# Raman Sahni v. State of U.P

- **Citation:** (2025) 5 ILRA 38
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-05-28
- **Case number:** Criminal Misc. Anticipatory Bail Application U/S 438 CR.P.C. No. 1710 of 2024
- **Bench:** Shree Prakash Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raman-sahni-v-state-of-u-p-53380
- **Pages:** 22

## Headnote

Criminal Law - U.P. Gangsters and AntiSocial Activities (Prevention) Act, 1986 -
Sections 2 & 3 - Anticipatory Bail -
Maintainability - Objections decided by
High
Court
is
whether
application
maintainable as filed directly, contrary to
Ankit Bharti (Infra) - Whether Cr.P.C (U.
P. Amendment) Act, 2018 (Act No. 4 of
2019), which amended Section 438 Cr.P.C.
in U.P., would stand repealed upon repeal
of Cr.P.C. 1973 and enactment of BNSS,
2023 - Applicant taken plea for not filing
anticipatory
bail
application
before
Sessions Judge on ground that rival party
and his associates are financially sound -
Over
fifteen
F.I.R
lodged
against
applicant, including several by his brotherin-law due to animosity - Opponents
exerting
undue
pressure
on
police
officials, influencing judicial proceedings -
Citing serious enmity and threat to life -
Since, Cr.P.C. 1973 stands repealed and its
5 All. Raman Sahni Vs. State of U.P.
39
St. amendments doesn't find place in
saving
clause
of
BNSS
2023,
U.P.
Amendment (Act No. 4 of 2019) is no
longer enforceable - St.'s counter affidavit
depicts
new
draft
amendment
for
anticipatory bail under Sanhita 2023 is
under preparation - Even if not expressly
repealed, subsequent law enacted by
Parliament on same matter will impliedly
repeal St. law by virtue of proviso to
Article 254 of Constitution, where it adds
to,
amends,
varies,
or
repeals
St.
legislation
-
Thus,
Cr.P.C
(U.P.
Amendment) Act, 2018 (U.P. Act No. 4 of
2019)
stands
impliedly
repealed
-
Preliminary objection raised by opposite
party rejected. (Para 3, 5, 47 to 50)
Application pending. (E-13)

List of Cases cited:

## Text

_Characters 0–39,418 of 77,076. This is a partial read: ask again with offset=39418 for what follows._

38 INDIAN LAW REPORTS ALLAHABAD SERIES

60.
Considering
aforesaid
circumstances, the aspects of Section 37 of
NDPS Act are found in favour of the
applicant.

61. Thus in view of law laid down by
Hon'ble
Supreme
Court
in
Sushila
Aggarwal Vs. State (NCT of Delhi)-
(2020) 5 SCC 1, it would be appropriate to
grant anticipatory bail to applicant under
Section 438 Cr.P.C./482 BNSS.

62. In view of the above, it is provided
that in the event of arrest, the applicant-
Sudhir @ Sudhir Kumar Chaurasia shall be
released on anticipatory bail in the aforesaid
Case Crime number on his furnishing a
personal bond with two sureties each in the
like amount to the satisfaction of the arresting
officer/investigating officer/S.H.O. concerned
with the following conditions:-

(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 or tamper with the
evidence;

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

(iv) that in case charge-sheet is
submitted the applicant shall not tamper
with the evidence during the trial;

(v) that the applicant shall not
pressurize/
intimidate
the
prosecution
witness;

(vi) that the applicant shall appear
before the trial court on each date fixed
unless personal presence is exempted;

(vii) that in case of breach of any
of the above conditions, benefit of this
order would not be available to applicant.

The application stands allowed.
----------
(2025) 5 ILRA 38
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 28.05.2025

BEFORE

THE HON'BLE SHREE PRAKASH SINGH, J.

Criminal Misc. Anticipatory Bail Application U/S
438 CR.P.C. No. 1710 of 2024

Raman Sahni ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Sushil Kumar Singh, Ayush Singh

Counsel for the Opposite Party:
G.A., Abhisar Dev, Prashant Kumar Singh,
Rachit Gupta, Sriniwas Bajpai

Criminal Law - U.P. Gangsters and AntiSocial Activities (Prevention) Act, 1986 -
Sections 2 & 3 - Anticipatory Bail -
Maintainability - Objections decided by
High
Court
is
whether
application
maintainable as filed directly, contrary to
Ankit Bharti (Infra) - Whether Cr.P.C (U.
P. Amendment) Act, 2018 (Act No. 4 of
2019), which amended Section 438 Cr.P.C.
in U.P., would stand repealed upon repeal
of Cr.P.C. 1973 and enactment of BNSS,
2023 - Applicant taken plea for not filing
anticipatory
bail
application
before
Sessions Judge on ground that rival party
and his associates are financially sound -
Over
fifteen
F.I.R
lodged
against
applicant, including several by his brotherin-law due to animosity - Opponents
exerting
undue
pressure
on
police
officials, influencing judicial proceedings -
Citing serious enmity and threat to life -
Since, Cr.P.C. 1973 stands repealed and its
5 All. Raman Sahni Vs. State of U.P.
39
St. amendments doesn't find place in
saving
clause
of
BNSS
2023,
U.P.
Amendment (Act No. 4 of 2019) is no
longer enforceable - St.'s counter affidavit
depicts
new
draft
amendment
for
anticipatory bail under Sanhita 2023 is
under preparation - Even if not expressly
repealed, subsequent law enacted by
Parliament on same matter will impliedly
repeal St. law by virtue of proviso to
Article 254 of Constitution, where it adds
to,
amends,
varies,
or
repeals
St.
legislation
-
Thus,
Cr.P.C
(U.P.
Amendment) Act, 2018 (U.P. Act No. 4 of
2019)
stands
impliedly
repealed
-
Preliminary objection raised by opposite
party rejected. (Para 3, 5, 47 to 50)
Application pending. (E-13)

List of Cases cited:

1. Ankit Bharti Vs St. of U.P. & anr. 2020 SCC
OnLine All 1949, (Paras 16 to 22)

2. Mata Sewak Upadhyay Vs St. of U.P. reported
in 1995 JIC 1168

3. Rodrigues Vs Viswajeet P-Rane & ors., 2017
11 SCC 62 (AIRES)

4. The St. of Bombay Vs Pandurang Vinayak
Chaphalkar & ors. 1953 1 SCC 425

5. Harshad S. Mehta & ors. Vs The St. Of Mah.
2001 8 SCC 257

6. Government of Andhra Pradesh & ors. Vs
Smt. P. Laxmi Devi 2008 4 SCC 720

7. Harkesh Chand Vs Krishan Gopal Mehta &
ors.2017 4 SCC 537

8. Deepu & ors. Vs St. of U.P. & ors. 2024 SCC
OnLine All 4289, (Para 16)

9. Zaverbhai Amaidas Vs St. of Bombay 1954 2
SCC 345, (Paras 13, 14, 16)

10. T. Barai Vs Henry Ah Hoe & anr. 1983 1 SCC
177, (Paras 15, 16)

11. Innoventive Industries Ltd. Vs ICICI Bank
2017 SCR page 33, (Paras vi, viii to x)
12. Naeem Bano @ Gaindo Vs Mohammad
Rahees & anr., Special Leave Petition (C) No.
16460 of 2023, (Paras 9.5, 9.6)
(Delivered by Hon'ble Shree Prakash
Singh, J.)

1. Heard Sri Sushil Kumar Singh,
learned counsel for the applicant, Sri I.B.
Singh, Senior Advocate assisted by Sri
Avinash Singh Vishen, Advocate; Sri V.K.
Singh, G.A. assisted by Sri Shivendra
Shivam Singh Rathore, Sri Aniruddh
Kumar Singh, AGA-I assisted by Sri
Vaibhav Srivastava, Sri Nirmal Pandey,
learned A.G.A. for the State; Sri Gaurav
Mehrotra,
Advocate,
Amicus
Curie,
assisted by Sri Utsav Misra, Akber Ahmed,
Madhur Jhavar, Maria Fatima, Alina,
Chinmay
Misra,
Ravi
Singh,
Harsh
Vardhan
Mehrotra,
Ramendra
Yadav,
Shhriya Agarwal, Ahad, Ankit Tripathi
(Advocates) and Sri Sriniwas Bajpai,
learned counsel for the complainant.

2. The instant bail application has been
filed on behalf of the applicant with the
prayer to grant him anticipatory bail in
Case Crime No. 124 of 2021, under
sections- 2 and 3 of U.P. Gangster Act
P.S.- Kotwali District - Sitapur.

3. At the very outset, the objection
regarding the maintainability of the instant
application are raised in two folds. One that
the applicant has moved this application
directly to this Court, which is not
maintainable as per the law laid down in
case of Ankit Bharti Vs. State of U.P.
anothers 2020 SCC OnLine All 1949 and
secondly, in light of the provision of subsection 6(a)(b) of section 438 of Cr.P.C. as
amended by U.P. State legislature namely,
U.P.
State
Amendment
2019,
(Uttar
Pradesh Amendment) Act 2018 (U.P. Act
No. 4 of 2019) (hereinafter referred to as
40 INDIAN LAW REPORTS ALLAHABAD SERIES
'Act 2018, U.P. Act No. 4 of 2019') the
benefit of provision of anticipatory bail is
available in the matter pertaining to
Gangster Act.

4. For summarising the issue, two
questions can be formulated;

'I- Whether, the anticipatory bail
application could directly be filed before
this
Court,
under
the
facts
and
circumstances of the present case?

II- Whether, in light of the
repealment of Criminal Procedure Code,
1973 (hereinafter referred to as 'Cr.P.C.
1973') and subsequently, the re-enactment
of BNSS 2023(hereinafter referred to as
'Sanhita 2023'), the Code of Criminal
Procedure (Uttar Pradesh Amendment) Act
2018 (U.P. Act No. 4 of 2019) with
presidential assent, would stand repealed?

5. So long as the first objection is
concerned, the plea has been taken by the
applicant for not filing the anticipatory bail
application before the Sessions Judge,
Sitapur, that the rival, Satyanaran and his
family or involved in the business of Bricklin and Transport and more than fifteen first
information reports have been lodged
against the applicant and and further the
brother-in-law of the applicant namely,
Anand in animosity, has also lodged
several first information reports against
him. It has also been stated that the
opponent of the applicant being financially
and politically powerful, is pressurizing the
police officers and moreover, they are also
affecting the judicial proceeding before the
trial court. The next ground for directly
approaching this Court is that there is threat
to life to the applicant as there are acute
enmity in between the parties and the
applicant is not safe to approach the learned
District and Sessions Judge for anticipatory
bail. On the aforesaid ground, it is prayed
that the anticipatory bail application may
directly be entertained by this Court.

6. The counsel for the opposite parties
have contradicted and submitted that since,
there is no special reason to approach this
Court, directly, therefore, the application is
liable to be dismissed.

7. The settled law in case of Ankit
Bharti v. State of U.P. and another 2020
SCC OnLine All 1949 laid down the law
while
answering
the
reference.
The
reference answered by the full bench of this
Court reads as under:-

"16. The Reference, in that sense,
was clearly not merited. However and since
we have heard parties not only on the
question of maintainability of the Reference
but also on the questions formulated for
our consideration, we deem it apposite to
render our opinion in order to lend a
quietus to the doubts which appear to exist.

17. We, therefore, hold that the
conclusions as recorded in Vinod Kumar
on the meaning to be ascribed to
exceptional or special circumstances needs
no reconsideration. It must, as was noted
there, be left to the concerned Judge to
exercise the discretion as vested in him by
the statute dependent upon the facts
obtaining in a particular case.

18. The second aspect which
needs to be emphasized and reiterated is
that Vinod Kumar itself while articulating
some of the situations in which the High
Court
may
be
moved
directly
had
underlined the necessity of those assertions
being evidenced and substantiated in fact A
bald assertion without requisite particulars
was neither suggested as being sufficient to
petition the High Court nor does such an
assumption flow from that decision. Vinod
5 All. Raman Sahni Vs. State of U.P.
41
Kumar has explained that an application of
grant of anticipatory bail cannot rest on
vague and unsubstantiated allegations or
lack of material particulars in support of
the threat of imminent arrest. The learned
Judge has while dealing with this aspect
also referred to the pertinent observations
as made by the Supreme Court in Rashmi
Rekha
Thatol
v.
State
of
Orissala
Consequently it must be held that some of
the circumstances which have been noted
by the learned Judge in Vinod Kumar by
way of an exemplar of what may constitute
special circumstances is not to be read or
understood as empty incantations but must
necessarily be supported and established
from the material on record. The petition
must rest on a strong foundation in support
of the imminent threat of arrest as alleged.
This aspect has also been duly emphasised
by the Constitution Bench in Sushila
Agarwal as is evident from the parts
extracted above with it being observed that
the application must be based "..on
concrete facts (and not vague or general
allegations)...

19. Viewed in that backdrop it is
manifest that it was open for the learned
Judge to assess the facts of each case to
form
an
opinion
whether
special
circumstances existed or not entitling the
applicant there to approach the High Court
directly. Considered from the aforesaid
perspective, it is manifest that Question (i)
as framed by the learned Judge is really
unwarranted. If the learned Judge was of
the opinion that the averments made in
support
of
the
existence
of
special
circumstances were "not appealing" [as he
chooses to describe it or unconvincing,
nothing hindered the Court from holding
so.

20.
We
would
consequently
answer the Reference by holding that the
decision in Vinod Kumar does not merit
any reconsideration or explanation. As
rightly held in that decision, there can be
no exhaustive or general exposition of
circumstances in which an applicant may
be held entitled to approach the High Court
directly. The Court would clearly err in
attempting to draw a uniform code or
dictum that may guide the exercise of
discretion vested in the Court under
Section 438 of the Criminal Procedure
Code. The discretion wisely left unfettered
by the Legislature must be recognised as
being available to be exercised dependent
upon the facts and circumstances of each
particular case. The contingencies spelled
out in Vinod Kumar as illustrative of
special circumstances may, where duly
established, constitute a ground to petition
the High Court directly.

21. The special circumstances the
existence of which have been held to be a
sine qua non to the entertainment of an
application for anticipatory bail directly by
the High Court must be left for the
consideration of the Hon'ble Judge before
whom the petition is placed and a decision
thereon taken bearing in mind the facts and
circumstances of that particular cause.
However
special
circumstances
must
necessarily exist and be established as such
before the jurisdiction of the High Court is
invoked. The application must rest on a
strong foundation in respect of both the
apprehension of arrest as well as in
justification of the concurrent jurisdiction
of the High Court being invoked directly.
The factors enumerated in Vinod Kumar
including (A) and (B) as constituting
special circumstances do not merit any
review except to observe that the existence
of any particular circumstance must be
convincingly established and not rest on
vague allegations.

22. In light of the aforesaid, we
answer the Reference as follows:-
42 INDIAN LAW REPORTS ALLAHABAD SERIES

Question (i) and (iv) clearly do
not merit any elucidation for it is for the
concerned Judge to assess whether special
circumstances do exist in a particular case
warranting the jurisdiction of the High
Court being invoked directly. We answer
Questions (ii) and (iii) in the negative and
hold that Vinod Kumar does not merit any
reconsideration or further explanation. It
would be for the concerned Judge to form
an opinion in the facts of each particular
case whether special circumstances do
exist and stand duly established."

8. While answering the reference, it is
held
that
the
entertainment
of
an
application directly by the High Court is for
the consideration of the Hon'ble Judge
before whom the petition is placed.
Meaning thereby, that there is no absolute
bar that a person who has apprehension of
arrest, cannot approach the High Court
directly rather this will depend on the facts
and circumstances of the case, on the basis
of which the Hon'ble Judge will apply its
discretion
and
would
take
decision
regarding the maintainability of such
anticipatory bail application.

9. So far as the present case is
concerned, the detailed reasons are stated in
paragraph no. 3 of the anticipatory bail
application. It reveals that the applicant is
facing more than fifteen first information
reports, which are lodged by the same
complainant and the specific plea has been
taken that the complainant is financially
sound and there is tremendous threat to the
applicant, in approaching the trial court, as
the complainant and his goons are chasing
the applicant while doing 'Gadha Bandi.'

10. Considering the aforesaid peculiar
facts and circumstances, particularly the law
laid down in Ankit Bharti's Case, the
objection regarding the maintainability of the
anticipatory bail application on the ground of
directly approaching this Court, has no force
and thus, the same is rejected.

11. Now, most importantly, the second
objection is that the riders of section 6(a)(b)
of the Act 2018-(U.P. Act No. 4 of 2019) is
still
enforceable/applicable
after
the
repealment of Cr.P.C. 1973 and re-enactment
of 'Sanhita 2023.' The Code of Criminal
Procedure was enacted by the parliament in
1973 and the Assembly of State of U.P. came
with an amendment and by virtue of the
same, the provision of anticipatory bail as
provided under section 438 of Cr.P.C. 1973
was suspended, detecting the peculiar
circumstances emerges at that point of time,
in the State of Uttar Pradesh. After a period
of about 40 years, considering the change in
the
circumstances,
the
provision
of
anticipatory bail as provided in the Cr.P.C.
1973,
was
re-introduced
with
certain
objective/riders, namely, 'the Act 2018 (U.P.
Act No. 4 of 2019).' The riders which
basically envisaged in sub-section 6 of
section 438(1) of the Cr.P.C. 1973, is
reproduced hereinunder:-

"(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."

12. Fact remains that with effect from
1.7.2024, the Cr.P.C. 1973 has been
5 All. Raman Sahni Vs. State of U.P.
43
repealed and the parliament came with the
new legislation in the name of Bharatiya
Nagrik Surakhsha Sanhita 2023. Prior to
the promulgation of the Sanhita 2023, as
per the press release of Ministry of Law
and Justice, Government of India, it
transpires that there was a vital free
legislative
consultation
for
Bharatiya
Nyaya
Sanhita,
Bharatiya
Nagrik
Surakhsha Sanhita and Bharatiya Sakhsya
Adhiniyam. This release contains the
information that it is for the purpose to seek
suggestions
from
all
stakeholders,
'Governors, Chief Ministers, Lieutenant
Governors, Administrators of State and
Union Territories' for their suggestions on
comprehensive amendment to the Criminal
laws and suggestions were also sought
from the Hon'ble Chief Justice of India and
the Hon'ble Chief Justices of all High
Courts,
Bar
Councils,
Law
Universities/Institutions, all Members of
Parliament(Loksabha and Rajsabha). Not
only this, but a committee was also
constituted under the chairmanship of ViceChancellor,
National
Law
University(NLU), Delhi to examine and
suggest reforms in criminal laws. The
committee had also invited suggestions
from various quarters including the public
and the Government and had also received
inputs/suggestions from the States and
Union Territories, Supreme Court of India,
High Courts, Judicial Academies, Law
Institutions and Members of Parliament.
The committee constituted under the
chairmanship of Vice Chancellor, National
Law University, Delhi, while considering
all the suggestions and with extensive
consultation with all stakeholders and in
the depth research submitted its report in
February,
2022
alongwith
its
recommendations
and
thereafter,
the
Parliament after comprehensive discussion,
has passed the 'Sanhita 2023.'

13. The Sanhita 2023 came into force
with effect from 1.7.2024 and while
deriving the power provided under section
1(3) of the Sanhita 2023, the Central
Government
issued
notification
on
1.7.2024. Now, what are saved and are
repealed, are provided under section 531 of
Sanhita 2023. Section 531 is reproduced as
follows:-

"531. Repeal and savings.- (1) The Code of
Criminal Procedure, 1973 (2 of 1974) is
hereby repealed.

(2) Notwithstanding such repeal-

(a) if, immediately before the date
on which this Sanhita comes into force,
there is any appeal, application, trial,
inquiry or investigation pending, then, such
appeal, application, trial, inquiry or
investigation
shall
be
disposed
of,
continued, held or made, as the case may
be, in accordance with the provisions of the
Code of Criminal Procedure. 1973 (2 of
1974), as in force immediately before such
commencement (hereinafter referred to as
the said Code), as if this Sanhita had not
come into force:
(b)
all
notifications
published,
proclamations issued, powers conferred,
forms provided by rules, local jurisdictions
defined, sentences passed and orders, rules
and appointments, not being appointments
as Special Magistrates, made under the
said Code and which are in force
immediately before the commencement of
this Sanhita, shall be deemed, respectively,
to have been published, issued, conferred,
specified, defined, passed or made under
the corresponding provisions of this
Sanhita;

(c) any sanction accorded or
consent given under the said Code in
pursuance of which no proceeding was
commenced under that Code, shall be
deemed to have been accorded or given
44 INDIAN LAW REPORTS ALLAHABAD SERIES
under the corresponding provisions of this
Sanhita
and
proceedings
may
be
commenced
under
this
Sanhita
in
pursuance of such sanction or consent.

(3) Where the period specified for
an application or other proceeding under
the said Code had expired on or before the
commencement of this Sanhita, nothing in
this Sanhita shall be construed as enabling
any such application to be made or
proceeding to be commenced under this
Sanhita by reason only of the fact that a
longer period therefor is specified by this
Sanhita or provisions are made in this
Sanhita for the extension of time."

14. Bare perusal of the provisions of
repeal and savings, it reveals that the same
is silent over any State amendment made in
the erstwhile Cr.P.C. 1973. Now, this
would be relevant to have a comparative
study,
particularly
the
provisions
of
anticipatory bail provided in the old Cr.P.C.
under section 438 and the amendment by
the State Legislature and subsequently, the
provisions of sections 482 provided in the
Sanhita
2023,'
as
the
question
is
particularly in reference with the provisions
of anticipatory bail though, it goes into the
root of the issue regarding the existence of
the State amendments, which are made in a
Central Laws, particularly the entries
provided in the List III of Seventh Schedule
of the Constitution of India.

15. The comparative chart highlighting
the distinctions between the provisions of
anticipatory bail contained under section
438 of erstwhile Cr.P.C. 1973, 'the Act
2018'and section 482 of Sanhita 2023, are
given as follows:-

Section
438,
Code
of
Criminal
Procedure, 1973
Section
438,
Code
of
Criminal
Procedure
Section
482,
Bharatiya
Nagarik
Suraksha

(Uttar
Pradesh
Amendment)
Act, 2018 (U.P.
Act no. 4 of
2019)
Sanhita,
2023
("BNSS")

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,
interalia,
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
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;
the
possibility of the
applicant to flee
from justice;
iii. and where the
accusation
has
been made with
the
object
of
injuring
or
humiliating
the
applicant
by
having
him
so
arrested;
iv. either reject
the
application
forthwith or issue
an interim order
for the grant of
anticipatory bail:
Provided
that
482.
Direction
for grant of bail
to
person
apprehending
arrest.
-
(1)
When
any
person
has
reason to believe
that he may be
arrested on an
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; and
that Court may,
if it thinks fit,
direct that in the
event of such
arrest, he shall
be released on
bail.
 (2) When the
High Court or
the
Court
of
Session makes a
direction under
sub-section (1),
it may include
such conditions
in
such
directions in the
light of the facts
of the particular
case, as it may
think
fit,
including-
 (i) a condition
that the person
shall
make
himself available
for interrogation
by
a
police
officer as and
when required;
(ii) a condition
that the person
shall
not,
directly
or
indirectly, make
any inducement,
5 All. Raman Sahni Vs. State of U.P.
45
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 subsection
or
has
rejected
the
application
for
grant
of
anticipatory bail,
it shall be open to
an
officer
incharge of a police
station to arrest,
without
warrant
the applicant on
the basis of the
accusation
apprehended
in
such application.
 (1A) 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 finally
heard
by
the
Court, (1B) The
presence of the
applicant seeking
anticipatory bail
shall
be
obligatory at the
time
of
final
hearing
of
the
application
and
passing of final
order
by
the
Court, if on an
application made
where the High
Court or, as the
case may be, the
Court of Session,
has not passed
any interim order
under this subsection
or
has
rejected
the
application
for
grant
of
anticipatory bail,
it shall be open to
an
officer
incharge 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 finally
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;
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) a condition
that the person
shall not leave
India without the
previous
permission
of
the Court;
(iv) such other
condition as may
be
imposed
under
subsection (3) of
section 480, as if
the
bail
were
granted
under
that section.
(3)
If
such
person
is
thereafter
arrested without
warrant by an
officer in charge
of
a
police
station on such
accusation, and
is
prepared
either at the time
of arrest or at
any time while in
the custody of
such officer to
give
bail,
he
shall be released
on bail; and if a
Magistrate
taking
cognizance
of
such
offence
decides that a
warrant should
be issued in the
first
instance
against
that
person, he shall
issue a bailable
warrant
in
conformity with
the direction of
the Court under
sub-section (1).
(4) Nothing in
this section shall
to it by the Public
Prosecutor,
the
Court
considers
such
presence
necessary in the
interest
of
justice.]
 (2)
When
the
High Court or the
Court of Session
makes a direction
under sub-section
(1),
it
may
include
such
conditions in such
directions in the
light of the facts
of the particular
case, as it may
think
fit,
including-
 (i) a condition
that the person
shall
make
himself available
for interrogation
by a police officer
as
and
when
required;
(ii) a condition
that the person
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) a condition
that the person
shall not leave
India without the
previous
permission of the
Court;
(iv) such other
condition as may
be imposed under
sub-section (3) of
section 437, as if
the
bail
were
granted under that
section.
(3) If such person
is
thereafter
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
Police,
with
a
view to give the
Public Prosecutor
a
reasonable
apply
to
any
case
involving
the arrest of any
person
on
accusation
of
having
committed
an
offence
under
section 65 and
sub-section
(2)
of section 70 of
the
Bhartiya
Nyaya Sanhita,
2023.
46 INDIAN LAW REPORTS ALLAHABAD SERIES
arrested
without
warrant
by
an
officer in charge
of a police station
on
such
accusation, and is
prepared either at
the time of arrest
or at any time
while
in
the
custody of such
officer
to
give
bail, he shall be
released on bail;
and
if
a
Magistrate taking
cognizance
of
such
offence
decides
that
a
warrant should be
issued in the first
instance
against
that person, he
shall
issue
a
bailable
warrant
in confirmity with
the direction of
the Court under
sub-section (1).

(4)
Nothing in this
section
shall
apply to any case
involving
the
arrest
of
any
person
on
accusation
of
having committed
an offence under
sub-section (3) of
section 376 or
section 376AB or
section 376DA or
section 376DB of
the Indian Penal
Code
(45
of
1860).

opportunity
of
being heard when
the
application
shall be finally
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, the
Unlawful
Activities
(Prevention) Act,
1967;
the
Narcotic
Drugs
and Psychotropic
Substances
Act,
1985; the Official
Secret Act, 1923;
the Uttar Pradesh
Gangsters
and
Anti-Social
Activities
(Prevention) Act,
1986.
(b)
in
the
offences,
in
which
death
sentence
can
awarded be
(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."

16. It is pertinent to mention that the
old provision contained in Section 438 of
the erstwhile CrPC, 1973 is completely
different from the new provision for
anticipatory bail contained in Section 482
of the Sanhita 2023. It is not a case where a
repealed provision in erstwhile Section 438
of the CrPC, 1973 has been verbatim
retained under the new Section 482 of
Sanhita 2023 which may lead to any such
conclusion that the state amendments in
erstwhile Section 438 of the CrPC, 1973
are to be read in the new Section 482 of
Sanhita 2023 as both the aforesaid
provisions are different and not exactly the
same.

17. Further in the old provision
contained in Section 438 of the erstwhile
'Cr.P.C. 1973', there were certain guiding
factors which were to be considered while
deciding
an
application
seeking
anticipatory
bail,
however,
the
new
provision contained in Section 482 of the
Sanhita 2023 deletes the guiding factors
which the Hon'ble Courts while hearing the
anticipatory bail applications, were to take
into account, such as nature and gravity of
accusation, criminal antecedents and the
possibility of the accused to flee from
justice.

18. The mandatory requirement to
decide an anticipatory bail application
within 30 (thirty) days under the old
5 All. Raman Sahni Vs. State of U.P.
47
Section 438(5) of the erstwhile Cr.P.C.
1973, also stands deleted in the new
Section 482 of Sanhita 2023. Similarly, the
requirement under Section 438(1-A) of the
erstwhile CrPC, 1973 which provided that
where the Hon'ble Court grants an interim
order under sub-section (1) of aforesaid
Section 438, it shall forthwith issue a notice
being not less than 'seven days', 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 finally heard by the
Hon'ble Court, also stands dispensed under
Section 482 of Sanhita 2023.

19. Evidently, under Section 482 of
Sanhita 2023, the Hon'ble Courts have been
conferred wider powers and discretion for
granting anticipatory bail. It is not just the
section number but even the text and intent of
the provision for grant of anticipatory bail
have been changed under the new provision
contained in Section 482 of Sanhita 2023.

20. At this juncture, it is to examine that
if a Central Legislation is repealed and reenacted in respective of entries contained in
List-III of the 7th Schedule appended to the
Constitution
of
India,
wherein,
the
amendments made by the State Legislatures
in the erstwhile enactment, even after receipt
of presidential assent, shall also stand
impliedly repealed or would have its
existence independently.

21. Prior to dwelling into the question
of
repealment
of
the
State
Amendments/State Laws in the erstwhile
Central Legislation, the provision of Article
254 is necessarily to be discussed. Article
254 of the Constitution of India reads as
under:-

"254. Inconsistency between laws
made by Parliament and laws made by the
Legislatures of States.-(1) If any provision
of a law made by the Legislature of a State
is repugnant to any provision of a law
made by Parliament which Parliament is
competent to enact, or to any provision of
an existing law with respect to one of the
matters enumerated in the Concurrent List,
then, subject to the provisions of clause (2),
the law made by Parliament, whether
passed before or after the law made by the
Legislature of such State, or, as the case
may be, the existing law, shall prevail and
the law made by the Legislature of the State
shall, to the extent of the repugnancy, be
void.

(2) Where a law made by the
Legislature of a State with respect to one of
the matters enumerated in the Concurrent
List contains any provision repugnant to
the provisions of an earlier law made by
Parliament or an existing law with respect
to that matter, then, the law so made by the
Legislature of such State shall, if it has
been reserved for the consideration of the
President and has received his assent,
prevail in that State:

Provided that nothing in this
clause shall prevent Parliament from
enacting at any time any law with respect
to the same matter including a law adding
to, amending, varying or repealing the law
so made by the Legislature of the State."

22. Sub-clause 1 and 2 of Article 254
of the Constitution of India is very clear
regarding any inconsistency between the
two laws; one by the parliament and next
by the legislature of the States and this
provision provides that to the extent of
repugnancy of any law, enactment by the
legislature of the State to the law made by
the Parliament would be void.
48 INDIAN LAW REPORTS ALLAHABAD SERIES

23. The Crux of the issue in fact is
covered with the Proviso of Article 254
which provides that the provision of Article
254 would not prevent the Parliament for
enacting any law with respect to "same
subject matter", the law adding to,
amending, varying or repealing the law
so made by the legislature of the State.

24. Undoubtedly, the 'Act 2018 (Act
No. of 2019)' enacted by the State of U.P.
for introducing amendment in section 438
of Cr.P.C. 1973 had received assent from
the President of India.

25. It is not out of place to mention
here that on 16.7.2024, the Government of
India, Department of Law and Justice
issued a notification in-pursuance of
section 8 of General Clauses Act 1897
(hereinafter referred to as 'Act 1897'),
which says that any reference of IPC,
Cr.P.C. and Evidence Act or any provision
thereof, is made in any act made by
Parliament or by the Legislature of State;
Ordinance; Regulations made under Article
240 of Constitution of India; President's
order;
Rules
Regulations
Order
or
notification
made
under
any
Act,
Ordinances or Regulations, such reference
shall respectively be read. The notification
dated
16.7.2024
is
reproduced
hereinunder:-

"MINISTRY OF LAW AND JUSTICE
(Legislative Department)
NOTIFICATION
New Delhi, the 16th July, 2024,
S.O. 2790(E). In pursuance of section 8 of
the General Clauses Act, 1897 (10 of
1897), the Central Government hereby
notifies that where any reference of the
Indian Penal Code (45 of 1860), or the
Code of Criminal Procedure, 1973 (2 of
1974) or the Indian Evidence Act, 1872 (1
of 1872 or any provisions thereof is made
in any-

(a) Act made by Parliament, or

(b) Act made by the Legislature of
any State;

(c) Ordinance,

(d)
Regulations
made
under
article 240 of the Constitution;

(e) President's order,

(f) rules, regulations, order or
notification
made
under
any
Act,
Ordinance or Regulation,

for the time being in force, such
reference shall respectively be read as the
reference of the Bharatiya Nyaya Sanhita,
2023 (45 of 2023) (BNS), the Bharatiya
Nagarik Suraksha Sanhita, 2023 (46 of
2023) (BNSS) or the Bharatiya Sakshya
Adhiniyam, 2023 (47 of 2023) (BSA), and
the corresponding provisions of such law
shall be construed accordingly.
[F. No. 13(12)/2024-Leg.1]
DIWAKAR SINGH, Addl. Secy. "

26. Section 8 of the 'Act 1897'
provides that how to interpret references to
repeal enactments. It says that when a
provision of a farmer enactment is repealed
and re-enacted, any reference to the
repealed provision in other enactments or
instruments should be interpreted as
references to the re-enacted provisions for
example any reference of Cr.P.C. in any
Act time being prevailed, will be read as
reference to Sanhita 2023 and similarly
applicable to the other repealed enactments.
Section 8 of Act 1897 is reproduced
hereinunder:-

"8. Construction of references to
repealed enactments. [(1)] [Section 8
renumbered as sub-Section (1) thereof by
Act 18 of 1919, Section 2 and Sch.I.] Where
this Act, or any [Central Act] [Substituted
by A.O. 1937, for " Act of the Governor
5 All. Raman Sahni Vs.