Anadi Tewari
In a significant verdict, the Allahabad High Court on Monday (May 10) has allowed an anticipatory bail application on the grounds of apprehension of death of the applicant due to the COVID-19 pandemic if he gets arrested and detained.
“If an accused dies on account of the reasons beyond his control when he could have been protected from death by the Court, the grant or refusal of anticipatory bail to him would be an exercise in futility. Hence, the apprehension of death on account of reasons like the present pandemic of novel coronavirus can certainly be held to be a ground for grant of anticipatory bail to an accused, the Court observed.
The single-judge bench of Justice Siddharth has allowed an anticipatory bail application taking in note that the second wave of the COVID-19 pandemic will certainly give rise to an apprehension of the death of the applicant.
“Keeping view the inadequate medical facilities for treating the large number of persons getting infected day by day, common accused cannot be left unprotected from the threat to his life on account of his arrest by police or surrender before the Court as per the normal procedure applicable to accused persons in normal times”, the Court remarked.
Background of the Case
The Court was hearing an instant anticipatory bail application of one Prateek Jain which has been filed with a prayer to grant anticipatory bail to the applicant, in Case Crime No. 1906 of 2020 under Section 420, 467, 468, 471, 506, 406 of the Indian Penal Code, 1860.
There are allegations against the applicant that he along with other co-accused persons is the director of a builder company. The applicant applied for a flat being constructed by the company and paid Rs. 3,25,000/- by means of a cheque as the booking amount. Thereafter he took a loan and paid the total amount of Rs. 27,27,875/-. He has not been given possession of the flat.
Observation of the Court
The Court went on to observe that this an uncertain and extraordinary pandemic situation that calls for extraordinary measures as well and by virtue of the same the law in the statute books should be interpreted.
“The established parameters for grant of anticipatory bail like the nature and gravity of the accusation, the criminal antecedent of the applicant, the possibility of fleeing from justice and whether the accusation has been made for injuring and humiliating the applicant by getting him arrested have now lost significance on account of the present situation of the country and the State on account of the spread of the second wave of novel coronavirus”, the single-judge bench observed.
Importance of ‘Life’ under Article 21
The Court stated that the protection of life is more important than the protection of personal liberty of a citizen and unless the right to life is protected the right to personal liberty would be of no consequence.
“The right to life guaranteed under Article 21 of the Constitution of India is paramount and by mere implication in a case of the alleged commission of the non-bailable offence, right to life of an accused person can not be put to peril,” the Court observed.
Emphasizing the importance of Article 21 under these uncertain circumstances, the Court stated that an accused who has not been subjected to trial and not even a police investigation has been completed against him in many cases, cannot be compelled to surrender and obtain regular bail in the current circumstances.
The Allahabad High Court further referred to the recent Supreme Court order in Kerala Union of Working Journalists vs. Union of India and Others [Writ Petition (CRL) No. 307 of 2020] where the Supreme Court has held that the fundamental right to life unconditionally embraces even an undertrial.
“The law is a dynamic concept and it is required to be interpreted as per the requirements of the time. With the change in the requirements of time, the interpretation and application of the law is required to be adopted with change. The law of anticipatory bail is founded only on the apprehension of the arrest. The apprehension may be of pre-recording or post-recording stage of the FIR. However, the pre-requisite condition of apprehension of arrest is the survival of the accused. Only when the accused would be protected from apprehension of death the apprehension of his arrest would arise,” the Court further observed.
Over-Crowded Prisons
The High Court further took note of the concern of the Supreme Court over-crowding of jails in this uncertain contagious pandemic and that if this application is rejected then it could result in over-crowding of jails again and would be quite paradoxical.
This Court has relied on a Supreme Court case of Suo Motu Writ Petition (C) No. 1/2020 In Re: Contagion of COVID-19 Virus in Prisons where the top court has directed measures of de-congestion of prisons on account of threat of the spread of COVID-19 disease.
On account of rejection of bail, the accused may get infected with COVID-19 in the prison
The Court took note of the fact that the second wave of this COVID-19 pandemic has given rise to an apprehension of death of an accused.
Keeping in view the inadequate medical facilities for treating the large number of persons getting infected day by day, the common accused cannot be left unprotected from the threat to his life on account of his arrest by police or surrender before the Court as per the normal procedure applicable to accused persons in normal times.
“During the compliance of procedures provided under Cr.P.C. or any special act, an accused will definitely come in contact with a number of persons. He will be arrested by police, confined in lock-up, produced before the Magistrate and if his bail application is not granted promptly, he will be sent to jail for an indefinite period till his bail is granted by the Higher Court. The accused may be suffering from the deadly infections of coronavirus, or police personnel, who have arrested him, kept him in lock-up, produced him before the Magistrate and then took him to jail may also be infected persons. Even in jail, a large number of inmates have been found to be infected,” the Court concerningly observed.
There is no proper testing, treatment and care of the persons confined in jail, the Court further went on to remark.
“The apprehension of an accused being infected with novel coronavirus before and after his arrest and the possibility of his spreading the same while coming into contact with the police, Court and jail personnel or vice-versa can be considered to be a valid ground for grant of anticipatory bail to an accused,” the bench stated while allowing the anticipatory bail application.
“The Election Commission, the Higher Courts and the Government failed to fathom the disastrous consequences of permitting the elections in few States and the Panchayat elections in the State of Uttar Pradesh. The infection of the novel coronavirus, which had not reached the village population in its first wave of novel coronavirus spread in the last year, has now spread to the villages.
The State Government is having a tough time controlling the spread of the novel coronavirus in urban areas and it would be very difficult to conduct the test, detect and treat the village population found suffering from novel coronavirus. The State lacks preparation and resources for the same at present,” the Allahabad High Court held while granting bail to the applicant.
Case: Prateek Jain v. State of U.P. and Others [CRIMINAL MISCELANEOUS ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. 4002 of 2021]