[Default Bail] Pandemic may severely obstruct life in many ways, but doors of courts must remain open to protect Article 21: Allahabad High Court

A pandemic is not an excuse for courts to justify the selective ignorance of pending remand matters or for a denial of rights to liberty under Article 21 of the Constitution, the Allahabad High Court was recently constrained to hold. .The Court was dealing with two cases involving the denial of the right to default bail, partly owing to the trial court's failure to take up pending remand matters amid the COVID-19 lockdown (Abhishek Srivastava and anr v. State of UP). .In the course of his order allowing bail, Justice Attau Rahman Masoodi was prompted to observe:."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.".Before the Court were two undertrial prisoners, Abhishek Srivastava and Sanjeev Yadav, who had became entitled to default bail under Section 167 (2), CrPC in April this year, when the police failed to file its charge sheets on time. Their cases did not come up in court for remand on account of the COVID-19 lockdown..In the course of dealing with two bail applications, the Court was informed that since courts were closed between March 24 and June 26, only first/fresh remand cases were taken up, and no remand orders were passed in the pending cases. .The Court minced no words in terming this a serious dereliction of duty on the part of Sessions Judges and Magistrates. ."This Court is constrained to observe that non performance of duty owing to holidays is firstly a serious dereliction of duty on the part of the Session Judges/magistrates and secondly 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", reads the order..... courts of law must remain open for the protection of Article 21 of the Constitution of India.Allahabad High Court.Charge sheets in the instant cases were filed belatedly in May. In June, both applicants were denied default bail, with the trial court taking the view that their right to default bail stood eclipsed with the filing of the chargesheets. ."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 Covid- 19", the High Court observed. .The Judge proceeded to point out that even the work on holiday rule of the General Rules (Criminal), 1977 had been misinterpreted by the District/Session Judges and Magistrates. The High Court noted that Rule 186 provides that bail, remand matters should be taken up on holidays by the criminal court. .Further, the Rule provides that "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", the order records. .As such, the District Judges were under a bounden duty to assign remand duty to the courts of magistrate/Session Judge during the lock-down period. Irrespective of whether the courts were closed, the remand matters were bound to be taken up, the High Court underscored. Pertinently, it added:. "... 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 right of personal liberty is an indefeasible right which for the purposes of its enforcement remained unaffected during the lock-down...Allahabad High Court.The Court proceeded to allow the release of both bail applicants on bail. .The Court has also asked for details to be submitted on Magistrates or Sessions Judges from Lucknow and Hardoi who have failed to pass remand orders between March 25 and June 16, 2020..Has legal aid reached prisoners amid COVID-19? Court to examine.Notably, the Judge has decided to examine to what extent legal aid services have reached undertrial prisoners amid the COVID-19 pandemic. .It was unfortunate that these services were rendered inadequately by the State and the legal services authorities during the COVID-19 pandemic, the High Court opined, adding that, ."... 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.".Since the pandemic is still continuing, the Court has now issued notice to the National Legal Service Authority as well as the State Legal Services Authority so that they can apprise the Bench on how prisoners such as the applicants before the Court were or are being helped amid the pandemic. .The matter has been posted to be taken up next on December 10. .Read the order: