# Prateek Jain v. State of U.P. & Ors

- **Citation:** (2021) 7 ILRA 259
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-05-10
- **Case number:** Crl. Misc. Anticipatory Bail Application No. 4002 of 2021
- **Bench:** Siddharth
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prateek-jain-v-state-of-u-p-ors-47083
- **Pages:** 13

## Headnote

(A) Criminal Law - Code of criminal
procedure,
1973
-
Section
438
-
anticipatory bail - Sections 438(1), (i), (ii),
(iii) and (iv) Cr.P.C - "inter alia" - grant
liberty to the Court to exercise its
discretion in a particular case according to
the facts and circumstances of the case,
regarding
grant
or
rejection
of
anticipatory bail - Indian Penal Code,
1860 - Section 420, 467, 468, 471, 506,
406 - 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.
(Para
-
17,20)

(B) Criminal Law - Constitution of india -
Article 21 - protection of life and personal
liberty - 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 - apprehension of
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 -
law of anticipatory bail is founded only on
the apprehension of arrest - apprehension
may be of pre-recording or post-recording
stage of the FIR.(Para - 23)

(C) Criminal Law - Constitution of india-
Article 14 - equality before law and
equal protection of law - against the
requirement of Article 14 to leave an
accused unprotected from arrest and
suffer
the
consequences
of
being
infected with novel corona virus.(Para -
31)

Allegations against the applicant - he along
with other co-accused persons is director of a
builder company - applicant applied for a flat
being constructed by the company - paid Rs.
3,25,000/- by means of a cheque as the
booking amount - possession of flat not given
- second wave of novel corona virus has given
rise
to
apprehension
of
death
of
an
accused.(Para - 5,24)

HELD:- The apprehension of an accused
being infected with novel corona virus before
and after his arrest and the possibilty of his
spreading the same while coming into contact
with the police, Court and jail personnels or
vice-versa can be considered to be a valid
ground for grant of anticipatory bail to an
accused.(Para -31)

Anticipatory bail application allowed. (E6)

List of Cases cited:

## Text

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7 All. Prateek Jain Vs. State of U.P. & Ors.
259
(2021)07ILR A259
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.05.2021

BEFORE

THE HON'BLE SIDDHARTH, J.

Crl. Misc. Anticipatory Bail Application No. 4002
of 2021

Prateek Jain ...Applicant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Applicant:
Sri Avnish Kumar Srivastava, Sri Priyanka
Sharma

Counsel for the Opposite Parties:
A.G.A., Sri Vidya Prakash Singh

(A) Criminal Law - Code of criminal
procedure,
1973
-
Section
438
-
anticipatory bail - Sections 438(1), (i), (ii),
(iii) and (iv) Cr.P.C - "inter alia" - grant
liberty to the Court to exercise its
discretion in a particular case according to
the facts and circumstances of the case,
regarding
grant
or
rejection
of
anticipatory bail - Indian Penal Code,
1860 - Section 420, 467, 468, 471, 506,
406 - 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.
(Para
-
17,20)

(B) Criminal Law - Constitution of india -
Article 21 - protection of life and personal
liberty - 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 - apprehension of
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 -
law of anticipatory bail is founded only on
the apprehension of arrest - apprehension
may be of pre-recording or post-recording
stage of the FIR.(Para - 23)

(C) Criminal Law - Constitution of india-
Article 14 - equality before law and
equal protection of law - against the
requirement of Article 14 to leave an
accused unprotected from arrest and
suffer
the
consequences
of
being
infected with novel corona virus.(Para -
31)

Allegations against the applicant - he along
with other co-accused persons is director of a
builder company - applicant applied for a flat
being constructed by the company - paid Rs.
3,25,000/- by means of a cheque as the
booking amount - possession of flat not given
- second wave of novel corona virus has given
rise
to
apprehension
of
death
of
an
accused.(Para - 5,24)

HELD:- The apprehension of an accused
being infected with novel corona virus before
and after his arrest and the possibilty of his
spreading the same while coming into contact
with the police, Court and jail personnels or
vice-versa can be considered to be a valid
ground for grant of anticipatory bail to an
accused.(Para -31)

Anticipatory bail application allowed. (E6)

List of Cases cited:

1. Gurubaksh Singh Sibbia, etc., Vs St. of Punj,
1980 AIR 1632

2. Sushila Aggarwal Vs St. (NCT of Delhi), 2020
SCC Online SC 98

3. Kerala Union of Working Journalists Vs U.O.I
& ors., Writ Petition (CRL) No. 307 of 2020

4. Suo Motu Writ Petition (C) No. 1/2020 In Re:
Contagion of Covid 19 Virus in Prisons
260 INDIAN LAW REPORTS ALLAHABAD SERIES
5. Sushila Aggarwal Vs St. (NCT of Delhi)- 2020
SCC Online SC 98

(Delivered by Hon'ble Siddharth, J.

1.

As
per
Resolution
dated
07.04.2021 of the Committee of this Court
for the purpose of taking preventive and
remedial measures and for combating the
impending threat of Covid-19, this case is
being heard by way of virtual mode.

2.

Heard
Sri
Avnish
Kumar
Srivastava,
learned
counsel
for
the
applicant and learned A.G.A for State
through video conferencing.

3. The instant anticipatory bail
application has been filed with a prayer to
grant an anticipatory bail to the applicant,
Prateek Jain, in Case Crime No. 1906 of
2020 under Section 420, 467, 468, 471,
506, 406 IPC, Police Station- Sihani Gate,
District- Ghaziabad.

4. Prior notice of this bail application
was served in the office of Government
Advocate and as per Chapter XVIII, Rule
18 of the Allahabad High Court Rules and
as per direction dated 20.11.2020 of this
Court in Criminal Misc. Anticipatory Bail
Application U/S 438 Cr.P.C. No. 8072 of
2020, Govind Mishra @ Chhotu Versus
State of U.P., hence, this anticipatory bail
application is being heard. Grant of further
time to the learned A.G.A as per Section
438 (3) Cr.P.C. (U.P. Amendment) is not
required.

5. There are allegations against the
applicant that he along with other coaccused 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 means of a cheque as the
booking amount. Thereafter he took loan
and paid total amount of Rs. 27,27,875/-.
He has not been given possession of flat.

6. Learned counsel for the applicant
submits 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 demonitization and the slump
caused in the business of real estate the
present dispute arose. The informant has
remedy under the Real Estate (Regulation
and Development) Act, 2016.

7. Learned A.G.A. has opposed the
prayer for anticipatory bail of the applicant.
He has submitted that in view of the
seriousness of the allegations made against
the applicant, she 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.

8. Since the application has been
heard through video conferencing and the
connectivety was not very good, the Court
could not gather the complete submissions
raised at the Bar. 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 corona virus, the hearing of this bail
application does not deserves 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.

9. After considering the rival
contentions, this Court before proceeding
further, considers it appropriate to go
through the Section 438 Cr.P.C, U.P.
Amendment of 2019, which is as follows:-
7 All. Prateek Jain Vs. State of U.P. & Ors.
261

"438. Direction for grant bail to
person apprehending arrest.--(1) Where
any person has reason to believe that he
may be arrested on accusation of having
committed a non-bailable offence, he may
apply to the High Court or the Court of
Session for a direction under this section
that in the event of such arrest he shall be
released on bail; and that Court may, after
taking into consideration, inter alia, the
following factors, namely--

(i) the nature and gravity of the
accusation;

(ii)
the
antecedents
of
the
applicant including the fact as to whether
he has previously undergone imprisonment
on conviction by a Court in respect of any
cognizable offence;

(iii)
the
possibility
of
the
applicant to flee from justice; and

(iv) where the accusation has
been made with the object of injuring or
humiliating the applicant by having him so
arrested;

either
reject
the
application
forthwith or issue an interim order for the
grant of anticipatory bail:

Provided that where the High
Court or, as the case may be, the Court of
Session, has not passed any interim order
under this sub-section or has rejected the
application for grant of anticipatory bail, it
shall be open to an officer in-charge of a
police station to arrest, without warrant,
the applicant on the basis of the accusation
apprehended in such application.

(2) Where the High Court or, as
the case may be, the Court of Session,
considers it expedient to issue an interim
order to grant anticipatory bail under subsection (1), the Court shall indicate therein
the date, on which the application for grant
of anticipatory bail shall be finally heard
for passing an order thereon, as the Court
may deem fit, arid and if the Court
passes any order granting anticipatory
bail, such order shall include inter alia the
following conditions, namely-

(i) that the applicant shall make
himself available for interrogation by a
police officer as and when required;

(ii) 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 him from disclosing such
facts to the Court or to any police officer,

(iii) that the applicant shall not
leave India without the previous permission
of the Court; and

(iv) such other conditions as may
be imposed under sub-section (3) of Section
437, as if the bail were granted under that
section.

Explanation.--The
final
order
made on an application for direction under
sub-section (1); shall not be construed as
an interlocutory order for the purpose of
this Code.

(3) Where the Court grants an
interim order under sub-section (1), it shall
forthwith cause a notice being not less than
seven days notice, together with a copy of
such order to be served on the Public
Prosecutor and the Superintendent of
Police, with a view to give the Public
Prosecutor a reasonable opportunity of
being heard when the application shall be
finally heard by the Court.

(4) On the date indicated in the
interim order under sub-section (2), the
Court shall hear the Public Prosecutor and
the applicant and after due consideration
of their contentions, it may either confirm,
modify or cancel the interim order.

(5) The High Court or the Court
of Session, as the case may be, shall finally
dispose of an application for grant of
262 INDIAN LAW REPORTS ALLAHABAD SERIES
anticipatory bail under sub-section (1),
within thirty days of the date of such
application;

(6) Provisions of this section
shall not be applicable,--

(a) to the offences arising out of,-
-

(i)
theUnlawful
Activities
(Prevention) Act, 1967;

(ii) the Narcotic Drugs and
Psychotropic Substances Act, 1985;

(iii) the Official Secret Act, 1923;

(iv) the Uttar Pradesh Gangsters
and Anti-Social Activities (Prevention) Act,
1986.

(b) in the offences, in which death
sentence can be awarded.

(7) If an application under this
section has been made by any person to the
High Court, no application by the same
person shall be entertained by the Court of
Session."

10. A perusal of the aforesaid
provisions re-enacted in the Cr.P.C in the
State of Uttar Pradesh in the year 2019
regarding the grant of anticipatory bail, this
Court finds 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.
After
affording
opportunity of hearing to the public
prosecutor, the application shall be heard
by the Court. After hearing the public
prosecutor and the applicant, the Court may
either confirm, modify or cancel the interim
order as per Section 438(4) Cr.P.C. Section
438(5) Cr.P.C further provides that the
High Court or the Court of Session shall
finally dispose of such an application
within 30 days of filing of the same.

11. In this Court, the anticipatory bail
applications are filed after due service of
notice in the office of Government
Advocate, as per Chapter XVIII, Rule - 18
of Allahabad High Court Rules. The
aforesaid rule provides that no bail
application shall be placed before the Court
unless two days have elapsed prior to the
presentation of the application before the
Court.

12. There is no provision in the Rules
of Court regarding filing and entertainment
of anticipatory bail application.

13. 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.

14. The anticipatory bail applications
are being listed before the court after more
than two days invariably. Most of the
anticipatory bail applications are being put
up before the Court after more than a week,
or even after more than a month. There is
sufficient time for Government Advocate to
obtain instructions in anticipatory bail
applications. The unnecessary complication
of passing interim order and then final
order in the anticipatory bail application
can be avoided in case the office of
Government Advocate is vigilant and it
7 All. Prateek Jain Vs. State of U.P. & Ors.
263
obtains instructions within two days of the
receipt of notice of the anticipatory bail
applications.

15. Directions in this regard have
already been issued by this Court in
Criminal
Misc.
Anticipatory
Bail
Application under Section 438 Cr.P.C No.
8072 of 2020 on 20.11.2020 to the
Government Advocate and the Advocate
General of the State.

16. Hitherto, the anticipatory bail
applications were being considered on the
basis of the considerations given in Section
438(1) Cr.P.C., which are as follows-

(i) a condition that the person
shall
make
himself
available
for
interrogation by a police officer as and
when required;

(ii) a condition that the person
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 him from disclosing such
facts to the Court or to any police officer;

(iii) a condition that the person
shall not leave India without the previous
permission of the Court;

(iv) such other condition as may
be imposed under sub-section (3) of section
437 Cr.P.C., as if the bail were granted
under that section.

17. However, the legislature was
conscious of the fact that no straight jacket
formula can be prescribed for grant of
anticipatory bail to an accused therefore
under Section 438(1) Cr.P.C., it provided
that the Court may, after taking into
consideration, "inter alia", the conditions
given in Sections 438(1), (i), (ii), (iii) and
(iv) Cr.P.C for grant or rejection of
anticipatory bail application.

18. In the aforesaid section the words
"inter alia" are very important. They grant
liberty to the Court to exercise its
descretion in a particular case according to
the facts and circumstances of the case,
regarding grant or rejection of anticipatory
bail.

19. The Apex Court in the case of
Gurubaksh Singh Sibbia, etc., vs. State of
Punjab, 1980 AIR 1632 was also conscious
of
the
fact
that
the
future
is
so
unpredictable that no fixed criteria can be
laid down for the grant or rejection of
anticipatory bail of an accused by the High
Court or the Court of Session. It was held
by the Apex Court that the High Court and
the Court of Session are competent to deal
with the case as per their knowledge and
experience.
It
further
held
that
the
legislature conferred vide descretion on the
High Court and the Court of Session to
grant anticipatory bail because it felt that it
would be difficult to enumerate the
conditions under which anticipatory bail
should or should not be granted and the
Courts were given free hand in this regard.
Departing from the terms of Sections 437
and 439 Cr.P.C., Section 438(1) Cr.P.C.,
provides descretion to this Court in the
grant or rejection of anticipatory bail
application.

20. 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
264 INDIAN LAW REPORTS ALLAHABAD SERIES
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. The aforesaid section does not
leaves any room for any controversy
regarding
filing
of
anticipatory
bail
application either before the High Court or
before the Court of Session as per 438 (7)
Cr.P.C,
U.P.
Amendment.
A
literal
construction of the aforesaid section 438(7)
Cr.P.C shows that there is no requirement
of giving any special or compelling reason
to approach this Court for grant of
anticipatory bail without approaching 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.

21. The Apex Court in the case of
Sushila Aggarwal vs. State (NCT of
Delhi)- 2020 SCC Online SC 98, has also
held that whether to grant an anticipatory
bail or reject the same is a matter of
descretion of the Court and it is for the
Court to decide, on the basis of the facts
and circumstances of the case, what course
is to be adopted. No formula has been laid
down by the five Judges Bench of the
Hon'ble Supreme Court regarding grant or
denial of anticipatory bail.

22. The legislature, in its wisdom, left
it open for the Court to apply the law of
anticipatory bail as per the facts of the case
and the circumtances involved therein.

23. 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 prerequisite 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
consititution
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
7 All. Prateek Jain Vs. State of U.P. & Ors.
265
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
corona virus can certainly be held to be a
ground for grant of anticipatory bail to an
accused.

24. The second wave of novel corona
virus 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 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.

25. The Apex Court in the case of
Kerala Union of Working Journalists vs.
Union of India and Others in a recent order
dated 28.04.2021 passed in Writ Petition
(CRL) No. 307 of 2020 had held that the
fundamental right to life unconditionally
embraces even an undertrial.

26. In view of arrestee in that case
being a journalist, the matter was raised
before the Hon'ble Supreme Court when he
was found to be suffering from Corona virus
infection
and
other
ailments.
Hon'ble
Supreme Court directed the arrestee journalist
to be transferred to the hospital at Delhi from
the hospital at Mathura for proper medical
treatment. Number of such arrestees are there
who are suffering from the deadly infection
of novel corona virus but they cannot
approached the Court on account of
limitations of resources.

27. The Apex Court in the case of
Suo Motu Writ Petition (C) No. 1/2020 In
Re: Contagion of Covid 19 Virus in
Prisons has considered the measures for
de-congestion of the jails on account of
threat of spread of infection of novel
corona virus and by the order dated
07.05.2021 has held as follows:-

"5. An unprecedented surge in
Covid-19 during the last few weeks has
resulted in a steep spike in the number of
people who are affected by Covid-19. In
the present situation there is a serious
concern about the spread of Covid-19
inovercrowded prisons where there is lack
of proper sanitation, hygiene and medical
facilities.

6. Mr. Colin Gonsalves, learned
Senior
Counsel
appearing
for
the
Applicant
submitted
that
the
High
Powered Committees which have been
constituted pursuant to the orders passed
by this Court on 25.03.2020 should be
directed to release all those prisoners who
have been released last year on regular
bail.

Such of those inmates who have
been granted parole last year should be
granted 90 days parole by this Court. He
266 INDIAN LAW REPORTS ALLAHABAD SERIES
requested that all orders of the HighPowered Committees shall be put on the
website
of
the
Governments.
Mr.
Gonsalves argued that the Standard
Operating Procedure (SOP) formulated by
the National Legal Services Authority for
release of prisoners should be taken into
account by the High-Powered Committees.

7. The learned Attorney General
submitted
that
prisons
need
to
be
decongested by release of some prisoners in
view of the grim situation. He submitted that
the High-Powered Committees may be
permitted to adopt the procedure that was
followed earlier and release the prisoners on
the basis of the guidelines formulated by
them last year. The learned Attorney
General
requested
for
relaxation
of
handcuffing of the prisoners as during the
present outbreak of Covid-19 there is a great
danger of spread of the virus to the police
personnel who have to hold the hands of the
accused while being escorted. The learned
Solicitor General of India and Ms.
Aishwarya
Bhati,
learned
Additional
Solicitor General also supported the learned
Attorney General. A further request was
made on behalf of the Union of India that
the Commissioner of Police, Delhi be made
a member of the High-Powered Committee
to be constitutedby the Delhi Government.

8. We may notice that India has
more than four lakh prison inmates. It is
observed that some of hte prisons in India
are overburdened and are housing inmates
beyond optimal capacity. In this regard, we
may notice that the requirement of de
congestion is a matter concerning health
and right to life of both the prison inmates
and
the
police
personnel
working.
Reduction of impact of Covid-19 requires
this Court to effectively calibrate concerns
of criminal justice system, health hazards
and rights of the accused. From limiting
arrests to taking care of Covid-19 Patients,
there is a requirement for effective
management of pandemic from within the
prison walls so as to defeat this deadly virus.

9. As a first measure, this Court,
being the sentinel on the quivive of the
fundamental rights, needs to strictly control
and limit the authorities from arresting
accused in contravention of guidelines laid
down by this Court in Arnesh Kumar v.
State of Bihar (supra) during pandemic. It
may be relevant to quote the same:

11.
Our
endeavour
in
this
judgment is to ensure that police officers do
not arrest the accused unnecessarily and
Magistrate do not authorise detention
casually and mechanically. In order to
ensure what we have observed above, we
give the following directions:

11.1. All the State Governments to
instruct
its
police
officers
not
to
automatically arrest when a case under
Section 498-A IPC is registered but to satisfy
themselves about the necessity for arrest
under the parameters laid down above
flowing from Section 41 CrPC;

11.2.
All
police
officers
be
provided with a check list containing
specified
sub-clause
under
Section
41(1)(b)(ii);

11.3. The police officer shall
forward the check list duly filled and
furnish the reasons and materials which
necessitated
the
arrest,
while
forwarding/producing the accused before
the Magistrate for further detention;

11.4.
The
Magistrate
while
authorising detention of the accused shall
peruse the report furnished by the police
officer in terms aforesaid and only after
recording its satisfaction, the Magistrate
will authorise detention;

11.5. The decision not to arrest
an
accused,
be
forwarded
to
the
Magistrate within two weeks from the date
of institution of the case with a copy of the
7 All. Prateek Jain Vs. State of U.P. & Ors.
267
Magistrate which may be extended by the
Superintendent of Police of the district for
the reasons to be recorded in writing;

11.6. Notice of appearance in
terms of Section 41-A Cr.P.C be served on
the accused within two weeks from the
date of institution of the case, which may
be extended by the Superintendent of
Police of the district for the reasons to be
recorded in writing;

11.7. Failure to comply with the
directions aforesaid shall apart from
rendering the police officers concerned
liable for departmental action, they shall
also be liable to be punished for contempt
of court to be instituted before the High
Court having territorial jurisdiction.

11.8.
Authorising
detention
without recording reasons as aforesaid by
the

Judicial Magistrate concerned
shall be liable for departmental action by
the appropriate High Court.

12. We hasten to add that the
directions aforesaid shall not only apply to
the cases under Section 498-A IPC or
Section 4 of the Dowry Prohibition Act,
the case in hand, but also such cases
where
offence
is
punishable
with
imprisonment for a term which may be
less than seven years or which may extend
to seven years, whether with or without
fine.

10.
Second,
the
rapid
proliferation of the virus amongst the
inmates of congested prisons is a matter of
serious
concern.
The
High-Powered
Committees constituted by the State
Governments/Union
Territories
shall
consider release of prisoners by adopting
the guidelines (such as inter alia, SOP
laid down by NALSA) followed by them
last year, at the earliest. Such of those
States which have not constituted High
Powered Committees last year are
directed
to
do
so
immediately.
Commissioner of Police Delhi shall also
be a member of the High-Powered
Committee, Delhi.

11. Third, due to the immediate
concern of the raging pandemic, this court
has to address the issue of de-congestion.
We find merit in the submission of Mrs.
Colin Gonsalves, learned Senior Counsel
appearing on behalf of the applicant, that
the High Powered Committee, in addition
to considering fresh release, should
forthwith release all the inmates who had
been released earlier pursuant to our
order 23.03.2020, by imposing appropriate
conditions. Such an exercise is mandated
in order to save valuable time.

12. Fourth, further we direct
that, those inmates who were granted
parole, pursuant to our earlier orders,
should be again granted a parole for a
perid of 90 days in order to tide over the
pandemic.

13. Fifth, the fight against the
pandemic
is
greatly
benefitted
by
transparent administration. In this regard,
our attention was drawn to example of
Delhi, wherein the prison occupancy is
updated in websites. Such measures are
required to be considered by other States
and should be adopted as good practice.
Moreover, all the decisions of HighPowered Committees need to be published
on
respective
State
Legal
Service
Authorities/State
Governments/High
Courts websites in order to enable
effective dissemination of information.

14. Overcrowding of prisons is a
phenomenon, plaguing several countries
including India. Some prisoners might not
be willing to be released in view of their
social background and the fear of
becoming victims of the deadly virus. In
268 INDIAN LAW REPORTS ALLAHABAD SERIES
such extraordinary cases, the authorities
are directed to be considerate to the
concerns of the inmates. The authorities
are directed to ensure that proper medical
facilities are provided to all prisoners who
are imprisoned. The spread of Covid-19
virus should be controlled in the prisons
by regular testing being done of the
prisoners but also the jail staff and
immediate treatment should be made
available to the inmates and the staff. It is
necessary to maintain levels of daily
hygiene and sanitation required to be
improved. Suitable precausions shall be
taken to prevent the transmission of the
deadly virus amongst the inmates of
prisons. Appropriate steps shall be taken
for transportation of the released inmates
of the prisons, if necessary, in view of the
curfews and lockdown in some States.

28. The above observations and
directions of the Apex Court show the
concern about the over crowding of jails
and in case this Court, ignoring the same,
passes order which will result in over
crowding of jails again it would be quite
paradoxical. 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
contacting the infection of novel corona
virus.

29. The right to life guaranteed under
Article 21 of the Constitution of India is
paramount and by mere implication in a
case of alleged commission of non-bailable
offence, right to life of an accused person
can not 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 corona
virus to his life is minimized or eradicated
and normal functioning of the Courts are
restored. Keeping in view the inadequate
medical facilities for treating the large
number of persons getting infected day by
day, common accused cannot be left
unprotected from the threat to his life on
account of his arrest by police or surrender
before the Court as per the normal
procedure applicable to accused persons in
normal times.

30. Extraordinary times require
extraordinary remedy and desperate times
require remedial remedy. Law should be
interpreted
likewise.
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.

31. There is also threat of spread of
third wave of novel corona virus looming
large over the entire country and it is
uncertain when the aforesaid wave will
abate and normal functioning of the Courts
would
be
restored.
Therefore,
the
apprehension of an accused being infected
with novel corona virus before and after his
7 All. Prateek Jain Vs. State of U.P. & Ors.
269
arrest and the possibilty of his spreading
the same while coming into contact with
the police, Court and jail personnels or
vice-versa can be considered to be a valid
ground for grant of anticipatory bail to an
accused. 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. The Apex Court while
hearing the case regarding the preparation
of the Government to deal with spread of
novel corona virus has cautioned the
Government to prepare itself for the third
wave of the same which may come.

32. 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. In civil cases the
object of grant of injunction is the
preservation of subject matter of dispute
between the parties. During the pendency
of suit the subject matter of suit is protected
from any loss, change of nature, decay, etc.
Similarly, now the situation has arisen
which calls for protection of an accused
from infection of novel corona virus and
death till the police investigation and, if
required, trial is concluded against him.
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.

33. 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. On account of the recent panchayat
elections in the State large number of FIR's
have been lodged in the villages. Even
270 INDIAN LAW REPORTS ALLAHABAD SERIES
otherwise the crime rate in the village is
quite high in the State. 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.

34. 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, 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 on the
following conditions:-

1. 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.

2. The applicant shall not leave
the country during the
currency of
trial/investigation by police without prior
permission from the concerned trial Court.

3. 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;

4. 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.

5. 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;

6. The applicant shall maintain
law and order.

7. The applicant shall file an
undertaking to the effect that he shall not
seek any adjournment before the trial court
on the dates fixed for evidence and when
the witnesses are present in court. In case
of default of this condition, it shall be open
for the trial court to treat it as abuse of
liberty of bail and pass orders
in
accordance with law to ensure presence of
the applicant.

8. In case, the applicant misuses
the liberty of bail, the Court concerned may
take appropriate action in accordance with
law and judgment of Apex Court in the
case of Sushila Aggarwal vs. State (NCT
of Delhi)- 2020 SCC Online SC 98 and the
Government
Advocate/informant/complainant can file
bail cancellation application.

9. The applicant shall remain
present, in person, before the trial court on
the dates fixed for (i) opening of the case,
(ii) framing of charge and (iii) recording of
statement under Section 313 Cr.P.C.