The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLMC No. 236 of 2024 (In the matter of an application under Section 482 read with Section 397 of the Criminal Procedure Code, 1973) Harekrishna @ Babu Behera and another ……. Petitioners -Versus- State of Odisha ……. Opposite Party For the Petitioners
Legal Reasoning
: Mr. Chittaranjan Swain, Advocate For the Opposite Party : Mr. P. K. Maharaj, Additional Standing Counsel CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA _________________________________________________________ Date of Hearing: 09.04.2024 : Date of Judgment : 15.04.2024 _________________________________________________________ S.S. Mishra, J. 1. Petitioners are facing trial in C.T. Case No.33 of 2023 arising out of K. Nuagaon P.S. Case No.47 of 2023 U/S. 20(b)(ii)C/25 of NDPS Act which is pending in the court of the learned Additional District and Sessions Judge-cum-Special Judge, Baliguda, Kandhamal. Petitioners have filed the present petition under Section 482 Cr.P.C. seeking quashing of the order dated 13.12.2023 whereby their application under Section 167(2) Cr.P.C. has been rejected. 2. Heard Mr. Chittaranjan Swain, learned counsel for the petitioners and Mr. P. K. Maharaj, learned counsel for the State. 3. Mr. Swain, learned counsel for the petitioners contended that the police had filed an incomplete charge-sheet on 31.08.2023 against the petitioners under Sections 20(b)(ii)C/25 of N.D.P.S. Act. Since the Chemical Examination Report has not been filed by the police in the said charge-sheet, the charge-sheet was incomplete as per Section 173(2) of Cr.P.C. In that view of the matter, the petitioners were entitled to statutory bail under Section 167(2) Cr.P.C. However, the applications have been rejected mechanically. 4. The core issue as to whether a charge-sheet without the Chemical Examination Report could be treated as a complete charge-sheet under Section 173(2) Cr.P.C. is pending before the Hon’ble Supreme Court in Page 2 of 6 the matter of Mohd. Arbaz & others vrs. State of NCT of Delhi in SLP (Crl) Nos.8164-8166/2021 and batch matters. All the pending matters have already been referred to the Larger Bench. Since the issue is subjudice before the Hon’ble Supreme Court, this Court is not inclined to pass any order either way at this stage. Rather, it would be proper to await the judgment of the Hon’ble Supreme Court. 5. Mr. Maharaj, learned counsel appearing for the State submits that meanwhile the Chemical Examination Report has already been placed on record. Therefore, the contention of the petitioners may not be correct that the charge-sheet is incomplete. 6. Mr. Swain relying upon various orders of the Hon’ble Supreme Court submits that during the pendency of the main issue before the Hon’ble Supreme Court, the petitioners are entitled for interim bail. In that regard, relevant would be to rely upon two judgments of the Coordinate Bench of this Court. The first judgment being dated 12.10.2022 passed in CRLMC No.2033 of 2022 in the case of Sk. Eimat @ Bidhia vs. State of Odisha, reported in 2022 (III) ILR- Page 3 of 6 CUT-915. The Coordinate Bench while dealing with the similar situation has passed the following order: “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 charge sheets were sufficient for the court below to form an opinion that the contraband substance to be Brown sugar? Anyways, in the given situation, the 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, in the event the Chemical 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 to ensure cancellation of bail but in accordance with law.” 7. Secondly, in another judgment dated 08.09.2023 in BLAPL No.2617 of 2023, the Coordinate Bench of this Court while dealing with the similar situation and relying on Sk. Eimat (supra) has passed the following order: 16. It would be apposite to state that the judgment of this Court relied upon by the learned counsel for the Petitioner in the case of S.K. Eimat @ Bidhia (supra) wherein this Court dealt with the self- same question which arises in the case at hand that “the Page 4 of 6 preliminary charge sheet though filed but is incomplete, since it is not accompanied with a Chemical Examination Report and hence, he entitled to default bail. However, the learned Special Judge, Balasore rejected the plea of the petitioner by the impugned order dated 15th July, 2021.” 17. As stated, cognizance of the offence under the N.D.P.S Act was taken in terms of the preliminary charge sheet and in the meanwhile as noted chemical examination report has already been filed and keeping in view the dictum of the apex Court in the case R.S. Pai (supra) wherein on an analysis of the provision of Section 173 Cr.P.C dealing with the report of Police Officer on completion of investigation it has been held that the word ‘shall’ appearing in Section 173(5) Cr.P.C. cannot be interpreted “as mandatory but as directory”. To appreciate the judgment of the apex Court it would be convenient to extract the provision of Section 173(5) and (8) Cr.P.C. “173. Report of police officer on completion of investigation xxx xxx xxx (5) When such report is in respect of a case to which section 170 applies, the police officer shall forward to the Magistrate along with the report- (a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation; (b) the statements recorded under section 161 of all the persons whom the prosecution proposes to examine as its witnesses. xxx xxx xxx (8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under subsection (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub- sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2).” (Emphasized) Page 5 of 6 8. Having regard to the aforementioned facts and judgments/orders of this court and taking into consideration the huge quantity of contraband seized from the petitioners, this Court is not inclined to interfere in the matter at this stage. However, liberty is granted to the petitioners to approach the court below by moving appropriate application seeking bail by relying upon the judgments as cited above. If any such application is moved by the petitioners, the same shall be considered by the trial court on its merit as expeditiously as possible. In so far as the main issue of the completeness of the charge-sheet in the absence of Chemical Examination Report at the time of filing of the charge sheet is concerned, the trial court shall await the outcome of the pending cases in the Hon’ble Supreme Court of India before pronouncing the final order.
Decision
9. With the aforesaid liberty, the CRLMC is disposed of. Signature Not Verified Digitally Signed Signed by: ASISH KUMAR KAR Designation: ADR-cum-Addl. Principal Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 15-Apr-2024 20:05:11 The High Court of Orissa, Cuttack Dated the 15th Day of April, 2024/ A.K. Kar, ADR-cum-Addl. Principal Secretary ……………… S.S. Mishra (Judge) Page 6 of 6