All HC| “Right to life of an accused person can not be put to peril”; Apprehension of being infected with COVID-19 after coming into contact with authorities a valid ground for anticipatory bail

Allahabad High Court: When one Prateek Jain approached the High Court seeking anticipatory bail on the apprehension of death due to COVID-19 virus, Siddharth, J has granted anticipatory bail “on account of special conditions and on special ground”.

“… the apprehension of an accused being infected with novel corona virus before and after his arrest and the possibilty of his spreading the same while coming into contact with the police, Court and jail personnels or vice-versa can be considered to be a valid ground for grant of anticipatory bail to an accused.”

The applicant had contended that if he is arrested and subjected to the subsequent procedures of detention in lock-up, production before the Magistrate, grant or rejection of bail or incarceration in jail, etc., the apprehension to his life will certainly arise.

In such circumstances, the Court noticed that during the compliance of procedures provided under Cr.P.C. or any special act, an accused will definitely come in contact with 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 corona virus, or police personnels, 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 large number of inmates have been found to be infected. There is no proper testing, treatment and care of the persons confined in jails.”

The Court also took note of Supreme Court’s order on limiting the arrests and releasing prisoners to decongest the overcrowded prisons and said that in case this Court, ignoring the same, passes order which will result in overcrowding of jails again it would be quite paradoxical.

“The right to life guaranteed under Article 21 of the Constitution of India is paramount and by mere implication in a case of alleged commission of non-bailable offence, right to life of an accused person can not be put to peril.”

The Court said that the allegations may be serious against an accused but the presumption of innocence in his favour cannot be dispelled only on the basis of the allegation. An accused who has not been subjeced to trial and not even police investigation has been completed against him in many cases, cannot be compelled to surrender and obtain regular bail in the current circumstances.

Even in cases where the police report has been submitted under Section 173(2) Cr.P.C., and summons/ warrants have been issued against him, such an accused is also required to be protected till the threat of novel corona virus to his life is minimized or eradicated and normal functioning of the Courts are restored.

Hence, keeping in 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 went on to say that,

“The established parameters for grant of anticipatory bail like the nature and gravity of accusation, the criminal antecedent of the applicant, the possibility of fleeing from justice and whether accusation has been made for injuring and humiliating the applicant by getting him arrested have now lost significance on account of present situation of the country and the State on account of spread of second wave of novel corona virus.”

The Court noticed that while the informant/ complainant may take objection to the relief being granted to the applicant and may be dissatisfied from the observations made in this judgment in favour of accused, they should not lose sight of the fact that only when the accused would be alive he would be subjected to the normal procedure of law of arrest, bail and trial.

“… now the situation has arisen which calls for protection of an accused from infection of novel corona virus and death till the police investigation and, if required, trial is concluded against him. This Court is only granting limited protection to the applicant in view of the mandate of Articles 14 and 21 of the constitution of India. The only remedy available to the person who is implicated for commission of non-bailable offence, against his arrest, is to resort to the remedy of anticipatory bail and it can be granted to an accused on the consideration that the situation at present is not conducive to his subjection to normal procedure of arrest and bail provided under the Criminal Procedure Code.”

The Court, hence, allowed, anticipatory bail to the accused for the limited period, till 03 of January, 2022 on the following conditions:-

  1. The applicant shall, at the time of execution of the bond, furnish his address and mobile number and shall not change the residence till the conclusion of investigation/ trial without informing the Investigating Officer of the police/ the Court concerned of change of address and the reasons for the same before changing the same.
  2. The applicant shall not leave the country during the currency of trial/investigation by police without prior permission from the concerned trial Court.
  3. The applicant shall not obstruct or hamper the police investigation and not play mischeif with the evidence collected or yet to be collected by the Investigating Officer of the police;
  4. The applicant shall surrender his passport, if any, to the concerned Court/Investigating Officer forthwith. His passport will remain in custody of the concerned Court/ Investigating Officer till the investigation is completed. In case he has no passport, he will file his affidavit before the Court/ Investigating Officer concerned in this regard.
  5. That the applicant shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade his from disclosing such facts to the Court or to any police officer;
  6. The applicant shall maintain law and order.
  7. The applicant shall file an undertaking to the effect that he shall not seek any adjournment before the trial court on the dates fixed for evidence and when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law to ensure presence of the applicant.
  8. In case, the applicant misuses the liberty of bail, the Court concerned may take appropriate action in accordance with law and judgment of Apex Court in the case of Sushila Aggarwal vs. State (NCT of Delhi)- 2020 SCC Online SC 98 and the Government Advocate/informant/complainant can file bail cancellation application.
  9. The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court, default of this condition is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of her bail and proceed against him in accordance with law.
  10. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
  11. The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
  12. The applicant is warned not to get himself implicated in any crime and should keep distance from the informant and not to misuse the liberty granted hereby. Any misuse of liberty granted by this Court would be viewed seriously against the applicant in further proceedings.

[Prateek Jain v. State of UP, 2021 SCC OnLine All 303, order dated 10.05.2021]

Counsel for Applicant :- Avnish Kumar Srivastava,Priyanka Sharma

Counsel for Opposite Party :- G.A.,Vidya Prakash Singh

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