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2018 DIGILAW 702 (ORI)

Bhabagrahi Patra v. State of Orissa

2018-07-31

J.P.DAS

body2018
JUDGMENT J.P.DAS, J. - This application has been filed assailing the order dated 09.04.2018 passed by the learned Sessions Judge-cum-Special Judge, Bolangir in 2 (a) C.C. Case No.10 of 2017 rejecting the application filed by the petitioner to be released on bail under Section 167 (2) of the Criminal Procedure Code (in short ‘the Cr.P.C.’) read with Section 36 (A) of the N.D.P.S. Act. 2. The petitioner is an accused in the aforesaid case for the offence punishable under Section 20 (b) (ii) (C) of the N.D.P.S. Act with the allegation of unauthorized possession of 46 Kgs. of contraband Ganja. Since the charge-sheet was not submitted despite completion of 180 days from the date of arrest of the petitioner, he moved an application before the learned trial court to be released on bail as per provisions under Section 167 (2) of the Cr.P.C. read with Section 36 (A) (4) of the N.D.P.S. Act. Learned trial court rejected his application by the impugned order by observing that one application was filed by the concerned Public Prosecutor seeking extension of time for submission of charge-sheet. 3. It was submitted by learned Counsel on behalf of the petitioner in the present application that the petitioner was arrested on 8.10.2017 and 180 days were completed on 06.04.2018. He moved the application on 09.04.2018. It was submitted that the observation made by the learned trial Court that the concerned Public Prosecutor has moved an application for extension of time was not correct. It was submitted that after filing of the application by the present petitioner on 09.04.2018, in order to save the face of the prosecution, the Public Prosecutor filed an application on the same day mentioning that the concerned Investigating Officer had met with an accident while on duty and was bed-ridden for two and half of months for which the investigation could not be progressed so as to submit the prosecution report within the stipulated time of 180 days. It was further mentioned in the petition that the concerned Investigating Officer joined his duty on 07.04.2018 and hence, one month time was prayed for to complete the investigation. On the submissions made on behalf of the petitioner, learned trial court was asked to submit the copy of the application made by the Public prosecutor, which has been submitted and is on record. 4. On the submissions made on behalf of the petitioner, learned trial court was asked to submit the copy of the application made by the Public prosecutor, which has been submitted and is on record. 4. It was submitted on behalf of the petitioner that by the time the petitioner filed his application, there was no application or petition filed by the Public Prosecutor for extension of time. It was further submitted that as per mandates of law, the Public Prosecutor, after application of his mind to the submission made by the Investigating Officer, must indicate the progress of the investigation, and the compelling reasons for seeking the detention of the accused beyond the period of 180 days. But in this case, the application filed by the Public Prosecutor did not mention about the progress of the investigation, nor did it mention the compelling reasons to keep the accused in detention beyond the period of 180 days except mentioning that the prosecution report could not be submitted since the Investigating Officer met with an accident and was bed-ridden. Thus, it was submitted that no reason was assigned by the Public Prosecutor justifying the further detention of the accused in custody. 5. The position of law as submitted on behalf of the petitioner is well recognized. The petitioner has filed the certified copy of the order-sheet of the learned trial court of the date 09.04.2018. It is seen therefrom that the learned counsel for the accused persons filed a petition to enlarge the petitioner-accused on bail on the ground stated therein. Copies of the said petitions were served on the Public Prosecutor and thereafter, it was directed to put up the file later for hearing of the bail application. There was no mention about any application filed by the Public Prosecutor by then. On the same day at a later stage, the application was filed by the Public Prosecutor wherein in the very 1st. Paragraph it has been mentioned that the accused persons have filed a petition praying to enlarge them on bail on the ground stated therein. This goes to show that the application was filed by the Public Prosecutor subsequent to the application filed on behalf of the petitioner. Paragraph it has been mentioned that the accused persons have filed a petition praying to enlarge them on bail on the ground stated therein. This goes to show that the application was filed by the Public Prosecutor subsequent to the application filed on behalf of the petitioner. It is the mandate of law that if the prosecution report is not submitted within 180 days, a statutory right accrues in favour of the accused to be released on bail, unless extension of time for submission of charge-sheet, mentioning the compelling reasons to keep the accused persons in custody, is prayed for by the Public Prosecutor before the learned trial court. 6. In this case, as detailed above, the prosecution report was not submitted even on 183rd day. When the accused persons moved the application for bail, there was no application filed by the Public Prosecutor seeking further detention of the accused persons. Lastly, there is absolutely no mention as to the progress of investigation or the compelling reasons to keep the accused in custody. Mere incapacity of the Investigating Officer due to his personal illness to submit the prosecution report in time can never be said to be the compelling reasons to keep the accused behind the bars. 7. As per the settled position of law, (Hitendra Vishnu’s case) reported in A.I.R. 1974 (S.C.) 2623, the use of expression of submission of the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the specific period is important and indicative of the legislative intent not to keep the accused in custody unreasonably and to grant extension of time only on the report of the Public Prosecutor. It was further observed by the Hon’ble Apex Court that the report of the Public Prosecutor, therefore, is not merely a formality but a very vital report because, the consequence of its acceptance affects the liberty of an accused. As found out in the case at hand, there was not even any report submitted by the Public Prosecutor seeking extension of time by the time the application for bail was filed by the accused persons. As found out in the case at hand, there was not even any report submitted by the Public Prosecutor seeking extension of time by the time the application for bail was filed by the accused persons. Hence, a valuable right had already accrued in favour of the accused persons to be released on bail and it could not have been denied by taking into consideration an application subsequently filed by the Public Prosecutor according to the requirement of the law. 8. Accordingly, it is directed that the impugned order dated 09.04.2018 passed by the learned Sessions Judge-cum-Special Judge, Bolangir in 2 (a) C.C. Case No.10 of 2017 is set aside and it is further directed that in this case, the petitioner be released on bail on such terms and conditions as deemed just and proper by the said court. The Criminal Revision is disposed of accordingly. Revision disposed of.