Supreme Court Stays Allahabad High Court Order Which Held Apprehension Of Death Due To COVID A Ground For Anticipatory Bail

The Supreme Court on Tuesday stayed the Allahabad High Court Judgment which held that apprehension of death on account of reasons like the COVID pandemic is a valid ground for grant of anticipatory bail.

The Court ordered that this Allahabad High Court judgment should not be cited as a precedent for grant of anticipatory bail and that the Courts shall not rely on the observations in the High Court judgment while considering pre-arrest bail applications. The bench also appointed Senior Advocate V Giri as an amicus curiae to assist the Court on the larger issue whether COVID can be a ground for granting anticipatory bail.

A vacation bench comprising Justices Vineet Saran and BR Gavai stayed the order after hearing the submissions of Solicitor General Tushar Mehta, who appeared for the State of Uttar Pradesh.

"Kindly see the biodata of the accused. The entire judgment proceeds on the basis that COVID is a ground to grant anticipatory bail", SG said.

The applicant is a serial criminal with more that 130 criminal cases against him, the Solicitor added.

The Solicitor pressed for staying the observations in the High Court order. The SG said that the High Court observations are being widely cited to seek anticipatory bail in other cases.

"If he is on bail in 130 cases, why not in the 131st case?", the bench observed, after commenting that the applicant must be on bail to seek pre-arrest bail in the present case.

The Solicitor General urged again that the High Court's 'sweeping observations' should be stayed.

Following that the bench ordered :

"Issue notice returnable in first week of July. In case the respondent does not appear on the next date, we will consider cancellation of the anticipatory bail as well as stay of the order. It is being pointed out that larger issues are involved in the case as sweeping directions have been given by the High Court regarding grant of bail in COVID circumstances.

"The directions concerned, they remain stayed. The Courts may not consider the observations while considering bails and they shall consider the case on facts and circumstances", the bench said in the order

"We will appoint Shri V. Giri as amicus. Documents to be supplied to him within three days", the bench added.

The State of Uttar Pradesh had moved the Supreme Court challenging the order of the Allahabad High Court wherein anticipatory bail was granted on the ground of apprehension of death on account of the COVID-19 pandemic.

On 10th May, the Allahabad High Court had observed that apprehension of death on account of reasons like the present pandemic is a valid ground for grant of anticipatory bail.

The Order was passed by a Single Bench of Justice Siddharth while hearing an anticipatory bail application of one Prateek Jain, apprehending death due to Covid-19 on account of probable arrest.

The Court stated that the inadequate medical facilities in the State may leave the accused persons unprotected from the threat to their life on account of arrest as per the normal procedure applicable in normal times. It opined that extraordinary times require extraordinary remedies and the law should be interpreted likewise.

Justice Siddharth further observed 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.

"Only when the accused would be protected from apprehension of death the apprehension of his arrest would arise. Article 21 of the Constitution of India provides for protection of life and personal liberty of every citizen of the country. The 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 judge observed.

The Court opined that if the accused 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.

"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 Bench observed.

It emphasized that it is only when the accused would be alive he would be subjected to the normal procedure of law of arrest, bail and trial.

"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 Court observed.

Click Here To Download/Read Order