'CrPC (UP Amendment) Act 2018' Containing Restrictions On Grant Of Anticipatory Bail Stands Impliedly Repealed By BNSS: Allahabad HC

A bench of Justice Shree Prakash Singh observed that when a State amends a law on a subject in the Concurrent List, and the Parliament later makes a change to that same law, the State law must give way to the Parliament's law, even if the said law adds to, changes, or repeals the law made by the legislature of the State.

The Court added that when a legislature repeals any act, it has the power to save any right, privilege or remedy provided under the repealed statute; however, in the instant case, while BNSS has repealed CrPC, it did not save the State amendments made in the erstwhile CrPC and hence, UP State Amendment to CrPC would stand 'impliedly' repealed.

“…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made by the Parliament though, does not expressly repeal the State law, nevertheless, the State Law will be impliedly repealed and that shall give way to any subsequent parliament law in respect with “same matter” which adds to, amends, varies or repeals the law made by the legislature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,” the Single-Judge noted in his 21-page order.

The Court, however, added that it is always open to the State Legislature to bring State amendment in the newly enacted Sanhita 2023.

For context, Section 438 of CrPC, 1973, which provided for the grant of bail to a person apprehending arrest in a non-bailable offence, was revived by the State's 2018 Amendment Act. The provision was removed by way of the CrPC (Uttar Pradesh Amendment) Act 1976, during the Emergency period.

However, subsection (6) provides that anticipatory bail provisions would not be applicable to the offences arising out of the UAPA, NDPS Act, the Official Secrets Act, the UP Gangsters Act and to the offences, in which a death sentence can be awarded.

Background of the case

The single judge was essentially dealing with the anticipatory bail plea filed by one Raman Sahni, who has been booked under Sections 2 and 3 of the UP Gangsters Act.

The Court was faced with two preliminary objections regarding the maintainability of the instant application, the same were:

• The plea for anticipatory bail would not lie directly to the High Court and the applicant must first approach the sessions court, before approaching the HC as per the law laid down in case of Ankit Bharti Vs. State of UP another 2020
• In light of the provision of sub-section 6(a)(b) of section 438 of CrPC as amended by the Uttar Pradesh Amendment Act 2018, the benefit of the provision of anticipatory bail is not available in the instant case since the applicant has been booked under the UP Gangsters Act.

The Court rejected the first objection, considering the peculiar facts and circumstances of the case, wherein the petitioner claimed that he is facing more than fifteen FIRs lodged by the same complainant. A specific plea was taken that the complainant is financially influential and that there is a serious threat to the applicant in approaching the trial court, as the complainant and his associates are allegedly chasing him.

Thus, the High Court found it justified for the applicant to approach the High Court directly, without first approaching the Sessions Court.

Regarding the second objection - which argued that the restrictions under Section 6(a)(b) of the Act 2018 (U.P. Act No. 4 of 2019), barring anticipatory bail to a person booked under the UP Gangsters Act, are still applicable even after the repeal of the CrPC, 1973 and the enactment of Sanhita 2023, and therefore the instant anticipatory bail plea would not be maintainable - the bench noted that since a Central Legislation (BNSS) has repealed and re-enacted the law concerning entries in List III of the 7th Schedule of the Constitution, any amendments made by State Legislatures to the earlier enactment (CrPC), even if they had received Presidential assent, shall also stand impliedly repealed.

To come to this conclusion, the High Court referred to the Supreme Court's 2024 Judgment in the case of Naeem Bano@Gaindo vs. Mohammad Rahees and Anr 2024 LiveLaw (SC) 1011 wherein it was held that if the Parliament amends a law which is on a subject in the Concurrent List, then an earlier State amendment to the same provision would become inoperative.

The bench also referred to the Top Court's 2017 ruling in the case of Innoventive Industries Ltd. vs. ICICI Bank [2017], wherein the Apex Court had explained the principle of 'implied repeal. It had held that if the subject matter of the State Legislation or a part thereof is identical with that of the Parliamentary Legislation, then the State Legislation will be deemed to be impliedly repugnant to the Parliamentary Legislation.

In its order, the bench also noticed the stand of the State Government that it has proceeded with the State amendment regarding the anticipatory bail in Sanhita 2023 and the draft amendment is also prepared.

“…(this) clearly shows that the State Government is also aware of that after the repealment of the earlier Cr.P.C. 1973, the amendment by way of Act No. 4 of 2019 is not enforceable,” the bench noted.

Thus, rejecting even the second objection, the Court posted the matter for the first week of July 2025, while keeping all issues open for consideration.

Appearances

Advocate Sushil Kumar Singh for the applicant,

Senior Advocate IB Singh, assisted by Advocate Avinash Singh Vishen, GA VK Singh, assisted by Advocate Shivendra Shivam Singh Rathore, AGA-I Aniruddh Kumar Singh, assisted by Advocate Vaibhav Srivastava, AGA Nirmal Pandey, for the State

Advocate Gaurav Mehrotra, Amicus Curie, assisted by Advocates Utsav Misra, Akber Ahmed, Madhur Jhavar, Maria Fatima, Alina, Chinmay Misra, Ravi Singh, Harsh Vardhan Mehrotra, Ramendra Yadav, Shhriya Agarwal, Ahad, Ankit Tripathi

Advocate Sriniwas Bajpai, for the complainant