Can Section 482 BNSS Prevail Over Uttarakhand State Amendment of Section 438 CrPC? Uttarakhand High Court Refers Issue To Larger Bench
The Uttarakhand High Court referred the question of whether the provision of Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 would prevail over the Uttarakhand State Amendment under Section 438 of the Code of Criminal Procedure, 1973 to a larger Bench.
The applicants, apprehending their arrest in criminal cases, had filed Anticipatory Bail Applications under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023.
The Single Bench of Justice Alok Kumar Verma stated, “The matter is referred to a larger Bench by formulating the following question:- “Whether the provision of Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 would prevail over the Uttarakhand State Amendment under Section 438 of the Code of Criminal Procedure, 1973 and since the provisions of the Sanhita, 2023 are beneficial to the accused, can it be applied with respect to earlier cases (regardless of when the case of the accused originated)?”
Advocate prabha nainthhani represented the Applicant while Advocate Piyush Garg represented the Respondent.
Arguments
Placing reliance upon the judgment of the Coordinate Bench in Mukesh Singh Bora vs. State of Uttarakhand (2024), the State and the CBI raised a preliminary objection regarding the maintainability of the anticipatory bail applications. The Counsels further argued that the anticipatory bail applications are not maintainable under Section 438 of the Code of Criminal Procedure, 1973 (Code) as amended by the State of Uttarakhand and even in terms of Section 531 of the Sanhita, 2023.
It was the case of the applicants that the anticipatory bail is a substantive right, not merely a procedure.
Reasoning
The Bench at the outset made it clear that in terms of the repeal and savings clause under Section 531 of the Sanhita, 2023, the Code of Criminal Procedure, 1973 stands repealed with enforcement of the Sanhita, 2023. July 1, 2024, was the date on which the Sanhita came into force.
The Bench explained that the provision of anticipatory bail is rooted in the fundamental right to personal liberty. It is a preemptive 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 Sanhita, 2023 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”, it said.
It was further noticed that no amendment has been brought by the State of Uttarakhand in Section 482 of the Sanhita, 2023 after the enactment of the Sanhita, 2023. “Therefore, it seems clear that the State Government has taken a conscious decision to do away with the prohibition indicated in Section 438(6) of the Code of Criminal Procedure, 1973”, it said.
The Bench further held, “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 the Sanhita, 2023.”
Showing its disagreement with the view taken by the Coordinate Bench, the Bench referred the matter to a larger Bench.
Cause Title: Harish Kumar Prajapati v. Central Bureau of Investigation, Anti Corruption Branch, Dehradun (Case No.: Anticipatory Bail Application No.133 OF 2025)
Appearance
Applicant: Advocate prabha nainthhani
Respondent: Advocate Piyush Garg, Advocate Sanjay Raturi