How to file anticipatory bail in Uttar Pradesh

by | Sep 1, 2019

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Question asked on: 01/09/2019

The FIR was lodged against me for the office of cheating in district Lucknow. The improvement falsely implicated me in taking revenge; therefore, he made a false allegation in the FIR. As far as my knowledge the anticipatory bail is not applicable in Uttar Pradesh. How could I get anticipatory bail and what is the procedure thereof?

Advised by: Mr. Shivendra Pratap Singh, Advocate

Section 438 of the code of criminal procedure provides anticipatory bail. The state of Uttar Pradesh has omitted the applicability of section 438 CRPC by section 9 of The Criminal Procedure Code (Uttar Pradesh Amendment) Act 1976. After that, the accused cannot get anticipatory bail in Uttar Pradesh.

Anticipatory bail is a statutory right to protect the accused who is innocent. However, the state of Uttar Pradesh has omitted section 438 CrPC, but the High Court has been granted such bail under Article 226 of the Constitution of India. Now the state of Uttar Pradesh has resumed section 438 CrPC vide notification dated 6 June 2019. The court can grant anticipatory bail if the accused seems innocent and the court convinced that he would not misuse his Liberty.

The application for anticipatory bail may be filed either before the court of sessions or High Court because both courts have concurrent jurisdiction in respect of section 438 CRPC.

Effect of anticipatory bail

when the court grants anticipatory bail, which means that:

  • if the accused is arrested the bail shall be granted immediately.
  • When the court issues a warrant against the accused, the warrant shall be bailable.

The police cannot arrest the accused in respect of the offence to which the accused has got anticipatory bail.

First approach the Court of Sessions

In Harendra Singh @ Harendra Bahadur versus the state of Uttar Pradesh [criminal misc. Application no. 6478 of 2019] the Lucknow bench of the Allahabad High Court held that the accused who are apprehending arrest must move anticipatory bail application before the court of sessions. That the accused cannot move anticipatory bail application directly before the High Court. The court further held that: 

“The bail application filed under Section 438 of Cr.P.C. is not maintainable before the High Court without exhausting remedy before the Court of Sessions, which has got concurrent jurisdiction. However, for extraneous or special reasons, the High Court can also exercise such power for grant of the remedy under the said provision.”

In the case of Sri Kwmta Gwra Brahma Vs. State of Assam (Bail No.3024 of 2014), The Gauhati High Court has also expressed a similar view and held that the party has to approach the Court of Sessions first under Section 438 of Cr.P.C. and he can later approach the High Court. 

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