Zameen Naqvi @ Tahir Vs. State of U.P. & Anr. 7
of Investigation and another, reported in
2022 SCC Online SC 825.
----------
(2023) 11 ILRA 7
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 08.11.2023

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Criminal Misc. Anticipatory Bail Application U/S
438 CR.P.C. No. 2553 of 2023

Allama Zamir Naqvi @ Tahir In Fir Zameen
Naqvi @ Tahir ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Prateek Tewari, Parush Kumar Saxena, Raj
Nath Singh

Counsel for the Opposite Parties:
G.A.

Criminal
Law-The
Code
of
Criminal
Procedure, 1973-Section 438--Anticipatory
bail rejected by the Sessions court on the
ground
that
the
incident
occurred
on
27.04.2014, on which date the provisions of
Section 438 Cr.P.C. were not applicable to the
St. of U.P---The Criminal Procedure Code (U.P.
Amendment) Act, 2018 merely restores the
benefit
of
anticipatory
bail
to
persons
apprehending
arrest,
which
benefit
was
available to similarly situate persons in the rest
of India immediately before enactment of the
aforesaid Amendment Act and which benefit
was available to the persons in the St. of U.P.
also before enactment of Code of Criminal
Procedure (U.P. Amendment) Act, 1976. This
being a beneficial legislation, it cannot be
restricted in its operation to offences committed
subsequent to enactment of Act, 2019 and it will
be available to all the persons 'apprehending
arrest' after enactment of the Amendment Act,
2018, even if the offence was committed prior
to enactment of the Amendment Act, 2018---
The reason given by the learned Session court
for rejection of the anticipatory bail application
is incorrect---- Old animosity between the
parties regarding which two FIRs had been filed
on previous occasions; that besides the version
of the informant, there is no other material to
support the allegations; there is some variance
in the version of the incident and in the St.ment
of victim recorded under Sections 161 Cr.P.C.
and 164 Cr.P.C. and the applicant is 60 years
old person.

Anticipatory bail granted.(E-15)

List of the cases referred-:

1. T. Barai Vs Henry Ah Hoe, (1983) 1 SCC 177

(Delivered by Hon'ble Subhash Vidyarthi,
J.)

1. Heard Sri Prateek Tewari, the
learned counsel for the applicant, Sri Jayant
Singh Tomar, the learned AGA for the State
and perused the records.

2. The instant application has been
filed by the applicant seeking anticipatory
bail in Case No. 193 of 2016, Crime
No.511 of 2014 under Sections 452, 354
IPC, Police Station Unchahar, District
Raebareli.

3. The aforesaid case has been
registered on the basis of an FIR lodged on
27.04.2014 at 21.30 hours against the
applicant and one Hira Lal, stating that
both the accused persons had gone to the
informant's house on 27.04.2014 and had
started molesting her but when she cried
the accused persons ran away.

4. In the affidavit filed in support of
the application, it has been stated that the
applicant is 60 years old and is innocent
person, who has falsely been implicated in
the
present
case.
The
applicant's
8 INDIAN LAW REPORTS ALLAHABAD SERIES
involvement in three other cases has been
disclosed in para-28 of the affidavit.

5. The anticipatory bail of the
applicant has been rejected by the Sessions
court, Raebareli on the ground that the
incident occurred on 27.04.2014, on which
date the provisions of Section 438 Cr.P.C.
were not applicable to the State of U.P.,
therefore, application cannot be entertained
as the application under Section 438 Cr.P.C.
is prospective and not retrospective.

6. The Code Of Criminal Procedure
(Uttar Pradesh Amendment) Act, 2018
(U.P. Act No. 4 Of 2019) was notified on
06.06.2019. The 'Statement Of Objects
And Reasons of the Amendment Act' states
that Section 438 of the Code of Criminal
Procedure 1973, regarding the provision of
anticipatory bail, was omitted by the Code
of Criminal Procedure (Uttar Pradesh
Amendment) Act, 1976 (U.P. Act No. 16 of
1976). There was continuous demand for
its revival. The State Law Commission had,
in its third report in 2009, recommended
for reviving the provisions of the said
section. A committee to consider the revival
of the provisions of the said section had
recommended that the provisions of the
said section should be revived with certain
modifications.
After
considering
the
recommendation of the said committee, it was
decided to amend the Code of Criminal Procedure,
1973 in its application to Uttar Pradesh to revive the
provisions of section 438 with certain modifications.

7. Section 2 of the Amendment Act provides
that In the Code 'of Criminal Procedure, 1973 as
amended in its application to Uttar Pradesh, after
Section 437-A the following section shall be inserted,
namely:-

"438. (1) Where any person has reason
to believe that he may be arrested on accusation of
having committed a non-bailable offence, he may
apply to the High Court or the Court of Session for a
direction under this section that in the event of such
arrest he shall be released on bail; and that Court
may, after taking into consideration, inter alia, the
following factors, namely:-

i) the nature and gravity of the
accusation;

ii) the antecedents of the applicant
including the fact as to whether he has previously
undergone imprisonment on conviction by a Court in
respect of any cognizable offence;

iii) the possibility of the applicant to flee
from justice; and

iv) where the accusation has been made
with the object of injuring or humiliating the
applicant by having him so arrested;

either reject the application forthwith or
issue an interim order for the grant of anticipatory
bail:

Provided that where the High Court or,
as the case may be, the Court of Session, has not
passed any interim order under this sub-section or
has rejected the application for grant of anticipatory
bail, it shall be open to an officer in-charge of
a police station to arrest, without warrant,
the applicant on the basis of the accusation
apprehended hi such application.

(2) Where the High Court or, as
the case may be, the Court of Session,'
considers it expedient to issue an interim
order to grant anticipatory bail under
subsection (1), the Court shall indicate
therein the date, on which the application
for grant of anticipatory bail shall be
fmally heard for passing an order thereon,
as the Court may. deem fit, and if the Court
passes any order granting anticipatory
bail, such order shall include inter alia the
following conditions, namely:-

(i) that the applicant shall make
himself available for interrogation by a
police officer as and when required;

(ii) that the applicant shall not,
directly or indirectly, make any inducement,
11 All. Allama Zamir Naqvi @ Tahir In Fir Zameen Naqvi @ Tahir Vs. State of U.P. & Anr. 9
threat or promise to any person acquainted
with the facts of the case so as to dissuade
him from disclosing such facts to the Court
or to any police officer;

(iii) that the applicant shall not
leave India without the previous permission
of the Court; and

(iv) such other Conditions as may
be imposed under sub-section (3) of section
437, as if the bail were granted under that
section.

Explanation:-The final order made
on an application for direction under subsection (1); shall not be construed as an
interlocutory order for the purpose of this Code.

(3) Where the Court grants an
interim order under sub-section (1), it shall
forthwith cause a notice being not less than
seven days notice, together with a copy of such
order to be served on the Public Prosecutor and
the Superintendent of Police, with a view to give
the Public Prosecutor a reasonable opportunity
of being heard when the application shall be
fmally heard by the Court.

(4) On the date indicated in the
interim order under sub-section (2), the Court
shall hear the Public Prosecutor and the
applicant and after due consideration of
their contentions, it may either confirm,
modify or cancel the interim order.

(5) The High Court or the Court
of Session, as the case may be, shall finally
dispose of an application for grant of
anticipatory bail under sub-section (1),
within thirty days of the date of such
application.

(6) Provisions of this section shall
not be applicable,-

(a) to the offences arising out of,-
-

(i)
the
Unlawful
Activities
(Prevention) Act, 1967;

(ii) the Narcotic Drugs and
Psychotropic Substances Act, 1985;

(iii) the Official Secret Act, 1923;

(iv) the Uttar Pradesh Gangsters
and Anti-Social Activities (Prevention) Act,
1986.

(b) in the offences, in which death
sentence can be awarded.

(7) If an application under this
section has been made by any,person to the
High Court, no application by the same
person shall be entertained by the Court of
Session."

8. The Court will presume that a law,
which affects substantive rights, are meant
to have prospective operation only. In the
same way, as regards procedural laws or the
laws relating to a mere matter of procedure
or of Forum, they carry retrospective
impact.
Declaratory,
clarificatory
or
curative Statutes are allowed to hold sway
in the past. The very nature of the said laws
involve the aspect of public interest which
requires sovereign Legislature to remove
defects, clarify aspects which create doubt.
The declaratory law again has the effect of
the legislative intention being made clear.

9. In T. Barai v. Henry Ah Hoe,
(1983) 1 SCC 177, the Hon'ble Supreme
Court held that: -

"22.
It
is
only
retroactive
criminal legislation that is prohibited under
Article 20(1). The prohibition contained in
Article 20(1) is that no person shall be
convicted of any offence except for
violation of a law in force at the time of the
commission of the act charged as an
offence prohibits nor shall he be subjected
to a penalty greater than that which might
have been inflicted under the law in force
at the time of the commission of the offence.
It is quite clear that insofar as the Central
Amendment Act creates new offences or
enhances punishment for a particular type
of offence no person can be convicted by
10 INDIAN LAW REPORTS ALLAHABAD SERIES
such ex post facto law nor can the
enhanced punishment prescribed by the
amendment be applicable. But insofar as
the Central Amendment Act reduces the
punishment for an offence punishable
under Section 16(1)(a) of the Act, there is
no reason why the accused should not have
the benefit of such reduced punishment. The
rule of beneficial construction requires that
even ex post facto law of such a type should
be applied to mitigate the rigour of the law.
The principle is based both on sound
reason and common sense. This finds
support in the following passage from
Craies on Statute Law, 7th Edn., at pp. 38889:

"A
retrospective
statute
is
different from an ex post facto statute.
"Every ex post facto law..." said Chase, J.,
in the American case of Calder v. Bull5
"must necessarily be retrospective, but
every retrospective law is not an ex post
facto law. Every law that takes away or
impairs rights vested agreeably to existing
laws is retrospective, and is generally
unjust and may be oppressive; it is a good
general rule that a law should have no
retrospect, but in cases in which the laws
may justly and for the benefit of the
community and also of individuals relate to
a time antecedent to their commencement:
as statutes of oblivion or of pardon. They
are certainly retrospective, and literally
both concerning and after the facts
committed. But I do not consider any law
ex post facto within the prohibition that
mollifies the rigour of the criminal law, but
only those that create or aggravate the
crime, or increase the punishment or
change the rules of evidence for the
purpose of conviction.... There is a great
and apparent difference between making an
unlawful act lawful and the making an
innocent action criminal and punishing it
as a crime."

23. To illustrate, if Parliament
were to reenact Section 302 of the Penal
Code,
1860
and
provide
that
the
punishment for an offence of murder shall
be sentence for imprisonment for life
instead of the present sentence of death or
imprisonment for life, then it cannot be that
the courts would still award a sentence of
death even in pending cases.

24. In Rattan Lal v. State of
Punjab,
the
question
that
fell
for
consideration was whether an appellate
court can extend the benefit of Probation of
Offenders Act, 1958 which had come into
force after the accused had been convicted
of a criminal offence. The Court by
majority of 2: 1 answered the question in
the affirmative. Subba Rao, J. who
delivered a majority opinion, concluded
that in considering the question, the rule of
beneficial construction required that even
ex post facto law of the type involved in
that case should be applied to reduce the
punishment.

10. Therefore, the Criminal Procedure
Code (Uttar Pradesh Amendment) Act,
2018 merely restores the benefit of
anticipatory bail to persons apprehending
arrest, which benefit was available to
similarly situate persons in the rest of India
immediately before enactment of the
aforesaid Amendment Act and which
benefit was available to the persons in the
State of U.P. also before enactment of Code
of Criminal Procedure (Uttar Pradesh
Amendment) Act, 1976. This being a
beneficial legislation, it cannot be restricted
in its operation to offences committed
subsequent to enactment of Act, 2019 and it
will be available to all the persons
'apprehending arrest' after enactment of the
Amendment Act, 2018, even if the offence
was committed prior to enactment of the
Amendment Act, 2018. Therefore, the
11 All. Smt Rajbala Vs. State of U.P. & Anr.
11
reason given by the learned Session court
for rejection of the anticipatory bail
application is incorrect.

11. Having considered the aforesaid
facts and circumstances of the case and
keeping in view the fact that there is an
old animosity between the parties
regarding which two FIRs had been
filed
on
previous
occasions;
that
besides the version of the informant,
there is no other material to support the
allegations; there is some variance in
the version of the incident and in the
statement of victim recorded under
Sections 161 Cr.P.C. and 164 Cr.P.C.
and that the applicant is 60 years old
person
and
without
making
any
observations which may affect the
outcome of the case, I am of the view
that the aforesaid facts are sufficient for
making
out
a
case
for
granting
anticipatory bail to the applicant.

12. In view of the above, the
anticipatory bail application of the
applicant is allowed. In the event of
arrest/ appearance of applicant-Allama
Zamir Naqvi Alias Tahir before the
learned Trial Court in the aforesaid
complaint case, he shall be released on
anticipatory
bail
on
his
furnishing
personal bond and two solvent sureties,
each in the like amount, to the satisfaction
of
S.H.O./Court
concerned
on
the
following conditions and subject to any
other conditions that may be fixed by the
Trial Court:

(i). That the applicant shall
appear before the trial court on each date
fixed,
unless
personal
presence
is
exempted;

(ii). That the applicant shall not,
directly or indirectly make any inducement,
threat or promise to any person acquainted
with the facts of the case so as to dissuade
him from disclosing such facts to the court
or to any police officer or tamper with the
evidence;

(iii). That the applicant shall not
pressurize/
intimidate
the
prosecution
witness.

13. Let a copy of this order be sent to
the Sessions court for being brought to the
notice of the Presiding Officer who has
passed the order dated 15.02.2023.
----------
(2023) 11 ILRA 11
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.11.2023

BEFORE

THE HON'BLE SHEKHAR KUMAR YADAV, J.

Criminal Misc. Anticipatory Bail Application U/S
438 Cr.P.C. No. 11869 of 2023

Smt. Rajbala ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Udai Chandani

Counsel for the Opposite Parties:
G.A.

Criminal
Law
-
Code
of
Criminal
Procedure, 1973 - Section 438 - Indian
Penal Code, 1860 - Sections 420, 120-B,
467 & 468 - Anticipatory Bail - Forgery and
Cheating - False Affidavit - Criminal History -
Senior Citizen

The applicant, Smt. Rajbala, sought anticipatory
bail in Case Crime No. 0350 of 2022 under
Sections 420, 120-B, 467, and 468 IPC, alleging
false implication in a case involving a forged
affidavit submitted to influence a murder
investigation (Case Crime No. 212 of 2020). She