# Sudhir @ Sudhir Kumar Chaurasia v. State of U.P. & Ors

- **Citation:** (2025) 5 ILRA 20
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-05-30
- **Case number:** Criminal Misc. Anticipatory Bail Application U/S 438 CR.P.C. No. 447 of 2025
- **Bench:** Manish Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sudhir-sudhir-kumar-chaurasia-v-state-of-u-p-ors-53337
- **Pages:** 19

## Headnote

A. Criminal Law - Criminal Procedure
Code,1973-Section
438-Indian
Penal
Code,1860-Sections 420, 467, 468 & 471 -
The Narcotic Drugs and Psychotropic
Substances Act, 1985 - Section 22(c )-
Maintainability
of
anticipatory
bail
application in view of the facts that it
pertains to NDPS Act and therefore is not
maintainable in terms of section 438(6)
CrPC-The court held that the repeal of the
Code
of
criminal
procedure
and
its
replacement by the BNSS 2023 does not
save the U.P. Amendment (Act No. 4 of
2019), which had barred anticipatory
bail in NDPS Act offences-BNSS is not
saving
clause
for
state
legislative
amendments,
and
the
term
"notification" therein cannot include a
state enactment under Article 246 of the
Constitution-Relying on constitutional
principles, section 6 of General Clauses
Act, and the proviso to Article 254(2),
the court ruled that where Parliament
subsequently
re-enacts
a
law
with
differences, the repugnant state law
stands overridden-As section 482 BNSS
omits the earlier embargo under section
438(6) CrPC, anticipatory bail is now
maintainable even in NDPS Act offencesOn
facts,
considering
the
lack
of
recovery from the applicant, the pending
FSL report, and the prior grant of
anticipatory bail under IPC sections, the
Court granted anticipatory bail to the
applicant.(Para 1 to 61)

The application is allowed. (E-6)

List of Cases cited:
5 All. Sudhir @ Sudhir Kumar Chaurasia Vs. State of U.P. & Ors.
21

## Text

_Characters 0–39,981 of 64,962. This is a partial read: ask again with offset=39981 for what follows._

20 INDIAN LAW REPORTS ALLAHABAD SERIES

17. In view of the above, the
anticipatory
bail
application
of
the
applicant is allowed. In the event of arrest/
appearance of applicant- Prashant Shukla
before the learned Trial Court in the
aforesaid case crime, 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 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 the applicant shall appear
before the trial court on each date fixed,
unless his personal presence is exempted;
and

(v). that the applicant shall not
pressurize/
intimidate
the
prosecution
witness.
----------
(2025) 5 ILRA 20
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 30.05.2025

BEFORE

THE HON'BLE MANISH MATHUR, J.

Criminal Misc. Anticipatory Bail Application U/S
438 CR.P.C. No. 447 of 2025

Sudhir @ Sudhir Kumar Chaurasia
 ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant:
Pradeep Kumar, Adarsh Tripathi, Prabhat
Kumar Mishra

Counsel for the Opposite Parties:
G.A.

A. Criminal Law - Criminal Procedure
Code,1973-Section
438-Indian
Penal
Code,1860-Sections 420, 467, 468 & 471 -
The Narcotic Drugs and Psychotropic
Substances Act, 1985 - Section 22(c )-
Maintainability
of
anticipatory
bail
application in view of the facts that it
pertains to NDPS Act and therefore is not
maintainable in terms of section 438(6)
CrPC-The court held that the repeal of the
Code
of
criminal
procedure
and
its
replacement by the BNSS 2023 does not
save the U.P. Amendment (Act No. 4 of
2019), which had barred anticipatory
bail in NDPS Act offences-BNSS is not
saving
clause
for
state
legislative
amendments,
and
the
term
"notification" therein cannot include a
state enactment under Article 246 of the
Constitution-Relying on constitutional
principles, section 6 of General Clauses
Act, and the proviso to Article 254(2),
the court ruled that where Parliament
subsequently
re-enacts
a
law
with
differences, the repugnant state law
stands overridden-As section 482 BNSS
omits the earlier embargo under section
438(6) CrPC, anticipatory bail is now
maintainable even in NDPS Act offencesOn
facts,
considering
the
lack
of
recovery from the applicant, the pending
FSL report, and the prior grant of
anticipatory bail under IPC sections, the
Court granted anticipatory bail to the
applicant.(Para 1 to 61)

The application is allowed. (E-6)

List of Cases cited:
5 All. Sudhir @ Sudhir Kumar Chaurasia Vs. State of U.P. & Ors.
21
1. St. of T.N. Vs P. Krishnamurti & ors. (2006) 4
SCC 517

2. Mah. Univ. of Health Sciences Vs Satchikitsa
Prasarak Mandal (2010) 3 SCC 786

3. St. of Punj. Vs Harnek Singh (2002) 3 SCC
481

4. Vinay Kr. Pandey Vs St. of U.P. & ors. ,
Cri.MWP No. 13827 of 2024

5. Jitendra Pratap Singh Vs St. of U.P., ABAIL
Appl. No. 144 of 2024

6. St. of UP Vs Hirendra Pal Singh(2011) 5 SCC
305

7. St. of Punj. Vs Mohar Singh(1954) 2 SCC 483

8.
Manphul
Singh
Sharma
Vs
Ahmadi
Begum,(1994) 5 SCC 456

9. Gajraj Singh & ors. Vs S.T.A.T. & ors. (1997)
1 SCC 650

10. Zaver Bhai Amaidas Vs St. of Bom.(1954) 2
SCC 345

11. Naeem Bano @ Gaindo Vs Md. Rahees &
anr. , SLP (c ) No. 16460 of 2023

12. M. Ravindran Vs Directorate of Revenue
Intelligence (2021) 2 SCC 485

13. Tolaram Relumal & anr. Vs St. of Bom
(1954) 1 SCC 961

14. Sushila Aggarwal Vs St. (NCT of Delhi)
(2020) 5 SCC 1

(Delivered by Hon'ble Manish Mathur, J.)

1. Heard Mr. Prabhat Kumar Mishra
learned counsel for applicant and Dr. V.K.
Singh
learned
Government
Advocate
assisted by Mr. Nikhil Singh learned
Additional
Government
Advocate
on
behalf of State. For better appreciation of
controversy this Court has also heard Mr.
S.K.Singh, Mr. Atul Verma, Mr. Gaurav
Mehrotra, Mr. Nadeem Murtza and Mr.
Dilip Kumar Pandey, Advocates as learned
Amicus Curiae.

2. First Anticipatory bail application
has been filed with regard to Section 22(c)
of the NDPS Act 1985 registered in Police
Station Kotwali, District Barabanki.

3. Earlier with regard to same case
crime number, anticipatory bail had been
granted to the applicant under Sections 420,
467, 468 and 471 IPC in anticipatory bail
application No. 1713 of 2024. The present
anticipatory bail application has been filed
with regard to added Section 22(c) of the
NDPS Act.

4. At the very outset, learned counsel
for State has raised a preliminary objection
regarding maintainability of anticipatory
bail application in view of the fact that it
pertains to NDPS Act and therefore is not
maintainable in terms of Section 438(6)
Cr.P.C. It is submitted that earlier the
provisions
of
Section
438
Cr.P.C.
pertaining to anticipatory bail were omitted
for the State of U.P. by means of U.P. Act
No.16 of 1976 and were re-incorporated by
means of U.P. Act No. 4 of 2019. It is
submitted that the aforesaid provisions of
anticipatory bail were subject to embargo
under
Section
438(6)
which
clearly
indicated that provisions of anticipatory
bail would not be applicable in case of
NDPS Act. It is submitted that although
Cr.P.C. has subsequently been repealed by
the Bhartiya Nagrik Suraksha Sanhita
2023, the provisions incorporated by means
of amendment in Section 438 Cr.P.C.
would continue in the same terms in view
of Section 531(2)(b) of BNSS. Learned
counsel has also adverted to provisions of
Sections 6, 6-A, 8 and 24 of the General
Clauses Act 1897 to substantiate his
22 INDIAN LAW REPORTS ALLAHABAD SERIES
submission that in case where a Central Act
has been amended by State legislature by
means
of
an
enactment
and
has
subsequently been granted assent by the
President of India, the State enactment
would continue to govern the field in terms
of Article 254(2) of the Constitution of
India and in such a situation the Repeal of
Central Act would be immaterial. Learned
counsel has specifically emphasized upon
Section 6-A of General Clauses Act to
substantiate his pleading that since different
intention appears, the Repeal of Central Act
would not affect the continuance of
amendment of Central Act which was made
by the state enactment in the year 2019.
Learned counsel has also placed reliance on
Section 2(p) BNSS 2023 to submit that the
definition of 'notification' under Section
2(p) BNSS would be a notification
published in the official gazette which is in
turn defined in Section 3(39) of the General
Clauses Act. It is therefore submitted that
the term of 'notification' as appearing in
Section 531(2)(b) BNSS would construe a
saving clause of the amendment made in
the year 2019 by the state amendment in
Section 438 Cr.P.C.

5. Learned counsel has placed reliance
on following case laws:-

State of Punjab versus Harnek
Singh (2002) 3 SCC 481; Vinay Kumar
Pandey versus State of U.P. and others,
decided by Division Bench of this Court in
Criminal Misc. Writ Petition No. 13827 of
2024; Jitendra Pratap Singh versus State of
U.P. a Division Bench of this Court in
Criminal
Misc.
Anticipatory
Bail
Application No. 144 of 2024.

6. Learned counsel appearing for
applicant and learned Amicus Curiae have
refuted submissions advanced by learned
counsel for State with submission that it is in
fact proviso to Article 254(2) of the
Constitution of India which would govern the
field and not provisions of the General
Clauses Act which have been relied upon by
learned
Government
Advocate.
It
is
submitted that in the present case, it is
Section 6 of the General Clauses Act which
would be applicable.

7. It has been further submitted that
Section 531(2)(b) does not indicate any
saving clause pertaining to legislative power
of the State Government and indicates only
administrative orders which do not come
within realm of enactment in terms of Article
246 of the Constitution of India and therefore
repeal of the Central Act would in fact mean
to be a repeal which obliterates the entire Act
including any State amendment made therein
which would also include the State enactment
incorporated in Section 438 by the State
enactment in the year 2019. Learned counsel
has also placed reliance on following
judgments:-

State of U.P. versus Hirendra Pal
Singh (2011) 5 SCC 305; State of Punjab
versus Mohar Singh (1954) 2 SCC 483;
Manphul Singh Sharma versus Ahmadi
Begum, (1994) 5 SCC 456; Gajraj Singh and
others versus State Transport Appellate
Tribunal and Others (1997) 1 SCC 650;
Zaver Bhai Amaidas versus State of Bombay
(1954) 2 SCC 345;Naeem Bano alias Gaindo
versus Mohd Rahees & another, special leave
petition (c) No. 16460 of 2023

8. Upon consideration of submissions
advanced by learned counsel for parties the
following
questions
arise
for
consideration:-

(i) Whether the provisions of
Section 531(2)(b) BNSS can be considered
5 All. Sudhir @ Sudhir Kumar Chaurasia Vs. State of U.P. & Ors.
23
to be a clause saving provisions of U.P. Act
No.4 of 2019 ?.

(ii) Whether the re-enactment of
Section 438 Cr.P.C. as 482 BNSS as
incorporated by means of U.P. Act No.4 of
2019 would be saved in terms of Sections
6, 6-A, 8 and 24 of General Clauses Act ?

Question No.1

9. With regard to aforesaid aspect,
provisions of Section 531(2)(b) BNSS are
required to be examined and are as
follows:-

"(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;

10. A perusal of aforesaid provision
indicates the repeal and savings clause to
the effect that all notifications published
etc. defining jurisdictions, sentences passed
which were enforced immediately before
commencement of the Sanhita would be
deemed to have been published, issued,
conferred, specified, defined, passed or
made under the corresponding provisions
of the Sanhita.

11.
It
is
relevant
that
learned
Government Advocate has placed specific
reliance on the word 'notification published'
to submit that U.P. Act No.4 of 2019 was
in the nature of a notification in terms of
Section 2(p) BNSS and therefore would be
saved in terms of Section 531(2)(b) BNSS.
It is further submitted that since the
aforesaid Act was published in the official
gazetted in terms of Section 3(39) of the
General Clauses Act, the said provision
would specifically apply.

12. It is however a relevant factor that
U.P. Act No.4 of 2019 was promulgated
under Article 246 of the Constitution of
India but does not indicate any specific date
from which it would come into effect. For
the said purpose, it would be relevant to
advert to Section 5 of the General Clauses
Act which is as follows:-

"5. Coming into operation of
enactments-

.[(1) Where any Central Act is
not expressed to come into operation on a
particular day, then it shall come into
operation on the day on which it receives
the assent,-

(a) in the case of a Central Act
made before the commencement of the
Constitution, of the Governor-General, and

(b) in the case of an Act of
Parliament, of the President.][* * * *]

(3)
Unless
the
contrary
is
expressed, a 3[Central Act] or Regulation
shall
be
construed
as
coming
into
operation immediately on the expiration of
the day preceding its commencement."

13. In terms of aforesaid, the said U.P.
Act No.4 of 2019 came into effect from the
date it received assent from the President of
India and not from the date it was notified
in the official gazette. In the considered
opinion of this Court, there is substantial
difference in an enactment by State
Legislature in terms of Article 246 of
Constitution of India and a notification
which would require to be effective from
24 INDIAN LAW REPORTS ALLAHABAD SERIES
the date it is notified in the official gazette.
The primary difference being that an
enactment in terms of Section 5 of General
Clauses Act would come into effect from
the date it received assent either from the
President of India or Governor of State
respectively with its notification in the
official gazette being immaterial unless
specifically indicated. It is only in case of
specific orders issued by the Central or
State Government in terms of powers
conferred by any statute which would come
within the term of a notification, which
would be effective only from the date it is
notified in the official gazette, and would
thus come within realm of administrative
order or at best, subordinate legislation.

14. In such circumstances, this Court
is unable to appreciate the submission of
learned Government Advocate that U.P.
Act No. 4 of 2019 would come within
definition
of
notification
and
would
therefore be saved.

15. The aforesaid aspect is more so in
view of Section 3(19) of the General
Clauses Act which defines an enactment to
include a regulation and is therefore quite
distinct from a notification which has
clearly not been made a part of 'enactment'.
The difference between a legislation and a
notification would be quite apparent from a
perusal of Article 246 of Constitution of
India whereunder powers have been
conferred for making laws in terms of 7th
Schedule to the Constitution. By no stretch
of imagination can it be said that the laws
promulgated in terms of Article 246 of the
Constitution of India would come within
purview of a notification and not an
enactment.

16. Distinction between an enactment
and a notification can also be examined
from the aspect that all enactments may
require to be notified but all notifications
do not come within purview of an
enactment. The said concept can be readily
explained in the manner that an enactment
is
referable
to
constitutional
power
exercised
under Article
246 of
the
Constitution of India with subordinate
legislation being any rule or regulation
issued or notified in terms of power
conferred by such statute. The scope of
such
an
enactment
or
subordinate
legislation is directly referable either to the
Constitution of India or to the enactment
under which such power is derived whereas
a notification by its very nature can be
issued by any authority, not necessarily
being a Parliament or Legislature, to fill
any void which is not covered either by an
enactment or subordinate legislation. Such
an order which can be passed by
administrative authorities in exercise of
executive power do not require any
imprimatur of Parliament or Legislature.

17. The concept is also explained by
Supreme Court in the case of State of
Tamil Nadu versus P. Krishnamurti and
others (2006) 4 SCC 517 in the following
manner:-

"23. In Union
of
India v. Cynamide India Ltd. [(1987) 2
SCC 720] this Court differentiated between
legislative acts and non-legislative acts
thus: (SCC pp. 735-36, para 7)

"The distinction between the two
has usually been expressed as 'one between
the general and the particular'. 'A
legislative
act
is
the
creation
and
promulgation of a general rule of conduct
without reference to particular cases; an
administrative act is the making and issue
of a specific direction or the application of
a general rule to a particular case in
5 All. Sudhir @ Sudhir Kumar Chaurasia Vs. State of U.P. & Ors.
25
accordance with the requirements of
policy'. 'Legislation is the process of
formulating a general rule of conduct
without reference to particular cases and
usually operating in future; administration
is the process of performing particular
acts, of issuing particular orders or of
making decisions which apply general rules
to particular cases.' It has also been said:
'Rule-making is normally directed toward
the formulation of requirements having a
general application to all members of a
broadly identifiable class' while, 'an
adjudication, on the other hand, applies to
specific individuals or situations'. But, this
is only a broad distinction, not necessarily
always
true.
Administration
and
administrative adjudication may also be of
general application and there may be
legislation of particular application only.
That is not ruled out. Again, adjudication
determines past and present facts and
declares
rights
and
liabilities
while
legislation indicates the future course of
action. Adjudication is determinative of the
past and the present while legislation is
indicative of the future. The object of the
rule, the reach of its application, the rights
and obligations arising out of it, its
intended effect on past, present and future
events, its form, the manner of its
promulgation are some factors which may
help in drawing the line between legislative
and non-legislative acts."

18. It is thus evident that notifications
can be issued even by administrative
authorities in exercise of their executive
power
whereas
enactments
can
be
promulgated only in terms of powers
conferred by the Constitution of India.

19. In view thereof, in the considered
opinion of this Court, since Section 531
BNSS not indicating any terminology
pertaining to legislative enactments, the
provisions of Section 531(2)(b) BNSS can
not be termed to be a saving clause with
regard to U.P. Act No.4 of 2019.

20. It is also a relevant fact that for the
purposes
of
proper
examination
of
provisions of Section 531 BNSS, the
provision in its entirety is required to be
examined
and not
a
few
sentences
incorporated therein. In terms of principles
of interpretation of statute, the aspect of the
principle 'ejusdem generis' has particular
application along with the principle of
'noscitur a sociis' which has been explained
by Supreme Court in the case of
Maharashtra
University
of
Health
Sciences versus Satchikitsa Prasarak
Mandal (2010) 3 SCC 786 in the
following terms:-

"
27. The
Latin
expression
"ejusdem generis" which means "of the
same kind or nature" is a principle of
construction,
meaning
thereby
when
general words in a statutory text are
flanked by restricted words, the meaning of
the general words are taken to be restricted
by implication with the meaning of the
restricted words. This is a principle which
arises "from the linguistic implication by
which words having literally a wide
meaning (when taken in isolation) are
treated as reduced in scope by the verbal
context". It may be regarded as an instance
of ellipsis, or reliance on implication. This
principle is presumed to apply unless there
is some contrary indication [see Glanville
Williams, The
Origins
and
Logical
Implications of the Ejusdem Generis Rule,
7 Conv (NS) 119].

28. This
ejusdem
generis
principle is a facet of the principle
of noscitur
a
sociis.
The
Latin
maxim noscitur a sociis contemplates that a
26 INDIAN LAW REPORTS ALLAHABAD SERIES
statutory
term
is
recognised
by
its
associated words. The Latin word "sociis"
means "society". Therefore, when general
words are juxtaposed with specific words,
general words cannot be read in isolation.
Their colour and their contents are to be
derived from their context. (See similar
observations
of
Viscount
Simonds
in Attorney
General v. Prince
Ernest
Augustus of Hanover [1957 AC 436 :
(1957) 2 WLR 1 : (1957) 1 All ER 49 (HL)]
, AC at p. 461.)"

21. Upon applicability of aforesaid
judgment
in
the
present
facts
and
circumstances, it is a relevant fact that
general words in a section of enactment can
not be read in isolation but their contents
are required to be defined from their
context.

22. In the present case the provisions
of Section 531(2)(b) BNSS clearly refers to
notifications
or
proclamations
issued
whereby powers were conferred, local
jurisdictions were defined, sentences were
passed and orders of appointments were
made under the Code. Evidently Section
531(2)(b) pertains only to procedural aspect
which were indicated under Cr.P.C. and
were required to be deemed to be made
under corresponding provisions of the
Sanhita. The said provision can not be
construed to be a saving clause for
continuation of specific prohibition with
regard to maintainability of legal remedies
available to an accused before the courts of
law since the said aspect would not come
within any of the terms in the general
context indicated under Section 531(2) (b)
BNSS.

23. With regard to the aspect of
notification
viz-a-viz
legislative
eneactment,
learned
Government
advocate has placed reliance on the
judgment in the case of State of Punjab
versus Harnek Singh (2002) 3 SCC 481.

24. However a bare perusal of the
aforesaid judgment will make it evident
that the same is inapplicable in present
facts and circumstances since in the said
case, dispute pertained to notification
issued by the State Government in
exercise of powers conferred upon it
under section 5(A) of the Prevention of
Corporation Act 1947. It is therefore
evident that the aspect engaging attention
of Supreme Court actually pertained to
power
conferred
upon
the
State
Government under legislative enactment
and not to the enactment itself.

25. Similarly in the case of Vinay
Kumar Pandey versus State of U.P.
and others, decided by Division Bench
of this Court in Criminal Misc. Writ
Petition No. 13827 of 2024, the aspect
again was power exericsed by the State
Government under Section 10 of the
Criminal Law (Amendmnent) Act 1932.
Evidently the aforesaid case also does not
lay down any proposition of law that a
notification
issued
under
legislative
enactment itself can be deemed to be a
legislative enactment.

26. The case of Jitendra Pratap
Singh versus State of U.P. a Division
Bench of this Court in Criminal Misc.
Anticipatory Bail Application No. 144 of
2024 has merely enunciated the law that
when a words of statute are clear and
unambiguous, courts must give effect to the
legislative intent and literal interpretation.
Obviously the aforesaid proposition of law
is
required
to
be
followed
in
the
circumstances indicated therein but again is
not a law for the proposition that a
5 All. Sudhir @ Sudhir Kumar Chaurasia Vs. State of U.P. & Ors.
27
notification issued by the State exercising
statutory powers itself can be considered to
be at par with statute.

27. The aforesaid question therefore is
answered negatively against the State.

Question No.2

28. With regard to aforesaid question,
it would be necessary to advert to Section
438 Cr.P.C. as included by U.P. Act No.4
of 2019 and 482 BNSS 2023 which are as
follows:-

Section 438 Cr.P.C.
Section
482
BNSS,
2023
"438. Direction for grant bail
to
person
apprehending
arrest.- [(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
cognisable 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
"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
nonbailable 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 subsection
(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
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.

(2)
Where
the
High Court or, as the case may
be, the Court of Session,
considers it expedient issue an
interim
order
to
grant
anticipatory bail under subsection (1), the Court shall
indicate herein 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, arid if the Court
passes any order granting
anticipatory bail, such order
shall include inter alia the
following conditions, namely-

(1)
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,
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 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
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
Bharatiya
Nyaya
Sanhita, 2023."
28 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

(4) On the date
indicated in the interim order
under
sub-section
(2),
the
Court
shall
hear
Puplic
Prosecutor and the applicant
and after due consideration of
their
contentions,
it
may
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 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 AntiSocial 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." [Vide U.P. Act No.4
of 2019, S. 2 (Received the
assent of the President on 1-62019 and published in the U.P.
Gazette, Extra., Part I, Section
(Ka), dated 6.6.2019).]

29. It is a relevant fact that provision
of anticipatory bail was omitted for the
State of U.P. by Act No.16 of 1976 and has
thereafter been reincorporated by means of
U.P. Act No. 4 of 2019.

30. The aforesaid State amendment
came into effect once it received the assent
of President of India but subsequently, the
entire Cr.P.C. was repealed with advent of
BNSS 2023 with effect from Ist July, 2024.

31. At the very outset, difference in
provisions of Section 438 as applicable in
the State of U.P. with that of Section 482
BNSS will require consideration.

32. From a bare perusal thereof, it is
evident that there is considerable difference
in the provisions of anticipatory bail as
were applicable in State of U.P. prior to the
advent of BNSS and subsequent thereto.
The primary difference in both the
provisions apart from the prohibitions
indicated in Section 438(6) Cr.P.C. is that
the
factors
indicated
for
grant
of
anticipatory bail under Section 438(1)
Cr.P.C. are conspicuously absent under
Section 482 BNSS. The proviso to Section
438(1) Cr.P.C. is also missing while
provisions of Section 438(3) and (4) also
do not find any place under newly
incorporated Section 482 BNSS.

33. It is therefore evident that
substantial change has been made under
Section 482 BNSS pertaining to grant of
anticipatory bail after the advent of BNSS
2023.

34. With regard to aforesaid repeal of
Cr.P.C. and incorporation of new provision
for anticipatory bail, learned Government
Advocate has placed specific reliance upon
Sections 6, 6A, 8 and 24 of the General
Clauses Act which are as follows:-

"6. Effect of repeal.-
5 All. Sudhir @ Sudhir Kumar Chaurasia Vs. State of U.P. & Ors.
29

Where this Act, or any 3[Central
Act] or
Regulation
made
after
the
commencement of this Act, repeals any
enactment hitherto made or hereafter to be
made, then, unless a different intention
appears, the repeal shall not-

(a) revive anything not in force or
existing at the time at which the repeal
takes effect;or

(b)affect the previous operation
of any enactment so repealed or anything
duly done or suffered thereunder; or

(c)affect any right, privilege,
obligation or liability acquired, accrued or
incurred under any enactment so repealed;
or

(d)affect any penalty, forfeiture
or punishment incurred in respect of any
offence committed against any enactment
so repealed; or

(e)affect any investigation, legal
proceeding or remedy in respect of any
such right, privilege, mobligation, liability,
penalty,
forfeiture
or
punishment
as
aforesaid;

and any such investigation, legal
proceeding or remedy may be instituted,
continued or enforced, and any such
penalty, forfeiture or punishment may be
imposed as if the repealing Act or
Regulation had not been passed.

6A Repeal of Act making textual
amendment in Act or Regulation.- Where
any Central Act or Regulation made after
the commencement of this Act repeals any
enactment by which the text of any Central
Act or Regulation was amended by the
express omission, insertion or substitution
of any matter, then, unless a different
intention appears, the repeal shall not
affect
the
continuance
of
any
such
amendment made by the enactment so
repealed and in operation at the time of
such repeal.

8. Construction of references to
repealed enactments.-

2[(1)] Where this Act, or any
2[Central Act] or Regulation made after
the commencement of this Act, repeals and
re-enacts, with or without modification, any
provision of a former enactment, then
references in any other enactment or in any
instrument to the provision so repealed
shall, unless a different intention appears,
be construed as references to the provision
so re-enacted.

3[(2)]
4[Where
before
the
fifteenth day of August, 1947, any Act of
Parliament
of
the
United
Kingdom
repealed and re-enacted], with or without
modification, any provision of a former
enactment, then references in any [Central
Act] or in any Regulation or instrument to
the provision so repealed shall, unless a
different intention appears, be construed as
references to the provision so re-enacted.]

24. Continuation of orders, etc.,
issued under enactments repealed and reenacted.- Where any 3[Central Act] or
Regulation, is, after the commencement of
this Act, repealed and re-enacted with or
without modification, then, unless it is
otherwise
expressly
provided
any
4[appointment, notification] order, scheme,
rule, form or bye-law 4[made or] issued
under the repealed Act or Regulation,
shall, so far as it is not inconsistent with
the provisions re-enacted, continue in
force, and be deemed to have been 4[made
or] issued under the provisions so reenacted, unless and until it is superseded
by any 4[appointment notification,] order,
scheme, rule, form or bye-law, 4[made or]
issued under the provisions so re-enacted
5[and when any 3[Central Act] or
Regulation, which, by a notification under
section 5 or 5A of the 6 Scheduled Districts
Act, 1874, (14 of 1874) or any like law, has
been extended to any local area, has, by a
30 INDIAN LAW REPORTS ALLAHABAD SERIES
subsequent notification, been withdrawn
from the re-extended to such area or any
part thereof, the provisions of such Act or
Regulation shall be deemed to have been
repealed and re-enacted in such area or
part within the meaning of this section].

35. A perusal of the aforesaid sections
makes it evident that apart from Section 6
of the General Clauses Act, none of the
other sections would be applicable in such
circumstances as the present one. Section
6-A of the Act would be applicable only in
case where any Central Act or Regulation
repeals an enactment by which the text of
any earlier Central Act or Regulation was
amended. It is therefore evident that
Section 6-A would be applicable only in
those cases where earlier Central Act is
kept intact and the subsequent Central Act
or Regulation amends only the amendment
made in the earlier Central Act. The
aforesaid
section
would
have
been
applicable only in case the State enactment
was repealed while keeping provisions of
Cr.P.C. as enacted by Parliament intact.

36. Similarly Section 8 of the General
Clauses Act which appear to be pari
materia with Section 531(2)(b) BNSS
would be applicable only for the purposes
of references to repealed enactments and
does not by any stretch of imagination be
applicable for the purposes of saving the
State enactment as in the present case.

37. Section 24 of the General Clauses
Act by its very nature also would not be
applicable since it pertains only to those
aspects
where
any
appointment,
notification, order, scheme, rule, form or
bye law made or issued under repealed Act
is not inconsistent with the provisions of
enactment and would continue in force.
The
aforesaid
Section
is
therefore
inapplicable in cases of re-enactment of
statute which may be inconsistent with the
earlier enactment.

38. In the present case as has been
observed
herein
above,
there
is
considerable difference in provisions of
anticipatory bail as were amended by the
U.P. Act No.4 of 2019 and the re-enacted
provisions of anticipatory bail under
Section 482 BNSS.

39. In fact in such circumstances as
the present one, it is Section 6 of the
General Clauses Act which would have
applicability particularly in case different
intention has been made apparent in the reenacted provisions after repeal of the
earlier provision. The intention therefore to
continue the earlier provisions even after
repeal have to be specifically indicated.
Section 6(b) of the General Clauses Act
clearly pertains to repeal not affecting the
previous operation of any enactment so
repealed or anything duly done or suffered
thereunder.

40. The natural corollary of the said
provision would be that for continued
operation of any enactment or any
provision of such enactment so repealed
would require specific intention in the
repealing enactment. Section 6(d) and (e)
of General Clauses Act also indicates that
for a legal proceeding or remedy to
continue even after repeal, a different
intention in the subsequent enactment is
required. It is also relevant that under
Section 6(e) of the General Clauses Act,
only the investigation, legal proceeding or
remedy in respect of any such right,
privilege, obligation, liability, penalty,
forfeiture or punishment is indicated. It
naturally follows that any embargo upon
any legal proceeding or remedy imposed by
5 All. Sudhir @ Sudhir Kumar Chaurasia Vs. State of U.P. & Ors.
31
the Amending Act would require specific
intention indicated in the subsequent
enactment for its continuation. The said
aspect has been dealt with by Supreme
Court in the case of State of U.P. versus
Hirendra Pal Singh (2011) 5 SCC 305 in
the following manner:-

"
22. It
is
a
settled
legal
proposition that whenever an Act is
repealed, it must be considered as if it had
never existed. The object of repeal is to
obliterate the Act from the statutory books,
except for certain purposes as provided
under Section 6 of the General Clauses Act,
1897. Repeal is not a matter of mere form
but is of substance. Therefore, on repeal,
the
earlier
provisions
stand
obliterated/abrogated/wiped out wholly i.e.
pro tanto repeal (vide Dagi Ram Pindi
Lall v. Trilok Chand Jain [(1992) 2 SCC 13
:
AIR
1992
SC
990]
; Gajraj
Singh v. STAT [(1997) 1 SCC 650 : AIR
1997
SC
412]
; Property
Owners'
Assn. v. State of Maharashtra [(2001) 4
SCC 455 : AIR 2001 SC 1668] and Mohan
Raj v. Dimbeswari Saikia [(2007) 15 SCC
115 : (2010) 2 SCC (Cri) 782 : AIR 2007
SC 232] )."

41. The aspect of a specific intention
expressed in the subsequent enactment to
keep alive provisions of repealed enactment
in terms of section 6 has been dealt with by
Supreme Court in the case of State of
Punjab versus Mohar Singh (1954) 2
SCC 483 in following manner:-

"12. The High Court, in support
of the view that it took, placed great
reliance upon certain observations of
Sulaiman,
C.J.
in Danmal
Parshotam
Dass v. Babu Ram Chhote Lal [Danmal
Parshotam Dass v. Babu Ram Chhote Lal,
1935 SCC OnLine All 328 : AIR 1936 All
3] . The question raised in that case was
whether a suit by an unregistered firm
against a third party, after coming into
force of Section 69 of the Partnership Act,
would be barred by that section in spite of
the saving clause contained in Section
74(b) of the Act. The Chief Justice felt some
doubts on the point and was inclined to
hold that Section 74(b) would operate to
save the suit although the right sought to be
enforced by it had accrued prior to the
commencement of the Act; but eventually
he agreed with his colleague and held that
Section 69 would bar the suit.