The general principle underlying the law of bails was recognized by Justice Krishna Iyer in Gudikanti Narasimhulu & Ors. vs. Public Prosecutor, High Court of Andhra Pradesh, AIR 1978 SC 429, (“G. Narasimhulu”) that bail is the rule and jail is an exception. In the recent global pandemic caused by COVID-19 can this principle be excused and the bail of an accused in judicial custody be rejected in order to prevent spread of the virus, if all the other necessary conditions are fulfilled?
The Delhi High Court vide order dated 15 April, 2020 in Rakesh Kumar vs. State (N.C.T. of Delhi), rejecting the bail application presented by the applicant for grant of interim bail for a period of 2 months, has answered the above question in positive. In the instant case, the applicant is facing a trial under Secs. 323 & 376 IPC, 1860 and Sec. 23 of the Juvenile Justice Act. The bail application was made in order to perform the last rites of his father who expired on 9 April, 2020 and to settle family affairs.
Justice Krishna Iyer had made an important observation while deciding G. Narasimhulu case, which is as follows:
“The significance and sweep of Art. 21 make the deprivation of liberty ‘a matter of grave concern and permissible only when the law authorising it is reasonable, even-handed and geared to the goals of community good and State necessity spelt out in Art. 19… [R]easonableness postulates intelligent care and predicates that deprivation of freedom- by refusal of bail is not for punitive purpose but for the bi-focal interests of justice-to the individual involved and society affected.”
In this regard, the order of the Delhi High Court emphasises the need to balance the interest of the public at large and the individual freedom. Moreover, the Prosecution argued that the Applicant had failed to produce any proof of accidental death of the applicant’s father. It was claimed by the applicant that his father died of drowning and if so, the Prosecution submitted, police record showing the recovery of the body should have been produced, but same was not placed on record.
The Court considered another aspect for rejecting the bail application and it emphasised that the village of the applicant was around 800 Km from Delhi and releasing the petitioner on interim bail would increase the chances of him being infected while travelling to his village. Moreover, it cannot be determined with precision as to with bow many people he would come in contact with while tending the last rites of his father. More importantly, if he is infected during this transaction, there are chances that his return to jail after the period of interim bail would further complicate the matter and the same cannot be allowed considering a current pandemic situation. Considering the dual interest involved, the Delhi High Court rejected the bail application filed under Sec. 439 Cr.P.C read with Sec. 482 Cr.P.C.
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