Orissa High Court
Ajaya Mohapatra @ Muna & Another vs State Of Odisha ....... Opp. Party on 8 April, 2024
THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No.4818 of 2023
(In the matter of an application under Section 482 of the Criminal Procedure Code, 1973)
-----------
Ajaya Mohapatra @ Muna & another....... Petitioners
-Versus-
State of Odisha ....... Opp. Party
For the Petitioners : Mr. Devashis Panda, Advocate
For the Opp. Party : Mr. P.K. Maharaj
Additional Standing Counsel.
CORAM:
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA
JUDGMENT
_________________________________________________________ Date of Hearing: 22.03.2024 : Date of Judgment : 08.04.2024 _________________________________________________________ S.S. Mishra, J.
1. The petitioners have invoked the inherent jurisdiction of this Court u/s 482 Cr.P.C seeking quashing of the criminal prosecution initiated against them in Baselisahi P.S. Case No.38 of 2023 for the offences under Sections-21(c)/29 of the N.D.P.S. Act and also praying for setting 2 aside the order dated 31.07.2023 passed by the learned Special Judge, Puri taking cognizance of the offences as stated above.
2. The petitioners have assailed the entire criminal prosecution and the cognizance order dated 31.07.2023 passed by the learned Special Judge, Puri in T.R. Case No.83 of 2023 on the ground that the learned Special Judge, Puri, while taking cognizance on 31.07.2023 and subsequently while framing the charges on 19.10.2023 has ignored the fact that in the preliminary charge sheet, the chemical examination report was not filed by the prosecution, Therefore, the said charge sheet was incomplete under the mandate of the provisions of Section 173 Cr.P.C.
3. Mr. Devashis Panda, learned counsel appearing for the petitioners submits that as per the settled principle of law, which holds the field as of today, a charge sheet filed without the chemical examination report is an incomplete charge sheet. Relying upon the judgments of the Hon'ble Supreme Court in Mohd. Arbaz & others vrs. State of NCT of Delhi, Sunil Vasantrao Phulbande & another vs. State of Maharastra and Central Bureau of Investigation vs. R.S. Pai & another as well as the judgment of this Court in the case of Sk. Eimat @ Bidhia vs. State of Odisha he submits that the cognizance order and the subsequent order of Page 2 of 11 3 framing of charge against his clients will not stand the scrutiny of law. As such, it is liable to be set aside.
4. The prosecution case against the petitioners is that both the petitioners are the drug paddlers. They have been supplying drugs to their partners in Puri for onward distribution amongst their clients. On 03.02.2023, they were making one such attempt and were apprehended by the police along with two female associates. 257.62 gms. of Brown Sugar was recovered from their possession.
5. The petitioners were taken to custody on 04.02.2023. After investigation, a preliminary charge sheet was laid down by the police on 31.07.2023. However, in the said charge sheet, the chemical examination report regarding the contraband was not filed and further investigation was kept open under Section-173(8) Cr.P.C.
6. On the basis of the materials available on record as per the preliminary charge sheet, learned trial Court on 31.07.2023 had taken cognizance of the offences against the petitioners and subsequently on 19.10.2023 charges were framed against the petitioners as well. Meanwhile, two female accomplices of the petitioners have been enlarged on bail. The police after obtaining the chemical examination report placed the same before the Court by way of a supplementary Page 3 of 11 4 charge sheet on 06.02.2024. The chemical examination report clearly suggested that the contraband articles seized from the possession of the petitioners is Heroin (Brown Sugar) or Diacetylmorphine.
7. Mr. Panda, learned counsel submits that the order of cognizance and framing of charges is not sustainable under law, as the same has been passed without taking into consideration the chemical examination report. Therefore, he prays that the entire criminal prosecution against the petitioners shall be quashed and in the alternative, he submits that till the outcome of the pending reference before the Hon'ble Supreme Court regarding the issue as to whether a charge sheet without the chemical examination report is a valid charge sheet or not is answered, the proceeding pending before the Court below may be kept in abeyance, while enlarging the petitioners on bail.
8. The Hon'ble Supreme Court in the judgment in the case of Central Bureau of Investigation vs. R.S. Pai & another, reported in 2002 (5) SCC 82, in para-7 observed as follows :-
"7. From the aforesaid sub-sections, it is apparent that normally, the investigating officer is required to produce all the relevant documents at the time of submitting the charge-sheet. At the same time, as there is no specific prohibition, it cannot be held that the additional documents cannot be produced subsequently. If some mistake is committed in not producing the relevant documents at the time of submitting the report or the charge-sheet, it is always open to the investigating officer to Page 4 of 11 5 produce the same with the permission of the court. In our view, considering the preliminary stage of prosecution and the context in which the police officer is required to forward to the Magistrate all the documents or the relevant extracts thereof on which the prosecution proposes to rely, the word "shall" used in sub-section (5) cannot be interpreted as mandatory, but as directory. Normally, the documents gathered during the investigation upon which the prosecution wants to rely are required to be forwarded to the Magistrate, but if there is some omission, it would not mean that the remaining documents cannot be produced subsequently. Analogous provision under Section 173(4) of the Code of Criminal Procedure, 1898 was considered by this Court in Narayan Rao v. State of A.P. [AIR 1957 SC 737] (SCR at p. 293) and it was held that the word "shall" occurring in sub-section (4) of Section 173 and sub-section (3) of Section 207-A is not mandatory but only directory. Further, the scheme of sub-section (8) of Section 173 also makes it abundantly clear that even after the charge-sheet is submitted, further investigation, if called for, is not precluded. If further investigation is not precluded then there is no question of not permitting the prosecution to produce additional documents which were gathered prior to or subsequent to the investigation. In such cases, there cannot be any prejudice to the accused. Hence, the impugned order passed by the Special Court cannot be sustained."
The Hon'ble Supreme Court further in the case of Achpal @ Ram Swaroop vs. State of Rajasthan, reported in (2019) 14 SCC 599 has held as under:
20. We now turn to the subsidiary issue, namely, whether the High Court could have extended the period. The provisions of the Code do not empower anyone to extend the period within which the investigation must be completed nor does it admit of any such eventuality. There are enactments such as the Terrorist and Disruptive Activities (Prevention) Act, 1985 and the Maharashtra Control of Organised Crime Act, 1999 which clearly contemplate extension of period and to that extent those enactments have modified the provisions of the Code including Section 167. In the Page 5 of 11 6 absence of any such similar provision empowering the court to extend the period, no court could either directly or indirectly extend such period. In any event of the matter all that the High Court had recorded in its order dated 3-7-2018 was the submission that the investigation would be completed within two months by a gazetted police officer. The order does not indicate that it was brought to the notice of the High Court that the period for completing the investigation was coming to an end. Mere recording of submission of the Public Prosecutor could not be taken to be an order granting extension. We thus reject the submissions in that behalf advanced by the learned counsel for the State and the complainant.
21. In our considered view the accused having shown their willingness to be admitted to the benefits of bail and having filed an appropriate application, an indefeasible right did accrue in their favour.
22. We must at this stage note an important feature. In Rakesh Kumar Paul [ (2017) 15 SCC 67] , in his conclusions, Madan B. Lokur, J. observed in para 49 as under: (SCC p. 102) "49. The petitioner is held entitled to the grant of "default bail" on the facts and in the circumstances of this case. The trial Judge should release the petitioner on "default bail" on such terms and conditions as may be reasonable. However, we make it clear that this does not prohibit or otherwise prevent the arrest or re-arrest of the petitioner on cogent grounds in respect of the subject charge and upon arrest or re-arrest, the petitioner is entitled to petition for grant of regular bail which application should be considered on its own merit. We also make it clear that this will not impact on the arrest of the petitioner in any other case."
23. In his concurring judgment, Deepak Gupta, J. agreed with conclusions drawn and directions given by Madan B. Lokur, J. in paras 49 to 51 of his judgment. According to the aforesaid conclusions, it would not prohibit or otherwise prevent the arrest Page 6 of 11 7 or re-arrest of the accused on cogent grounds in respect of charge in question and upon arrest or re-arrest the accused would be entitled to petition for grant of regular bail which application would then be considered on its own merit.
24. We, therefore, allow this appeal and direct that the appellants are entitled to be admitted to bail in terms of Section 167(2) of the Code on such conditions as the trial Court may deem appropriate. The matter shall be immediately placed before the trial court upon receipt of copy of this judgment. We also add that in terms of the conclusions arrived at in the majority judgment of this Court in Rakesh Kumar Paul, there would be no prohibition for arrest or re-arrest of the appellants on cogent grounds and in such eventuality, the appellants would be entitled to petition for grant of regular bail.
9. Mr. Panda, learned counsel emphatically relying upon the judgment of the coordinate Bench in the case of Sk. Eimat @ Bidhia vs. State of Odisha, reported in 2022 (III) ILR-CUT-915 submits that his clients are entitled to bail as per the law laid down. He has supplied emphasis to para-12:-
"12. If the court below did not have the Chemical Examination Reports, a claim which has remained unchallenged, it is not easily comprehended as to how for an offence under N.D.P.S. Act, cognizance was taken. Whether other materials submitted along with the preliminary chargesheets were sufficient for the court below to form an opinion that the contraband substance to be Brown sugar? Anyways, in the given situation, the petitioners could have claimed bail on such ground. It is not known, if in the meantime, the Chemical Examination Reports have been received by the court below. In aforesaid backdrop, the Court is of the opinion that the case of the petitioners for regular bail should be examined and it shall be by the learned court below considering the Chemical Examination Reports, if it is available and in case, the same could not be found, to release both of them on bail subject to such conditions unless it is fully convinced that the Page 7 of 11 8 contraband substance is nothing but Brown sugar. But while taking a decision in that regard, the significance of the Chemical Examination Report and its absence should not be lost sight of which in fact play a dominant role and a deciding factor in reaching at a conclusion as to the nature of the contraband substance. However, in the event the Chemical Examination Reports are received later to the release of the petitioners with a positive result that the seized substance is Brown sugar, the learned court below shall have the jurisdiction to ensure cancellation of bail but in accordance with law."
In the judgment of Sk. Eimat @ Bidhia (supra) the coordinate Bench of this Court by analysing the issue in the lis observed in para-10 which reads as under:-
"10. In the instant case, in fact, preliminary charge sheets have been filed before expiry of 180 days keeping the investigation open as per Section 173(8) Cr.P.C. The question before the Court is whether the petitioners are entitled to default bail despite preliminary charge sheets have been filed? The decision of Achpal @Ramswaroop and Others (supra) is inapplicable to the case at hand since there was no charge sheet so to say before court by the time default bail was asked for and hence, it was held that the accused would be eligible for release in terms of Section 167(2) Cr.P.C. As held earlier, decisions in Ravinder and Tarlok and Others (supra) do not lay down the law that despite a charge sheet is filed, it would not be treated to be a report under Section 173 Cr.P.C. and therefore, the accused shall be entitled to default bail. However, the Court with due respect is in disagreement with the view expressed in Sunil Vasantrao Phulbande and Others (supra) for the fact that once a charge sheet is filed, on completion of investigation, notwithstanding absence of a document like the Chemical Examination Report which may at times be very crucial and assumes importance especially in cases involving contraband substance, it shall have to be treated as a report received under Section 173 Cr.P.C. Once a charge sheet so submitted and received and not refused, the court shall have to consider the bail of the accused as per Section 309(2) Cr.P.C. and there the accused cannot plead for default bail. In fact, on default bail, it is well settled that if the charge sheet is not submitted within the stipulated period and the accused applies for it, as has been held in the Constitution Bench judgment of the Apex Court in Uday Mohanlal Acharya Vrs. State of Maharastra Page 8 of 11 9 reported in (2001) 5SCC 453, such an invaluable and indefeasible right is not lost even after receipt of report under Section 173 Cr.P.C. unless he after having availed of the right under Section 167(2) Cr.P.C. could not be able to furnish the bail bond, where, in such situation, the right which had accrued shall stand extinguished."
10. Therefore, the fact remains that as to whether a charge sheet without the chemical examination report is a complete charge sheet as contemplated under Section-173 Cr.P.C. or not is yet to be decided by the Hon'ble Supreme Court. But as it prevails today, there are conflicting views.
11. The coordinate Bench of this Court when confronted with a similar situation while dealing with CRLMC No.1455 of 2023 passed an order dated 07.07.2023. Paragarphs-4 & 7 of the said order is relevant for the purpose of this case, which read as follows:
"4. Reading of the order passed in Mohd. Arbaz (supra) would reveal that the Supreme Court is presently in seisin of the matter as to whether the charge-sheet submitted by the police can be treated as complete when not accompanied by the chemical examination report. Mr. Mishra, therefore urges the Court to quash the order of cognizance by treating the charge-sheet as incomplete. Having regard to the fact that the Supreme Court is seisin over the matter it would not be proper for this Court to pass any order either way at this stage, rather it would be proper to wait for the final decision in the said case.
7. Having heard learned counsel for the parties and on going through the judgments cited by Mr. Mishra, this Court is of the view that till the Supreme Court passes a judgment in the matter it would not be proper for this Court to pass any order with regard to the order of cognizance, particularly on the ground that the charge-sheet was unaccompanied by the chemical examination report. As regards the prayer for bail, this Court finds that in Mohammad Arbaz and batch, the Supreme Court Page 9 of 11 10 taking note of the long period of detention of the petitioners therein, granted interim bail to some of the petitioners and regular bail to some others. While taking note of the above however, this Court exercising power under Section 482 of Cr.P.C. would be slow to pass similar orders since statutory remedy is available to the petitioner."
12. By analyzing the entire conspectus, this Court is of the view that in so far as the issue regarding the completeness of a charge sheet without the chemical examination report is concerned, the issue is subjudice before the Hon'ble Supreme Court in Mohd. Arbaz and others vs. State of NCT of Delhi (supra). Therefore, it would not be appropriate to take any view in this regard at this stage except to await the outcome of the pending matters before the Hon'ble Supreme Court.
13. Taking the clue from the judgment of the coordinate Bench passed in Sk. Eimat @ Bidhia (supra), I am of the view that on the basis of the materials available on record as of today, the petitioners should move appropriate application before the learned Court below seeking regular bail under Section-439 Cr.P.C and if such application is moved, the same shall be decided on its own merit.
14. In so far as quashment of the entire criminal proceeding is concerned, I am of the considered view that the trial shall proceed at its own pace, however, no final order should be passed by the learned Court below until the Hon'ble Supreme Court decides the issue as referred in Page 10 of 11 11 Mohd. Arbaz (supra). It is also relevant to note that in the present case, recording of the prosecution evidence has already been initiated. Therefore, at this stage, no interference is called for.
15. With the aforementioned observation, the CRLMC is disposed of.
..................
S.S. Mishra (Judge) The High Court of Orissa, Cuttack.
Dated the 8th Day of April, 2024/ Subhasis, P.A. Signature Not Verified Digitally Signed Signed by: SUBHASIS MOHANTY Designation: P.A. Reason: Authentication Location: High Court of Orissa, Cuttack. Page 11 of 11 Date: 08-Apr-2024 20:55:01