“Courts Should Grant Anticipatory Bail On Merits And Not On Observations Made In The Order”: SC Stays Observations In Allahabad HC Order Granting Anticipatory Bail In Midst Of Spread Of CoVID

The Supreme Court today stayed the observations passed by the Allahabad High Court bench of Justice Siddhartha granting anticipatory bail to a conman till January, 2022 on the ground of spread of CoVID in the State of UP.

“It is being pointed out that larger issues are being pointed out. Directions have been issued in regards to grant of bail. As far as other observations are concerned, we direct that the same may be stayed & the court shall not consider the observations. Anticipatory bail should be granted on the merits of the case & not based on the observations.”, the Court observed. 

SGI Tushar Mehta appearing for the State of Uttar Pradesh while pointing out to the fact that 130 cases had already been registered against the accused requested for grant of stay against the order.

The bench of Justice Vineet Saran and Justice BR Gavai thereafter while issuing notice and not granting stay said, “Issue notice. It is made clear that if in case the accused doesn't appear we may consider staying the order of anticipatory bail.”

Since the matter was of a larger public interest & assuming that the accused would not come forward, the Court appointed Senior Advocate V Giri as the amicus in the matter.

The Court had issued notice in an appeal filed by the State of UP against an order dated May 10, 2021 in which the Allahabad High Court while granting bail had observed that, “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. 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. 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 Allahabad High Court also observed that, “The second wave of novel coronavirus 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 a 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, a large number of inmates have been found to be infected. There is no proper testing, treatment and care of the persons confined in jails.”