Muna & another v. State of Odisha. After analyzing the entire issue, this Court inter alia obse
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMC No.118 OF 2024 Manoj Kumar …. Petitioner(s) Mr. Tirth Kumar Sahu, Advocate -versus- State of Odisha …. Opposite Party(s)
Legal Reasoning
Mr. P. K. Maharaj, ASC CORAM: JUSTICE SIBO SANKAR MISHRA Order No. 05. 1. 2.
Decision
ORDER 23.04.2024 Heard. The Petitioner in the present petition has assailed the order dated 04.01.2024 passed by the learned Sessions Judge-cum- Special Judge, Cuttack in 2(a)CC No.58 of 2023, whereby his bail application has been turned down. 3. The Petitioner in his aforementioned application inter alia had contended that although the police have filed the charge-sheet on 11.08.2023 but the Chemical Examination Report was not placed on record. Even after expiry of 180 days, on 15.09.2023, the police failed to place on record the Chemical Examination Report. Since, the charge-sheet filed against the Petitioner was incomplete, Page 1 of 5 therefore, the Petitioner was entitled to the statutory bail under Section 167(2) Cr.P.C. 4. Mr. Sahu, learned counsel for the Petitioner submits that the issue in lis as to whether the charge-sheet submitted by the police can be treated as complete charge-sheet sans Chemical Examination Report under Section 173 Cr.P.C. is sub-judice before the Hon’ble Supreme Court. The Hon’ble Supreme Court in all the similar matters had given interim bail to the accused persons pending determination of the larger issue. He relies upon the order dated 07.07.2023 of the coordinate Bench of this Court passed in CRLMC No.1455 of 2023 and submits that his client is entitled for interim relief till the larger issue is decided by the Hon’ble Supreme Court. He has emphasized the concluding paragraph of the order of the coordinate Bench of this Court, which reads as under:- <For the forgoing reasons therefore, while keeping the CRLMC pending till disposal of the case before the Supreme Court, the petitioner is granted liberty to move the Court below seeking interim bail. If such application is filed the same shall be considered by the Court below keeping in view the long period of detention of the petitioner in custody as also the orders passed by the Supreme Court.= 5. Recently, this Court has dealt with the same issue while deciding CRLMC No.4818 of 2023 on 08.04.2024 in the case of Page 2 of 5 Ajaya Mohapatra @ Muna & another vs. State of Odisha. After analyzing the entire issue, this Court inter alia observed as under:- <12. By analyzing the entire conspectus, this Court is of the view that in so far as the issue regarding the completeness of a charge sheet without the chemical examination report is concerned, the issue is subjudice before the Hon’ble Supreme Court in Mohd. Arbaz and others vs. State of NCT of Delhi (supra). Therefore, it would not be appropriate to take any view in this regard at this stage except to await the outcome of the pending matters before the Hon’ble Supreme Court. 13. Taking the clue from the judgment of the coordinate Bench passed in Sk. Eimat @ Bidhia (supra), I am of the view that on the basis of the materials available on record as of today, the petitioners should move appropriate application before the learned Court below seeking regular bail under Section-439 Cr.P.C and if such application is moved, the same shall be decided on its own merit. 14. In so far as quashment of the entire criminal proceeding is concerned, I am of the considered view that the trial shall proceed at its own pace, however, no final order should be passed by the learned Court below until the Hon’ble Supreme Court decides the issue as referred in Mohd. Arbaz (supra). It is also relevant to note that in the present case, recording of the prosecution evidence has already been initiated. Therefore, at this stage, no interference is called for.= 6. Since the Petitioner in the present petition is only seeking bail/interim bail pending determination of the larger issue by the Hon’ble Supreme Court, his case indeed is covered by the judgment of this Court in the case of Sk. Eimat @ Bidhia vs. State of Odisha Page 3 of 5 reported in 2022 (III) ILR-CUT-915. Paragraph-12 of the said judgment reads as under:- in situation, <12. If the court below did not have the Chemical Examination Reports, a claim which has remained unchallenged, it is not easily comprehended as to how for an offence under N.D.P.S. Act, cognizance was taken. Whether other materials submitted along with the preliminary chargesheets were sufficient for the court below to form an opinion that the contraband substance to be Brown sugar? the the given Anyways, petitioners could have claimed bail on such ground. It is not known, if in the meantime, the Chemical Examination Reports have been received by the court below. In aforesaid backdrop, the Court is of the opinion that the case of the petitioners for regular bail should be examined and it shall be by the learned court below considering the Chemical Examination Reports, if it is available and in case, the same could not be found, to release both of them on bail subject to such conditions unless it is fully convinced that the contraband substance is nothing but Brown sugar. But while taking a decision in that regard, the significance of the Chemical Examination Report and its absence should not be lost sight of which in fact play a dominant role and a deciding factor in reaching at a conclusion as to the nature of the contraband substance. However, the Chemical the event Examination Reports are received later to the release of the petitioners with a positive result that the seized substance is Brown sugar, the learned court below shall have the jurisdiction in to ensure cancellation of bail but accordance with law.= in Page 4 of 5 7. Applying the aforementioned ratio in the case of Sk. Eimat @ Bidhia (supra), the Petitioner is granted liberty to move appropriate application before the trial Court seeking bail/interim bail. If such application is moved, the same shall be decided by the learned trial Court on its own merit. With the aforementioned liberty, the CRLMC is disposed 8. of. (S.S. Mishra) Judge Swarna Signature Not Verified Digitally Signed Signed by: SWARNAPRAVA DASH Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa Date: 29-Apr-2024 12:23:23 Page 5 of 5