Back Ground of Case
- Applicant Raman Sahni approaches to the Hon'ble High Court Lucknow by filing CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 1710 of 2024 Raman Sahni Vs of UP & Ors in case Crime No. 124 of 2021 under section 2 and 3 of U.P. Gangster Act P.S.- Kotwali District – Sitapur.
- Learned State Counel has objected on maintainability of Anticipatory Bail Application under Gangster Act
- Firstly direct application in moved in High Court, without availing remedy beofore the Session Judge (District Court), learned State Counsel has cited Ankit Bharti Vs. State of U.P. anothers 2020 SCC OnLine All 1949
- 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 Hon'ble High Court Lucknow has framed two question
I- Whether, the anticipatory bail application could directly be filed before this Court, under the facts and circumstances of the present case?
II- 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of Criminal Procedure (Uttar Pradesh Amendment) Act 2018 (U.P. Act No. 4 of 2019) with presidential assent, would stand repealed?
A. That the Hon'ble High Court Lucknow has been pleased and passed the following order para 45, 46, 47
45. Infact, the transfer of property act 1882, which is a central legislation on the subject 'transfer of property other than agricultural land' under the concurrent list, the legislature of State of U.P. had brought an amendment on 30.11.1954, in section 106, whereby, the ‘15 days notice’ period for termination of lease was changed to the ‘30 days’ and as such, section 106 as amended by the State Legislature of U.P., prevailed in the State, but subsequently, parliament substituted section 106 of the transfer of property act 1882 with effect from 31.12.2002 amending the aforesaid provision, completely, thus, question cropped up as to whether the earlier amendment made to section 106 by the U.P. State Legislature with effect from 30.11.1954, would be insignificant on account of the principal of implied repeal.
46. It is culled out from the above-said discussions that when a conflict arises regarding the applicability of provisions of parliamentary law and State law over the same subject matter then, it is apt to say that the power of a legislative body to repeal a law is co-extensive with its power to enact the law and the effect of repealing of the statue, is to obliterate completely from the records of the parliament, as if, it was never in existence. If a lesilature is repealing any act, the same is well within the power to save any right, privilege or remedy provided under the repealed statute. In fact, this balances with the constitutional principle of ‘legislative supremacy’ and ‘coherence.’ Further, the constitutional mandates of cooperative federalism and rule of law is also one of the beacon of light to come to the conclusion regarding the existence and applicability of the law enacted by the parliament and the state legislature.
47. So far as the present matter is that the Cr.P.C. 1973 has been repealed and there is no existence of the Cr.P.C. 1973 and the State amendments made in the erstwhile Cr.P.C. 1973 does not find place in the saving clause of newly enacted Sanhita 2023. This Court is also noticed the stand of the State Government as is said in the counter affidavit that the State of U.P. has proceeded with State amendment regarding the anticipatory bail in Sanhita 2023 and the draft amendment is also prepared, which 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.
48. 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
49. 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.
B. That the Hon'ble High Court Lucknow has reejected the objection of the State Counsel, the para 50 of the order is qouted below
50. 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.
Conclusion
The Hon'ble Court has held that the CrPC is repealed, by BNSS 2023, all the amendment has also been repeal
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