TaxTMI 
TaxTMI 
2021 (4) TMI 1372
X X X X Extracts X X X X
X X X X Extracts X X X X
....ent Advocate and as per Chapter XVIII, Rule 18 of the Allahabad High Court Rules and as per direction dated 20.11.2020 of this Court in Criminal Misc. Anticipatory Bail Application U/S. 438 Cr.P.C. No. 8072 of 2020, Govind Mishra @ Chhotu Versus State of U.P., hence, this anticipatory bail application is being heard. Grant of further time to the learned A.G.A. as per Section 438 (3) Cr.P.C. (U.P. Amendment) is not required. 6. The allegation in the F.I.R. is that the informant is a newsman. He noticed that crowd has collected on the bus stand. He requested the policemen in Dial 112 vehicle standing nearby to remove the crowd. The crowd was removed. Thereafter, some dabanggs of the locality namely Prashant, son of Shyam Kishore Tiwari and Shibbi @ Shivam Tiwari (applicant), son of Mahant Tiwari, came 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 applicant. They threatened him that if he will indulge in journalism, he would be killed. 7. Learned counsel for the applicant has submitted that the applicant has been falsely implicated in this case. He has next subm....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ission of charge-sheet. 10. In the case of Adil (supra), this Court had not defined what are "appropriate cases" wherein anticipatory bail can be granted to an accused even after charge-sheet has been filed by the Investigating Officer of police against him before the competent Court. 11. It is true that charge-sheet in a case is generally filed after finding out a prima facie case. Similarly, in a complaint case the learned Magistrate after examining the witnesses and perusing the documents produced, issues processes like warrant of arrest. In both these occasions cognizance is taken and thereafter, processes are issued indicating that the learned Magistrate was prima facie satisfied from the materials on record as regards the commission of the offence and thereafter issues appropriate process for apprehension of the accused person. It is to be noted that this Court is not considering a stage when an application under Section 438 is to be filed since it has been decided in the case of Adil (supra). There are cases in which charge-sheets have been filed by the police after investigation without the knowledge of the accused persons showing them as absconders. Such an accused p....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ling of the charge-sheet or after the steps under Section 204 of the Code are taken. At this juncture a person cannot move the Courts under Section 437 or under Section 439 because he is not in custody. But he can very well approach the High Court or the Court of Session under Section 438 for an appropriate order. The High Court or the Court of Session in its turn is competent to examine the case of the person and his suitability to be enlarged on bail after the arrest and then only an order under Section 438 is passed. So filing of an application under Section 438 itself does not mean that the applicant will be entitled to an order thereof. It is already settled that an order under Section 438 can be passed after examining each case cautiously and carefully inasmuch as it is an order converting a non-bailable offence into a bailable one and protecting a person for some time from going to the custody after the arrest. This precisely is the issue in the present case which is required to be answered. What are the "appropriate cases" wherein the anticipatory bail can be filed under Section 438 after the filing of the charge-sheet or after the issuance of a process under Section 204 of....
X X X X Extracts X X X X
X X X X Extracts X X X X
....vestigating the case has been empowered to conduct witness examination. The witnesses are bound to answer the questions which are related to the case truly. Section 161 lays down the procedure for the examination of witnesses by the police. 19. The investigating officer shall examine the persons who are acquainted with the facts of the case. It is the duty of the investigating officer to record the statements of the eyewitnesses without any delay. After examining the witnesses, it is required by the police officer to write down the statement made by the witness. There should be no delay on the part of the police officer investigating the case in examining the witnesses. In the event of a delay of the examination of the witness, the onus lies on the investigating officer for explaining the reasons for the delay. 20. When the delay has been properly explained, it does not have any adverse impact upon the probable value of a particular witness. The police officer while examining the witnesses is not bound to reduce the statements made into writing. It is preferred that the statements should be written or the substance of the whole examination should be written down at least. The....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s is done to take the person by surprise. The basic objective of conducting a search is to find evidence which may help in solving the case. 25. Section 91 of the Code of Criminal Procedure states that whenever a Court or the officer-in-charge of a police station feels that a document or some other thing is necessary for the purpose of the investigation, such Court may issue summon or the officer may in writing, order the person in whose possession the document is to be produced. The document shall be produced at the date and time specified in the summons served to the person. This section does not apply to a person who is accused and on trial. 26. The Court cannot issue a summons for the production of a document or a thing by the accused. This is because it will become self-incrimination under Article 20(3) of the Constitution of India. 27. Under section 92 of the Code, if a document or other thing or a parcel is in the custody of a postal or telegraph authority, and the Magistrate whether Judicial or Executive, any of the Courts wanted that that document for the purpose of investigation, such Magistrate or the Court may order the authority to produce the document before ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... direction in which he shall look for them. He must study the methods of local offenders who are known to the police with a view to recognizing their handiwork, and he must be on his guard against accepting the suspicions of witness and complaints when they conflict with obvious inferences from facts. He must remember that it his duty to find out the truth and not merely to obtain convictions. He must not prematurely commit himself to any view of the facts for or against any person and though he need not go out of his way to hunt up evidence for the defence in a case in which he has satisfactory grounds for believing that an accused person is guilty, he must always give accused persons an opportunity of producing defence evidence before him, and must consider such evidence carefully if produced. Burglary investigations should be conducted in accordance with the special orders on the subject. 108. The first step of the Investigating Officer should be to note in the case diary prescribed by Section 172 of the Code of Criminal Procedure the time and place at which he has received the information on which he acts and to make in the diary a copy of the first information report.....
X X X X Extracts X X X X
X X X X Extracts X X X X
....minal offence must be free from objectionable features or infirmities which may legitimately lead to a grievance on the part of the accused that investigation was unfair and carried out with an ulterior motive. It is also the duty of the Investigating Officer to conduct the investigation avoiding any kind of mischief and harassment to any of the accused. The Investigating Officer should be fair and conscious so as to rule out any possibility of fabrication of evidence and his impartial conduct must dispel any suspicion as to its genuineness. The Investigating Officer "is not to bolster up a prosecution case with such evidence as may enable the court to record conviction but to bring out the real unvarnished truth". (Vide R.P. Kapur Vs. State of Punjab AIR 1960 SC 866; Jamuna Chaudhary & Ors. Vs. State of Bihar AIR 1974 SC 1822; and Mahmood Vs. State of U.P. AIR 1976 SC 69). 3. Vinay Tyagi v. Irshad Ali, (2013) 5 SCC 762, at page 792: 48. What ultimately is the aim or significance of the expression 'fair and proper investigation' in criminal jurisprudence? It has a twin purpose. Firstly, the investigation must be unbiased, honest, just and in accordance wit....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n is ultimately to search for truth and bring the offender to book. 27. Section 2(h) of the Code of Criminal Procedure (for short "the Code") defines investigation to include all the proceedings under the Code for collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorized by the Magistrate in this behalf. 28. In H.N. Rishbud, this Court explained that the investigation generally consists of the following steps: (AIR p. 201, para 5) (1) Proceeding to the spot; (2) ascertainment of the facts and circumstances of the case; (3) discovery and arrest of the suspected offender; (4) collection of evidence relating to the commission of the offence which may consist of the examination of: (a) various persons (including the accused) and the reduction of statement into writing, if the officer thinks fit; (b) the search of places and seizure of things, considered necessary for the investigation and to be produced at the trial; (5) formation of the opinion as to whether on the materials collected, there is a case to place the accused before a Magistrate for tria....
X X X X Extracts X X X X
X X X X Extracts X X X X
....bligation to exhaust all its resources, experience and expertise to ferret out the truth and bring the culprit to book. The manifest defects in the investigation in the case demonstrate an inexcusable failure of the authorities concerned to abide by this paramount imperative. 81. This Court, amongst others, in Amitbhai Anilchandra Shah vs. Central Bureau of Investigation and another (2013) 6 SCC 348, while underlining the essentiality of a fair, in-depth and fructuous investigation had observed that investigating officers are the kingpins in the criminal justice system and reliable investigation is a leading step towards affirming complete justice to the victims of the case. It was ruled that administering criminal justice is a two-end process, where guarding the ensured rights of the accused under the Constitution is as imperative as ensuring justice to the victim. It was held that the daunting task, though a compelling responsibility, is vested on the court of law to protect and shield the rights of both. That a just balance between the fundamental rights of the accused guaranteed under the Constitution and the expansive power of the police to investigate a cognizable of....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tal right of an accused under Article 21 of the Constitution of India. But the State has a larger obligation i.e. to maintain law and order, public order and preservation of peace and harmony in the society. A victim of a crime, thus, is equally entitled to a fair investigation. When serious allegations were made against a former Minister of the State, save and except the cases of political revenge amounting to malice, it is for the State to entrust one or the other agency for the purpose of investigating into the matter. The State for achieving the said object at any point of time may consider handing over of investigation to any other agency including a central agency which has acquired specialization in such cases. 2. Babubhai v. State of Gujarat, (2010) 12 SCC 254: (2011) 1 SCC (Cri.) 336, at page 272: 45. Not only fair trial but fair investigation is also part of constitutional rights guaranteed under Articles 20 and 21 of the Constitution of India. Therefore, investigation must be fair, transparent and judicious as it is the minimum requirement of rule of law. The investigating agency cannot be permitted to conduct an investigation in a tainted and biased ma....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s, came under stress and strain. Long hours of duty in connection with law and order situation, V.I.P. duty, etc., left the police with lesser time to investigate the cases. Under the pressure of work, they started mechanical investigation into the crimes given to them for free and fair investigation. The Investigating Officer is subjected to pressure by the influential persons of society to give report as per their command. The influence of money in conducting investigation is quite evident and it is a very big hurdle in the free and fair investigation of a case. It was suggested by number of Law Commission Reports that the investigation wing of the police should be separated from the law and order wing but it has not materialized as yet. 38. Therefore, it is clear 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 as considered hereinabove. 39. Right to liberty is sacrosanct and guaranteed under Article 21 of the Constitution of India. Under Article 14 of th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ase 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. 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ovided 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 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. 42. 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....; 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. 44. 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. 45. 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:- (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 statin....