"Would Like To Hear Respondent-Accused": SC Asks UP To File Rejoinder In Challenge Against Bail On The Ground Of Apprehension Of Death Due To COVID

Noting that the respondent-accused has filed a counter affidavit in the SLP by the state of UP, which prefers a challenge to the grant of anticipatory bail, the Court asked SG Tushar Mehta to file a rejoinder within 10 days. The Court expressed that it would like to hear the respondent-accused before taking the final call.

The bench of Justices Vineet Saran and Dinesh Maheshwari was hearing the SLP by the state of UP against the May order of the Allahabad High Court where the Single Judge, after finding that the apprehension to life in the current scenario is a ground for grant of anticipatory bail to an accused, directed that the applicant before it (an accused under Section 420, 467, 468, 471, 506, 406 of the IPC), in case of his arrest, shall be enlarged on anticipatory bail for the limited period, till January 3, 2022.

On Thursday, the SG, for the state of UP, reiterated that the Court set aside the anticipatory bail considering it was granted solely on the ground of COVID.

"The only ground for the grant of anticipatory bail was the likelihood of death on account of the COVID pandemic. The High Court was not examining the merits. Your Lordships may consider setting aside the order on this ground alone. And let the High Court go into the merits", he urged.

The SG advanced that Senior Advocate V. Giri, appointed Amicus Curiae in the matter, also agrees that apprehension of death due to the COVID pandemic cannot be the ground for anticipatory bail.

The SG continued to submit that all COVID-related issues are being taken care of-

"Last year, Court 1 of the Supreme Court had directed the constitution of committees in High Courts comprising of a judge, the Principal Secretary and the DG (Prisons) to determine who (among the prisoners) should be preferred (for release on interim bail or parole amid the pandemic). These committees have laid down guidelines and this should be left to them."

Finally, he said that he wishes to make certain other suggestions regarding  the instant issue 'dispassionately, regardless of the fact that he is appearing for the government' , and that he has certain reservations about the suggestions circulated by the Amicus also.

When the bench observed that the SG should have already filed the response to the Amicus' suggestions, the SG said,

"We had thought that the matter would be resolved by the aforesaid suggestion (of the court setting aside the anticipatory bail on the ground that it was granted solely on account of the COVID pandemic and letting the High Court decide the issue on merits.)"

"The matter has pan-India ramifications", stressed the SG.

"Of course, it has pan-India ramifications! But here, we are also concerned with how far the court can go in anticipatory bail matters. The law is settled to some extent...here, we may consider the question whether the anticipatory bail was rightly granted or not...You have made a challenge to the grant of anticipatory bail. The respondent has filed a detailed counter. Now you file your rejoinder", noted Justice Saran.

To that observation, Justice Maheshwari added the following:

"The other issue about prisons and how to deal with inmates is different. Here, the matter is anticipatory bail, it is confined predominantly and basically to anticipatory bail. From the beginning it has been made clear that the only and only reason which prevailed with the High Court was COVID as a health hazard and the fear of death...The respondent is also here. We would like to hear him also before taking the final call..."

The bench then proceeded to dictate its order, granting 10 days to the state of UP to file its rejoinder and the response to the suggestions by the Amicus.

SG Tushar Mehta on Tuesday urged the Supreme Court to set aside the order of the Allahabad High Court granting anticipatory bail to an alleged "conman" till January, 2022 on the ground of apprehension of death on account of the COVID pandemic.

On Tuesday, the SG, appearing for the state of UP, prayed that the bench "set aside the anticipatory bail as it was granted only on the ground of COVID", urging that then the trial court can hear the issue on merits.

The SG had then pleaded,

"Here, the sole ground on which the anticipatory bail was granted was COVID. That a person may die because of COVID cannot be a ground for bail! This will otherwise apply across the state and pan-India! Whatever COVID-related issues were there, they have been taken up by the Supreme Court for consideration in its suo motu matter and the court has dealt with them. Your Lordships may set aside the anticipatory bail and then the trial court can hear on merits."

The state of UP had moved the Supreme Court challenging this order of the Allahabad High Court, with the SG mentioning the matter on May 18 before a vacation bench headed by Justice Saran, submitting that the accused was a "conman" and had been granted anticipatory bail solely on the basis of COVID-19.

On May 25, the Supreme Court had recorded that it has been pointed out by the SG that the larger issue is involved in this matter, as various directions have been issued by the High Court with regard to grant of bail in the present COVID situation.

The Supreme Court had then directed that as far as the general observations and directions in the impugned order are concerned, the same shall remain stayed and the Courts shall not consider the said directions while considering other application for anticipatory bail, which shall be decided on the merit of each case, and not on the basis of observations made in the impugned order.

Issuing notice on the SLP, the Court had said on May 25 that in case the respondent does not appear on the next date of hearing, it shall be considered to be a good ground for cancellation of anticipatory bail granted to him by the High Court.

"Kindly see the biodata of the accused. The entire judgment proceeds on the basis that COVID is a ground to grant anticipatory bail. The applicant is a serial criminal with more that 130 criminal cases against him", SG had said.I

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

The SG had urged again that the High Court's 'sweeping observations' should be stayed which, he had said, were being widely cited to seek anticipatory bail in other cases.

Proceedings before the High Court

The impugned 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.