Iyer goes to a Police Station to file a First Information Report (FIR) against Jethalal for committing hurt, insulting him about his caste and criminal intimidation. The Police takes note of the circumstances of the case and files a FIR under Section 323, 504, 506 I.P.C. & Section 3(1)(r)(s) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989.
Police then investigates the matter and examines the witness and later files a charge-sheet.
During the course of investigation Jethalal had made himself available for interrogation as and when required, and was thus not taken into custody.
But as soon as the charge-sheet was filed by the Police, Jethalal realised that he could be arrested and thus filed an ANTICIPATORY BAIL before the Court of Sessions.
CAN JETHALAL get the protection of Section 438, CrPC (ANTICIPATORY BAIL)?
This is the question I would be answering today in this blog.
Anticipatory bail became part of the new CrPC in 1973 (when the latter replaced the older Code of 1898), after the 41st Law Commission Report of 1969 recommended the inclusion of the provision.
Section 438 of the Code of Criminal Procedure, 1973, lays down the law on anticipatory bail. Sub-section (1) of the provision reads:
“When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail."
Factors & Conditions for Granting Anticipatory Bail Section 438 (1):
The anticipatory Bail is granted on the basis of the following factors:
1. Nature and gravity of the accusation.
2. Applicant’s possibility of fleeing from justice.
3. Previous cases against the applicant including any previous convictions or cases of a cognizable offence.
4. Accusation has been made with object of injuring or humiliating the applicant by having him so arrested.
Conditions Imposed by Court Section 438 (2):
1. Person shall make himself available for interrogation by a police officer (as and when required).
2. Person shall not (directly or indirectly) make any inducement, interference, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer.
3. Person shall not leave the country and travel abroad without the prior permission of the Court.
4. Any other suitable condition
If a Court rejects the anticipatory Bail a person, he/she can be arrested by the police without a warrant.
Cancellation of Anticipatory Bail:
*Sec. 437(5) & Sec. 439 (2) of CrPC deal with the cancellation of anticipatory Bail. They imply that a Court which has the power to grant anticipatory Bail is also empowered to cancel the Bail or recall the order related to Bail upon appropriate consideration of facts.
*A High Court or Court of Session may direct that any person who has been released on Bail by it- be arrested, and brought under custody after filing of an application by the complainant or the prosecution.
*However, a Court does not have the power to cancel the Bail granted by the police officer.
Conditions for Cancellation of Bail:
Supreme Court in Raghubir vs State of Bihar 1986, laid down the following circumstances where the bail can be cancelled:
1. Hampers investigation,
2. Tampers with Evidence,
3. Commits same or similar offence,
4. Absconds or goes beyond the control of sureties,
5. Misuses liberties granted to him.
Therefore, the court may cancel the bail on following conditions on application of its judicial mind.
The Hon’ble Supreme Court in the case of Sushila Aggarwal vs. State (NCT of Delhi)- 2020 SCC Online SC 98 held that anticipatory bail can be granted to an accused even after submission of charge- sheet in “appropriate cases”.
"Appropriate cases" thus needs to be understood appropriately.
ABC:
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/after taking cognizance of offence against accused under Section 204 Cr.P.C. by the Court :-
MERITS OF FIR/ COMPLAINT CANNOT BE PROVED
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;
CIVIL AND CRIMINAL REMEDY EXIST, BUT INFORMANT/ COMPLAINANT CHOSE ONLY CRIMINAL REMEDY
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 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.
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.
COUNTERBLAST FIR/ COMPLAINT- SHOWING THE MOTIVE
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;
NO CASE IS MADE OUT IN EITHER FIR OR STATEMENT OF WITNESSES
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;
ALLEGATIONS SEEM ABSURD OR IMPROBABLE
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;
EVIDENCES/ MATERIAL FORMING BASIS OF CHARGE SHEET- IRRELEVANT
6) Where charge-sheet has been submitted on the basis of evidence or materials which are wholly irrelevant or inadmissible;
LEGAL DEFECTS IN FILING COMPALINT/ FIR
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;
NOT CONSTITUTE A COGNIZABLE CASE + INVESTIGATION WITHOUT MAGISTRATE ORDER
8) Where the allegation in the F.I.R/complaint do not consitute 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;
MINOR PART OF CHARGE IS PROVED
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;
RULE OF AUDI ALTERAM PARTEM NOT FOLLOWED
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.
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 to record the statement of the accused would not constitute a ground for grant of anticipatory bail; and
STATUTORY BAR ON FIR
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 charge- sheet by the Investigating Officer.
The above instances are not exhaustive and in more “appropriate cases”, the Court can consider grant of anticipatory bail to an accused 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.
XYZ:
However, in the following cases, anticipatory bail CANNOT BE GRANTED to an accused after submission of charge-sheet :-
PLEA OF FALSEHOOD AGAINST WITNESSES- IN A COMPLAINT CASE
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;
FIR/ COMPLAINT AS WELL AS MATERIAL SO COLLECTED SUPPORTS THE CLAIM
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;
CROSS CASES REGISTERED BETWEEN PARTIES AND OFFENCE ALLEGED IS PROVED
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;
LEGAL FORMALITIES ARE COMPLIED WITH
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;
COURTERBLAST IMPLIED FAIL TO SHOW MOTIVE
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;
CIVIL AND CRIMINAL WRONGS MADE OUT- CHARGE SHEET FILED
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;
ACCUSED REFUSED TO GIVE STATEMENT TO INVESTIGATING OFFICER
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;
ACCUSED UNSUCCESSFULLY CHALLENGED CHARGE SHEET/ PROCEEDINGS PENDING
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;
OFFENCE IS OF A SERIOUS NATURE / HABITUAL OFFENDER / COULD ABSCOND/ VIOLATOR OF BAIL CONDITIONS
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
NON COOPERATION IN COURT PROCEEDINGS
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.
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.
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:
(i) The charge-sheet along with the entire material collected by the Investigating Officer should be made part of the anticipatory bail application;
(ii) Clear pleading with reference to the material on record should be made stating under which sub-paragraph of ABC stated hereinabove, the case of the applicant is covered;
(iii) Clear pleading should also be made that the case of the applicant is not barred by paragraph XYZ mentioned aforesaid;
(iv) 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;
(v) 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
(vi) 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.
Thus, Jethalal may get Anticipatory bail if he files an Anticipatory bail application with entire material collected by the Investigating Officer, gives a reference to material stating the sub-paragraph of ABC, justifying that it is not barred by paragraph XYZ, along with an affidavit with a clear averment that this charge-sheet is not challenged before the said Court or if he had approached the Court after the submission of charge sheet by other proceedings and obtained an order in that regard, a mention of such order, and a clear pleading mentioning that after the submission of charge sheet, he did not approach any Court and no proceeding is pending.
THANK YOU.
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