The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.1145 of 2022 Guru @ Himanshu Pradhan @ Chin …. Appellant Mr.Gautam Mishra Senior Advocate -versus- State of Odisha …. Respondent Mr.P. B. Tripathy Addl. Standing Counsel CORAM: JUSTICE S.K. SAHOO Order No. ORDER 12.04.2023 05. This matter is taken up through Hybrid arrangement (video conferencing/physical mode). Heard Mr. Gautam Mishra, learned Senior Advocate appearing for the appellant and Mr. P. B. Tripathy, learned Addl. Standing Counsel for the State. This criminal appeal under section 14-A of the S.C. & S.T. (PoA) Act, 1989 has been filed by the appellant Guru @ Himanshu Pradhan @ Chin challenging the order dated 08.12.2022 passed by the learned Sessions Judge -cum- Judge, Special Court, Deogarh in Special G.R. Case No.23 of 2022 in // 2 // rejecting the petition filed by the appellant to accept the bail bonds. The said case arises out of Barkote P.S. Case No.203 dated 29.04.2022 charge sheeted under section 376(2)(n)(l) of Indian Penal Code read with section 3(1)(w)(ii)/3(2)(v) of S.C. & S.T. (PoA) Act.
Legal Reasoning
the charge sheet being prima facie satisfied relating to the commission of offences, took cognizance of the offences and there is no material on record that the charge sheet dated 06.06.2022 had come to the Court prior to 05.09.2022 and in support of his contention, learned counsel for the appellant filed the ordersheets of the learned trial Court. A report was called for from the learned Special Judge, Deogarh asking him to make an enquiry as to what date the charge sheet no.272 dated 06.06.2022 was received in Court and, if any, endorsement has been made in any record relating to receipt of the charge sheet and if the charge sheet has been received either on 06.06.2022 or immediately thereafter then why it was not placed before the Court on 29.08.2022 when the Court passed the default bail order. In pursuance to such order, the learned Sessions Judge, Deogarh has submitted the enquiry report dated 10.04.2023 which reads as under:- Page 3 of 11 // 4 // “In pursuance to the Hon'ble Court Order No.4, Dtd.29.03.2023 passed in CRLA No. 1145 of 2022, I made an enquiry as to on which date the charge sheet No.272, Dtd.06.06.2022 was received by the Spl. Court, Deogarh in Spl. G.R. case No.23 of 2022. In course of enquiry I perused the record of Spl G.R Case No.23 of 2022 and found that the instant case was registered in the Court of Sessions Judge-cum-Judge, Spl. Court. Deogarh on 30.04.2022 against the accused Guru @ Himanshu Pradhan for the alleged offences U/s.376(2)(n)(l) IPC r/w 3(1) (w) (ii)/ 3(2)(v) SC/ST (POA) Act and on the same day i.e. on 30.04.2022 the accused was produced before the Spl. Court and remanded to judicial custody. On further perusal of record (Spl G.R Case No.23 of 2022) it reveals that chargesheet was received by the Spl. Court, Deogarh on 05.09.2022 at 4.30 PM though in the Final Form (chargesheet) at para-3, date of submission of Charge sheet has been noted by the I.O. (Investigating Officer) as 06.06.2022. In order to ascertain the actual date of submission of the chargesheet (Final Form) by Page 4 of 11 // 5 // the I.O., I called for the Record Movement Register maintained by of the S.D.P.O., Deogarh (I.O) so also the Special C.T. Register of the C.S.I., Deogarh. The Record Movement Register of the S.D.P.O., Deogarh reveals that the chargesheet (Final Form) along with connected documents of this case was sent to the C.S.I, Deogarh on 03.09.2022 and on the very day it was received by the C.S.I., Deogarh with proper endorsement acknowledging the receipt of the documents (True Copy of the relevant entry of Record Movement Register of the S.D.P.O., Deogarh - Annexure-I). On examination of the Spl. C.T Register of the C.S.I., Deogarh it is found that, the chargesheet (Final form) along with other connected documents received by the C.S.I., Deogarh from the I.O. on 03.09.2022 and was transmitted to the Spl. Court, Deogarh on 05.09.2022 at 4.30 P.M. i.e. after delay of two days and to that effect an endorsement was given by the Dealing Assistant of the Spl. Court, Deogarh mentioning the date and time of receipt of chargesheet as dtd. 05.09.2022 at 4.30 P.M. (True copy of the relevant entry of Spl. C.T Register of the C.S.I., Deogarh- Page 5 of 11 // 6 // Annexure-II). With regard to two days delay in transmission of charge sheet by the C.S.I., Deogarh, an explanation was called for from the C.S.I., Deogarh. In reply the C.S.l., Deogarh submitted that, soon after receipt of the chargesheet along with connected documents on 03.09.2022 from the I.O., he found defects in the Case Diary (C.D. No.X) annexed with the chargesheet (Final Form) in respect of noting of Section of Law for which he (C.S.I) immediately reported the matter to the I.O. over phone and on the request of the I.O., he returned back the chargesheet (final form) along with the connected documents for making necessary correction. After making necessary correction, the I.O. re-sent the same on 05.09.2022 at 4.00 P.M. and thereafter, he (C.S.I., Deogarh) transmitted the chargesheet along with other connected documents to the Spl. Court, Deogarh on 05.09.2022 at 4.30 P.M. (Copies of explanation - Annexure-III). After going through the record (Spl G.R Case No. 23 of 2022), registers (Record Movement Register of the S.D.P.O., Deogarh and the Spl. C.T Register of the C.S. I., Page 6 of 11 // 7 // Deogarh) so also the explanation of the C.S.I, Deogarh meticulously, I found that the Charge Sheet (final form) along with other connected documents was received by the C.S.I., Deogarh on 03.09.2022, and as error was noticed in C.D No. X by the C.S.I., Deogarh, he returned the same to the I.O. and after removal of defects the I.O. re-sent the Charge Sheet (Final Form) on 05.09.2022 at 4.00 P.M. to the C.S.I. Office and on the same day i.e. on 05.09.2022, C.S.I, Deogarh transmitted the Charge Sheet no.272 to the Spl. Court, Deogarh at 4.30 P.M. In the above premises, I arrived at a conclusion that in Spl. G.R. case No.23 of 2022 the I.O. has submitted the Charge sheet, in the Spl. Court, Deogarh on Dtd.05.09.2022 at 4.30 P.M. and it is not correct that on 06.06.2022 the I.O. has submitted the Charge Sheet No. 272.” Mr. Gautam Mishra, learned Senior Advocate appearing for the appellant placed reliance on the decision of the Hon’ble Supreme Court in case of In Re Policy Strategy for Grant of Bail –Vrs.- Gaurav Agrawal in SMWP (Criminal) no.4 of 2021 decided on 31.01.2023 wherein it is held as follows:- Page 7 of 11 // 8 // “With a view to ameliorate the problems a number of directions are sought. We have examined the directions which we reproduce hereinafter with certain modifications: “1) The Court which grants bail to an undertrial prisoner/convict would be required to send a soft copy of the bail order by e-mail to the prisoner through the Jail Superintendent on the same day or the next day. The Jail Superintendent would be required to enter the date of grant of bail in the e-prisons software [or any other software which is being used by the Prison Department]. 2) If the accused is not released within a period of 7 days from the date of grant of bail, it would be the duty of the Superintendent of Jail to inform the Secretary, DLSA who may depute para legal volunteer or jail visiting advocate to interact with the prisoner and assist the prisoner in all ways possible for his release. 3) NIC would make attempts to create necessary fields in the e-prison software so that the date of grant of bail and date of release are entered by the Prison Department and in case the prisoner is not released within 7 days, then an automatic email can be sent Page 8 of 11 // 9 // to the Secretary, DLSA. 4) The Secretary, DLSA with a view to find out the economic condition of the accused, may take help of the Probation Officers or the Para Legal Volunteers to prepare a report on the socio-economic conditions of the inmate which may be placed before the concerned Court with a request to relax the condition (s) of bail/surety. 5) In cases where the undertrial or convict requests that he can furnish bail bond or sureties once released, then in an appropriate case, the Court may consider granting temporary bail for a specified period to the accused so that he can furnish bail bond or sureties. 6) If the bail bonds are not furnished within one month from the date of grant bail, the concerned Court may suo moto take up the case and consider whether the conditions of bail require modification/ relaxation. 7) One of the reasons which delays the release of the accused/ convict is the insistence upon local surety. It is suggested that in such cases, the courts may not impose the condition of local surety. We order that the aforesaid directions shall be Page 9 of 11 // 10 // complied with.” Mr. Mishra, learned counsel appearing for the appellant submitted that even though the decision of the Hon’ble Supreme Court was rendered on 31.01.2023 and the impugned order in the case in hand is dated 08.12.2022, but keeping in view spirit of the order of the Hon’ble Supreme Court and the principle laid down therein, since a valuable right had already been accrued in favour of the petitioner by way of grant of default bail on 29.08.2022 and the appellant could not file the bail bond within the stipulated period fixed by the learned trial Court and subsequently he came forward to fulfill the terms and conditions of the bail order and now also the appellant is ready and willing to comply the terms and conditions of the bail order dated 29.08.2022, therefore, the learned trial Court be directed to accept the bail bonds. Learned counsel for the State has no serious objection to the submission made by the learned counsel for the appellant. Considering the submissions made by the learned counsel for the respective parties, without entering into the question whether impugned order dated 29.08.2022 is justified or not, the learned trial Court is directed to accept the bail bond in terms of the order dated 29.08.2022, if the same is filed on or Page 10 of 11 // 11 // before 21st April 2023. A copy of the order be communicated to the learned trial Court forthwith. Issue urgent certified copy as per Rules. Judge ( S.K. Sahoo) Sipun Page 11 of 11
Arguments
Mr. Mishra, learned counsel submitted that the appellant was taken into judicial custody on 30.04.2022 and since charge sheet has not been filed within the stipulated period of one hundred twenty days from the date of first remand, an application for default bail was moved by the appellant before the learned Special Judge, Deogarh on the 121st day taking resort to the provision under section 167(2) Cr.P.C. and accordingly, the learned Special Judge, Deogarh vide order dated 29.08.2022 observing that the indefeasible right of the accused to be released on bail had accrued from the one hundred twenty one day i.e. from 29.08.2022, directed the appellant to be released on bail by furnishing bail bond of Rs.20,000/- (rupees twenty thousand) with two solvent sureties each for the like amount with certain other conditions and it was specifically directed that the bail bond to be filed by the appellant on or before 05.09.2022. There is no dispute that the appellant could not be able to file the bail bond on or before 05.09.2022. Later on when a petition was filed by the appellant on Page 2 of 11 // 3 // 06.12.2022 to accept the bail bond, the same was turned down by the learned trial Court by the impugned order dated 08.12.2022. When the matter was taken up on 29.03.2023, a contention was raised by the learned counsel for the appellant that even though the charge sheet is dated 06.06.2022, it was received in the Court on 05.09.2022 and on that day, the Court after perusing