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2021 DIGILAW 87 (ORI)

Mayank Mishra v. State Of Orissa

2021-02-26

P.PATNAIK

body2021
JUDGMENT 1. Heard Mr. Amit Prasad Bose, learned counsel for the petitioners and Mr. P.K. Maharaj, learned Additional Standing Counsel for the State. 2. The petitioners, who are accused in T.R. Case No.45 of 2019 arising out of Jeypore Sadar P.S. Case No.119 of 2019 for commission of offence under Section 20(b)(ii)(C) of the N.D.P.S. Act, have prayed for releasing them on default bail in terms of Section 36-A(4) of the N.D.P.S. Act read with Section 167(2) of the Cr.P.C. 3. The case of the petitioners is that, on the allegation of transporting and possessing 467 Kg.500 grams of contraband ganja, they were arrested and taken to custody on 16.7.2019 in connection with Jeypore Sadar P.S. Case No.119 dated 15.7.2019 for commission of offences under Section 20(b)(ii)(C) of the N.D.P.S. Act. Pending investigation, they were remanded to custody on 16.7.2019 by order of the learned Sessions Judge-cum-Special Judge, Koraput-Jeypore in T.R. Case No.45 of 2019 and since then the petitioners are inside custody. The investigation continued and 180 days completed on 11.1.2020. On 9.1.2020, a petition was filed by prosecution praying for extension of a further period of 60 days for completion of investigation and submission of final report. On the same day, learned Sessions Judge-cum-Special Judge granted extension of 60 days to the prosecution for completion of investigation without giving any opportunity of hearing to the accused-petitioners. On 10.2.2020, chargesheet was filed by the prosecution against the petitioners and two other accused persons for the offences stated above and the cognizance has been taken for the offences on the same day by the learned Sessions Judge-cum-Special Judge. 4. The petitioners contend before this Court that remanding them in custody on 11.1.2020 is against the principles of law enumerated in Section 167(2) of the Cr.P.C. The learned counsel for the petitioners by relying on a decision of this Court reported in (2018)71 OCR-31, Lambodar Bag Vrs. State of Orissa, contends that before granting extension of time for completion of investigation beyond 180 days without granting any opportunity of hearing to the petitioners and even without intimating them of their rights for release on bail upon completion of 180 days is gross violation of law and thus, the order dated 9.1.2020 of the learned Sessions Judge-cum-Special Judge and subsequent remand of the petitioners into custody is illegal and liable to be set aside. It is thus prayed that the petitioners should be released on default bail as a matter of right guaranteed under the provisions contained in Section 167 (2) of the Cr.P.C. read with Section 36-A(4) of the N.D.P.S. Act. 5. Perusal of photocopy of the lower court record reveals that the petitioners have not prayed for his default bail before the learned Sessions Judge-cum-Special Judge as contended by them before this Court. 6. It is the settled law that right guaranteed under Section 167(2) to the accused are indefeasible. This Court, in the case of Labmbodar Bag (supra) after taking into consideration the principles decided in the case of Hitendra Vishnu Thakur Vrs. State of Maharashtra, reported in A.I.R. 1994 SC 2623 and various other decisions, have answered on five points relating to release of an accused in terms of Section 36-A (4) of the N.D.P.S. Act read with Section 167 (2) of the Cr.P.C. The answer is in affirmative in favour of the accused for their enlargement on bail for non-completion of investigation within the prescribed period of 180 days on different contingencies relating to extension of such period. It is observed inter alia by this Court at para-8 as follows: 'In the case in hand, when the petition was filed by the learned Addl. Special Public Prosecutor on 22.07.2017 for extending the period of investigation, no notice was issued to the petitioners on such petition to have their say in the matter. Even the filing of the petition was not brought to the notice of the counsels representing the petitioners. Since while considering such a petition, principles of natural justice was not followed and the petitioners were not given opportunity to oppose the extension on any legitimate and legal grounds available to them and even the trial Judge has not brought filing of such a petition to the notice of the counsels representing the petitioners, in view of the ratio laid down in case of Hitendra Vishnu Thakur (supra), I am of the view that the learned Trial Judge has committed illegality in granting extension for a further period of sixty days for completing investigation as per order dated 22.07.2017 which is against fair play in action and in my humble opinion, it has caused serious prejudice to the petitioners. Even though Subsection (4) of Section 36-A of the N.D.P.S. Act does not specifically provide for issuance of notice to the accused on the report of the Public Prosecutor before granting extension but it must be read into the provision both in the interest of the accused and the prosecution as well as for doing complete justice 12 between the parties and since there is no prohibition to the issuance of such a notice to the accused, no extension shall be granted by the Special Court without such notice. Moreover, report has to be filed by the Public Prosecutor in advance and not on the last day, so that on being noticed, the accused gets fair opportunity to have his say and oppose the extension sought for by the prosecution.' 6. In the said decision this Court has further held that, before granting extension of time to the prosecution, the obligation casts upon the Court to inform the accused of their right for release on bail. 8. Applying those principles as decided by this Court in the case of Lambodar Bag to the present facts of the case as narrated in the preceding paragraphs, it is felt that in the present case, the indefeasible right of the petitioners for their release on default bail has been violated. It is evinced from the orders dated 9.1.2020 and 10.2.2020 that the accusedpetitioners have not been given any opportunity of hearing to lead their legitimate objections nor they have been informed their right of default bail before granting extension of 30 days to the prosecution. 9. It is also held in the case of Lambodar Bag(supra) that, even the accused have not applied for their release on default bail, still their entitlement for bail on account of nonsubmission of prosecution report would not be affected. 9. It is also held in the case of Lambodar Bag(supra) that, even the accused have not applied for their release on default bail, still their entitlement for bail on account of nonsubmission of prosecution report would not be affected. The relevant observations of this Court are reproduced below:- 'xx xx xx Keeping in view that ratio laid down in the aforesaid decisions and coming to the case in hand, I am of the humble view that even though the petitioners have not applied for bail during the default period when prosecution report was not filed even after extended period for completion of investigation as was 28 granted by the learned Trial Judge but since the learned trial Judge has not informed the petitioners of their right being released on bail on account of nonsubmission of prosecution report, no fault can be found with the petitioners for not making such application for bail during the default period. Had the learned trial Judge informed the petitioners of their right and the petitioners on being so informed, failed to file an application for release on bail on account of the default by the investigating agency in the completion of investigation within the extended period, after the prosecution report is filed, they would have lost their valuable right. In the factual scenario, the petitioners cannot be stated to have voluntarily given up their indefeasible right for default bail. 9. Even though the petitioners have not applied for bail before the learned Trial Judge on the ground of not being noticed to have their say on the invalid petition filed by the Addl. Public Prosecutor on 22.07.2017 but on some other grounds, they are not debarred from taking such ground before this Court. As held in case of Rakesh Kumar Paul, in the matter of personal liberty, the Court should not be too technical and must lean in favour of personal liberty. An application for bail in the High Court is not an application for review of the order of the Court below. 29 Grounds not taken in the Court below can be taken in the bail petition in the higher Court and even non-taking of grounds in the bail petition will not deprive the counsel for the accused in raising such grounds during hearing of the bail application. 29 Grounds not taken in the Court below can be taken in the bail petition in the higher Court and even non-taking of grounds in the bail petition will not deprive the counsel for the accused in raising such grounds during hearing of the bail application. Even if a ground for grant of bail is not taken in the bail petition and not argued by the counsel for the accused, the Court is not deprived of releasing the accused on bail on such ground if it is legally sustainable. Strict rules of pleadings are not applicable in bail petition.' 10. Thus, in consideration of all the facts, the order dated 9.1.2020 of the learned Sessions Judge-cum-Special Judge to the extent granting extension to the prosecution for completion of investigation is set aside. Resultantly, it is directed to release the petitioners on bail in the aforesaid case on furnishing bail bond of Rs.1,00,000/-(one lakh) each with two sureties each for the like amount to the satisfaction of the Court in seisin over the matter with further condition that the petitioners shall attend the learned trial court on each date fixed. Further, the court below is at liberty to fix any other condition in addition to the above as it deems fit and proper. It is further made clear that violation of any such condition shall entail cancellation of bail. The CRLMC is accordingly allowed. Urgent certified copy of this order be granted on proper application.