Uttarakhand High Court
Harish Kumar Prajapati vs Central Bureau Of Investigation on 4 August, 2025
Author: Alok Kumar Verma
Bench: Alok Kumar Verma
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
THE HON'BLE SRI JUSTICE ALOK KUMAR VERMA
04th AUGUST, 2025
ANTICIPATORY BAIL APPLICATION NO. 133 OF 2025
Harish Kumar Prajapati ..... Applicant
Versus
Central Bureau of Investigation, Anti Corruption Branch,
Dehradun .....Respondent
Counsel for the Applicant : Mrs. Prabha Nainthani,
Advocate.
Counsel for the Respondent : Mr. Piyush Garg,
Advocate.
With
ANTICIPATORY BAIL APPLICATION NO. 261 OF 2025
Vijaypal ..... Applicant
Versus
State of Uttarakhand .....Respondent
Counsel for the Applicant : Mr. Bhupesh Kandpal,
Advocate.
Counsel for the Respondent : Mr. Pradeep Lohani,
Brief Holder.
Counsel for the Informant : Mr. Sanjay Raturi,
Advocate
(through video conferencing).
With
ANTICIPATORY BAIL APPLICATION NO. 447 OF 2025
Kirti Ballabh Nainwal and two Others ..... Applicants
Versus
Central Bureau of Investigation, Anti Corruption Branch,
Dehradun .....Respondent
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Counsel for the Applicants : Mr. Piyush Sammal,
Advocate.
Counsel for the Respondent : Mr. Piyush Garg,
Advocate.
With
ANTICIPATORY BAIL APPLICATION NO. 562 OF 2025
Ramnaresh Tyagi and Another ..... Applicants
Versus
State of Uttarakhand .....Respondent
Counsel for the Applicants : Mr. A.S. Rawat, Senior
Advocate assisted by Mr.
Anchit Khokher, Advocate.
Counsel for the Respondent : Mr. Pradeep Lohani,
Brief Holder.
With
ANTICIPATORY BAIL APPLICATION NO. 617 OF 2025
Sameer Choudhary ..... Applicant
Versus
Narcotics Control Bureau, Dehradun .....Respondent
Counsel for the Applicant : Mr. Rakesh Chahar,
Advocate with Mr. Naveen
Singh Bisht, Advocate
(both through video
conferencing).
Counsel for the Respondent : Mr. Shobhit Sahari,
Advocate.
(through video conferencing)
With
ANTICIPATORY BAIL APPLICATION NO. 623 OF 2025
Smt. Anjali Sharma ..... Applicant
Versus
State of Uttarakhand .....Respondent
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Counsel for the Applicant : Mr. Lalit Sharma,
Advocate with Mr. Rajat
Mittal, Advocate.
Counsel for the Respondent : Mr. Pradeep Lohani,
Brief Holder.
With
ANTICIPATORY BAIL APPLICATION NO. 728 OF 2025
Smt. Anamika Maithani alias Suman ..... Applicant
Versus
State of Uttarakhand .....Respondent
Counsel for the Applicant : Mrs. Prabha Naithani,
Advocate.
Counsel for the Respondent : Mr. Pradeep Lohani,
Brief Holder.
Hon'ble Alok Kumar Verma, J.
Apprehending his arrest, the applicant-
Harish Kumar Prajapati has filed the Anticipatory Bail
Application under Section 482 of the Bharatiya Nagarik
Suraksha Sanhita, 2023 (in short, “Sanhita, 2023”) in
FIR No.RCOO72021S0009 of 2021, registered at Anti
Corruption Branch, Dehradun under Section 302 of the
Indian Penal Code, 1860 (in short, “IPC“) (Section
120B, Section 34 and Section 218 IPC are added during
the course of the investigation).
2. Applicant – Vijaypal has filed the Anticipatory
Bail Application under Section 482 of the Sanhita, 2023
in FIR No.02 of 2023, registered at Police Station
Chamba, District Tehri Garhwal under Section 376(3),
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Section 506 IPC and Section 3 read with Section 4 of
the Protection of Children from Sexual Offences Act,
2012 (in short, “Act, 2012”).
3. Applicant – Kirti Ballabh Nainwal and two
others have filed the present Application under Section
482 of the Sanhita, 2023 in FIR No.RC0072021S0009,
registered at Anti Corruption Branch, Dehradun under
Section 302 read with Section 34 IPC.
4. Applicants Ramnaresh Tyagi and Avneet
Tyagi have filed the present Application under Section
482 of the Sanhita, 2023 in Case Crime No.281 of
2022, registered at Police Station Perm Nagar, District
Dehradun under Section 3(1) of the Uttar Pradesh
Gangsters and Anti-Social Activities (Prevention) Act,
1986 (as applicable in the State of Uttarakhand).
5. Applicant – Sameer Choudhary has filed the
present Application under Section 482 of the Sanhita,
2023 in NCB/DDN/2/2022, registered at NCB Zone,
Dehradun, under Section 8 read with Section 20 and
Section 29 of the Narcotic Drugs and Psychotropic
Substances Act, 1985.
6. Applicant – Smt. Anjali Sharma has filed the
present Application under Section 482 of the Sanhita,
2023 in Case Crime No.144 of 2025, registered at
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Police Station Raipur, District Dehradun under Section
2 read with Section 3 of the Uttar Pradesh Gangsters
and Anti-Social Activities (Prevention) Act, 1986 (as
applicable in the State of Uttarakhand).
7. Applicant- Smt. Anamika Maithani alias
Suman has filed the present Application under Section
482 of the Sanhita, 2023 in FIR No.60 of 2025,
registered at Kotwali Kotdwar, District Pauri Garhwal
under Section 2 read with Section 3 of the Uttar
Pradesh Gangsters and Anti-Social Activities
(Prevention) Act, 1986 (as applicable in the State of
Uttarakhand).
8. Anticipatory Bail Application No.133 of 2025
is being treated as a leading file.
9. Heard learned counsel for the parties.
10. Placing reliance on an order dated
21.09.2024, passed by the Coordinate Bench of this
Court in Anticipatory Bail Application No.897 of 2024,
“Mukesh Singh Bora vs. State of Uttarakhand”, Mr.
Piyush Garg, Advocate appearing for the Central
Bureau of Investigation and Mr. Pradeep Lohani, Brief
Holder for the State of Uttarakhand have raised a
preliminary objection regarding maintainability of these
anticipatory bail applications. They further argued that
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the anticipatory bail applications are not maintainable
under Section 438 of the Code of Criminal Procedure,
1973 (in short, “Code”) as amended by the State of
Uttarakhand and even in terms of Section 531 of the
Sanhita, 2023.
11. Per contra, learned counsel appearing for the
applicants have argued that these anticipatory bail
applications are maintainable.
12. The Anticipatory Bail Application No.897 of
2024, “Mukesh Singh Bora Vs. State of Uttarakhand”,
was filed by the applicant Mukesh Singh Bora seeking
anticipatory bail in Case Crime No.170 of 2024,
registered at Police Station Lalkuan, District Nainital
under Sections 376(2)(n), 506 IPC and Section 9(m)
read with Section 10 of the Act, 2012.
13. It was argued by the learned counsel for the
State in the said matter that the anticipatory bail
application is not maintainable in view of the State of
Uttarakhand Notification dated 11.08.2020, which, inter
alia, provides that the provision of anticipatory bail
shall not be applicable to the offences under the Act.
14. The relevant portion of the said order dated
21.09.2024 reads :-
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“6. The provisions of anticipatory bail are not
applicable to the offences under the Act. The
investigation in the instant matter is pending
under the provisions of the Act. It is stated that
even the victim child has been examined during
investigation. In view of it, the anticipatory bail
application is not maintainable. It deserves to be
rejected accordingly.
7. The anticipatory bail application is rejected”.
15. In terms of the repeal and savings clause
under Section 531 of the Sanhita, 2023, the Code of
Criminal Procedure, 1973 stands repealed with
enforcement of the Sanhita, 2023. July 01, 2024, the
date on which the Sanhita came into force.
16. Section 531 of the Sanhita, 2023 is as
follows:-
“531. Repeal and savings.- (1) The Code of
Criminal Procedure, 1973 (2 of 1974) is hereby
repealed.
(2) Notwithstanding such repeal-
(a) if, immediately before the date on which this
Sanhita comes into force, there is any
appeal, application, trial, inquiry or
investigation pending, then, such appeal,
application, trial, inquiry or investigation shall
be disposed of, continued, held or made, as
the case may be, in accordance with the7
provisions of the Code of Criminal Procedure,
1973 (2 of 1974), as in force immediately
before such commencement (hereinafter
referred to as the said Code), as if this
Sanhita had not come into force;
(b) all notifications published, proclamations
issued, powers conferred, forms provided by
rules, local jurisdictions defined, sentences
passed and orders, rules and appointments,
not being appointments as Special
Magistrates, made under the said Code and
which are in force immediately before the
commencement of this Sanhita, shall be
deemed, respectively, to have been
published, issued, conferred, specified,
defined, passed or made under the
corresponding provisions of this Sanhita;
(c) any sanction accorded or consent given
under the said Code in pursuance of which no
proceeding was commenced under that Code,
shall be deemed to have been accorded or
given under the corresponding provisions of
this Sanhita and proceedings may be
commenced under this Sanhita in pursuance
of such sanction or consent.
(3) Where the period specified for an application
or other proceeding under the said Code had
expired on or before the commencement of this
Sanhita, nothing in this Sanhita shall be construed
as enabling any such application to be made or
proceeding to be commenced under this Sanhita8
by reason only of the fact that a longer period
therefor is specified by this Sanhita or provisions
are made in this Sanhita for the extension of time.
17. The scheme of Section 438 of the Code was
introduced by the State of Uttarakhand vide Act No.22
of 2020 (Notification dated 11.08.2020). Section 438 of
the Code, as introduced by the State of Uttarakhand,
reads as follows:-
“438. Direction for grant of bail to person
apprehending arrest- (1) Where any person has reason
to believe that he may be arrested on accusation of
having committed a non-bailable offence, he may apply
to the High Court or the Court of Session for a direction
under this section that in the event of such arrest he
shall be released on bail; and that Court may, after taking
into consideration, inter alia, the following factors,
namely:-
(i) the nature and gravity of the accusation;
(ii) the antecedents of the applicant including the fact as
to whether he has previously undergone imprisonment on
conviction by a Court in respect of any cognizable
offence;
(iii) the possibility of the applicant to flee from justice; and
(iv) where the accusation has been made with the object
of injuring or humiliating the applicant by having him so
arrested,
either reject the application forthwith or issue an
interim order for the grant of anticipatory bail:
Provided that where the High Court or, as the case
may be, the Court of Session, has not passed any
interim order under this sub-section or has rejected the
application for grant of anticipatory bail, it shall be open to
an officer in-charge of a police station to arrest, without
warrant, the applicant on the basis of the accusation
apprehended in such application.
(2) Where the High Court or, as the case may be, the
Court of Session, considers it expedient to issue an
interim order to grant anticipatory bail under sub-section
(1), the Court shall indicate therein the date, on which
the application for grant of anticipatory bail shall be
finally heard for passing an order thereon, as the Court9
may deem fit, and if the Court passes any order granting
anticipatory bail, such order shall include inter alia the
following conditions, namely;
(i) that the applicant shall make himself available for
interrogation by a police officer as and when required;
(ii) that the applicant shall not, directly or indirectly, make
any inducement, threat or promise to any person
acquainted with the facts of the case so as to dissuade
him from disclosing such facts to the Court or to any
police officer;
(iii) that the applicant shall not leave India without the
previous permission of the Court; and
(iv) such other conditions as may be imposed under sub-
section (3) of section 437, as if the bail were granted
under that section.
Explanation: the final order made on an application for
direction under sub- section (1); shall not be construed as
an interlocutory order for the purpose of this Code.
(3) Where the Court grants an interim order under sub-
section (l), it shall forthwith cause a notice being not less
than seven days notice, 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 Court.
(4) On the date indicated in the interim order under sub-
section (2), the Court shall hear the Public Prosecutor and
the applicant and after due consideration of their
contentions, it may either confirm, modify or cancel the
interim order.
(5) The High Court or the Court of Session, as the case
may be, shall finally dispose of an application for grant of
anticipatory bail under sub-section (l), within thirty days of
the date of such application;
(6) Provisions of this section shall not be applicable,-
(a) to the offences arising out of, –
(i) the Unlawful Activities (Prevention) Act, 1967;
(ii) the Narcotic Drugs and Psychotropic Substances Act,
1985;
(iii) the Official Secrets Act, 1923;
(iv) the Uttarakhand (Uttar Pradesh Gangsters and Anti-
Social Activities (Prevention) Act, 1986😉 Adaptation and
Modification Order, 2002
(v) sub-section(3) of Section 376 or Section 376AB or
Section 376DA or Section 376DB of the Indian Penal
Code;
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(vi) chapter 6 of the Indian Penal Code, 1860, viz,
offences against the state (except Section 129);
(vii) The Protection of Children from Sexual Offences
(POCSO) Act, 2012;
(b) in the offences, in which death sentence may be
awarded.
(7) If an application under this section has been made by
any person to the High Court, no application by the
same person shall be entertained by the Court of
Session.”
18. Learned counsel appearing for the applicants
argued that the anticipatory bail is a substantive right,
not merely a procedure. In the Sanhita, 2023, there is
no express bar prohibiting anticipatory bail for the
offences under Section of IPC and other Acts, even if
committed before the commencement of the Sanhita,
2023. The Sanhita, 2023 must be read in a manner
that protects rather than restricts the rights of the
accused. In the case of similar nature, (CR.P.C.
No.1710 of 2024, “Raman Sahni vs. State of Uttar
Pradesh”) on 28.05.2025, the Hon’ble High Court of
Judicature at Allahabad held that the provisions of
Section 482 of the Sanhita, 2023 would prevail over the
State amendment.
19. The main question in these matters revolves
around the applicability of Section 438 of the Code, as
amended by the State of Uttarkahand, and the Sanhita,
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2023 to ongoing investigations and legal proceedings
initiated before 01.07.2024 or after 01.07.2024.
20. The provision of anticipatory bail is rooted in
the fundamental right to personal liberty. It is a pre-
emptive measure to safeguard personal liberty against
false accusation or misuse of the law. Anticipatory bail
is a safeguard against arbitrary arrest. Liberty is the
very quintessence of a civilized existence. The Sanhita,
2023 is also upholding the importance of protecting
personal liberty. The restrictions on granting
anticipatory bail under Section 438(6) of the Code (as
amended by the State of Uttarakhand) are no longer in
effect.
21. The principle of implied repeal also called
repeal by necessary implication may be applied to
determine repugnancy for the purpose of Article 254(2)
of the Constitution of India. If the Parliament, in
exercising its power under proviso to Article 254(2)
makes a law adding, amending or repealing the law,
predominance secured by the State law by the assent
of the President is taken away and the repugnant State
law though it became valid by virtue of President’s
assent would be void.
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22. No amendment has been brought by the
State of Uttarakhand in Section 482 of the Sanhita,
2023 after the enactment of the Sanhita, 2023.
Therefore, it seems clear that the State Government
has taken a conscious decision to do away with the
prohibition indicated in Section 438(6) of the Code of
Criminal Procedure, 1973.
23. In M. Ravindran Vs. The Intelligence
Officer, Directorate of Revenue Intelligence,
(2021) 2 SCC 485, the Hon’ble Supreme Court
emphasized that in case of any ambiguity in the
construction of a penal statute, the Courts must favour
the interpretation which leans towards protecting the
rights of the accused and that this principle is
applicable not only in the case of substantive penal
statutes but also in the case of procedures providing for
the curtailment of the liberty of the accused.
24. T. Barai vs. Henry Ah Hoe, (1983) 1 SCC
177, mandated that when a later statute imposes
different punishment or varies the procedure, the
accused must have the benefit of the reduced
punishment or ameliorated procedure. This principle
recognizes that the law should evolve in favour of the
liberty of the individual, and the benefit should be
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available to all persons who may be affected,
regardless of when their cases originated.
25. When the Parliament enacts more liberal
provisions, the benefit thereof should be available to all
persons who may be affected, regardless of when their
cases originated. Therefore, this Court is of the opinion
that the accused is entitled to the benefit of the more
liberal provisions introduced by the Sanhita, 2023.
26. Hence, I am in respectful disagreement with
the view taken by the Coordinate Bench. The matter is
referred to a larger Bench by formulating the following
question:-
“Whether the provision of Section 482 of the
Bharatiya Nagarik Suraksha Sanhita, 2023
would prevail over the Uttarakhand State
Amendment under Section 438 of the Code of
Criminal Procedure, 1973 and since the
provisions of the Sanhita, 2023 are beneficial
to the accused, can it be applied with respect
to earlier cases (regardless of when the case
of the accused originated)?”
27. The Registry is directed to place the matter
before the Hon’ble Chief Justice of this Court for an
appropriate order.
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28. A copy of this order be placed on the records
of the connected anticipatory bail applications.
___________________
ALOK KUMAR VERMA, J.
Date : 04.08.2025
JKJ/Pant
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