It is absolutely in the fitness of things that while affirming strictly to the red lines drawn for the judiciary not to be crossed by the legislature which Judges must strictly adhere to in UP, the Lucknow Bench of Allahabad High Court in a most learned, laudable, landmark, logical and latest judgment titled Jitendra Pratap Singh vs State of UP in Criminal Misc Anticipatory Bail Application u/s 438 Cr.P.C. No. - 144 of 2024 that was pronounced as recently as on October 18, 2024 has minced just no words to state unequivocally that since the Code of Criminal Procedure (Uttar Pradesh Amendment) Act 2018 bars the grant of anticipatory bail in cases where the offence is punishable by a death sentence, the Courts cannot entertain pre-arrest bail pleas concerning such cases.

We need to also note that the Division Bench comprising of Hon’ble Mr Justice Vivek Kumar and Hon’ble Mr Justice Narendra Kumar Johri who authored this brilliant judgment said explicitly that while the statutory bar is absolute, it is not for the Courts to rewrite the law or create exceptions to a legislative mandate that is unequivocal. It must be further noted that the Division Bench was hearing a Criminal Miscellaneous Bail Application in which a single Judge referred in April 2024 the question of whether Section 438(6)(b) CrPC as applicable in Uttar Pradesh imposes an absolute bar on anticipatory bail for offences punishable by death, or if this bar only applies when the Court determines based on the facts that the case warrants the death penalty. To put it differently, the Division Bench was of the firm view that no judicial discretion can be exercised to entertain anticipatory bail application in cases where the offence is punishable by the death penalty. No denying or disputing it!

At the very outset, this noteworthy judgment sets the ball in motion by first and foremost putting forth in para 2 stipulating that:
A learned Single Judge by order dated 01.04.2024 passed in the instant matter has referred the following question for consideration by a Larger Bench of this Court.

I. Whether Section 438 (6) (b) Cr.P.C., as it applies to the State of U.P., puts an absolute bar against applicability of Section 438 Cr.P.C to offences, in which death sentence can be awarded or the aforesaid bar would apply only where the Court comes to a conclusion after examining the facts of the case, that the case warrants imposition of the death sentence.

As we see, the Division Bench specifies in para 3 stating that:
The reason of such Reference is contradiction in judgment and order dated on 02.12.2023 passed by a learned Judge in Criminal Misc Anticipatory Bail No.2759 of 2023: Vishal Singh Vs State of U.P. and the judgment and order dated 01.11.2022 passed by another Single Judge sitting at Allahabad in Criminal Misc. Anticipatory Bail Application No.7286 of 2022: Deshraj Singh Vs. State of U.P. (Neutral Citation No.-2022:AHC:183606).

While citing relevant case laws, the Division Bench observes in para 4 that:
In the case of Deshraj Singh (supra), it is held that though the provision of Section 438(6)(b) of the Cr.P.C. bars granting of anticipatory bail in cases where the offence is punishable by death sentence, however, if no case for death punishment is made out, an anticipatory bail application would be maintainable. Per contra, in the case of Vishal Singh (supra), a co-ordinate Bench of this Court has held that in case involving commission of an offence under Section 302 I.P.C, which is punishable by death sentence, an anticipatory bail application is not maintainable.

Briefly stated, the Division Bench states in para 5 that:
Section 438 of the Code provides for grant of anticipatory bail when a person apprehends arrest for a non-bailable offence. The provision, in its original form, vested discretion in the Courts to grant anticipatory bail based on the facts and circumstances of each case, without explicit limitations. However, the provision for anticipatory bail was omitted for State of U.P. by The Code of Criminal Procedure (Uttar Pradesh Amendment) Act, 1976 (U.P. Act No. 16 of 1976). Subsequently it was reinstated, with certain modifications, in the State of Uttar Pradesh through The Code of Criminal Procedure (Uttar Pradesh Amendment) Act, 2018 (U.P. Act No. 4 of 2019), which was notified on 06.06.2019. Section 438 of the Cr.P.C., as applicable in Uttar Pradesh, empowers the Courts to grant anticipatory bail, subject to certain specified exceptions and conditions as contained in sub section (6). Section 438(6)(b) in particular bars grant of anticipatory bail in certain cases include case where the offence is punishable by death sentence.

Needless to say, the Division Bench while citing relevant case law postulates in para 13 observing that:
It is settled law that when the words of a statute are clear and unambiguous, Courts must give effect to the legislative intent/literal interpretation. In this context, the wording of the State amendments leaves no room for judicial discretion in granting anticipatory bail for offences punishable by death sentence. The prohibition is absolute and does not allow for exceptions based on the nature of the offence or the facts of the case. The Supreme Court in case of Gurudevdatta VKSSS Maryadit and others v. State of Maharashtra and others, (2001) 4 SCC 534 held:

26. ….it is a cardinal principle of interpretation of statute that the words of a statute must be understood in their natural, ordinary or popular sense and construed according to their grammatical meaning, unless such construction leads to some absurdity or unless there is something in the context or in the object of the statute to suggest to the contrary. The golden rule is that the words of a statute must prima facie be given their ordinary meaning.

It is yet another rule of construction that when the words of the statute are clear, plain and unambiguous, then the courts are bound to give effect to that meaning, irrespective of the consequences. It is said that the words themselves best declare the intention of the lawgiver. The courts have adhered to the principle that efforts should be made to give meaning to each and every word used by the legislature and it is not a sound principle of construction to brush aside words in a statute as being inapposite surpluses, if they can have a proper application in circumstances conceivable within the contemplation of the statute….

In the case of Raghunath Rai Bareja and another vs. Punjab National Bank and others, (2007) 2 SCC 230, the Supreme Court held:

58. We may mention here that the literal rule of interpretation is not only followed by judges and lawyers, but it is also followed by the layman in his ordinary life. To give an illustration, if a person says this is a pencil, then he means that it is a pencil; and it is not that when he says that the object is a pencil, he means that it is a horse, donkey or an elephant. In other words, the literal rule of interpretation simply means that we mean what we say and we say what we mean.

If we do not follow the literal rule of interpretation, social life will become impossible, and we will not understand each other. If we say that a certain object is a book, then we mean it is a book. If we say it is a book, but we mean it is a horse, table or an elephant, then we will not be able to communicate with each other. Life will become impossible. Hence, the meaning of the literal rule of interpretation is simply that we mean what we say and we say what we mean.

A five Judges Bench of the Supreme Court in the case of Sachidananda Banerjee, Assistant Collector of Customs, Calcutta vs. Sitaram Agarwala and another, 1965 SCC OnLine SC 45, has held that:

The rule of construction of such a clause creating a criminal offence is well settled. The following passage from the judgement of the Judicial Committee in The Gauntlet [(1872) 4 CP 184 at p. 191] may be quoted:

No doubt all penal statutes are to be construed strictly, that is to say, the court must see that the thing charged as an offence is within the plain meaning of the words used, and must not strain the words on any notion that there has been a slip, that there has been a casus omissus, that the thing is so clearly within the mischief that it must have been intended to be included, and would have been included if thought of. On the other hand, the person charged has a right to say that the thing charged, although within the words, is not within the spirit of the enactment. But where the thing is brought within the words and within the spirit, there a penal enactment is to be construed, like any other instrument, according to the fair common-sense meaning of the language used, and the court is not to find or make any doubt or ambiguity in the language of a penal statute, where such doubt or ambiguity would clearly not be found or made in the same language in any instrument.

The clause, therefore, must be construed strictly and it is not open to the court to strain the language in order to read a casus omissus. The court cannot fill up a lacuna : that is the province of the legislature. The second rule of construction equally well settled is that a court cannot construe a section of a statute with reference to that of another unless the latter is in pari materia with the former. It follows that decisions made on a provision of a different statute in India or elsewhere will be of no relevance unless the two statutes are in pari materia. Any deviation from this rule will destroy the fundamental principle of construction, namely, the duty of a court is to ascertain the expressed intention of the legislature. (emphasis added)

Again a five Judges Bench of the Supreme Court in A.R. Antulay vs. Ramdas Sriniwas Nayak and another, (1984) 2 SCC 500, has held that:

18. It is a well-established canon of construction that the court should read the section as it is and cannot rewrite it to suit its convenience, nor does any canon of construction permit the court to read the section in such manner as to render it to some extent otiose.

Most significantly and most commendably, we must note that the Division Bench encapsulates in para 15 what constitutes the cornerstone of this pragmatic judgment mandating that:
In the present case, the State amendment explicitly prohibits anticipatory bail for offences punishable by death sentence. The statutory bar is absolute. It is not for the Courts to rewrite the law or create exceptions to a legislative mandate that is unequivocal. While the Courts are the guardians of individual liberties, they are also bound to uphold the rule of law and respect the boundaries set by the legislature.

Equally significant and definitely so also equally commendable is that the Division Bench underscores in para 16 stating that:
The argument that the nature of the offence should be considered in determining whether anticipatory bail can be granted, despite the statutory prohibition, is untenable. Such an approach would effectively render the legislative bar meaningless and open the door to judicial overreach.

Adding more to it, the Division Bench then further clarifies in para 17 stating that:
Any perceived hardship or injustice that may arise from the strict application of the statutory bar is a matter for the legislature to address through amendment. It is not for the Courts to fill perceived gaps in the law by exercising discretion contrary to the express provisions of the statute. However, as settled by the Supreme Court in the case of Prithvi Raj Chauhan (supra), the Court in its inherent jurisdiction under Section 482 Cr.P.C. or under Article 226/227 of the Constitution of India can still grant interim protection from arrest if prima facie, the offences alleged are not made out from the contents of the complaint. Further, even an interim bail can be granted by a Court, in appropriate cases, pending a regular bail application.

Most forthrightly, the Division Bench mandates in para 18 holding that:
In light of the clear and unequivocal wording of Section 438 of the Cr.P.C., which prohibits filing of anticipatory bail application in cases where the offence is punishable by death sentence, this Court is of the opinion that no judicial discretion can be exercised to entertain anticipatory bail application in such cases.

What’s more, the Division Bench then further hastens to add in para 19 noting that:
The answer to the question referred to this Bench is, therefore, in the negative. The Courts cannot entertain anticipatory bail application in cases where the State amendment prohibits it.

Finally, the Division Bench then concludes by holding in para 20 that:
The reference is answered accordingly. The matter is directed to be placed before the learned Single Judge, who will decide the matter in accordance with the observations made by this Court.

In essence, we thus see that the Allahabad High Court has made it indubitably clear that UP Courts can’t entertain anticipatory bail pleas for offences punishable by death as State Amendment prohibits it. This has to be most strictly adhered to by the Judges in UP. No denying or disputing it!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut - 250001, Uttar Pradesh