Krishna Shamsher vs State Of Uttarakhand And Others

Sharad Kumar Sharma, J

This Anticipatory Bail Application preferred under Section 438 Cr.P.C., is heard through Video Conferencing.

The applicant to the present Anticipatory Bail Application has prayed for stay of his arrest, which he is apprehending in pursuance to Case

Crime/F.I.R No.0145 of 2018 dated 04.09.2018, which has been registered against him at Police Station Raiwala, District Dehradun, for commission

of the offences under Sections 419, 420, 467, 468 and 471 IPC.

The anticipatory Bail application has been preferred by the applicant by invoking the provisions contained under Section 438 Cr.P.C. There is an

objection, which has been reported by the Registry that this anticipatory Bail Application is not maintainable.

Under the Code of Criminal Procedure, the Anticipatory Bail Applications are contemplated to be considered and granted under Section 438

Cr.P.C., where the Court can exercise its prerogative powers for granting a bail to a person, who is apprehending his arrest. The jurisdiction therein

conferred under Section 438 Cr.P.C., is concurrent with the Sessions Court as well as with the High Court.

By virtue of the U.P. State Amendment, as made by U.P. Act No. 16 of 1976, by virtue of its Section 9, which was made enforceable w.e.f. 28th

November, 1975, the provisions contained under Section 438 of Cr.P.C., has been omitted to be made applicable in the State of U.P. Later on, the

State of U.P. was reorganized under the provisions of the U.P. Re-organization Act, 2000, and as a result thereto, the law as then applicable at the

time of creation of State of Uttarakhand, have been made applicable in the State by virtue of Section 86 to be read with Section 87 of the U.P.

Reorganization Act. 2000. The same are quoted hereunder:-

“86. Territorial extent of Laws.-The provisions of Part II shall not be deemed to have affected any change in the territories to which the Uttar

Pradesh imposition of Ceiling of Land Holding Act, 1961 and any other law in force immediately before the appointed day, extends or applies, and

territorial references in any such law to the State of Uttar Pradesh shall, until otherwise provided by a competent Legislature or other competent

authority be construed as meaning the territories within the existing State of Uttar Pradesh before the appointed day.

Power to adapt laws.- For the purpose of facilitating the application in relation to the State of Uttar Pradesh or Uttaranchal of any law made

before the appointed day, the appropriate Government may, before the expiration of two years from that day, by order, make such adaptations and

modifications of the law, whether by way of repeal or amendment, as may be necessary or expedient, and thereupon every such law shall have effect

subject to the adaptations and modifications so made until altered, repealed or amended by a competent Legislature or other competent authority.

Explanation.- In this section, the expression ""appropriate Government"" means as respects any law relating to a matter enumerated in the Union List,

the Central Government, and as respects any other law in its application to a State, the State Government.â€​

It chanced so that a Writ Petition being Writ Petition No.2681 of 2018 came to be filed before the learned Single Judge of this Court, wherein, the

challenge was given to the vires of the U.P. Amending Act No.16 of 1976. However, the said Writ Petition was dismissed by the Coordinate Bench

of this Court on 11th September, 2018.

Later on, the Single Judge’s judgment dated 11th September, 2018, was put to challenge in Special Appeal No.739 of 2018, Vishnu Sahai Vs.

State of Uttarakhand; as well as in Special Appeal No.740 of 2018, Mohan Kumar Mittal Vs. State of Uttarakhand.

The Division Bench of this Court, vide its judgment dated 19th September, 2018, allowed the Special Appeal and as a consequence thereto, the

judgment of the learned Single Judge dismissing the Writ Petition No.2681 of 2018, challenging the vires of the Amending Act as made applicable in

the State of U.P., by virtue of the U.P. Act No. 16 of 1976, was set aside on the ground that the said Amending Act never stood adopted in view of

the provisions contained under Section 87 of the Re-organization Act, and consequently, concluded that Section 9 of the Cr.P.C. (U.P. Amendment

Act, 1976) would not be applicable in the State of Uttarakhand. The relevant part of the Division Bench judgment is quoted hereunder:-

“20. Now as far as Section 88 of the U.P. Reorganization Act, 2000 is concerned, it deals with the 13 manner in which the laws are to be

construed. It does not deal with the substantive provisions. Sections 2(f), 87 and 88 of the U.P. Reorganization Act, 2000 are to be read harmoniously.

Adaptation/legislation is a question of vital public importance. Section 9 of the Code of Criminal Procedure (Uttar Pradesh Amendment) Act, 1976

(U.P. Act No.16 of 1976) affects the personal liberty of the person.

We, after hearing learned Counsel for the parties, are of the considered view that neither the Code of Criminal Procedure (Uttar Pradesh

Amendment) Act, 1976 (U.P. Act No.16 of 1976), as a whole, nor Section 9 of the Code of Criminal Procedure (Uttar Pradesh Amendment) Act,

1976 (U.P. Act No.16 of 1976) has been adapted by the State of Uttarakhand in terms of Section 87 of the U.P. Reorganization Act, 2000. Thus,

Section 9 of the Code of Criminal Procedure (Uttar Pradesh Amendment) Act, 1976 (U.P. Act No.16 of 1976) will not be applicable in the State of

Uttarakhand.

Accordingly, both the appeals are allowed. Judgment, under challenge, is set aside. We declare that since Section 9 of the Code of Criminal

Procedure (Uttar Pradesh Amendment) Act, 1976 (U.P. Act No.16 of 1976) has not been adapted/legislated, the same will not be applicable to the

State of Uttarakhand. In other words, Section 438 of the Code of Criminal Procedure, 1973 shall be applicable in the State of Uttarakhand.

All pending applications stand disposed of accordingly.â€​

It was as the consequence when the Special Appeal was allowed on 19.09.2018, thereafter the provisions of Section 438 of the Cr.P.C. were made

applicable in the State of Uttarakhand, as a consequence of the judgment dated 19th September, 2018. The record shows that the applicant in order to

avail an anticipatory bail had filed the anticipatory bail application before the learned Sessions Court, being Anticipatory Bail Application No. 1213 of

2018, which was rejected by the order dated 4th February, 2019. It was during the period when the Division Bench judgment dated 19.09.2018, was

legally surviving making the provisions of Section 438 of Cr.P.C. applicable to the State of Uttarakhand.

Later on, the proceedings of the said criminal case proceeded further and as a consequence of issuance of the summoning order dated 25th

February, 2020, for that matter, I am not concerned at this stage.

This Anticipatory Bail Application has been filed by the applicant with the following relief:-

“1. It is therefore prayed that the court may direct the release of the Applicant on bail in the event of this arrest by the police.

Any other order, which the court may deem fit and proper in the facts and circumstances of the case, may be also passed in favour of the

applicant.â€​

under an impression that as a consequence of the judgment of the Division Bench dated 19th September, 2018, since Section 438 Cr.P.C. has been

made applicable, coupled with the fact that as earlier Anticipatory Bail Application was rejected by the Sessions Court on 4th February, 2019, the

present Anticipatory Bail Application for seeking stay of the apprehended arrest as a consequence of the F.I.R. No. 145 of 2018, would be tenable

before this Court.

The applicant contends that, he was not conscious of the judgment rendered by the Division Bench on 19th September, 2018 and 03.05.2019

rendered in the Review Application No.44 of 2019 in Special Appeal No.739 of 2018 and Review Application No.45 of 2019 in Special Appeal

No.740 of 2018. Later on, a review application, being Review Application No.44 of 2019 and 45 of 2019, was filed in the aforesaid Special Appeals,

and subsequent thereto, the Division Bench of this Court by the judgment dated 3rd May, 2019, had reviewed the earlier judgment of the Division

Bench dated 19th September, 2018, as a consequence thereto, the status of law as omitted to the State of U.P. as a consequence of the Amendment

made by Section 9 of U.P. Amendment Act of 1976 (U.P. Act No.16 of 1976), omitting the applicability of Section 438 of Cr.P.C., the provisions

pertaining to grant of anticipatory bail, remained omitted, and continued to be made applicable in the State of Uttarakhand due to the impact of the

provisions contained under Section 86 to be read with Section 87 of the Re-organization Act. The resultant effect of allowing of the review by the

judgment dated 03.05.2019, would be that the provisions of Section 438 Cr.P.C. would not be applicable in the State of Uttarakhand.

In that view of the matter, since Section 438 of the Cr.P.C. itself is not applicable in the State of Uttarakhand by virtue of amendment, which was

carried by Act No. 16 of 1976 w.e.f. 28th November, 1975, which stood adopted by virtue of Section 86 to be read with 87 of the Re-organization

Act, I have no hesitation to hold that the present Anticipatory Bail Application is not maintainable before this Court.

Hence, the same is dismissed without prejudice to the rights of the applicant to seek his regular bail for the aforesaid offences.

Subject to the aforesaid observations, the present Anticipatory Bail Application since is not maintainable is accordingly dismissed.