Pandemic or mass disaster cannot override Article 21 protection: Allahabad HC  

The HC has come down heavily on the lower court’s decision to not recognise the accused’s rights to default bail on grounds of Covid lockdown


The Allahabad High Court observed that the Sessions Judge and Magistrates have not performed their duty and noted, “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.” (Abhishek Srivastava v State of U.P Bail App No. 5384 of 2020) and (Sanjeev Yadav v State of U.P Bail App No. 5756 of 2020).

Criticising the conduct of lower courts, Justice Attau Rahman Masoodi remarked, “Non-performance of duty owing to holidays is firstly a serious dereliction of duty on the part of the Session Judges/magistrates.”


The Court was hearing two bail applications 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 which violated their right to personal liberty embodied under Article 21 of the Constitution of India.

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. Abhishek Srivastava’s first remand order was passed on January 16, 2020, thereafter, the judicial custody continued from time to time and lastly, the remand was extended for a period of fourteen days, that is up to March 25, 2020.

Subsequently, due to Covid imposed lockdown, no remand orders could be passed from March 25 to June 26, 2020.

The period of 90 days (as mandated under section 167[2]) in his application expired on April 14, 2020 and in absence of any remand order since March 25, the applicant (Abhishek Srivastava) continued languishing in jail till the filing of the charge sheet on May 1 and thereafter until the rejection of default bail by the Magistrate on June 26.

Similarly, in the case of Sanjiv Yadav, his right of default bail accrued to him on April 29, 2020 on completion of 90 days. This right was very much alive when the charge sheet was filed in the court on May 5, however, he too was denied default bail.

The Single Bench then opined on Abhishek’s application, “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.”

So, the issue that the court was faced with was whether such a right guaranteed under Article 21 of the Constitution of India would stand eclipsed under the lock-down directives issued by the Government or any directives issued by the High Court applicable on holidays contrary to the mandate embodied under Section 167(2) Cr. P.C?

Section 167(2) empowers the Magistrate to detain an accused in jail for a maximum period of 90 days only.

Courts observations and final order

While taking note of the matter before it, the High Court said, “The District Judges were under a bounden duty to assign the remand duty to the courts of magistrate/Session Judge during the lock-down period and irrespective of the fact that the courts were closed, the remand matters were bound to be taken up and 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.PC.”

“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”, the Bench added. With respect to Abhishek Srivastava’s application, the court said, “The report forwarded by the District Judge, Lucknow is alarming and the selective role which the courts have played from March 25 to April 16, 2020 deserves to be condemned.”

The court also lamented over the unfortunate situation created by the State. “It is unfortunate to note that the legal services which the law contemplates as an essential service for victims was rendered inadequately by the State as well as by the legal services authorities during the Pandemic Covid-19. In the absence of the services of legal practitioners, 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”, he said.  

Regarding the two bail pleas filed by the petitioners, the court first noted that in Abhishek Srivastava’s application, “There is a clear dereliction of duty in Bail Application No. 5384 of 2020 (Abhishek Srivastava v. State of U.P.) and the position is amply evident from the report of the District Judge,” and directed the Magistrate to order for his immediate release.

With regard to the second Bail Application No. 5756 of 2020 (Sanjeev Yadav v. State), Justice Masoodi noted, “The prosecution has adopted a peculiar stand to justify the default. It is stated that the closure of court prevented them to file the charge sheet before the deadline i.e. April 29. The prosecution has taken a bald plea without showing any steps having been taken to file the charge sheet by approaching the court or through online service.”

Further, the Court said, “The right of default bail which undoubtedly accrued to the applicant became enforceable on 29.4.2020 (April 29). This right was very much alive when the charge sheet was filed in the court on 5.5.2020 (May 5) and survived thereafter.” The Court said that the applicant Sanjeev Yadav was entitled to be enlarged on bail.

The Allahabad High Court directed the Senior Registrar of this Court, in the light of report forwarded to the Court on September 29 by the District Judge, Lucknow, to obtain the relevant details of magistrates/Session Judges from District Lucknow/Hardoi who had failed to pass remand orders from March 25 to June 16.

The matter has now been listed on December 10.

The order may be read here:



Right to default bail: Not just statutory, but a fundamental right

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