The Uttarakhand High Court on September 19th, 2018, held that the provision for anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973, is applicable in the State of Uttarakhand.

The judgment came on an appeal filed by the appellants against the judgment passed by a learned Single Judge on September 11th, 2018. In the appeal, appellants have sought a direction, declaring the provisions contained under Section 9 of the Code of Criminal Procedure (Uttar Pradesh Amendment) Act, 1976, as applicable to the State of Uttarakhand is violative of Articles 14, 19, 21 and 22 of the Constitution of India.

The learned Single Judge had dismissed the writ petition hence, an appeal was filed before the Division Bench of Acting Chief Justice Rajiv Sharma and Justice Manoj Kumar Tiwari.

As per Section 9 of the Code of Criminal Procedure (Uttar Pradesh) Amendment 1976, Section 438 of CrPC was made inapplicable in State of Uttar Pradesh, from which Uttarakhand was carved out in 2000.

The issue was whether the suspension of anticipatory bail provision as per 1976 Uttar Pradesh Amendment was applicable to Uttarakhand as well.

Attention of the Court has been drawn to Section 87 of the Uttar Pradesh Reorganisation Act, 2000, according to which to facilitate the application of any law in relation to the State of Uttar Pradesh or Uttaranchal made before the appointed day i.e. November 9th, 2000, 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and thereupon every such law shall have effect subject to the adaptations and modifications so made until altered, repealed or amended by a competent Legislature or other competent authority.

The Division Bench noted that no legislation has been brought, to date, to adopt Section 9 of the Code of Criminal Procedure (Uttar Pradesh Amendment) Act, 1976.

“It was open to the State Government to issue the adaptation order within two years and thereafter, it was always open to the State, either to alter, repeal or amend the same by a legislative act. However, the fact of the matter is that no Legislation, has been brought, till date, to continue or not to continue with Section 9 of the Code of Criminal Procedure (Uttar Pradesh Amendment) Act, 1976,” the Bench observed.

On the basis of the observations made the Bench said that “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,” the Bench added.