Orissa High Court
Santosh Kumar Roul vs State Of Orissa ........ Opp. Party on 22 July, 2019
Equivalent citations: AIRONLINE 2019 ORI 114, (2019) 128 CUT LT 689 (2019) 75 OCR 514, (2019) 75 OCR 514
Author: S. K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
BLAPL No. 3892 Of 2019
An application under section 439 of the Code of Criminal
Procedure, 1973 in connection with CID, CB, Cuttack P.S. Case
No. 20 of 2015 corresponding to G.R. Case No. 1062 of 2015
pending in the Court of S.D.J.M., Kendrapara.
----------------------------
Santosh Kumar Roul
@ Sarathi Baba ........ Petitioner
-Versus-
State of Orissa ........ Opp. Party
For Petitioner: - M/s. Soura Ch. Mohapatra
Manas Chand, R.R. Mishra
M.B. Patra
For Opp. party: - Mr. Arupananda Das
Addl. Govt. Advocate
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
...................................................................................................
Date of Hearing: 17.07.2019 Date of Order: 22.07.2019
...................................................................................................
S. K. SAHOO, J. This is an application under section 439 of Cr.P.C. for
grant of bail to the petitioner Santosh Kumar Roul @ Sarathi
Baba in connection with CID, CB, Cuttack P.S. Case No. 20 of
2015 corresponding to G.R. Case No. 1062 of 2015 pending in
the Court of learned S.D.J.M., Kendrapara for offences
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punishable under sections 120-B, 420, 354, 506 read with
section 34 of the Indian Penal Code.
2. The prosecution case, as per the first information
report dated 20.08.2015 lodged by the victim before the
Superintendent of Police, CID, CB, Cuttack is that a few years
back, she along with her mother had been to visit the petitioner
and taking advantage of the simplicity of her mother, the
petitioner kept the documents of their landed properties. Giving
assurance of arranging the marriage of the victim, the petitioner
took Rs.1,15,000/- (rupees one lakh fifteen thousand only) and
gold ornaments from the mother of the victim through one
Surendra Mallik and kept both the victim and her mother in the
Ashram. The victim and her mother were assigned strenuous
work in the Ashram and they were also tortured physically and
mentally. When mother of the victim repeatedly asked the
petitioner about arranging the marriage of the victim, the
petitioner showed some nude photographs of the victim and
threatened them to keep silence or else they would face dire
consequence. Being apprehensive, in order to keep the dignity of
the family, they remained silent. In the month of Chaitra 2014,
the petitioner called the victim to his room and embraced her.
The victim escaped from the clutches of the petitioner and left
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the Ashram on that very day and came to her village. Co-
accused Sarat Patra came to the house of the victim and
threatened her not to disclose about the incident before anybody
or else she would be killed and further told her that she could do
no harm to the petitioner.
On the basis of such F.I.R., CID, CB, Cuttack P.S.
Case No. 20 of 2015 was registered under sections 120-B, 420,
354, 506 read with section 34 of the Indian Penal Code against
the petitioner and others. Smt. Nilimarani Panda, Inspector of
Police, CID, CB, Cuttack took up investigation of the case and on
completion of investigation, finding prima facie case submitted
charge sheet on 11.12.2015 against the petitioner and co-
accused Sarat Chandra Patra under sections 120-B, 420, 354,
506 read with section 34 of the Indian Penal Code, on receipt of
which the learned S.D.J.M., Kendrapara took cognizance of such
offences as per order dated 14.12.2015.
3. The petitioner was taken on remand in this case on
16.10.2015 and his first bail application was rejected by this
case on merit on 27.10.2016 in BLAPL No. 7251 of 2015. The
petitioner approached the Hon'ble Supreme Court against such
order by filing a petition registered as Special Leave to Appeal
(Crl.) No. 750/2017 which was dismissed on 01.02.2017. The
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petitioner again approached this Court for bail in BLAPL No. 5855
of 2017 which was rejected on 13.10.2017. The petitioner then
moved the Hon'ble Supreme Court for the second time for bail
against the order dated 13.10.2017 of this Court in Special Leave
to Appeal (Crl.) No. 936/2018 which was also rejected on
16.05.2018. The petitioner then approached this Court for the
third time in BLAPL No. 1399 of 2019 which was disposed of on
16.04.2019 giving liberty to the petitioner to move for bail in the
trial Court in view of the provision under section 436-A of Cr.P.C.
The petitioner in pursuance to such order, moved an application
for bail before the Court of learned Sessions Judge, Kendrapara
in BLAPL No. 246 of 2019 which was rejected on 26.04.2019.
4. Mr. Soura Ch. Mohapatra, learned counsel appearing
for the petitioner at the outset contended that since the earlier
bail applications of the petitioner have been rejected by this
Court as well as by the Hon'ble Supreme Court earlier, this bail
application is being moved solely on the ground of statutory
violation of the provision contemplated under section 436-A of
Cr.P.C. in detaining the petitioner more than one-half of the
maximum period of imprisonment specified for the offences
without passing any order by the Magistrate in continuing such
detention. According to Mr. Mohapatra, this is a change in the
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circumstances which gives scope to this Court to reconsider the
application for bail. Reliance was placed on the decisions of the
Hon'ble Supreme Court in case of Hussain -Vrs.- Union of
India reported in A.I.R. 2017 S.C.1362 and this Court in the
case of Ram Chandra Hansdah -Vrs.- Republic of India
reported in (2018) 71 Orissa Criminal Reports 114.
Mr. Arupananda Das, learned Addl. Government
Advocate appearing for the State on the other hand contended
that since the proceeding in the Court below was stayed by this
Court in CRLREV No.228 of 2016 in which the co-accused Sarat
Chandra Patra challenged the order taking cognizance which is
continuing till date, in view of the explanation to section 436-A of
Cr.P.C., the stay period has to be excluded and therefore, the
petitioner is not entitled to be released on bail.
5. By the Code of Criminal Procedure (Amendment) Act,
2005, section 436-A of Cr.P.C. came to be inserted, which came
into force w.e.f. 23.06.2006 which reads as follows:-
"436-A. Maximum period for which an undertrial
prisoner can be detained.- Where a person has,
during the period of investigation, inquiry or trial
under this Code of an offence under any law (not
being an offence for which the punishment of death
has been specified as one of the punishments under
that law) undergone detention for a period extending
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up to one-half of the maximum period of
imprisonment specified for that offence under that
law, he shall be released by the Court on his personal
bond with or without sureties:
Provided that the Court may, after hearing the
Public Prosecutor and for reasons to be recorded by it
in writing, order the continued detention of such
person for a period longer than one-half of the said
period or release him on bail instead of the personal
bond with or without sureties:
Provided further that no such person shall in
any case be detained during the period of
investigation, inquiry or trial for more than the
maximum period of imprisonment provided for the
said offence under that law.
Explanation.- In computing the period of detention
under this section for granting bail, the period of
detention passed due to delay in proceeding caused
by the accused shall be excluded."
In the statement of objects and reasons, it is stated
as follows:-
"There had been instances, where undertrial
prisoners were detained in jail for periods beyond the
maximum period of imprisonment provided for the
alleged offence. As remedial measure, section 436-A
has been inserted to provide that where an under
trial prisoner other than the one accused of an
offence for which death has been prescribed as one
of the punishments, has been under detention for a
7
period extending to one-half of the maximum period
of imprisonment provided for the alleged offence, he
should be released on his personal bond, with or
without sureties. It has also been provided that in no
case will an under trial prisoner be detained beyond
the maximum period of imprisonment for which he
can be convicted for the alleged offence."
It is not in dispute that no retrospective effect has
been given to the applicability of the provision section 436-A of
Cr.P.C. The provision is applicable only to cases, which have
arisen after the amendment was brought into Cr.P.C. (Ref:-
Pramod Kumar Saxena -Vrs.- Union of India, (2008) 9
Supreme Court Cases 685).
On a plain reading of the provision under section
436-A of Cr.P.C., it is clear that the provision is applicable to a
person who has undergone detention for a period extending up
to one-half of the maximum period of imprisonment specified for
the offence under the law for which the investigation, inquiry or
the trial under Cr.P.C. is under progress. Such a person shall be
released by the Court on his personal bond with or without
sureties. The exception to the section lies for an offence for
which the punishment of death has been specified as one of the
punishment under that law. However, in view of the proviso to
section 436-A of the Cr.P.C., if the Court feels after hearing the
8
Public Prosecutor that the continued detention of such person for
a period longer than one-half of the maximum period of
imprisonment specified for the offence is necessary then the
Court has to pass a reasoned order in writing.
Law is well settled that reasons are live links between
the mind of the decision-taker to the controversy in question and
the decision or conclusion arrived at. Reasons substitute
subjectivity by objectivity. The emphasis on recording reasons is
that if the decision reveals the "inscrutable face of the sphinx", it
can, by its silence, render it virtually impossible for the courts to
perform their appellate function or exercise the power of judicial
review in adjudging the validity of the decision. Right to reason
is an indispensable part of a sound judicial system; reasons at
least sufficient to indicate an application of mind to the matter
before Court. Another rationale is that the affected party can
know why the decision has gone against him. One of the salutary
requirements of natural justice is spelling out reasons for the
order made; in other words, a speaking-out. The "inscrutable
face of the sphinx" is ordinarily incongruous with a judicial or
quasi-judicial performance.
Thus section 436-A of Cr.P.C. is not an unconditional
section. A proviso to the same has been enacted by the
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legislative in its wisdom which contemplates that there might be
many situations in a case in which despite the period of
detention having exceeded the one-half of the maximum period
of sentence provided in the Act, the detention may be further
required to be continued. The only thing expected by the Court is
that the reasons of such continued detention shall be recorded in
writing. Even if a Public Prosecutor moves the Court for such
longer period of detention by filing a petition assigning reasons
and the Court after considering the reasons mentioned therein
feels the continued detention is not necessary, it has to direct
release on bail instead of the personal bond with or without
sureties. However, if the delay in the proceeding is caused by the
accused or in other words, the delay is attributable to the
accused then such period of delay has to be excluded while
computing the period of detention for granting bail under this
provision. Therefore, if the Public Prosecutor is of the opinion
that even though a person has already undergone detention for a
period extending up to one-half of the maximum period of
imprisonment specified for the offences for which the
investigation, inquiry or trial is pending against such person, he
has to apply to the concerned Court in session over the matter
by filing a petition for continuing the detention assigning
10
reasons. Such a petition is to be filed either on the date when
such one-half period expires or prior to that. Notice should be
issued to the person under detention before granting an
extension as he has a right of hearing and to have his say as to
why the continued detention is not necessary. Even though the
statute does not specifically provide for issuance of such a notice
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
between the parties. There is a requirement of principles of
natural justice and issuance of notice to the person detained and
no prejudice whatsoever can be caused by the issuance of such a
notice to any parties. After hearing both the sides and taking into
account the grounds taken in the petition for extension of the
period of detention, the Court has to pass a reasoned order.
Needless to say that if the order goes against the Public
Prosecutor or the person detained, it can be challenged in the
higher forum by the aggrieved party. It would be in the fitness
of things that the Court should post the case to the date when
the one-half of the maximum period of imprisonment for the
offence expires and in the event no petition for continuing the
detention is filed by the Public Prosecutor then the Court has to
release the person under detention on his personal bond with or
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without sureties. There is no necessity even for the accused to
file an application for bail in such a situation to avail the
beneficial provision.
In the case of Rama Chandra Hansdah (supra), it
is held that even a single day delay in release of an undertrial
prisoner who is entitled to be released as per section 436-A of
Cr.P.C. would amount to serious violation of his right to life
under Article 21 of the Constitution of India and every endeavour
is to be made by the authorities to prevent breach of Article 21
of the Constitution of India by implementation of section 436-A
of Cr.P.C. It is also the settled principle of law that speedy trial is
a fundamental right implicit in the broad sweep and content of
Article 21 of the Constitution of India and if a person is deprived
of his liberty under a procedure which is not reasonable, fair, or
just, such deprivation would be violative of his fundamental right
under Article 21 of the Constitution of India. Section 436-A
Cr.P.C. is a benevolent provision which is incorporated by the
legislature with a view to ameliorate the conditions of the under
trials who are languishing in jail for a long period of time having
undergone more than half of the sentence which the offence
carries. The said provision cannot be interpreted in a manner so
12
as to deprive the benefit of such beneficial legislation to the
under trial.
The Hon'ble Supreme Court on 5th September 2014,
in the case of Vijay Aggarwal -Vrs.- Union of India & Ors. in
Writ Petition (Crl.) No. 32/2013 issued several directions relating
to under-trial prisoners considering the provision under section
436-A of the Cr.P.C., which are as follows:-
"We, accordingly, direct that jurisdictional
Magistrate/ Chief Judicial Magistrate/ Sessions Judge
shall hold one sitting in a week in each jail/prison for
two months commencing from 1st October 2014 for
the purposes of effective implementation of section
436-A of the Code of Criminal Procedure. In its
sittings in jail, the above Judicial Officers shall
identify the under-trial prisoners who have completed
half period of the maximum period of imprisonment
provided for the said offence under the law and after
complying with the procedure prescribed under
section 436-A, pass an appropriate order in jail itself
for release of such under-trial prisoners who fulfill the
requirement of section 436-A for their release
immediately.
Such jurisdictional Magistrate/Chief Judicial
Magistrate/ Sessions Judge shall submit the report of
each of such sitting to the Registrar General of the
High Court and at the end of two months, the
Registrar General of each High Court shall submit the
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report to the Secretary General of this Court without
any delay.
To facilitate the compliance of the above
order, we direct the Jail Superintendent of each
jail/prison to provide all necessary facilities for
holding the Court sitting by the above judicial
officers.
A copy of this order shall be sent to the
Registrar General of each High Court, who in turn will
communicate the copy of the order to all Sessions
Judges within his State for necessary compliance.
The above order may be treated as having been
passed in the present case as well with regard to
consideration of under-trial prisoners."
In the case of Bhim Singh -Vrs.- Union of India
reported in (2015) 13 Supreme Court Cases 605, it is held
by the Supreme Court as follows:-
"5. Having given our thoughtful consideration to the
legislative policy engrafted in section 436-A and large
number of undertrial prisoners housed in the prisons,
we are of the considered view that some order
deserves to be passed by us so that the undertrial
prisoners do not continue to be detained in prison
beyond the maximum period provided under section
436-A.
6. We, accordingly, direct that jurisdictional
Magistrate/Chief Judicial Magistrate/Sessions Judge
shall hold one sitting in a week in each jail/prison for
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two months commencing from 1-10-2014 for the
purposes of effective implementation of section 436-
A of the Code of Criminal Procedure. In its sittings in
jail, the above judicial officers shall identify the
undertrial prisoners who have completed half period
of the maximum period or maximum period of
imprisonment provided for the said offence under the
law and after complying with the procedure
prescribed under section 436-A pass an appropriate
order in jail itself for release of such undertrial
prisoners who fulfill the requirement of section 436-A
for their release immediately. Such jurisdictional
Magistrate/Chief Judicial Magistrate/Sessions Judge
shall submit the report of each of such sittings to the
Registrar General of the High Court and at the end of
two months, the Registrar General of each High
Court shall submit the report to the Secretary
General of this Court without any delay. To facilitate
compliance with the above order, we direct the Jail
Superintendent of each jail/prison to provide all
necessary facilities for holding the Court sitting by
the above judicial officers. A copy of this order shall
be sent to the Registrar General of each High Court,
who in turn will communicate the copy of the order to
all Sessions Judges within his State for necessary
compliance."
In the case of Inhuman Conditions in 1382
Prisons, In re reported in (2016) 3 Supreme Court Cases
700, the Supreme Court held as follows:-
15
"16. With regard to the third issue regarding effective
implementation of section 436-A of the Code of
Criminal Procedure, (for short "Cr.P.C."), the affidavit
stated that an advisory had been issued by the
Ministry of Home Affairs of the Government of India
on 17-1-2013 to all the States and Union Territories
to implement the provisions of section 436-A Cr.P.C.
to reduce overcrowding in prisons. Among the
measures suggested in this regard by the Ministry of
Home Affairs, was the constitution of a Review
Committee in every district with the District Judge in
the Chair with the District Magistrate and the
Superintendent of Police as members to meet every
three months and review the cases of undertrial
prisoners. The Jail Superintendents were also
required to conduct a survey of all cases where
undertrial prisoners have completed more than one-
fourth of the maximum sentence and send a report in
this regard to the District Legal Services Committee
constituted under the Legal Services Authorities Act,
1987 as well as to the Review Committee. It was also
suggested that the prison authorities should educate
under trials of their right to bail and the District Legal
Services Committee should provide legal aid through
empanelled lawyers to the undertrial prisoners for
their release on bail or for the reduction of the bail
amount. The Home Department of the States was
also requested to develop a management information
system to ascertain the jail-wise progress in this
regard."
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In the case of Hussain (supra), the Hon'ble Supreme
Court held as follows:-
"29. To sum up:
29.1. The High Courts may issue directions to
subordinate courts that-
29.1.1. Bail applications be disposed of normally
within one week;
29.1.2. Magisterial trials, where accused are in
custody, be normally concluded within six months
and sessions trials where accused are in custody be
normally concluded within two years;
29.1.3. Efforts be made to dispose of all cases which
are five years old by the end of the year;
29.1.4. As a supplement to section 436-A, but
consistent with the spirit thereof, if an undertrial has
completed period of custody in excess of the
sentence likely to be awarded if conviction is
recorded such undertrial must be released on
personal bond. Such an assessment must be made
by the trial Courts concerned from time to time;
29.1.5. The above timelines may be the touchstone
for assessment of judicial performance in annual
confidential reports."
6. Coming to the case in hand, the offences under
which charge sheet has been submitted and cognizance has been
taken are under sections 120-B, 420, 354, 506 read with section
34 of the Indian Penal Code. The offences are triable by
17
Magistrate and out of those offences, section 420 of the Indian
Penal Code prescribes the maximum punishment which is for a
term which may extend to seven years and with fine. The
petitioner is in judicial custody in connection with this case since
16.10.2015 and therefore, he has already undergone one-half of
the maximum period of imprisonment specified for the offence.
The learned counsel for the petitioner filed the certified copy of
the entire order sheet of the learned S.D.J.M., Kendrapara which
shows that neither before the expiry of one-half period nor on
the date of expiry of such period and even till the date of hearing
of the bail application before the Court below, any petition has
been filed by the Public Prosecutor praying for the continued
detention beyond the one-half of the maximum period of
imprisonment. No order has also been passed by the Magistrate
for such continued detention.
The learned Sessions Judge, Kendrapara while
rejecting the bail application has taken into account the fact that
the further proceeding of the case has been stayed by this Court
in CRLREV No.228 of 2016 filed by co-accused Sarat Chandra
Patra. In view of the explanation to section 436-A of Cr.P.C.,
such stay period cannot be excluded while computing the period
of detention as it was not at the instance of the petitioner. It
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cannot also be said that the delay in proceeding has been caused
by the petitioner. The learned Sessions Judge has further taken
into account the pendency of the other cases against the
petitioner as well as possibility of threat to the life of the victim
and her mother and also chance of terrorizing the prosecution
witnesses in the event of release on bail. It is stated at the Bar
that except the present case, in all other cases the petitioner is
on bail. Since there is no order for continuing the detention of
the petitioner for a period longer than one-half of the maximum
period of imprisonment specified for the offences, it was not
proper on the part of the Court to reject the application for bail
on the ground mentioned in the order. The Court could have
imposed suitable terms and conditions to see that the liberty is
not misutilised by the petitioner.
7. In view of the foregoing discussions, I am inclined to
release the petitioner on bail. Let the petitioner be released on
bail in the aforesaid case on furnishing bail bond of
Rs.2,00,000.00 (rupees two lakhs) 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. The petitioner shall not
try to keep any contact with the victim or any of the prosecution
19
witnesses, shall not try to tamper with the prosecution evidence
in any manner. He 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.
Accordingly, the BLAPL is allowed.
.................................
S. K. Sahoo, J.
Orissa High Court, Cuttack The 22nd July 2019/Pravakar