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2008 DIGILAW 73 (ORI)

BINOD PAIKRAY SURYA MAMA v. STATE OF ORISSA

2008-01-24

M.M.DAS

body2008
JUDGMENT : M.M. Das, J. - This is an application u/s 439 Code of Criminal Procedure for grant of bail to the Petitioner. 2. Accusation of commission of offence u/s 395 IPC has been made in this case. 3. Before considering the materials on merit, Mr. P.K. Singh, learned Counsel for the Petitioner raised a preliminary question regarding the right of the Petitioner to be entitled to an order of bail under the proviso to Section 167(2) Code of Criminal Procedure He submitted that the Petitioner was arrested on 4.6.2007 for the alleged offence u/s 395 IPC for which, the maximum punishment prescribed is imprisonment for life or R.I. for ten years and fine. He, therefore, submitted that the charge sheet if not filed within 120 days from the date of arrest of the Petitioner, the Petitioner would be entitled to grant of bail under the proviso (a)(i) to Section 167 (2) Code of Criminal Procedure In the present case, charge sheet was submitted on 6.10.2007, i.e., after passing of 120 days from the date of arrest of the Petitioner. 4. Mr. Singh, learned Counsel for the Petitioner relied upon the decision in the case of Purna Chandra Naik v. State of Orissa (2002) 23 OCR 158 and Uday Mohanlal Acharya Vs. State of Maharashtra, in support of his contentions. 5. In the case of Purna Chandra Naik (supra), this Court was considering a case, where the prayer for bail of the Petitioner under the provisions of Section 167(2) Code of Criminal Procedure before the Special Judge, Koraput was allowed on furnishing a bail bond of Rs. 28,000/- with two solvent sureties for the like amount. The Petitioner could not furnish bail bond on the same day and only on 3.9.2001 he could furnish bail bond in compliance of order dated 24.8.2001. In the meantime, on 31.8.2001 to I.O. submitted charge sheet against the Petitioner for the offence as stated above. 28,000/- with two solvent sureties for the like amount. The Petitioner could not furnish bail bond on the same day and only on 3.9.2001 he could furnish bail bond in compliance of order dated 24.8.2001. In the meantime, on 31.8.2001 to I.O. submitted charge sheet against the Petitioner for the offence as stated above. On the above facts, this Court held that if after expiry of the period, an application for being released on bail is filed and the accused offers to furnish bail, and thereby avails on 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. 6. On thus holding, this Court concluded that though the Petitioner had been granted bail, he could not furnish bail bond before filing of the charge sheet and, therefore, the principle laid down in the case of Uday Mohanlal Acharya (supra) applies and the Petitioners right for bail stands extinguished. 7. In the present case, such a situation has not arisen as the Petitioner had never applied for bail after expiry of period of 120 days from the date of his arrest even though no charge sheet is filed by then. 8. The question raised by Mr. Singh, learned Counsel for the Petitioner has been clearly answered in the case of Sanjay Dutt Vs. State through C.B.I., Bombay. In the said case, there was accusation of commission of crime under TADA Act. A question was raised before the Supreme Court with regard to the indefeasible right of the accused to be released on bail by virtue of Section 20(4)(bb) of the TADA Act. 9. The Supreme Court considering the said question, in the case of Sanjay Dutt (supra) held has follows: ...The indefeasible right accruing to the accused in such a situation is enforceable only prior to the filing of the challan and it does not survive or remain enforceable on the challan being filed, if already not availed of. Once the challan has been filed, the question of grant of bail has to be considered and decided only with reference to the merits of the case under the provisions relating to grant of bail to an accused after the filing of the challan. Once the challan has been filed, the question of grant of bail has to be considered and decided only with reference to the merits of the case under the provisions relating to grant of bail to an accused after the filing of the challan. The custody of the accused after the challan has been filed is not governed by Section 167 but different provisions of the Code of Criminal Procedure. If that right had accrued to the accused but it remained unenforced till the filing of the challan, then there is no question of its enforcement thereafter since it is extinguished the moment challan is filed because Section 167 Code of Criminal Procedure ceases to apply.... 10. In the present case, on 120th day by which the charge sheet was required to be file, the Petitioner was already before this Court in the present bail application. No prayer has been made before the learned trial Court by the Petitioner to release him on bail by applying the provisions of Section 167(2) Code of Criminal Procedure and, therefore, the Petitioner having not enforced his right under the said Section, applying the principles as laid down in the case of Sanjay Dutt (supra), there would be no question of such right being enforced thereafter, since the said right stands extinguished the moment the charge sheet was filed on the 122nd day. The contention of Mr. Singh, learned Counsel for the Petitioner is, therefore, not acceptable and this Court feels it appropriate to consider the bail application on its own merits. 11. An F.I.R. has been registered for an offence u/s 394 IPC. In the meanwhile, charge sheet has been submitted under Sections 120-B/395 IPC against the Petitioner and Anr. co-accused. By the date of filing of the charge sheet, as the other co-accused persons were not identified and the further investigation has been kept open, statement of the Petitioner u/s 27 of the Evidence Act has been recorded by the Investigating Officer and the Petitioner gave recovery of Rs. 8,000/- stating that he received Rs. 10,000/- towards his share from the booty, out of which, he has spent a sum of Rs. 2,000/-. The other co-accused-Dhiren Kumar Das, who is not before this Court also led to recovery of the left over amount, out of Rs. 10,000/-, which was given to him by one Bijaya Mama, who distributed the booty. 10,000/- towards his share from the booty, out of which, he has spent a sum of Rs. 2,000/-. The other co-accused-Dhiren Kumar Das, who is not before this Court also led to recovery of the left over amount, out of Rs. 10,000/-, which was given to him by one Bijaya Mama, who distributed the booty. There is also criminal antecedent of the Petitioner, as is revealed from his own statement that he was involved in a theft case and was convicted in the said case. 12. Though in the T.I. parade, the Petitioner and other co-accused have not been identified, considering the nature of crime alleged to have been committed and their statements recorded u/s 27 of the Evidence Act and the manner in which the alleged crime was committed, I find, prima facie, material, against the Petitioner, and therefore, I am not inclined to direct release of the Petitioner on bail. 13. The BLAPL is accordingly dismissed. Final Result : Dismissed