Orissa High Court
Siba Bisoi And Others vs State Of Odisha ..... Opp. Party on 18 November, 2021
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No. 2123 of 2021
An application under section 482 of the Code of Criminal Procedure,
1973 in connection with T.R. Case No. 94 of 2020 pending on the file
of learned Sessions Judge-cum-Special Judge, Malkangiri.
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Siba Bisoi and others. ..... Petitioners
-Versus-
State of Odisha ..... Opp. Party
Advocate(s) appeared in this case :-
_________________________________________________________
For Petitioners : M/s. J.K. Panda, S.S. Dash and
B. Karna, and A.P. Dash, Advocates
For Opp. Party :
Mr. Sangram Keshari Mishra,
Addl. Standing Counsel.
_________________________________________________________
CORAM :
JUSTICE SASHIKANTA MISHRA
ORDER
th 18 November, 2021 SASHIKANTA MISHRA, J.
In the present application filed under Section 482 Cr.P.C., the petitioners challenge the orders dated 06.09.2020/08.09.2020, Page 1 of 8 02.03.2021 & 03.05.2021 passed by learned Sessions Judge-cum- Special Judge, Malkangiri in T.R. Case No. 94 of 2020. All the petitioners have been implicated in the above-mentioned case corresponding to Mathili P.S. Case No. 125 of 2020 for the alleged commission of offence under Sections 20(b)(ii)(C)/25/27-A/29 of the N.D.P.S. Act.
2. Briefly stated, the prosecution case is that on 05.09.2020 at about 8.00 p.m. while the police were performing evening patrolling duty and excise raiding duty at Kalapali Colony, they received reliable information that some persons were moving in a group carrying balance sticks on their shoulders with two bags containing suspicious articles towards Mathili P.S. area. When the police officers cordoned the accused persons, they were attacked by the group by means of sticks, axes and other deadly weapons. As a result, one home guard, namely, Banabasi Maharana sustained bleeding injuries and thereafter he was rescued and shifted to hospital. The police detained 36 persons and others ran away taking the advantage of darkness. The persons so detained disclosed that the luggage contained contraband ganja and they were transporting the Page 2 of 8 same from Chitrakonda area to Bargaon. After weighment, 1945 kg and 400 grams of ganja was recovered and seized. On such basis, the case was registered, the accused persons were arrested and forwarded to the court of learned Special Judge, Malkangiri on 06.09.2020. Since then, the accused persons are in custody.
3. The case record was put up on 27.02.2021 as the I.O. though Spl. Public Prosecutor submitted a prayer for extension of the remand period of the accused persons by another 120 days on the ground of further investigation. The said petition was considered on 02.03.2021 and on the same day it was allowed by extending the period of investigation by another 60 days despite the objection of the defence. However, despite expiry of the said extended period of 60 days on 01.05.2021, neither the charge sheet was filed nor the accused persons were produced before the Court to inform them of their right to seek default bail under the provisions of Section 167(2) of Cr.P.C.. On 03.05.2021, i.e., the second day of expiry of the extended period the I.O. submitted charge sheet against 46 accused persons including the present petitioners. The said order accepting the charge sheet beyond the stipulated period as well as the orders passed on Page 3 of 8 06.09.2020, 08.09.2020 and 02.03.2021 are impugned in the present application.
4. Heard Mr. J.K. Panda, learned counsel for the petitioner and Mr. S.K. Mishra, learned Addl. Standing Counsel through hybrid mode.
5. It is submitted by Mr. Panda that the day of first remand being 06.09.2020, 180 days was due to expire on 03.03.2021. The I.O. filed a petition seeking extension of time to complete investigation on 27.02.2021 i.e., within the 180-day period. It is further submitted that the said petition was considered and allowed on 02.03.2021, which is one day before the expiry of 180-day period. But charge sheet was not filed within the extended period of 60 days, i.e., on or before 01.05.2021, but two days thereafter. On such basis, Sri Panda has argued that the indefeasible right of the accused-petitioners to be released on bail for the default of the investigating agency as accrued on 01.05.2021 was completely ignored by the Court below and the charge sheet was accepted but without releasing the petitioners on default bail. To fortify his contention, Sri Panda has cited a decision of Page 4 of 8 this Court rendered in the case of Lambodar Bag vs. State of Orissa, (2018) 71 OCR 31.
6. Mr. Sangram Keshari Mishra, learned Addl. Standing Counsel, on the other hand, has argued that the petition for extension was filed for justified reason since several relevant aspects were required to be verified. Moreover, the initial investigation had revealed that other persons were also involved in the occurrence. For all the above reasons, it was highly necessary to allow extension of the period of investigation and therefore, the impugned order does not warrant any interference. Moreover, the accused-petitioners had not filed any application for default bail on 01.05.2021 and hence, cannot claim such right after filing of the charge sheet.
7. Certified copies of the relevant orders have been annexed to the CRLMC petition vide Annexure-4 series. A perusal of the same reveals that the accused persons were remanded to judicial custody for the first time on 06.09.2020. As such, the period of 180 days was due to expire on 03.03.2021. Admittedly, the petition for extension of time to complete the investigation was heard and allowed one day before completion of the 180-day period. No illegality is Page 5 of 8 involved thereby and the petitioners also do not have any serious grievance against such order. But what is forcefully challenged by the petitioners is that on the date of expiry of the extended period, i.e., 01.05.2021, neither they were produced before the court nor they were informed of their right of being released on bail since admittedly charge sheet had not yet been filed. Charge sheet was ultimately filed on 03.05.2021, i.e., two days after and still the accused persons were remanded which is contrary to the law laid down by the Apex Court in the case of M. Ravindran vs. The Intelligence Officer, Directorate of Revenue Intelligence, reported in 2020 SCC ONLINE SC 867 as well as by this Court in Lambodar Bag (supra).
8. It has been time and again emphasized that the right of the accused persons to be released on bail under the provisions of Section 167(2) of Cr.P.C. is indefeasible and akin to a fundamental right flowing from Article 21 of the Constitution of India. Moreover, despite absence of specific provision under Section 36A it is necessary for the court to inform the accused of such entitlement immediately after completion of 180 days or the extended period, as the case may be. These fundamental aspects have been given a complete go bye by Page 6 of 8 the learned Special Judge. Thus, as on 01.05.2021 or even 02.05.2021, the accused persons had acquired an indefeasible right of being released on bail and therefore, their detention beyond such date(s) become illegal and hence, deserves to be interfered with. It is immaterial that the accused persons had not filed any application for bail on that day. Since, as held by the Apex Court in the case of Rakesh Kumar Paul vs. State of Assam, reported in (2017) 15 SCC 67, as reiterated in the case of M. Ravindran (supra) and followed by this Court in Lombadar Bag (supra), in the absence of information to the accused by the Court of their entitlement to default bail, they cannot be deprived of their indefeasible right only because they had not applied for bail. Moreover, they have specifically pleaded in the present application at paragraph-20 that for the aforementioned illegality committed by the Court, they are entitled to be released on bail.
9. For the forgoing reasons, therefore, this Court has no hesitation in holding that the learned court below committed gross illegality in allowing detention of the accused persons beyond 01.05.2021 without informing them of their indefeasible right even Page 7 of 8 though no charge sheet had been filed. Once it is so held, all subsequent orders of remand of the accused persons are also rendered illegal.
10. In the result, the CRLMC is allowed. The impugned order dated 03.05.2021 is hereby set aside. The petitioners are at liberty to move the trial Court for bail and in such event, it is directed that they shall be released on such terms and conditions as may be fixed by the trial court including the condition that they shall personally appear before the trial Court on each date of posting of the case without fail.
11. The CRLMC, is therefore, disposed of.
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Sashikanta Mishra, Judge Orissa High Court, Cuttack The 18th November, 2021/ A.K. Rana Page 8 of 8