Orissa High Court
CRLMC/1/2020 on 1 July, 2020
Author: S.Pujahari
Bench: S.Pujahari
CRLMC No.1 of 2020 04. 01.07.2020 This is an application filed under Section 482 of Cr.P.C. seeking for quashment of the order dated 16.12.2019 passed by the learned Sessions Judge- cum-Special Judge, Balasore in Special Case No.171 of 2019 refusing the prayer made by the petitioners to allow them to be released on default bail for the reason of non-submission of charge-sheet within the period stipulated. 2. The materials available on record would go to show that the petitioners having been indicted in Sahadevkhunta P.S. Case No.165 of 2019 for alleged commission of offence under Section 21(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the "NDPS Act"), had filed a petition under Section 167(2) of Cr.P.C. on 16.12.2019 seeking for their release on default bail on the ground that neither the charge-sheet was filed within the time stipulated under Section 167(2) of Cr.P.C. read with Section 36-A(4) of the NDPS Act nor any extension for time was granted by the trial Court before expiry of the stipulated period. On the same 2 Contd.......... day, the learned Public Prosecutor also appears to 01.07.2020 have filed a petition under Section 36-A(4) of the NDPS Act seeking for extension of time for further investigation. However, the prayer of the petitioners has been rejected by the learned Sessions Judge- cum-Special Judge, Balasore vide the impugned order with observation that since 180th day was holiday and charge-sheet having been filed in the late hour of the date of reopening of the Court, i.e., on 181st day of the detention of the accused- petitioners in custody, the indefeasible right to go on bail did not accrue in favour of the petitioners. The learned Sessions Judge-cum-Special Judge, Balasore placed reliance on a decision of this Court in the case of N. Sureya Reddy and another vrs. State of Orissa, reported in 1985 Cri.L.J. 939 (Orissa) wherein this Court had held that if 90th day is a holiday, filing of charge-sheet on the next day should be treated as sufficient compliance for filing the charge-sheet within a period of ninety days, i.e., the stipulated period, and it cannot be said that the 3 Contd.......... provision contained in Section 167(2) of Cr.P.C. is 01.07.2020 infringed. But, he kept the petition of the Public Prosecutor under Section 36-A(4) of the NDPS Act with the observation that it is incompetent to decide the same being a Presiding Officer-in-Charge of the Court in the absence of the regular Presiding Officer of the Court concerned. 3. It is, however, the contention of the learned counsel for the petitioners that the law laid down in the case of N. Sureya Reddy (supra) having been held by this Court impliedly overruled in the case of Ada alias Adeita Behera vrs. State, reported in (1996) 10 OCR 650 placing reliance in the ratio laid down by the Hon'ble Supreme Court in the case of Dhaganti Satyanarayan and others vrs. State of Andhra Pradesh, reported in AIR 1986 S.C. 2130 and in the case of Central Bureau of Investigation, Special Investigation Cell-I, New Delhi vrs. Anupam J. Kulkarni, reported in AIR 1992 SC 1768, with an observation that the provisions of Section 12 of the Limitation Act and Sections 9 and 4 Contd.......... 10 of the General Clauses Act cannot come into play 01.07.2020 in the matter of computation of the period of detention of the accused under Section 167 of Cr.P.C., the rejection of the prayer by the learned Sessions Judge-cum-Special Judge In-Charge of the Court was unjustified. It is further submitted that the same is also reiterated by this Court, placing reliance in the case of Ada alias Adeita Behera (supra), in the case of Pandia Gouda vrs. State of Orissa, reported in (2019) 75 OCR 349. It is also his further submission that in the case at hand, charge- sheet having admittedly not been filed within the time stipulated, i.e., within 180 days and no extension having been granted as provided in proviso to sub-section (4) of Section 36-A of the N.D.P.S. Act, the impugned order of the learned Sessions Judge- cum-Special Judge In-Charge, Balasore is liable to be quashed and the petitioners are entitled to be released on bail in view of the law laid down by the Hon'ble Supreme Court in the case of Uday Mohanlal vrs. State of Maharashtra, reported in 5 Contd.......... (2001) 22 OCR (SC) 1. 01.07.2020 4. Learned Addl. Standing counsel appearing for the State, however, submits that since in this case, there was also a prayer by the prosecution counsel for extension of time for completion of investigation, the trial Court ought not have dealt with a prayer for default bail under Section 167(2) of Cr.P.C. without addressing the prayer for extension of time for conclusion of the investigation. It is his further argument that not only there was a prayer from the side of the prosecution counsel for extension of time, but also charge-sheet was submitted by the Investigating Officer well ahead of the prayer under Section 167(2) of Cr.P.C., i.e., on 180th day with further prayer to seek extension to complete the investigation as the chemical examination report was not received by the time of filing charge-sheet indicating the charge-sheet to be preliminary charge- sheet, and hence the right available to the petitioners to seek for release on default bail stood extinguished. 6 Contd.......... 5. Before addressing the contention of the parties 01.07.2020 on sustainability of the order impugned, it would apposite to mention here that in this case as stated earlier, a petition was filed by the petitioner on 16.12.2019 and thereafter a petition for extension of time by the learned P.P. was filed under Section 36- A(4) of the NDPS Act seeking extension to complete the investigation and before consideration of such prayer, the charge sheet filed was placed before the Presiding Officer at 3.05 P.M. as revealed from the order and the order impugned was passed. However, the aforesaid has been factually controverted by the Investigating Officer in this case by filing a counter affidavit indicating that she had no scope for filing extension of time before the completion of 180th days as 12.12.2019 was a holiday and 13.12.2019 the Court could not function for death of one Chakradhar Das, an Advocate of Bar Association and, as such, she filed the preliminary charge-sheet on 14.12.2019, i.e., on 180th day and 14.12.2019 and 15.12.2019 being the holidays, the same could 7 Contd.......... be placed before the Court on 16.12.2019. As such, 01.07.2020 the accused is not entitled to the benefit of default bail. Further, in the counter affidavit, it has been categorically submitted that the preliminary charge- sheet was filed keeping the investigation open with another prayer to the P.P. which was also duly acknowledged. In the said factual backdrop, the contentions of the learned counsel for the parties are required to be addressed. 6. Section 167(2) of Cr.P.C. mandates that when a person is incarcerated in custody pending investigation and investigation is not concluded within the period stipulated under Section 167(2) of Cr.P.C. on expiry of the period stipulated, the accused acquires a right to be released on default bail if he is ready and willing to furnish the bail bond thereof as thereafter the Court has no jurisdiction to remand the accused under Section 167 of Cr.P.C. But, in the event the accused is unable to furnish the bail bond or avail of the aforesaid right, the Court by virtue of the enabling provision vide 8 Contd.......... Explanation-I of sub-section (2) of Section 167 of 01.07.2020 Cr.P.C. is empowered to remand the accused to custody in spite of the challan being not filed within the period stipulated. Of course, the period prescribed in Section 167(2) of Cr.P.C., has its application after the expiry of the period as provided in Section 36-A(4) of the N.D.P.S. Act or on expiry of the period of extension, provided in the proviso to the said section, if the Court concerned has allowed the same taking note of the report of the Public Prosecutor regarding non-completion of investigation within the period prescribed in Section 36-A(4) of the NDPS Act, as has been held by the Hon'ble Supreme Court in the case of Union of India v. Thamisharasi and Ors., reported in 1995 (9) SCC 141. 7. The right of the accused to be released on default bail for non-filing of challan within the period stipulated in Section 167 of Cr.P.C. is indefeasible one has since been well settled. The Hon'ble Supreme Court Court in the case of Rakesh Kumar 9 Contd.......... Paul referred have also held that default bail is 01.07.2020 indefeasible right, which cannot be allowed to be frustrated by the prosecution placing reliance in the case of Union of India through C.B.I. v. Nirala Yadav @ Raja Ram Yadav @ Deepak Yadav, reported in (2014) 9 SCC 457, wherein the Supreme Court had the occasion to review almost the entire case law on the subject including the case of Uday Mohanlal Acharya (supra). Furthermore, in the case of Rakesh Kumar Paul (supra) the Supreme Court have also held that even if regular application for bail is filed and in the meanwhile within the period prescribed to file the challan under Section 167(2) of Cr.P.C., the charge sheet/challan is not filed, the accused can also make an oral prayer to consider his prayer taking note of provisions under Section 167(2) of Cr.P.C. and also held that it is the duty and responsibility of a court on coming to know that the accused person before it is entitled to 'default bail', to at least apprise him or her of the indefeasible right. 10 Contd.......... 8. In the case of Nirala Yadav (supra), the 01.07.2020 Hon'ble Supreme Court taking almost all the decisions including the case of Uday Mohanlal Acharya (supra) with regard to indefeasible right of the accused to be released on bail, have held that the Court should not keep an application filed under Section 167(2) Cr.P.C. pending after expiry of the statutory period to enable the investigating agency to file the charge-sheet to defeat the indefeasible right of an accused. If a case is adjourned by the court granting time to the prosecution not adverting to the application filed on behalf of the accused, it would be a violation of the legislative mandate. When the charge-sheet is not filed and the right under Section 167(2) Cr.P.C. has ripened earning the status of indefeasibility, it cannot be frustrated by the prosecution on some pretext or the other. The accused can avail his liberty only by filing application stating that the statutory period for filing of the charge-sheet has expired, the charge-sheet has not yet been filed and an indefeasible right has 11 Contd.......... accrued in his favour and further he is prepared to 01.07.2020 furnish the bail bond. Once such a bail application is filed, it is obligatory on the part of the court to verify from the records as well as from the Public Prosecutor whether the time has expired and the charge-sheet has been filed or not or whether an application for extension which if statutorily permissible, has been filed. 9. Notwithstanding the exposition of law indicated above, the period stipulated under Section 167(2) of Cr.P.C. cannot be construed as the period of limitation for filing of the Final Form by the Investigating Officer, inasmuch as Section 167 of Cr.P.C. never precludes the Investigating Officer to continue with the investigation, even if the challan / Final Form is not filed within the period prescribed when the accused is incarcerated in connection with the case. Section 167(5) of Cr.P.C. only empowers the Magistrate to give a direction to stop further investigation in a summons case if it is not concluded within the period of six months and the 12 Contd.......... said period has not been extended and it does not 01.07.2020 bar the Magistrate from taking cognizance based on the final report filed thereafter taking note of the materials collected till the direction given to stop further investigation. Furthermore, the power under Section 173(8) of Cr.P.C. is also available to the police, even after filing of the Challan / Final Form to continue with the further investigation and file the supplementary materials, if any, under Section 173(8) of Cr.P.C. In such premises, if such a construction is ascribed to the stipulation of period made under Section 167(2) of Cr.P.C., then the provision under Section 173(8) of Cr.P.C. will be a nugatory one. The stipulation made under Section 167 of Cr.P.C. is primarily concerned with the power of the Court to authorize detention of an accused in custody pending investigation, and accrual of a right to bail in favour of the detenue on account of non- submission of challan / charge-sheet against him within the time stipulated. Reliance in this regard can be placed on a decision of the Hon'ble Supreme 13 Contd.......... Court in the case of Dinesh Dalmia vrs. CBI, 01.07.2020 reported in (2007) 8 SCC 770, wherein in paragraphs-38 and 39 it has been held as follows:- "38. It is well-settled principle of interpretation of statute that it is to be read in its entirety. Construction of a statute should be made in a manner so as to give effect to al the provisions thereof. Remand of an accused is contemplated by Parliament at two stages; pre-cognizance and post-cognizance. Even in the same case, depending upon the nature of charge-sheet filed by the investigating officer in terms of Section 173 of the Code, a cognizance may be taken as against the person against whom an offence is said to have been made out and against whom no such offence has been made out even when investigation is pending. So long a charge- sheet is not filed within the meaning of sub- section (2) of Section 173 of the Code, investigation remains pending. It, however, does not preclude an investigating officer, as noticed hereinbefore, to carry on further investigation despite filing of a police report, in terms of sub-section (8) of Section 173 of the Code. 39. The statutory scheme does not lead to a conclusion in regard to an investigation leading to filing of final form under sub- section (2) of Section 173 and further investigation contemplated under sub-section (8) thereof. Whereas only when a charge-sheet is not filed and investigation is kept pending, benefit of proviso appended to sub-section (2) of Section 167 of the Code would be available to an offender; once, however, a charge-sheet is filed, the said right ceases. Such a right does not revive only because a further investigation remains pending within the meaning of sub-section (8) of Section 173 of the Code." 14 Contd.......... In that view of the matter, Section 10 of the General 01.07.2020 Clauses Act has no role to play in computation of the period under Section 167(2) of Cr.P.C. 10. The Hon'ble Supreme Court also in the case of Dhaganti Satyanarayan (supra) at paragraph-30 have held as follows:- "As the terms of proviso (a) with reference to the total periods of detention can be interpreted on the plain language of the proviso itself we do not think it is necessary to invoke the provisions of the General Clauses Act or seek guidance from the Limitation Act to construe the terms of the proviso." 11. Again in the case of Central Bureau of Investigation, Special Investigation Cell-I, New Delhi v. Anupam J. Kulkarni, reported in AIR 1992 SC 1768, the Hon'ble Supreme Court have also held that the period of fifteen days in Section 167 of Cr.P.C. starts running as soon as the accused is produced before the Magistrate. 12. Placing reliance on the aforesaid two decisions of the Apex Court in the case of Dhaganti Satyanarayan (supra) and Anupam J. Kulkarni (supra), this Court in the case of Ada alias Adeita Behera (supra) have already held in paragraph-6 as 15 Contd.......... follows:- 01.07.2020 "6. The learned Standing counsel then contended since 9-3-1996 and 10-3-1996 being second Saturday and Sunday respectively were holidays and the ninetieth day expired during a holiday, the charge-sheet could have been filed on the next working day i.e. 11-3-1996. For the aforesaid submission, obviously he has drawn inspiration from the Division Bench decision of this Court reported in 1985 (I) OLR 105 (N. Sureya Reddy and another v. State of Orissa). In the said case, charge-sheet was submitted on 6-8-1984, i.e. on the 91st day of arrest (at that time the decision reported in AIR 1986 SC 2130 had not been rendered and as such the period of ninety days was being calculated from the date of arrest following the Division Bench decision of the Orissa High Court in 1983 Crl. LJ 1336 (Fakira Naik v. State of Orissa) which was subsequently expressly overruled in AIR 1986 SC 2130), the ninetieth day as per the said calculation fell on 5-8-1984 which was a Sunday. Referring to the decision of the Supreme Court reported in AIR 1957 SC 271 (Harinder v. Karnail Singh and others) and relying upon Sec. 10 of the General Clauses Act, was held that if the last day for filing charge-sheet fell on a holiday, the charge- sheet could be filed on the next working day disentitling the accused to avail of the statutory bail mandated by Sec. 167(2), proviso. The view expressed in the aforesaid decision clearly support the contention raised by the learned Standing Counsel. However, it appears that the underlying logic of the aforesaid decision was not accepted in the decision reported in AIR 1986 SC 2130. After referring to several decisions in paragraph-27 of the judgment including the decision in 1985 Cri.LJ 939 (which corresponds to 1985 (I) OLR 105), it was observed in paragraph-28 as follows:- "In these decisions even though a contrary view has been taken we find the conclusions are not based on the reasoning taken by us............. In Jagdish's case (Jagdish v. State of 16 Contd.......... Madhya Pradesh, 1984 Cri.LJ 79 (M.P.) 01.07.2020 it has been held that the date of arrest is to be excluded in computing the total period of detention by application of Sec. 9 of the General Clauses Act and by bearing in mind Sec. 12 of the Limitation Act. In Sureya Reddy's case (1985 Cri.LJ 939 (Orissa), the view taken is that Sec. 10 of the General Clauses Act would be attracted for interpreting the proviso if the last day happens to be a Sunday or holiday and even otherwise the principle enunciated therein should be invoked on considerations of justice and expediency. In that case the 90th day from the date of arrest happened to be a Sunday and hence the Court was of the view that Sec. 10 of the General Clauses Act would be attracted." In paragraph-39 of the decision, the Supreme Court did not approve of the underlying logic of the decisions discussed in paragraphs 27 and 28 and observed that the terms of Proviso (a) with reference to the total period of detention can be interpreted on the plain language of the proviso itself and it is not necessary to invoke the provisions of the General Clauses Act or seek guidance from the Limitation Act to construe the terms of the proviso. In fact, if the logic of the decision reported in 1985 (I) OLR 105, is extended, the same should also apply to production of the arrested accused person in accordance with Sec. 57 of the Code which envisages that an accused should be produced before the nearest Magistrate within twenty-four hours excluding the time of journey. If provisions of Sec. 10 of the General Clauses Act were to apply, it can be argued that if the outer limit for production of an arrested accused person falls on a holiday including Sunday, he can be produced on the next day. In fact, it has never been even remotely suggested in any reported decision that an accused in custody need not be produced within twenty-four hours in accordance with Sec. 57, if such outer limit falls on a holiday or Sunday. Similarly, the 17 Contd.......... period of remand of 15 days on the whole 01.07.2020 cannot be extended if the 15th day falls on a holiday or Sunday. Any other interpretation is likely to defeat the very purpose underlying the provisions contained in Secs. 57 and 167 of the Code. Moreover, if provisions of Sec.10 of the General Clauses Act would be applicable to such cases, there is no reason as to why Sec. 9 of the General Clauses Act and Sec. 12 of the Limitation Act should not apply. In other words, applying the provisions of Sec. 9 of the General Clauses Act or Sec. 12 of the Limitation Act, the period of ninety days should be calculated excluding the date of remand. As already indicated, such a course had not been approved in the decisions in AIR 1986 SC 2130 and AIR 1992 SC 1768. In view of the underlying ratio of the aforesaid two decisions of the Supreme Court, the ratio of the decision reported in 1985 (I) OLR 105 can be said to have been impliedly overruled." 13. The aforesaid exposition of law made in the case of Ada alias Adeita Behera (supra) has been reiterated by this Court in the case of Pandia Gouda (supra). In the case of Pandia Gouda (supra) this Court have already held that Sections 9 and 10 of the General Clauses Act have no application for computation of the period under Section 167(2) of Cr.P.C. with regard to release of the accused on default bail. 14. The prosecution, however, has placed reliance on a decision of the Supreme Court in the case of 18 Contd.......... Ravi Prakash Singh alias Arvind Singh vrs. 01.07.2020 State of Bihar, reported in (2015)8 SCC 340, but keeping in view the controversy involved in the present case and also the law propounded by the Supreme Court that the provisions of General Clauses Act have no application to the computation of the period of detention, the decision cited by the prosecution is of no assistance. 15. However, vide the impugned order, though the learned Sessions Judge-cum-Special Judge, Balasore made an observation that at the time of filing of the petition under Section 167(2) of Cr.P.C., charge- sheet had not been filed inasmuch as the same was received by the Court later on the same date, applying the ratio of N. Sureya Reddy (supra) he rejected the aforesaid prayer of the accused- petitioners. As mentioned hereinbefore, this Court in the case of Ada alias Adeita Behera (supra) have already held that the decision in the case of N. Sureya Reddy (supra) has already been impliedly overruled by the Supreme Court in some subsequent 19 Contd.......... decisions and, as such, reliance could not have been 01.07.2020 placed on the same. But, the observation made in the impugned order that at the time of filing of the petition by the accused-petitioners, charge-sheet had not been received, is also in controversy. Ms. Mausumy Mohanty, the Investigating Officer in the case has solemnly affirmed vide her counter affidavit submitted before this Court that preliminary charge- sheet was submitted by her on 14.12.2019, on which date the stipulated time was going to be completed with a prayer for keeping the investigation open, which was duly acknowledged. She has further explained that although she was supposed to make a prayer before the Court below on 13.12.2019 for extension of time for conclusion of investigation, there remained no scope to do so for the reason that on the said date the Court below was instantly declared closed. According to her, she was not at fault, and that charge-sheet submitted by her on 14.12.2019 was placed before the Court below on 16.12.2019 inasmuch as both 14th and 15th of 20 Contd.......... December, 2019 were public holidays. 01.07.2020 16. The concept of "preliminary charge-sheet" is alien to the Code of Criminal Procedure although in view of Section 173(8) of the Code, supplementary charge-sheet can be filed by the Investigating Agency in the aftermath of submission of the Final Form / charge-sheet. Notwithstanding the term so used, it is always upto the Court receiving such charge-sheet, to find out at the stage of taking cognizance, as to whether or not the so-called preliminary charge- sheet qualifies to be a Final Form under Section 173(2) of the Code, to be acted upon in view of Section 190 of the Code. In the present case, as the record shows, extension of time was intended to be sought for completion of investigation / submission of charge-sheet by the Investigating Officer or prosecution counsel on the ground of non-receipt of chemical examination report from the State Forensic Science Laboratory. Be that as it may, the above being not a ground of challenge in the present petition, this Court does not feel it necessary to 21 Contd.......... embark further upon the said aspect. But, in view of 01.07.2020 the factual controversy as to whether the charge- sheet has been submitted by the Investigating Officer on 14.12.2019, i.e., the 180th day of detention of the petitioners in custody and before filing the petition under Section 167(2) of Cr.P.C. by the petitioners or on 16.12.2019 as noted in the impugned order, there arises the expediency of an inquiry into the said controversy. 17. In the above premises, this Court while setting aside the impugned order remits back the matter to the learned Sessions Judge-cum-Special Judge, Balasore with a direction to conduct an inquiry at the outset as to whether the charge-sheet / preliminary charge-sheet was filed on 14.12.2019, after giving due opportunity of hearing to both the sides including the Investigating Officer. Needless to mention that receipt of charge-sheet by the Office of the Court below / Office of the Court Sub-Inspector shall be deemed to have been received by the Court. As per the finding in the inquiry, the petition of the 22 Contd.......... accused-petitioners under Section 167(2) of Cr.P.C. 01.07.2020 shall be decided afresh, keeping in view the settled principles of law indicated hereinbefore. The whole exercise directed above, shall be completed by the Court below within ten days from the date of communication of this order or production of a certified copy thereof before him. 18. With the observation and direction as above, this CRLMC stands disposed of. ........................... S.Pujahari, J.
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