Allahabad HC: Election Commission, higher courts, government failed to see risks from holding polls

The Allahabad High Court has observed that “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”.

While the Covid-19 infection “had not reached the village population in its first wave…last year, [it] has now spread to the villages”, the court said.

According to the court, the state government “is having tough time in controlling the spread of novel coronavirus in urban areas”, and it would be very difficult to carry out tests, detect infections, and treat the population in the villages.

“The State lacks preparation and resources for the same at present,” a single judge Bench of Justice Siddharth said in an order allowing an application for anticipatory bail on Monday.

The court observed that on account of the recent panchayat elections in Uttar Pradesh, a large number of FIRs had been lodged in the villages. “Even otherwise the crime rate in the village is quite high in the State,” it said.

“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,” the court said.

In view of these 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”, the court directed that “the applicant, in case of his arrest, shall be enlarged on anticipatory bail for the limited period, till 03 of January, 2022” on a specified set of conditions.

The application was filed by one Prateek Jain, a resident of Ghaziabad, who was booked for cheating, forgery, fraud, criminal intimidation, and criminal breach of trust.

The court said “the law is a dynamic concept and it is required to be interpreted as per the requirements of time” – and “with the change in the requirements of time, the interpretation and application of law is required to be adopted with change”.

The pre-requisite condition of apprehension of arrest is survival of the accused, the court said. “Only when the accused would be protected from apprehension of death the apprehension of his arrest would arise. Article 21…provides for protection of life and personal liberty of every citizen.”

The court said that “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.”

There were several ways in which an arrested person could contract the virus, the court said, including from jail inmates, police, and court personnel. “There is no proper testing, treatment and care of the persons confined in jails,” it said.

The court referred to the recent judgment of the Supreme Court, permitting journalist Siddique Kappan to be transferred to AIIMS for treatment after he was infected with Covid-19 in Mathura. “The fundamental right to life unconditionally embraces even an undertrial,” the High Court said.

The court observed that the informant or complainant may take objection to the relief being granted to the applicant and may be dissatisfied with the observations in this judgment in favour of accused. But, “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.