Uttarakhand HC refers conflict over anticipatory bail provisions to Chief Justice bench
DEHRADUN: A single-justice bench of the Uttarakhand high court has referred the issue of whether section 482 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 takes precedence over the Uttarakhand State Amendment under Section 438 of the Code of Criminal Procedure, 1973, to the bench presided by the Chief Justice.
The referral addresses whether the provisions of BNSS, which benefit the accused, can be applied retrospectively to earlier cases regardless of when the case was initiated. After the other bench rejected the anticipatory bail appeals, they were heard by Justice
Alok Verma
bench, who stated that the provision of anticipatory bail is rooted in the fundamental right to personal liberty.
Expressing disagreement with the view taken by the coordinate bench, Justice Verma said, "It is a pre-emptive measure to safeguard personal liberty against false accusation or misuse of the law.
Anticipatory bail is a safeguard against arbitrary arrest. Liberty is the very quintessence of a civilized existence. The BNSS is also upholding the importance of protecting personal liberty. The restrictions on granting anticipatory bail under section 438(6) of the Code (as amended by the State of Uttarakhand) are no longer in effect.
"
The state counsels argued that the anticipatory bail applications are not maintainable under section 438 of CrPC as amended by the State of Uttarakhand and even in terms of section 531 of BNSS.
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Per contra, counsel appearing for the applicants argued that these anticipatory bail applications are maintainable. He further said that the anticipatory bail is a substantive right, not merely a procedure. "In BNSS, there is no express bar prohibiting anticipatory bail for the offences under IPC and other Acts, even if committed before the commencement of BNSS. It must be read in a manner that protects rather than restricts the rights of the accused," the counsel said.
He also cited a case of Allahabad HC in which it was held that the provisions of section 482 of BNSS would prevail over the state amendment.
"When the Parliament enacts more liberal provisions, the benefit thereof should be available to all persons who may be affected, regardless of when their cases originated. Therefore, this court is of the opinion that the accused is entitled to the benefit of the more liberal provisions introduced by BNSS," Justice Verma said and referred the case to the Chief Justice.
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