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One order, many yardsticks

Subordinate courts across the country must follow the law scrupulously, whether it is laid by one High Court or the other


IT is common with CBI investigations that the agency arrests only the main accused during the investigation stage and the chargesheets are filed without arresting the other accused. In some cases, none of the accused is arrested during the investigation. When such chargesheets are filed in court, the courts have discretion under Section 87 r/w 204 of CrPC whether to issue summons or warrants of arrest. It is also thus common that the courts normally only issue summons, and not warrants, to seek presence of such accused while taking cognizance of the chargesheets. It is, thus, safe to conclude in such cases that whenever CBI feels that the accused is cooperating with the investigation—is not interfering with the investigation; is not in any way destroying or scuttling evidence; is not trying to influence witnesses and is not likely to run away— it does not arrest such an accused and files a chargesheet. The same can also be presumed for the Judge, who did not choose to issue warrants and only issued summons. It also stands to reason that in such cases, upon appearance of the accused against summons, he should normally be granted bail as there was no doubt in the mind of investigating agency and the Judge that the accused was likely to cooperate during trial.

However, there are precedents where some Judges, even in such cases, placed an accused in judicial custody upon his appearance pending consideration of bail applications and, in some cases, even the bail was rejected.

Looking at these peculiar circumstances, the Delhi High Court on its own motion took cognizance of the issue and in a well-considered judgment—Court On Its Own Motion Vs Central Bureau Of Investigation [109 (2003) DLT 494]—issued specific directions to subordinate courts about the manner in which such cases must be handled. The High Court concluded that circumstances in such cases clearly showed that:

  • the accused had cooperated during investigation with police;
  • no apprehension existed of him committing any further offence;
  • his arrest was not required for investigation of the offence;
  • no apprehension existed of him tampering with evidence, or make it disappear, or make any threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to the police officer;
  • no apprehension existed that his presence in the court, whenever required, cannot be assured; and,
  • even the court issuing summons under Section 87 r/w Section 204 did not have any such apprehensions.

The High Court concluded that there was no reason in such cases for not granting bail to the accused, who was summoned under Section 87 r/w Section 204. The High Court, therefore, gave the following directions to subordinate courts: “The Court shall, on appearance of an accused in a non-bailable offence who has neither been arrested by the police/investigating agency during investigation nor produced in custody as envisaged in Section 170, CrPC, call upon the accused to move a bail application if the accused does not move it on his own and release him on bail as the circumstance of his having not been arrested during investigation or not being produced in custody is itself sufficient to entitle him to be released on bail. Reason is simple. If a person has been at large and free for several years and has not been even arrested during investigation, to send him to jail by refusing bail suddenly, merely because a chargesheet has been filed, is against the basic principles governing grant or refusal of bail.

The Delhi High Court, in another matter of Lt Gen Tejinder Singh Vs CBI, while granting bail to the accused therein, as he was not arrested by the police during the investigation, observed that, “While opposing the bail application, the contention of the learned standing counsel for the CBI that the petitioner has retired from a very senior position and has capacity to influence the witnesses, does not hold water for the simple reason that during investigation of this case, which continued for about two years, CBI never complained that the petitioner indulged in any such activity. CBI also did not feel necessity to arrest the petitioner and it is not the case of the CBI that at any stage of the investigation, any pressure was put on the investigating agency by the petitioner by influencing his colleagues, who were questioned by the CBI during investigation of this case.”

The court further said: “On the premise of aforesaid principles, it can safely be said that while considering the application under Section 437 CrPC, the court cannot be oblivious of, firstly, the fact that the Investigating Officer did not deem it necessary to either arrest the accused during investigation or forward him in custody under Section 170 CrPC while filing the chargesheet under Section 173 CrPC; secondly, that the court while taking cognizance did not find the circumstances existing in Section 87 CrPC while procuring the appearance of the accused through warrant of arrest that the accused has either been absconding or is concealing himself and issued summons for him. Ordinarily, these circumstances would be favorably disposed in favour of the accused in granting bail unless the magnitude of the offence, and the punishment therefore, is very high and severe and there is a likelihood of the accused interfering with witnesses.”

It is the law of the land that when the investigating agency does not find it fit to arrest an accused during investigation, then no purpose is served by sending the accused to judicial custody upon filing of the chargesheet

It is, thus, quite apparent that it is the law of the land that when the investigating agency does not find it fit to arrest an accused during investigation, then no purpose is served by sending the accused to judicial custody upon filing of the chargesheet, as the investigation has already been completed.

While these judgments of the Delhi High Court are being followed by subordinate courts in Delhi, quite often they are not followed in other States. For example, even in the courts at Ghaziabad, these judgments are not being followed. It is trite law that judgments of all superior courts are binding upon all lower courts and the subordinate courts in Uttar Pradesh are bound not only by the judgments of the Allahabad High Court, but also of the Delhi High Court. It would entirely be a different situation if there was a differing judgment of the Allahabad High Court on the point. But, in the absence of any such law, Ghaziabad courts must follow the Delhi High Court judgments.

THERE is yet another strange aspect to this issue. The CBI, which allowed the accused to roam freely during investigation, which in most cases continues for years, suddenly starts to oppose grant of bail to such accused after he appears in court in response to the summons, little realising that it were they who did not deem it fit to arrest the accused during the investigation. When the investigation was complete and the chargesheet has already been filed, what could be the justification for sending the accused to judicial custody pending trial. While it is necessary that anyone who has committed offence against society must be punished, but till such person is actually convicted, he is presumed to be innocent. The law cannot be different in different States of the country. If allowing an accused to roam freely is wrong, to secure the ends of justice, it is also necessary to ensure that the fundamental right of an accused to personal liberty and fair play is not violated. Subordinate courts have to be vigilant and must follow the law scrupulously, whether it is laid by one High Court or the other.

The writer is a senior lawyer in the Delhi High Court.

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