Orissa High Court
Lambodar Bag vs State Of Orissa ........ Opp. Party on 16 May, 2018
Author: S.K. Sahoo
Bench: S. K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
BLAPL No. 7337 of 2017
An application under section 439 of the Code of Criminal
Procedure, 1973 in connection with 2(a) C.C. Case No. 02 of
2017 pending in the Court of Addl. Sessions Judge -cum- Special
Judge, Patnagarh, Bolangir.
----------------------------
Lambodar Bag ........ Petitioner
-Versus-
State of Orissa ........ Opp. Party
BLAPL No. 2717 of 2017
Jayanti Bag ........ Petitioner
-Versus-
State of Orissa ........ Opp. Party
For Petitioners: - Dr. Niranjan Swain
For Opp. Party: - Mr. Arupananda Das
Addl. Govt. Advocate
----------------------------
P R E S E N T:
THE HONOURABLE MR. JUSTICE S. K. SAHOO
...................................................................................................
Date of Argument: 17.04.2018 Date of order: 16.05.2018
...................................................................................................
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S. K. SAHOO, J. The petitioner Lambodar Bag in BLAPL No.7337 of
2017 and his wife Jayanti Bag in BLAPL No.2717 of 2017 have
filed these petitions under section 439 of Cr.P.C. seeking for bail
in connection with 2(a) C.C. Case No. 02 of 2017 pending in the
Court of learned Addl. Sessions Judge -cum- Special Judge,
Patnagarh, Bolangir (hereafter 'trial Judge') in which prosecution
report has been submitted against them under section
20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances
Act, 1985 (hereafter 'N.D.P.S. Act') for illegal possession and
transportation of 345 kgs. 40 grams of ganja.
2. The prosecution case, as per the prosecution report
dated 26.09.2017 submitted by the Sub-Inspector of Excise,
Patnagarh charge is that the petitioners were found to be in
illegal possession and transportation of 22 numbers of jerry bags
containing 345 kgs. 40 grams of ganja on 24.01.2017 at 9.30
a.m. near Mahadeb pond at Nehenabandh under Patnagarh
police station in the district of Bolangir. They were arrested at
the spot and forwarded to Court of learned trial Judge on the
very day along with seized articles.
3. The bail application of petitioner Jayanti Bag was
rejected by the learned trial Judge on 18.03.2017. The petitioner
Lambodhar Bag filed an application under section 439 Cr.P.C.
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seeking for bail directly before this Court in BLAPL No.3976 of
2016 without moving first the learned trial Judge annexing the
rejection order of the petitioner Jayanti Bag. The said petition
was disposed of on 21.07.2017 as withdrawn.
4. Since within the stipulated period of one hundred and
eighty days as provided under sub-section (4) of section 36-A of
the N.D.P.S. Act, investigation could not be completed, on
22.07.2017 on a petition filed by the learned Addl. Special Public
Prosecutor and after hearing the learned Addl. Special Public
Prosecutor as well as the Investigating Officer, period of
investigation was extended for another sixty days by the learned
trial Judge.
The extended period for completion of investigation
as was granted by the learned trial Judge as per order dated
22.07.2017 expired on 20.09.2017. The final prosecution report
dated 26.09.2017 was received by the learned trial Judge on the
very day but cognizance of offence under section 20(b)(ii)(C) of
the N.D.P.S. Act was taken on 07.10.2017.
The case against the co-accused Kumen
Karunananda who as an absconder as per the final prosecution
report was splitted up on 01.12.2017.
4
5. The petitioner Lambodhar Bag filed an application for
bail before the learned trial Judge for his release on health
ground which was rejected on 09.08.2017. He has filed BLAPL
No. 7337 of 2017 against such rejection order.
Similarly the petitioner Jayanti Bag has filed BLAPL
No. 2717 of 2017 against the rejection order dated 18.03.2017.
6. Dr. Niranjan Swain, learned counsel for the
petitioners pleading for bail of the petitioners contended that
while extending the period of investigation for another sixty days
as per the order dated 22.07.2017, neither the petitioners nor
their counsels were noticed nor they were heard and even
though after the extension period of sixty days, investigation
could not be completed, no further petition as per the proviso to
sub-section (4) of section 36-A of the N.D.P.S. Act was filed but
all the same, the learned trial Judge remanded the petitioners to
judicial custody. He further contended that detention of the
petitioners beyond the extended period for completion of
investigation without the challan being filed is illegal and
unauthorized. He further contended that the petitioners were not
informed about their right of being released on bail in view of the
proviso to sub-section (2) of section 167 of Cr.P.C. and
therefore, the petitioners are entitled to be released on bail.
5
Mr. Arupananda Das, learned Addl. Govt. Advocate
appearing for the State on the other hand submitted that the
petitioners should have first approached the learned trial Judge
taking the grounds on which they are now seeking for bail. He
submitted that the bail application which was filed by petitioner
Lambodar Bag in BLAPL No.7337 of 2017 was against the order
dated 09.08.2017 of the learned trial Judge in which bail was
sought for on the health ground only. Similarly the petitioner
Jayanti Bag has approached this Court in BLAPL No.2717 of 2017
against the rejection order dated 18.03.2017 of the learned trial
Judge which was much prior to the order passed by the learned
trial Judge extending the period of investigation for sixty days. It
is further contended that the petitioners are seeking for bail on
the ground of default of the investigating agency in not
submitting the final prosecution report even within the extended
period of sixty days in completing the investigation as granted by
the learned trial Judge on 22.07.2017 and no petition having
been filed before the trial Judge during the default period, since
on submission of final prosecution report, cognizance of offence
has been taken in the meantime, such grounds are not available
with the petitioners now for consideration of the bail applications
before this Court.
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7. The questions that now crop up for consideration are
as follows:-
(i) Whether an extension for completing the
investigation beyond the prescribed period of one
hundred and eighty days can be granted under
section 36-A(4) of N.D.P.S. Act on the report of the
Public Prosecutor without any notice to the accused
to have their say regarding the prayer for grant of
extension?
(ii) Whether on a petition filed by the Public
Prosecutor seeking for extension of time to complete
investigation which does not reflect his independent
application of mind, the Special Court can grant
extension?
(iii) Whether the detention of the accused beyond
the extended period for completion of investigation
without the challan being filed is illegal and
unauthorized when no further petition is filed by the
Public Prosecutor for extending the period of
investigation?
(iv) Whether the Special Court is duty bound to
inform the accused about their right of being
released on bail in view of the proviso to sub-section
(2) of section 167 of Cr.P.C.?
(v) Whether petition for bail having not been filed
before the trial Judge during the default period, the
right of being released on bail stands extinguished?
7
8. Sub-section (4) of section 36-A of the N.D.P.S. Act
reads as follows:-
"36-A (4). 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 sub-
section (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."
Right to liberty which is a fundamental right flows
from Article 21 of the Constitution of India. Personal liberty is
one of the cherished objects of the Indian Constitution and
deprivation of the same can only be in accordance with law and
in conformity with the provisions thereof as stipulated under
Article 21 of the Constitution.
8
Discussion on question no.(i)
The petitioners Lambodar Bag and Jayanti Bag were
produced before the learned trial Judge for the first time after
their arrest on 24.01.2017 and they were remanded to judicial
custody. The petitioners engaged their counsels who filed
Vakalatnama on 30.01.2017. The bail application of petitioner
Jayanti Bag was rejected by the learned trial Judge on
18.03.2017. On 22.07.2017 the case record was put up on the
petition filed by the learned Addl. Special Public Prosecutor for
extending the period of investigation from one hundred and
eighty days to two months more on the grounds stated therein.
The learned trial Judge after hearing the Addl. Special Public
Prosecutor as well as the Investigating Officer, granted extension
for another sixty days to complete investigation.
The learned counsel for the petitioners submitted
that parameteria provision like sub-section (4) of section 36-A of
the N.D.P.S. Act is there in sub-section (4) of section 20 of the
Terrorist and Disruptive Activities (Prevention) Act, 1987
(hereafter 'TADA').
Sub-section (4) of section 20 of the TADA is
extracted herein below:-
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"20.(4) Section 167 of the Code shall apply in
relation to a case involving an offence
punishable under this Act or any rule made
thereunder subject to the modifications that,-
a. the reference in sub-section (1) thereof to
"Judicial Magistrate" shall be construed as a
reference to Judicial Magistrate or Executive
Magistrate or Special Executive Magistrate;
b. the reference in sub-section (2) thereof to
"fifteen days," "ninety days" and "sixty days,"
wherever they occur, shall be construed as
references to "sixty days, "one hundred and
eighty days and "one hundred and eighty days"
respectively; and
(bb)sub-section (2-A) thereof shall be deemed
to have been omitted.
(bbb) in sub-section (2), after the proviso, the
following proviso shall be inserted, namely:-
Provided further that, if it is not possible to
complete the investigation within the said period
of one hundred and eighty days, the Designated
Court shall 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."
He relied upon the case of Hitendra Vishnu Thakur
-Vrs.- State of Maharashtra reported in A.I.R. 1994
Supreme Court 2623, wherein the Hon'ble Supreme Court has
held that when a report is submitted by the Public Prosecutor to
10
the Designated Court for grant of extension under Cl. (bb), its
notice should be issued to the accused before granting such an
extension so that an accused may have an opportunity to oppose
the extension on all legitimate and legal grounds available to
him. It is further held that it is true that neither Clause (b) nor
(bb) of sub-section (4) of section 20 TADA specifically provide for
the issuance of such a notice but it must be read into these
provisions both in the interest of the accused and the
prosecution as well as for doing complete justice between the
parties. It is further held that this is a requirement of principles
of natural justice and issuance of notice to the accused would
accord with fair play in action, which the Courts have always
encouraged and even insisted upon and there is no prohibition to
the issuance of such a notice to the accused and no prejudice
whatsoever can be caused by the issuance of such a notice to
any party. It is further held that no extension can be granted to
keep an accused in custody beyond the prescribed period except
to enable the investigation to be completed and before any
extension is granted, the accused must be put on notice and
permitted to have his say so as to be able to object to the grant
of extension.
11
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
it must be read into the provision both in the interest of the
accused and the prosecution as well as for doing complete justice
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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.
Discussion on question no.(ii)
As per the proviso to sub-section (4) of section 36-A
of the N.D.P.S. Act, report of the Public Prosecutor must indicate
the progress of the investigation and the specific reasons for the
detention of the accused beyond the period of one hundred and
eighty days. In case of Hitendra Vishnu Thakur (supra), it is
held that for seeking extension of time under clause (bb) of sub-
section (4) of section 20 of TADA, the Public Prosecutor after an
independent application of his mind to the request of the
investigating agency is required to make a report to the
Designated Court indicating therein the progress of investigation
and disclosing justification for keeping the accused in further
custody to enable the investigating agency to complete the
investigation. The Public Prosecutor may attach the request of
the investigating officer along with his request or application and
13
report, but his report, as envisaged under clause (bb), must
disclose on the face of it, that he has applied his mind and was
satisfied with the progress of investigation and considered grant
of further time to complete the investigation necessary. The
request of an investigating officer for extension of time is no
substitute for the report of the Public Prosecutor. The Public
Prosecutor is not merely a post office or a forwarding agency. A
Public Prosecutor may or may not agree with the reasons given
by the investigating officer for seeking extension of time and
may find that the investigation had not progressed in the proper
manner or that there has been unnecessary, deliberate or
avoidable delay in completing the investigation. The report of the
Public Prosecutor, therefore, is not merely a formality but a very
vital report, because the consequence of its acceptance affects
the liberty of an accused and it must, therefore, strictly comply
with the requirements as contain in clause (bb). Mere
reproduction of the application or request of the investigating
officer by the Public Prosecutor in his report, without
demonstration of the application of his mind and recording his
own satisfaction would not render his report as the one
envisaged by clause (bb) and it would not be proper report to
seek extension of time.
14
Looking at the petition dated 22.07.2017 filed by the
learned Addl. Special Public Prosecutor before the learned trial
Judge, the reason for seeking extension of period of investigation
for sixty days more is that the criminal antecedents of the
accused persons have not been received and that the
investigating officer has noticed the land owner and the motor
cycle owner but they have not appeared before him as yet and
for the aforesaid reasons, charge sheet could not be submitted
on that day. The Addl. Public Prosecutor has not attached the
request of the investigating officer along with his request or
application. There is nothing in the petition which would show
that the Addl. Public Prosecutor has filed such petition after an
independent application of his mind to the request of the
investigating agency. In the petition, the Addl. Public Prosecutor
has not recorded his own satisfaction regarding the justification
for keeping the petitioners in further custody to enable the
investigating agency to complete the investigation. The
application seems to have been filed in a casual manner by the
Addl. Public Prosecutor without even verification of the case
records relating to progress of investigation as well as necessity
for seeking extension of investigation in the factual scenario. He
has not even assigned any reason for the detention of the
15
petitioners beyond the period of one hundred and eighty days.
The learned trial Judge has recorded the submission of the
Investigating Officer regarding ascertainment of ownership of the
motor cycle and the land from which alleged contraband seized
are not yet completed which can possibly be done within two
months and accordingly, granted extension. The learned trial
Judge seems to have overlooked and ignored the requirements
of a valid report of the Public Prosecutor and has failed in the
performance of one of his essential duties which has rendered
the order of extension vulnerable.
Therefore, I am of the view that petition dated
22.07.2017 filed by the learned Addl. Special Public Prosecutor
was not in accordance with law as laid down by the Hon'ble
Supreme Court in case of Hitendra Vishnu Thakur (supra) and
it was an invalid petition and therefore, the grant of extension of
further sixty days by the learned trial Judge to complete
investigation on such a petition was quite unjustified.
Discussion on question no.(iii)
There is no dispute that extended period of
investigation for another sixty days as per the order dated
22.07.2017 expired on 20.09.2017. On 26.09.2017 the
Investigating Officer filed the final prosecution report but
16
cognizance of offence under section 20(b)(ii)(C) of the N.D.P.S.
Act was taken on 07.10.2017. It is also not in dispute that no
further petition/report as per the proviso to sub-section (4) of
section 36-A of the N.D.P.S. Act was filed on 20.09.2017 seeking
further extension of the period of completing the investigation
indicating the progress of the investigation and the specific
reasons for the detention of the petitioners. Therefore, it is
apparent that there was detention of the petitioners beyond the
extended period for completion of investigation without the final
prosecution report being filed.
In case of Hitendra Vishnu Thakur (supra), it is
held that the Court has no power to remand an accused to
custody beyond the prescribed period by Cl. (b) of Section 20 (4)
or extended under Cl. (bb) of the said section, as the case may
be, if the challan is not filed only on the ground that the
accusation against the accused is of a serious nature or the
offence is grave.
When the learned trial Judge extended the period of
investigation for another sixty days as per the order dated
22.07.2017, he should have posted the case on 20.09.2017 on
which date the said period expired. After 22.07.2017, the next
date of the case was 01.08.2017 which was earlier fixed on
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19.07.2017 and on 01.08.2017 the petitioners were produced
before the learned trial Judge and since prosecution report was
not received, they were remanded to judicial custody till
11.08.2017. On 11.08.2017 the petitioners were not produced
from custody and since on that day also no prosecution report
was received, the case was posted to 24.08.2017 and on
24.08.2017 the case was further posted to 08.09.2017 awaiting
prosecution report and on 08.09.2017 the petitioner Lambodar
Bag was only produced from custody and the case was
adjourned to 22.09.2017 awaiting submission of prosecution
report. On 22.09.2017 both the petitioners were produced and
on that day also no prosecution report was received and the case
was posted to 07.10.2017. Therefore, the case was neither
posted to 20.09.2017 on which date the extended period of
completion of investigation as was directed by the learned trial
Judge on 22.07.2017 expired nor any further petition/report as
per the proviso to sub-section (4) of section 36-A of the N.D.P.S.
Act was filed by the Public Prosecutor. Since neither any
prosecution report was filed on 20.09.2017 nor any further
report was filed by the Public Prosecutor seeking further
extension of the period of completing the investigation, the
remand order passed by the learned trial Judge on 22.09.2017 is
18
illegal and unauthorized. The learned trial Judge had no power to
remand the petitioners to custody on 22.09.2017.
Discussion on question no. (iv)
In the case of Union of India -Vrs.- Thamisharusi
and Ors. reported in (1995) 9 Orissa Criminal Reports
(SC) 1 where a question of law came up for decision as to
whether the proviso to sub-section (2) of section 167 of the
Code of Criminal Procedure, 1973 can be invoked by an accused
arrested for the commission of an offence under N.D.P.S. Act to
claim release on bail on an expiry of the total period specified
therein if the charge sheet is not filed within that period, it was
held that section 37 of the N.D.P.S. Act does not exclude the
application of the proviso to sub-section (2) of section 167 of the
Code, even in respect of persons who are accused for offences
under N.D.P.S. Act.
Coming to the question as to whether the learned
trial Judge was duty bound to inform the petitioners about their
right of being released on bail in view of the proviso to sub-
section (2) of section 167 of Cr.P.C., in case of Hussainara
Khatoon -Vrs.- Home Secretary reported in A.I.R. 1979
S.C. 1377, it was held that when an undertrial prisoner is
produced before a Magistrate and he has been in detention for
19
ninety days or sixty days as the case may be, the Magistrate
must before making an order of further remand to judicial
custody, point out to the undertrial prisoner that he is entitled to
be released on bail. It was further held that the State
Government must also provide at its own cost a lawyer to the
undertrial prisoner with a view to enable him to apply for bail in
exercise of his right under proviso (a) to sub-section (2) of
section 167 of Cr.P.C. and the Magistrate must take care to see
that the right of the undertrial prisoner to the assistance of a
lawyer provided at State cost is secured to him.
In case of Hitendra Vishnu Thakur (supra), it is
held that there is an obligation which is cast on the Court and
that is to inform the accused of his right being released on bail
and to enable him to make an application in that behalf.
Even though the extended period of completion of
investigation expired on 20.09.2017 and no prosecution report
was filed, on 22.09.2017 when both the petitioners were
produced, the learned trial Judge has not informed them 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. Before passing an order of remand on that day, it was
obligatory on the part of the learned trial Judge to point out the
20
petitioners of their entitlement of being released on bail.
Therefore, it is clear that the learned trial Judge has not followed
the ratio laid down in case of Hussainara Khatoon (supra) and
Hitendra Vishnu Thakur (supra). On 22.09.2017 the order of
remand was passed in the absence of the representing counsels
of the petitioners. Merely because the petitioners were
represented by their counsels, the Court should not have failed
in its obligation which is cast on it.
Discussion on question no. (v)
Coming to the extinguishment of the right of the
petitioners of being released on bail since petition for bail was
not filed before the trial Judge during the default period as
contended by the learned counsel for the State, it appears that
section 167 Cr.P.C. has been enacted with the sprit that if a
person is arrested by the police then he should be produced
before the Magistrate with all promptitude. Section 167(2) of
Cr.P.C. prescribes that an accused can be detained by the
Magistrate before whom he is forwarded either in judicial custody
or on the prayer on the investigating officer in police custody
from time to time for a term not exceeding fifteen days in the
whole. Remand orders is to be passed by the Magistrate on
proper application of mind and not mechanically. In view of the
21
proviso (a)(i) to sub-section (2) of section 167 of the Code, a
Magistrate has no power to detain an accused in custody for a
total period exceeding ninety days from the first date of remand,
where investigation relates to an offence punishable with death,
imprisonment for life or imprisonment for a term not less than
ten years. By virtue Orissa Act 11 of 1997 which came into force
w.e.f. 20.11.1997, the words "ninety days" in section 167 of the
Code has been substituted with "one hundred twenty days".
Similarly in view of the proviso (a)(ii) to sub-section (2) of
section 167 of the Code, the Magistrate has no power to detain
as accused in custody for a total period exceeding sixty days,
where investigation relates to any other offence. Sub-section
(2)(a) of section 167 of the Code further provides that on the
expiry of period of ninety days (for Orissa "one hundred twenty
days") or sixty days, the accused shall be released on bail by the
Magistrate if he is prepared to furnish bail and accordingly
furnishes bail bond. The total period of ninety days (for Orissa
"one hundred twenty days") under clause (i) and the total period
of sixty days under clause (ii) of the proviso (a) to sub-section
(2) of section 167 of Cr.P.C. have to be calculated from the date
of remand and not from the date of arrest. In view of sub-section
(4) of section 36-A of the N.D.P.S. Act, since the offence involves
22
commercial quantity, the reference in sub-section (2) of section
167 of Cr.P.C. thereof to "ninety days" shall be construed as
reference to "one hundred eighty days".
In case of Hitendra Vishnu Thakur (supra), it is
held that the proviso to sub-section (2) of section 167 of Cr.P.C.
fixes the outer limit within which the investigation must be
completed and in case the same is not completed within the said
prescribed period, the accused would acquire a right to seek to
be released on bail.
In case of Shardulbhai Laxmanbhai Pancholi
-Vrs.- State of Gujurat reported in 1990 (3) Crimes 480, a
Full Bench of Gujarat High Court held that the accused has no
absolute right to be released on bail on account of failure on the
part of the police to submit charge sheet within the prescribed
period inasmuch as he has to file his bail application after the
expiry of period prescribed by the proviso and before filing of the
charge sheet. If the charge sheet is filed after the stipulated
period but before the filing of the bail application by the accused
then he cannot claim benefit of the proviso.
In case of State of M.P. -Vrs.- Rustam reported
in (1996) 11 Orissa Criminal Reports (SC) 167, it was held
23
that right to compulsive bail under the proviso to section 167(2)
of Cr.P.C. does not survive after filing of his challan.
In case of Sanjay Dutt -Vrs.- State reported in
1994 Supreme Court Cases (Criminal) 1443, a five-Judge
Bench of the Hon'ble Supreme Court held that the indefeasible
right accruing to the accused is enforceable only prior to the
filing of challan and it does not survive or remain enforceable on
the challan being file, if already not availed of. Once the challan
has been filed, the question of grant of bail has to be considered
and decided only with reference to the merits of the case under
the provisions relating to grant of bail to an accused after the
filing of the challan. The custody of the accused after the challan
has been filed is not governed by section 167 but different
provisions of Code of Criminal Procedure. If that right had
accrued to the accused but it remains unenforced till the filing of
the challan, then there is no question of its enforcement
thereafter since it is extinguished the moment challan is filed
because section 167 Cr.P.C. ceases to apply.
In case of Dr. Bipin Shantilal Panchal -Vrs.- State
of Gujarat reported in (1996) 10 Orissa Criminal Reports
(SC) 265 where a question was raised as to whether the
accused who was entitled to be released on bail under proviso to
24
sub-section (2) of Section 167 of the Code, not having made an
application when such right had accrued, can exercise that right
at a later stage of the proceeding, relying upon the decision of
the Constitution Bench in case of Sanjay Dutt (supra), it is held
as follows:-
"4.....Therefore, if an accused person fails to
exercise his right to be released on bail for the
failure of the prosecution to file the charge-sheet
within the maximum time allowed by law, he
cannot contend that he had an indefeasible right
to exercise it at any time notwithstanding the
fact that in the meantime the charge sheet is
filed. But on the other hand if he exercises the
right within the time allowed by law and is
released on bail under such circumstances, he
cannot be rearrested on the mere filing of the
charge sheet, as pointed out in Aslam Babalal
Desai -Vrs.- State of Maharashtra: 1992
Criminal Law Journal 3712."
In case of Udaya Mohanlal Acharya -Vrs.- State
of Maharashtra reported in 2001 (II) Orissa Law Reviews
290, it is held that on the expiry of period of ninety days or sixty
days, as the case may be, an indefeasible right accrues in favour
of the accused for being released on bail on account of default by
the investigating agency in the completion of investigation within
25
the period prescribed and the accused is entitled to be released
on bail, if he is prepared to and furnishes the bail as directed by
the Magistrate. It is further held that on expiry of the period
specified in para (a) of the proviso to sub-section (2) of section
167 if the accused files an application for bail and offers also to
furnish the bail on being directed, then it has to be held that the
accused has availed of his indefeasible right even though the
Court has not considered the said application and has not
indicated the terms and conditions of bail and the accused has
not furnished the same. It is further held that if an accused is
entitled to be released on bail by application of proviso to sub-
section (2) of section 167, makes the application before the
Magistrate, but the Magistrate erroneously refuses the same and
rejects the application and then the accused moves the higher
forum and while the matter remains pending before the higher
forum for consideration, a charge sheet is filed, the so-called
indefeasible right of the accused would not stand extinguished
thereby, and on the other hand, the accused has to be released
on bail.
In case of Pragyna Singh Thakur -Vrs.- State of
Maharashtra reported in (2011) 10 Supreme Court Cases
445, it is held that the right under section 167(2) of Code of
26
Criminal Procedure to be released on bail on default if charge
sheet is not filed within 90 days from the date of first remand is
not an absolute or indefeasible right. The said right would be lost
if charge sheet is filed and would not survive after the filing of
the charge sheet. In other words, even if an application for bail is
filed on the ground that charge sheet was not filed within 90
days, but before the consideration of the same and before being
released on bail, if charge sheet is filed, the said right to be
released on bail would be lost. After the filing of the charge
sheet, if the accused is to be released on bail, it can be only on
merits.
In a recent decision in case of Rakesh Kumar Paul
-Vrs.- State of Assam reported in (2017) 68 Orissa
Criminal Reports (SC) 1, it is held that in the matter of
personal liberty, the Court cannot and should not be too
technical and must lean in favour of personal liberty.
Consequently, whether the accused makes a written application
for 'default bail' or an oral application for 'default bail' is of no
consequence. The concerned Court must deal with such an
application by considering the statutory requirements namely,
whether the statutory period for filing a charge sheet or challan
has expired, whether the charge sheet or challan has been filed
27
and whether the accused is prepared to and does furnish bail. It
was further held that in the matters concerning personal liberty
and penal statutes, it is the obligation of the Court to inform the
accused that he or she is entitled to free legal assistance as a
matter of right. The Hon'ble Court rejected the contention raised
that since charge sheet having been filed against the petitioner,
he is not entitled to 'default bail' and further held that the Court
is concerned with the interregnum period between 4th January
2017 and 24th January 2017 when no charge sheet has been
filed, during which period he had availed of his indefeasible right
of 'default bail'. It would have been another mater all together if
the petitioner had not applied for default bail for whatever
reason during this interregnum. It is further held that when the
accused voluntarily gives up the indefeasible right for default bail
and having forfeited that right, the accused cannot, after the
charge sheet or challan has been filed, claim a resuscitation of
the indefeasible right.
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
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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
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.
29
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 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
30
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.
Accordingly, both the bail applications are allowed.
Let the petitioners be released on bail in the
aforesaid case on furnishing bail bond of Rs.2,00,000.00 (rupees
two lakhs only) each with two local solvent sureties each for the
like amount to the satisfaction of the Court in seisin over the
matter with further terms and conditions as the learned Court
may deem just and proper with the further condition that the
petitioners shall appear before the learned trial Court on each
date when the case would be posted for trial. Violation of any
terms and conditions shall entail cancellation of bail.
Lower Court records be sent back in sealed cover to
the learned trial Court forthwith.
..............................
S.K. Sahoo, J.
Orissa High Court, Cuttack The 16th May, 2018/Pravakar/Sisir/Sukanta