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When can anticipatory bail be granted after submission of chargesheet: Allahabad HC issues guidelines
Shivam Vs State of Uttar Pradesh
CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 2110 of 2021
About/from the judgment:
The High Court laid down detailed guidelines on grant of anticipatory bail listing out "appropriate cases" wherein anticipatory bail can be granted or rejected after the stage of filing of chargesheet.
The judgment rejected the anticipatory bail application of an accused charged under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 for abusing a journalist by using the word "dhed chamaar"
The Court said that the FIR disclosed the alleged offences and the Investigating Officer had collected material supporting the same.
"From the statements of witnesses recorded by the Investigating Officer, the allegation of intimidation with intent to humiliate a member of scheduled caste in public view by taking his caste name is fully proved. Therefore, in view of the conditions laid down in paragraph 43 sub-clause 2 of this judgement, this anticipatory bail application deserves to be rejected."
The FIR was registered against Shivam, under Sections 323, 504, 506 IPC & Section 3(1)(r)(s) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989.
On April 4, 2020 when the first corona wave was sweeping the country, the informant journalist got a crowd removed from a bus station with the help of police since there were chances of spread of infection.
Following this, some unknown people came along with Shivam (accused) and abused the informant by using the word “dhed chamaar” etc. and also abused him in the name of his mother and sister because they were aware of the caste of the informant. They threatened him that if he pursued journalism, he would be killed.
The counsel for the applicant Shivam submitted that he was falsely implicated in this case and no specific role was assigned to the applicant regarding intimidation or insult of the informant in the FIR. It was also contended that the charge-sheet was submitted without collecting any evidence against the applicant.
On the other hand, the Additional Government Advocate opposed the prayer for anticipatory bail.
The High Court noted that in an earlier case of Adil v. State of UP, the Court had held that anticipatory bail can be granted to an accused even after submission of charge-sheet in “appropriate cases”.
The Court in that case had, however, not classified or differentiated those appropriate cases.
On the basis of that judgment, large number of anticipatory bail applications are being filed before this Court on the premise that after submission of charge-sheet, anticipatory bail can be granted to every accused, the Court observed.
It, therefore, decided to lay down the cases wherein anticipatory bail can be granted or rejected before the submission of chargesheet.
The following, the Court said, are “appropriate cases” for grant of anticipatory bail to an accused apprehending arrest, even after submission of charge-sheet:
•1) Where the charge-sheet has been submitted by the Investigating Officer/cognizance has been taken by the Court, but the merits of the F.I.R/complaint that has been lodged by the informant/complainant are such that it cannot be proved against the accused in the Court.
•2) Where there exists a civil remedy and resort has been made to criminal remedy. This has been done because either the civil remedy has become barred by law of limitation or involves time-consuming procedural formalities or involves payment of heavy court fee, like in recovery suits. The distinction between civil wrong and criminal wrong is quite distinct and the courts should not permit a person to be harassed by surrendering and obtaining bail when no case for taking cognizance of the alleged offences has been made out against him since wrong alleged is a civil wrong only. When the allegations make out a civil and criminal wrong both against an accused, the remedy of anticipatory bail should be considered favourably, in case the implication in civil wrong provides for opportunity of hearing before being implicated and punished/penalized. The criminal remedy, in most of the cases, entails curtailment of right to liberty without any opportunity of hearing after lodging of complaint and F.I.R under the provisions of Cr.P.C. which is pre-independence law and disregards Article 14 and 21 of the Constitution of India. Therefore, in such cases where civil and criminal remedy both were available to the informant/complainant, and he has chosen criminal remedy only, anticipatory bail should be favourably considered in such cases.
•When the F.I.R/complaint has clearly been lodged by way of counterblast to an earlier F.I.R lodged/complaint filed by the accused against the informant/complainant in near proximity of time. The motive of lodging the false F.I.R/complaint is apparent and from the material collected by the Investigating Officer or from the statements of witnesses in complaint case, there is no consideration of the earlier F.I.R lodged/complaint filed by the accused against the informant/complainant;
•Where the allegations made in the F.I.R/complaint or in the statement of the witnesses recorded in support of the same, taken at their face value, do not make out any case against the accused or the F.I.R/complaint does not discloses the essential ingredients of the offences alleged;
•Where the allegations made in the F.I.R/complaint are patently absurd and inherently improbable so that no prudent person can ever reach such conclusion that there is sufficient ground for proceeding against the accused;
•Where charge-sheet has been submitted on the basis of evidence or materials which are wholly irrelevant or inadmissible;
•Where charge-sheet has been submitted/complaint has been filed but on account of some legal defect, like want of sanction, filing of complaint/F.I.R by legally incompetent authority, it cannot proceed;
•Where the allegation in the F.I.R/complaint do not consitute cognizable offence but constitute only a noncognizable offence and investigation has been done by police without order of Magistrate u/s 155(2) Cr.P.C;
•Where the part of charge in the charge-sheet regarding major offence alleged is not found to be proved and only minor offence has been found to be proved by the Investigating Officer, from the material collected by him during the investigation, the Court can consider granting anticipatory bail to an accused. Since after investigation and submission of charge-sheet the prosecution allegations in the F.I.R have not been found to be fully correct by the Investigating Officer and only part of the charges are found to be proved;
•Where the investigation has been conducted by the Investigating Officer but the statement of the accused persons have not been recorded by the Investigating Officer and charge-sheet has been submitted only by relying upon the witnesses of the prosecution side. Such a charge-sheet cannot be considered to be in accordance with law since the Investigating Officer is required to consider the case of both sides before submitting chargesheet before the Court. Therefore, in such cases, anticipatory bail can be granted to an accused provided the accused has cooperated with the investigation. However this cannot be an inflexible rule since in most of the cases the accused do not cooperate with the investigation and it is not easy for Investigating Officer to record their statements. Therefore, what prejudice has been caused to an accused by non-recording of his version in the case diary of the police has to be demonstrated before the Court. Merely on the technical ground of omission on the part of the Investigating Officer 22 to record the statement of the accused would not constitute a ground for grant of anticipatory bail;
•11) Where there is statutory bar regarding filing of F.I.R and only complaint can be filed, charge-sheet submitted against an accused in such cases would entitle him to apply for anticipatory bail after submission of chargesheet by the Investigating Officer.
The “appropriate cases” for rejecting anticipatory bail to an accused apprehending arrest, even after submission of charge-sheet were listed as follows:
•Where the Investigating Officer has submitted chargesheet but it is argued that the statements of the witnesses recorded are not truthful. Truthfulness or otherwise of the statements of the witnesses recorded by investigating officer in support of complaint case are to be tested during trial and not at the stage of consideration of anticipatory bail application;
•Where the F.I.R/complaint discloses the alleged offences and the Investigating Officer has collected material which supports the same, without any contradiction, even after considering the statements/material provided by the accused side;
•Where there are cross cases registered by both the parties against each other and the offences alleged is fully proved and charge-sheet has been submitted. Since the incident, as alleged, has been found to have taken place and both the parties admit such an occurrence, hence, there is no doubt about the incident taking place;
•Where charge-sheet has been submitted after compliance of the legal formalities like sanction for prosecution and the F.I.R/complaint has been lodged by the competent authority and there is supporting evidence;
•Where the counterblast implication is alleged that earlier incident took place much before with the incident in dispute and there is no proximity of the second incident in terms of time with the second incident;
•Where there exists a civil remedy but on the same set of allegations, civil wrong and criminal wrong both are made out and charge-sheet has been submitted only regarding the criminal wrong;
•Where the Investigating Officer has approached the accused for recording of his statement during investigation and he has refused to give his statement to the Investigating Officer in his defence and charge-sheet has been submitted against him;
•Where the accused has unsuccessfully challenged the charge-sheet before this Court or any proceedings are pending before this Court regarding the charge-sheet submitted against the accused;
•Where the offence alleged is serious in nature, the accused is habitual in criminality, tendency of abscondance, has violated the conditions of bail granted to him earlier, etc.;
•Where the accused is avoiding appearance before the Court after the cognizance of offence has been taken by the Court on a police report or in a complaint and coercive processes have been repeatedly issued against him and there is no valid explanation given by the accused for his non-appearance before the Court.
When the anticipatory bail is sought by an accused after submission of charge-sheet against him, the following particulars have to be given in the anticipatory bail application to arrive at correct conclusion whether the charge-sheet submitted against the accused can withstand the requirements of law of investigation:
•The charge-sheet along with the entire material collected by the Investigating Officer should be made part of the anticipatory bail application;
•Clear pleading with reference to the material on record should be made stating under which sub-paragraph of paragraph 41 stated hereinabove, the case of the applicant is covered;
•Clear pleading should also be made that the case of the applicant is not barred by paragraph 43 mentioned aforesaid;
•There should be clear averment in the affidavit in support of the anticipatory bail application that the applicant has not challenged the charge-sheet before this Court in any proceeding;
•In case the applicant has approached this Court by way of any other proceedings after submission of chargesheet and has obtained any order in any proceedings, the same shall be disclosed in the anticipatory bail application.
•Clear pleading should be made in the anticipatory bail application that after submission of charge-sheet, the applicant has not approached any court and no such proceeding is pending.
In the instant case, the court noted that the investigation officer had recorded the statements and in pursuance of the same, the allegations against the applicants stood proved.
"The applicant and co-accused persons threatened him (informant) not to become a big journalist and he was subjected to caste related abuses and his mother and sister were subjected to abuses. When he tried to speak, they used the word “chamaar” etc., and he was beaten by legs and fists. When he raised alarm, Kamlesh and Rajbir Singh came and saved him. Thereafter, the accused persons left the scene, threatening him of life. Both the accused persons are habitual of misbehaving with the people of locality. The statements of other witnesses recorded by the Investigating Officer also proves the above allegations."
It, therefore, dismissed the plea.
Read the Judgment
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