IMPORTANT POINTS
(1) Anticipatory bail – Criminal Procedure Code (Uttar Pradesh Amendment) Act, 2018 merely restores benefit of anticipatory bail to persons apprehending arrest, which benefit was available to similarly situate persons in rest of India immediately before enactment of the Amendment Act and which benefit was available to persons in State of U.P. also before enactment of Code of Criminal Procedure (Uttar Pradesh Amendment) Act, 1976.
(2) Court will presume that a law which affects substantive rights, are meant to have prospective operation only.

JUDGMENT

Subhash Vidyarthi, J.—Heard Sri Prateek Tewari, the learned counsel for the applicant, Sri Jayant Singh Tomar, the learned AGA for the State and perused the records.

2. The instant application has been filed by the applicant seeking anticipatory bail in Case No. 193 of 2016, Crime No.511 of 2014 under Sections 452, 354 IPC, Police Station Unchahar, District Raebareli.

3. The aforesaid case has been registered on the basis of an FIR lodged on 27.04.2014 at 21.30 hours against the applicant and one Hira Lal, stating that both the accused persons had gone to the informant’s house on 27.04.2014 and had started molesting her but when she cried the accused persons ran away.

4. In the affidavit filed in support of the application, it has been stated that the applicant is 60 years old and is innocent person, who has falsely been implicated in the present case. The applicant’s involvement in three other cases has been disclosed in para-28 of the affidavit.

5. The anticipatory bail of the applicant has been rejected by the Sessions court, Raebareli on the ground that the incident occurred on 27.04.2014, on which date the provisions of Section 438 Cr.P.C. were not applicable to the State of U.P., therefore, application cannot be entertained as the application under Section 438 Cr.P.C. is prospective and not retrospective.

6. The Code Of Criminal Procedure (Uttar Pradesh Amendment) Act, 2018 (U.P. Act No. 4 Of 2019) was notified on 06.06.2019. The ‘Statement Of Objects And Reasons of the Amendment Act’ states that Section 438 of the Code of Criminal Procedure 1973, regarding the provision of anticipatory bail, was omitted by the Code of Criminal Procedure (Uttar Pradesh Amendment) Act, 1976 (U.P. Act No. 16 of 1976). There was continuous demand for its revival. The State Law Commission had, in its third report in 2009, recommended for reviving the provisions of the said section. A committee to consider the revival of the provisions of the said section had recommended that the provisions of the said section should be revived with certain modifications. After considering the recommendation of the said committee, it was decided to amend the Code of Criminal Procedure, 1973 in its application to Uttar Pradesh to revive the provisions of section 438 with certain modifications.

7. Section 2 of the Amendment Act provides that In the Code ‘of Criminal Procedure, 1973 as amended in its application to Uttar Pradesh, after Section 437-A the following section shall be inserted, namely:—

“438. (1) Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, inter alia, the following factors, namely:—

(i) the nature and gravity of the accusation;

(ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;

(iii) the possibility of the applicant to flee from justice; and

(iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested; either reject the application forthwith or issue an interim order for the grant of anticipatory bail:

Provided that where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this sub-section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in-charge of a police station to arrest, without warrant, the applicant on the basis of the accusation apprehended hi such application.

(2) Where the High Court or, as the case may be, the Court of Session,’ considers it expedient to issue an interim order to grant anticipatory bail under sub-section (1), the Court shall indicate therein the da