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RIGHT OF ACCUSED TO GET BAIL EVEN IF CHARGESHEET IS

FILED

The liberty of an individual is a matter of great constitutional


importance and personal liberty is one of the cherished object of the
Indian Constitution and deprivation of the same can be only in
accordance with the law and in conformity with the provisions 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 Magistrate 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 Section 167 of Code of Criminal Procedure, 1973. Further, 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
generally increase, primarily due to three reasons viz. firstly, since
investigation is completed by police, the custody of the accused is no
longer required for investigation; and secondly, 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
2
AIR 2018 SC 4647
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
balance of right of victim as well as accused, and thirdly, evidence
would have already been collected by the police, chances 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 case3 registered by Vigilance Department under Section 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
Court that charge sheet has already been filed and therefore
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 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, relying upon State v. Dawood
Ibrahim Kaskar, (2000) 10 SCC 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.

3
Abhishek Anand vs State of Bihar SLP (crl) 1568 of 2020
It was submitted in case in Serious Fraud Investigation vs Nittin
Johari 2019 (5) SCC 266 that once investigation is over and a
chargesheet has been filed, the nature of allegations may not be a
factor to decide if bail is to be granted and instead, in such cases, the
Court must consider whether the applicant has been cooperating in the
investigation, and 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
attempt at tampering with evidence or certainty that the petitioner
would abscond if he is granted bail.

That Apex Court in Sanjay Chandra v. Central Bureau of


Investigation, (2012) 1 SCC 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 status6 of the accused with reference to the victim and the
witnesses; the likelihood of the accused fleeing from justice, 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.

4
Gurcharan Singh v. State (Delhi Admn.), AIR 1978 SC 179
5
Nimmagadda Prasad vs. Central Bureau of Investigation
6
Panchanan Mishra v. Digambar Mishra, (2005) 3 SCC 143
7
State of U.P. v. Amarmani Tripathi, [(2005) 8 SCC 21