Allahabad HC grants anticipatory bail to builder afraid of catching Covid in jail

The Allahabad High Court on Monday observed that fear of death on account of reasons like the present pandemic is valid ground for grant of anticipatory bail.

A single-judge bench of Justice Siddharth passed this order while hearing a Criminal Misc. Anticipatory Bail Application U/S 438 filed by Prateek Jain.

The anticipatory bail application has been filed with a prayer to grant an anticipatory bail to the applicant, Prateek Jain, in Case under Section 420, 467, 468, 471, 506, 406 IPC, Police Station-Sihani Gate, District- Ghaziabad.

There are allegations against the applicant that he along with other co-accused persons is director of a builder company. The applicant applied for a flat being constructed by the company and paid Rs. 3,25,000 by cheque as booking amount. Thereafter, he took a loan and paid the total amount of Rs 27,27,875. He has not been given possession of flat.

The counsel for the applicant submitted that he is not the director of the builder company in dispute. He is only related to the other directors and hence he has been falsely implicated in this case. On account of demonetization and the slump caused in the real estate business, the present dispute arose.

Additional Government Advocate has opposed the prayer for anticipatory bail of the applicant. He submitted that in view of the seriousness of the allegations made against the applicant, he is not entitled to grant of anticipatory bail. The apprehension of the applicant is not founded on any material on record. Only on the basis of imaginary fear, anticipatory bail cannot be granted.

However, keeping in view the mandate of Section 438(5) Cr.P.C., which requires disposal of anticipatory bail application within 30 days and also considering the spread of second wave of novel coronavirus, the hearing of this bail application does not deserve to be adjourned in the larger interest of justice. Due to lack of proper technical support the cause of justice cannot be allowed to suffer.

After hearing the public prosecutor and the applicant’s counsel, the Court found that the section proceeds on the assumption that whenever an anticipatory bail application is filed before the Sessions Court or the High Court, it would be heard promptly and interim order shall be passed as per Section 438(2) Cr.P.C. Where the Court grants an interim order it shall cause a notice of application served on the public prosecutor as per Section 438(3) Cr.P.C granting him not less than 7 days time, to seek instruction.

The Court said that the law is a dynamic concept and it is required to be interpreted as per the requirements of time. With the change in the requirements of time, the interpretation and application of law is required to be adopted with change. The law of anticipatory bail is founded only on the apprehension of 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 survival of the accused.

The Court added,

“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.”

“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.

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 that the second wave has given rise to apprehension of death of an accused. 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.

“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 coronavirus, 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 observed.

The Court has held that the right to life guaranteed under Article 21 of the Constitution is paramount and by mere implication in a case of alleged commission of non-bailable offence, the right to life of an accused person cannot be put to peril.

“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 coronavirus to his life is minimized or eradicated and normal functioning of the Courts are restored,” the Court said.

The Court stated that 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 experts are of the view that the third wave is likely to come in the month of September, 2021 and it is uncertain when the normal functioning of the Court would be restored. In such uncertain times it would be against the requirement of Article 14 of the constitution of India, which provides equality before law and equal protection of law, to leave an accused unprotected from arrest and suffer the consequences of being infected with novel corona virus.

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, the Court hereby directed that the applicant, in case of his arrest, shall be enlarged on anticipatory bail for the limited period, till January 3, 2022 on the following conditions:-

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.The applicant shall not leave the country during the currency of trial/investigation by police without prior permission from the concerned trial Court.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;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.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;The applicant shall maintain law and order.

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“The anticipatory bail application is being allowed on account of special conditions and on special ground. The normal grounds, settled for the grant of anticipatory bail, have not been considered by the Court and it would be open for the applicant to approach the Court again, if so adviced, in changed circumstances,” the order said.
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