# Jitendra Pratap Singh @ Jeetu v. State of U.P

- **Citation:** (2024) 10 ILRA 746
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-10-18
- **Case number:** Criminal Misc. Anticipatory Bail Application U/S 438 Cr.P.C. No. 144 of 2024
- **Bench:** Vivek Chaudhary, Narendra Kumar Johari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jitendra-pratap-singh-jeetu-v-state-of-u-p-51100
- **Pages:** 10

## Headnote

Criminal Law- Code of Criminal Procedure,
1973 - Section438 (6) (b) - QuestionWhether Section 438 (6) (b) Cr.P.C., as it
applies to the St. of U.P., puts an absolute bar
against applicability of Section 438 Cr.P.C to
offences, in which death sentence can be
awarded or the aforesaid bar would apply only
where the Court comes to a conclusion after
examining the facts of the case, that the case
warrants imposition of the death sentence?
Answer-The St. amendment explicitly prohibits
anticipatory bail for offences punishable by
10 All. Jitendra Pratap Singh @ Jeetu Vs. State of U.P.
747
death sentence. The statutory bar is absolute. It
is not for the Courts to rewrite the law or create
exceptions to a legislative mandate that is
unequivocal-Courts cannot entertain anticipatory
bail application in cases where the St.
amendment prohibits it. (Para15, 19 & 20) (E15)

List of Cases cited:

## Text

746 INDIAN LAW REPORTS ALLAHABAD SERIES

(ii) The accused-appellants are
aged about 24 years as per statement under
Section 313 Cr.P.C. and one is facing health
problems., therefore, the possibility of
reformation
and
rehabilitation
of
the
appellants in the society cannot be ruled out
as the Trial Court has not recorded any
finding that awarding severest punishment is
the only possibility in the present case.

(iii) The Trial Court has also not
recorded any finding that accused can be a
menace to the society before awarding capital
punishment.

(iv) The Trial Court has not
recorded any aggravating circumstances
against the appellants which can over weigh
the mitigating circumstances especially, when
the appellants have no criminal history.

(v) In view of Navas alias
Mulanvas Case (Supra), there should be
exceptional
circumstances
warranting
imposition of excess death penalty which
cannot be reversed.

(vi) Lastly, the trial court has also
not recorded any finding as to how the
present case is rarest of the rare case even
though the accused has committed the gravest
offence.

94. In the light of the judgment of
Supreme Court (supra), there is no
aggravating circumstances as the Trial
Court has not recorded any satisfaction that
in case the life imprisonment awarded to
the accused persons, there will be a security
threat to the society as the accused persons
have no criminal history.

95. Therefore, we are of the opinion
that the capital punishment awarded to the
appellants should be commuted to life
imprisonment for a fixed term of 25 years
without any remission. The order of
sentence qua the fine is upheld with the
aforesaid modification.

96. With the aforesaid modification,
the appeals qua conviction are dismissed.
However, the appeals qua sentence are
partly allowed and the sentence is modified
accordingly.

97. The accused appellant are in jail.
They will undergo the remaining sentence
in accordance with law.

98. Record and proceedings be sent
back to the Trial Court forthwith.
----------
(2024) 10 ILRA 746
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 18.10.2024

BEFORE

THE HON'BLE VIVEK CHAUDHARY, J.
THE HON'BLE NARENDRA KUMAR JOHARI, J.

Criminal Misc. Anticipatory Bail Application U/S
438 Cr.P.C. No. 144 of 2024

Jitendra Pratap Singh @ Jeetu ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Murli
Manohar
Srivastava,
Upmanyu
Srivastava

Counsel for the Opposite Party:
G.A., Sumit Kumar Srivastava

Criminal Law- Code of Criminal Procedure,
1973 - Section438 (6) (b) - QuestionWhether Section 438 (6) (b) Cr.P.C., as it
applies to the St. of U.P., puts an absolute bar
against applicability of Section 438 Cr.P.C to
offences, in which death sentence can be
awarded or the aforesaid bar would apply only
where the Court comes to a conclusion after
examining the facts of the case, that the case
warrants imposition of the death sentence?
Answer-The St. amendment explicitly prohibits
anticipatory bail for offences punishable by
10 All. Jitendra Pratap Singh @ Jeetu Vs. State of U.P.
747
death sentence. The statutory bar is absolute. It
is not for the Courts to rewrite the law or create
exceptions to a legislative mandate that is
unequivocal-Courts cannot entertain anticipatory
bail application in cases where the St.
amendment prohibits it. (Para15, 19 & 20) (E15)

List of Cases cited:

1. Vishal Singh Vs St. of U.P Criminal Misc
Anticipatory Bail No.2759 of 2023

2. Deshraj Singh Vs St. of U.P. (Neutral Citation
No.-2022:AHC:183606)

3. Subhash Kashinath Mahajan v. St. of
Maharashtra & anr., (2018) 6 SCC 454

4. Prithvi Raj Chauhan v. U.O.I.& ors.(2020) 4
SCC 727

5. U.O.I.Vs St. of Mah. & ors., (2020) 4 SCC 761

6. Gurudevdatta VKSSS Maryadit & ors.v. St. of
Maharashtra & ors., (2001) 4 SCC 534

(Delivered by Hon'ble Vivek Chaudhary, J.
&
Hon'ble Narendra Kumar Johari, J.)

1.
Heard
Sri
Murli
Manohar
Srivastava,
learned
counsel
for
the
applicant, Sri Puneet Kumar Yadav,
learned A.G.A. for the State, Sri Sumit
Kumar Srivastava, learned counsel for the
opposite party no.2 and perused the record.

2. A learned Single Judge by order
dated 01.04.2024 passed in the instant
matter has referred the following question
for consideration by a Larger Bench of this
Court.

"I. Whether Section 438 (6) (b)
Cr.P.C., as it applies to the State of U.P.,
puts an absolute bar against applicability
of Section 438 Cr.P.C to offences, in which
death sentence can be awarded or the
aforesaid bar would apply only where the
Court
comes
to
a
conclusion
after
examining the facts of the case, that the
case warrants imposition of the death
sentence."

3. The reason of such Reference is
contradiction in judgment and order dated
on 02.12.2023 passed by a learned Judge in
Criminal Misc Anticipatory Bail No.2759
of 2023: Vishal Singh Vs State of U.P. and
the judgment and order dated 01.11.2022
passed by another Single Judge sitting at
Allahabad in Criminal Misc. Anticipatory
Bail Application No.7286 of 2022: Deshraj
Singh Vs. State of U.P. (Neutral Citation
No.-2022:AHC:183606).

4. In the case of Deshraj Singh
(supra), it is held that though the provision
of Section 438(6)(b) of the Cr.P.C. bars
granting of anticipatory bail in cases where
the offence is punishable by death sentence,
however, if no case for death punishment is
made out, an anticipatory bail application
would be maintainable. Per contra, in the
case of Vishal Singh (supra), a co-ordinate
Bench of this Court has held that in case
involving commission of an offence under
Section 302 I.P.C, which is punishable by
death
sentence,
an
anticipatory
bail
application is not maintainable.

5. Section 438 of the Code provides
for grant of anticipatory bail when a person
apprehends
arrest
for
a
non-bailable
offence. The provision, in its original form,
vested discretion in the Courts to grant
anticipatory bail based on the facts and
circumstances
of
each
case,
without
explicit limitations. However, the provision
for anticipatory bail was omitted for State
of U.P. by "The Code of Criminal
Procedure (Uttar Pradesh Amendment) Act,
1976 (U.P. Act No. 16 of 1976)."
748 INDIAN LAW REPORTS ALLAHABAD SERIES
Subsequently it was reinstated, with certain
modifications, in the State of Uttar Pradesh
through "The Code of Criminal Procedure
(Uttar Pradesh Amendment) Act, 2018
(U.P. Act No. 4 of 2019)," which was
notified on 06.06.2019. Section 438 of the
Cr.P.C., as applicable in Uttar Pradesh,
empowers the Courts to grant anticipatory
bail, subject to certain specified exceptions
and conditions as contained in sub section
(6). Section 438(6)(b) in particular bars
grant of anticipatory bail in certain cases
include
case
where
the
offence
is
punishable by death sentence. Section 438
Cr.P.C. as applicable in State of U.P. is as
follows:

"438. (1) Where any person has
reason to believe that he may be arrested
on accusation of having committed a nonbailable 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, 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
sub-section (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
10 All. Jitendra Pratap Singh @ Jeetu Vs. State of U.P.
749
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."

6. Learned counsel for the applicant
has placed reliance on the judgment of the
Supreme Court in Subhash Kashinath
Mahajan v. State of Maharashtra and
another, (2018) 6 SCC 454, and Prithvi
Raj Chauhan v. Union of India and others
(2020) 4 SCC 727. Both the aforesaid
judgments are in cases arising out of the
Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 (for
short 'the 1989 Act'). Sections 18 and 18A
of the 1989 Act read as under:

"18. Section 438 of the Code not
to apply to persons committing an offence
under the Act.-Nothing in Section 438 of
the Code shall apply in relation to any case
involving the arrest of any person on an
accusation of having committed an offence
under this Act.

18-A. No enquiry or approval
required.-(1) For the purposes of this
Act,-(a) preliminary enquiry shall not be
required for registration of a First
Information Report against any person; or

(b) the investigating officer shall
not require approval for the arrest, if
necessary, of any person, against whom an
accusation of having committed an offence
under this Act has been made and no
procedure other than that provided under
this Act or the Code shall apply.

(2) The provisions of Section 438
of the Code shall not apply to a case under
this Act, notwithstanding any judgment or
order or direction of any Court."

7. Learned counsel for the applicant
has heavily relied upon the judgments in
Subhash Kashinath Mahajan (supra) and
Prithvi Raj Chauhan (supra) and submits
that if the complaint does not make out a
prima facie case, for applicability of
provisions of 1989 Act, the bar created by
Sections 18 and 18-A of the 1989 Act shall
not apply. He submits that the Supreme
Court has interpreted Section 18 of the
1989 Act in a liberal manner and in the
present matter also, the Court should give
similar liberal interpretation to Section
438(6)(b) of Cr.P.C. He submits that
similarly where the Court is prima facie of
the opinion that a death sentence cannot be
awarded, an anticipatory bail application
should be entertained.
750 INDIAN LAW REPORTS ALLAHABAD SERIES

8. On the other hand, learned A.G.A.
for the State and learned counsel for
opposite party no.2, strongly oppose the
submissions made by learned counsel for
the applicant and submit that the provisions
of Section 438 of Cr.P.C., are not pari
materia to Section 18 of the 1989 Act. The
1989 Act is a special Act and, hence, the
interpretation given to the provisions of the
said Act cannot be simply picked up and
applied to Section 438 of Cr.P.C.

9.
We
have
considered
the
submissions of learned counsel for the
parties at length and also gone through the
case laws submitted by them.

10. The 1989 Act is legislated to give
protection to particular communities. The
offences under the 1989 Act are committed
by making certain statements in certain
circumstances. It was found by the
Supreme Court that in large number of
cases, false and fabricated F.I.Rs. are being
lodged, thus, strict provisions of the 1989
Act were being abused by the informants
for ulterior purposes.

11. In the said circumstances, to
balance the situation, the Supreme Court, in
special facts and circumstances of the case,
passed judgment in case of Subhash
Kashinath Mahajan (supra). The relevant
paragraphs of the said judgment read as
under:

"63. We have already noted the
working of the Act in the last three decades.
It has been judicially acknowledged that
there are instances of abuse of the Act by
vested interests against political opponents
in panchayat, municipal or other elections,
to settle private civil disputes arising out of
property, monetary disputes, employment
disputes and seniority disputes. [Dhiren
Prafulbhai Shah v. State of Gujarat, 2016
SCC OnLine Guj 2076 : 2016 Cri LJ 2217]
It may be noticed that by way of rampant
misuse complaints are "largely being filed
particularly against public servants/quasijudicial/judicial
officers
with
oblique
motive for satisfaction of vested interests".
[Sharad v. State of Maharashtra, (2015) 4
Bom CR (Cri) 545]

64. Innocent citizens are termed
as accused, which is not intended by the
legislature. The legislature never intended
to use the Atrocities Act as an instrument to
blackmail or to wreak personal vengeance.
The Act is also not intended to deter public
servants from performing their bona fide
duties.
Thus,
unless
exclusion
of
anticipatory bail is limited to genuine cases
and inapplicable to cases where there is no
prima facie case was made out, there will
be no protection available to innocent
citizens. Thus, limiting the exclusion of
anticipatory bail in such cases is essential
for protection of fundamental right of life
and liberty under Article 21 of the
Constitution.

65. Accordingly, we have no
hesitation in holding that exclusion of
provision for anticipatory bail will not
apply when no prima facie case is made out
or the case is patently false or mala fide.
This may have to be determined by the
Court
concerned
in
facts
and
circumstances of each case in exercise of
its judicial discretion. In doing so, we are
reiterating a well-established principle of
law that protection of innocent against
abuse of law is part of inherent jurisdiction
of the court being part of access to justice
and protection of liberty against any
oppressive action such as mala fide arrest.
In doing so, we are not diluting the efficacy
of Section 18 in deserving cases where
court finds a case to be prima facie genuine
10 All. Jitendra Pratap Singh @ Jeetu Vs. State of U.P.
751
warranting custodial interrogation and
pre-trial arrest and detention.

71. It is thus patent that in cases
under the Atrocities Act, exclusion of right
of anticipatory bail is applicable only if the
case is shown to bona fide and that prima
facie it falls under the Atrocities Act and
not otherwise. Section 18 does not apply
where there is no prima facie case or to
cases of patent false implication or when
the allegation is motivated for extraneous
reasons. We approve the view of the
Gujarat High Court in Pankaj D. Suthar
[Pankaj D. Suthar v. State of Gujarat,
(1992) 1 Guj LR 405] and N.T. Desai [N.T.
Desai v. State of Gujarat, (1997) 2 Guj LR
942] . We clarify the judgments in Balothia
[State of M.P. v. Ram Kishna Balothia,
(1995) 3 SCC 221 : 1995 SCC (Cri) 439]
and Manju Devi [Manju Devi v. Onkarjit
Singh Ahluwalia, (2017) 13 SCC 439 :
(2017) 4 SCC (Cri) 662] to this effect.

76. We are of the view that cases
under the Atrocities Act also fall in
exceptional category where preliminary
inquiry must be held. Such inquiry must be
time-bound and should not exceed seven
days in view of directions in Lalita Kumari
[Lalita Kumari v. State of U.P., (2014) 2
SCC 1 : (2014) 1 SCC (Cri) 524] . Even if
preliminary inquiry is held and case is
registered, arrest is not a must as we have
already noted. In Lalita Kumari [Lalita
Kumari v. State of U.P., (2014) 2 SCC 1 :
(2014) 1 SCC (Cri) 524] it was observed:
(SCC p. 57, para 107)

"107. While registration of FIR is
mandatory,
arrest
of
the
accused
immediately on registration of FIR is not at
all mandatory. In fact, registration of FIR
and arrest of an accused person are two
entirely different concepts under the law,
and there are several safeguards available
against arrest. Moreover, it is also
pertinent to mention that an accused
person also has a right to apply for
"anticipatory bail" under the provisions of
Section 438 of the Code if the conditions
mentioned therein are satisfied. Thus, in
appropriate cases, he can avoid the arrest
under that provision by obtaining an order
from the court."

77. Accordingly, we direct that in
absence of any other independent offence
calling for arrest, in respect of offences
under the Atrocities Act, no arrest may be
effected, if an accused person is a public
servant, without written permission of the
appointing authority and if such a person is
not a public servant, without written
permission of the Senior Superintendent of
Police of the District. Such permissions
must be granted for recorded reasons
which must be served on the person to be
arrested and to the court concerned. As
and when a person arrested is produced
before the Magistrate, the Magistrate must
apply his mind to the reasons recorded and
further detention should be allowed only if
the reasons recorded are found to be valid.
To avoid false implication, before FIR is
registered, preliminary enquiry may be
made whether the case falls in the
parameters of the Atrocities Act and is not
frivolous or motivated.

79.2. There is no absolute bar
against grant of anticipatory bail in cases
under the Atrocities Act if no prima facie
case is made out or where on judicial
scrutiny the complaint is found to be prima
facie mala fide. We approve the view taken
and approach of the Gujarat High Court in
Pankaj D. Suthar [Pankaj D. Suthar v.
State of Gujarat, (1992) 1 Guj LR 405] and
N.T. Desai [N.T. Desai v. State of Gujarat,
(1997) 2 Guj LR 942] and clarify the
judgments of this Court in Balothia [State
of M.P. v. Ram Kishna Balothia, (1995) 3
SCC 221 : 1995 SCC (Cri) 439] and Manju
Devi [Manju Devi v. Onkarjit Singh
752 INDIAN LAW REPORTS ALLAHABAD SERIES
Ahluwalia, (2017) 13 SCC 439 : (2017) 4
SCC (Cri) 662] ;"

12. The said judgment of Subhash
Kashinath Mahajan (supra) was again
visited by the Supreme Court in case of
Union of India vs. State of Maharashtra
and others, (2020) 4 SCC 761, and
thereafter again was revisited by Three
Judges' Bench in case of Prithvi Raj
Chauhan (supra). The Supreme Court in
case of Prithvi Raj Chauhan (supra),
overruled certain portion of the judgment
of Subhash Kashinath Mahajan (supra).
Relevant paragraphs and findings of the
Prithvi Raj Chauhan (supra) case read as
follows:

"9.Concerning
the
provisions
contained in Section 18A, suffice it to
observe that with respect to preliminary
inquiry for registration of FIR, we have
already recalled the general directions (iii)
and (iv) issued in Dr. Subhash Kashinath's
case (supra). A preliminary inquiry is
permissible only in the circumstances as
per the law laid down by a Constitution
Bench of this Court in Lalita Kumari v.
Government of U.P., (2014) 2 SCC 1, shall
hold good as explained in the order passed
by this Court in the review petitions on
1.10.2019 and the amended provisions of
Section 18A have to be interpreted
accordingly.

10 The Section 18A(i) was
inserted owing to the decision of this Court
in Dr. Subhash Kashinath (supra), which
made it necessary to obtain the approval of
the appointing authority concerning a
public servant and the SSP in the case of
arrest of Accused persons. This Court has
also recalled that direction on Review
Petition (Crl.) No. 228 of 2018 decided on
1.10.2019. Thus, the provisions which have
been made in Section 18A are rendered of
academic use as they were enacted to take
care of mandate issued in Dr. Subhash
Kashinath (supra) which no more prevails.
The provisions were already in Section 18
of the Act with respect to anticipatory bail

11. Concerning the applicability
of provisions of Section 438 CrPC, it shall
not apply to the cases under the 1989 Act.
However, if the complaint does not make
out a prima facie case for applicability of
the provisions of the 1989 Act, the bar
created by Sections 18 and 18-A(i) shall
not apply. We have clarified this aspect
while deciding the review petitions.

12. The Court can, in exceptional
cases, exercise power under Section 482
CrPC for quashing the cases to prevent
misuse of provisions on settled parameters,
as already observed while deciding the
review petitions. The legal position is clear,
and no argument to the contrary has been
raised.
........

33. I would only add a caveat
with the observation and emphasise that
while considering any application seeking
pre-arrest bail, the High Court has to
balance the two interests : i.e. that the
power is not so used as to convert the
jurisdiction into that under Section 438 of
the Criminal Procedure Code, but that it is
used sparingly and such orders made in
very exceptional cases where no prima
facie offence is made out as shown in the
FIR, and further also that if such orders
are not made in those classes of cases, the
result would inevitably be a miscarriage of
justice or abuse of process of law. I
consider such stringent terms, otherwise
contrary to the philosophy of bail,
absolutely essential, because a liberal use
of the power to grant pre-arrest bail would
defeat the intention of Parliament.

34. It is important to reiterate
and emphasize that unless provisions of the
10 All. Jitendra Pratap Singh @ Jeetu Vs. State of U.P.
753
Act are enforced in their true letter and
spirit,
with
utmost
earnestness
and
dispatch, the dream and ideal of a casteless
society will remain only a dream, a mirage.
The marginalization of scheduled caste and
scheduled tribe communities is an enduring
exclusion and is based almost solely on
caste identities. It is to address problems of
a
segmented
society,
that
express
provisions of the Constitution which give
effect to the idea of fraternity, or bandhutva
(बन्िुत्व) referred to in the Preamble, and
statutes like the Act, have been framed.
These underline the social - rather
collective resolve-of ensuring that all
humans are treated as humans, that their
innate genius is allowed outlets through
equal opportunities and each of them is
fearless in the pursuit of her or his dreams.
The question which each of us has to
address, in everyday life, is can the
prevailing situation of exclusion based on
caste identity be allowed to persist in a
democracy which is committed to equality
and the Rule of law? If so, till when? And,
most importantly, what each one of us can
do to foster this feeling of fraternity
amongst all Sections of the community
without reducing the concept (of fraternity)
to
a
ritualistic
formality,
a
tacit
acknowledgment, of the "otherness" of each
one's identity."

13. It is settled law that when the
words
of
a
statute
are
clear
and
unambiguous, Courts must give effect to
the legislative intent/literal interpretation.
In this context, the wording of the State
amendments leaves no room for judicial
discretion in granting anticipatory bail for
offences punishable by death sentence. The
prohibition is absolute and does not allow
for exceptions based on the nature of the
offence or the facts of the case. The
Supreme Court in case of Gurudevdatta
VKSSS Maryadit and others v. State of
Maharashtra and others, (2001) 4 SCC
534 held:

"26. ....it is a cardinal principle
of interpretation of statute that the words of
a statute must be understood in their
natural, ordinary or popular sense and
construed according to their grammatical
meaning, unless such construction leads to
some absurdity or unless there is something
in the context or in the object of the statute
to suggest to the contrary. The golden rule
is that the words of a statute must prima
facie be given their ordinary meaning. It is
yet another rule of construction that when
the words of the statute are clear, plain and
unambiguous, then the courts are bound to
give effect to that meaning, irrespective of
the consequences. It is said that the words
themselves best declare the intention of the
law-giver. The courts have adhered to the
principle that efforts should be made to
give meaning to each and every word used
by the legislature and it is not a sound
principle of construction to brush aside
words in a statute as being inapposite
surpluses, if they can have a proper
application in circumstances conceivable
within the contemplation of the statute...."

In the case of Raghunath Rai
Bareja and another vs. Punjab National
Bank and others, (2007) 2 SCC 230, the
Supreme Court held :

"58. We may mention here that
the literal rule of interpretation is not only
followed by judges and lawyers, but it is
also followed by the layman in his ordinary
life. To give an illustration, if a person says
"this is a pencil", then he means that it is a
pencil; and it is not that when he says that
the object is a pencil, he means that it is a
horse, donkey or an elephant. In other
words, the literal rule of interpretation
simply means that we mean what we say
754 INDIAN LAW REPORTS ALLAHABAD SERIES
and we say what we mean. If we do not
follow the literal rule of interpretation,
social life will become impossible, and we
will not understand each other. If we say
that a certain object is a book, then we
mean it is a book. If we say it is a book, but
we mean it is a horse, table or an elephant,
then we will not be able to communicate
with
each
other.
Life
will
become
impossible. Hence, the meaning of the
literal rule of interpretation is simply that
we mean what we say and we say what we
mean."

A five Judges Bench of the
Supreme
Court
in
the
case
of
Sachidananda
Banerjee,
Assistant
Collector of Customs, Calcutta vs. Sitaram
Agarwala and another, 1965 SCC OnLine
SC 45, has held that:

"The rule of construction of such
a clause creating a criminal offence is well
settled. The following passage from the
judgement of the Judicial Committee in The
Gauntlet [(1872) 4 CP 184 at p. 191] may
be quoted:

"No doubt all penal statutes are
to be construed strictly, that is to say, the
court must see that the thing charged as an
offence is within the plain meaning of the
words used, and must not strain the words
on any notion that there has been a slip,
that there has been a casus omissus, that
the thing is so clearly within the mischief
that it must have been intended to be
included, and would have been included if
thought of. On the other hand, the person
charged has a right to say that the thing
charged, although within the words, is not
within the spirit of the enactment. But
where the thing is brought within the words
and within the spirit, there a penal
enactment is to be construed, like any other
instrument, according to the fair commonsense meaning of the language used, and
the court is not to find or make any doubt
or ambiguity in the language of a penal
statute, where such doubt or ambiguity
would clearly not be found or made in the
same language in any instrument."

The clause, therefore, must be
construed strictly and it is not open to the
court to strain the language in order to
read a casus omissus. The court cannot fill
up a lacuna : that is the province of the
legislature.
The
second
rule
of
construction equally well settled is that a
court cannot construe a section of a
statute with reference to that of another
unless the latter is in pari materia with the
former. It follows that decisions made on
a provision of a different statute in India
or elsewhere will be of no relevance unless
the two statutes are in pari materia. Any
deviation from this rule will destroy the
fundamental principle of construction,
namely, the duty of a court is to ascertain
the expressed intention of the legislature."
(emphasis added)

Again a five Judges Bench of the
Supreme Court in A.R. Antulay vs.
Ramdas Sriniwas Nayak and another,
(1984) 2 SCC 500, has held that:

"18. It is a well-established
canon of construction that the court should
read the section as it is and cannot rewrite
it to suit its convenience, nor does any
canon of construction permit the court to
read the section in such manner as to
render it to some extent otiose."

14. A bare perusal of the aforesaid
judgments clearly show that in special facts
and circumstances, Supreme Court gave a
different interpretation to Section 18 of the
1989 Act. Said Section 18 is not at all pari
materia to Section 438 of Cr.P.C. and
hence, interpretation given to Section 18 of
the 1989 Act cannot be applied to Section
438 of Cr.P.C. Neither any facts or material
is placed nor any submissions are made by
10 All. Yash Pratap Singh Vs. State of U.P.
755
the applicant to show that Section 18 of the
1989 Act is pari materia to Section 438 of
Cr.P.C.

15. In the present case, the State
amendment explicitly prohibits anticipatory
bail for offences punishable by death
sentence. The statutory bar is absolute. It is
not for the Courts to rewrite the law or
create exceptions to a legislative mandate
that is unequivocal. While the Courts are
the guardians of individual liberties, they
are also bound to uphold the rule of law
and respect the boundaries set by the
legislature.

16. The argument that the nature of the
offence
should
be
considered
in
determining whether anticipatory bail can
be
granted,
despite
the
statutory
prohibition, is untenable. Such an approach
would effectively render the legislative bar
meaningless and open the door to judicial
overreach.

17.
Any
perceived
hardship
or
injustice that may arise from the strict
application of the statutory bar is a matter
for the legislature to address through amendment.
It is not for the Courts to fill perceived gaps in the
law by exercising discretion contrary to the
express provisions of the statute. However, as
settled by the Supreme Court in the case of Prithvi
Raj Chauhan (supra), the Court in its inherent
jurisdiction under Section 482 Cr.P.C. or under
Article 226/227 of the Constitution of India can
still grant interim protection from arrest if prima
facie, the offences alleged are not made out from
the contents of the complaint. Further, even an
interim bail can be granted by a Court, in
appropriate cases, pending a regular bail
application.

18.
In
light
of
the
clear
and
unequivocal wording of Section 438 of the
Cr.P.C.,
which
prohibits
filing
of
anticipatory bail application in cases where
the offence is punishable by death sentence,
this Court is of the opinion that no judicial
discretion can be exercised to entertain
anticipatory bail application in such cases.

19. The answer to the question
referred to this Bench is, therefore, in the
negative. The Courts cannot entertain
anticipatory bail application in cases where
the State amendment prohibits it.

20.
The
reference
is
answered
accordingly. The matter is directed to be
placed before the learned Single Judge,
who will decide the matter in accordance
with the observations made by this Court.
----------
(2024) 10 ILRA 755
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 18.10.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Criminal Misc. Bail Application No. 2171 of 2024

Yash Pratap Singh ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Manish Kumar Tripathi, Aditya Vikram
Singh

Counsel for the Opposite Party:
G.A.

A.
Criminal
Law-Code
of
Criminal
Procedure, 1973-Sections 309 & 439- Trial
Court has conducted examination of the victim
on 6 dates ranging between a period of 21⁄2
months, whereas examination of a witness is to
be recorded on a day-to-day basis- When the
victim was fully supporting the prosecution case,