# Shivam v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2021) 6 ILRA 1
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-04-05
- **Case number:** Crl. Misc. Ist Anticipatory Bail Application No 2110 of 2021
- **Bench:** Siddharth
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shivam-v-state-of-u-p-anr-opp-parties-46995
- **Pages:** 17

## Headnote

(a) Criminal Law - Anticipatory Bail -
Code
of
Criminal
Precedure,1973
-
Section 438 - "appropriate cases" - the
appropriate cases wherein anticipatory
bail can be granted are those where
charge-sheet
submitted
by
the
Investigating Officer and process issued
by the Court after taking cognizance
under
Section
204
Cr.P.C.
can
be
quashed by the High Court in exercise of
its jurisdiction under Section 482 Cr.P.C.
and also some more cases. (Para 40)

The anticipatory bail is given only where there
is
an
apprehension
of
arrest.
The
apprehension of arrest is possible only when
the person is being haunted by the police or
other authority. In many of the cases such
haunting of a person is possible only after the
issuance of the warrant of a arrest after filing
of the charge-sheet or after the steps under
Section 204 of the Code are taken. At this
juncture a person cannot move the Courts
under Section 437 or under Section 439
because he is not in custody. But he can very
well approach the High Court or the Court of
Session under Section 438 for an appropriate
order. Filling of an application under Section
438 itself does not mean that the applicant
will be entitled to an order thereof. It is only
after examining the each case cautiously and
carefully inasmuch as it is an order converting
a non-bailable offence into a bailable one and
protecting a person for some time from going
to thr custody after the arrest. (Para 13)

Application Rejected. (E-8)

List of Cases cited:-

## Text

_Characters 0–39,996 of 57,502. This is a partial read: ask again with offset=39996 for what follows._

6 All. Shivam Vs. State of U.P. & Anr.
1
(2021)06ILR A1
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.04.2021

BEFORE

THE HON'BLE SIDDHARTH, J.

Crl. Misc. Ist Anticipatory Bail Application No
2110 of 2021
(u/s 438 Cr.P.C.)

Shivam ...Applicant
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicant:
Ajay Sengar

Counsel for the Opp. Parties:
G.A., Lakshman Singh

(a) Criminal Law - Anticipatory Bail -
Code
of
Criminal
Precedure,1973
-
Section 438 - "appropriate cases" - the
appropriate cases wherein anticipatory
bail can be granted are those where
charge-sheet
submitted
by
the
Investigating Officer and process issued
by the Court after taking cognizance
under
Section
204
Cr.P.C.
can
be
quashed by the High Court in exercise of
its jurisdiction under Section 482 Cr.P.C.
and also some more cases. (Para 40)

The anticipatory bail is given only where there
is
an
apprehension
of
arrest.
The
apprehension of arrest is possible only when
the person is being haunted by the police or
other authority. In many of the cases such
haunting of a person is possible only after the
issuance of the warrant of a arrest after filing
of the charge-sheet or after the steps under
Section 204 of the Code are taken. At this
juncture a person cannot move the Courts
under Section 437 or under Section 439
because he is not in custody. But he can very
well approach the High Court or the Court of
Session under Section 438 for an appropriate
order. Filling of an application under Section
438 itself does not mean that the applicant
will be entitled to an order thereof. It is only
after examining the each case cautiously and
carefully inasmuch as it is an order converting
a non-bailable offence into a bailable one and
protecting a person for some time from going
to thr custody after the arrest. (Para 13)

Application Rejected. (E-8)

List of Cases cited:-

1. Govind Mishra @ Chhotu Vs St. of U.P.
Criminal Misc. Anticipatory Bail Application U/S
438 Cr.P.C. No. 8072 of 2020

2. Gorige Pentaiah Vs St. of A.P. & ors. 2009
Cri. L.J. 350

3. Adil Vs St. of U.P. Criminal Misc. Anticipatory
Bail Application U/S 438 Cr.P.C. No. 8285 of
2020

4. Sushila Aggarwal Vs State (NCT of Delhi)
2020 SCC Online SC 98

5. St. of Bihar Vs P.P. Sharma 1992 Supp (1)
SCC 222

6. Babubhai Vs St. of Guj. (2010) 12 SCC 254:
(2011) 1 SCC (Cri) 336

7. Inay Tyagi Vs Irshad Ali (2013) 5 SCC 762

8. Amitbhai Anilchnadra Shah Vs CBI (2013) 6
SCC 348: (2014) 1 SCC (Cri) 309

9. Manohar Lal Sharma Vs Principal Secy.,
(2014) 2 SCC 532: (2014) 4 SCC (Cri) 1

10. Dinubhai Boghabhai Solanki Vs St. of Guj.
(2014) 4 SCC 626: (2014) 2 SCC (Cri) 384

11. Rajiv Singh Vs St. of Bihar (2015) 16 SCC
369

12. Suresh Chandra Jana Vs St. of W.B., (2017)
16 SCC 466

13. Nirmal Singh Kahlon Vs St. of Punjab (2009)
1 SCC 441: (20019) 1 SCC (Cri) 523

14. Azija Begum Vs St. of Mah. (2012) 3 SCC
126
2 INDIAN LAW REPORTS ALLAHABAD SERIES
(Delivered by Hon'ble Siddharth, J.)

1) Counter affidavit filed by learned
A.G.A. in the Court today is taken on
record.

2) Heard learned counsel for the
applicant and learned A.G.A. for the State.

3) Order on Criminal Misc.
Exemption Application

This exemption application is allowed.

4)
Order
on
Criminal
Misc.
Anticipatory Bail Application

The
instant
anticipatory
bail
application has been filed with a prayer to
grant an anticipatory bail to the applicant,
Shivam, in Case Crime No. 16 of 2020,
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
at
postcognizance stage.

5) Prior notice of this bail application
was served in the office of Government
Advocate and as per Chapter XVIII, Rule
18 of the Allahabad High Court Rules and
as per direction dated 20.11.2020 of this
Court in Criminal Misc. Anticipatory Bail
Application U/S 438 Cr.P.C. No. 8072 of
2020, Govind Mishra @ Chhotu Versus
State of U.P., hence, this anticipatory bail
application is being heard. Grant of further
time to the learned A.G.A as per Section
438 (3) Cr.P.C. (U.P. Amendment) is not
required.

6) The allegation in the F.I.R 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 dabanggs 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 the word "dhed chamaar" 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.

7) Learned counsel for the applicant has
submitted that the applicant has been falsely
implicated in this case. He has next submitted
that no specific role was assigned to the
applicant in the F.I.R. Without collecting any
evidence against the applicant, charge-sheet has
been submitted against him on 12.05.2020 and
cognizance has been taken thereon on
20.11.2020. 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. 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 caste. He has no criminal
history to his credit. The applicant has definite
apprehension that he may be arrested by the
police any time. Learned counsel for the
applicant has relied upon the judgement of the
Apex Court in the case of Gorige Pentaiah v.
State of A.P. & Ors., 2009 Cri.L.J. 350,
which is a case regarding Section 3(1)(x) of
S.C./S.T. Act and not Section 3(1)(r)(s) of
S.C./S.T. Act. He has assured that the applicant
will cooperate with the trial and may be
enlarged on anticipatory bail.

8) Learned A.G.A. 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
6 All. Shivam Vs. State of U.P. & Anr.
3
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.

9) This Court in the case of Adil Vs.
State of U.P. passed in Criminal Misc.
Anticipatory Bail Application U/S 438
Cr.P.C.
No.
8285
of
2020
dated
08.12.2020, relying upon the judgement of
the Hon'ble Supreme Court in the case of
Sushila Aggarwal vs. State (NCT of
Delhi)- 2020 SCC Online SC 98 held that
anticipatory bail can be granted to an
accused even after submission of chargesheet in "appropriate cases". On the basis of
the aforesaid judgement of this Court in the
case of Adil (supra), 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 and the counsels are trying to
justify filing of such applications on the
basis of number of submissions arguing
that it is an "appropriate case" for grant of
anticipatory bail even after submission of
charge-sheet.

10) In the case of Adil (supra), this
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.

11) It is true that charge-sheet in a
case is generally filed after finding out a
prima facie case. Similarly, in a complaint
case the learned Magistrate after examining
the witnesses and perusing the documents
produced, issues processes like warrant of
arrest. In both these occasions cognizance
is taken and thereafter, processes are issued
indicating that the learned Magistrate was
prima facie satisfied from the materials on
record as regards the commission of the
offence and thereafter issues appropriate
process for apprehension of the accused
person. It is to be noted that this Court is
not considering a stage when an application
under Section 438 is to be filed since it has
been decided in the case of Adil (supra).
There are cases in which charge-sheets
have been filed by the police after
investigation without the knowledge of the
accused
persons
showing
them
as
absconders. Such an accused person after
the submission of the charge-sheet and on
issuance of a warrant of arrest gets the
knowledge of the case and then, only for
the first time, he has reason to believe that
he may be arrested on an accusation of
having committed a non-bailable offence.
In a case of this nature, it cannot be thought
of that the person who was unaware of the
case should be arrested and kept in custody
of the police or of the Court for getting an
opportunity of filing an application under
Section 437 or under Section 438 of the
Code. It is desirable to keep in view the
observations of the Law Commission and
also of the Apex Court as regards the
necessity of passing an order under Section
438 in these days when political vendetta
and other factors rule the realm of police
investigation of a case. This Court is not
unmindful of a situation that in a complaint
case a process can be issued relying on the
statements of the witnesses examined under
Section 200. But the person against whom
those statements were made might be
falsely implicated to satisfy political or
personal vengeance and may be without his
knowledge.

12) It is a settled principle of law that
a man cannot be stated to be guilty unless
his guilt is proved after adducing reliable
4 INDIAN LAW REPORTS ALLAHABAD SERIES
evidence. Sending a person to custody after
finding his guilt is a rule. But before
finding the accused guilty, it is not always
possible or permissible to conclude on the
basis of the charge-sheet or on the basis of
the process issued under Section 204 in a
complaint case that custody of that person
is necessary. The word "bail" has not been
defined in the Code, the literal meaning of
the word "bail" is to set free or liberate a
person on security being given of his
appearance. In Law Lexicon, the word
"bail" is defined "to set at liberty a person
arrested or imprison on security being
taken for his appearance". So the accepted
meaning of "bail" is to release of a person
from legal custody.

13) Under Section 438, the question
posed before the High Court or the Court of
Session is whether a person if arrested on an
accusation of having committed a nonbailable offence, can be released on bail. The
apprehension of such an arrest is possible
only when the person is being haunted by the
police or other authority. In many of the cases
such haunting of a person is possible only
after the issuance of the warrant of arrest after
the filing of the charge-sheet or after the steps
under Section 204 of the Code are taken. At
this juncture a person cannot move the Courts
under Section 437 or under Section 439
because he is not in custody. But he can very
well approach the High Court or the Court of
Session under Section 438 for an appropriate
order. The High Court or the Court of Session
in its turn is competent to examine the case of
the person and his suitability to be enlarged
on bail after the arrest and then only an order
under Section 438 is passed. So filing of an
application under Section 438 itself does not
mean that the applicant will be entitled to an
order thereof. It is already settled that an
order under Section 438 can be passed after
examining each case cautiously and carefully
inasmuch as it is an order converting a nonbailable offence into a bailable one and
protecting a person for some time from going
to the custody after the arrest. This precisely
is the issue in the present case which is
required to be answered. What are the
"appropriate cases" wherein the anticipatory
bail can be filed under Section 438 after the
filing of the charge-sheet or after the issuance
of a process under Section 204 of the Code or
after the issue of warrant of arrest in a
complaint case.

14) Before proceeding further to decide
the issue in hand, the basis of charge-sheet
and the manner of investigation by police in a
case involving cognizable offences needs
consideration.

15) Investigation and chargesheet form
the genesis of the Criminal Trial. Chargesheet
is the outcome of investigation. Under
Section 157 of the Code of Criminal
Procedure, the procedure of investigation in
criminal cases has been incorporated. It
requires the intimation of information to the
police officer on the commission of a crime.
The investigation includes all the procedures
which are done by the police officer under
the Code for the collection of evidence. The
police on registration of FIR shall upon
perusal of the facts of the case decide the line
of
investigation
i.e
whether
there
is
circumstantial evidence or eyewitnesses.
Circumstantial evidence is the something
which is a chain of circumstances that lead to
the crime for example previous animosity,
threats, last seen theory. It is basically
connection of various circumstances to the
crime. On the other hand, eyewitnesses are
those who have seen the incident take place.

16) The police officer who is pursuing
the investigation is empowered to require
the attendance of the witnesses. The
6 All. Shivam Vs. State of U.P. & Anr.
5
witnesses shall be such who are acquainted
with the facts and circumstances of the
case. The powers have been conferred
under Section 160 of the Code. The
provisions of Section 160 of the Code
explicitly mention that no male below
fifteen years or a woman shall be called to
attend at any other place than the place
where she resides.

17) The non-compliance of summons
under Section 160 of the Code is
punishable under Section 174 of the Code.
The person who is required to appear when
served summons does not do so shall be
liable to simple imprisonment up to one
month or with a fine up to INR 500 or both.
The section only requires the attendance of
the witnesses and furnishing of relevant
information about them. The police officer
cannot insist upon the witnesses for the
production of documents before him. The
order which requires the attendance of a
person needs to be in written form.

18) The most crucial part of the
investigation lies in the examination of
witnesses. The statements made by them
can hold a person guilty. The police officer
who is investigating the case has been
empowered
to
conduct
witness
examination. The witnesses are bound to
answer the questions which are related to
the case truly. Section 161 lays down the
procedure for the examination of witnesses
by the police.

19) The investigating officer shall
examine the persons who are acquainted
with the facts of the case. It is the duty of
the investigating officer to record the
statements of the eyewitnesses without any
delay. After examining the witnesses, it is
required by the police officer to write down
the statement made by the witness.There
should be no delay on the part of the police
officer investigating the case in examining
the witnesses. In the event of a delay of the
examination of the witness, the onus lies on
the investigating officer for explaining the
reasons for the delay.

20) When the delay has been properly
explained, it does not have any adverse
impact upon the probable value of a
particular witness. The police officer while
examining the witnesses is not bound to
reduce the statements made into writing. It
is preferred that the statements should be
written or the substance of the whole
examination should be written down at
least. The recorded statements are required
to be noted down in the case diary
maintained under Section 172 of the Code.

21)

A
police
officer
or
the
investigating officer has been empowered
under section 165 of the Code to search the
premises whenever he feels necessary or
has reasonable grounds to believe the same.
The investigating officer or the officer-incharge conducts the search when he
believes that there are sufficient or
reasonable grounds to pursue the same. The
search is conducted when there is an
absolute necessity for the same. Section
93(1) of the Code of Criminal Procedure
provides for the grounds under which a
warrant
for
search
shall
be
issued.
Moreover, the search has to be recorded in
the diary otherwise it becomes illegal.

22) The investigating officer would
go to the locality where the offence was
committed and get two people called the
''Panchas'. The evidence given by the
Panchas is of paramount importance. They
sign a document called the Panchnama
which contains the evidence collected out
of the search. It is signed by them which
6 INDIAN LAW REPORTS ALLAHABAD SERIES
validates the search and the procedure
adopted during the investigation.

23) Panchnama has not been defined
anywhere in the law. However, it is a
document which holds great value in
criminal cases. The Panchnama states
things which were found at a particular
place and at a particular time. After this, a
memorandum of the search is prepared by
the investigating officer or the officer-incharge. It needs to be submitted to the
Magistrate. The police officer-in-charge or
the investigating officer who has a valid
warrant is to be allowed to conduct the
search of a place. Force may be used if he
is not allowed to do so. The search is not
just only of the premises but also of a
person. If it is a female, a female officer
shall search her with utmost decency. The
search of the closed place or of a person
has to be made before two respectable
persons of the society. These respectable
persons are known as the ''Panchas'. They
need to sign the document validating the
search. However, the Panchas need not
necessarily be called as witnesses.

24) Under Section 47 of the Code, the
search of a place can be conducted by the
police when they have to arrest a person.
The police can break in and enter if they
are not being allowed in the place. There is
also an allowance for no-knock break-in to
take place: this is done to take the person
by surprise. The basic objective of
conducting a search is to find evidence
which may help in solving the case.

25) Section 91 of the Code of Criminal
Procedure states that whenever a Court or the
officer-in-charge of a police station feels that
a document or some other thing is necessary
for the purpose of the investigation, such
Court may issue summon or the officer may
in writing, order the person in whose
possession the document is to be produced.
The document shall be produced at the date
and time specified in the summons served to
the person. This section does not apply to a
person who is accused and on trial.

26) The Court cannot issue a summons
for the production of a document or a thing
by the accused. This is because it will
become self-incrimination under Article
20(3) of the Constitution of India.

27) Under section 92 of the Code, if a
document or other thing or a parcel is in the
custody of a postal or telegraph authority, and
the Magistrate whether Judicial or Executive,
any of the Courts wanted that that document
for the purpose of investigation, such
Magistrate or the Court may order the
authority to produce the document before
them.

28) Section 173 of the Code requires
the investigating officer to file a report before
the Magistrate after the collection of evidence
and examination of witnesses are done with.
This section requires that each and every
investigation shall be completed without any
unnecessary delay.

29) The report under Section 169 of
the Code can be referred to as the Closure
Report. Closure report is the one in which it
is stated that there is not enough evidence
to prove that the offence has been
committed by the accused. Once the
closure report is filed before the Magistrate,
he may accept and the report the case as
closed, direct a further investigation into
the case, issue a notice to the first
informant as he is the only person who can
challenge the report or he may directly
reject the closure and take cognizance of
the case.
6 All. Shivam Vs. State of U.P. & Anr.
7

30) A charge sheet is a final report
prepared by the investigation or law
enforcement agencies for proving the
accusation of a crime in a criminal court of
law. The report is basically submitted by
the police officer in order to prove that the
accused is connected with any offence or
has committed any offence punishable
under any penal statute having effect in
India. The report entails and embodies all
the stringent records right from the
commencement of investigation procedure
of lodging an FIR to till the completion of
investigation and preparation of final
report. Section 173 of the Code of Criminal
Procedure, 1973 provides for report of the
police officer. Filing of the Charge-Sheet
indicates the end of investigation.

31) The purpose of a charge-sheet is
to notify a person of criminal charges being
issued against them. After the charge-sheet
is filed, the person against whom the
charge-sheet has been filed comes to be
known as an accused. The filing of chargesheet
with
the
magistrate
indicates
commencement of criminal proceedings.

32) The U.P. Police Regulation 107
and 108 detail the procedure required to be
followed by the Investigating Officer as
follows :-

107. An Investigating Officer is
not to regard himself as a mere clerk for the
recording of statements. It is his duty to
observe and to infer. In every case, he must
use his own exprt observations of the scene
of the offence and of the general
circumstances to check the evidence of
witnesses, and in cases in which the
culprits are unknown to determine the
direction in which he shall look for them.
He must study the methods of local
offenders who are known to the police with
a view to recognizing their handiwork, and
he must be on his guard against accepting
the suspicions of witness and complaints
when they conflict with obvious inferences
from facts. He must remember that it his
duty to find out the truth and not merely to
obtain
convictions.
He
must
not
prematurely commit himself to any view of
the facts for or against any person and
though he need not go out of his way to
hunt up evidence for the defence in a case
in which he has satisfactory grounds for
believing that an accused person is guilty,
he must always give accused perons an
opportunity of producting defence evidence
before him, and must consider such
evidence carefully if produced. Burglary
investigations should be conducted in
accordance with the special orders on the
subject.

108. The first step of the
Investigating Officer should be to note in
the case diary prescribed by Section 172 of
the Code of Criminal Procedure the time
and place at which he has received the
information on which he acts and to make
in the diary a copy of the first information
report. When beginning his investigation,
he must note in the diary the time and place
at which he begins. He should then inspect
the scene of the alleged offence and
question the complainant and any other
person who may be able to throw light on
the circumstances. At an early stage of the
investigation, he should consult the village
crime note-book to learn of any matter
recorded there which may have a bearing
on the case.

33) A perusal of the aforesaid
regulations shows that for the Investigating
Officer, the accused and the complainant
are equal at the time of conducting
investigation. He has to consider the case
of both the parties and thereafter, arrive at a
8 INDIAN LAW REPORTS ALLAHABAD SERIES
fair conclusion regarding the investigation
into the allegations made against the
accused. He is not required to simply prove
that the allegations in the F.I.R are correct
and should necessarily collect evidence to
implicate
the
accused,
justifying
his
implication.

34) What is fair investigation has
been considered by the Hon'ble Supreme
Court in number of judgements, considered
hereinbelow :-

1) State of Bihar v. P.P. Sharma, 1992
Supp (1) SCC 222, at page 258 :

48. From this perspective, the
function of the judiciary in the course of
investigation by the police should be
complementary and full freedom should be
accorded to the investigator to collect the
evidence connecting the chain of events
leading to the discovery of the truth, viz., the
proof of the commission of the crime,. Often
individual liberty of a witness or an accused
person are involved and inconvenience is
inescapable
and
unavoidable.
The
investigating officer would conduct indepth
investigation to discover truth while keeping
in view the individual liberty with due
observance of law. At the same time he has a
duty to enforce criminal law as an integral
process. No criminal justice system deserves
respect if its wheels are turned by ignorance.
It is never his business to fabricate the
evidence to connect the suspect with the
commission of the crime. Trustworthiness of
the
police
is
the
primary
insurance.
Reputation for investigative competence and
individual honesty of the investigator are
necessary to enthuse public confidence. Total
support of the public also is necessary.

2) Babubhai v. State of Gujarat,
(2010) 12 SCC 254 : (2011) 1 SCC (Cri)
336, at page 268 :

32. The investigation into a
criminal offence must be free from
objectionable features or infirmities which
may legitimately lead to a grievance on the
part of the accused that investigation was
unfair and carried out with an ulterior
motive. It is also the duty of the
Investigating
Officer
to
conduct
the
investigation avoiding any kind of mischief
and harassment to any of the accused. The
Investigating Officer should be fair and
conscious
so
as
to
rule
out
any
possibility of fabrication of evidence and
his impartial conduct must dispel any
suspicion as to its genuineness. The
Investigating Officer "is not to bolster up a
prosecution case with such evidence as
may enable the court to record conviction
but to bring out the real unvarnished truth".
(Vide R.P. Kapur Vs. State of Punjab AIR
1960 SC 866; Jamuna Chaudhary & Ors.
Vs. State of Bihar AIR 1974 SC 1822; and
Mahmood Vs. State of U.P. AIR 1976 SC
69).

3) Vinay Tyagi v. Irshad Ali, (2013)
5 SCC 762, at page 792 :

48. What ultimately is the aim or
significance of the expression ''fair and
proper
investigation'
in
criminal
jurisprudence? It has a twin purpose.
Firstly, the investigation must be unbiased,
honest, just and in accordance with law.
Secondly, the entire emphasis on a fair
investigation has to be to bring out the truth
of the case before the court of competent
jurisdiction. Once these twin paradigms of
fair investigation are satisfied, there will be
the least requirement for the court of law to
interfere with the investigation, much less
quash the same, or transfer it to another
6 All. Shivam Vs. State of U.P. & Anr.
9
agency. Bringing out the truth by fair and
investigative means in accordance with law
would essentially repel the very basis of an
unfair, tainted investigation or cases of
false implication. Thus, it is inevitable for a
court of law to pass a specific order as to
the fate of the investigation, which in its
opinion is unfair, tainted and in violation of
the settled principles of investigative
canons.

4) Amitbhai Anilchandra Shah v.
CBI, (2013) 6 SCC 348 : (2014) 1 SCC
(Cri) 309, at page 383 :

58.9.
Administering
criminal
justice is a two-end process, where guarding
the ensured rights of the accused under
Constitution is as imperative as ensuring
justice to the victim. It is definitely a daunting
task but equally a compelling responsibility
vested on the court of law to protect and
shield the rights of both. Thus, a just balance
between the fundamental rights of the
accused guaranteed under the Constitution
and the expansive power of the police to
investigate a cognizable offence has to be
struck by the court. Accordingly, the
sweeping power of investigation does not
warrant subjecting a citizen each time to fresh
investigation by the police in respect of the
same incident, giving rise to one or more
cognizable offences. As a consequence, in
our view this is a fit case for quashing the
second F.I.R to meet the ends of justice.

58.10. The investigating officers
are the kingpins in the criminal justice
system. Their reliable investigation is the
leading step towards affirming complete
justice to the victims of the case. Hence they
are bestowed with dual duties i.e. to
investigate the matter exhaustively and
subsequently collect reliable evidences to
establish the same.

5) Manohar Lal Sharma v. Prinicipal
Secy., (2014) 2 SCC 532 : (2014) 4 SCC
(Cri) 1, at page 553 :

26. One of the responsibilities of the
police is protection of life, liberty and
property of citizens. The investigation of
offences is one of the important duties the
police has to perform. The aim of
investigation is ultimately to search for
truth and bring the offender to book.

27. Section 2(h) of the Code of
Criminal Procedure (for short "the Code")
defines investigation to include all the
proceedings under the Code for collection
of evidence conducted by a police officer
or by any person (other than a Magistrate)
who is authorized by the Magistrate in this
behalf.

28. In H.N. Rishbud, this Court
explained that the investigation generally
consists of the following steps : (AIR p.
201, para 5)

(1) Proceeding to the spot;

(2) ascertainment of the facts and
circumstances of the case;
(3) discovery
and arrest of the suspected offender;

(4) collection of evidence relating to
the commission of the offence which may
consist of the examination of :

(a) various persons (including the
accused) and the reduction of statement
into writing, if the officer thinks fit;

(b) the search of places and seizure of
things,
considered
necessary
for
the
investigation and to be produced at the
trial;

(5) formation of the opinion as to
whether on the materials collected, there is
a case to place the accused before a
Magistrate for trial, if so, take the necessary
10 INDIAN LAW REPORTS ALLAHABAD SERIES
steps for the same for filing necessary
charge-sheet under Section 173 Cr.P.C.

6) Dinubhai Boghabhai Solanki v.
State of Gujarat, (2014) 4 SCC 626 :
(2014) 2 SCC (Cri) 384, at page 643 :

48. Undoubtedly, the essence of
criminal justice system is to reach the truth.
The underlying principle is that whilst the
guilty must not escape punishment; no
innocent person shall be punished unless
the
guilt
of
the
suspect/accused
is
established in accordance with law. All
suspects/accused are presumed to be
innocent till their guilt is proved beyond
reasonable doubt in a trial conducted
according to the procedure prescribed
under law. Fair, unbiased and transparent
investigation is a sine quo non for
protecting the accused. Being dissatisfied
with the manner in which the investigation
was being conducted, the father of the
victim filed the petition seeking an
impartial investigation.

7) Rajiv Singh v. State of Bihar,
(2015) 16 SCC 369, at page 397 :-

79. The investigating agency as
the empowered mechanism of the law
enforcing institution of the State is
entrusted with the solemn responsibility of
securing the safety and security of the
citizens and in the process, act as the
protector of human rights. The police force
with the power and resources at its disposal
is a pivotal cog in the constitutional wheel
of the democratic polity to guarantee the
sustenance of an orderly society. It is
usually the first refuge of one in distress
and violated in his legal rights to seek
redress. The police force, thus is bestowed
with a sacrosanct duty and is undisputedly
required to be impartial, committed and
relentless in their operations to unravel the
truth and in the case of a crime committed,
make the offender subject to the process of
law. The investigating agency, thus in the
case of a probe into any offence has to
maintain
a
delicate
balance
of
the
competing rights of the offenders and the
victim as constitutionally ordained but by
no means can be casual, incautious,
indiscreet in its approach and application.
A devoted and resolved intervention of the
police force is thus an assurance against
increasingly pernicious trend of escalating
crimes and outrages of law in the current
actuality.

80. As a criminal offence is a
crime against the society, the investigating
agency has a sanctified, legal and social
obligation to exhaust all its resources,
experience and expertise to ferret out the
truth and bring the culprit to book. The
manifest defects in the investigation in the
case demonstrate an inexcusable failure of
the authorities concerned to abide by this
paramount imperative.

81. This Court, amongst others, in
Amitbhai Anilchandra Shah vs. Central
Bureau of Investigation and another
(2013) 6 SCC 348, while underlining the
essentiality of a fair, in-depth and fructuous
investigation
had
observed
that
investigating officers are the kingpins in
the criminal justice system and reliable
investigation is a leading step towards
affirming complete justice to the victims of
the case. It was ruled that administering
criminal justice is a two-end process, where
guarding the ensured rights of the accused
under the Constitution is as imperative as
ensuring justice to the victim. It was held
that the daunting task, though a compelling
responsibility, is vested on the court of law
to protect and shield the rights of both. That
a just balance between the fundamental
rights of the accused guaranteed under the
6 All. Shivam Vs. State of U.P. & Anr.
11
Constitution and the expansive power of
the police to investigate a cognizable
offence has to be struck by the Court was
emphatically underlined. We are left
appalled
by
the
incomprehensible
omissions of the investigating agency in the
instant case and we would expect and
require that the authorities in-charge of
ensuring fair, competent and effective
investigation of criminal offences in
particular would take note of this serious
concern of the Court and unfailingly take
necessary remedial steps so much so that
these observations need not be reiterated in
future entailing punitive consequences.

8) Suresh Chandra Jana v. State of
W.B., (2017) 16 SCC 466, at page 480 :-

34. The last aspect is regarding
the defective investigation and prosecution.
If a negligent investigation or omissions or
lapses, due to perfunctory investigation, are
not effectively rectified, the faith and
confidence of the people in the law
enforcing
agency
would
be
shaken.
Therefore the police have to demonstrate
utmost
diligence,
seriousness
and
promptness. [refer Ram Bihari Yadav v.
State of Bihar & Ors., (1998) 4 SCC 517].

35. The basic requirement that a
trial must be fair is crucial for any civilized
criminal justice system. It is essential in a
Reportable
society
which
recognizes
human rights and is based on values such
as freedoms, the rule of law, democracy
and openness. The whole purpose of the
trial is to convict the guilty and at the same
time to protect the innocent. In this process
courts should always be in search of the
truth and should come to the conclusion,
based on the facts and circumstances of
each case, without defeating the very
purpose of justice.

35) The Hon'ble Supreme Court has
held in number of cases
that fair
investigation, which precedes filing of
charge-sheet, is a fundamental right under
Article 21 of the Constitution of India.
Therefore, it must be fair, transparent and
judicious.
A
tainted
and
biased
investigation leads to filing of a chargesheet which is infact based on no
investigation and therefore, the chargesheet filed in pursuance of such an
investigation cannot be held to be legal and
in accordance with law. Some of such
observations are as follows :-

1) Nirmal Singh Kahlon v. State of
Punjab, (2009) 1 SCC 441 : (2009) 1 SCC
(Cri) 523, at page 455 :

28. An accused is entitled to a fair
investigation. Fair investigation and fair
trial are concomitant to preservation of
fundamental right of an accused under
Article 21 of the Constitution of India. But
the State has a larger obligation i.e. to
maintain law and order, public order and
preservation of peace and harmony in the
society. A victim of a crime, thus, is
equally entitled to a fair investigation.
When serious allegations were made
against a former Minister of the State, save
and except the cases of political revenge
amounting to malice, it is for the State to
entrust one or the other agency for the
purpose of investigating into the matter.
The State for achieving the said object at
any point of time may consider handing
over of investigation to any other agency
including a central agency which has
acquired specialization in such cases.

2) Babubhai v. State of Gujarat,
(2010) 12 SCC 254 : (2011) 1 SCC (Cri)
336, at page 272 :
12 INDIAN LAW REPORTS ALLAHABAD SERIES

45. Not only fair trial but fair
investigation is also part of constitutional
rights guaranteed under Articles 20 and 21
of the Constitution of India. Therefore,
investigation must be fair, transparent and
judicious as it is the minimum requirement
of rule of law. The investigating agency
cannot
be
permitted
to
conduct
an
investigation in a tainted and biased
manner. Where non-interference of the
court would ultimately result in failure of
justice, the court must interfere. In such a
situation, it may be in the interest of justice
that independent agency chosen by the
High Court makes a fresh investigation.

3)
Azija
Begum
v.
State
of
Maharashtra, (2012) 3 SCC 126, at page
128 :

12. In the facts and circumstances
of this case, we find that every citizen of
this country has a right to get his or her
complaint properly investigated. The legal
framework of investigation provided under
our laws cannot be made selectively
available only to some persons and denied
to others. This is a question of equal
protection of laws and is covered by the
guarantee
under
Article
14
of
the
Constitution.

13. The issue is akin to ensuring
an equal access to justice. A fair and proper
investigation is always conducive to the
ends of justice and for establishing rule of
law and maintaining proper balance in law
and order. These are very vital issues in a
democratic set up which must be taken care
of by the Courts.

36) This country has inherited the
present police system from the British
Government. The main objective of British
rule was to maintain status quo by using the
police force as effective weapon to put
down any challenge to its authority by iron
hand. The police had to take repressive
measures on account of the directions of
the British Government. The investigation
was accordingly carried out keeping in
view the direction of the government and
their object of ruling this country. Chargesheets were submitted accordingly which
were not the result of free and fair
investigation. The fundamental rights of the
people of the country were not in existence
and the Criminal Procedure Code was
designed in a manner which was not in the
interest of the people of this country before
independence.

37) After India became independent,
it became a welfare state from the police
state of the Britishers. The legislations
which were framed after independence
were in conformity with the fundamental
rights of the people of this country.