• Follow up question on earlier query

As mentioned in my earlier query the cashier was in judicial custody since 11.06.2018 and ultimately released on bail u/s 439 on 30.08.2018 and charge sheet is already submitted. The investigating officer has not arrested me though my earlier anticipatory bail u/s 438 was rejected earlier in April 2018 by sessions court but charge sheet reflects I am an absconder and hence warrant will get issued by the learned ACJM of the trial court. I have not yet moved high court as a senior advocate of Kolkata has guided me to move the anticipatory bail application again at Sessions Court under change of circumstances of factors considering charge sheet submission by IO & principle accused(cashier) is on bail. The current judicial bench of Kolkata High Court is stringent on views of Section 409 as adviced by the same Senior Advocate.

Request views what should be my correct step at present i.e. should I apply anticipatory bail again at Sessions Court considering the change of circumstances where the charge sheet is submitted and principal accused is on bail or should I move my application at Kolkata High Court? I also thought of the option of surrendering to ACJM of the trial court but since section 409 is invoked it might be difficult for ACJM to grant bail though it is a magistrate triable offence of first class and the cashier had also received bail from Additional District & Sessions Judge earlier & not from the ACJM of trial court.

My basic question as a layman is even though section 409 is invoked police investigation is already completed as charge sheet is submitted & principle accused is already on bail hence question of my custodial interrogation does not arise anymore,hence is there any logical ground for decline of anticipatory bail if I move it in Sessions Court or High Court.

The last point is even though IO has understood that both me & the cashier has been falsely framed in the case yet he has filed charge sheet against both of us instead of FRT(Final Report True).My advocate who is a senior personnel of the lawyers fraternity in Kolkata High Court has commented even though there is an option of FRT police normally prefers chargesheet. Only if the case is a high profile or politically driven police try to work on the case else they end up framing a loophole driven chargesheet if they feel it is a false case so the accused get bail and this is exactly what has happened in our case till date. The IO has been supportive till date and has been in regular touch but my bail is urgent.Request support please.
Asked 4 years ago in Criminal Law
Religion: Hindu

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15 Answers

Since the offence your are charged is non bailable and you have earlier not appealed against order rejecting anticipatory bail it's advisable move a fresh anticipatory bail application before sessions court stating change of circumstances since the accused no 1 is on bail based on parity the court will grant you bail. Your advocate has aptly guided you. If you surrender you will be taken to custody so it's better to seek for anticipatory bail.

Swarnarka Chowdhury
Advocate, Mysore
1878 Answers
5 Consultations

5.0 on 5.0

Hello,

Sir you may go directly to the HC in order to obtain the anticipatory bail, if the HC denies the same then you may ask the court to pass a direction that your bail application may be disposed on the same date by the court below.

Also, since the prime accused has been released on bail I do not see any chance of you not getting the AB or not being released on the same date on bail.

Regard s

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

1. File application for anticipatory bail on the ground that the prime accused has already been released on bail or apply for surrender bail before the trial court.

2. You should not allow the warrant to be issued against you for your arrest.

Krishna Kishore Ganguly
Advocate, Kolkata
26602 Answers
726 Consultations

5.0 on 5.0

Reading your entire query obtaining Anticipatory Bail from Session Judge will be easier but there is a process for the same. Dont move before Hon'ble High Court.

Aveek Bose
Advocate, Kolkata
1222 Answers
9 Consultations

4.7 on 5.0

1. I am not sure under whose guidance you are delaying the moving of anticipatory bail in high court.

2. On the very contrary the present bench dealing with anticipatory bail is very much lenient and it is your best chance to get bail .

3. The submission of charge sheet further brightens your prospect of getting bail.

4. Since IO understand your non complicity in the offence the CD should reflect his mental state of affairs giving the prospect of getting bail further brighter.

Feel free to contact.

Good luck.

Devajyoti Barman
Advocate, Kolkata
22515 Answers
402 Consultations

5.0 on 5.0

you can directly file bail petition before HC or Sessions court without going through magistrate court. However once you file petition at HC and HC denies bail, your bail can no longer be granted by a lower court so most people always apply from lower court to higher courts.

Mohammed Mujeeb
Advocate, Hyderabad
19029 Answers
32 Consultations

4.5 on 5.0

You should be granted bail as charge sheet has already been filed and other accused released on bail

2) it is true that even if IO is of view that you are falsely framed charge sheet is filed by police instead of closure report

3) you should act as per your lawyer advice

Ajay Sethi
Advocate, Mumbai
87894 Answers
6207 Consultations

5.0 on 5.0

You can file AB application before sessions judge court.

Since the co-accused is on bail already, it will be easier to get bail at this stage.

Since there are strong grounds for getting acquitted you may challenge the case in the trial proceedings.

You may follow the advice and guidance of your advocate which appears to be proper.

T Kalaiselvan
Advocate, Vellore
78048 Answers
1543 Consultations

5.0 on 5.0

You can file for discharge in trial court

2) in alternative file for quashing in HC

3) quashing is to be done only in exceptional circumstances

Ajay Sethi
Advocate, Mumbai
87894 Answers
6207 Consultations

5.0 on 5.0

If there is a strong case then you will get a stay on the first date.

then the state will file counter and the entire quashing might take some 6 months or so

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

You can file a defamation case only when the case is dismissed on false charges, that too you can file a malicious prosecution case against the police and not agaisnt the defacto complainant.

if you have decided to file a quash petition it is up to you, consult your advocate and proceed.

T Kalaiselvan
Advocate, Vellore
78048 Answers
1543 Consultations

5.0 on 5.0

1. If there has been adequate loopholes left in the charge sheet filed by the I.O., it will be appropriate on your part to file a petition u/s482 of Cr.P.C. praying for quashing the FIR registered against, inter alia, you

2. Thereafter you can claim back yopur job with back wages (if you have been terminated from your job) and also file defamation case claiming substantial amount towards compensation.

Krishna Kishore Ganguly
Advocate, Kolkata
26602 Answers
726 Consultations

5.0 on 5.0

Quashing is to be done only in exceptional cases

2) you can file discharge application in trial court

3) don’t file cross FIR

Ajay Sethi
Advocate, Mumbai
87894 Answers
6207 Consultations

5.0 on 5.0

1. If you are confident that there has been enough loopholes left in the charge sheet which will prove your disassociation with the alleged crime, filing of quash petition is the best option.

2. You can certainly lodge a police complaint against those defacto complainants with evidence establishing their involvement in the said crime and it will not affect or delay your quash petion or your case.

Krishna Kishore Ganguly
Advocate, Kolkata
26602 Answers
726 Consultations

5.0 on 5.0

If you do have a strong case and the advocate is confident enough then there happens to be no reason for not approaching the HC.

Do approach the HC for getting the petition quashed.

regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

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