a bench Justice Vivek Chaudhary and Justice Narendra Kumar Johari It was so framed while responding to a reference made by a single judge of the HC in April this year. The question asked for consideration of the larger bench was:

“Whether Section 438 (6) (b) CrPC applicable to the State of UP imposes an absolute bar on the application of Section 438 CrPC to offenses for which death penalty may be awarded or whether the aforesaid prohibition only applies to the Court after considering the facts of the Case to conclude that the case warrants the imposition of death penalty. reaching.”

The court held that the legal bar was absolute because the State amendment expressly prohibited the granting of advance bail for crimes punishable by the death penalty. Therefore, the Courts (be it the High Court or the Sessions Court) cannot entertain requests for anticipatory bail in such cases.

“It is not the duty of the Courts to rewrite laws or to grant exceptions to a clear legislative power. While courts are the guardians of individual freedoms, they are also obliged to uphold the rule of law and respect the limits set by the legislature…” the division bench observed.

Court with this rejected The claim that the nature of the crime should be taken into account in determining whether provisional bail will be granted despite the legal prohibition.

The court stated that such an approach would effectively render the legislative bar meaningless and open the door to excessive judicial intervention.

It may be noted that the reference was made to the larger panel after a contradiction emerged in two high court decisions regarding whether anticipatory bail requests can be maintained in cases requiring the death penalty.

For context, in this case Deshraj Singh Vs. UP Status (Neutral Citation No.-2022:AHC:183606)The single judge of the HC held that despite the provision of Section 438(6)(b) of the CrPC (as amended by the UP State Amendment Act 2018) prohibits granting anticipatory bail in cases where the offense is punishable with death penalty. sentence Unless a death penalty case is filed, it will be possible to continue the anticipatory bail application.

On the other hand, Vishal Singh vs State of UP (Criminal Miscellaneous Preventive Bail No. 2759, 2023)The Court’s Coordination Board stated: Anticipatory bail application will not be possible to sustain in cases involving the commission of an offense punishable with death under Section 302 of the IPC..

Before the division bench, the applicant’s counsel, who had applied for interim bail, argued strongly that the application for interim bail should be taken into consideration in cases where the Court is of the prima facie view that death penalty cannot be awarded.

In support of the allegations, the applicant’s lawyer referred to the decision of the Supreme Court in the following cases: Dr. Subhash Kashinath Mahajan and State of Maharashtra 2018 (a decision recalled by the SC in 2019) and Prathvi Raj Chauhan vs Union of India 2020 (a decision of the court invalidating a certain part Subhash Kashinath case). Both the cases arose from the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.