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TMI Blog2021 (4) TMI 1372X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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. The purpose of a charge-sheet is to notify a person of criminal charges being issued against them. After the charge-sheet is filed, the person against whom the charge-sheet has been filed comes to be known as an accused. The filing of charge-sheet with the magistrate indicates commencement of criminal proceedings. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ail 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 submitted that no specific role was assigned to the applicant in the F.I.R. Without collecting any evidence against the applicant, charge-sheet has been submitted against him on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 14. Before proceeding further to decide the issue in hand, the basis of charge-sheet and the manner of investigation by police in a case i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 recorded statements are required to be noted down in the case diary maintained under Section 172 of the Code. 21. A police officer or the investigating officer has been empowered under section 165 of the Code to search the premis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 them. 28. Section 173 of the Code requires the investigating officer to file a report before the Magistrate after the collection of evidence and examination of witnesses are done with. This section requires that each and every investigation shall be c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ious 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. When beginning his investigation, he must note in the diary the time and place at which he begins. He should then inspect the scene of the alleged offence and question the complainant and any other person who may be able to throw light on the circumstances. At an early stage of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assment 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 with law. Secondly, the entire emphasis on a fair investigation has to be to bring out the truth of the case before the court of competent jurisdiction. Once these twin paradigms of fair investigation are satisfied, there will be the least requirement for the court of law to interfere with the investigation, much less quash the same, or transfer it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his 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 trial, if so, take the necessary steps for the same for filing necessary charge-sheet under Section 173 Cr.P.C. 6. Dinubhai Boghabhai Solanki v. State of Gujarat, (2014) 4 SCC 626: (2014) 2 SCC (Cri.) 384, at page 643: 48. Undoubtedly, the essence of criminal justice system is to reach the truth. The underlying principle is that whilst the guilty must not escape punishment; no innocent person shall be punished unless the guilt of the suspect/accused is established ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tigating 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 offence has to be struck by the Court was emphatically underlined. We are left appalled by the incomprehensible omissions of the investigating agency in the instant case and we would expect and require that the authorities in-charge of ensuring fair, competent and effective investigation of criminal offences in particular would take note of this serious concern of the Court and unfailingly take necessary remedial steps so much so that these observations need not be reiterated in future entailing punitive consequence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 manner. Where non-interference of the court would ultimately result in failure of justice, the court must interfere. In such a situation, it may be in the interest of justice that independent agency chosen by the High Court makes a fresh investigation. 3. Azija Begum v. State of Maharashtra, (2012) 3 SCC 126, at page 128: 12. In the facts and circumstances of this case, we find that every citizen of this country has a right to get his or her complaint properly investigated. The legal framework of investigation provided under our laws cannot be made selectively available only to some ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rts 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 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 judgment of conviction. 40. After consideration of the above legal provisions with regard to investigation and submission of charge-sheet and also the judgments of the Apex Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ases 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 case. 43. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bove 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 stating under which sub-paragraph of paragraph 41 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 43 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. 46. In the present case, from the p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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