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2004 DIGILAW 114 (ORI)

BINOD KUMAR NANDA v. STATE OF ORISSA

2004-02-27

L.MOHAPATRA

body2004
JUDGMENT : L. Mohapatra, J. - This revision is directed against the order dated 11.12.2003 passed by the learned Special Judge-cum-Additional Sessions Judge, jajpur in G.R. Case No. 538 of 2003 rejecting the prayer of the Petitioner for grant of bail u/s 167 (2) of the Code of Criminal Procedure. 2. The case of the Petitioner is that on 24.5.2003 at about 4.40 P.M. 126 grams of brown sugar was seized from the possession of the Petitioner. On the very same date at 6.30 P.M. he was arrested. On 25.5.2003 the Petitioner was forwarded to the court of the learned Additional Sessions Judge, Jajpur for commission of offences under Sections 21 and 22 of the N.D.P.S. Act and was remanded to the jail custody. After expiry of 60th day, since charge-sheet was not filed, a petition was tiled u/s 167 (2) of the Code of Criminal Procedure on the 61 (sixty one) days i.e., on 24th July, 2003 for grant of bail. On 25th July, 2003 at about 11.30 A.M. charge-sheet was filed. Since on expiry of sixty days the Petitioner had moved for bail and by that time charge sheet had not been filed, the pet prayed for compulsory bail under the aforesaid provision of the Code of Criminal Procedure. The learned Special Judge rejected the petition relying on a decision of the Apex Court holding that if the date of remand is excluded, the Petitioner is not entitled to bail u/s 167 (2) Code of Criminal Procedure 3. Shri Mulia, Learned Counsel for the Petitioner referring to a decision of this Court in the case of Jubraj Bariha v. State of Orissa reported in (2000) 19 OCR 372 submitted that on 24th of July, 2003 the period of sixty days for filing the charge sheet had expired and the petition u/s 167 (2) Code of Criminal Procedure was maintainable and should have been allowed. He also referred to two other decisions, one of this Court and the other of the Apex Court stating that even if charge sheet is filed at a later date, if the accused had exercised his right after expiry of 60th day, the said right cannot be taken away merely because charge sheet had been filed. There is No. dispute about the aforesaid proposition of law. There is No. dispute about the aforesaid proposition of law. The only question required to be considered for determination is as to whether the date of remand is to be included or excluded. In this connection, reference may be made to a decision of the Apex Court in the case of State of M.P. v. Rustam and Ors. reported in (1996) 11 OCR (SC) 167. Taking the help of Sections 9 and 10 of the General Clauses Act, 1897 the Apex Court in the aforesaid decision held that by computing the period under the Act either the date of remand is to be excluded or the date of submission of police report is to be excluded. One of the days son either side has to be excluded and not both the days. The Apex Court in the case of State through C.B.I. v. Mohd. Ashraft Bhat and Anr. reported in (1996) 10 OCR (SC) 329 has observed that the period of ninety days or sixty days has to be computed from the date of detention as per the orders of the Magistrate and not from the date of arrest by the police. Faced with the aforesaid two decisions, this Court in the case of Jubraj Bariha (supra) followed the later decision in the case of State through CBI v. Mohd. Ashraft Bhat and Anr. and held that the date of remand has to be included for computing the period of detention. This Court in the case of Ada alias Adeita Behera v. State reported in (1996) 10 OCR 650 has also held that the date of remand is to be included for computing the period of detention. In view of the above decisions, it is clear that the date of remand has to be included for computing the period of 60 days. 4. In the present case, the Petitioner was remanded to jail custody on 24th May, 2003 and the period of sixty days expired on 23rd of July, 2003. On 24th July, 2003, it appears that the Petitioner had exercised his right under the proviso to Section 167 (2), Code of Criminal Procedure for grant of bail and admittedly by that time the charge sheet had not been submitted and only on 25th July, 2003 charge sheet was submitted. On 24th July, 2003, it appears that the Petitioner had exercised his right under the proviso to Section 167 (2), Code of Criminal Procedure for grant of bail and admittedly by that time the charge sheet had not been submitted and only on 25th July, 2003 charge sheet was submitted. Since the Petitioner had filed the petition after expiry of sixty days and admittedly the charge sheet was filed on the next day, the right of the Petitioner to be released on bail under the proviso to Section 167(2) Code of Criminal Procedure cannot be denied. 5. I, therefore, set aside the impugned order and direct that the Petitioner be released on bail u/s 167(2) of the Code of Criminal Procedure in the aforesaid case on such terms and conditions as the learned Special Judge may deem just and proper was attacked first. Another factor which deserves attention of this Court is that the occurrence which had taken place at about 10.30 a.m. on 13.6.1987 where after. PW-5 went back to the village to inform his cousin, brought a tractor and took the injured Kartar Kaur and Partap Singh to hospital. The distance between the place of occurrence and the hospital is said to be about 9 k.m. On the way Kartar Kaur died and Partap Singh was examined at 12.30 p.m. It is not in dispute that they were brought to the hospital by PW-5 and in that view of the matter his presence at the place of occurrence appears more probable. On the other hand, the injured Darbara Singh and Virsa Singh were brought to the hospital by Kulwant Singh at least one hour thereafter. Presence of Kulwant Singh also, thus, appear to be probable. Despite suffering such injuries why they were not rushed to hospital has not been explained. Furthermore, Dr. A.S. Mann (PW-2) immediately informed the officer in charge about the incident. Presence of Kulwant Singh also, thus, appear to be probable. Despite suffering such injuries why they were not rushed to hospital has not been explained. Furthermore, Dr. A.S. Mann (PW-2) immediately informed the officer in charge about the incident. The police came to the hospital, the first information report was lodged at 4.30 p.m. If the informant and his brothers were the aggressors, it was expected, that the injured Darbara Singh and Virsa Singh or the Appellant No. 1, Kulwant Singh, would have made such statements before the police officer giving details as to the mode and manner in which the incident had happened and as to how Virsa Singh and Darbara Singh suffered such grievous injuries, particularly when PW 2 in his evidence categorically stated that Virsa Singh was fully conscious and could talk clearly. 6. The records also reveal that weapons of attacks were recovered at the instance of both Kulwant Singh and Sahiba Singh. The spear and kirpan which were recovered were found to be blood-stained. We, therefore, are of the opinion that there does not exist any legal infirmity in the findings of the High Court. 7. For the reasons aforementioned, we are of the opinion that the accused person have not been able to discharge their onus of proof that they had killed the deceased in exercise of their right of private defence. 8. The appeal being devoid of any merit is dismissed.