Right of accused to get bail even if charge sheet 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 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 case[3] 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.

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 status[6] 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 witnesses[7]. 

• [1]  Uday Mohanlal Acharya v. State of Maharashtra  (2001) 5 SCC 453
• [2] AIR 2018 SC 4647
• [3] Abhishek Anand vs State of Bihar SLP (crl) 1568 of 2020
• [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