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 mear
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 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;
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 charge-sheet 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 charge-sheet by the Investigating Officer.[Para No.41]
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.[Para No.42]
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 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.[Para No.43]
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.[Para No.44]
Allahabad High Court
Shivam
Vs.
State Of U.P.
Decided on 05/04/2021