The Supreme Court on Tuesday held that apprehension of death due to the worsening Covid-19 situation cannot be a ground to grant anticipatory bail to an accused. The order was passed on a petition filed by Uttar Pradesh government challenging a May 10 order of the Allahabad high court which granted protection from arrest to a man citing the worsening pandemic situation in Uttar Pradesh.

Solicitor General Tushar Mehta, who appeared for the state, had requested for a stay on the order on an apprehension that the same would be cited by other accused before various courts. A vacation bench of justices Vineet Saran and BR Gavai stayed the high court observations and appointed senior advocate V Giri to assist the court as amicus curiae. The court issued notice on the state’s plea and agreed to hear the petition in the first week of July.

The bench, however, did not stay the bail granted to the accused, one Prateek Jain, facing 130 criminal cases but made it clear that if the accused did not appear on the next date, the bail granted to him will stand cancelled and the HC order subsequently stayed. The HC allowed the accused to remain on anticipatory bail till January 3, 2022, considering the news of a possible third wave of infections by September this year.

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Mehta told the court that the HC passed sweeping observations without considering the facts of the case and the gravity of the offences against the accused. The bench said, “The observations (made by HC) shall remain stayed.” It further added that courts in the country, while considering bail petitions, will solely go by the merits of the case and not by the observations made in the Allahabad HC order.

The Uttar Pradesh government had filed the plea on the ground whether an accused needs to be protected till the threat of novel coronavirus to their life is minimised or eradicated.

The accused had sought protection from arrest before high court, claiming that he would be vulnerable to Covid in a crowded jail without proper medical facilities.

Without adopting the common yardsticks provided under law to deal with anticipatory bail applications, the single-judge HC bench of Justice Siddharth said, “extraordinary times require extraordinary remedy and desperate times require remedial remedy”.

“The apprehension of an accused being infected with novel coronavirus before and after his arrest, and the possibility of his spreading the same while coming into contact with the police, court and jail personnel or vice-versa can be considered to be a valid ground for grant of anticipatory bail to an accused,” the bench observed.

It further held that in cases where a charge sheet has been filed or warrants issued against an accused, “such an accused is required to be protected till the threat of novel coronavirus to his life is minimised or eradicated and normal functioning of the courts is restored”. The bench had also relied on a Supreme Court judgment from earlier this month that ordered the release of prisoners granted bail or parole to decongest jails in view of the pandemic.