Fear of death due to Covid ground for anticipatory bail; established parameters for grant of pre-arrest bail not relevant: Allahabad High Court

Apprehension of death on account of reasons like the present COVID-19 can be a ground for grant of anticipatory bail to an accused, the Allahabad High Court held on Monday (Prateek Jain v. State of Uttar Pradesh)..A single-judge Justice Siddharth observed that presently the State lacks preparation and resources to tackle Covid-19 and hence a person arrested is at risk of contracting the virus. ."Apprehension of an accused being infected with novel corona virus 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 Court ruled. .Extraordinary times require extraordinary remedy and law should also be interpreted in a manner which is in tune with the desperate times, the Court added. "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 made it clear. .The anticipatory bail application was filed by one, Prateek Jain, who was charged under Sections 420, 467, 468, 471, 506 and 406 of the Indian Penal Code..The applicant along with other co-accused persons were directors of a builder company. A person had applied for a flat which was being constructed by the company. He paid Rs. 3,25,000 as advance and subsequently took a loan and paid a total amount of Rs. 27,27,875. It was his allegation despite making payments, he was not given possession of the flat. The counsel for the applicant submitted that he was falsely implicated in the case and that he was not the director of the builder company in dispute, as was made out. He was only related to the other directors, it was contended. On the other hand, Additional Government Advocate opposed the plea and submitted that in view of the seriousness of the allegations, the applicant should not be granted anticipatory bail. .The Court proceeded to discuss the relevant provisions relating to anticipatory bail under the Criminal Procedure Code, emphasising the 2019 amendment in Uttar Pradesh, which re-introduced anticipatory bail in the State. ."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."Allahabad High Court.The Court also proceeded to examine the various parameters laid down for grant of anticipatory bail."However, the legislature was conscious of the fact that no straight jacket formula can be prescribed for grant of anticipatory bail to an accused therefore under Section 438(1) CrPC, it provided that the Court may, after taking into consideration, “inter alia”, the conditions given in Sections 438(1), (i), (ii), (iii) and (iv) CrPC for grant or rejection of anticipatory bail application," the order said. Therefore, court can exercise its discretion regarding grant or rejection of anticipatory bail, the High Court said. .The Court also examined the scope of Article 21 which provides for right to life and right to personal liberty. In this regard, it held that protection of life is more important than the protection of personal liberty of a citizen. Unless the right to life is protected the right to personal liberty would be of no consequence, the Court opined. "It is clear that the right to life is more precious and sacrosanct than the right to personal liberty which is sought to be protected by way of grant of anticipatory bail to an accused by the Court. If the right to life is not protected and permitted to be violated or imperiled, the right to personal liberty, even if protected by the Court, would be of no avail. 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," the order said.Hence, the apprehension of death on account of reasons like the present pandemic of novel corona virus can certainly be held to be a ground for grant of anticipatory bail to an accused, it ruled..In the instant case, the Court noted that if the applicant is arrested, there would be serious risk of him getting infected by COVID since during the compliance with procedures provided under CrPC 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 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 noted. .The Court adverted to the instance of Kerala journalist Siddique Kappan contracting COVID. "In view of arrestee in that case being a journalist, the matter was raised before the Hon'ble Supreme Court when he was found to be suffering from Corona virus infection and other ailments. Hon'ble Supreme Court directed the arrestee journalist to be transferred to the hospital at Delhi from the hospital at Mathura for proper medical treatment. Number of such arrestees are there who are suffering from the deadly infection of novel corona virus but they cannot approached the Court on account of limitations of resources," the order noted. .The Court, therefore, held that normal parameters for grant of anticipatory bail are no longer relevant for the time being. "The conventional and well settled grounds for grant of anticipatory bail to an accused implicated for alleged commission of non-bailable offence can be considered after the normal conditions in the society and the courts are restored then the anticipatory bail application of the accused persons shall be considered on ordinary parameters like in ordinary times," the order stated. .It, therefore, allowed the plea holding that fear of contracting COVID is a valid ground for grant of anticipatory bail during pandemic times. ."In view of the above facts and circumstances and after finding that the apprehension to life in the current scenario is a ground for grant of anticipatory bail to an accused, this Court hereby directs that the applicant, in case of his arrest, shall be enlarged on anticipatory bail for the limited period, till 03 of January, 2022," the order said. .[Read Order]