Monday, August 8, 2022

Allahabad HC denies anticipatory bail to man who used casteist slurs against journalist

A single bench of Justice Siddharth passed this guideline while hearing a Criminal Misc. Anticipatory Bail Application U/S 438 CR.P.C. filed by Shivam.

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The Allahabad High Court on Monday laid down detailed guidelines for the grant of anticipatory bail. A single-judge bench of Justice Siddharth passed this guideline while hearing a Criminal Misc. Anticipatory Bail Application U/S 438 Code of Criminal Procedure filed by Shivam.

The anticipatory bail application has been filed with a prayer to grant anticipatory bail to applicant Shivam in a case 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.

The allegation in the FIR 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 tough guys 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 casteist slurs 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.

The counsel for the applicant has submitted that the applicant has been falsely implicated in this case.

The counsel for the applicant further submitted that no specific role was assigned to the applicant in the FIR. Without collecting any evidence against the applicant, charge-sheet has been submitted against him on May 12, 2020 and cognizance has been taken thereon on November 20, 2020.

There is no role assigned to him regarding intimidation or insult of the informant in public view and therefore, the implication of the applicant for offence u/s 3(1)(r)(s) of the S.C./S.T. Act, is without any basis , said the Counsel.

He has further submitted that from the material collected by the Investigating Officer, it is not proved that the informant was abused by the applicant and co-accused, knowing that he belongs to Scheduled Castes. He has no criminal history to his credit. The applicant has definite apprehension that he may be arrested by the police any time.

The Additional Government Advocate has opposed the prayer for anticipatory bail of the applicant. He has submitted that in view of the seriousness of the allegations made against the applicant, he is not entitled to grant of anticipatory bail. The apprehension of the applicant is not founded on any material on record. Only on the basis of imaginary fear, anticipatory bail cannot be granted.

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The High Court noted that in an earlier case of Adil v. State of UP, the Court had held that anticipatory bail can be granted to an accused even after submission of charge-sheet in “appropriate cases”.

“On the basis of that judgment, 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,”

-the Court observed.

The Court cited judgment of the High Court In the case of Adil (supra), in which the High 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.

The Court passed the guidelines for grant of anticipatory bail to an accused apprehending arrest, even after submission of charge-sheet:

(1) Where the charge-sheet has been submitted by the Investigating Officer/cognizance has been taken by the Court, but the merits of the FIR/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 FIR under the provisions of CrPC 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 FIR/complaint has clearly been lodged by way of counterblast to an earlier FIR lodged/complaint filed by the accused against the informant/complainant in near proximity of time. The motive of lodging the false FIR/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 FIR lodged/complaint filed by the accused against the informant/complainant;

(4) Where the allegations made in the FIR/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 FIR/complaint does not discloses the essential ingredients of the offences alleged;

(5) Where the allegations made in the FIR/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/FIR by legally incompetent authority, it cannot proceed;

(8) Where the allegation in the FIR/complaint do not consitute cognizable offence but constitute only a noncognizable offence and investigation has been done by police without order of Magistrate u/s 155(2) CrPC;

(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 FIR 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 22 to record the statement of the accused would not constitute a ground for grant of anticipatory bail;

11) Where there is statutory bar regarding filing of FIR 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.

It was clarified by the Court on the cases where 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 FIR/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 FIR/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;
  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.

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“In the present case, from the perusal of the statement recorded by the Investigating Officer, the Court finds that the incident in dispute took place on April 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,”

-the Court observed.

“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,” the order reads.

Therefore, in view of the guidelines mentioned in the order, the Court rejected the anticipatory bail application.

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