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TMI Blog2021 (6) TMI 523X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt 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 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 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 anti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is 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 sub-section (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 directio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ia, 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 condition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 requested that all orders of the High-Powered 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 su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pted as good practice. Moreover, all the decisions of High-Powered 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 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 be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... 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