Orissa High Court
Laxmidhar Behera vs State Of Odisha ... Opp. Party on 4 December, 2020
Author: S.Pujahari
Bench: S.Pujahari
CORAM : HON'BLE SHRI JUSTICE S.PUJAHARI
CRLREV No.451 of 2020
Laxmidhar Behera ... Petitioner
- Versus -
State of Odisha ... Opp. Party
ORDER
04. 04.12.2020 In the wake of the pandemic Covid-19, the case is taken up through V.C.
2. This Court though generally never entertain a Criminal Revision against an order of the Magistrate and directs to approach the Sessions Judge, but this being relating to involvement a prayer for bail and also connecting bail petition being pending, the same is entertained, as this Court is of the opinion that the due pendency of such bail application in this Court, the Sessions Judge may be loathed to take up such revision.
3. Heard.
4. This revision has been filed by the petitioner challenging the order dated 24.11.2020 passed by the learned J.M.F.C., Ranpur in 2(b)CC Case No.25 of 2020 arising out of Ranpur Range Office Offence Report No.5 of 2020-21 refusing the petitioner to extend the benefit of compulsive bail under Section 167(2) of Cr.P.C., as the investigation was completed and final P.R. was ready, but the same was submitted to this Court.
5. It appears that the petitioner has been indicated in the aforesaid case for commission of offence 2 punishable under Section 51(1) of the Wild Life Protection Act.
6. It is not in dispute that the petitioner was remanded in the aforesaid case pursuant to prosecution report submitted by the Forest Official on 13.7.2020 before the learned J.M.F.C., Ranpur. The final P.R. in this case having not been submitted within the time stipulated before the said Court, a right had accrued in favour of the petitioner for his release on default bail. As such, the petitioner filed a petition under Section 167(2) of Cr.P.C. before the learned Magistrate for his release on default bail. However, the learned J.M.F.C. accepting the submission of the Asst. Public Prosecutor as investigation was completed and final P.R. was ready and the same had been sent to this Court in the pending bail petition, the right of the petitioner under Section 167(2) of Cr.P.C. extinguished, rejected the prayer of the petitioner.
7. It is stated by the learned counsel for the petitioner that such an approach of Court is misconceived, inasmuch as if such an interpretation is given that would frustrate the mandate of Section 167(2) of Cr.P.C. which specifically state that within the period stipulated unless the investigation is completed, proof of which is placing of final form in the shape of charge-sheet or Final P.R., as in this case, is placed before the Court remanding the accused, the accused in custody thereafter cannot be remanded to custody on expiry of the stipulated period and is entitled to the benefit in 3 compulsive bail under Section 167(2) of Cr.P.C. Therefore, the impugned order is liable to be set aside and the petitioner deserves to be released on bail, submits the learned counsel for the petitioner.
8. Learned counsel for the State fairly concedes to such submission and also submits that no such final P.R. was received in the office of Advocate General.
9. Section 167 Cr.P.C. specifically stipulates that the Magistrate in an pending investigation can remand the accused for a term not exceeding 15 days at a time and in total for a period of 90 days, in Odisha context 120 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, and 60 days, where the investigation relates to any other offence. Under this provision, the power of the Magistrate to detain the accused in custody comes to an end after expiry of the aforesaid period unless the charge sheet is filed as the learned Magistrate thereafter has no jurisdiction to remand the accused under Section 167 of Cr.P.C. in a case pending investigation. However, the same is subject to exception that if the accused after expiry of the period, even if bail is offered does not avail of the same, then under the enabling provision of the said section, the Magistrate can remand the accused, even if investigation has not been completed within the stipulated period. The Apex Court in a number of cases have held that the accused incarcerated is required to be 4 informed by the Court remanding him under Section 167 of Cr.P.C. when the investigation is not completed within the stipulated period, regarding accrual of his right to be released on bail for such default of the investigation. Reference in this regard can be made to the case Rakesh Kumar Paul v. State of Assam, reported in (2017) 15 SCC 67.
10. Here in this case, it appears that the Magistrate has failed to intimate the accused regarding accrual of his such right of being released on bail on completion of the stipulated period for non-submission of final P.R. and extend him the benefit of compulsive bail. Not only that the learned Magistrate also rejected the prayer made for compulsive bail on a wrong impression that since the investigation has been completed, such right is not available to the accused, even though final P.R. was not placed before the Magistrate and stated to have been sent to this Court. Allowing such interpretation would frustrate the very purpose of Section 167(2) of Cr.P.C. inasmuch as strictly speak the aforesaid view of the learned Magistrate is not correct for the reason that in the absence of the charge sheet or final P.R. as in this case before the learned Magistrate indicating the completion of investigation, on expiry of the period stipulated, the learned Magistrate lacks jurisdiction to remand the accused further under Section 167 of Cr.P.C., if the accused is ready and willing to go on bail furnishing the bail bond required. Therefore, the impugned order of 5 the learned J.M.F.C. refusing the benefit of compulsive bail on the ground stated being contrary to law, cannot be sustained.
11. Accordingly, the Criminal Revision is allowed. The impugned order is set aside and the learned J.M.F.C., Ranpur is directed to release the petitioner on bail on his furnishing a bail bond of Rs.20,000/- (Rupees twenty thousand) with two solvent sureties each for the like amount to its satisfaction.
While parting with this case, I can not refrain myself from observing that in many cases it has come to the notice of this Court that the accused are being remanded beyond the stipulated period mentioned in Section 167 of Cr.P.C. pending investigation. The same is more so when the maximum period prescribes expires on a holiday. So also, charge-sheet / final P.R. filed are not immediately placed before Presiding Officer or his/her in- charge. The aforesaid in many a times gives rise to avoidable controversy on the right of the accused for compulsive bail. Needless to say that the Court dealing with the criminal matters particularly for the purpose of remand and bail, is available 365 days. There is no holiday for the said purpose. The Court concerned, therefore, are advised to see that the remand is made pending completion of the investigation in such a manner that no remand is made beyond the period of fifteen days at a time and the last spell of remand pending investigation should not be beyond the period of 120 days 6 or 60 days or for the period as provided in any Special Act for commission of offence under that Act with regard to applicability of Section 167 of Cr.P.C. The Presiding Officer or the Court concerned must ensure that the case record as well as the accused produced, even if the same is a holiday on the very next date of expiry of the maximum period of remand as provided in Section 167 of Cr.P.C. in a case pending investigation when the accused has / have been remanded and also intimate the accused if the investigation is not completed regarding accrual of his/her or their, as the case may be, indefeasible right of being released on bail. The accused on that day may be produced physically or if not produced physically, through electronic video linkage. There should not be any deviation from the same as the aforesaid relates to the question of fundamental right of liberty of the accused guaranteed under Article 21 of the Constitution of India. Furthermore, the charge-sheet or final form submitted when the accused is in custody being remanded, must be placed immediately, even if the same is received on a holiday before the Presiding Officer of the Court concerned or his/her in-charge by the C.S.I. or the Dealing Assistant concerned and on such production, the Presiding Officer or his/her in-charge must note the time and date the same is produced before him/her with initial. The Presiding Officer or his In-charge must ensure the same. If any dispute arose with regard to the fact that such charge-sheet / final form submitted by the 7 Investigating Officer, was not placed by the C.S.I. or the Dealing Assistant immediately before the Presiding Officer concerned, the same may be brought by the Investigating Agency to the notice of Presiding Officer of the Court for proceeding against them for their such dereliction in duty in an appropriate manner.
The Registry of this Court shall do the needful to appraise the aforesaid order to the Judicial Officers within the State.
The parties may utilize the copy of this order as per the High Court's Notice No.4587 dated 25.03.2020.
.......................
S.Pujahari, J.
RKS/DA 8