Cases Where Anticipatory Bail Can Be Granted Even After Submission Of Charge Sheet: Allahabad High Court Issues Guidelines

The Allahabad High Court on Monday observed that non grant of anticipatory bail to an accused only on the ground that charge-sheet has been submitted by the Investigating Officer or cognizance has been taken by the Court against him under sec. 204 of Cr.P.C. without considering the prima facie veracity of the same, will "not be in the larger interest of justice."

A single judge bench comprising of Justice Siddharth, while making the said observation, propounded various "appropriate cases" where anticipatory bail can or cannot be granted to an accused apprehending arrest even after submission of the chargesheet or cognizance being taken by the Court.

The observation came while the bench was dealing with an anticipatory bail filed by one Shivam accused under sec. 323, 504, 506 of IPC along with sec. 3(1)(r)(s) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. The FIR was lodged by a journalist alleging that the accused, along with other co accused, abused him by using the word "dhed chamaar" and also abused him in the name of his mother and sister. It was also alleged that they also threatened him that if he will indulge in journalism, he would be killed.

It was the case of the applicant that the chargesheet was submitted without collecting any evidence against him. Moreover, it was argued that cognizance was also taken by the Court on 20th November 2020. It was also submitted that no role was assigned to him regarding intimidation or insult of the informant in public view and therefore, the implication of the applicant for offence u/s 3(1)(r)(s) of the S.C./S.T. Act, was without any basis.

The Court while considering the legal provisions with regards to investigation and submission of chargsheet at length, observed that the "appropriate cases" wherein anticipatory bail can be granted are those cases "where charge-sheet submitted by the Investigating Officer and process issued by the Court after taking cognizance under Section 204 Cr.P.C. can be quashed by the High Court in exercise of its jurisdiction under Section 482 Cr.P.C."

Appropriate cases where anticipatory bail can be granted after submission of chargesheet and cognizance taken by the Court

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 suit.

3. 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.

4. 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.

5. 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.

6. Where charge-sheet has been submitted on the basis of evidence or materials which are wholly irrelevant or inadmissible.

7. 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.

8. 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.

9. 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.

10. 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.

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.

However, the Court clarified that the list of "appropriate cases" is not exhaustive and that anticipatory bail can be considered by the Court after considering the entirety of the facts and circumstances of the case and the material collected by the Investigating Officer/statement of witnesses recorded in support of complaint case.

Appropriate cases where anticipatory bail cannot be granted after submission of chargesheet and cognizance taken by the Court

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

7. 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.

8. 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.

9. 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.

10. 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.

Investigation and Chargesheet Forms Genesis of Criminal Trial

The Court also went ahead to observe that the investigation and chargesheet form the genesis of a criminal trial. In observing so the Court held that:

"The investigation includes all the procedures which are done by the police officer under the Code for the collection of evidence. The police on registration of FIR shall upon perusal of the facts of the case decide the line of investigation i.e whether there is circumstantial evidence or eyewitnesses. Circumstantial evidence is the something which is a chain of circumstances that lead to the crime for example previous animosity, threats, last seen theory. It is basically connection of various circumstances to the crime. On the other hand, eyewitnesses are those who have seen the incident take place."

Noting that a chargesheet is a final report prepared by the investigation or law enforcement agency for proving the accusation of a crime, the Court observed that such a report entails and embodies all the stringent records right from the commencement of investigation procedure of lodging an FIR till the completion of investigation and preparation of final report. Section 173 of the Code of Criminal Procedure, 1973 providing for report of the police officer.

While relying on plethora of judgments on the subject, the Court observed thus:

"The Hon'ble Supreme Court has held in number of cases that fair investigation, which precedes filing of charge-sheet, is a fundamental right under Article 21 of the Constitution of India. Therefore, it must be fair, transparent and judicious. A tainted and biased investigation leads to filing of a charge-sheet which is infact based on no investigation and therefore, the charge-sheet filed in pursuance of such an investigation cannot be held to be legal and in accordance with law."

Court Must be Cautious while Considering Anticipatory Bail Applications After Submission of Chargesheet

While making the abovementioned observations, the Court also held that the Court has to be cautious in considering the anticipatory bail applications filed by the accused after submission of charge-sheet.

"Right to liberty is sacrosanct and guaranteed under Article 21 of the Constitution of India. Under Article 14 of the Constitution of India, there is equal protection of law to everyone, informant/complainant and accused, alike. During investigation stage or during trial stage, "presumption of innocence of accused" is intact and it is so till he is convicted either under Section 255 Cr.P.C. (summons case), Section 248 Cr.P.C. (warrant case) or 19 under Section 335 Cr.P.C. (sessions case). Only when he is convicted, presumption of innocence gets replaced by a judgement of conviction." The Court observed.

Applying the said observation to the facts of the present case, the Court observed that the informant journalist was threatened by the accused at a time when he was helping in removing the crowd with the help of police in times when covid cases were sweeping in the country. The Court also observed that the accused persons were habitual of misbehaving with the people of locality. The Court therefore rejected the anticipatory bail application by observing thus:

"The statements of other witnesses recorded by the Investigating Officer also proves the above allegations. 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."

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