The court held anticipatory bail application maintainable as penal provisions added post-incident cannot retrospectively deny rights, but the serious nature of the allegations warranted denial of bail.

JUDGMENT

Jasmeet Singh, J. (ORAL)

1. This is an application seeking anticipatory bail in FIR No. 627/2022 dated 27.09.2022, under Sections 354/376/506/509 IPC and Sections 6/10/12 POCSO Act, registered at Police Station-DBG Road.

2. Mr Sachdeva, learned counsel for the applicant states that in the present case, the FIR is vindictive and is only registered in view of the fact that the applicant and his wife are having strained matrimonial relationship and divorce proceedings are going on. The complainant has been very close to her mother and at her behest, the allegations have been levelled against the applicant. Mr Sachdeva further states that in the present case, the bar of 438 (4) Cr.P.C will not be applicable as the allegations of the offence are stated to have happened in the year 2017 and, the FIR has been filed in the year 2022. The amendment in Cr.P.C is of the year April, 2018 where 438(4) Cr.P.C has been included. Mr Sachdeva also states that the complainant had made earlier complaint to the police wherein there was no allegation under Section 376(3) IPC against the applicant..

3. Per contra, Mr D.M. Bhalla, learned counsel appearing for the complainant has opposed the application on the grounds that on the date of the alleged crime, the complainant was 15 years old. The applicant is her biological father. In addition, he states that the bar of Section 438(4) Cr.P.C is retrospective as it is only substantive law which will be prospective and all procedural laws are retrospective.

4. I have heard learned counsel for the parties.

5. The first question which arises is whether there is a bar under Section 438(4) Cr.P.C for filing an anticipatory bail application by virtue of the 2018 amendment? Section 438(4) Cr.P.C reads as under:

"438. Direction for grant of bail to person apprehending arrest:-

(1) . . . .

(2) . . . .

(3) . . . .

(4) Nothing in this section shall apply to any case involving the arrest of any person on accusation of having committed an offence under sub-section (3) of section 376 or section 376AB or section 376DA or section 376DB of the Indian Penal Code."

6. According to me, Section 376(3) IPC is a penal provision and cannot be retrospective in nature. Section 376(3) IPC was added in the statute books by way of the criminal law (Amendemnt) Act, 2018. The offence was committed in the year 2017 and in that year Section 376(3) IPC did not exist in the statute books. An accused cannot be charged for an offence which was subsequently added by way of an amendment.

7. Mr Sachdeva has rightly relied upon judgment of High Court of Telangana passed in Writ Appeal No. 1240 of 2018 titled `The Commissioner of Prohibition and Excise v. M.Gajananad and Ors.' decided on 24.03.2022 and more particulary para 11 which reads as under:

"11. Hon'ble Sri Justice G.P.Singh in the Principles of Statutory Interpretation, 12th Edition 2010, page 545 under the heading "Penal Statutes" has observed as under:

"(f) Penal Statutes