In an important, impartial, interesting, immaculate, intellectual and inevitably a must read judgment titled Shivam vs State of UP and Another in Criminal Misc Anticipatory Bail Application u/s 438 CrPC No. – 2110 of 2021 observed remarkably and most rightly 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 Section 204 of CrPC without considering the prima facie veracity of the same, will not be in the larger interest of justice.

It is significant to mention here that a Single Judge Bench comprising of Justice Siddharth of the Allahabad High Court while making the said observation, propounded various appropriate and relevant 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 said significant observation came while the Bench was dealing with an anticipatory bail that was filed by one Shivam after an FIR was filed by a journalist and who was accused under Section 323, 504, 506 of IPC along with Section 3(1)(r)(s) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989.

To start with, the ball is set rolling by a Single Judge Bench of Justice Siddharth of Allahabad High Court in the first relevant para 4 that deals with order on criminal miscellaneous anticipatory bail application wherein it is put forth that:
The instant anticipatory bail application has been filed with a prayer to grant an anticipatory bail to the applicant, Shivam, in Case Crime No. 16 of 2020, under Sections- 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 Station- Churkhi, District- Jalaun at post-cognizance stage.

To be sure, it is then stated in para 5 that:
Prior notice of this bail application was served in the office of Government 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.

To put things in perspective, the Bench then while elaborating on the facts of the case observes in para 6 that:
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.

As we see, the Bench then states in para 9 that:
This Court in the case of Adil Vs. State of U.P. passed in Criminal Misc. Anticipatory Bail Application U/S 438 Cr.P.C. No. 8285 of 2020 dated 08.12.2020, relying upon the judgement of 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 chargesheet in appropriate cases. On the basis of the aforesaid judgement of this Court in the case of Adil (supra), 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 and the counsels are trying to justify filing of such applications on the basis of number of submissions arguing that it is an appropriate case for grant of anticipatory bail even after submission of charge-sheet.

One must note that it is then stated in para 10 that:
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.

Truth be told, it is then conceded in para 11 that:
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 person after the submission of the charge-sheet and on issuance of a warrant of arrest gets the knowledge of the case and then, only for the first time, he has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence. In a case of this nature, it cannot be thought of that the person who was unaware of the case should be arrested and kept in custody of the police or of the Court for getting an opportunity of filing an application under Section 437 or under Section 438 of the Code. It is desirable to keep in view the observations of the Law Commission and also of the Apex Court as regards the necessity of passing an order under Section 438 in these days when political vendetta and other factors rule the realm of police investigation of a case. This Court is not unmindful of a situation that in a complaint case a process can be issued relying on the statements of the witnesses examined under Section 200. But the person against whom those statements were made might be falsely implicated to satisfy political or personal vengeance and may be without his knowledge.

Interestingly enough, the Bench then also concedes in para 12 that:
It is a settled principle of law that a man cannot be stated to be guilty unless his guilt is proved after adducing reliable evidence. Sending a person to custody after finding his guilt is a rule. But before finding the accused guilty, it is not always possible or permissible to conclude on the basis of the charge-sheet or on the basis of the process issued under Section 204 in a complaint case that custody of that person is necessary. The word bail has not been defined in the Code, the literal meaning of the word bail is to set free or liberate a person on security being given of his appearance. In Law Lexicon, the word bail is defined to set at liberty a person arrested or imprison on security being taken for his appearance. So the accepted meaning of bail is to release of a person from legal custody.

What next follows is then stated in para 13 that:
Under Section 438, the question posed before the High Court or the Court of Session is whether a person if arrested on an accusation of having committed a non-bailable offence, can be released on bail. The apprehension of such an arrest is possible only when the person is being haunted by the police or other authority. In many of the cases such haunting of a person is possible only after the issuance of the warrant of arrest after the filing 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 the Code or after the issue of warrant of arrest in a complaint case.

Be it noted, it is then stated in para 15 that:
Investigation and chargesheet form the genesis of the Criminal Trial. Chargesheet 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.

For the sake of clarity, the Bench then clarifies in para 16 that:
The police officer who is pursuing the investigation is empowered to require the attendance of the witnesses. The witnesses shall be such who are acquainted with the facts and circumstances of the case. The powers have been conferred under Section 160 of the Code. The provisions of Section 160 of the Code explicitly mention that no male below fifteen years or a woman shall be called to attend at any other place than the place where she resides.

Furthermore, it is then stated in para 17 that:
The non-compliance of summons under Section 160 of the Code is punishable under Section 174 of the Code. The person who is required to appear when served summons does not do so shall be liable to simple imprisonment up to one month or with a fine up to INR 500 or both. The section only requires the attendance of the witnesses and furnishing of relevant information about them. The police officer cannot insist upon the witnesses for the production of documents before him. The order which requires the attendance of a person needs to be in written form.

Of course, it is then stated in para 18 that:
The most crucial part of the investigation lies in the examination of witnesses. The statements made by them can hold a person guilty. The police officer who is investigating 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.

More significantly, it is then laid bare in para 40 that:
After consideration of the above legal provisions with regard to investigation and submission of charge-sheet and also the judgements of the Apex Court in this regard, this Court finds 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. and also some more cases. Therefore, 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 u/s 204 Cr.P.C. without considering the prima facie veracity of the same, will not be in the larger interest of justice.

Most significantly, what forms the backbone of this extremely laudable judgment is then stated in para 41 wherein it is held that:
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:

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.
    
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 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 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 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 chargesheet by the Investigating Officer.

However, it is also worth noting that it is then stated in para 43 that:
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 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.; 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.
     

Nonetheless, it is then clarified in para 44 that:
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.

What also cannot be glossed over is then stated in para 45 that:
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 judgements 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 under which sub-paragraph of paragraph 41 stated hereinabove, the case of the applicant is covered;
3. Clear pleading should also be made that the case of the applicant is not barred by paragraph 43 mentioned aforesaid;
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 chargesheet 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.

Briefly stated, the Bench then lays down in para 46 that:
In the present case, from the perusal of the statement recorded by the Investigating Officer, this Court finds that the incident in dispute took place on 04.04.2020 when the first corona wave was sweeping the country and the informant has stated that being a journalist, he got the crowd removed with the help of police since there were chances of spread of infection. Thereafter, the applicant and co-accused persons threatened him 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.

As a corollary, the Bench then elucidates in para 47 that:
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.

Furthermore, the Bench then observes in para 48 that:
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. Finally, it is then mentioned in para 49 that:
It is accordingly, rejected.

To conclude, Justice Siddharth has superbly, suavely and significantly laid bare everything most clearly on where anticipatory bail can be granted even after submission of charge sheet and where it cannot be granted. Not just this, Justice Siddharth has explained each and every topic so elegantly, eloquently and effectively that it is just not possible to describe in words and due to paucity of space it was just not possible to discuss each and every aspect which he dwelt upon in his 25-page most commendable judgment, most well written and most well backed with relevant case laws!

Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh.