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

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 CourtThe 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.)BackgroundIn 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 forthIt 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...

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

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