The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMC No.4712 of 2023 Indu Tiwari …. Petitioner Mr. Amulya Ratna Panda, Advocate State of Odisha -versus- …. Opposite Party Mr. Bijaya Kumar Ragada, AGA CORAM: JUSTICE CHITTARANJAN DASH Order No. ORDER 10.11.2023 03. 1. By means of this application the Petitioner seeks indulgence of this Court to quash the impugned order dated 05.10.2023 passed by the learned Sessions Judge, Cuttack in 2(a)CC No.69 of 2023. In the impugned order, the learned court below declined to accept the bail bond furnished by the Petitioner pursuant to the grant of bail under Section 167(2), Cr.P.C. on the failure of the Petitioner to comply the terms and conditions of bail by the time the charge sheet was submitted.
Facts
2. The background facts of the case are that, on 03.04.2023 at about 7.30 AM while the Excise Officials were performing patrolling duty, got reliable information about illegal transportation of ganja in a Maruti Suzuki Desire Car bearing Registration No.OD-02-AJ-6012. After following the official formalities, the patrolling party proceeded to the spot and having come across the vehicle, they detained the same and found three persons including the driver got down from the said car. They disclosed their names and identity. On Page 1 of 9 // 2 // search of the vehicle, the excise staff found two Jari (Polythene) packets containing 100 kgs. of ganja in each packet. On being asked, the suspects could not provide any document in support of the possession/transporting of ganja. Accordingly, the excise officials seized the vehicle as well as the contraband articles in presence of the witnesses and upon maintaining all official formalities forwarded the accused persons to the court concerned in the offences under Section 20(b)(ii)C of the N.D.P.S. Act. 3. Since the prosecuting agency failed to submit the Final P.R. within the statutory period of 180 days, the accused-Petitioner moved the learned Court below under Section 167(2), Cr.P.C. read with Section 36-A(1)(4) of the N.D.P.S. Act for her default Bail on 30.09.2023, i.e. on 181 days of her arrest. 4. On the prayer of the Petitioner, the learned court below, i.e. Sessions Judge-cum-Special Judge, Cuttack pleased to allow the default Bail of the Petitioner on the terms and conditions mentioned therein, inter alia, directing to furnish bail bond of Rupees one lakh with two solvent sureties. After passing of the order granting bail on 30th November, 2023, the Petitioner could furnish the bail bond only on 04.10.2023 whereas investigating agency submitted the charge sheet on 03.10.2023. Consequently, the learned court below having heard the parties, declined to accept the bail bond furnished by the Petitioner pursuant to granting of default bail order dated 30.09.2023 on the ground that the prosecuting agency submitted Final P.R. on 03.10.2023, i.e. before submission of the Bail Bond by the Petitioner after the order of granting bail. Page 2 of 9 // 3 //
Legal Reasoning
10. This Court in the matter of Sumanta Sabara & Anr. vs. State of Odisha, (2022) 86 OCR – 667 followed the same and also held as under – “It is true that though no time limit was specified for furnishing of bail bond, but then non-stipulation of time cannot mean that the same can be kept indefinitely open to allow the accused persons to comply with the conditions of the order at their own sweet will or will nullify the effect of the charge-sheet being submitted in the meantime. It is therefore, imperative that if an order for default bail is passed, it is in the interest of the accused to act with promptitude and diligence. In the case at hand, the bail bond was sought to be furnished on 11.10.2021, i.e. four days after the order of default bail was passed and charge-sheet had also been Page 7 of 9 // 8 // submitted. This is, therefore, a case where the Court granted default bail, but the accused failed to abide by the terms and conditions imposed therein and since in the meantime, charge-sheet had been submitted, the so called indefeasible right granted, but not actually exercised, stood extinguished in view of the ratio of the cases referred above.” 11. In the case at hand, admittedly the default bail was granted to the accused under Section 167(2)(a)(i) of the Cr.P.C. read with Section 36-A(1)(4) of the NDPS Act on 30.09.2023, but the bail bond was furnished four days thereafter on 04.10.2023, whereas the prosecuting agency filed the Final Prosecution Report on 03.10.2023 (a day before furnishing of bail bond by the Petitioner). Therefore, the indefeasible right granted to the petitioner could not be exercised actually and that got extinguished in view of the ratio enunciated by the Apex Court referred to above. 12. Adhering to the ratio enunciated in the matter of M. Ravindran (Supra), it can very well be said that the Petitioner though moved for the default bail was neither ready nor willing to furnish the bail bond as mandated in the relevant provision except at his convenience. The ground set forth in the application that 01.10.2023 and 02.10.2023 were holidays and therefore the Petitioner furnished the bail bond on 04.10.2023 is far from truth as holidays do not stand as hindrance in furnishing bail bond. Further, the Petitioner did not furnish it on 03.10.2023, i.e. immediately on the next day of the holidays that tell tale vouch safes that there was complete absence of readiness and willingness on the part of the Petitioner to furnish the bail bond. Page 8 of 9 // 9 // 13. This Court in the facts and circumstances of the case, therefore, of the view that the Petitioner forfeits his indefeasible right on his own accord having failed to exercise the same within a period reasonably expected to avail. This Court finds no illegality to have been committed by the learned court below in declining to accept the bail bond furnished by the accused Petitioner and, therefore, the impugned order suffers no infirmity and hence, requires no interference. 14. The CRLMC being devoid of merit stands dismissed. Judge ( Chittaranjan Dash ) S.K. Parida Signature Not Verified Digitally Signed Signed by: SAMIR KUMAR PARIDA Designation: ADR-cum-ADDL. PRINCIPAL SECRETARY Reason: Authentic Copy Location: ORISSA HIGH COURT, CUTTACK Date: 13-Nov-2023 20:51:27 Page 9 of 9
Arguments
5. Learned counsel for the Petitioner submitted that the learned trial court rightly allowed the prayer for default bail of the Petitioner, but committed illegality by not accepting the bail bond furnished by the Petitioner pursuant to the grant of bail. It is further submitted by the learned counsel for the Petitioner that the learned court below erred in law, more particularly in connection with the matter which relates to the fundamental right of the accused, as provided under Article 21 of the Constitution of India. He also submitted that the provision in Clause-A (ii) of the proviso read with the Explanation (i) to section 167(2), Cr.P.C. mandates that if the accused is prepared to and does furnish bail bond, ought to have been accepted and accordingly in absence of any stipulation as to the time for furnishing the bail bond, denial of the court to accept the same is per se illegal. Learned counsel for the Petitioner also filed his written note of submission, wherein he referred to the decisions (1) M. Ravindram vs. The Intelligence Officers, Directorate of Revenue Intelligence reported in (2021) 81 OCR (SC) 548; (2) Rakesh Kumar Pal vs. State of Assam, reported in (2017) 68 OCR (SC) 1; (3) Sanjay Dutt vs. State through CBI, reported in (1994) 5 ACC 10; (4) Sayed Mohd. Ahmad Kazmi vs. State (Govt. of NCT of Delhi) & Others, reported in (2012) 12 SCC page-1; (5) Union of India, through CBI vs. Nirala Yadav @ Raja Ram Yadav @ Dipak Yadav, (2014) 59 OCR (SC) 226; (6) State of M.P. vs. Rustam, (1995) Supp.(3) SCC 221; (7) Fakhrey Alam vs. The State of Uttar Pradesh, (2021) 82 OCR (SC) 630; (8) Hitendra Bishnu vs. State of Maharashtra, (1994) 4 SCC 602; (9) Uday Mohanlal Acharya vs. State of Maharashtra, (2001) 5 SCC 453; & (10) Subodh @ Subodha Mondal vs. State of Orissa, (2016) 1 OLR-145. Page 3 of 9 // 4 // 6. Learned Addl. Govt. Advocate on the contrary vehemently opposed the bail application and submitted that the impugned order is in accordance with law and in consonance with the mandate issued by the Apex Court as well as this Court in the matter of Sumanta Sabara & Anr. vs. State of Odisha, reported in (2022) 86 OCR-667. 7. 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) 1 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 Page 4 of 9 // 5 // 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; (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. 1 so long as he does not 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 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.]” 8. Perusal of the impugned order reveals that the learned court below referred to the decision in the matter of Uday Mohanlal Acharya vrs. State of Maharashtra, reported in 2001(II) OLR (SC)-290, wherein 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 Page 5 of 9 // 6 // 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 challan is filed, then possibly it can be said that the right of the accused stood extinguished. xx xx xx” 9. Having regard to the facts in the present case, the citations referred to by the learned counsel for the Petitioner in the matter of Rakesh Kumar Pal vs. State of Assam, reported in (2017) 68 OCR (SC) 1 and Subodh @ Subodha Mondal vs. State of Orissa, (2016) 1 OLR-145 are well distinguishable and have no application in the facts and circumstances appearing herein. 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 Page 6 of 9 // 7 // 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), CrPC 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 oly 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), CrPC. Explanation I is only a safeguard to ensure that the accused is not immediately released from custody without complying with the bail order.”