How to defend a CBI Case?

Procedure to defend a CBI Case

Step 1: An application under Section 156(3) of the Code of Criminal Procedure, 1973 If the case against the accused arises out of an FIR then an application under section 156(3) of the CrPC can be made before the appropriate magistrate where directs the police officer to carry out the investigation. Prior to 2008, the accused lacked a clear remedy for ensuring that the investigation into the alleged crime was handled fairly. Thus, the only recourse in cases of any irregularity in the investigation or for the purpose of supervising the investigation was to file a petition with the High Court under section 482 CrPC.

Step 2: Apply for an Anticipatory Bail under Section 438 of CrPC When an FIR is filed but the accused is not arrested, the prospect of being arrested hangs over the client's head. Even if the inquiry is continuing, the investigating agency has broad arrest powers at any time during the investigation. An accused is frequently summoned by the Investigating Officer (IO) to join the investigation, and he is taken into custody as soon as he responds to the notice. To avoid such scenarios, it is preferable to seek pre-arrest bail, often known as anticipatory bail.

Step 3: Gathering and securing evidence This stage is ideal for obtaining and securing evidence. As long as the accused hasn't been arrested, the defense attorney should talk to him and figure out how they can get evidence. It's critical to move quickly and wisely at this stage because the threat of arrest is constantly present, and once the accused is in custody, direct contact with him becomes less frequent. Withholding documents during the investigation stage can backfire.

Step 4: Securing a bail This stage differs from the pre-arrest stage in that the accused has already been arrested and is being held in police or judicial custody. Bail is not a matter of right in non-bailable offenses, and it is at the judge's discretion. As a result, the prospects of obtaining bail in non-bailable situations are extremely slim until the bail is granted. As a result, during bail hearings, we are frequently confronted with objections from the prosecution. Here are some of the criticisms, as well as possible responses:

1. The alleged offense is serious in character: The prosecution often contends that the charges leveled against the accused are serious and grave, and that bail should thus be denied. As held in P. Chidambaram V. Directorate of Enforcement (2019) 9 SCC 63, this is not a reason to reject bail. In the aforementioned judgment, the honorable Supreme Court concluded that the accused cannot be granted bail solely because the charges against him are serious. There is no reason why the accused should not be given bail if the judge is convinced that the accused will not tamper with the evidence, interrogate witnesses, or commit any other crime while on bail, etc. The seriousness of the crime may be one of the factors used to reject bail, but it cannot be the sole factor.

2. Reverse burden of proof: Almost every special statute contains a separate paragraph requiring the accused to bear the principal burden of proof that he is not guilty of the alleged offense. This practice is unheard of in traditional criminal jurisprudence, but be that as it may, the stage of discharging burden would not come at the stage of bail. If at all the primary burden is to be discharged by the accused at the bail hearing, it would amount to a mini-trial before the actual trial commences. The Delhi High Court has affirmed this view in Upendra Rai V. Directorate of Enforcement, 9th July 2019and recently in Dharmendra Singh V. GNCTD, 22nd September 2020holding that, even if the primary burden is to be discharged by the accused, the same will have to be done at the stage of trial and bail cannot be denied on the grounds of inability to discharge the burden at the pre-trial stage.

3. Default bail: Almost every special statute contains a separate paragraph requiring the accused to bear the principal burden of proof that he is not guilty of the alleged offense. Section 167(2) of CrPC governs the requirements of default bail. Based on the term of imprisonment linked with each offense, a time restriction of 90 days and 60 days is set for concluding investigations for relevant charges. In order to secure default bail for his client, a defense lawyer must be extremely watchful. Because the client will be in detention, he must be proactive in organizing sureties and getting the bail bonds available. Default bail is an inalienable right of the accused, and it can be secured even if no bail application is filed if the investigating agency does not complete the inquiry within 60 or 90 days, depending on the case.

Step 5: Summoning of the accused by the investigating officer This is a delicate stage that necessitates a great deal of due investigation on the part of both the defense attorney and the client. At this point, the IO summons the client for interrogation, which may result in the client being taken into arrest by the police. Applying for anticipatory bail is complicated by a number of factors, including the accused's role in the alleged crime, the sensitivity of the case, media pressure, and so on. As a result, as defense lawyers, we must analyze the likelihood of the client being detained. It is critical to remember that if the anticipatory bail is denied, the IO will have the authority to arrest the accused immediately after the denial, making this a dangerous situation.

Step 6: Quashing the case at the threshold This is one of the most commonly utilized tactics in criminal defense, in which the accused petitions a High Court to have the case/FIR/ECIR quashed when the investigation is still in its early stages or has not even begun. If the facts disclosed in the complaint/FIR do not reveal the commission of any alleged offense, or if there is a patent irregularity visible on the face of the FIR/ECIR, the high court's jurisdiction can be invoked by filing a writ petition under article 226 to have the case quashed while it is still being investigated. However, it is not a walk in the park, and even the High Courts will not entertain such petitions unless they are convinced that no case has been made out after reviewing the FIR.

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Why do you need a lawyer?

Every effective defense, whether civil or criminal, starts with a solid strategy. It is vital to develop an effective plan for challenging the prosecution's case, which can only be done with the help of a criminal lawyer . A case in the hands of the CBI can be quite complicated, and the accused will require a lawyer who is knowledgeable in both civil and criminal law to effectively defend them. As a result, an accused person must consult a lawyer as soon as the CBI initiates an investigation.

Advocate Chikirsha Mohanty

Greater Kailash - 1, Delhi
5 years

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