Anticipatory bail under Section 438 Cr.P.C. is not maintainable in cases involving charges where a death sentence may be awarded.

JUDGMENT :

Ashutosh Srivastava,J.

1. Heard Shri Ashwani Kumar Mishra, learned counsel for the applicants, Shri Ajay Kumar, learned counsel for the informant and learned A.G.A. for the State-opposite party, and perused the material placed on record.

2. This application under Section 438 Cr.P.C. has been filed on behalf of applicants Ram Balak Soni, Awinash Soni, Ashutosh Soni and Dharmraj Soni, seeking anticipatory bail in Case Crime No. 95 of 2024, under Sections 323 , 504, 506, 120-B, 34, 302, 307 I.P.C., Police Station Pipri, District Kaushambi.

3. Learned counsel for the applicants submits that initially the FIR was registered against the applicants under Sections 147, 148, 323, 504, 506, 308 I.P.C. During investigation on the death of injured, Section 302 and 307 were added. The weapon of offence i.e. country made pistol and iron rod were falsely planted upon the applicants. But till date, no such recovery has been effected from the possession or pointing out of the applicants. Learned counsel for the applicants submits that there are two eye witnesses of the occurrence, who are the sons of the deceased and except this, rest of the witnesses are formal witnesses.

4. Learned AGA as well as learned counsel for the first informant have vehemently opposed the prayer for bail by submitting that initially the applicants were booked for offences under Section 308 IPC and subsequently, on the death of deceased, applicants were booked under Section 307 and 302 IPC. The SIT investigation is going on. Applicants are not co-operating in the investigation. Process of non bailable warrants have been ordered to be issued by the Court concerned.

5. Learned AGA has also raised preliminary objection with regard to maintainability of present application raising a plea that anticipatory bail application filed in a case involving Section 302 IPC and after issuance of process under Section 82 Cr.P.C. is not maintainable.

6. Learned counsel for the applicant in rebuttal to the preliminary objection raised by learned AGA as regards the maintainability of the Criminal Misc. Anticipatory Bail Application under Section 438 Cr.P.C. submits that merely by implicating the applicants under Section 302 and 307 IPC would not attract the bar under Section 438 Cr.P.C. and the allegations as set out in the FIR have to make out a prima facie case for attracting Section 302 and 307 IPC. Reliance is placed upon a decision of the Apex Court in the case of Prathvi Raj Chauhan versus Union of India and others , reported in AIR 2020 Supreme Court 1036 wherein in Paragraph 10 and 11 of the said judgment, which lays down the proposition as pressed by the learned counsel for the applicant. Reliance has also been placed upon the decision of Apex Court in case of Asha Dubey versus The State of Madhya Pradesh , passed in Criminal Appeal No. 4564 of 2024 decided on 12.11.2024

7. It is submitted that the anticipatory bail application would be maintainable despite implication under Section 302 & 307 IPC and issuance of process under Section 82 Cr.P.C.

8. I have heard learned counsel for the applicant as well as learned AGA and perused the record.

9. As regards the plea regarding the maintainability of the Anticipatory Bail Application is concerned, the Court find that Section 438 Sub Clause 6 (b) as applicable to the State of Uttar Pradesh clearly states that the provisions of Section 438 shall not be applicable to the offences, in which death sentence can be awarded. .

10. The provision of Section 438 Cr.P.C. Sub Clause 6 applicable to the State of Uttar Pradesh is reproduced as under:-

"438. (6) Provisions of this Section shall not be applicable,-

(a) to the offences arising out of,-

(i) in Unlawful Activities (Prevention) Act, 1967:

(ii) the Narcotic Drugs and Psychotropic Substance Act, 1985;

(iii) the Official Secret Act, 1923;

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

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

11. S