Right of Accused To Get Bail Even If Chargesheet Is Filed

 

RIGHT OF ACCUSED TO GET BAIL EVEN IF CHARGESHEET IS FILED

The Th e lib iber ertty of an ind ndiv iviidu dual al is a ma matt tter er of grea greatt co cons nsti titu tuttion onal al importance and personal liberty is one of the cherished object of the In Indi dian an Cons Consti titu tuti tion on and and de depr priv ivat atio ion n of the the sa same me ca can n be on only ly in accordance accord ance with the law and in conformity with the provisions thereof thereof,, as stipulated under Article 21 of the Constitution of India.

 After registration of FIR, following which police starts the investigation as per the procedure prescribed in Code of Criminal Procedure, 1973 and as per Section 167 of the Code as it stands thus mandates that the investigation ought to be completed within the period prescribed of  24 hours, but if such is not completed then Magistra Magistrate te could authorize the detention of the accused in custody into a maximum period of 60 days or 90 days as the case as indicated in the proviso to sub-section (2) of Secti Section on 167 of Code of Crimi Criminal nal Procedure, 1973. Furthe Further, r, in all cases where the minimum sentence is less than 10 years but the maximum sentence is not death or life imprisonment, then Section 167 (2)(a)(ii) will apply and the accused will be entitled to grant of ‘default bail’1 after 60 days, in case charge-sheet is not filed. However, in the matter of Achpal @ Ramswaroop & Another v. State of Rajasthan 2, the Hon’ble Supreme Court expressed that no court has the power to extend the period of investigation in terms of Section 167 of Cr.P.C.

Generally, after the filing of charge sheet, the chances of getting bail generall gene rally y increas increase, e, primari primarily ly due to three three rea reason sons s viz viz.. firstly, firstly,   since investigation is completed by police, the custody of the accused is no longer required for investigat investigation; ion; and secondly, secondly, trial  trial when commences may take time to complete and therefore it would cause injustice to 1

  Uday Mohanlal Acharya v. State of Maharashtra (2001) 5 SCC 453  AIR 2018 SC 4647

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accused to kept in jail for years, if later, it would be found that he did not commit crime and he was not found guilty and therefore to keep a balan bal ance ce of righ rightt of vict victim im as well as ac accu cuse sed, d, an and d thirdly, thirdly,   evidence wou ould ld have have alre alread ady y bee een n co coll llec ecte ted d by the po poli lic ce, cha hanc nces es of  destruction or concealment of evidence by accused. However, bail granted would be cancelled if the accused is enlarged on bail during investigation stage then he is likely to destroy or conceal the evidence or may influence / threaten the witnesses.

In ca case se3  re regi gist stere ered d by Vigi Vigilan lance ce De Depa part rtme ment nt un under der Se Sect ction ion 7A of  Prevention of Corruption Act, investigation was completed by police and chargesheet was filed. Petitioner in that case filed bail application stating that since chargesheet was filed then petitioner ought to be released but the same was rejected by High Court and the same was challenged by petitioner before Apex Court. That Hon’ble Supreme Cou ourt rt th that at ch char arge ge she heet et ha has s alre alread ady y bee een n fi filled an and d ther theref efor ore e considering the facts and circumstances of the present case, petitioner  be released on bail.

That a question was arose before Apex Court was whether no remand in police custody can be given to the investigating agency in respect of  the absconding accused accused who is arrested only after filing of the charge sheet, the Apex Court in Central Bureau of Investigation v. Rathin Dandapat, 2015 SCC OnLine SC 743, 743 , relying upon State v. Dawood Ibrahim Kaskar, (2000) 10 SCC 438, 438 , held that police remand can be sought under Section 167(2) CrPC in respect of an accused arrested at the stage of further investigation, if the interrogation is needed by the investigating agency.

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 Abhishek Anand vs State of Bihar SLP (crl) 1568 of 2020

 

It was submi submitt tted ed in ca case se in Serious Fraud Investigation vs Nittin Johari   20 Johari 2019 19 (5 (5)) SCC 26 266 6  that that on once ce inve invest stig igat atio ion n is over over an and d a chargesheet has been filed, the nature of allegations may not be a factorr to decide if bail is to be granted and instead, in such cases, the facto Court must consider whether the applicant has been cooperating in the investigation, and whether whether there is a possibility that the applicant may abscond or tamper with evidence and mere apprehension of tampering or absconding is not enough to deny bail, and that there should be an attemp att emptt at tam tamperi pering ng with with evi eviden dence ce or certain certainty ty that that the peti petitio tioner  ner  would abscond if he is granted bail.

That Apex Court in San anja jay y Ch Chan andr dra a v. Cen entr tral al Bur urea eau u of  Investigation, (2012) 1 SCC 40, granted 40,  granted bail since custody was felt to be unnecessary after the chargesheet had been filed.

In view of above it is clear that considerations 4 in granting bail even if  chargesheet was filed by police depending upon the merits of the case and largely upon the nature and gravity of offence 5; the position and the ac accu cuse sed d wi with th refe refere renc nce e to the the vict victim im an and d the the th the e st stat atus us6  of the witn wi tnes esse ses; s; the the like likeli liho hood od of th the e ac accu cuse sed d fl flee eein ing g fr from om just justic ice, e, of  repeating the offence, of jeopardising his own life being faced with a grim prospect of possible conviction in the case, of tampering with witnesses7.

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 Gurcharan Singh v. State (Delhi Admn.), AIR 1978 SC 179  Nimmagadda Prasad vs. Central Bureau of Invesgaon 6  Panchanan Mishra v. Digambar Mishra, (2005) 3 SCC 143 7  State of U.P. v. Amarmani Tripathi, [(2005) 8 SCC 21

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