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2010 DIGILAW 254 (ORI)

A. Sanyasi Rao v. State of Orissa

2010-04-08

I.MAHANTY

body2010
ORDER 8.4.2010 — Heard Mr. J.K. Panda, learned counsel for the petitioners and Mr. V. Narsingh learned A.G.A. for the State. The present application under Section 482 Cr.P.C. has been filed on behalf of the petitioners, namely, A Sanyasi Rao and K. Narasimha Murty with a prayer to quash the order dated 12.10.2009 passed by the learned Additional Sessions Judge-cum-Special Judge, Malkangiri in C.T. No.1 of 2009, by which order the learned Addl.Sessions Judge came to reject the petitioners appli¬cation for bail under Section 167(2), Cr.P.C inter alia, on the ground that charge sheet had been filed on 8.10.2009 and there¬fore although application under Section 167(2) Cr.P.C. has been filed by the accused-petitioners on 6.10.2009, the same was no more available for consideration due to submission of charge sheet on 8.10.2009 during the pendency of the petitioners appli¬cation for consideration of bail under Section 167 (2) Cr.P.C. Mr. Panda, learned counsel for the petitioners submits that the Hon’ble Supreme Court in the case of Uday Mohanlala Acharya v. State of Maharashtra, reported in AIR 2001 SC 1910 : 2001 (II) OLR (SC) 290, by way of majority judgment rendered by Hon’ble Justice G.B. Patnaik, J. (as his Lordship the-then was) came to hold that if “an accused has availed” of his indefeasible right under Section 167(2), Cr.P.C., such a right would not stand frustrated or extinguished merely because the petitioners’ appli¬cation was kept pending or was erroneously refused during which period a charge sheet has been filed. It is held therein that an indefeasible right accrued in favour of the accused, on the period prescribed under Criminal Procedure Code for filing charge sheet expiring and such an “indefeasible right” would not stand frustrated or extinguished by the factum of a charge sheet being filed and on the other hand, the accused has a right to be re¬leased on bail in enforcement of his “indefeasible right”. Howev¬er, the accused has to be produced before the Magistrate when a charge sheet is filed in accordance with Section 209 Cr.P.C. and the Magistrate must deal with him in the matter of remand of custody subject to the provisions of the Code relating to bail and subject to the provisions of cancellation of bail already granted in accordance with the law laid down by the apex Court in the case of Mohd Iqbal v. State of Maharashtra, reported in (1996) 1 SCC 722 . In the case of Uday Mohanlal Acharya (supra) their Lord¬ships recorded the conclusion as follows :- 1. Under Sub-section (2) of Section 167, a Magistrate before whom an accused is produced while the police is investigating into the offence can authorize detention of the accused in such custody as the Magistrate thinks fit for a term not exceeding 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 to default by the investigating agency in the completion of the investigation within the period 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. 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 legis¬lative 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. Such prompt action on the part of the Magistrate/Court will not enable the prosecution to frustrate the object of the Act and the legis¬lative 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 I 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 charge sheet is filed then the so-called indefeasible right of the accused would stand extinguished. 6. The expression “if not already availed of” used by this Court in Sanjaya Dutt case 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 Section 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 indi¬cated the terms and conditions of bail, and the accused has not furnished the same.” The petitioners in the present application were arrested on 6.2.2009 and remanded to jail custody for commission of the offence under Section 20(b) (ii)(C) of the N.D.P.S. Act. It is submitted that under Section 36-A(4) of the Narcotic Drugs and Psychotropics Substances Act, 1985, in place of period of “90 days” which has been prescribed in Section 167 of the Code is replaced by “180 days”. In the present case there is no dispute that the petitioners were arrested and remanded to jail custody on 6.1.2009 and by order dated 30.6.2009 learned Additional Sessions Judge, Malkan¬giri granted the prayer made by the I.O. in his petition to grant 180 days time for submission of Final Form and the same was allowed and Final Form was directed to be filed by 5.10.2009. It further appears that no Final Form was filed by the date pre¬scribed, i.e. 5.10.2009 and on 6.10.2009 the accused-petitioners filed application under Section 167(2) Cr.P.C. praying for re¬lease them on bail. It also appears from the order sheet that on the self same date the Public Prosecutor filed a petition with a prayer to extend the time to file the Final Form and to extend the period of detention of the accused persons. The Presiding Officer being on leave on the said date, the Additional Sessions Judge-cum-Special Judge, Malkangiri (I/C) finding that the offence alleged against the petitioners being under N.D.P.S. Act, concluded that he was not empowered to dispose of the petition filed by the petitioners and the Public Prosecutor and since the bail matter involved urgency directed the case record to be sent to the District & Sessions Judge-cum-Special Judge, Koraput-Jeypore for disposal of the petitions. But a prayer made on behalf of the defence by order 7.10.2009 that the case records may not be sent to the Special Judge, Koraput-Jeypore and therefore it was di¬rected that the case record be put-up before the Presiding Offi¬cer on 12.10.2009 for consideration of the bail petition and the petition filed by the learned Public Prosecutor for extension of time to file the Final Form as well as for continuing detention of the accused-petitioners. It also appears from the order sheet dated 8.10.2009 that the prosecution report under Section 20(b) (ii) (C) of N.D.P.S. Act along with chemical examination report and other connected documents were filed by the I.O. and thereafter on 12.10.2009 when the Presiding Officer returned from his leave, records were put up for consideration of the petition filed by the accused-petitioners under Section 167(2) Cr.P.C. The learned Addl.Sessions Judge came to a finding that since in the meantime, Final Form had been submitted by the I.O. on 8.10.2009, the petition filed by the accused-petitioners for bail was rejected, which is impugned before me in the present challenge. In the light of the judgment rendered by the Hon’ble Supreme Court in the case of Uday Mohanlal Acharya (Supra), the present case clearly comes within the scope and ambit of Conclusion-6 reached by the Hon’ble Supreme Court as noted hereinabove. The maximum period for detaining the accused-petitioners for an offence under NDPS Act, i.e., 180 days lapsed on 5.10.2009. In the light of the judgment rendered by the Hon’ble Supreme Court in the case of Uday Mohanlal Acharya (Supra), the present case clearly comes within the scope and ambit of Conclusion-6 reached by the Hon’ble Supreme Court as noted hereinabove. The maximum period for detaining the accused-petitioners for an offence under NDPS Act, i.e., 180 days lapsed on 5.10.2009. The accused petitioners filed an application under Section 167(2) Cr.P.C. on 6.10.2009. Before the said application was taken up for consideration, the I.O. filed Charge Sheet on 8.10.2009 and the learned Additional Sessions judge rejected the petitioners application under Section 167(2) Cr.P.C. on 12.10.2009 since the Charge Sheet had been filed. This is not in consonance with the judgment of the Hon’ble Supreme Court in the case of Uday Mohan¬lal Acharya (supra) and in particular Conclusion-6 thereof. It may be pertinent to note that, the aforesaid judgment has also been subsequently affirmed and followed by the apex Court in the case of State of Maharashtra v. Bharati Chandmal Varma (MRS) Alias Ayesha Khan, reported in (2002) 2 Supreme Court Cases 121. In view of the aforesaid facts and the principles of law as laid down by the Hon’ble Supreme Court in relation to Section 167(2), Cr.P.C. the impugned order dated 12.10.2009 of the learned Additional Sessions Judge-cum-Special Judge, Malkangiri in C.T. No.1 of 2009 rejecting the petitioners prayer under Section 167(2) Cr.P.C. stands quashed and directions are issued for releasing of the accused-petitioners on bail under Section 167(2) Cr.P.C. forthwith on such terms and conditions as may be fixed by the learned Additional Sessions Judge-cum-Special Judge, Malkangiri. With the aforesaid direction the CRLMC is allowed. Urgent certified copy of this order be granted on proper application. CRLMC allowed.