JUDGMENT Hon’ble Sudhir Agarwal, J.—This matter raises an important question of law as also application of interpretation of certain provisions of Constitution of India with regard to Provincial Legislation and the legislation made by Parliament relating to procedure to be followed by the Courts dealing with criminal cases. 2. The petitioner has sought a mandamus commanding respondent Nos. 1 to issue notification restoring back Section 438 Code of Criminal Procedure (hereinafter referred to as “Cr.P.C.”) in the State of U.P. in view of legislation made by Provincial legislature i.e. Criminal Procedure (U.P. Amendment) Bill, 2010 (hereinafter referred to as “Amendment Bill 2010”). It has also sought a mandamus directing respondent No. 2 i.e. Secretary to Government of India, Ministry of Home Affairs and respondent No. 3, Secretary to President of India requesting the President to immediately accord assent to the “Amendment Bill, 2010”. 3. The matter came up before this Court on 22.12.2011 when Sri Ashok Pandey, Advocate appeared on behalf of petitioner, learned A.G.A. for respondent No. 1 but none put in appearance on behalf of respondent Nos. 2 and 3 though the cause list shown Additional Solicitor General of India as one of the counsel for respondents. 4. Learned counsels appearing for the parties stated at the bar that the issue raised in this matter is purely legal and does not require any investigation into facts and therefore may be heard and decided finally at this stage. We proceeded accordingly. 5. Sri Ashok Pandey concluded his arguments. The Government Advocate as well as learned A.G.A. completed their arguments on behalf of respondent No. 1. However this Court found that the stand of Government of India should also be looked into. Since no counsel of Government of India was present, we directed the petitioner to inform Government of India’s counsel in writing and fixed 6.1.2012 for further hearing. 6. On the next date i.e. 6.1.2012 Sri Ashok Pandey and learned Government Advocate reiterated their submissions. 7. Dr. Ashok Nigam, learned Addl. Solicitor General assisted by Sri Mahendra Singh Pawar, Advocate appeared on behalf of Government of India. He stated that legislation in question relates to State Government who is the main contesting party and therefore he has not to add anything in the matter. Consequently judgment was reserved. 8. We have gone through the record and have also pondered over the submissions advanced by learned counsels. He stated that legislation in question relates to State Government who is the main contesting party and therefore he has not to add anything in the matter. Consequently judgment was reserved. 8. We have gone through the record and have also pondered over the submissions advanced by learned counsels. The issue relates to individual’s right of Freedom i.e. personal liberty vis-a-vis State’s authority of arrest during investigation etc. 9. A Shloka (verse) from Srimad Bhagwat Gita has been referred in various authorities. Chapter 2, Verse 34 of Gita what Lord Krishna said to Arjun reads as under: “laHkkforL; pkdhfrZ ej.kknfrfjP;rs “ “For a self respecting man, death is preferable to dishonour.” [Gita, Chapter 2, Sholk 34] 10. Personal liberty of a person has been given paramount importance in our constitution by placing it in the Chapter of Fundamental Rights vide Article 21 read with Article 19(1). It recognizes certain basic human rights. All human beings are born with some unalienable rights like life, liberty and pursuit of happiness, etc. These are natural rights, fundamental for proper existence of human beings. No other right can be enjoyed without presence of right to life and liberty. Origin of “liberty”’’ is very fundamental to the human civilization. The Europeans and others claim that origin of liberty can be traced to the ancient Greek civilization but we find that the old Indian scriptures also refer to the importance of life and property of human kind in various ways. In fact the concept of liberty had always some modulation in the context of the period and place but the very element of liberty and its concept has never been doubted. It is said that Life bereft of liberty is something without honour and dignity. It would lose all significance and meaning and the life itself would not be worth living without liberty. This is fortified from what has been said in Gita by Lord Krishna, quoted above. The liberty is rightly called the very quintessence of a civilized existence. We need not go into further details of concept of liberty in jurisprudential sense, but suffice it to consider in the context of Indian Constitution. 11. It is admittedly a fundamental right in the Indian Constitution. The Fundamental Rights represent the basic values enriched by the people of this country guaranteed by positive declaration in the Constitution. We need not go into further details of concept of liberty in jurisprudential sense, but suffice it to consider in the context of Indian Constitution. 11. It is admittedly a fundamental right in the Indian Constitution. The Fundamental Rights represent the basic values enriched by the people of this country guaranteed by positive declaration in the Constitution. The objective of having right to life and property of the individual would not be fulfilled as desired by the framers of the Constitution, if it is not given its due width and space. This expansion we find to have evolved with the passage of time and expansion of views and approach. 12. As earliest as in 1950, in A.K. Gopalan v. The State of Madras, AIR 1950 SC 27 , the term “personal liberty” came up for consideration before the Apex Court. Hon’ble Mukherjea, J. in the judgment said that “personal liberty” means liberty relating to or concerning the person or body of individual and it is, in this sense, antithesis of physical restraint or coercion. It means a personal right not to be subjected to imprisonment, arrest or other physical coercion in any manner that does not admit of legal justification. It is this negative right which constitutes the essence of personal liberty. It is true that Court hereat gave a narrow interpretation to personal liberty and excluded certain varieties of rights as separately maintained in Article 19 from the purview of personal liberty guaranteed by Article 21. 13. Then came the judgment in Kharak Singh v. State of U.P. and others, AIR 1963 SC 1295 , wherein the Court went a bit further. Hon’ble Subba Rao, J. defined “personal liberty”, as a right of an individual to be free from restrictions or encroachment on his person whether directly imposed or indirectly brought about by calculated measure. However, it follows the earlier view that “personal liberty” in Article 21 includes all varieties of freedoms except those included in Article 19. 14. It is the landmark judgment in Maneka Gandhi v. Union of India and another, (1978) 1 SCC 248 , where the expression “personal liberty” as used in Article 21 of the Constitution of India was given much expanded scope. It rejected the argument that the expression “personal liberty” must be so interpreted as to avoid overlapping between Article 21 and Article 19(1). It rejected the argument that the expression “personal liberty” must be so interpreted as to avoid overlapping between Article 21 and Article 19(1). The Court observed: “The expression “personal liberty” in Article 21 is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of a man and some of them have been raised to the status of distinct fundamental rights and given additional protection under Article 19.” 15. Henceforth, the phrase “personal liberty” is held to include all possible rights which go to constitute personal liberty, including those which are mentioned in Article 19 and it encompasses the widest possible field. The judgment came after shock of mass scale preventive detentions resorted during Emergency, legality whereof was considered by various High Cours and finally adjudicated in A.D.M. Jabalpur v. Shivakant Shukla, AIR 1976 SC 1207 . 16. The post Maneka Gandhi Judgment (supra) era is different. Now the right to life and liberty has been expanded to cover several facets of human life. 17. In Prem Shankar Shukla v. Delhi Administration, (1980) 3 SCC 526 , putting fetters on an undertrial’s person’s while taking to the Court from prison and back, was commented adversely. The Court recognized their right to life and liberty observing that there is no compulsive need to fetter a person’s limbs. It is sadistic, capricious, despotic and demoralizing to humble a man by manacling him. Such arbitrary conduct surely slaps Article 14 on the face. The minimal freedom of movement which even a detenu is entitled to under Article 19 cannot be cut down cruelly by application of handcuffs or other hoops. It will be unreasonable so to do unless the State is able to make out that no other practical way of forbidding escape is available, the prisoner being so dangerous and desperate and the circumstances so hostile to safekeeping that it is necessary. 18. In Francis Coralie Mullin v. Administrator, Union Territory of Delhi and Others, (1981) 1 SCC 608 , the Court observed that protection against arbitrary privation of “life” no longer means mere protection of death, or physical injury, but also an invasion of the right to “live” with human dignity and would include all these aspects of life which would go to make a man’s life meaningful and worth living such as his tradition, culture and heritage. 19. 19. In P. Rathinam/Nagbhusan Patnaik v. Union of India and Another, (1994) 3 SCC 394 , the Court said: “The right to live with human dignity and same does not connote continued drudging. It takes within its fold some process of civilization which makes life worth living and expanded concept of life would mean the tradition, culture, and heritage of the person concerned.” 20. In Kartar Singh v. State of U.P., 1994(3) SCC 569 , the Court said that Article 21 is a declaration of deep faith and belief in human rights. In this pattern of guarantee woven in Chapter III of this Constitution, personal liberty of man is at the root of Article 21 and each expression used in this Article enhances human dignity and values. It lays foundation for a society where rule of law is primary and not arbitrary or capricious exercise of power. “Personal liberty” is compendious term used in Article 21 and includes within itself all varieties of rights which go to make up the “personal liberties” of a man. Article 19(1) deals with particular species or attributes of that freedom while “personal liberty” in Article 21 takes on the entire gamut. 21. In Khedat Mazdoor Chetana Sangath v. State of M.P. and Others, (1994) 6 SCC 260 , the Apex Court posed a question to itself “If dignity or honour vanishes what remains of life”?; and referred to oft quoted statement of Joseph Addision, “Better to die ten thousand deaths than wound my honour”. The Court said that the object of Article 21 is to prevent encroachment upon personal liberty in any manner. It is repository of all human rights essentially for a person or a citizen. A fruitful and meaningful life presupposes full of dignity, honour, health and welfare. In the modern “Welfare Philosophy”, it is for the State to ensure these essentials of life for its citizens, and if possible to non-citizens also. 22. Concept of personal liberty has recently been considered in Siddharam Satlingappa Mhetre v. State of Maharashtra and Others, AIR 2011 SC 312 . In the modern “Welfare Philosophy”, it is for the State to ensure these essentials of life for its citizens, and if possible to non-citizens also. 22. Concept of personal liberty has recently been considered in Siddharam Satlingappa Mhetre v. State of Maharashtra and Others, AIR 2011 SC 312 . We need not provide more authorities to bulk this judgment but would like to refer to the above judgment where the Apex Court referred to concept of personal liberty in several other countries like United Kingdom, U.S.A., West Germany, Japan, Canada, Bangladesh, Pakistan, Nepal and also the International Charter and has observed that liberty is considered to be most precious human right of every person. Having said so, it has further observed that there is another facet. As liberty is precious to an individual, so is the society’s interest in maintenance of peace, law and order. Both are equally important. For maintaining peace from the individual or group of individuals indulged in activities disturbing tranquillity of society, provisions were introduced in the Code dealing with Criminal Administration of Justice regarding the bail when individual accused of having committed crime are under investigation or trial. 23. It is in this context we have to consider the issue relating to provision pertaining to bail (commonly known as ‘Anticipatory Bail’) under Section 438 Cr.P.C.. 24. For us suffice it to mention that during British Era i.e. Cr.P.C. 1898, it did not contain any specific provision of anticipatory bail. The question came up for consideration before various High Court as to whether the Courts had inherent power to order a particular bail in anticipation of arrest. There was a sharp difference of opinion though majority was against it. The Law Commission of India, in its 41st Report dated September 24, 1969 gave its opinion, demonstrating necessity of introducing a provision in Cr.P.C. enabling High Court and the Court of Sessions to grant “anticipatory bail”. It observed in para 39.9 of its report (Volume I) which reads as under: “The suggestion for directing the release of a person on bail prior to his arrest (commonly known as “anticipatory bail”) was carefully considered by us. Though there is a conflict of judicial opinion about the power of a Court to grant anticipatory bail, the majority view is that there is no such power under the existing provisions of the Code. Though there is a conflict of judicial opinion about the power of a Court to grant anticipatory bail, the majority view is that there is no such power under the existing provisions of the Code. The necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false cases for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. In recent times, with the accentuation of political rivalry, this tendency is showing signs of steady increase. Apart from false cases, where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail, there seems no justification to require him first to submit to custody, remain in prison for some days and then apply for bail.” 25. The recommendations were accepted and when the Bill was introduced, the Law Commission in para 31 of its 48th Report (July, 1972) commented that the provision for grant of anticipatory bail is substantially in accordance with the recommendation made by the previous Commission. This would be a useful addition, though the power should be exercised in very exceptional cases. 26. The new Cr.P.C. was enacted in 1973 i.e. Act No. 2 of 1974, and it came into force on 1.4.1974. It contains a provision for grant of bail to a person apprehending arrest. It reads as under: “438. Direction for grant of bail to person apprehending arrest.—(1) When any person has reason to believe that he may be arrested on an 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 ; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail. (2) When the High Court or the Court of Session makes a direction under sub-section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including- (i) a condition that the person shall make himself available for interrogation by a police officer as and when required; (ii) a condition that the person 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) a condition that the person shall not leave India without the previous permission of the Court ; (iv) such other condition as may be imposed under sub-section (3) of Section 437, as if the bail were granted under that section. (3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail, and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under sub-section (1).” 27. The importance of Section 438 Cr.P.C. relating to Anticipatory Bail was pointed out in Balchand Jain v. State of Madhya Pradesh, AIR 1977 SC 366 and it also quoted a passage from 41st Report of Law Commission, quoted above. 28. After enactment the manner in which the power ought and should be exercised has also been considered in a number of authorities time and again. In Gurbaksh Singh Sibbia and Others v. State of Punjab, (1980) 2 SCC 565 , a Constitution Bench of Apex Court dealt with the scope and ambit of the concept of “anticipatory bail” comprehensively and said: “........A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hall mark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail”. 29. The essence of the observation is that the power should be exercised by the Courts to preserve their discretion without meaning to abuse it. 30. In Siddharam Satlingappa Mhetre (Supra) the Court said that it would be unreasonable to lay down strict, inflexible and rigid rules for exercise of such discretion by reading the clear provision of Section 438 in any restricted or otherwise manner. Certain parameters and factors have been given in para 122 of the judgment which reads as under: “122. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail: i. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; ii. The antecedents of the applicant including the fact as to whether the accused 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; iv. The possibility of the accused’s likelihood to repeat similar or the other offences. v. Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her. vi. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people. vii. The Courts must evaluate the entire available material against the accused very carefully. The Court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of Sections 34 and 149 of the Indian Penal Code, the Court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern; viii. The Court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of Sections 34 and 149 of the Indian Penal Code, the Court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern; viii. While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused; ix. The Court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; x. Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.” 31. It is thus evident that provision for anticipatory bail was introduced because Parliament in its wisdom realized that false and frivolous cases are often filed against such some persons and such person have to go to jail because even if First Information Report is false and frivolous, a person has to obtain bail, and therefore he has to first surrender before the learned Magistrate. His bail application would be heard after some days which would be consumed for giving notice to the State. During all this period the applicant would have to go to jail which shall tarnish his reputation image and honour. Even if such person subsequently obtains bail, his reputation and honour will be irreparably tarnished. Reputation and honour of a person is a valuable asset. 32. However, the State of U.P. by Code of Criminal Procedure (U.P. Amendment) Ordinance, 1975 i.e. U.P. Ordinance No. 38 of 1975, subsequently became Act as “The Code of Criminal Procedure (U.P. Amendment) Act, 1976” i.e. U.P. Act, No. 16 of 1976 made certain amendments in Cr.P.C. and vide Section 9 omitted Section 438 in its application to the State of U.P. w.e.f. 28.11.1975. 33. This amendment had resulted in a lot of hue and cry in the State. 33. This amendment had resulted in a lot of hue and cry in the State. It also caused a huge extra burden on this Court in the shape of increase in filing of writ petitions for quashing of First Information Report under Article 226. It also resulted in increased filing of misc. applications under Section 482 Cr.P.C. We have got some data from the Registry (Computer Section) in respect to Allahabad and Lucknow, both, and we are informed as under: (a) In the last 11 years i.e. from 2001 to 2011, number of writ petitions (Civil) filed at Allahabad & Lucknow and decided by the Court as also the average number of Judges during the year are as under: 34. It may also be placed on record, as a matter of clarification, that above figures and data do not include several other matters like Writ (Tax), Tax (Trade Tax, Income Tax, Custom, Excise etc.) Revisions, References, Appeals, Bail Applications, Criminal & Civil appeals, revisions, Company matters, contempt cases, etc. 35. Moreover, even otherwise, problems faced by Courts due to non-availability of provision like 438 Cr.P.C. in the State of U.P. has also been highlighted in several judgments. 36. Cases coming to Court, made it realized that when a report is lodged complaining about commissioning of a non bailable offence, Police even before initiating investigation, proceed first to arrest alleged accused without looking into the matter in the context of relevant facts and circumstances. In Joginder Kumar v. State of U.P. and others, AIR 1994 SC 1349 , the Court said: “No arrest can be made because it is lawful for the Police Officer to do so. The existence of the power to arrest is one thing. The justification of the exercise of it is quite another. The Police Officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. The Police Officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a Police Officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person’s complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter. The recommendations of the Police Commission merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the Officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences, an arrest must be avoided if a police Officer issues notice to person to attend to Station House and not to leave Station without permission would do.” 37. Probably the above observation were already conceived by Law Commission while recommending for inclusion of a provision for “anticipatory bail” as pointed out in Balchand Jain v. State of Madhya Pradesh, AIR 1976 SC 366, wherein it said: “The necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false cases for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. In recent times, with the accentuation of political rivalry, this tendency is showing signs of steady increase. Apart from false cases, where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail, there seems no justification to require him first to submit to custody remain in prison for some days and then apply for bail” 38. The Police, however, did not mend its ways. The Police, however, did not mend its ways. The Courts time and again noticed that whenever FIR of a cognizable offence is lodged, Police immediately goes to arrest the accused person. 39. In Vijai Kumar Verma v. State of U.P. and others, 2002(45) ACC 534, a Division Bench consisting of Hon’ble M. Katju (as Hislordship then was) and Hon’ble K.N. Sinha, JJ said that absence of provision for anticipatory bail in U.P. has resulted in orders being passed in thousands of cases staying arrests, leading to unnecessary burden on this Court. Atleast 6 Hon’ble Judges of this Court who could be more profitably engaged in other more important work have to be engaged in these essentially interim matters. In paragraphs 9 and 10 of the judgment, the Court said: “9. In our opinion the problem will be obviated by restoring the provision for anticipatory bail which was contained in Section 438 Cr.P.C. but was deleted in U.P. by Section 9 of U.P. Act 16 of 1976. 10. It is surprising that the provision for anticipatory bail should be deleted in this State although it exists in all other States in India, even in terrorist affected States. We do not understand why this provision should not exist in U.P. also.” 40. This Court also observed that thousand of writ petitions and applications under Section 482 Cr.P.C. are being filed basically seeking indulgence of this Court for stay of arrest. The Court expressed its surprise for deletion of provision relating to anticipatory bail in State of U.P. though such provision exist in all other States in the Country including even terrorists affected State(s). The Court observed that it is difficult to understand why this provision should not exist in the State of U.P. It is in this context, the Court also made following observations in paras 13, 14, 15, 16 and 17 of the judgment: “13. .... However, we are of the view that there must be a provision for anticipatory bail in U.P. for the reason already mentioned above. 14. Experience has shown that the absence of the provisions for anticipatory bail has been causing great injustice and hardship to the citizens of U.P. Often false First Information Reports are filed e.g. under Section 498-A I.P.C., Section 3/4 Dowry Prohibition Act, etc. Often grand-mothers, uncles, aunts, unmarried sisters etc. 14. Experience has shown that the absence of the provisions for anticipatory bail has been causing great injustice and hardship to the citizens of U.P. Often false First Information Reports are filed e.g. under Section 498-A I.P.C., Section 3/4 Dowry Prohibition Act, etc. Often grand-mothers, uncles, aunts, unmarried sisters etc. are implicated in such cases, even though they may have nothing to do with the offence. Some times unmarried girls have to go to jail, and this may affect their chances of marriage. As already observed by us above, this is in violation of the Supreme Court decision in Joginder Kumar’s case (supra) and the difficulty can be over-come by restoring the provisions for anticipatory bail. 15. Moreover this Court is already over burdened with heavy arrears and over loaded with work. This load is increasing daily due to the absence of the provisions for anticipatory bail. In the absence of such provision whenever an F.I.R. is filed the accused person files a writ petition or application under Section 482 Cr.P.C. and this has resulted in an unmanageable burden on this Court. At present in the Allahabad High Court, one Division Bench is doing fresh and recent writ petitions in which the First Information Report is challenged, and another Division Bench is doing similar writ petitioners in old cases. Similarly, one Hon’ble Single Judge is dealing with fresh and recent applications under Section 482 Cr.P.C. and another Hon’ble Single Judge deals with similar old cases. Thus six Hon’ble Judges of this Court are presently tied up with such work. 16. This Court had on several occasions requested the State Government to issue an Ordinance immediately to restore the provisions for anticipatory bail, but all our requests seem to have fallen on deaf ears. It seems that there is an impression in some quarters that if the provisions for anticipatory bail is restored crimes will increase. In our opinion this is a specious argument, since it has not made much difference to the crime position in the States where the provisions for anticipatory bail exists. 17. We, therefore, make a strong recommendation to the U.P. Government to immediately issue an Ordinance to restore the provisions for anticipatory bail by repealing Section 9 of U.P. Act No. 16 of 1976, and empowering the High Court as well as the Sessions Courts to grant anticipatory bail.” 41. 17. We, therefore, make a strong recommendation to the U.P. Government to immediately issue an Ordinance to restore the provisions for anticipatory bail by repealing Section 9 of U.P. Act No. 16 of 1976, and empowering the High Court as well as the Sessions Courts to grant anticipatory bail.” 41. What was observed by this Court in Vijay Kumar Verma (supra) is not the solitary verdict. The tendency of implicating falsely came to be noticed by Apex Court also in Kans Raj v. State of Panjab, AIR 2000 SC 2324 and in para 5, the Court said: “A tendency has, however, developed for roping in all relations of the in-laws of the deceased wives in the matters of dowry deaths which, if not discouraged, is likely to affect the case of the prosecution even against the real culprits. In their over enthusiasm and anxiety to seek conviction for maximum people, the parents of the deceased have been found to be making efforts for involving other relations which ultimately weaken the case of the prosecution even against the real accused.” 42. The Apex Court also had an occasion to observe that provision for anticipatory bail provides a remedy to an otherwise harassed lot in the hands of police, if there is abuse of process of law. It said: “To be remembered that in the Criminal Procedure Code there are sufficient provisions which enable a party to move the High Court if there is abuse of the process of law. The petitioners could have utilized those provisions.” 43. Following the observations made in Vijai Kumar Verma (supra), another Division Bench in Smt. Sudama and others v. State of U.P. and others, 2006(5) ADJ 342 (DB), observed : “There is no warrant for the presumption that powers of anticipatory bails would be arbitrarily or improperly exercised by Sessions Courts if Section 438 Cr.P.C. was restored in the State of U.P., and that undeserving criminals would be let off lightly. Even though U.P. is the only State where this provision has been omitted, but there is no material to suggest that the absence of this provision has had any beneficial effect on the law and order situation in the State. Even though U.P. is the only State where this provision has been omitted, but there is no material to suggest that the absence of this provision has had any beneficial effect on the law and order situation in the State. Also Sessions Judges are experienced senior judges, immediately subordinate to High Court judges and there is no reason to presume that they will act in an arbitrary, whimsical or non-judicial manner in disposing of applications under Section 438 Cr.P.C. Moreover an unjustified order of the Sessions Court granting anticipatory bail can always be corrected by the High Court, in exercise of powers under Section 439 (2) of the Code of Criminal Procedure.” 44. The Court also observed that unless power of anticipatory bail is restored immediately in U.P., there maybe great outcry and disquiet amongst the public, litigants and lawyers, when an embargo is imposed on stays of arrest in all cases, except the rare cases where FIR itself discloses no cognizable offence. The Court said that the problems can largely be avoided if the power of granting anticipatory bail is re-introduced in this State. Sessions Courts when consider applications for anticipatory bail, can easily call for instructions from locally placed Investigating Officers under Section 438 Cr.P.C. Where a prima facie case for interim relief is disclosed, or where the case appears to be a very petty or frivolous, where arrest may not appear immediately necessary, or where a person appears to have been implicated owing to political or other rivalry, the Sessions Court may grant interim anticipatory bail for a week or so, and pass order on the application under Section 438 finally after hearing Public Prosecutor after giving him time to obtain instructions from the Investigating Officer. This would also save and protect honour and dignity of poor persons who may not have requisite finance to come to this Court, but may approach Sessions Court at local level. The Court said that this may also save considerable State Excehquer and may also save time of Investigating Officer for they may not be repeatedly summoned to this Court to file counter-affidavit or to instruct Government Advocate in the writ petition, if matter of anticipatory bail is substantively disposed of at District level itself. 45. The Court said that this may also save considerable State Excehquer and may also save time of Investigating Officer for they may not be repeatedly summoned to this Court to file counter-affidavit or to instruct Government Advocate in the writ petition, if matter of anticipatory bail is substantively disposed of at District level itself. 45. Thus as said above, this Court time and again observed that due to absence of provision of anticipatory bail in State of U.P., higher judiciary is getting burdened heavily with matters which otherwise could have been dealt with by the Courts below. The Court expressed its desire of reconsideration of entire matter by the State. The observations made by a Division Bench presided by His Lordship Hon’ble the Chief Justice F.I.Rebello in the judgment dated 18.3.2011 in Writ petition No. 2608 (M/B) of 2011 Dr. Nutan Thakur and another v. Union of India and others, also reads as under: “As a result of the District Courts and the Sessions Courts not having the jurisdiction to grant anticipatory bail, a large number of matters either under Section 482 of the Code or in the extraordinary jurisdiction under Article 226/227 are being filed before this Court resulting in backlog of other assignments, resulting in inordinate delay.” 46. The Courts, besides burden, gave due weight to people’s request against arrest since during investigation by Police it was necessary to balance right of people to remain free and power of State to arrest vis-a-vis provision relating to anticipatory bail. 47. Attempts were also made to assail constitutional validity of Section 9 of U.P. Act No. 16 of 1976. The matter was considered in Kartar Singh (supra). It was held that Parliament as well as State legislature both have legislative competence to enact any law relating to Code of Criminal Procedure. In view thereof and relying on earlier decisions including that of U.P. Electric Supply Company Ltd. v. R.K. Shukla, 1970 AIR 237, the Court held, since the enactments relating to procedure in criminal matters are within the ambit of List III, 7th Schedule. Being in concurrent list, the State legislature also has legislative competence to enact law in respect to criminal procedure, Section 438, omitted in the State of U.P. vide Section 9 of U.P. Act No. 16 of 1976 thus cannot be said ultra vires. It also held that this omission is applicable uniform throughout the State. Being in concurrent list, the State legislature also has legislative competence to enact law in respect to criminal procedure, Section 438, omitted in the State of U.P. vide Section 9 of U.P. Act No. 16 of 1976 thus cannot be said ultra vires. It also held that this omission is applicable uniform throughout the State. The question of discrimination also does not arise. 48. Even thereafter attempts were made, time and again, to somehow or the other wriggle out this amendment of State legislature but all in vain. One such attempt made recently had failed in Dr. Nutan Thakur and another (supra). 49. Probably repeated observations and comments from the Courts had a positive impact on the State Government. It constituted a committee headed by Sri Satish Chandra Mishra, Member of Parliament and Senior Advocate who recommended for restoration of Section 438 Cr.P.C. but with certain conditions. Consequently a Bill was introduced in State Legislature i.e. Code of Criminal Procedure (U.P. Amendment) Bill 2010. The statement of object and reasons in the aforesaid Bill reads as under: “Section 438 of the Code of Criminal Procedure, 1973 was repealed by the Code of Criminal Procedure (Uttar Pradesh Amendment) Act, 1976 (U.P. Act No. 16 of 1976) A committee was constituted under the Presidentship of the Chairman, State Advisory Board Uttar Pradesh in which the Advocate General Uttar Pradesh, the Principal Secretaries Uttar Pradesh Government in Home, Judicial and Parliamentary Affaris Departments and the Director General of Police were the members to consider the reviving of Section 438 of the Code of Criminal Procedure, 1973 regarding direction for grant of bail to person apprehending the arrest in the present situation. The said committee has recommended that the provisions of the said Section 438 regarding anticipatory bail should be revived under certain conditions. After considering the recommendations of the said committee, it has been decided to amend the Code of Criminal Procedure, 1973 in its application to Uttar Pradesh to revive with modification Section 438 thereof.” 50. The U.P. Legislative Assembly passed the aforesaid Bill on 10.8.2010 and U.P. Legislative Council also passed it on 11.8.2010 without any modification. 51. After considering the recommendations of the said committee, it has been decided to amend the Code of Criminal Procedure, 1973 in its application to Uttar Pradesh to revive with modification Section 438 thereof.” 50. The U.P. Legislative Assembly passed the aforesaid Bill on 10.8.2010 and U.P. Legislative Council also passed it on 11.8.2010 without any modification. 51. It is stated in the short counter-affidavit filed on behalf of respondent No. 1 which has been sworn by Sri K.K.Sharma, Principal Secretary, Law/Legal Remembrancer that Bill, after having been passed by State Legislatures was presented to His Excellency, the Governor under Article 200 of the Constitution on 12.8.2010. It is said by respondent No. 1 that His Excellency, the Governor, reserved “Amendment Bill 2010” for consideration of Her Excellency the President of India and to seek assent under Article 200 and 201. Consequently it was forwarded to Secretary, Government of India, Ministry of Home Affairs for placing it for consideration before President of India under Article 201 of the Constitution vide letter No. 1088/79-V-1-10-1(ka) 17/2010 dated 23.8.2010. Her Excellency President of India however on 4.9.2011 passed an order deferring consideration. The Ministry of Home Affairs vide letter dated 8.9.2011 has informed this fact to the State Government. 52. Sri A.K.Pandey, Advocate, learned counsel appearing for the petitioner contended that in a case like this, Amendment Bill 2010 in fact does not require assent of the President since it was within the legislative competence of State Legislature and therefore the Hon’ble Governor erred in law by reserving it for assent of the President of India. He submitted that this Court may decide this question whether Amendment Bill 2010 at all could have been reserved for assent of President of India or not and thereafter may direct appropriate authority to take appropriate decision in the matter. 53. Learned Government Advocate submitted that State legislature having already passed the Bill has nothing to do further in the matter. It is solely within the competence of Hon’ble Governor to pass appropriate order under Article 200 of the Constitution over which the State Government has no control or say. 53. Learned Government Advocate submitted that State legislature having already passed the Bill has nothing to do further in the matter. It is solely within the competence of Hon’ble Governor to pass appropriate order under Article 200 of the Constitution over which the State Government has no control or say. He further said that once the Bill has been reserved by the Governor for assent of the President of India and it has been referred to Her Excellency, now unless a further action is taken, as contemplated under Article 201 of the Constitution, no further direction or order can be issued by this Court. It would amount to directing the Governor or President of India to act or not to act in a particular matter, which, he submits, would not be appropriate for this Court to do. He however submitted that so far as stand of State Government is concerned, it is inclined to restore the provision of Section 438 Cr.P.C. in the State of U.P. and whatever was permissible at its end has been done. Rest is for other constitutional authorities to do further. 54. Dr. Ashok Nigam, learned Additional Solicitor General, as already noticed, did not choose to address the Court on merits but stated at the Bar during the course of the argument on 6.1.2012 that there is apparent repugnancy between Section 438 Cr.P.C. as introduced by Parliament in Cr.P.C., 1973 and one sought to be enacted by State Legislature vide Amendment Bill 2010 and therefore unless Bill is assented by the President of India, such amendment cannot be given effect to in State of U.P.. He submitted that President of India cannot be issued a writ of mandamus to act or not to act in the matter of legislation. He also said that in view of Article 254 of the Constitution, an amendment made by State Legislature, repugnant to any provision made by Parliament, shall not be operative unless it has been reserved for consideration of the President and his/her Excellency gives assent thereto. 55. It is also pointed out by learned Government Advocate and Additional Solicitor General that U.P., Act 16 of 1976, when omitted Section 438 in the State of U.P. was reserved for consideration of the President and it received the assent of President of India. Therefore the State legislature now cannot make an amendment otherwise without following the same procedure. 56. It is also pointed out by learned Government Advocate and Additional Solicitor General that U.P., Act 16 of 1976, when omitted Section 438 in the State of U.P. was reserved for consideration of the President and it received the assent of President of India. Therefore the State legislature now cannot make an amendment otherwise without following the same procedure. 56. The various submissions and Constitutional and statutory provisions attracted in this matter, in our, view needs adjudication of the following questions: (i) The Governor, when reserved a Bill for consideration of the President under Article 200 of the Constitution, whether it would be in respect to only such matters where the assent of the President is required under Article 254 or even otherwise? (ii) Whether President of India if withholds assent on a Bill reserved for consideration by His Excellency, would it mean as if the assent is denied ? (iii) Whether question of assent of the President or the Governor is justiciable. (iv) Whether Governor’s decision to reserve the Bill for consideration of the President of India is justiciable? (v) Whether mandamus, as sought by petitioner, can be issued by this Court under Article 226 of the Constitution? (vi) Whether there is any repugnancy in Section 438 Cr.P.C. 1973 as enacted by Parliament and as proposed by State Legislature in Amendment Bill 2010? 57. Questions No. (I), (iii), (iv) and (v) in our view can be considered together. 58. Article 200 of the Constitution of India reads as under: “200. (vi) Whether there is any repugnancy in Section 438 Cr.P.C. 1973 as enacted by Parliament and as proposed by State Legislature in Amendment Bill 2010? 57. Questions No. (I), (iii), (iv) and (v) in our view can be considered together. 58. Article 200 of the Constitution of India reads as under: “200. Assent to Bills.—When a Bill has been passed by the Legislative Assembly of a State or, in the case of a State having a Legislative Council, has been passed by both Houses of the Legislature of the State, it shall be presented to the Governor and the Governor shall declare either that he assents to the Bill or that he withholds assent therefrom or that he reserves the Bill for the consideration of the President: Provided that the Governor may, as soon as possible after the presentation to him of the Bill for assent, return the Bill if it is not a Money Bill together with a message requesting that the House or Houses will reconsider the Bill or any specified provisions thereof and, in particular, will consider the desirability of introducing any such amendments as he may recommend in his message and, when a Bill is so returned, the House or Houses shall reconsider the Bill accordingly, and if the Bill is passed again by the House or Houses with or without amendment and presented to the Governor for assent, the Governor shall not withhold assent therefrom: Provided further that the Governor shall not assent to, but shall reserve for the consideration of the President, any Bill which in the opinion of the Governor would, if it became law, so derogate from the powers of the High Court as to endanger the position which that Court is by this Constitution designed to fill.” 59. In order to make legislation in the State of U.P., the House being binaural, a Bill is laid before the State Assembly need be passed by Legislative Assembly, Legislative Council and thereafter to be assented by the Governor. 60. The Governor is thus, part and parcel of the legislature of the State. A Bill cannot be said to have been passed by the legislature simply after its clearance from Legislative Assembly and Council unless it has received the assent of Governor 61. 60. The Governor is thus, part and parcel of the legislature of the State. A Bill cannot be said to have been passed by the legislature simply after its clearance from Legislative Assembly and Council unless it has received the assent of Governor 61. With reference to somewhat pari materia provisions in Government of India Act 1935, this Court had occasion to consider the question whether the legislation becomes final on having been passed by the elected Legislature or would become a law after the assent of the Governor. In Rama Kant v. Shrimati Bi Chandra Krin, AIR 1941 All 312, this Court said: “Section 60 (1) (a), Government of India Act, 1935, provides that in the United Provinces there shall be a Provincial Legislature which shall consist of His Majesty represented by the Governor and two Chambers. Thus the Chambers by themselves do not constitute the Legislature; it is constituted by the Chambers plus His Majesty’s representative, and therefore it cannot be said that any local Act is “passed” until it receives the assent of the Governor.” 62. Article 200 came to be referred by a Constitution Bench in Thakur Amar Singhji and others v. State of Rajasthan and others, AIR 1955 SC 504 . The matter was considered in the context of Article 212-A of the Constitution. The Court observed: “When a Bill has been passed by the Legislative Assembly of a state, Article 200 enacts that it shall be presented to the Governor who is to declare whether he assents to it or withholds his assent therefrom, or reserves it for the consideration of the President . . . . . . . . . . . . the position under Article 212-A (2) has thus been assimilated to that under Article 200, the preparation of the Bill by the Rajpramukh taking the place of the passing of the Bill by the Legislative Assembly and the one is as much a legislative function as the other.” 63. It is thus clear that after the Bill is passed in the Assembly and the Council, the same will not become a law until presented to the Governor for his assent and he assents the Bill. The Governor also has the power to reserve the Bill for consideration of President and in such a case it shall become law after the assent of the President. The Governor also has the power to reserve the Bill for consideration of President and in such a case it shall become law after the assent of the President. The Governor and the President, as the case may be, therefore, in the process of making a law, constitute part and parcel of the Legislature. This function of theirs is legislative. We reiterate that unless the assent has been given, a Bill shall not become a law and would not partake the status of an enactment i.e., ‘Act’. 64. A special Bench of Patna High Court in Babu Jhalak Prasad and others v. Province of Bihar, AIR 1941 Pat 306, had an occasion to consider the meaning of the expression “an Act of Parliament” with reference to the provisions of Government of India Act 1935. at Page 323 of the report, the Court said : “In the ordinary meaning of the expression, an “Act of Parliament” is an Act which has been passed by the House of Commons, the House of Lards and assented to by the King. Regulation 1 of 1793 was an enactment of the Governor-General in Council in India and was never before Parliament in England. It is clear, however, that this Regulation together with the other Permanent Settlement Regulation were enacted pursuant to the provisions and directions contained in Section 39, Pitt’s India Act of 1784.” 65. A more apt question similar to the present one came up before a Special Bench in Raja Bhairabendra Narain Bhup v. State of Assam, ILR 1956(8) 379. Here also it was considered in the context of Government of India Act 1935. The Court observed that once a Bill has been presented to the Governor until it becomes law by according assent to it or is killed by declining assent to it either by the Governor himself or by the Governor General, the Bill continues to be pending before the Governor. On page l391 of the Report, the Court said: “The legislative process commences with the introduction of a Bill in a House of the Legislature and it does not terminate as long as it has not been passed into law or the Bill is otherwise killed by withholding assent to it.” 66. On page l391 of the Report, the Court said: “The legislative process commences with the introduction of a Bill in a House of the Legislature and it does not terminate as long as it has not been passed into law or the Bill is otherwise killed by withholding assent to it.” 66. The scope of Articles 200 and 201 of the Constitution of India 1950 were considered in a little bit detail in Purushothaman Nambudiri v. State of Kerala, AIR 1962 SC 694 . It says, in para 15 of the judgment; “In this connection it is necessary to consider Articles 200 and 201 which deal with Bills reserved for the assent of the Governor or the President. Article 200 provides, inter alia, that when a Bill has been passed by the Legislative Assembly of a State it shall be presented to the Governor, and the Governor shall declare either that he assents to the Bill or that he withholds assent therefrom or that he reserves the Bill for the consideration of the President. The proviso to this Article requires that the Governor may, as soon as possible after the presentation to him of the Bill for assent, return the Bill if it is not a money Bill together with a message requesting that the House or Houses will reconsider the Bill or any specified provisions thereof and, in particular, will consider the desirability of introducing any such amendments as he may recommend in his message and when a Bill is so returned the House or Houses shall reconsider the Bill accordingly, and if the Bill is passed again by the House or Houses with or without amendment and presented to the Governor for assent, the Governor shall not withhold assent therefrom. The second proviso deals with cases where the Governor shall not assent to but shall reserve for the consideration of the President, any Bill which in the opinion of the Governor would, if it became law, so derogate from the powers of the High Court as to endanger the position which that Court is by this Constitution designed to fill. Article 201 then deals with the procedure which has to be adopted when a Bill is to be assented to by the President. Under the said Article the President shall declare either that he assents to the Bill or that he withholds assent therefrom. Article 201 then deals with the procedure which has to be adopted when a Bill is to be assented to by the President. Under the said Article the President shall declare either that he assents to the Bill or that he withholds assent therefrom. The proviso lays down, inter alia, that the President may direct the Governor to return the Bill to the House together with such message as is mentioned in the first proviso to Art. 200, and when a Bill is so returned the House shall reconsider it accordingly within a period of six months from the date of receipt of such message, and if it is again passed by the House with or without amendment it shall be presented again to the President for his consideration.” 67. The Apex Court also observed, if the Bill is pending for assent of the Governor or the President, as the case may be, and in the meantime the Assembly dissolves, it would not result in lapse of the Bill since no time limit has been provided for Governor or the President under Articles 200 and 201. In para 16 of the judgment the Court said: “. . . . . . .In fact the proviso to Article 201 requires that the House to which the Bill is remitted with a message from the President shall reconsider it accordingly within a period of six months from the date of receipt of such message. Therefore, the failure to make any provision as to the time within which the Governor or the President should reach a decision may suggest that the Constitution makers knew that a Bill which was pending the assent of the Governor or the President did not stand the risk of lapse on the dissolution of the Assembly. That is why no time limit was prescribed by Articles 200 and 201. Therefore, in our opinion, the scheme of Arts. 200 and 201 supports the conclusion that a Bill pending the assent of the Governor or the President does not lapse as a result of the dissolution of the Assembly, and that incidentally shows that the provisions of Article 196 (5) are exhaustive.” 68. Therefore, in our opinion, the scheme of Arts. 200 and 201 supports the conclusion that a Bill pending the assent of the Governor or the President does not lapse as a result of the dissolution of the Assembly, and that incidentally shows that the provisions of Article 196 (5) are exhaustive.” 68. In the light of the above discussion, what emerges from Article 200 is, when a Bill is presented for consideration by Governor, he has three options: (i) may assent to the Bill (ii) withholds assent to the Bill (iii) reserves the Bill for consideration of the President. 69. The first proviso to Article 200 further says that Governor may, as soon as possible after presentation to him, of the Bill for assent, returns the Bill, if it is not a Money Bill, together with a massage requesting that the House or Houses will reconsider the Bill or any specified provision thereof. 70. Article 201 however gives limited two options to the President i.e. (a) assents to the Bill; or (b) withholds assent thereon. 71. Proviso to Article 201 empowers the President to direct Governor to return the Bill to the House or the Houses of the Legislature of the State, as the case may be, together with such a massage as is mentioned in the first proviso to Article 200 and, when a Bill is so returned, the same shall be reconsidered by the House accordingly within a period of six months. 72. Article 200 does not talk of any peculiar or specific contingency when the Governor shall reserve a Bill for consideration of President of India. He can reserve a bill for consideration by President of India which deals with the subject-matter within the State List also. He has full discretion to reserve the Bill for consideration by the President. To our mind, this exercise of discretion by Governor, unrestricted by any provision of Constitution, is not justiciable. To the same effect, in our view is the power of President also while considering the Bill for grant of assent or withholding it under Article 201. Any other view would necessitate adding many words in Articles 200 and 201 of the Constitution. To the same effect, in our view is the power of President also while considering the Bill for grant of assent or withholding it under Article 201. Any other view would necessitate adding many words in Articles 200 and 201 of the Constitution. If suggestion is accepted that the Governor can reserve a Bill for consideration of President of India only when there is any scope of repugnancy or inconsistency with already enacted Central Act this would amount to reading down the width of Articles 200 and 201. Such a course while interpreting the Constitution is ordinarily not warranted. 73. The question of justiciability of power of the President in granting assent was considered in Hoechst Pharmaceuticals Ltd. and another v. State of Bihar and others, (1985) 154 ITR 64 (SC), the Court said “ we have no hesitation in holding that the assent of the President is not justiciable”. 74. Again the matter came to be considered by the Apex Court in Bharat Sewashram Sangh and others v. State of Gujarat and others, (1986) 4 SCC 51 and the Court following its earlier decision held that the assent of the President is not justiciable. 75. In view of the above, it is thus clear that neither there is any limitation when the Governor can refer a Bill for consideration by the President nor there is a time limit within which the above constitutional authorities are obliged to exercise their power under respective provisions i.e., Articles 200 and 201 of Constitution of India. Therefore, the question that since there is no repugnancy in the Amendment Bill 2010 vis-a-vis Section 438 Cr.P.C., 1973 the Governor could not have referred the Amendment Bill 2010 for assent of the President is untenable and has no legs to stand. The argument is accordingly rejected. In fact, in this regard, we do not find that Article 254 has any application in such matters. 76. It would not arise in a case where the Governor in exercise of his discretion has reserved the Bill for consideration of the President. It is wholly within the domain of Hon’ble Governor and this Court has no hesitation in observing that such discretion exercised by the Governor is not justiciable. 77. 76. It would not arise in a case where the Governor in exercise of his discretion has reserved the Bill for consideration of the President. It is wholly within the domain of Hon’ble Governor and this Court has no hesitation in observing that such discretion exercised by the Governor is not justiciable. 77. A Division Bench of Andhra Pradesh High Court in AIR 1985 AP 217 , has observed that even if a Principal Act was enacted after having received the assent of the President it cannot be said that every Bill seeking amendment of the parent Act should be reserved by the Governor for consideration and assent of the President. 78. Moreover, the learned Addl. Solicitor General has specifically stated at the bar that President of India has not withheld the assent so far as such but has deferred His consideration. 79. Be that as it may, the fact remains that once the Governor has reserved the Bill for consideration of President of India and His/Her Excellency the President of India has passed an order deferring consideration, in judicial review this Court may not command the President of India to take a decision within a particular time or in a particular manner. That will amount to interfering in the process of legislation which is not permissible in exercise of power of judicial review under Article 226 of the Constitution. Once it is held that process of assent by the Governor or the President, as the case may be, is a part and parcel of legislation, this Court would not require the two constitutional authorities to perform their legislative function in a manner restricted by an order of the Court, may be with respect to time or otherwise when such restriction has not been provided even in the Constitution. 80. Questions No. (i), (iii), (iv), (v) and (vi) thus are answered against the petitioner and in “negative”. 81. As already noticed, since the learned Additional Solicitor General himself stated that the President of India has neither accorded assent nor has withheld it but simply has deferred, meaning thereby that the matter is still pending, therefore, Question No. (ii) does not require to be answered in any particular manner at this stage inasmuch as, it is not the case of the Government that the assent has been withheld by the President or is denied. 82. 82. However, the matter up for consideration, we are afraid, cannot be put to rest hereat. The situation as it stands today is; The State Legislature has passed “Amendment Bill 2010” for restoring Section 438 in the Cr.P.C. 1973, after a long chain of observations, directions and suggestions by the Courts, but still we are back to square one since the very problem in the context whereof various observations were made showing necessity of availability of a provision like 438 Cr.P.C. in the State of U.P. continues to persist, without any sign of relief to the system of criminal justice in the State. 83. The concept of anticipatory bail and necessity of existence of such a provision, in principal, is not doubted either by the Central Government or the State. Before this Court none said that in the context of present scenario, such a provision must exist. The difference, if any, appears to be only in the form and composition of the provision. Initially, when such a provision was enacted by the Parliament, it was welcomed almost throughout the country. We must see as to what immediately transpired thereafter compelling Provincial Legislature in this State to withdraw such remedy available to the subject of this State. 84. A provision made with effect from 1st April, 1974 was undone on 28.11.1975 i.e. almost after one and a half years. If we go in retrospect, we find that this Court has pronounced a verdict which rocked the entire system in the country in 1975 in Election Petition No. 5 of 1971 (Raj Narain v. Smt. Indira Nehru Gandhi and another) passed on 12th June, 1975 unseating the then Prime Minister of India considered to be one of the most powerful political personality in the Country. The subsequent judicial and political affairs resulted in imposition of emergency in the entire nation. A huge number of public figures from all walks of life like politics, media, industry, social welfare etc. were arrested and sent behind the bars. The only hope of ray available to the subject was judiciary. The people massively invoked writ jurisdiction of this Court challenging their unlawful detention. This Court was one of the first High Courts in the country who pronounced detention illegal and directed for release of those detenues. were arrested and sent behind the bars. The only hope of ray available to the subject was judiciary. The people massively invoked writ jurisdiction of this Court challenging their unlawful detention. This Court was one of the first High Courts in the country who pronounced detention illegal and directed for release of those detenues. Probably, to keep the people out of immediate relief in the Courts of law, the then State Legislature promulgated U.P. Ordinance No. 38 of 1975 on 28.11.1975 which became U.P. Act No. 16 of 1976, to omit provision of anticipatory bail. 85. It is a matter of common knowledge that at that time the administering Government in State and Central, both, were in the hands of common political party yet this extreme step was taken only in State of U.P. and not at the level of the Central Government. Thereafter much water has flown but all the time, the political scenario in this State has used this situation of lack of provision relating to Anticipatory bail as a tool in hand to Ruling Party and has continued with the aforesaid arrangement without any change, unmindful of extreme consequences it has fallen on the public at large and judiciary and system of justice in particular. 86. The work load in subordinate Courts as well as High Court in criminal administration of justice has continuously increased. Unfortunately, nobody has bothered to keep infrastructure of the system updated with workload. Though strength of Judges and other staff has been increased from time to time but not commensurating to the need. Moreover, actual execution of increase has not been allowed to cope up with time. Huge number of vacancies have continued not only for weeks and months but even for years together which has resulted in increased work load on shrinking existing system at the relevant time. The data of cases filed and decided by the Judges available in this Court show a quite high number of disposal of cases, considering the fact that aforesaid figure constitute only about 55 to 70 per cent of the total number of cases filed and decided every year by this Court. Besides, substantial number of judges and working days are consumed in miscellaneous matters like admission, orders and also in considering larger Bench references made for resolving conflicting judgment of coordinate Benches, etc. 87. Besides, substantial number of judges and working days are consumed in miscellaneous matters like admission, orders and also in considering larger Bench references made for resolving conflicting judgment of coordinate Benches, etc. 87. Apparently People look to the number of pending cases but quantum of cases decided vis-a-vis number of judges comes to forefront almost very rarely. Many a time final adjudication of cases exceed number of filing but it virtually has negligible impact to reduce huge heap of pendency. After all, this pendency is not the result of a small time or any particular point of time or any inaction or laxity on the part of the Court but umpteen factors have contributed to it, most of which are beyond the control of this Court. We do not intend to say that cases should not be decided expeditiously but the real driving and governing factor for that would be cooperation, coordination with due determination from all parts and in particular the Governments. It needs more action than mere speeches, discussions, conversations on public front and formal meetings. The volume with which the Courts are functioning need be examined by those who have competence and experience in the subject with utmost objectivity and zeal. A firm action is requirement of the day than mere assurances and promises. 88. In 2001, if we take up position of this Court, average number of Judges available in that year was 48 only against sanctioned strength of 95 (Permanent and Additional Judges) and that too in the divided State after separation of Uttaranchal (now Uttarakhand). The chart shows that in every year, actual working strength of this Court has been much deficient vis-a-vis the sanctioned strength. It is not that there was some failure on the part of the system made for filling in vacancies of Judges but a more important factor, which has contributed, is the lack of requisite infrastructure for Judges to the extent of sanctioned strength. Even today, when the sanctioned strength of this Court is 160, requisite infrastructure even for 100 Judges is not available. If more appointments are made, the appointees shall not find competent Secretarial staff, appropriate chambers, residential accommodation befitting to the status of a Judge of this Court, etc.. 89. More or less, the same conditions have prevailed in subordinate judiciary also. If more appointments are made, the appointees shall not find competent Secretarial staff, appropriate chambers, residential accommodation befitting to the status of a Judge of this Court, etc.. 89. More or less, the same conditions have prevailed in subordinate judiciary also. Whether we talk of Court rooms of the Judges of the subordinate Court’s or their chambers or other facilities, story althrough is the same. In many of the Courts, working conditions are extremely deplorable and inhuman. We can visualize these conditions only by visiting the places personally and it is very hard to explain and depict true picture in words. The State executives do not find any inclination or incentive to provide quick and timely remedial measures to such pathetic conditions of Courts. Probably, system of administration of justice is their least priority. They do not find any encouraging factor to take steps towards improvement. The reason may be that justice system is mainly a watchdog against arbitrary and illegal executive actions. It almost always stand against, most of the time stand against them for protection of legal and constitutional rights including fundamental of the people who come for rescue against oppressive acts of Executive. The financial supremacy has been kept by Executive with itself which keeps justice system always empty pocket so as not to go ahead for its improvement on its own. The demands and suggestions made by judiciary used to take months and years for response from the State. Nobody finds itself accountable for such undue delay. Many a times, the very objective and purpose, for which suggestions and demands are made by judiciary, get frustrated for want of availability of funds in due time. Execution of plans loses its worth due to extraordinary lapse of time which is wasted in the pretest of “under action consideration”. The matters see more discussion, conferences, meetings etc. then actual ground work. We find lots of thinkers, planners and speakers but a very few workers/executors. In fact they are kept in condition of hibernation (called by Bureaucrats as “Putting in Cold Storage) and most of the time they create more complications. The codified law is regularly being added but the corresponding fall back on judiciary does not find a point of study by Executives. On the contrary, simultaneously but invariably they fail to provide requisite added infrastructure to meet increased demand. The codified law is regularly being added but the corresponding fall back on judiciary does not find a point of study by Executives. On the contrary, simultaneously but invariably they fail to provide requisite added infrastructure to meet increased demand. On flimsy and nonest grounds various departments of State and more commonly “Finance” keep matters pending with it without having any sense of responsibility and accountability vis-a-vis the time period within which it must act and react. 90. On public front, everybody speak, talk and comment and infact quite critically about long delay in disposal of cases and huge pendency but they find it convenient not to discuss and apprise the people at large extent of work load being shared by Judges and that too in absence of adequate and suitable working atmosphere and requisite infrastructure, which is always wanting. Every contentious issue is placed on the shoulder of judiciary since people of this country still have highest faith and confidence in justice system which has also proved it time and again competent and vigilant enough to come up and stand at occasions whenever it so required and also to deliver in the most appropriate manner. Thus, whenever an issue liable to create wide spread disturbances arises, the ball is kept in law Courts but its due is not provided. It is being made to starve to keep pace with demand and impart justice to the people with greatest expediency i.e. within a reasonable time due to laxity on the part of State (Central & Provincial, as the case may be). 91. The State has discovered a divergent procedure by raising on different platforms, issues of creating or establishing alternative dispute redressal system and Forums. Many of such Forums have also been established and constituted. Many of these Forums have been constituted in the shape of quasi judicial adjudicatory bodies like Tribunals etc. wherein constitution of Presiding officers includes a Judicial and an Executive Official. Provisions have been made with a tilting factor to provide huge incentive to Executives. For example, the tenure is mostly 4-5 years subject to maximum of 65 years of age. These Forums are mostly occupied by retired personnel from both the wings. Members of Executive retire at the age of 60 and member of Superior Court in Province at the age of 62. For example, the tenure is mostly 4-5 years subject to maximum of 65 years of age. These Forums are mostly occupied by retired personnel from both the wings. Members of Executive retire at the age of 60 and member of Superior Court in Province at the age of 62. Therefore, by all means, Executive gets a full tenure of 5 years while the member of superior judiciary get only three years. An adjudication, which was meant primarily to be considered by a Court of law is taken away so as to be dealt with by Forums which are less than a Court of law with a further provision to give incentive to the Executives. The functioning of these bodies have been considered time and again and at some stage it was commented “a heaven” for retired persons. The natural and ultimate result is persistent dissatisfaction and disillusion of public which results in continued pressure on Courts of law. The confidence, the people have in Primary Courts of law i.e. the Courts of law in true sense, is not deposed on such bodies. Moreover once these bodies are created an interest is develop to continue with such bodies and that is how the pendency therein becomes a necessity. Moreover, to augment avenues so as to accommodate more retired people, the strength goes on increasing from time to time but actual level of performance is yet to satisfy people’s expectations. It also cause last days running and approaches to seek appropriate post retiral bonanza. In our view, if these bodies are really essential, let there be a regular cadre so as to end ultimate scope of any aberration at the fag end. Temptation of continued power and position becomes difficult to desist and thus the regular cadre may remove this deficiency. 92. Now a days some more and other different Forums have been conceived and given shape. Frequent meetings, seminars, conferences discussions involving huge expenditure is a routine affairs. This is only to stress the need and importance of these Forums but their efficacy and actual delivery is yet a matter of search and study. Not only this, huge funds have been poured into such coordinate and parallel system. However, we have yet to find a comprehensive study to tell us what has actually been delivered by such systems qua the quantum of funds consumed therein. Not only this, huge funds have been poured into such coordinate and parallel system. However, we have yet to find a comprehensive study to tell us what has actually been delivered by such systems qua the quantum of funds consumed therein. Probably the huge fund made available therein, if would have been made available for the already existing system, much more authentic and satisfactory dispensation of justice would have resulted. Mere multiplication of different Forums, spending huge public revenue from public exchequer by itself may not give complete satisfaction to the affected section of people since they have a different kind of confidence in the verdict(s) they receive from regular and existing system of administration of justice. This has been proved time and again in various matters. It would not be necessary to refer them as that would only add volume to this order. Suffice it to mention, where all attempts of negotiations failed in a matter which the Executive treated highly volatile, as if anything done may result in bursting of a volcano and even some discussion was apprehended to create frenzy and passion amongst two major sections of this nation, the Court has adjudicated even that matter with greatest acceptability and without any scope of unmounted agitation. The kind of cool it had brought was unparallel. This competence of Court should thus not be undermined by Executive to sustain non availability of provision like Section 438 in the State of U.P.. The wisdom and competence of Court to deal with every kind of matter need no further proof since it has already been demonstrated, even very recently. The extra ordinary performance shown by this Court working with almost half of the strength for the last decade, for most of the time need be admired and appreciated and to be considered more objectively to provide provision which may reduce the unnecessary burden which has added due to unexplained and unclear reasons. The Executive should not put this entire system of administration of justice in peril by its sheer inaction and apathy. 93. The Executive should not put this entire system of administration of justice in peril by its sheer inaction and apathy. 93. In pre-independence era, one can understand that justice system was treated to be a handmade tool of British Rulers with an objective to continue to rule this country for as much period as possible and may be for all times to come, which failed by conscious and vigilant people of this country, but after enactment of Constitution, wherein justice, social, economic and political is one of the feature of our preamble of our Constitution, it is a pious obligation of the State to provide with utmost priority at its command, requisite infrastructure, working condition etc. whatever is necessary to strengthen justice system so as to deliver to the people at large with reasonable pace and expeditiousness. For a democracy, effective justice system constitutes one of its strongest pillars and if this strength is not kept at level plaing with others, it may imperil the very democracy. It is better that Executive should learn and understand it without any further delay. 94. To some extent, it is really commendable that After almost 35 years, State Legislature, in the above backdrop, realized expediency, urgency and necessity of having a provision like Section 438 Cr.P.C. in State of U.P. also but then the hurdle continue since one part of legislative process has not been completed. For this purpose the body in power is ruled by a different party and there may be some political or otherwise differences for which they do not find to approve provision of Section 438 Cr.P.C. as drafted and passed by State Legislature in 2010. 95. Learned Additional Solicitor General at one stage, though refrained from addressing this Court on merit, pointed out that draft provision in Amendment Bill, 2010 is different than Section 438 Cr.P.C. enacted by Parliament and therefore, Central Government find it difficult to get it approved. He also placed before this Court draft, prepared by Central Government’s office while placing the Bill for consideration by President of India which says that a similar draft was suggested by Law Commission in 2005 and Government wanted to adopt and enact Section 438 Cr.P.C. in more comprehensive manner but one section of lawyers in the State (in particular in State of Tamilnadu) opposed it and that is how Central Government deferred the Bill. It ignores that draft Bill in the State of U.P. has not incurred any reaction by any section. The people in different States may have different reasons to react in the same situation but that would not justify per se to disable a competent State Legislature from enacting particular provision which is otherwise within its legislative competence, to legislate and give effect thereto. This reason referred to in the note prepared by respective office of Central Government is clearly superfluous and contains a wholly unfounded reason. 96. An attempt was made before us to treat and argue pros and cons and consequences of Section 438 Cr.P.C. contained in Amendment Bill, 2010 but we refrain ourselves from making any further comments thereon since it is still in the field of legislation and therefore, it would not be proper for us to make any comments on the aforesaid provision on merits but approach of Central Government on this aspect and reasons assigned therein do not justify keeping it pending so as to continue logjam with regard to availability of provision of anticipatory bail to the litigating people of this State. At this point of time also, the Executive must visualize that their dilly dallying acts showing lack of concern for improvement of system of justice is costing heavy and hard on the entire system. The situation always go on changing. Therefore, consideration on a matter like this should be free from any angle of preconceived notions, convictions, bias and prejudices. It should be solely independent and in the larger welfare of people of this Country. 97. The discussion, we have made above, is only to show our anxiousness and also anguish in respect to a matter which otherwise ought to have been settled long back but may be due to difference of policies and political reason has not seen the day of solution and continue to cost heavily on the entire justice system of this State. It is true that mandamus in the form, as has been requested to be granted, due to judicial propriety and other reasons, may not be issued, but this is high time when we must put it on record that respondents should act in a more prudent, objective and reasonable manner but expeditiously so as to end deadlock created by keeping Amendment Bill, 2010 pending for the last almost more than one and a half years. 98. 98. With the above observations, directions and reasons, respondent Nos. 2 and 3 are requested to consider the matter in accordance with law and take appropriate decision accordingly but expeditiously. 99. The writ petition is disposed of in terms, as above. ——————