2021 (6) TMI 523 - HC - Indian Laws

COVID-19 Impact: Anticipatory Bail Granted with Conditions for Life Protection

The court granted anticipatory bail to the applicant under Section 438 Cr.P.C., considering the impact of the COVID-19 pandemic on the right to life. The ... Seeking grant of Anticipatory Bail - director of a builder company, a flat in which was failed to be delivered - HELD THAT:- There is no provision in the Rules of Court regarding filing and entertainment of anticipatory bail application - However all the anticipatory bail applications are being filed before this court in accordance with the provision of Chapter XVIII, Rule 18 of the Rules of Court after serving prior notice of the same on the Government Advocate. Therefore, the requirement of granting time to the Government Advocate to obtain instructions within seven days, where the Court grants an interim order in an anticipatory bail application, is not in the interest of speedy justice. Section 438(2) Cr.P.C provides for the conditions to be imposed while granting anticipatory bail in cases, the Court deems fit. However, the conditions are not exhaustive and leave it open for the Court to impose other conditions apart from the conditions given in the section aforesaid. Section 438(5) Cr.P.C., clearly provides that the application for grant of anticipatory bail shall be decided within 30 days of the filing of application. Section 438(7) provides that if an application for grant of anticipatory bail has been filed by any person before the High Court, no such application shall be entertained by the Sessions Court. Therefore, as per the doctrine of selection of remedies, when an application for grant of anticipatory bail is made to this Court, it expressely bars entertainment of the same by the Court of Session - Once a person has choosen to approach this Court praying for grant of anticipatory bail, by operation of law, his opportunity to approach the Sessions Court gets extinguished. Therefore, he incurs disadvantage by choosing to abdicate his remedy before the Court of Session. Where the statute clearly provides the option for choosing a remedy and the applicant chooses one such remedy he cannot be compelled to disclose reasons why he has choosen such a remedy, when the statute does not requires the same to be stated. 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. However, 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. The law presumes him to be innocent till the offence alleged against him is proved beyond doubt before the Competent Court - 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 Election Commission, the Higher Courts and the Government failed to fathom the disastrous consequences of permitting the elections in few States and the Panchayat elections in the State of Uttar Pradesh. The infection of novel corona virus, which had not reached the village population in its first wave of novel corona virus spread in the last year, has now spread to the villages. The State Government is having tough time in controling the spread of novel corona virus in urban areas and it would be very difficult to conduct the test, detect and treat the village population found suffering from novel corona virus. The State lacks preparation and resources for the same at present - Keeping in view the overall situation of the villages after the Panchayat elections large number of accused persons may be infected and their infection may not have been detected. 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, subject to conditions imposed. Issues Involved:1. Applicability of anticipatory bail under Section 438 Cr.P.C.2. Allegations against the applicant.3. Applicant's defense and opposition by the State.4. Impact of COVID-19 on the judicial process and the right to life.5. Legal precedents and statutory interpretations regarding anticipatory bail.6. Special conditions for granting anticipatory bail during the pandemic.Issue-wise Detailed Analysis:1. Applicability of anticipatory bail under Section 438 Cr.P.C.:The case involves an anticipatory bail application under Section 438 Cr.P.C. (U.P. Amendment). The court analyzed the provisions of Section 438, including the conditions and procedures for granting anticipatory bail. The court emphasized that the section assumes prompt hearing and interim orders, with final disposal within 30 days of the application.2. Allegations against the applicant:The applicant is accused in Case Crime No. 1906 of 2020 under Sections 420, 467, 468, 471, 506, 406 IPC. The allegations include that the applicant, along with co-accused, is a director of a builder company and has failed to deliver possession of a flat despite receiving substantial payments.3. Applicant's defense and opposition by the State:The applicant’s counsel argued that the applicant is not a director but related to other directors and has been falsely implicated due to business slumps caused by demonetization and the real estate market downturn. The State opposed the bail, citing the seriousness of the allegations and lack of material evidence supporting the applicant's apprehension of arrest.4. Impact of COVID-19 on the judicial process and the right to life:The court acknowledged the impact of the COVID-19 pandemic, particularly the second wave, on the judicial process and the right to life under Article 21 of the Constitution. The court noted that the pandemic has heightened the risk of death for accused individuals if arrested and detained, thereby justifying the need for anticipatory bail to protect their right to life.5. Legal precedents and statutory interpretations regarding anticipatory bail:The court referred to various legal precedents, including the Supreme Court's judgment in Gurubaksh Singh Sibbia vs. State of Punjab, which highlighted the discretionary nature of anticipatory bail. The court also discussed the case of Sushila Aggarwal vs. State (NCT of Delhi), reinforcing the discretionary power of courts in granting anticipatory bail based on case-specific facts and circumstances.6. Special conditions for granting anticipatory bail during the pandemic:Given the extraordinary circumstances of the COVID-19 pandemic, the court found that the apprehension of death due to the virus is a valid ground for granting anticipatory bail. The court directed that the applicant be granted anticipatory bail until January 3, 2022, with specific conditions to ensure compliance and prevent misuse of the bail.Conclusion:The court allowed the anticipatory bail application, emphasizing the need to protect the applicant's right to life during the pandemic. The bail was granted with several conditions, including restrictions on travel, maintaining law and order, and ensuring cooperation with the investigation. The court noted that the decision was based on special circumstances and did not consider the usual grounds for anticipatory bail, allowing the applicant to reapply if circumstances change.