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Mass Disaster/Pandemic May Severely Obstruct Our Life But Doors Of Courts Must Remain Open For Protection Of Article 21: Allahabad High Court

Sparsh Upadhyay
26 Nov 2020 11:35 AM GMT
Mass Disaster/Pandemic May Severely Obstruct Our Life But Doors Of Courts Must Remain Open For Protection Of Article 21: Allahabad High Court
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While observing that "non-performance of duty owing to holidays is a serious dereliction of duty on the part of the Session Judges/magistrates", the Allahabad High Court on Wednesday (25th November) rapped the Magistrates/Session Judges from the district Lucknow/Hardoi and the State for failure to perform its duty.The Bench of Justice Attau Rahman Masoodi specifically observed,"A mass disaster...

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While observing that "non-performance of duty owing to holidays is a serious dereliction of duty on the part of the Session Judges/magistrates", the Allahabad High Court on Wednesday (25th November) rapped the Magistrates/Session Judges from the district Lucknow/Hardoi and the State for failure to perform its duty.

The Bench of Justice Attau Rahman Masoodi specifically observed,

"A mass disaster or Pandemic may severely obstruct our life and governing systems in many ways but the doors of the courts of law must remain open for the protection of Article 21 of the Constitution of India."

Cases before the Court

The two bail applications filed before the High Court involved an identical question of law. The First Bail application (Bail No. 5384 of 2020) was filed by one Abhishek Srivastava and the second one (Bail No. - 5756 of 2020) was filed by one Sanjeev Yadav.

In both the applications, the right under Article 21 of the Constitution of India was pressed on the ground of default on the part of the prosecution to file the charge sheet within the statutory period as provided under Section 167(2) of Code of Criminal Procedure (Cr.P.C.)

Background

In the case of Abhishek Srivastava i.e. in Bail Application No. 5384 of 2020, the first remand order was passed on 16.1.2020, thereafter, the judicial custody continued from time to time and lastly, the remand was extended on 11/12.3.2020 for a period of fourteen days i.e. up to 25.3.2020.

Thereafter, due to closure of courts on account of COVID, from 24.3.2020, the first/fresh remand cases only were done and no remand orders could be passed from 25.3.2020 to 26.6.2020.

The period of 90 days in Bail Application No. 5384 of 2020 expired on 14.4.2020 and in absence of any remand order since 25.3.2020, the applicant (Abhishek Srivastava) continued in jail till the filing of the charge sheet on 1.5.2020 and thereafter until the rejection of default bail by the Magistrate on 18.6.2020.

In this context, the Court said,

"The personal liberty of the accused applicant oscillated without any attention either by the prosecution or the guardian of justice i.e. courts. The duty on the part of the State to set the applicant free by apprising the court was given a complete go by to legitimize the default. Non-performance of the judicial duty also owes its failure to the nationwide lock-down due to Pandemic Covid19."

It was the case of the applicant, that the magistrate notwithstanding the filing of charge sheet beyond the period of limitation, had nevertheless rejected the bail application (by order dated 18.6.2020) treating the right of default bail to have extinguished on the filing of the charge sheet.

Similar was the case in Bail No. - 5756 of 2020, which was filed by one Sanjeev Yadav. The right of default bail accrued to him became enforceable on 29.4.2020 (completion of 90 days). This right was very much alive when the charge sheet was filed in the court on 5.5.2020 and survived thereafter, however, he too was denied default bail.

Arguments put forth

It was argued by the Counsels for the Applicants that the indefeasible right of default bail could not be denied to them by the State once the limitation for filing the police report ran out.

It was argued that irrespective of the fact whether the prayer for release was made or not, the duty had shifted upon the magistrate who ought to have streamlined and secured the personal liberty of the applicants in accordance with the mandate of Article 21 of the Constitution of India on suitable conditions as were necessary for the criminal administration of justice.

Moreover, it was argued that "the imposition of lock-down on account of which the courts were closed, cannot be allowed to legitimize the judicial custody in contravention of Article 21 of the Constitution of India read with the procedure prescribed in Section 167(2) Cr.P.C."

On the other hand, the AGA submitted that there is no lapse on the part of the magistrate to grant default bail particularly when the police report in one of the present cases was ready on the deadline i.e. 29.4.2020 [in Bail No. - 5756 of 2020, which was filed by one Sanjeev Yadav] but could not be filed in the court due to closure.

Regarding the Bail No. 5384 of 2020, which was filed by one Abhishek Srivastava, the District Judge in his report submitted that there was no remand from 25.3.2020 to 16.6.2020 due to closure of the courts pursuant to complete lock-down order of the government.

It was secondly mentioned that the charge sheet was filed on 1.5.2020 before the remand magistrate.

It was thirdly mentioned that the courts were closed till further orders, therefore, remand and bails of accused persons were directed to be done as per holiday practice. It was lastly mentioned that as per holiday practice only first/fresh remand used to be done.

Notably, the High Court, in its direction issued on 25.3.2020 had directed the subordinate Courts that the remands and bails of arrested person shall be done as per holiday practice.

Rule-186 of the General Rules (Criminal), 1977 as well as from a circular of the High Court, Allahabad i.e. C.L. No. 102/VIIb47 dated 5th August, says,

"On a holiday a criminal court may dispose of such work of urgent nature like granting of bail or remand or do such other work that may with propriety be done out of court and it will not be proper to refuse to do any act or make any order urgently required merely on the ground of the day being a gazetted holiday."

Question before the Court

The question which arose for the consideration before the Court was as to the sanctity of the right of personal liberty and whether such a right guaranteed under Article 21 of the Constitution of India would stand eclipsed under the lock-down directives issued by the Government or any directives issued by the High Court applicable on holidays contrary to the mandate embodied under Section 167(2) Cr. P.C.

Court's Observation

The Court said,

The District Judges were under a bounden duty to assign the remand duty to the courts of magistrate/Session Judge during the lock-down period and irrespective of the fact that the courts were closed, the remand matters were bound to be taken up and wherever the indefeasible right of personal liberty accrued to an accused incarcerated in jail, he ought to have been offered default bail in the manner prescribed under Section 167(2) of the Cr.P.C."

The High Court cited the Judgment of the Apex Court in the case of Uday Mohanlal Acharya v. State of Maharashtra (2001) 5 SCC 453 and it was observed that once the application was filed by the accused in jail for the grant of default bail, the mere filing of the police report would not frustrate the right and the ground of default would remain available for release.

Notably, the Apex Court in the case of S. Kasi v. State through the Inspector of Police, 2020 SCC OnLine SC 529 has recently held,

"We, thus, are of the view that neither this Court in its order dated 23.03.2020 can be held to have eclipsed the time prescribed under Section 167(2) of Cr.P.C. nor the restrictions which have been imposed during the lockdown announced by the Government shall operate as any restriction on the rights of an accused as protected by Section 167(2) regarding his indefeasible right to get a default bail on non-submission of charge sheet within the time prescribed."

The High Court further said,

"The remand matters could not be ignored selectively by attaching preference or priority to fresh/first remand cases in derogation of the procedure applicable on holidays. The report forwarded by the District Judge, Lucknow is alarming and the selective role which the courts have played from 25.3.2020 to 16.6.2020 deserves to be condemned."

Rapping the State and legal services authorities, the Court said,

"It is unfortunate to note that the legal services which the law contemplates as an essential service for victims was rendered inadequately by the State as well as by the legal services authorities during the Pandemic Covid-19. In the absence of the services of legal practitioners, the State was under a bounden duty to activate legal aid authorities to deal with the situation and the benefit of default bail accruing anywhere ought to have been effectively taken up before the courts."

Order regarding the Bail Pleas

Noting that "there is a clear dereliction of duty in Bail Application No. 5384 of 2020 (Abhishek Srivastava v. State of U.P.) and the position is amply evident from the report of the District Judge," the Court said that a case for default bail was made out.

The court of the magistrate was accordingly directed to release the applicant Abhishek Srivastava.

With regard to another Bail Application No. 5756 of 2020 (Sanjeev Yadav v. State), the Court noted that "the prosecution has adopted a peculiar stand to justify the default. It is stated that the closure of court prevented them to file the charge sheet before the deadline i.e. 29.4.2020. The prosecution has taken a bald plea without showing any steps having been taken to file the charge sheet by approaching the court or through online service."

Further, the Court said that "the right of default bail which undoubtedly accrued to the applicant became enforceable on 29.4.2020. This right was very much alive when the charge sheet was filed in the court on 5.5.2020 and survived thereafter."

The Court said that the applicant Sanjeev Yadav was entitled to be enlarged on bail at par with the case of Abhishek Srivastava.

Lastly, the Court said that "since the mass disaster of Pandemic Covid-19 covered the meaning of Section 2(d) of the Disaster Management Act, 2005 is not over, therefore, it is desirable to issue a notice to the National Legal Service Authority as well as the State Legal Services Authority through their Member Secretaries who may apprise the Court as to how the applicants or like victims of mass disaster were or are being helped during Pandemic Covid-19."

The Member Secretary, U.P. State Legal Services Authority has been directed to appear before the Court in person on the next date of listing with all relevant details from the respective districts.

The Court also said that "before any further order is passed on the dereliction of duty on the part of respective magistrates/Session Judges, the Senior Registrar of this Court, in the light of report forwarded to this Court on 29.9.2020 by the District Judge, Lucknow, is hereby directed to obtain the relevant details of magistrates/Session Judges from district Lucknow/Hardoi who have failed to pass remand orders from 25.3.2020 to 16.6.2020. The Senior Registrar of this Court shall also remain present in the Court when the case is listed next."

The matter has been listed for further hearing on Thursday (10th December 2020).

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