IMPORTANT POINT
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 liberty and the presumption of innocence.

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:

“438(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 376-AB or Section 376-DA or Section 376-DB of the Indian Penal Code.”

5. In reply to the said argument, learned counsel for the applicant has submitted that the new section (438 Cr.P.C.) inserted in the State of Uttar Prdesh vide Uttar Pradesh Act No. 4 of 2019, (assented by the President on June 1, 2019), does not exclude the person seeking pre-arrest bail for an offence committed under Section 376 (3) IPC. Section 438(6) reads as follows:

438 (6) Provision of this section shall not be applicable:

(a) to the offences arising out of:

(i) the Unlawful Activities (Prevention) Act, 1967.

(ii) the Narcotic Drugs and Psychotropic Substances Act, 1985.

(iii) the Official Secret Act, 1923.

(iv) the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986.

(b) in the offences, in which death sentence can be awarded.

6. Learned counsel for the applicant has further drawn attention of the court towards Article 254(2) of the Constitution of India to contend that in case of repugnancy, if any, between the State Act and Central Legislation on a subject in the concurrent list, would stand cured if the State Act receives the assent of the President under Article 245(2) of the Constitution of India and such repugnancy cannot therefore be a ground to invalidate the State Act. It is further submitted that the whole purpose of the Article 254(2) is to protect the State enactment when it ran contrary to the central legislation. In support of his argument, learned counsel for the applicant has relied upon the cases of Hoechst Pharmaceauticals Ltd. Vs. State of Bihar, 1983 4 SCC 45 and C.S. Gopalakrishnan Vs. State of Tamil Nadu and Others, 2023 Live Law (SC) 413.

7. Article 254 of the Constitution of India provides for the method of resolving conflicts between a law made by Parliament and a law made by the Legislature of a State with respect to a matter falling in the Concurrent List and it reads:

“254 (1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.

(2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law mad