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2019 DIGILAW 395 (ORI)

Pandia Gouda v. State of Odisha

2019-05-17

S.PUJAHARI

body2019
JUDGMENT : S. PUJAHARI, J. 1. Heard, the learned counsel for the petitioner and the learned counsel for the State. 2. The petitioner, in this case having been denied to avail of the benefit of grant default bail under Section 167(2) of Cr.P.C. vide order dated 02.01.2019 passed by the learned Special Judge-cum-2 nd Additional Sessions Judge, Berhampur in G.R. Case No.86 of 2018 arising out of Buguda P.S. Case No.204 of 2018, though according to him, charge sheet was not filed on the 120th day but was filed on the 121st day after filing of the bail application, challenged the said order to be illegal. Therefore, he is entitled to bail under Section 167(2) of Cr.P.C. by setting aside the impugned order. 3. It appears that the learned Special Judge-cum-2nd Additional Sessions Judge, Berhampur, taking note of the law laid down in the case of N. Sureya Reddy v. State of Orissa, (1985) 1 OrissaLR 105, wherein it has been held that when 90th day, which is 120 days in Odisha vide an amendment presented, which is a day for filing of the charge sheet is a holiday, on the next day if the charge sheet is filed, the same should be treated as sufficient compliance and in this case as 120th day was holiday, the charge sheet was filed on the next working day, there was no default on the part of the prosecution for filing of charge sheet on 120th day and as such, the petitioner in view of the ratio laid down in the case of N. Sureya Reddy (supra) was not entitled to bail under Section 167(2) of Cr.P.C. 4. Learned counsel appearing for the petitioner submits that such view of the learned Judge has no sanction of law inasmuch as this Court in the case of Ada alias Adeita Behera v. State, 1996 10 OCR has already held that the decision of this Court in the case of N. Sureya Reddy (supra) has been impliedly overruled by Hon'ble the Supreme Court in the case of Dhaganti Satyanarayana and others v. State of Andhra Pradesh, (1986) AIR SC 2130; and in the case of Central Bureau of Investigation, Special Investigation Cell-I, New Delhi v. Anupam J. Kulkarni, (1992) AIR SC 1768; so also the decision rendered in the case of Sate of M.P. v. Rustam and others, (1996) 11 OCR 167 (SC) wherein it has been stated that either the date of remand or date of charge sheet has to be excluded in computation of the period under Section 167(2) of Cr.P.C. invoking the provision of General Clauses Act, has also not been accepted by this Court taking note of another later Bench decision of a Bench co-equal strength of the Apex Court and also this Court in the cases of Ada alias Adeita Behera (supra) and Jubraj Bariha v. State of Orissa,2000 19 OCR 372. 5. This Court, in the case of Binod Kumar Nanda v. State of Orissa,2004 27 OCR 755, relying on the aforesaid law laid down in the case of Jubraj Bariha (supra) wherein placing reliance on the cases of Rustam (supra) and State through C.B.I. v. Mohd. Ashraft Bhat and another, (1996) 10 OCR 329 (SC); and Ada alias Adeita Behera (supra) have held that the date of remand is to be included in computing the period of detention as prescribed under Section 167(2) of the Cr.P.C. 6. In view of the aforesaid, when the right had already accrued to the petitioner on the 121st day of his detention of remand by the time he has filed the petition and no charge sheet was filed and the same was filed later, there was no apparent reason on the part of the learned Judge to refuse him to grant bail, submits the learned counsel for the petitioner. As such, learned counsel for the petitioner submits to set aside the impugned order and direct the court below to release the petitioner on bail. 7. As such, learned counsel for the petitioner submits to set aside the impugned order and direct the court below to release the petitioner on bail. 7. However, learned counsel for the State submits that since the petitioner has been indicted in heinous and serious offences committed under Sections 450/376(2)(i) of I.P.C. read with Section 6 of the POCSO Act and on the 121st day itself charge sheet was filed before consideration of the prayer for bail of the petitioner and also the day of remand is to be excluded, in view of the law laid down in the case of Rustam (supra), the petitioner has made out no case for his release on bail. So far as the law laid down in the case of Jubraj Bariha (supra) is concerned, in view of the a decision of the constitution Bench of the Supreme Court in the case of Central Board of Dawoodi Bohra Community and another v. State of Maharashtra and another, (2005) AIR SC 752 on the law precedent, it having been held that "the law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or co-equal strength", the case of Rustam (supra), therefore, can be said to be the law inasmuch as the law laid down in the case of Jubraj Bariha (supra) with regard to precedent can be said to have been impliedly overruled. Therefore, the petitioner has made out no case for bail. 8. It is true that in the case of N. Sureya Reddy (supra), this Court has held that Section 10 of the General Clauses Act is made applicable for extension of the period of filing of charge sheet and on the day of filing of charge sheet, if it is a holiday of the court and charge sheet under Section 167(2) of Cr.P.C. is filed on the next working day, the same is sufficient compliance, but this Court, in the case of Ada alias Adeita Behera (supra), has held that the same has already been impliedly overruled by subsequent decision of the Apex Court. 9. 9. In the case of Dhaganti Satyanarayana and others, (1986) AIR SC 2130 the Apex Court have held at paragraph-30 as follows:- "As the terms of proviso (a) with reference to the total periods of detention can be interpreted on the plain language of the proviso itself we do not think it is necessary to invoke the provisions of the General Clauses Act or seek guidance from the Limitation Act to construe the terms of the proviso." 10. In the case of Central Bureau of Investigation, Special Investigation Cell-I, New Delhi v. Anupam J. Kulkarni, (1992) AIR SC 1768 the Apex Court again held that the period of fifteen days in Section 167 of Cr.P.C. starts running as soon as the accused is produced before the Magistrate. Placing reliance on the aforesaid two decisions, this Court in the case of Ada alias Adeita Behera (supra) have held that the period has to be calculated from and including the day of remand by the Magistrate under Section 167 of Cr.P.C. and in view of the same, the case of N. Sureya Reddy (supra) has been impliedly overruled. However, the learned Judge in oblivious to the same placed reliance on the ratio of the case of N. Sureya Reddy (supra) which has since been held to have been impliedly overruled by this Court, for rejection of the prayer. 11. Furthermore, so far as the ratio in the case of Rustam (supra) is concerned, therein it has also been held that either the day of remand or the day of filing of final form has to be excluded taking resort to General Clauses Act in computation of the period of completion of investigation under Section 167(2) of Cr.P.C. and this Court taking note of a later Bench decision of the Apex Court in the case of Mohd. Ashraft Bhat (supra) though have held in the case of Jubraj Bariha (supra), for computation of the period under Section 167(2) of Cr.P.C., the date of remand is to be included and thereby the General Clauses Act is held not applicable. The said ratio of Jubraj Bariha (supra) can be said to have been impliedly overruled in view of the ratio laid down in the case of Central Board of Dawoodi Bohra Community (supra) as the law precedent. The said ratio of Jubraj Bariha (supra) can be said to have been impliedly overruled in view of the ratio laid down in the case of Central Board of Dawoodi Bohra Community (supra) as the law precedent. Therefore, placing reliance in the case of Rustam (supra), it can very well be said that the charge sheet filed within the period stipulated and as such, no right had accrued under Section 167(2) of Cr.P.C. to the petitioner for default bail, as submitted by the learned counsel for the State. However, such contention of the learned counsel for the petitioner is without any substance for the reasons that prior to the case of Rustam (supra), a Bench of co-equal strength of the Apex Court in the case of Dhaganti Satyanarayana (supra) and Central Bureau of Investigation, Special Investigation Cell-I, New Delhi (supra) have held that General Clauses Act cannot come into play for computation of the period under Section 167 of Cr.P.C.. So, law of precedent, therefore, is also in favour of the petitioner notwithstanding the ratio laid down in the case of Jubraj Bariha (supra) has since been impliedly overruled vide the ratio laid down in the case of Central Board of Dawoodi Bohra Community (supra) on precedent of a judicial decisions. The petitioner, therefore, having availed of his right that has accrued on the expiry of 121st day before filing of the charge sheet by filing the application, even if the charge sheet thereafter was filed later on the same day, and before disposal of his application, the same cannot defeat his indefeasible right for being released on bail in any manner. Reliance in this regard can be placed in the decision of Union of India through C.B.I. v. Nirala Yadav @ Raja Ram Yadav @ Deepak Yadav, (2014) 59 OCR 226 (SC) wherein the decision rendered by the Apex Court in this regard in the case of Uday Mohanlal Acharya v. State of Maharashtra, (2001) 5 SCC 453 has been affirmed. 12. The heinousness and seriousness of the offence has got nothing to do for grant of default bail that has accrued under Section 167(2) of Cr.P.C. of an accused. Therefore, the contention of the learned counsel for the State to defend the order of rejection of bail on that ground must fail. Accordingly, the order of the learned trial court impugned here in this case is indefensible. 13. Therefore, the contention of the learned counsel for the State to defend the order of rejection of bail on that ground must fail. Accordingly, the order of the learned trial court impugned here in this case is indefensible. 13. Hence, this Criminal Misc. Case stands disposed of being allowed with a direction to the trial court to release the petitioner on bail under Section 167(2) of Cr.P.C. on such terms and conditions as it deem just and proper.