Orissa High Court
Bipin Bahadur vs State Of Odisha. .... Opposite Party on 21 October, 2021
Author: Savitri Ratho
Bench: Savitri Ratho
AFR
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No.453 of 2021
Bipin Bahadur .... Petitioner
Mr.Manas Chand, Advocate
Versus
State of Odisha. .... Opposite Party
Mr. S. S. Mohapatra, ASC
CORAM:
JUSTICE SAVITRI RATHO
ORDER
21.10.2021 Order No. 06 1. Mr. Manas Chand, learned counsel for the petitioner and Mr.S.S.Mohapatra, learned Addl. Standing Counsel for the State have been heard through hybrid mode.
2. In this application under Section 482 of the Code of Criminal Procedure (in short "Crl.P.C"), the petitioner has challenged the orders dated 09.07.2020 and 06.08.2020 passed by the learned Addl. Sessions Judge,-cum-Special Judge, Koraput- Jeypore in T.R. Case No. 03 of 2020 wherein the prayer of the prosecution to extend the period for completion of investigation and to file chargesheet beyond the period of 180 days has been allowed Page 1 of 26 on two occasions without affording any opportunity of hearing to the petitioner or his counsel on either occasion.
3. Learned counsel for the petitioner submits that law is well settled in the case of Lambodar Bag v. State of Orissa reported in (2018 )71 OCR-31, Iswar Tiwari v. State of Odisha reported in (2020) 80 OCR 289, CRLMC No. 1358 of 2020 Rohiteswar Meher v. State of Orissa decided on 08.02.2021 and CRLMC 446 of 2021 Kishore Pujari vs State decided on 19.03.2021, relying on the decisions of the Hon'ble Apex Court that the prosecution is duty bound to serve a copy of a petition filed for extension of time for filling charge sheet beyond the statutory period of 180 day alongwith the report of the Public Prosecutor well in advance on the accused and order for extending time for completing the investigation cannot be passed without hearing the accused. His further submission is that in the present case, extension of time has been allowed on two occasions on the very day the petitions were filed by the investigating officer (in short the "IO") i.e. on 9.7.2020 and 6.8.2020 by the learned trial court after hearing the learned Special P.P. only and without hearing the petitioner or his counsel. He further submits that the learned trial court has not even directed for service of the copy of the petition/memo on the Page 2 of 26 CRLMC No.453 of 2021 petitioner or his counsel and allowed extension on the very day the petitions were filed. His specific averment in the writ petition is that the chargesheet has been filed after one year and nineteen days which is not permissible. He finally submits that as the extension of time was illegal, the petitioner is entitled to be released on default bail.
4. Mr. Mohapatra, learned Additional Standing Counsel objects to such prayer stating that after the learned Court below granted extension of time, preliminary chargesheet dated 07.09.2020 has been filed against the petitioner for commission of offences under Section 20 (b) (ii) (C) of the N.D.P.S Act within the extension granted and the case is awaiting appearance of the co - accused against whom supplementary chargesheet dated 30.01.2021 has been filed showing him as an absconder. He also submits the contention of the learned counsel that chargesheet has been filed against the petitioner after one year is therefore factually incorrect. He finally submits that as preliminary chargesheet and final chargesheet have been filed, the petitioner should not be released on bail. He relies on the case of M. Ravindran vs. Intelligence Officer : (2021) 2 SC 485 in support of his submissions. Page 3 of 26 CRLMC No.453 of 2021
5. For the purpose of deciding this application, reference To Section 167 (2) of the Code of Criminal Procedure (in short "Crl.P.C") and Section 36-A (4) of the NDPS Act are necessary and the relevant provisions are quoted below.
"Section 167. Procedure when investigation cannot be completed in twenty four hours.-- (2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:
Provided that
(a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding,
(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;Page 4 of 26 CRLMC No.453 of 2021
(ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this subsection shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;
(b) no Magistrate shall authorise detention of the accused in custody of the police under this section unless the accused is produced before him in person for the first time and subsequently every time till the accused remains in the custody of the police, but the Magistrate may extend further detention in judicial custody on production of the accused either in person or through the medium of electronic video linkage;
(c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police. Explanation I. For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail.
Explanation II. If any question arises whether an accused person was produced before the Magistrate as required under clause (b), the production of the accused person may be proved by his signature on the order authorising detention or by the order certified by the Magistrate as to production of the accused person through the medium of electronic video linkage, as the case may be.
Page 5 of 26CRLMC No.453 of 2021 Provided further that in case of a woman under eighteen years of age, the detention shall be authorised to be in the custody of a remand home or recognised social institution.".... Sec- 36- A (4) Proviso of the N.D.P.S Act, is extracted below :
".....In respect of persons accused of an offence punishable under section 19 or section 24 or section 27- A or for offences involving commercial quantity, the references in subsection (2) of section 167 of the Code of Criminal Procedure, 1973 (2 of 1974) thereof to "ninety days", where they occur, shall be construed as reference to "one hundred and eighty days :
Provided that, if it is not possible to complete the investigation within the said period of one hundred and eighty days, the Special Court may extend the said period up to one year on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of one hundred and eighty days."
From a reading of this proviso , it is apparent in cases where the offences are punishable under Section- 19 or Section 24 or Section 27 A of the NDPS Act or cases where the offences involve commercial quantity , where investigation cannot be completed with 180 days , the Special Court has the power to extend the period upto one year on the report of the Public Prosecutor indicating progress of investigation and Page 6 of 26 CRLMC No.453 of 2021 the specific reasons for detention of the accused beyond the period of 180 days. (emphasis given)
6. In the case of Lambodar Bag ( supra) this Court after referring to a number of decisions of the Hon'ble Supreme Court has interalia held :
"8.... In the case in hand, when the petition was filed by the learned Addl. Special Public Prosecutor on 22.07.2017 for extending the period of investigation, no notice was issued to the petitioners on such petition to have their say in the matter. Even the filing of the petition was not brought to the notice of the counsels representing the petitioners. Since while considering such a petition, principles of natural justice was not followed and the petitioners were not given opportunity to oppose the extension on any legitimate and legal grounds available to them and even the trial Judge has not brought filing of such a petition to the notice of the counsels representing the petitioners, in view of the ratio laid down in case of Hitendra Vishnu Thakur (supra), I am of the view that the learned trial Judge has committed illegality in granting extension for a further period of sixty days for completing investigation as per order dated 22.07.2017 which is against fair play in action and in my humble opinion, it has caused serious prejudice to the petitioners. Even though sub-section (4) of section 36-A of the N.D.P.S. Act does not specifically provide for issuance of notice to the accused on the report of the Public Prosecutor before granting extension but Page 7 of 26 CRLMC No.453 of 2021 it must be read into the provision both in the interest of the accused and the prosecution as well as for doing complete justice between the parties and since there is no prohibition to the issuance of such a notice to the accused, no extension shall be granted by the Special Court without such notice. Moreover, report has to be filed by the Public Prosecutor in advance and not on the last day, so that on being noticed, the accused gets fair opportunity to have his say and oppose the extension sought for by the prosecution."....
This Court has further held :
"... Keeping in view that ratio laid down in the aforesaid decisions and coming to the case in hand, I am of the humble view that even though the petitioners have not applied for bail during the default period when prosecution report was not filed even after extended period for completion of investigation as was granted by the learned Trial Judge but since the learned trial Judge has not informed the petitioners of their right being released on bail on account of non-submission of prosecution report, no fault can be found with the petitioners for not making such application for bail during the default period. Had the learned trial Judge informed the petitioners of their right and the petitioners on being so informed, failed to file an application for release on bail on account of the default by the investigating agency in the completion of investigation within the extended period, after the prosecution report is filed, they would have lost their valuable right. In the factual scenario, the petitioners Page 8 of 26 CRLMC No.453 of 2021 cannot be stated to have voluntarily given up their indefeasible right for default bail.
9. Even though the petitioners have not applied for bail before the learned Trial Judge on the ground of not being noticed to have their say on the invalid petition filed by the Addl. Public Prosecutor on 22.07.2017 but on some other grounds, they are not debarred from taking such ground before this Court. As held in case of Rakesh Kumar Paul, in the matter of personal liberty, the Court should not be too technical and must lean in favour of personal liberty. An application for bail in the High Court is not an application for review of the order of the Court below. Grounds not taken in the Court below can be taken in the bail petition in the higher Court and even non- taking of grounds in the bail petition will not deprive the counsel for the accused in raising such grounds during hearing of the bail application. Even if a ground for grant of bail is not taken in the bail petition and not argued by the counsel for the accused, the Court is not deprived of releasing the accused on bail on such ground if it is legally sustainable. Strict rules of pleadings are not applicable in bail petition.
In view of the foregoing discussions, since the learned trial Judge has committed illegality in granting extension for a further period of sixty days for completing investigation as per order dated 22.07.2017 on the petition filed by the Addl. Public Prosecutor without issuing any notice to the petitioners to have their say and the petition dated 22.07.2017 filed by the learned Addl. Special Public Prosecutor was not in accordance with law Page 9 of 26 CRLMC No.453 of 2021 and the remand order of the petitioners passed by the learned trial Judge on 22.09.2017 is illegal and unauthorized and the petitioners were not informed of their right being released on bail on account of non-submission of prosecution report so as to enable them to make an application for bail, I am of the view that the petitioners are entitled to be released on bail. The grounds on which I am granting bail to the petitioners, I am of the humble view that it is not necessary to consider the gravity of the offence, the merits of the prosecution case or the bar under section 37 of the N.D.P.S. Act."......
In the case of Iswar Tiwari ( supra) after referring to a number of decisions of the Hon'ble Supreme Court and various High Courts , this Court framed the modalities for granting extension of time for completing investigation and held that:
.... " In case there is violation of any of the above, an indefeasible right to bail will be accrued to the accused. Applying the aforesaid parameters as laid down hereinabove, it is quite evident that there have been such "defaults" in the instant case, especially non-service of notice on the accused which is violative of the most cardinal principle of natural justice i.e. Audi Alteram Partem which creates an indefeasible entitlement to bail to the Petitioner.
18. Considering the aforesaid discussion, submissions made and taking into account a holistic view of the facts and circumstances of the case at hand, this Court comes to an Page 10 of 26 CRLMC No.453 of 2021 irresistible conclusion that the Petitioner is entitled to be released on bail.".....
In the case of Rohiteswar Meher ( supra) , this Court set aside the order of the Court below to the extent it granted extension of time for completing the investigation. It held as follows:
"..7. Applying those principles as decided by this Court in the case of Lambodar Bag to the present facts of the case as narrated in the preceding paragraphs, it is felt that in the present case, the indefeasible right of the petitioner for his release on default bail has been violated. It is evinced from the orders dated 9.1.2020 and 10.2.2020 that the accused- petitioner has not been given any opportunity of hearing to lead his legitimate objections nor he has been informed his right of default bail before granting extension of 30 days to the prosecution...."
In the case of Kishore Pujari (supra), after granting extension of time to the prosecution without affording opportunity of hearing to the petitioner therein, chargesheet had been filed. The petitioner had not prayed for being released on default bail at any time before the Court below . Relying on the decisions in Lambodar Bag (supra), Hitendra Vishnu Thakur (supra), this Court directed for release of the petitioner on bail.
Page 11 of 26 CRLMC No.453 of 2021
7. In the case of M Ravindran (supra), the facts were slightly different as in that case the prosecution had not filed any application for extension of time to complete the investigation but had filed another complaint on the same day the petitioner therein had filed application under Section - 167 (2) of the Crl.P.C after expiry of 180 days to be released on bail. The trial Court had allowed the application of the petitioner to be released on but the order was set aside by the High Court of Madras which was challenged by the petitioner before the Hon'ble Apex Court. The Hon'ble Supreme Court directed for release of the petitioner on bail holding that by filing the application under Section - 167 ( 2) Crl.P.C , the petitioner had availed his right to default bail even if the application remained pending and a chargesheet or a report seeking extension of time was filed on the same day. The Hon'ble Court has also observed as follows:
....."We agree with the view expressed in Rakesh Kumar Paul (supra) that as a cautionary measure, the counsel for the accused as well as the magistrate ought to inform the accused of the availability of the indefeasible right under Section 167(2) once it accrues to him, without any delay. This is Page 12 of 26 CRLMC No.453 of 2021 especially where the accused is from an underprivileged section of society and is unlikely to have access to information about his legal rights. Such knowledge sharing by magistrates will thwart any dilatory tactics by the prosecution and also ensure that the obligations spelled out under Article 21 of the Constitution and the Statement of Objects and Reasons of the CrPC are upheld."....
8. This Court in the case Sk. Raju vs State reported in (2020) 79 OCR 861, this Court while considering the right of the accused to be released on default bail under the provisions of section 167 ( 2 ) Crl.P.C., after referring to earlier decisions of this Court and that of the Apex Court has reiterated the position of law that provisions of General Clauses Act have no application for computation of the period of detention under Section 167 ( 2) of the Crl.P.C. and therefore the plea that the Court was closed on 05.09.2020 and 06.09.2020 was a Sunday does will not result in extension of the last day although there is no embargo on the prosecution to carry on investigation or submit final form/ chargesheet at a later date.
Page 13 of 26 CRLMC No.453 of 2021
9. A perusal of the relevant orders passed by the learned Additional Sessions Judge -cum- Special Judge, Koraput is necessary in order to decide the contentions raised by the learned counsel.
The certified copy annexed to the CRLMC does not contain all the orders passed by the learned Additional Sessions Judge - cum Special Judge, Koraput. The petitioner for reasons best known to him has not filed the copy of the entire order sheet but has filed the certified copies of orders No.08 dated 27.03.2020, order No.14 dated 28.05.2020, order No.15 dated 10.06.2020, order No.16 dated 02.07.2020, order No.17 dated 09.07.2020, order No.19 dated 06.08.2020, order No.20 dated 20.08.2020, order No.24 dated 02.11.2020, Order No.27 dated 02.02.2021 and order No.28 dated 08.02.2021 only. The copy of the order dated 07.09.2020 when preliminary chargesheet was submitted has not been filed by the petitioner and averment has been made in the CRLMC application that chargesheet has been filed after one year.
Photocopy of the trial court record in T.R. No.3 of 2020 pending in the court of learned Addl. Sessions Judge-cum-Special Judge, Koraput-Jeypore had been called for by this Court vide order Page 14 of 26 CRLMC No.453 of 2021 dated 11.06.2021 and has been received. The photocopy of the LCR has been received but without any index. It contains the ordersheet from 12.01.2020 till 04.06.2021, copy of the FIR, case diary, copy of the preliminary chargesheet dated 05.09.2020 and chargesheet dated 30.01.2021, and copy of the one page petition dated 06.08.2020 signed by the IIC Nandapur with prayer to allow further time for submission of chargesheet. The copy of the petition dated 09.07.2020 is not available.
Perusal of the photocopy of the ordersheet reveals that the accused had been arrested and forwarded to the Court of the Additional Sessions Judge-cum-Additional Sessions Judge, Koraput on 12.01.2020. As no counsel appeared for the accused, one Mr Kishore Kumar Patnaik recommended by the T.L.S.C to the O.S.L.S.A. was appointed as retainer / remand counsel by the Court and he was requested to take steps in the interest of the accused and the accused was remanded till 24.01.2020 awaiting final form.
The case was thereafter posted to 06.02.2020, 20.03.2020, 05.03.2020 , 19.03.2020 , 27.03.2020 , 04.04.2020 , 19.03.2020 , 04.04.2020 , 17.04.2020 , 23.04.2020 and 01.05.2020 , 14.05.2020, 28.05.2020, 10.06.2020 and 20.06.2020 / 02.07.2020 awaiting final form and the petitioner remanded to custody. On 02.07.2020, the Page 15 of 26 CRLMC No.453 of 2021 case was posted to 09.07.2020 awaiting final form and the petitioner remanded to custody. .
Perusal of order dated 9.7.2020 indicates that petitioner had been [produced through video conferencing and final form had not been received .The IIC of Nandapur P.S. had made a prayer through the Special P.P. Koraput to grant one month time to submit the final form on the ground stated in the petition .The learned Addl. Sessions Judge after perusing the materials available on record was of the opinion that it was a fit case where the period of investigation of this case should be extended beyond 180 days and granted one month time for submission of final form. He further directed that the case to be put up on 23.7.2020 awaiting Final Form. There is no mention of any report being filed by the Special P.P and the prayer of the IIC has been perused and referring to reasons stated in the said petition , extension of one month time has been granted . It is apparent that from the order that nether the petitioner nor his counsel were heard before granting extension nor had the Special P.P. filed any report as mandated by Section -36 - A (4) the NDPS Act Order No.17 dated 09.07.2020 is extracted below :
"Accused Bipin Bahadur is produced through video conferencing. Final Form is not yet received.Page 16 of 26 CRLMC No.453 of 2021
The IIC of Nandapur P.S. has made a prayer vide DR No.1081/PS, dated 08.07.2020, through the Special P.P., Koraput, to grant one month time to submit the Final Form on the grounds stated therein. Perused the prayer of the I.I.C., submitted by the Special P.P. under Section 36(A)(4) of the N.D.P.S. Act, wherein it has been stated that due to hectic schedule relating to Corona enforcement and busy in investigation of P.S. Case No.45 dated 18.05.2020 under Sections 147/148/302/324/149 of I.P.C., the investigation of this case could not be completed and prayed to grant one month time for submission of Final Form. So, from the materials available on record, I am of the opinion that this is a fit case where the period of investigation of this case should be extended beyond 180 days. Accordingly, the prayer of the I.O. to grant one month time for submission of Final Form is accepted.
Send an extract of this order to the I.I.C. of Nandapur P.S., through Special P.P., Koraput, for information and necessary action.
Put up on 23.07.2020 awaiting Final Form. Accused Bipin Bahadur is remanded to jail custody till then. "
The case was thereafter posted to 23.07.2020 and then to 6.8.2020. Final form had not been received on both dates and on 06.08.2020 , the I.I.C., Nandapur P.S. had made a prayer through the Special P.P., Koraput for grant of further two months time to complete the investigation for submission of final form in the case. Page 17 of 26 CRLMC No.453 of 2021 Again there is no reference to any report filed by the Special P.P. After perusing the prayer of the I.I.C and the reasons mentioned therein and the case record , the learned Court referred found it to be fit case to extend the period of investigation beyond 180 days by one month and directed that the case to be put up on 20.08.2020 . It is apparent that from the order that nether the petitioner nor his counsel were heard before passing the order of extension , nor had the Special P.P. filed any report as per the mandate of Section 36 -A (4) alongwith the prayer of the I.I.C and extension has been granted on perusal of the prayer of the I.I.C . The order No 19 dated 06.08.2020 is reproduced below:
"Accused Bipin Bahadur is produced through video conferencing in view of COVID-19. Final Form is not yet received.
The I.I.C. of Nandapur P.S. has made a prayer, through the special P.P., Koraput, for grant of further two months time to complete the investigation and for submission of the Final Form in this case. Perused the petition filed through the Special P.P. u/s 36(A)(4) of N.D.P.S. Act, I also perused the prayer of the I.I.C. It is specifically mentioned that the owner of the vehicle which was used for the transportation of contraband ganja is yet to be arrested. Further, he has stated that the financial investigation is also not completed. Under the above Page 18 of 26 CRLMC No.453 of 2021 circumstances, the I.I.C. prayed to grant two months time for completion of investigation of the case and for submission of charge sheet.
Perused the case record. It reveals that earlier one month's time was granted by this Court on the prayer of the I.I.C. of Nandapur P.S. for completion of investigation of the case and for submission of charge-sheet and now, he has prayed for another two months time for submission of charge-sheet on the grounds as stated hereinabove.
From the materials available on record, I am of the opinion that this is a fit case where the period of investigation of this case should be extended beyond 180 days. Accordingly, one month time is allowed for completion of investigation of the case and for submission of charge-sheet.
Send an extract of this order to the I.I.C., Nandapur P.S., through Special P.P., Koraput, for information and necessary action.
Put up on 20.08.2020 awaiting Final Form. Accused Bipin Bahadur be produced on the date fixed."
On 20.08.2020, the case directed to be put up on 03.09.2020 / 05.09.2020 awaiting Final Form.
The case was neither put up on 03.09.2020 or 05.09.2020 . It was put up on 07.09.2020 . It has been stated in the order that it was put up on 07.09.2020 as the Court remained closed on Page 19 of 26 CRLMC No.453 of 2021 05.09.2020 as per order dated 04.09.2020 of the this Court 06.09.2020 was a Sunday and the case was put up that day as the I.I.C Nandapur P.S has submitted chargesheet dated 05.09.2020 under Section 20 (b) (ii) (C) of the N.D.P.S. Act (4 sheets) against the petitioner alongwith case diaries (12 sheets) keeping the investigation open . After perusing the same, the learned Addl. Sessions Judge -cum- Spl. Judge, Koraput took cognisance of the offence under Section 20 (b) (ii) (C) of the N.D.P.S. Act against the petitioner and posted the case to 02.11.2020 for submission of further investigation report.
Perusal of the copy of the preliminary chargesheet bears the endorsement dated 07.09.2021 of the learned Additional Sessions Judge - cum- Special Judge and admittedly it has been put up before him on 07.09.2021.
On 18.09.2020, the petitioner had filed an application for bail for the second time and the prayer was rejected by order dated 25.09.2020 considering the nature of accusation, gravity of offence, the punishment provided and in view of the bar under Section - 37 (1) (b) of the N.D.P.S. Act. (This application has been moved during pendency of BLAPL No. 6032 of 2020 before this Court). Page 20 of 26 CRLMC No.453 of 2021
Vide order No.24 dated 02.11.2020, the petitioner was produced through video conferencing from Circle Jail, Koraput in view of COVID-19 but no further investigation report under Section 173(8) of Cr.P.C. had been received. Hence, by order dated 2.11.2020, the learned Addl. Sessions Judge-cum-Special Judge, Koraput directed the case to be put up on 19.12.2020 awaiting further investigation report and for supply of prosecution papers of accused and directed the accused to be produced on that date.
Ultimately on 02.02.2021, Supplementary/Final charge sheet No.1 dated 30.01.2021 under Section 20 (b) (ii) (C) of the N.D.P.S. Act was received against the petitioner-Bipin Bahadur and accused Samrat Mandi showing the latter as absconder along with supporting documents. After perusing the case record, by order dated 02.02.2021, the learned Addl. Sessions Judge observed that charge sheet under Section 20 (b)(ii)(C) of the N.D.P.S. Act had been filed on 07.09.2020 against the petitioner-Bipin Bahadur keeping the investigation open and cognizance of offence had been taken against him. After perusing the Additional papers submitted by the I.O., the learned court below held that prima facie case under Section 20 (b)(ii)(C)/25 of the N.D.P.S. Act is well made out against accused-Samrat Mandi and cognizance of offence under Page 21 of 26 CRLMC No.453 of 2021 Section 20 (b)(ii)(C) of the N.D.P.S. Act was taken. Now cognizance of offence under Section 25 (b)(ii)(C) of the N.D.P.S. Act also taken and N.B.W. of arrest was issued against Samrat Mandi on 20.1.2021 on the prayer of the I.O.
On 08.02.2021, the petitioner was produced through video conferencing from Circle Jail, Koraput. By order No.28 dated 08.2.2021, the learned Addl. Sessions Judge-cum-Special Judge, Koraput issued process under Sections 82 and 83 of Cr.P.C. against co-accused, Samrat Mandi and directed the case to be put up on 07.04.2021 for his production and also directed the present petitioner to be produced on that date.
Thereafter the case has been put up on various dates for production of co accused Samrat Mandi against whom Processes under Section 82 and 83 of the Crl.P.C. have been issued by order dated 08.02.2021 .
On 04.06.2021, the petitioner had submitted petition for changing his counsel.
10. After careful perusal of the ordersheet in T.R. No 3 of 2020, it is forthcoming that in the absence of any report of the Special Public Prosecutor and only on the basis of the application of the Investigating Officer and without affording the petitioner Page 22 of 26 CRLMC No.453 of 2021 any opportunity of being heard, the learned Additional Sessions Judge - cum-Special Judge Koraput has allowed extension of time of one month not once but on two occasions to complete the investigation and submit chargesheet. Extension of time of one month has been granted on the same day very day on both occasions on the very day the applications of the I.I.C have been filed after perusing his application/prayer and the reasons mentioned therein and in the absence of any report of the Special P.P. It is also apparent that the petitioner has not been informed of his right to get default bail under the provisions of Section - 167(2) proviso of the Crl.P.C. when chargesheet was not submitted within 180 days or within the extended period.
The contention of the learned counsel that chargesheet has been filed after more than one year is however incorrect as supplementary chargesheet against the absconding accused has been filed after one year and preliminary chargehesheet dated 05.09.2021 has been filed on 07.09.2021 against the petitioner.
11. On a consideration of the submissions of the learned counsels for the petitioner and the State, the law laid down by the Hon'ble Apex Court and the decisions of this Court , I am of the considered view an accused who has not availed (applied for) Page 23 of 26 CRLMC No.453 of 2021 default bail on account of non filing of chargesheet within the prescribed time, will not be granted the benefit of default bail after filing of the chargesheet.
12. But in the present case , it is apparent that the petitioner could not engage any counsel of his own and a counsel recommended by the T.L.S.C to the O.S.L.S.A. was engaged by the Court on the date of his production , i.e. 12.01.2020 and he has not been informed by the learned Court below about his right to be released on default bail when chargesheet was not filed in time. The Special P.P. has not filed any report as per the mandate of Section -36 - A (4) of the NDPS Act on both occasions, but extension of time has been granted on both occasions by perusing the application of the I.I.C on the very day the applications were filed. The first (preliminary) chargesheet dated 05.09.2020 has admittedly been filed on 07.09.2020 which is beyond the thirty days extension granted for the second time on 06.08.2020 by the learned Court.
13. In view of the aforesaid discussion and keeping in view the observation of the Hon'ble Court in paragraph 18.10 in the case of M Ravindran ( supra) and the decisions of this Courts is Court in the case of Lambodar Bag (supra, Iswar Tiwari (supra), Sk Raju Page 24 of 26 CRLMC No.453 of 2021 (supra) and Kishore Pujari (supra), the extension of time to complete the investigation granted to the prosecution by the learned Court below not once but twice, without affording any opportunity of hearing to the petitioner or his counsel and in the absence of any report of the Special P.P, is illegal and have caused prejudice to the petitioner, thereby entitling him to the benefit of default bail under Section -167(2) of the Crl.P.C.
14. The petitioner is therefore at liberty to move an application before the trial Court for releasing him bail . On such event , he shall be released on such terms and conditions as may be fixed by the Court including the following conditions:
(i) that he will appear in Court on each date fixed for trial.
(ii) He will not tamper with prosecution evidence or try to influence witnesses.
(iii) He will not indulge in any criminal activity.
(iv) He will appear before the Jeypore Police Station once every alternate Monday between 3.00pm to 6.00pm till commencement of trial .
Violation of any of the conditions will entail in cancellation of bail.
Page 25 of 26 CRLMC No.453 of 2021
15. Trial of the case be expedited as supplementary chargesheet has been filed since January 2021.
The CRLMC is accordingly allowed with the aforesaid observation disposed of.
Urgent certified copy of this order be granted on proper application.
.........................
(Savitri Ratho) Judge Bichi Page 26 of 26 CRLMC No.453 of 2021