FIR and Arrest

Anticipatory Bail in Uttar Pradesh


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The 41st  Law Commission of India recommended in it’s report to incorporate the provision of anticipatory bail, in this a person is allowed to seek in anticipation of an arrest on accusation of having committed a non bailable offence. Thereby under Indian criminal law, under section 438 of the criminal procedure code the procedure of anticipatory bail is established.

With reference to the above said information the Uttar Pradesh state home ministry had constituted a committee on 4th may 2010 namely Mishra panel which comprised of Chairman of State Advisory Board, Advocate General, State Director General of Police, State Principal secretaries Home and minister of Law and Parliamentary affairs as it’s members. Main tasks which was ahead of the committee was to study the major reason as to why the provision of anticipatory bail was abolished by IPC(UP amendment) Act 1976 and further what were the need to bring back the law in affect. The final decision was taken in the meeting of the cabinet which was headed by the then Chief Minister of the state Ms. Mayawati in which a bill to amend the section 438 for reintroducing the clause was approved which was later stayed the conclusion drawn by the Mishra panel which was made by the State home ministry.

In 2015,  a PIL was filed in the hon’ble Supreme Court of India by advocate Sanjeev Bhatnagar under which he sought restoration of the section 438 of code of criminal procedure which provides for the grant of bail to a person apprehending arrest. Bhatnagar said that it was Uttar Pradesh government’s inability to restore the provision of anticipatory bail in the state has caused immense hardship to the people of the state as it failed to provide the people with the legal and constitutional right to equality before law. As said before by the Ex Supreme Court judge Justice Markandey Katju that the state government to bring an ordinance to restoring the anticipatory bail in the state, further he added that restoring the the provision will serve greater public interest.

As stated above in the case all the arguments were not considered by the apex court and  Uttar Pradesh still doesn’t have anticipatory bail provisions which are enshrined in the section 438 of the code of criminal procedure.

As in my opinion all other states of the country have provision of the anticipatory bail and Uttar Pradesh lacks the above said provision. In this regard i would like to say that all laws made in country should be practiced with equality along the Indian territory and the provision of anticipatory bail being available to the people of states like Gujrat, Maharashtra etc. And not available to the people of Uttar Pradesh is direct violation of the fundamental rights enshrined in the constitution of India and cases like Amrawati and Ors. V. State of U.P. (2005)  and  Joginder Kumar V. State of U.P. (1994) showcase the need of the enforcement of the provision of the anticipatory bail in the state of Uttar Pradesh.



Parth Anand




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