It is definitely most praiseworthy to note that while ruling on a very significant legal point with far reaching implications directly concerning the accused facing serious criminal charges, the Allahabad High Court in a most learned, laudable, landmark, logical and latest judgment titled Raman Sahni vs State of UP in Criminal Misc Anticipatory Bail Application u/s 438 Cr.P.C. No. - 1710 of 2024 and cited in Neutral Citation No. - 2025:AHC-LKO:33260 that was reserved on 28.4.2025 and then finally pronounced on 28.5.2025 has minced absolutely just no words whatsoever to hold unequivocally that the restrictions on anticipatory bail under the Uttar Pradesh Amendment Act, 2019 (Act No. 4 of 2019), do not survive after the repeal of the Code of Criminal Procedure, 1973 and the enactment of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). To put it differently, we thus observe that the Allahabad High Court has in no uncertain terms pronounced precisely that the U.P. Amendment restricting anticipatory bail in Gangster Act cases stands impliedly repealed after the enforcement of the Bharatiya Nagarik Suraksha Sanhita, 2023. It must be disclosed that the Single Judge Bench comprising of Hon’ble Mr Justice Prakash Singh thus allowed the anticipatory bail application of Raman Sahni who was facing proceedings under the much dreaded Gangsters Act and rejected the preliminary objections. Very rightly so!
At the very outset, this progressive, pragmatic, pertinent and persuasive judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice Prakash Singh of Allahabad High Court sets the ball in motion by first and foremost putting forth in para 2 that:
The instant bail application has been filed on behalf of the applicant with the prayer to grant him anticipatory bail in Case Crime No. 124 of 2021, under Sections 2 and 3 of U.P. Gangster Act P.S.- Kotwali District – Sitapur.
As we see, the Bench points out in para 3 that:
At the very outset, the objection regarding the maintainability of the instant application are raised in two folds. One that the applicant has moved this application directly to this Court, which is not maintainable as per the law laid down in case of Ankit Bharti Vs. State of U.P. anothers 2020 SCC OnLine All 1949 and secondly, in light of the provision of sub-section 6(a)(b) of section 438 of Cr.P.C. as amended by U.P. State legislature namely, U.P. State Amendment 2019, (Uttar Pradesh Amendment) Act 2018 (U.P. Act No. 4 of 2019) (hereinafter referred to as ‘Act 2018, U.P. Act No. 4 of 2019’) the benefit of provision of anticipatory bail is available in the matter pertaining to Gangster Act.
To put it succinctly, the Bench stipulates in para 4 stating that:
For summarising the issue, two questions can be formulated;
- Whether, the anticipatory bail application could directly be filed before this Court, under the facts and circumstances of the present case?
- Whether, in light of the repealment of Criminal Procedure Code, 1973 (hereinafter referred to as ‘Cr.P.C. 1973’) and subsequently, the re-enactment of BNSS 2023(hereinafter referred to as ‘Sanhita 2023’), the Code of Criminal Procedure (Uttar Pradesh Amendment) Act 2018 (U.P. Act No. 4 of 2019) with presidential assent, would stand repealed?
Be it noted, the Bench notes in para 9 that:
So far as the present case is concerned, the detailed reasons are stated in paragraph no. 3 of the anticipatory bail application. It reveals that the applicant is facing more than fifteen first information reports, which are lodged by the same complainant and the specific plea has been taken that the complainant is financially sound and there is tremendous threat to the applicant, in approaching the trial court, as the complainant and his goons are chasing the applicant while doing ‘Gadha Bandi.’
Quite significantly, the Bench points out in para 10 that:
Considering the aforesaid peculiar facts and circumstances, particularly the law laid down in Ankit Bharti’s Case, the objection regarding the maintainability of the anticipatory bail application on the ground of directly approaching this Court, has no force and thus, the same is rejected.
Do note, the Bench notes in para 11 that:
Now, most importantly, the second objection is that the riders of section 6(a)(b) of the Act 2018-(U.P. Act No. 4 of 2019) is still enforceable/applicable after the repealment of Cr.P.C. 1973 and re-enactment of ‘Sanhita 2023.’ The Code of Criminal Procedure was enacted by the parliament in 1973 and the Assembly of State of U.P. came with an amendment and by virtue of the same, the provision of anticipatory bail as provided under section 438 of Cr.P.C. 1973 was suspended, detecting the peculiar circumstances emerges at that point of time, in the State of Uttar Pradesh. After a period of about 40 years, considering the change in the circumstances, the provision of anticipatory bail as provided in the Cr.P.C. 1973, was re-introduced with certain objective/riders, namely, ‘the Act 2018 (U.P. Act No. 4 of 2019).’ The riders which basically envisaged in sub-section 6 of section 438(1) of the Cr.P.C. 1973, is reproduced hereinunder:-
Provisions of this section shall not be applicable:
- to the offences arising out of:–
- the Unlawful Activities (Prevention) Act, 1967;
- the Narcotic Drugs and Psychotropic Substances Act, 1985;
- the Official Secret Act, 1923;
- the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986.
- in the offences, in which death sentence can be awarded.
Do also note, the Bench then notes in para 16 that:
It is pertinent to mention that the old provision contained in Section 438 of the erstwhile CrPC, 1973 is completely different from the new provision for anticipatory bail contained in Section 482 of the Sanhita 2023. It is not a case where a repealed provision in erstwhile Section 438 of the CrPC, 1973 has been verbatim retained under the new Section 482 of Sanhita 2023 which may lead to any such conclusion that the state amendments in erstwhile Section 438 of the CrPC, 1973 are to be read in the new Section 482 of Sanhita 2023 as both the aforesaid provisions are different and not exactly the same.
Do further note, the Bench then notes in para 17 that:
Further in the old provision contained in Section 438 of the erstwhile ‘Cr.P.C. 1973’, there were certain guiding factors which were to be considered while deciding an application seeking anticipatory bail, however, the new provision contained in Section 482 of the Sanhita 2023 deletes the guiding factors which the Hon’ble Courts while hearing the anticipatory bail applications, were to take into account, such as nature and gravity of accusation, criminal antecedents and the possibility of the accused to flee from justice.
It also cannot be glossed over that the Bench observes in para 18 that:
The mandatory requirement to decide an anticipatory bail application within 30 (thirty) days under the old Section 438(5) of the erstwhile Cr.P.C. 1973, also stands deleted in the new Section 482 of Sanhita 2023. Similarly, the requirement under Section 438(1-A) of the erstwhile CrPC, 1973 which provided that where the Hon’ble Court grants an interim order under sub-section (1) of aforesaid Section 438, it shall forthwith issue a notice being not less than ‘seven days’, together with a copy of such order to be served on the Public Prosecutor and the Superintendent of Police, with a view to give the Public Prosecutor a reasonable opportunity of being heard, when the application shall be finally heard by the Hon’ble Court, also stands dispensed under Section 482 of Sanhita 2023.
It would be instructive to note that the Bench points out in para 19 that, Evidently, under Section 482 of Sanhita 2023, the Hon’ble Courts have been conferred wider powers and discretion for granting anticipatory bail. It is not just the section number but even the text and intent of the provision for grant of anticipatory bail have been changed under the new provision contained in Section 482 of Sanhita 2023.
Most significantly and resultantly, the Bench encapsulates in para 48 what constitutes the cornerstone of this notable judgment postulating precisely that, In view of the aforesaid submission and discussions, I am of the considered opinion that the subsequent law made by the Parliament though, does not expressly repeal the State law, nevertheless, the State Law will be impliedly repealed and that shall give way to any subsequent parliament law in respect with same matter which adds to, amends, varies or repeals the law made by the legislature of the State, by virtue of operation of proviso of Article 254 of the Constitution of India.
While continuing in the same vein, the Bench then further directs in para 49 holding that:
Consequently, the Code of Criminal Procedure (Uttar Pradesh Amendment) Act 2018 (U.P. Act No. 4 of 2019) passed by the State legislature would stand impliedly repealed.
As a corollary, the Bench then also directs in para 50 holding clearly that, Resultantly, the issue no. II framed by this Court is being decided in ‘positive’. Thus, preliminary objection raised by the opposite party is hereby rejected.
For clarity, the Bench clarifies in para 51 holding that:
Needless to say that it is always open to the State Legislature to bring State amendment in the newly enacted Sanhita 2023.
What’s more, the Bench then also further clarifies in para 52 stating that:
It is also clarified that rest of the issues are open for consideration.
Furthermore, the Bench then directs in para 53 mentioning that:
List this matter before appropriate Court, in the first week of July, 2025.
Adding more to it, the Bench also then specifies in para 54 stating that:
The interim order granted earlier, shall remain continue till then.
Finally, the Bench then draws the curtains of this notable judgment by most magnanimously acknowledging in para 55 pointing out very rightly that, Departing from the order, this Court appreciates the relentless, indispensable and efficient attempt of the amicus curiae, Sri Gaurav Mehrotra, to assist this Court.
Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut - 250001, Uttar Pradesh
