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SHEKHAR KUMAR YADAV
Krishna – Appellant
Versus
State of U. P. – Respondent
JUDGMENT :
SHEKHAR KUMAR YADAV, J.
1. Heard Sri Vivek Shandilya, learned Senior counsel assisted by Mr. Vaibhav Shandilya, learned counsel for the applicant, Mr. Ajay Sengar, learned counsel for the informant, Mr. R.K. Srivastava, learned counsel appearing for the State and perused the record.
2. The applicant seeks anticipatory bail in Complaint Case No. 03 of 2023,under Sections 363, 376(3) IPC and Section 3/4 of POCSO Act, 2012, P.S. Kuthaundh, District Jalaun, during the pendency of trial.
3. At the outset, learned AGA for the State raised preliminary objection that sub-section (4) of Section 438 of Cr.P.C, explicitly excludes the application of the provision relating to pre-arrest bail in relation to any case involving the arrest of any person on accusation of having committed an offence under subsection (3) of Section 376 IPC as such the application for pre-arrest bail is not maintainable.
4. Section 438 of the Cr.P.C. provides for issuing directions for granting bail to a person apprehending arrest. The amendment [Code of Criminal Procedure Amendment Act, 2018] introduced to Section 438 (4)] reads as follows:
The court established that anticipatory bail can be granted even in serious offenses if the applicant demonstrates a lack of prima facie evidence against them, reinforcing the principles of personal ....
Section 438 of Cr.P.C. provides for issuing directions for granting bail to a person apprehending arrest.
The exclusion of anticipatory bail under Section 438(4) is not absolute; it applies only when a prima facie case exists and does not prevent bail in cases of patently false allegations.
Exclusion of pre-arrest bail in Section 438(4) is not absolute; courts can grant bail if no prima facie case of assault is established.
The judgment establishes the principle that beneficial legislation, such as the restoration of anticipatory bail provisions, can have retrospective application to benefit individuals apprehending arr....
Anticipatory bail petitions are maintainable for offences with a penalty of up to seven years, and jurisdictional courts must adjudicate these applications rather than merely disposing them without c....
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