The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMC No: 4629 of 2023 (Arising out of order dated T.R. Case No. 95 of 2022 under Section 20(b)(ii)(C) & 29 of the NDPS Act, pending in the court of learned Additional Sessions Judge-cum-Special Judge, Koraput.) ---------- Dande Kaleppa and Others. …. Petitioner Mr. R. L. Pattnaik, Advocate State of Odisha -versus- …. Opp. Party Mr. D. Biswal, ASC P R E S E N T: HONOURALE SHRI JUSTICE CHITTARANJAN DASH Date of Judgment : 06.02.2024 Chittaranjan Dash, J.
Legal Reasoning
with other connected documents and found that a prima facie case u/s 20(b)(ii)(c) of NDPS Act is well made out against the petitioner- accused and thereby took cognizance on 13.03.2023. The petitioners CRLMC No.4629 of 2023 Page 2 of 8 // 3 // had filed an application under Section 167(2) of Criminal Procedure Code on 17.03.2023 to be enlarged on bail but the same was rejected. 5. Before adverting to the merit of the application, it is worth to see the relevant provision enumerated under Section 167(2) Cr.P.C., which reads as follows :- “(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction: Provided that- (a) the Magistrate may authorize the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days; if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorize the detention of the accused person in custody under this paragraph for a total period exceeding,- (i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years; (ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub- section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;] (b) no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him; CRLMC No.4629 of 2023 Page 3 of 8 // 4 // (c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorize detention in the custody of the police. Explanation I.- For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail;]. 2 Explanation II.- If any question arises whether an accused person was produced before the Magistrate as required under paragraph (b), the production of the accused person may be proved by his signature on the order authorising detention or by the order certified by the Magistrate as to production of the accused person through the medium of electronic video linkage, as the case may be.] [Provided further that in case of a woman under eighteen years of age, the detention shall be authorized to be in the custody of a remand home or recognized social institution.]” 6. Through the recent judgment in Enforcement Directorate, Government of India Vs. Kapil Wadhawan & Anr. Etc Criminal Appeal Nos. 701-702 of 2020; March 2023, the Apex Court has discussed the rights of such accused, whose right to default bail, hangs in the balance by difference of a single day or even less. There is a divergence of opinion on how the stipulated period, for the right of default bail, accruing to the accused, is to be computed. The Apex Court therefore held – “Since there exists vacuum in the application and details of Section 167 Code of Criminal Procedure, 1973, we have opted for an interpretation which advances the cause of personal liberty………We therefore declare that the stipulated 60/90 days remand period under Section 167 Code of Criminal Procedure, 1973 ought to be computed from the date when a Magistrate authorizes remand. If the first day of remand is excluded, the remand period, as we notice will extend beyond the permitted 60 /90 days’ period resulting in unauthorized detention beyond the period envisaged under Section 167 CRLMC No.4629 of 2023 Page 4 of 8 // 5 // Code of Criminal Procedure, 1973. In cases where the chargesheet/final report is filed on or after the 61st/91st day, the accused in our considered opinion would be entitled to default bail. In other words, the very moment the stipulated 60/90 days remand period expires, an indefeasible right to default bail accrues to the accused.” 7. In Uday Mohanlal Acharya vrs. State of Maharashtra, reported in 2001(II) OLR (SC)-290, the Apex Court having referred to the cases in the matter of M. Ravindran vrs. The Intelligence Officer, Directorate of Revenue Intelligence, reported in (2021) 81 OCR (SC)-548 and several other decisions passed by the Apex Court itself earlier in the matter of Sanjay Dutt vrs. State, 1994 SCC (5) 410 and Hitendra Vishnu Thakur and Others vrs. State of Maharashtra and Others, AIR 1994 SC 2623, held as hereunder – “The right accruing under proviso to Sec.167(2) of the Code cannot be said to have been availed of by mere making of an application for bail expressing therein willingness to furnish bail, but on furnishing bail bond as required under clause(1)(ii) of proviso read with Explanation-I to Sec.167(2) of the Code.” In interpreting the language in explanation-I to the proviso to Section 167(2) Cr.P.C., the Apex Court further held as follows: “It is in this sense it can be stated that if after expiry of the period, an application for being released on bail is filed, and the accused offers to furnish the bail and thereby avail of his indefeasible right and then an order of bail is passed on certain terms and conditions but the accused fails to furnish the bail, and at that point of time a CRLMC No.4629 of 2023 Page 5 of 8 // 6 // challan is filed, then possibly it can be said that the right of the accused stood extinguished. xx xx xx” 8. Having regard to the facts in the present case and as far as the decisions in the matter of M. Ravindran vrs. The Intelligence Officer, Directorate of Revenue Intelligence, reported in (2021) 81 OCR (SC)- 548 and Sanjay Dutt vrs. State, 1994 SCC (5) 410 and Hitendra Vishnu Thakur and Others vrs. State of Maharashtra and Others, AIR 1994 SC 2623, the Apex Court has held the indefeasible right exercised U/s 167(2) shall be extinguished if the bail bond is not furnished soon after the order granting bail is not filed as under intervened by the furnishing final form– “13. It is true that Explanation I to Section 167(2), Code of Criminal Procedure, 1973 provides that the accused shall be detained in custody so long as he does not furnish bail. However, as mentioned supra, the majority opinion in Uday Mohanlal Acharya expressly clarified that Explanation I to Section 167(2) applies only to those situations where the accused has availed of his right to default bail and undertaken to furnish bail as directed by the Court, but has subsequently failed to comply with the terms and conditions of the bail order within the time prescribed by the Court. We find ourselves in agreement with the view of the majority. In such a scenario, if the prosecution subsequently files a charge-sheet, it can be said that the accused has forfeited his right to bail under Section 167(2), Code of Criminal Procedure, 1973. Explanation I is only a safeguard to ensure that the accused is not immediately released from custody without complying with the bail order.” 9. In the matter of M. Ravindran (Supra), it can very well be said that the Petitioner though moved for the default bail was neither CRLMC No.4629 of 2023 Page 6 of 8 // 7 // ready nor willing to furnish the bail bond as mandated in the relevant provision except at his convenience. 10. In the instant case, the accused was forwarded to the court on 11.09.2022 and the stipulated period of filing the charge sheet i.e. 180 days was completed on 09.03.2023, and accordingly, the learned court below was inclined to release the accused persons on default bail with conditions to furnish bail bond for Rs. 1,00,000/- each, along with two solvent sureties each. The chargesheet, however, was filed on the same (181st day) day i.e. 10.03.2023 and not 184 days as submitted by learned counsel for the petitioners. After the chargesheet was filed, on perusal of F.I.R., Seizure Lists, Statement of accused persons recorded u/s 67 of NDPS Act, statement of witnesses recorded u/s 161 Code of Criminal Procedure, 1973 and other connected papers available on record, the court below took cognizance of the case on 13.03.2023 as a prima facie case is well made out against the accused persons. The petitioners, however, did not furnish the bail bond on 11.03.2023, i.e. immediately on the next day of court’s order but only on 17.03.2023 i.e. 4 days after the cognizance was taken by the court which tell-tale vouches safe that there was complete absence of readiness and willingness on the part of the Petitioners to furnish the bail bond. 11. This Court, in the matter of Indu Tiwari Vs. State of Odisha, CRLMC No. 4712 of 2023, had taken a similar view that the Petitioners forfeited their indefeasible right on their own accord having failed to exercise the same within a period reasonably expected to avail. Consequently, this Court finds no illegality to have been committed by the learned court below in declining to accept the CRLMC No.4629 of 2023 Page 7 of 8 // 8 // bail bond furnished by the accused-petitioners and therefore, the impugned order suffers from no infirmity and hence, requires no interference. The CRLMC stands dismissed being devoid of merit. Judge (Chittaranjan Dash) AKPradhan Signature Not Verified Digitally Signed Signed by: ANANTA KUMAR PRADHAN Designation: Sr. Steno Reason: Authentication Location: HIGH COURT OF ORISSA Date: 08-Feb-2024 18:41:03 CRLMC No.4629 of 2023 Page 8 of 8
Arguments
1. Heard learned counsel for the Petitioner and the State. 2. By means of this application, the Petitioners seek the indulgence of this Court praying for quashing the impugned order dated 17.03.2023 directing under section 167(2) Criminal Procedure Code for default bail to the Petitioners in connection with Machhakund P.S. Case No. 99 of 2022 dated 10.09.2022 arising out of T.R. Case No. 95 of 2022 under Section 20(b)(ii)(C) & 29 of the NDPS Act, pending in the court of learned Additional Sessions Judge-cum-Special Judge, Koraput. CRLMC No.4629 of 2023 Page 1 of 8 // 2 // 3. The background facts of the case are such that on 10.09.2022, the police received information regarding transportation of ganja in two Bolero Vehicles bearing Regd. No. AP-29BL-0069 and AP-13P-2835 from Muchimput to Hyderabad side. The S.I. of Police and staff proceeded to the iron bridge situated near Jalaput. At about 4.15 A.M., the police team stopped those vehicles and detained the Petitioners. S.I. of police also verified the vehicle and recovered 200 kgs. and 400 grams of contraband ganja from the possessions of the petitioners. After the FIR was lodged, the IIC, Machhkund registered the case and directed Damburdur Batria (Sub Inspector) to take up the case for investigation. In course of the investigation, the Investigating Officer arrested the Petitioners on the same and forwarded to court on 10.09.2022. 4. The learned Additional Sessions Judge-Cum-Special judge, Koraput, in his order dated 10.03.2023 clearly mentioned that the accused- petitioners were forwarded on dated 11.09.2022 and the stipulated period of filling of charge sheet i.e 180 days was completed on 09.03.2023 but the failure of investigation officer who is the S.I. of police to submit the charge-sheet within the stipulated time and on its own motion took this matter for consideration on indefeasible right of the accused-petitioners to avail bail as per the provision of section 167(2) of Code of Criminal Procedure, 1973. On the same day i.e. 10.03.2023 at about 9:00 PM, the case record was put up on receipt of the letter from the S.I. of Machhkund P.S. along with final form and other police papers. The court perused through the chargesheet along