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The provisions for anticipatory bail under the Section 438 of the Code of Criminal Procedure are finally applicable as per the latest declaration by the Uttarakhand High Court striking down the Section 9 of the Code of Criminal Procedure (Uttar Pradesh) Amendment 1976.
There is a difference between the ordinary bail and the anticipatory bail, former is granted after the commission of the crime, whereas, latter is granted before the crime. It is only that the person feels that he/she may be arrested or he/she may be harmed.
The issue arose when Section 438 of the CrPC was made inapplicable in the state of Uttar Pradesh when Uttarakhand was also a part of the state, which separated as a different state in 2000.
A major concern was shown and it was further questioned, whether the Section 438 is applicable to Uttarakhand or not.
Section 438 of the Code of Criminal Procedure talks about the anticipatory bail, which states that an Anticipatory Bail is granted, where a person has reasons to believe that he may be arrested on the commission of a non-bailable offence. It is basically a direction to release a person on bail even before he is arrested. The person applying for the grant of anticipatory bail shall clear that he/she will be available for interrogation by a Police Officer as and when required. Also, he/she will not disclose the facts to the Court and Police Officer during his bail period.
This power is exercisable by the sessions court and the High Court.
It affects the people of Uttarakhand, as they were being denied of their fundamental right to liberty, which they can enjoy now from this decision.
For example: If the husband apprehends that the wife may file a false 498a case, now through this judgement, he can rightfully apply for anticipatory bail and get it if he fulfils all the required conditions. This protects the fundamental right to life and liberty for the husband and provides him with a shield from the mistreatment and defamation in the society, and also protects from suffering any unreasonable loss.
According to the Division bench of Chief Justice Rajiv Sharma and Justice Manoj Kumar Tiwari, it was duly noted that the laws of Uttar Pradesh will only be applicable to Uttarakhand beyond the two years from the date when the state was carved out from Uttar Pradesh, or the laws will be applicable only if Uttrakhand specifically adopts them.
Further, it was noted that till date, there is no such legislation brought to adopt the Section 9 of the Code of Criminal Procedure (Uttar Pradesh Amendment) Act, 1976.
Applicability of Section 438 is a new sight of relief for the people of Uttarakhand going through the criminal proceedings. Not granting anticipatory bail leads to the violation of Articles 14, 19 and 21 of the Indian Constitution.
Hence, keeping aside the laws of Uttar Pradesh Code of Criminal Procedure Amendment Act, from now on, Section 438 is applicable in Uttarakhand.
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