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  • Writer's pictureNayan Saini

Case Analysis: Shivam v. State Of Uttar Pradesh and Another

FORUM: Allahabad High Court

BENCH: Justice Siddharth

CASE NO.: Criminal Misc Anticipatory Bail Application U/S. 438 Cr.P.C. No. 2110 of 2021

DATE OF DECISION: 05.04.2021

The instant bail application was filed with a prayer to grant anticipatory bail to the applicant who was alleged of committing offense under sections- 323, 504, 506 IPC & Section 3(1)(r)(s) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 at the post-cognizance stage. 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 because the accused was aware of the caste of the applicant. It was further alleged that they also threatened him that if he will indulge in journalism, he would be killed.

It was contended by the applicant that the charge sheet was submitted without collecting any evidence against him. Moreover, it was argued the Court below also took cognizance. 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. He further contended that from the material collected by the Investigating Officer, it is not proved that the informant was abused by the applicant and co-accused, knowing that he belongs to the scheduled caste and relied upon the judgment of the Apex Court in the case of Gorige Pentaiah v. State of A.P. & Ors.[1] It was also assured by the applicant that he will cooperate with the trial and maybe enlarged on anticipatory bail.

The court while considering the legal provisions with regards to investigation and submission of charge sheet at length, observed that these form the genesis of a criminal trial.

"Charge sheet is the outcome of investigation. Under Section 157 of the Code of Criminal Procedure, the procedure of investigation in criminal cases has been incorporated. It requires the intimation of information to the police officer on the commission of a crime. 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.”

Court further observed that a charge sheet is a report prepared by the investigating officer or law enforcement agencies proving the accusation of a crime in a criminal court of law. Section 173 of Cr.P.C. provides for a report of the police officer and filing of the same with the magistrate indicates the commencement of criminal proceedings and end of the investigation.

Also, while noting about what is fair investigation court relied on a plethora of judgments on the subject and observed that:

“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 in fact 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.”

Further while making the aforesaid observation, the Court also observed the pressure under which police and Investigating Officer has to work in a welfare state and held that the Court has to be cautious in considering the anticipatory bail applications filed by the accused after submission of charge-sheet. There are number of impediments in the way of Investigating Officer in submission of charge-sheet after free and fair investigation.

“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 under Section 335 Cr.P.C. (sessions case). Only when he is convicted, presumption of innocence gets replaced by a judgement of conviction.”

After considering the legal provisions with regards to investigation and submission of charge sheet at length, the Court 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."

The following can be considered as “appropriate cases” for grant of anticipatory bail to an accused apprehending arrest, even after submission of charge-sheet against the accused by the Investigating Officer of the police or after taking cognizance of offence against accused under Section 204 Cr.P.C. by the Trial 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 suits.

  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 disclose 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 constitute cognizable offence, but constitute only a non-cognizable 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 charge- sheet before the Court. Therefore, in such cases, anticipatory bail can be granted to an accused provided the accused has cooperated with the investigation; and

  11. Where there is a 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 charge-sheet by the Investigating Officer.

However, in the following cases, anticipatory bail cannot be granted to an accused after submission of charge-sheet :-

  1. Where the Investigating Officer has submitted charge- sheet 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.; and

  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.

Both of these instances are not exhaustive and there may be some unforeseen situations, which the Court would consider as per the facts and circumstances of the particular case.

Further, the Court also issued guidelines as to when the anticipatory bail is sought by an accused after submission of charge-sheet against him, the following particulars are required 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 as considered above and also the consideration made by the Apex Court in various judgments in this regard: -

  1. The charge-sheet along with the entire material collected by the Investigating Officer should be made part of the anticipatory bail application;

  2. Clear pleading with reference to the material on record should be made stating that the case of the applicant is covered under the "appropriate case" as described under this judgment;

  3. Clear pleading should also be made that the case of the applicant is not barred by conditions mentioned herein where anticipatory bail cannot be granted to an accused after submission of charge-sheet;

  4. 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;

  5. In case the applicant has approached this Court by way of any other proceedings after submission of charge- sheet and has obtained any order in any proceedings, the same shall be disclosed in the anticipatory bail application; and

  6. 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 present case, from the perusal of the statement recorded by the Investigating Officer, this Court observed that the incident in dispute took place on 04.04.2020 when the first corona wave was sweeping the country and the informant was threatened by the accused at a time when he got the crowd removed with the help of police since there were chances of spread of infection. The Court also observed that the accused persons were habitual of misbehaving with the people of the 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 judgment, this anticipatory bail application deserves to be rejected."

[1] 2009 Cri.L.J. 350.

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