SC stays Allahabad HC observations granting anticipatory bail over fear of death due to COVID

The Supreme Court Tuesday stayed “sweeping” directions issued by Allahabad High Court, which had granted anticipatory bail to an accused in a cheating case observing that apprehension of death due to COVID-19 infection can be a valid ground for granting the relief. The top court said that courts shall not consider the directions issued by the High Court on May 10 for grant of anticipatory bail to accused in other cases.

A vacation bench of Justices Vineet Saran and B R Gavai said, “sweeping directions have been made, we therefore direct the same to be stayed and the courts shall not consider the directions to grant anticipatory bail to accused in other cases and must consider merits of each case”.

The bench appointed senior advocate V Giri, as amicus curiae in the matter to assist it on the larger aspect whether COVID can be a ground for grant of anticipatory bail.

The top court was hearing an appeal filed by the Uttar Pradesh government challenging the High Court order of May 10.

Solicitor General Tushar Mehta, appearing for the Uttar Pradesh government said that this accused (Prateek Jain), who was granted anticipatory bail till January 2022, has 130 cases pending against him.

He said that this order has been relied on in many other cases in which the accused have been seeking anticipatory bail.

The bench said, “We understand that you are aggrieved with the sweeping directions passed by the court. We will issue notice in the matter”.

The top court sought reply from Jain and said if he does not appear on the next date of hearing it may consider cancellation of his bail.

It listed the matter for further hearing on first week of July.

On May 18, the top court had agreed to hear the appeal filed by the state government.

The high court had on May 10 said, “If an accused dies on account of the reasons beyond 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. Hence, an apprehension to 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 had directed that in case of his arrest, Jain shall be enlarged on anticipatory bail for the limited period till January 3, 2022.

It had observed that “extraordinary times require extraordinary remedies and desperate times require remedial remedies”.

“Therefore, the apprehension of an accused being infected with novel coronavirus 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,” it had said.

The high court had imposed conditions including that the petitioner shall not obstruct or hamper police investigation and shall not leave the country without prior permission from the trial court concerned.

It had said that the Supreme Court recently passed several directions to decongest prisons across India amid the COVID-19 pandemic.

“The observations and directions of the apex court show concern about the overcrowding of jails, and in case this court, ignoring the same, passes an order which will result in overcrowding of jails again, it would be quite paradoxical,” it had said.

“Counsel for the state has not given any assurance of protection of the accused persons, who are in jail and may be sent to jail, regarding their protection from contracting the infection of novel coronavirus,” it had observed.