Whether Apprehension of death on account of COVID a valid ground for anticipatory bail?

By: Srishti Gupta


Recently, the courts have been adapting to new set of circumstances and leaning towards bail to decongest prisons. Due to COVID-19 outbreaks in detention centers, courts are rethinking whether pre-trial custody is necessary to maintain public confidence in the criminal justice system. In a recent Allahabad High Court order, anticipatory bail was granted to an accused solely on the ground of apprehension of death on account of the pandemic. The order has currently been stayed by the Supreme Court after the Uttar Pradesh government appealed against the order. In this blog, I analyze the High Court order with the help of case laws and the provision of bail in other countries to arrive at a conclusion.

Incorporation of COVID-19 as a parameter in Court’s Analysis

The Supreme Court in Siddharam Mhetre v. State of Maharashtra held that while exercising judicial discretion in matters concerning grant of bail, judges must not blindly adhere to the ‘Code for grant of bail’ and must assess the situation in the context of emerging concerns as and when they arise. This becomes relevant in the current scenario of the pandemic since any straight-jacket formula or inflexible guideline would have made it difficult for the courts to consider threat to health of the accused as a factor guiding judicial discretion.

This is also in line with the recent High Court order in which the court held that “extraordinary situations require extraordinary remedies and desperate times require remedial remedy”.The objective behind broadening the ambit of discretion granted to courts is to maintain fine balance between societal interests vis-a-vis personal liberty of the accused. I am in agreement with the view that in the current scenario of the pandemic the courts must weigh in COVID-19 as a possible parameter in deciding bail cases, considering difficulty in following social distancing measures in overcrowded prisons, lack of proper health, sanitation and hygiene facilities. However, the question to be addressed  relates to the extent to which the pandemic can influence the court’s opinion and whether the parameters evolved by courts in light of  section 438(1) of CrPC can be overlooked in such a situation? The use of words ‘may, as it thinks fit’ under section 438(1) confer wide discretionary powers on the courts to grant anticipatory bail. Some of the parameters established by courts include nature and gravity of accusation, criminal antecedent of applicant, possibility of fleeing from justice and whether accusation has been made with an intention of humiliating and injuring the applicant by getting him arrested.

Justice Siddhant answered the aforementioned question in affirmative while holding that “The established parameters for grant of anticipatory bail like the nature and gravity of accusation, …have now lost significance on account of present situation of the country and the State on account of spread of second wave of novel corona virus.” This statement becomes problematic when considered from the point of safety and security of the community. It also poses risk of losing society’s faith in the administration of justice.

The Supreme Court in Gurbaksh Singh Sibbia v. State of Punjab held that any single circumstance cannot be treated as a factor while granting bail, in fact, a variety of circumstances must be taken into account, the cumulative effect of which must enter into the judicial verdict. Hence, to look at COVID-19 as a ground for bail in isolation to the other important parameters may cause injustice to the society.

Position in Foreign Jurisdiction

Not only India, various countries across the world are facing this challenge and have been forced to consider the impact of COVID-19 on bail analysis. In an October 21 decision in R v. J.A. the issue that came up for consideration before the Court of Appeal of Ontario was whether COVID constituted material change and could bail be granted on this ground. There are three grounds for granting bail in Canada-primary, secondary and tertiary. Primary ground holds that detention is necessary to prevent flight and ensure attendance in court; secondary ground holds that detention is necessary for the protection of the public and tertiary ground is public confidence in the administration of justice. The first bail judge held that relevance of COVID-19 pandemic requires a review of the following:

  1. Age and health of the respondent,
  2. The condition at the institution in which the respondent may be detained,
  3. The effect of COVID-19, if any, on whether the respondent will attend court as required and
  4. The effect of COVID-19, if any, on the threat posed to public safety by the respondent’s release.

While evaluating the bail plea on these factors the court found that the respondent was 28-year-old with no pre-existing health conditions, he was charged with two counts of first degree murder, he had a history of lying to his surety etc. These facts tipped the balance in favor of detention. This approach is much more comprehensive and provides clarity with respect to other parameters on which bail may be granted. The court in this case has also clarified that pandemic stands on a different footing from other grounds like possibility of absconding, witness tampering etc. by categorizing the grounds for bail.

It is important to understand that the High Court order had left the doors open for notorious criminals and absconders to seek immunity from arrest solely on the ground of COVID-19 and this could have jeopardized the well-being of the society.

Balancing Conflicting Interests

However, there are other cases where courts have weighed the effect of pandemic on the already established parameters before granting bail. For instance, consider the case of State of Kerala v. Mahesh where the Supreme Court while rejecting bail opined that the fact that the respondent was accused of brutally murdering a woman with a knife, the accused has been absconding and most of the witnesses stayed close to the area where accused did shows the necessity for detention. The court also said that reducing overcrowding in prisons does not mean releasing all undertrial prisoners irrespective of the severity of the offence.

A similar view has been taken in a recent case in which the accused approached Supreme Court on Special Leave Petition against an order of Punjab and Haryana High Court of anticipatory bail. While admonishing the accused the Supreme Court opined that COVID-19 cannot be cited as a ground for bail in all cases regardless of the nature and gravity of the offence. The court observed that appellant was accused of immoral trafficking and offences under section 3, 4 and 5 of Immoral Traffic (prevention) Act 1956 which are very serious offences.

In complete contrast to this, High Court opined that “An accused who has not been subjected to trial and not even police investigation has been completed, cannot be compelled to surrender and obtain regular bail in the current circumstances.” It is important to understand the object of introducing Anticipatory Bail in 1973 code as explained in Sushila Aggarwal v. State NCT of Delhi. Anticipatory Bail serves as a safeguard for the accused from false cases which aim to injure the reputation of the accused. Another reason was that custody of the accused may be unnecessary when there are reasonable reasons to believe that he/she may not misuse their liberty while on bail. Now, when an accused approaches court with a history of 130 cases and is a serial criminal, the extent to which pandemic may influence judicial discretion reduces.


Pandemic as a ground for bail stands on three legs- first, apprehension of death because of being infected, second, ability to prepare case and get legal advice and third the mental anxiety suffered due to delay in hearing of cases. I feel that these concerns are absolutely justifiable and hence the courts must carefully evaluate their decision before denying bail. However, this must not be done at the cost of putting the life of community at danger. The other parameters laid down in section 438 are equally relevant today and must be seen collectively. This High Court order suggests COVID-19 acts as a license to seek bail which would send a wrong message to the society and encourage criminal activities that could disrupt public peace. At the same time this order also throws light on the difficulty of handling cases in prisons which must be mitigated through measures like screening for individuals entering and leaving prisons, environmental cleaning and disinfection should take place once every day, individual hand washing and hygiene must be promoted, medical facility in prisons must be well equipped for basic COVID-19 care patients, PPE kits must be provided and overcrowding must be reduced.

[The author is a third year BBA LLB (hons) student at Jindal Global Law School.]


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