The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.85 of 2024 Purna Chandra Harijan …. Petitioner Mr. Anirudha Das, Advocate -Versus- State of Odisha …. Opposite Party Mr. B.P. Tripathy, AGA CORAM: JUSTICE R.K. PATTANAIK DATE OF JUDGMENT:15.07.2024 1. Instant revision petition is filed by the petitioner challenging the impugned order dated 25th January, 2024 passed in G.R. Case No.1247 of 2023 by learned S.D.J.M., Nabarangpur, who declined to release him on bail in terms of Section 167(2) Cr.P.C. on the grounds inter alia that the decision is erroneous and not in consonance with settled position of law, hence, therefore, the same is liable to be interfered with and set aside. 2. By order dated 22nd January, 2024, cognizance under Section 302 IPC and other allied offences was taken on receipt of chargesheet after closure of investigation. On 25th January, 2024, the petitioner requested learned court below with an application filed under Section 167(2)(a)(i) Cr.P.C. to release him on bail to which objection was raised by the prosecution later to which the impugned order under Annexure-1 was passed. The plea of the petitioner was that since the chargesheet was not filed within 120 CRLREV No.85 of 2024 Page 1 of 9 days from the date of his arrest but on 121st day, an indefeasible right has accrued as a result and he was to be offered bail in view of the statutory mandate prescribed under Section 167(2) Cr.P.C. However, the learned court below taking into account the chargesheet and other connected materials declined to release the petitioner dismissing the plea that he is so entitled on account of non-submission of chargesheet within the stipulated period.
Legal Reasoning
3. Heard Mr. Das, learned counsel for the petitioner and Mr. Tripathy, learned AGA for the State. 4. Mr. Das, learned counsel for the petitioner cited the following decisions, such as, S. Kasi Vrs. State (2020) 79 OCR (SC) 1; Bikramjit Singh Vrs. State of Punjab (2020) 10 SCC 616; M. Ravindran Vrs. The Intelligence Officer, Directorate of Revenue Intelligence (2021) 81 OCR (SC) 548; and Satender Kumar Antil Vrs. Central Bureau of Investigation and Another (2022) 88 OCR (SC) 120 besides Biswambara Kanhar and others Vrs. State of Odisha (2022) 87 OCR 28 to contend that the petitioner is eligible and entitled to be released under Section 167(2) Cr.P.C. It is contended that the learned court below was to inform the petitioner of the availability of the indefeasible right under Section 167(2) Cr.P.C. once it accrued to him without any delay referring to the decision of the Apex Court in M. Ravindran (supra). Since the chargesheet was filed on 121st day from the date of arrest of the petitioner and hence, not within the stipulated period prescribed, Mr. Das, learned counsel for the petitioner submits that the petitioner was to be informed of the right to go on bail and released forthwith. According to Mr. Das, learned counsel, even after submission of chargesheet, since the learned court below did not do its duty cast upon in view of the decision in M. CRLREV No.85 of 2024 Page 2 of 9 Ravindran case, the right to go on bail under Section 167(2) Cr.P.C. is not extinguished. So therefore, the contention is that the petitioner ought to have been released on default bail in terms of Section 167(2) Cr.P.C and since it is not being done so, the impugned decision of learned court below under Annexure-1 by order dated 21st January, 2024 deserves to be quashed with a direction for release of the petitioner with conditions. 5. On the other hand, Mr. Tripathy, learned AGA for the State would submit that the learned court below did not err by not releasing the petitioner on bail under Section 167(2) Cr.P.C. It is contended by Mr. Tripathy, learned AGA that the petitioner did not avail the remedy on completion of 120 days and once the chargesheet is filed, such right to go on default bail stood extinguished. In other words, as per Mr. Tripathy, learned AGA, one is eligible to go on bail under Section 167(2) Cr.P.C only if he exercised right under Section 167(2) Cr.P.C. when the chargesheet is not filed within stipulated period of 120 days. It is, hence, submitted that the learned court below rightly rejected the application of the petitioner filed, when the chargesheet was filed on 22nd January, 2024 and as by then, no such application was filed or pending consideration, therefore, such decision calls for no interference. 6. The undisputed facts are as to the following. The learned court below received the chargesheet on 121st day from the date of arrest of the petitioner. In fact, a preliminary chargesheet dated 20th January, 2024 was filed on which learned court below took cognizance of the offences by order dated 22nd January, 2024. It was on 121st day, the chargesheet was filed, whereafter, later to the taking of cognizance of the offences on 22nd January, 2024, CRLREV No.85 of 2024 Page 3 of 9 the petitioner moved the learned court below for statutory bail under Section 167(2) Cr.P.C. on 25th January, 2024, and then, the impugned order under Annexure-1 was passed. There is no quarrel over the settled position of law that if within the stipulated period of 60 days or 120 days, as the case may be, the chargesheet is not filed and thereafter, the accused moves the court for default bail under Section 167(2) Cr.P.C., the Court does not have any discretion to exercise but to release him on bail forthwith. An indefeasible right accrues in favour of the accused on account of non-submission of chargesheet within the period prescribed, which cannot be defeated such being the statutory mandate. Even when the application for default bail under Section 167(2) Cr.P.C. is filed and pending and at that time, the chargesheet is filed after the statutory period is over, the right to go on bail cannot be taken away or frustrated. In the instant case, the question is, whether denial to release the petitioner on bail under Section 167(2) Cr.P.C by the impugned order under Annexure-1 can be said to be justified? 7. In S. Kasi (supra), the Apex Court discussed the right of an accused with reference to Article 21 of the Constitution of India, 1950 in relation to one’s right of personal liberty as guaranteed thereunder against a situation due to lock down announced by the Govt. of India in 2020 when the Madurai Bench of Madras High Court declined to release an accused despite non-submission of chargesheet within the stipulated period. Under such peculiar circumstances, the Apex Court in the aforesaid decision held that the right to go on bail is defeated with a conclusion that the period of limitation to file the chargesheet is not extended in view of the order dated 23rd March, 2020 passed in Suo moto W.P.(C) CRLREV No.85 of 2024 Page 4 of 9 No.3 of 2020. So therefore, the ratio of the decision (supra) is that the order on limitation of the Apex Court does not intend to defeat the statutory right to go on bail under Section 167(2) Cr.P.C. The said decision does not support the contention of Mr. Das in any way as it has rather reiterated and affirmed the settled legal position that the indefeasible right under Section 167(2) Cr.P.C. is not eclipsed by any such order in Suo moto in W.P.(C) No.3 of 2020. 8. In Bikramjit Singh (supra), the Apex Court held that subsequent application for default bail under Section 167(2) Cr.P.C. after wrong dismissal of 1st one when the initial move had been after expiry of the maximum prescribed period but before filing of the chargesheet, such right of the accused had become indefeasible and concluded that the application filed later has no effect on nor defeats the right to statutory bail. Since an application was filed for release on bail under Section 167(2) Cr.P.C. before the chargesheet was filed, the accused who was prosecuted under UAPA, 1967 and regardless of the fact that NIA was conducting the investigation, the Apex Court held that the initial application having been filed, such right to default bail is not extinguished. Again, it is to be held that the aforesaid decision does not render, Mr. Das, learned counsel for the petitioner, any assistance. 9. In M. Ravindran (supra), the Apex Court had an occasion to consider the right of default bail and in that connection, it was observed that the right of the accused cannot be defeated merely because prosecution files chargesheet prior to furnishing of bail bond and once any such application under Section 167(2) Cr.P.C, is filed, he is deemed to have availed of or enforced his right to CRLREV No.85 of 2024 Page 5 of 9 be released on bail having accrued after expiry of the stipulated time limit prescribed for investigation. Of course, it has also held therein that the accused must be informed by his counsel and Magistrate about availability of the right to go on bail, which is indefeasible. But it has been reinforced by the Apex Court in the said decision that the accused is to avail of the opportunity to claim release on default bail under Section 167(2) Cr.P.C, a provision which is integrally linked to the commitment under Article 21 of the Constitution of India, 1950. So far as the case of the petitioner is concerned, it is an admitted fact that he did not or had not filed any application under Section 167(2) Cr.P.C. on expiry of 120 days and just a day after on 121st day, the chargesheet was filed. So, the aforesaid decision does not help Mr. Das, learned counsel for the petitioner either as the petitioner did not avail of or enforce his right to be released on default bail. The purpose of the accused to be informed about existence of such infeasible right as observed in the decision (supra) is to let him know about it so that he can promptly avail of the statutory remedy, which is likely to die down or extinguish on submission of chargesheet. The intended purpose is to ensure that the indefeasible right to go on default bail is not wasted or defeated by any means. It was a view expressed for the reason that in umpteen number of cases, the accused persons are illiterate and belong to the lowest economic strata of the society and are not aware of such right to go on default bail and also to uphold the Article 21 of the Constitution of India, 1950. In the case at hand, such is not the situation, where on 121st day itself, the chargesheet was filed and it is not known, whether, there was any scope or opportunity at least for the court to inform the petitioner about such right to go on bail. Nevertheless, intimation to the accused is CRLREV No.85 of 2024 Page 6 of 9 a necessity but it must be followed by an application filed under Section 167(2) Cr.P.C. for bail and the same would stand defeated the moment, the chargesheet is filed and as in the present case, immediately on expiry of 120 days, on the very next day, chargesheet was filed, upon which, learned court below took cognizance of the offences vis-à-vis the petitioner. It is admittedly not a case of the petitioner that the investigation was inchoate or in a way hurriedly submitted to defeat his right to be released on default bail. 10. In Biswambara Kanhar (supra), it has been found by this Court that application under Section 167(2) Cr.P.C. was filed, the date on which, the accused persons were produced in court and the chargesheet was filed after filing of the default bail application proved on record but was rejected and in the facts and circumstances of the case, it was also observed that the accused persons were not informed about any such right on the date when the chargesheet should have been filed or on the date, when the chargesheet was filed about their indefeasible right. In fact, there was an application for default bail in the aforesaid case, whereafter, the chargesheet was filed and this Court, even by considering the fact that for nearly three days after expiry of the statutory period, the accused persons were not informed about their right under Section 167(2) Cr.P.C., in such a situation, directed them to go on bail furnishing bail bonds, so to say. Since the petitioner, in the instant case, had not filed any application under Section 167(2) Cr.P.C and shortly thereafter, on 121st day, the chargesheet was received i.e. on 22nd January, 2024. It was the duty of the engaged counsel before the learned court below to inform the petitioner about the right to go on default bail on CRLREV No.85 of 2024 Page 7 of 9 21st January, 2024 after expiry of the statutory period of 120 days. The purpose of such intimation to an accused is to enable him to exercise and enforce the right immediately. However, so far as the case of the petitioner is concerned, it is not borne out of record as to if any time after 21st January, 2024 or even on 22nd January, 2024, before the chargesheet was filed, he was informed about such right. As it appears, before the right to default bail to the avail of or enforce the right by the petitioner, the chargesheet was filed on 22nd January, 2024 and immediately, learned court below took cognizance of the offences against him. Hence, under such circumstances, it has to be held that in absence of any application filed by the petitioner, right to go on default/statutory bail under Section 167(2) Cr.P.C. stood extinguished. 11. In fact, in M. Ravindra (supra), the Apex Court held that the decision in Sanjay Dutt Vrs. State through CBI (1994) 5 SCC 410 merely casts a positive corresponding obligation upon the accused to promptly apply for default bail as soon as the prescribe period of investigation expires. It is further observed therein that as the decision in Hitendra Vishnu Thakur Vrs. State of Maharashtra (1994) 4 SCC 602 expressly cautions, the court cannot suo moto grant bail without considering whether the accused is ready to furnish the same or otherwise and this is an inbuilt safeguard within Section 167(2) Cr.P.C. to ensure that the accused is not automatically released from custody without obtaining the satisfaction about his guarantee to be present during investigation or trial, as the case may be. It is also concluded therein that the decision in Sanjay Dutt (supra) clarifies that once a chargesheet is filed, such waiver of the right by the accused becomes final and Section 167(2) Cr.P.C. ceases to apply. While considering the CRLREV No.85 of 2024 Page 8 of 9 argument of the State, in the said decision it is held that the expression ‘availed of’ cannot mean actual release after furnishing the necessary bail bond as it would cause grave injustice to the accused and would defeat the very purpose of the proviso thereto. 12. On the other side, Mr. Tripathy, learned AGA relies on a decision of the Apex Court in the case of CBI Vrs. Kapil Wadhawan and Another (2024) 3 SCC 734 to convince the point and to justify the impugned order under Annexure-1. The said decision reiterates the legal position discussed herein above. As the undisputed fact is that application Section 167(2) Cr.P.C. was not filed or pending by the time the preliminary chargesheet was filed on 22nd January, 2024 and as no case is made out about any such gross negligence on the part of the learned court below in informing the petitioner about the right to go on default bail when the very purpose is just to intimate and apprise the accused to exercise such right promptly without delay, the Court does not find any justifiable reason to hold that the impugned order under Annexure-1 dated 25th January, 2024 suffers from any legal infirmity leaving the only option for him to approach the learned court below for regular bail. 13. Hence, it is ordered.
Decision
14. In the result, the revision petition stands dismissed. 15. (R.K. Pattanaik) Judge Signature Not Verified Digitally Signed Signed by: THAKURDAS TUDU Reason: Authentication Location: OHC,CTC Date: 16-Jul-2024 20:32:08 TUDU CRLREV No.85 of 2024 Page 9 of 9