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2015 DIGILAW 480 (ORI)

Subodh v. State of Orissa

2015-08-17

S.PUJAHARI

body2015
ORDER : S. Pujahari, J. 1. Heard the learned counsel for the petitioner and the learned counsel for the State. 2. The petitioner in the criminal revision, challenges the order dated 17.07.2015 passed by the learned Sessions Judge-cum-Special Judge, Nabarangpur in C.T. Case No. 61 of 2015 to be illegal and arbitrary. 3. It appears that the prayer of the petitioner for his release on bail under Section 167(2) Cr.P.C. was allowed by the learned Sessions Judge-cum-Special Judge, Nabarangpur vide order dated 10.07.2015 passed in C.T. Case No. 61 of 2015. However; on the next date i.e. on 17.07.2015, the learned Sessions Judge-cum-Special Judge vide the impugned order refused to accept the bail bond placing reliance on the law laid down in the case of Sanjay Dutt v. State, (1994) 5 SCC 410 and also the case of State of M.P. vs. Rustam & Ors., reported in 1995 Supp. (3) SCC 221. 4. In the case of Sanjay Dutt (Supra) the Constitution Bench of the Hon'ble Apex Court have held that "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 filing of the challan". 5. In the case of State of M.P. vs. Rustam & Ors. (supra), it has been observed that the right to compulsive bail under Section 167(2) of Cr.P.C. does not survive after filing of the challan. The court must examine the availability of the right to compulsive bail on the date it considered the question of bail and not barely on the date of presentation of the petition for bail. 6. According to the trial court the aforesaid is also the view of the Hon'ble Apex Court in the case of Bipin Shantilal Panchai vs. State of Gujarat, reported in (1996) 1 SCC 718 , Dinesh Dalmia vs. C.B.I. reported in (2007) 8 SCC 770 and Mustaq Ahmed Mohammed Isak vs. State of Maharashtra, reported in (2009) 7 SCC 480 . 7. 7. Learned counsel appearing for the petitioner submits that the impugned order of the trial court is contrary to the law laid down by, the Hon'ble Apex Court in the case of Union of India through C.B.I., Vs. Nirala Yadav @ Raja Ram Yadav @ Deepak Yadav, reported in(2014) 59 OCR (SC) 226. He further submits that the Hon'ble Apex Court in the case of Nirala Yadav (supra) having held that the law laid down in the case of Uday Mohanlal Acharya vs. State of Maharashtra, reported in (2001) 5 SCC 453 having elaborated to highlight the ratio laid down in the case of Sanjay Dutt (supra) and in the case of Uday Mohanlal Acharya, (supra) does not express the correct position of law in the expression "if already availed of used by the constitution Bench in the case of Sanjay Dutt (supra), the trial court could not have refused to release the petitioner on bail who was already directed to be released on bail before filing of challan but had not filed the bail bond. Therefore, he submits that the impugned order cannot be sustained. 8. Learned counsel for the State, on the other hand, submits that since before filing of the bail bond, the challan was already filed, the right in favour of the petitioner said to have extinguished and as such the impugned order cannot be found fault with. 9. It appears that in the case of Nirala Yadav, (supra), the Apex Court taking note the case of Uday Mohanlal Acharya (supra) in paragraph 19, 20, 21, 28 and 32 have held as follows: "19. In Uday Mohanlal Acharya (supra) the majority, after referring to the Constitution Bench decision in Sanjay Dutt's case, posed the question about the true meaning of the expression of the following lines: "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 or." Answering the said question the court observed thus:- "Does it mean that an accused files an application for bail and offers his willingness for being released on bail or does it mean that a bail order must be passed, the accused must furnish the bail and get him released on bail? In our considered opinion it would be more in consonance with the legislative mandate to hold that an accused must be held to have availed of his indefeasible right, the moment he files an application for being released on bail and offers to abide by the terms and conditions of bail. To interpret the expression "availed of to mean actually being released on bail after furnishing the necessary bail required would cause great injustice to the accused and would defeat the very purpose of the proviso to Section 167(2) of the Criminal Procedure Code and further would make an illegal custody to be legal, inasmuch as after the expiry of the stipulated period the Magistrate had no further jurisdiction to remand and such custody of the accused is without any valid order of remand. That apart, when an accused files an application for bail indicating his right to be released as no challan had been filed within the specified period, there is no discretion left in the Magistrate and the only thing he is required to find out is whether the specified period under the statute has elapsed or not, and whether a challan has been filed or not. If the expression "availed of" is interpreted to mean that the accused must factually be released on bail, then in a given case where the Magistrate illegally refuses to pass an order notwithstanding the maximum period stipulated in Section 167 had expired, and yet no challan had been filed when the accused could only move to the higher forum and while the matter remains pending in the higher forum for consideration, if the prosecution files a charge-sheet then also the so-called right accruing to the accused because of inaction on the part of the investigating agency would get frustrated. Since the legislature has given its mandate it would be the bounded duty of the court to enforce the same and it would not be in the interest of justice to negate the same by interpreting the expression "if not availed of" in a manner which is capable of being abused by the prosecution. Since the legislature has given its mandate it would be the bounded duty of the court to enforce the same and it would not be in the interest of justice to negate the same by interpreting the expression "if not availed of" in a manner which is capable of being abused by the prosecution. A two Judge Bench decision of this Court in State of M.P. v. Rustam setting aside the order of grant of bail by the High Court on a conclusion that on the date of the order the prosecution had already submitted a police report, and, therefore, the right stood extinguished, in our considered opinion, does not express the correct position in law of the expression "if already not availed of", used by the Constitution Bench in Sanjay Dutt." (Emphasis supplied) After so stating the court referred to Makhan Singh Tarsikka v. State of Punjab AIR 1952 SC 27 , Ram Narayan Singh (supra) and A.K. Gopalan (supra) and proceeded to state as follows: "In interpreting the expression" if not availed of in the manner in which we have just interpreted we are conscious of the fact that accused persons in several serious cases would get themselves released on bail, but that is what the law permits, and that is what the legislature wanted and an indefeasible right to an accused flowing from any legislative provision ought not to be defeated by a court by giving a strained interpretation of the provisions of the Act. In the aforesaid premises, we are of the considered opinion that an accused must be held to have availed of his right flowing from the legislature mandate engrafted in the proviso sub-section (2) of Section 167 of the Code if he has filed an application after the expiry of the stipulated period alleging that no challan has been filed and he is prepared to offer the bail that is ordered, and it is found as a fact that no challan has been filed within the period prescribed from the date of the arrest of the accused. In our view, such interpretation would sub serve the purpose and the object for which the provision in question was brought on to the statute book. In our view, such interpretation would sub serve the purpose and the object for which the provision in question was brought on to the statute book. In such a case, therefore, even if the application for consideration of an order of being released on bail is posted before the Court after some length of time, or even if the Magistrate refused the application erroneously and the accused moves the higher forum for getting a formal order of being released on bail in enforcement of his indefeasible right, then filing of challan at that stage will not take away the right of the accused." (Underlining is ours). 20. Thereafter the court culled out six conclusions which are necessitous to be reproduced. They are: "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 authorise 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 accused 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 investigation 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 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 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 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 unauthorised, and therefore, if during that period the investigation is complete and the charge-sheet is filed than the so-called indefeasible right of the accused would stand extinguished. 6. The expression "if not already availed of" used by this Court in Sanjay 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 indicated the terms and conditions of bail, and the accused has not furnished the same." 21. Elaborating further, the Court held that if the charge-sheet is filed subsequent to the availing of the indefeasible right by the accused then that right would not stand frustrated or extinguished and, therefore, if an accused is entitled to be released on bail by application of the proviso to Sub-section (2) of Section 167 Cr.P.C., makes the application before the Magistrate, but the Magistrate erroneously refuses the same and rejects the application and then the accused moves the higher forum and while the matter remains pending before the higher forum for consideration a charge-sheet is filed, the so-called indefeasible right of the accused would not stand extinguished thereby, and on the other hand, the accused has to be released on bail. The Court further proceeded to say that such an accused, thus is entitled to be released on bail in enforcement of his indefeasible right will however, have to be produced before the Magistrate on a charge-sheet being filed in accordance with Section 209 and the Magistrate must deal with him in the matter of remand to 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 Court in the case of Mohd. Iqbal (supra). 28. In Union of India v. Hassan Ali Khan and another (2011) SCC 235, a two Judge Bench, while adverting to the submission of the learned counsel for the Union of India pertaining to the three Judge Bench decision in Uday Mohanlal Acharya (supra), has understood the said decision in the following manner: "25. Reference was also made to the decision of a three-Judge Bench of this Court in Uday Mohanlal Acharya v. State of Maharashtra wherein the scope of Section 167(2) Cr.P.C. and the proviso thereto fell for consideration and it was the majority view that an accused had an indefeasible right to be released on bail when the investigation is not completed within the specified period and that for availing of such right the accused was only required to file an application before the Magistrate seeking release on bail alleging that no challan had been filed within the period prescribed and if he was prepared to offer bail on being directed by the Magistrate, the Magistrate was under an obligation to dispose of the said application and even if in the meantime a charge-sheet had been filed, the right to statutory bail would not be affected. It was, however, clarified that if despite the direction to furnish bail, the accused failed to do so, his right to be released on bail would stand extinguished." 32. Thus, the aforesaid decision, as we find, has placed reliance on Uday Mohanlal Acharya's case and, therefore, the principle with regard to the time and manner of availability of the proviso appended to Sub-section (2) of Section 167 Cr.P.C. has been further crystallized." 10. In view of the law laid down in the case of Uday Mohanlal Acharya (supra) by the Hon'ble Apex Court which has also been further reiterated in the case of Sayed Mohd. In view of the law laid down in the case of Uday Mohanlal Acharya (supra) by the Hon'ble Apex Court which has also been further reiterated in the case of Sayed Mohd. Ahmad Kazmi vs. State (Government of NCT of Delhi) and others, reported in (2012) 12 SCC 1 and in the case of Nirala Yadav, (supra), the filing of the charge sheet soon after the accused was directed to be released on compulsive bail, cannot defeat the right of the accused to be released on bail. Hence, the impugned order dated 17.07.2015 passed by the learned Sessions Judge-cum-Special Judge, Nabarangpur in C.T. Case No. 61 of 2015 is set aside. The trial court is directed to accept the bail bond to be filed by the petitioner in pursuance of its order of release of the petitioner on bail. 11. With the aforesaid order, the CRLREV is disposed of. Issue urgent certified copy as per rules.