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2005 DIGILAW 686 (ORI)

Kishore Kumar Saha v. State of Orissa

2005-12-08

N.PRUSTY

body2005
JUDGMENT N. PRUSTY, J. : The petitioner, accused of having committed an offence under Section 302/201 of the Indian Penal Code and Section 25/27 of the Arms Act, has filed this application for releasing him on bail. 2. Even though in paragraph 1 of the bail application, it has been stated that the petitioner was charge-sheeted for com¬mission of offence punishable under Section 304/201 of the Indian Penal Code and Section 25/27 of the Arms Act, on the basis of a written report lodged by one Om Prakash Saha, but on verification of the record, it is found that F.I.R. was lodged for commission of offence under Section 302 of the Indian Penal Code and 25 of the Arms Act and charge sheet dated 6.7.2004 was submitted against the accused for offence under Section 302/201 of the Indian Penal Code as well as 25/27 of the Arms Act. 3. In this application, the petitioner has challenged the order dated 4.11.2004 passed by the learned Sessions Judge, Sam¬balpur in S.T. Case No.303 of 2004 (arising out of C.T. No. 390/2004 of the Court of learned S.D.J.M., Sambalpur) rejecting the petition filed by the accused person inter alia praying therein to release him on bail, invoking the provisions of Sec¬tion 167(2) of the Cr.P.C., as the charge sheet was not submitted within the stipulated period of 120 days. This bail application was filed before the Sessions Judge after the commitment of the case to the Court of Session. 4. Learned Sessions Judge has disposed of the said appli¬cation with the observation that “On 12.7.2004, a petition was filed invoking the provision of Section 167 (2) of the Cr.P.C. for release of the accused on bail and by the time of passing the order the charge sheet was on record though cognizance was not taken. As such his petition has been rightly rejected. That apart the order has not been challenged. Thereafter the petition for bail was filed which was also rejected. Hence the petition now filed under Section 167(2) of the Cr.P.C. is not maintainable and is rejected.” 5. As such his petition has been rightly rejected. That apart the order has not been challenged. Thereafter the petition for bail was filed which was also rejected. Hence the petition now filed under Section 167(2) of the Cr.P.C. is not maintainable and is rejected.” 5. As it appears form the record, on 12.7.2004, a petition was moved on behalf of the petitioner before the learned S.D.J.M., Sambalpur to release him on bail invoking the provision of Section 167(2) Cr.P.C. On that date, a memorandum was filed by the Advocate for the accused intimating therein that till 2.00 P.M. the charge sheet was not filed. But the order dated 12.7.2004 of the learned S.D.J.M., Sambalpur clearly indicates that when the file was put up before him for consideration of the bail application, and order was passed in Court after hearing the counsel for the respective parties, learned Magistrate found that the Charge Sheet dated 6.7.2004 was very much available in the case record and considering all the available materials bail application was rejected. Thereafter cognizance under Section 302/201 of the Indian Penal Code and under Section 25/27 of the Arms Act was taken by the learned S.D.J.M., on 13.7.2004 and the case was committed to the Court of Session. 6. The order-dated 12.7.2004 has never been challenged before any Court in any manner. A fresh application for releasing the petitioner on bail was filed before the learned Sessions Judge on 16.10.2004 after the commitment of the case to the Court of Session and the said application was considered and rejected by the learned Sessions Judge. Thereafter another application was filed before the Sessions Judge on 3.11.2004 for releasing the petitioner on bail by extending the benefit of the provisions of Section 167(2) Cr.P.C. That application was taken up on the very next day i.e. on 4.11.2004 and the learned Sessions Judge reject¬ed the petitioner’s prayer for bail by his order-dated 4.11.2004, which is impugned in the present bail application. 7. Earlier, the petitioner moved this Court for releasing him on bail in BLAPL No.7294 of 2004. The said bail application was filed on 16.8.2004 challenging the order-dated 9.8.2004 passed by the learned Sessions Judge, Sambalpur in bail Applica¬tion No.312 of 2004. 7. Earlier, the petitioner moved this Court for releasing him on bail in BLAPL No.7294 of 2004. The said bail application was filed on 16.8.2004 challenging the order-dated 9.8.2004 passed by the learned Sessions Judge, Sambalpur in bail Applica¬tion No.312 of 2004. In the Bail application No.312 of 2004 before the learned Sessions Judge, Sambalpur and BLAPL No.7294 of 2004 before this Court, the petitioner had not whispered a single word with regard to non-filing of the charge sheet on 6.7.2004, i.e., on completion of the period of 120 days form the date of remand of the petitioner. When BLAPL No.7294 of 2004 was taken up and disposed of by order dated 30.8.2004, learned counsel for the petitioner also did not point out that the petitioner was entitled to the benefit of provision under Section 167(2) of the Cr.P.C. since the charge sheet was not submitted within the stipulated period of 120 days. 8. In support of his contention to the effect that the petitioner is entitled to be released on bail since the charge sheet was not submitted within 120 days form the date of his remand to custody under Section 167(2) of Cr.P.C., learned coun¬sel for the petitioner cited the decision of this Court in the case of Ramesh Das vs. State of Orissa* reported in (1999) 17 OCR 400 and the decision of the Apex Court in the case of Uday Mohan¬lal Acharya vs State of Maharashtra** reported in (2002) 22 OCR (Supreme Court) 1. 9. In the case of Ramesh Dash (supra), this Court after thorough discussion of the legislative history necessitating amendment of the Section 167 of Cr.P.C. and the provision of Section 167(2) proviso (a) of Cr.P.C. as well as the decision of different Courts in this regard this Court came to a conclusion that :- “15. Proviso to Section 167(2) of the 1973 Code under which indefeasible right to bail has been given to the accused should be given effect to in letter and spirit. In action or delayed action of the Court in extending the benefit thereof would make it nugatory. Therefore, uninfluenced by the nature and gravity of the offence it is expected of the Court to give the benefit of the default clause and release the accused forthwith if he is prepared to and does furnish bail. In action or delayed action of the Court in extending the benefit thereof would make it nugatory. Therefore, uninfluenced by the nature and gravity of the offence it is expected of the Court to give the benefit of the default clause and release the accused forthwith if he is prepared to and does furnish bail. The maximum period of deten¬tion of an accused in custody as provided under Section 167 should not be extended by Court’s order to enable the prosecution to file charge-sheet so that right for compulsive bail would be defeated. Justice must be rooted in confidence and confidence is destroyed when right-minded people go away thinking : ‘Judge was biased’. And finally released the petitioner on bail extending the benefit of default clause as envisaged in Section 167(2) of the Code. In the case of Uday Mohanlal Acharya (supra) the Apex Court after thorough scrutiny have been pleased to record their conclu¬sion as follows :- “1. Under Sub-section (2) of Section 167, a Magistrate before whom an accused is produced while the police is investi¬gating into the offence can authorise detention of the accused in such custody as the Magistrate thinks fit for a term not exceed¬ing 15 days on the whole. 2. Under the proviso to the aforesaid Sub-section (2) of Section 167, the Magistrate may authorize detention of the ac¬cused otherwise than in the custody of police for a total period not exceeding 90 days where the investigation relates to offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years, and 60 days where the investi¬gation relates to any other offence. 3. On the expiry of the said period of 90 days or 60 days, as the case may be, an indefeasible right accrues in favour of the accused for being released on bail on account of default by the investigating agency in the completion of the investigation within the prescribed and the accused is entitled to be released on bail, if he is prepared to and furnishes the bail as directed by the Magistrate. 4. 4. When an application for bail is filed by an accused for enforcement of his indefeasible right alleged to have been accrued in his favour on account of default on the part of the investigating agency in completion of the investigation within the specified period, the Magistrate/Court must dispose of it forthwith, on being satisfied that in fact the accused has been in custody for the period of 90 days or 60 days, as specified, and no charge sheet has been filed by the investigating agency. Such prompt action on the part of the Magistrate/Court will not enable the prosecution to frustrate the object of the Act and the legislative mandate of an accused being released on bail on account of the default on the part of the investigating agency in completing the investigation within the period stipulated. 5. If the accused is unable to furnish the bail as directed by the Magistrate, then on a conjoint reading of Explanation 1 and the proviso to Sub-section (2) of Section 167, the continued custody of the accused even beyond the specified period in Para (a) will not be unauthorized and therefore, if during that period the investigation is complete and the charge-sheet is filed then the so-called indefeasible right of the accused would stand extin¬guished. 6. The expression “if not already availed of” used by this Court in Sanjay Dutt’s case (supra) must be understood to mean when the accused files an application and is prepared to offer bail on being directed. In other words, on expiry of the period specified in Para (a) of the proviso to Sub-section (2) of Sec¬tion 167 if the accused files an application for bail and offers also to furnish the bail on being directed, then it has to be held that the accused has availed of his indefeasible right even though the Court has not considered the said application and has not indicated the terms and conditions of bail, and the accused has not furnished the same.” However, Hon’ble Shri Justice B.N. Agrawal gave his dissent¬ing opinion with the observation as follows :- “29. It is true that the right of an accused to be released on bail for default in submission of a challan is a valuable and indefeasible right, but by the time the Court is considering the exercise of the of the said right if a challan is filed, then the question of grant of bail has to be considered only with refer¬ence to merits of the case under the provisions of the Code relating to grant of bail after filing of the challan which view is consistent with the view expressed by different Constitution Benches of this Court in several decades in connection with the issuance of a writ of habeas corpus as well as for grant of bail. 30. My learned Brother has referred to the expression “if not already availed of” referred to in the judgment in Sanjay Dutt’s case for arriving at conclusion No.6. According to me, the expression “availed of” does not mean mere filing of application for bail expressing therein willingness of the accused to furnish the bail bond. What will happen if on the 1st day the challan is also filed by the time the Magistrate is called upon to apply his mind to the challan as well as the petition for grant of bail ? In view of the several decisions referred to above and the re¬quirements prescribed by Clause (a)(ii) of the proviso read with Explanation-I to Section 167(2) of the Code, as no bail bond has been furnished, such an application for bail has to be dismissed because the stage of proviso to Section 167(2) is over, as such right is extinguished the moment the challan is filed. 31. In this background, the expression “availed of” does not mean mere filing of the application for bail expressing thereunder willingness to furnish bail bond, but the stage for actual furnishing of bail bond must reach, if the challan is filed before that, then there is no question of enforcing the right, howsoever valuable or indefeasible it may be, after filing of the challan because thereafter the right under default clause cannot be exercised. 32. In case the Court concerned has adopted any dilatory tactics or an attitude to defeat the right of the accused to be released on bail on the ground of default, the accused should immediately move the superior Court for appropriate direction. 32. In case the Court concerned has adopted any dilatory tactics or an attitude to defeat the right of the accused to be released on bail on the ground of default, the accused should immediately move the superior Court for appropriate direction. But if the delay is bona fide and unintentional and in the mean¬time challan is filed then in view of the aforesaid judgments of this Court, such a petition has to be dismissed and it cannot be said that the accused has already availed of the right accruing under the proviso to Section 167 of the Code. It need not be repeated that the right accruing under the proviso to Section 167(2) of the Code on the expiry of the statutory period of sixty days 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 (a) (ii) of the proviso read with Explanation-I to Section 167 (2) of the Code. If because of any bona fide view or procedure adopted by the Court concerned some delay is caused and in the meantime the challan is filed, the Court has no power to direct release under the proviso to Section 167(2) of the Code. 33. The present case, where the prosecution was for an offence under the MPID Act, being a case of first impression, the Court concerned was of the bona fide opinion that the provi¬sions of Section 167(2) of the Code were not applicable. That view of the Special Judge was reversed by the High Court, but before it could fully apply its mind, the challan was filed. In this background, I am clearly of the onion that the right of the accused to be enlarged on bail under the proviso to Section 167(2) of the Code cannot be said to have been “availed of” in the present case. 10. For verification of the plea taken by the petitioner that charge sheet was not submitted within 120 days form the date of his remand i.e. by 6.7.2004, lower Court records of the case was called for. 10. For verification of the plea taken by the petitioner that charge sheet was not submitted within 120 days form the date of his remand i.e. by 6.7.2004, lower Court records of the case was called for. The order dated 7.7.2004 of the learned S.D.J.M. indicates that the “final form is not received”, but that was the date on which the accused was only produced form the jail custo¬dy, no application for bail was moved on that day and hence the accused was remanded back to jail custody. The Charge Sheet dated 6.7.2004 is available on record. Learned Counsel for the State also produced a receipt dated 6.7.2004, which indicates that the Charge sheet was received in the Court on that date. As such, after receiving the final form on 6.7.2004, it might not have been brought to the notice of the learned S.D.J.M by the Office when the order dated 7.7.2004 was passed, since no application was moved before him for any purpose on that date and as such verification of final form might not have been required on that date. It is the duty of the concerned official to place the final form before the learned Magistrate immediately after the same is submitted/received for the purpose of taking cognizance. However, order dated 12.7.2004, on which application for releasing the petitioner on bail under provision of Section 167(2) Cr.P.C. was moved and the order was passed, the final form was available in the record and on verification of the same, since it was filed on 6.7.2004, learned S.D.J.M rejected the bail application. On 13.7.2004 charge sheet No.85 dated 6.7.2004 under Section 320/201 IPC and Sections 25 and 27 of the Arms Act along with connected papers were placed before the learned S.D.J.M. and cognizance of offence under Section 302/201 IPC and Sections 25 and 27 of the Arms Act was taken against the petitioner. Learned Sessions Judge considering all the above facts, by the impugned order dated 4.11.2004 has also rejected the prayer for bail of the petition¬er. 11. Taking into consideration all the materials available on record, as it appears the Final Form/Charge sheet dated 6.7.2004 was submitted in the Court of the learned S.D.J.M. on the very same day i.e. 6.7.2004. There is no material available ion record to indicate that the Charge sheet was submitted on a later date. 11. Taking into consideration all the materials available on record, as it appears the Final Form/Charge sheet dated 6.7.2004 was submitted in the Court of the learned S.D.J.M. on the very same day i.e. 6.7.2004. There is no material available ion record to indicate that the Charge sheet was submitted on a later date. The concerned Police Station (Dhanupali) is within Sambalpur town and also not that far off form the Court premises, so that there shall be a delay in submission of charge sheet and it cannot be submitted on the very same day. 12. Considering the submissions made by the learned counsel for both the parties and after going through the records of the case, I am of the opinion that since the charge sheet has been submitted in the Court of the learned Magistrate on 6.7.2004, which is within 120 days form the date of remand of the petition¬er to custody, the decisions relied upon and cited by the learned counsel for the petitioner can be of no help to the petitioner. 13. In view of the above, considering the submissions made by learned counsel both the parties as well as after going through the Case Diary and the statement of witnesses recorded under Section 161 Cr.P.C. by the investigating agency, I am of the considered view that the petitioner is not entitled to be released on bail on merits of the case nor the benefits of the provisions of Section 167(2) Cr.P.C. can be extended in his favour. The bail application is accordingly rejected. Application rejected.