Bechu Sekh vs The State Of West Bengal
2021 Latest Caselaw 5354 Cal

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                   IN THE HIGH COURT AT CALCUTTA
                CRIMINAL MISCELLANEOUS JURISDICTION
                          APPELLATE SIDE

     Present:

     THE HON'BLE JUSTICE HARISH TANDON

                   &
     THE HON'BLE JUSTICE BIBEK CHAUDHURI


                         C.R.M. 3526 of 2021

                            Bechu Sekh
                                 Vs.
                      The State of West Bengal


                                                 Mr. Md. Khairul, Adv.
                                                  For the Petititioner

                                        Mr. Neguine Ahmed, Ld. App.
                                             Mr. Anwar Hossain, Adv.
                                                 Ms. Anita Gaur, Adv.
                                                        For the State



     Judgment On : 5.10.2021

    Harish Tandon, J.:

    Recently, a practice has developed at the Bar in arguing the case

taking upon which is neither pleaded nor could be ascertained from the

statement of facts narrated in the petition for bail. The purpose and

object of a pleading has been given a go-by and it becomes difficult for

the Court when a new point is taken for foundation whereof, is

conspicuously absent in the pleading. The importance of pleading has

been whittled down considerably and the facts which are narrated in the
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petition is completely different than the point which is agitated at the

time of the hearing of the said application. Ordinarily, the Court should

not travel beyond the pleading and confine its consideration within the

four corners thereof and the reliefs claimed therein. It is more disturbing

when a new point is taken which cannot be ascertained from the

meaningful reading of the pleadings and inviting the Court to determine

the same. This is one of the example where there is no pleading laying

foundation for the point agitated at the time of hearing of the instant

application and the judgments of the Supreme Court rendered on such

point are cited as the case involves such points. There must be a sense of

responsibility to be inculcated in the filing lawyer that the point which is

projected at the time of an argument must have a foundation in the

pleading as the court shall not be taken surprise nor the other side

should be put in the same position. The aforesaid course of action

augments the delayed disposal of the case as the other side seeks

adjournment to consider such point in order to get prepared to meet

such argument the importance of pleading has gradually diminished

which we experienced in the recent past more particularly, when a Senior

Counsels are engaged who thought it fit that the clinching issue is

something else than what has been pleaded in the application. We could

have dismissed the application for the lack of a requisite pleading but the

point, which is projected before us being a pure question of law, we
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permitted the Counsel to argue such point and also provided reasonable

time to the other side to prepare and meet such point on the next day.

    The point is based upon the record more particularly, the order

passed by the Special Judge under NDPS Act and the High Court being

the court of record, we permitted the certified copy of the order-sheet to

be produced to ascertain the veracity of the facts argued by the learned

Senior Advocate appearing for the petitioner. The certified copy of the

entire order-sheet has been filed and the case needs to be considered on

the basis thereof. Since it is a pure question of law based on the record,

we decided to dilute the rigour of the importance of the pleading bearing

in mind the Constitutional right of an individual towards the personal

liberty enshrined under Article 21 of the Constitution of India.

      Before we proceed to deal with the points urged before us by the

learned Senior Advocate for the petitioner the facts pleaded in the instant

application are required to be adumbrated as under:

      The petitioner was apprehended on 28.8.2019 at about 16.40 Hrs

having possessed 332.380 grams of contraband drug supposed to be

Heroine as he could not offer a sufficient explanation for such

possession. The FIR being no. 56 dated 28.8.2019 was registered under

Section 21(c) of the Narcotic Drugs and Psychotropic Substances Act,

1985 in the North Port Police Station, Kolkata. The gist of the FIR is that

upon receiving an information from a credible source that a notorious

narcotic drug seller would come to sell the narcotic drug in the vicinity of
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the Armenian Ghat under the aforesaid police station, the raiding team

was formed and upon reducing the same into writing and taking the

permission of the Assistant Commissioner (one of the port division) to

conduct the raid. They left for the spot and intercepted the petitioner

who was holding a black colour polythene pack in his right hand and the

search was made upon following the procedures required under the said

Act and on the spot examination of the substance it was found to be a

contraband (Heroine) and the seizure was made in presence of two

independent witnesses. It is further indicated that the provision under

Section 50 of the Cr.P.C has been duly complied with and the witnesses

and the gazetted officers were examined on the spot under Section 161 of

the Cr.P.C. It is stated in the said application that the arrest was made

without maintaining the formalities required in this regard and in order

to entangle the petitioner in a frivolous case, the recovery has been

allegedly shown from the possession of the petitioner. It is further stated

that the petitioner is languishing in jail for nearly 600 days and suffering

from various ailments which would be corroborated by the fact he was

admitted in the hospital by the authority of the correctional home and

the physical condition is not improving as yet. It is further indicated that

the investigating agency has not followed the mandate provided under

Section 50 of the NDPS Act and, therefore, the petitioner is entitled to be

released on bail.
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      That was the sum and substance of the facts pleaded in the said

application. However, at the time of moving the instant application, a

point is raised that the charge-sheet was not filed within the stipulated

time which creates an indefeasible right into the petitioner to be released

on bail. To be more precise, it is urged by the learned Senior Advocate for

the petitioner that if the prosecution fails to submit the charge-sheet

within the stipulated time under Section 36A of the NDPS Act or the

extended time, an indefeasible right accrued to the accused to be

released on default bail.

      As indicated above, there is no whisper in the application in this

regard but since the point strikes at the root of the right of an accused to

get a default bail to be decided on the basis of the record, we directed the

certified copy of the order-sheet to be filed before us which in fact has

been done. It is beyond cavil of doubt that Section 57 of the Cr.P.C

requires the investigation to be completed within 24 hours but Section

167(2) of the Code contemplates that where the investigation cannot be

completed within the time indicated in Section 57 thereof and there being

a reasonable ground for belief that the acquisition of the information is

well founded, the accused shall forthwith be transmitted to a nearest

Judicial Magistrate along with a copy of the entries in the diary and if the

same is complied with the Magistrate may authorise the detention of the

accused in such custody for a term not exceeding 15 days in a whole.

However, the proviso inserted thereto expanded the investigation period
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depending upon the nature of the offences. Section 36A(4) of the NDPS

Act extends the period of 90 days to 180 days for submission of the

charge-sheet which may further be extended by the Special Court upon

recording a specific reason therefor with a outer gap of one year. From

the harmonious reading of the aforesaid provision though the period of

filing the charge-sheet is extended but the right to get a default bail is

unaffected and/or untouched in the event the charge-sheet is not filed

within the stipulated time indicated therein provided the accused is

prepared to and does furnish the bail. However, explanation I to Section

167(2) creates a fetter that if the accused does not furnish bail he shall

remain in detention despite the expiry of the statutory period provided

for submission of the charge-sheet. Therefore, the condition precedent

enshrined in the said statutory provision leaves no ambiguity that the

moment a charge-sheet is not filed within 180 days or the extended

period not exceeding one year on the report of the Public Prosecutor

being filed indicating the progress of the investigation and the specific

reasons for detention, indefeasible right accrued to the accused to be

released on bail.

      In Union of India Vs. Nirala Yadav reported in 2014 (9) SCC

457, the primary question which was involved therein was whether the

court can keep the application for bail pending having filed before the

submission of the charge-sheet and subsequently reject the same as in

the mean time the charge-sheet has been submitted.
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      An argument was advanced that the right of an accused to get a

default bail is indefeasible after the date of the filing of the challan and

perishes the moment the same is filed. The court notice the various

judgments rendered in this case and ultimately held:

      "47. Coming to the facts of the instant case, we find that

prior to the date of expiry of 90 days which is the initial period for

filing the charge-sheet, the prosecution neither had filed the

charge-sheet nor had it filed an application for extension. Had an

application for extension been filed, then the matter would have

been totally different. After the respondent-accused filed the

application, the prosecution submitted an application seeking

extension of time for filing of the charge-sheet. Mr. P.K. Dey,

learned counsel for the appellant would submit that the same is

permissible in view of the decision in Bipin Shantilal Panchal but

on a studied scrutiny of the same we find that the said decision

only dealt with whether extension could be sought from time to

time till the completion of period as provided in the statute i.e. 180

days. It did not address the issue what could the effect of not filing

an application for extension prior to expiry of the period because

in the factual matrix it was not necessary to do so. In the instant

case, the day the accused filed the application for benefit of the

default provision as engrafted under proviso to sub-section (2) of

Section 167 CrPC the Court required the accused to file a rejoinder-

affidavit by the time the initial period provided under the statute

had expired. There was no question of any contest as if the

application for extension had been filed prior to the expiry of time.

The adjournment by the learned Magistrate was misconceived. He

was obliged on that day to deal with the application filed by the

accused as required under Section 167 (2) CrPC. We have no

hesitation in saying that such procrastination frustrates the

legislative mandate. A court cannot act to extinguish the right of

an accused if the law so confers on him. Law has to prevail. The

prosecution cannot avail such subterfuges to frustrate or destroy

the legal right of the accused. Such an act is not permissible. If we

permit ourselves to say so, the prosecution exhibited sheer

negligence in not filing the application within the time which it

was entitled to do so in law but made all adroit attempts to redeem

the cause by its conduct."

In case of Achpal alias Ramswaroop & Anr. vs State of

Rajasthan reported in AIR 2018 Supreme Court, 4647 the Apex Court

took note of the law enunciated in Nirala Yadav (Supra) and held that

the moment the statutory period for submission of the charge-sheet has

expired and before the extension could be sought, an indefeasible right

accrues in favour of the accused for being released on bail subject to the

condition that he is prepared to and furnishes the bail in these words:

"11. The principles laid down in Uday Mohanlal Acharya (AIR

2001 SC 1910) (supra) have been consistently followed by this

Court namely in State of W.B. v. Dinesh Dalmia; Sanjay Kumar

Kedia v. Inteligence Officer, Narcotics Control Bureau and Another;

Union of India v. Nirala Yadav and in Ranbeer Shokeen v. State

(NCT of Delhi). It must therefore be taken to be well settled that in

terms of 3rd conclusion as recorded in Uday Mohanlal Acharya

(supra), on the expiry of the period stipulated, an indefeasible right

accrues in favour of the accused for being released on bail on

account of default by the investigating agency in the ...pletion of

the investigation within the period stipulated and the accused is

entitled to be released on bail, if he is prepared to and furnishes

the bail as directed by the Magistrate.

The Supreme Court further notice the genesis behind the

incorporation of Section 167 of the CrPC and held that the purpose

behind incorporation limiting the time limit with which the investigation

is required to be completed. It has further affected on the personal liberty

enshrined under Article 21 of the Constitution of India and therefore,

once the prosecution fails to file the charge-sheet within the time limit

therein right accrued to the accused to be released on bail. It would be

apposite to quote the relevant excerpts from the said judgment which

runs thus:

"17. The provision has a definite purpose in that; on the basis

of the material relating to investigation, the Magistrate ought to be

in a position to proceed with the matter. It is thus clearly

indicated that the stage of investigation ought to be confined to 90

or 60 days, as the case may be, and thereafter the issue relating to

the custody of the accused ought to be dealt with by the Magistrate

on the basis of the investigation. Matters and issues relating to

liberty and whether the person accused of a charge ought to be

confined or not, must be decided by the Magistrate and not by the

Police. The further custody of such person ought not to be guided

by mere suspicion that he may have committed an offence or for

that matter, to facilitate pending investigation.

19. We must at this stage note an important feature. In

Rakesh Kumar Paul (AIR 2017 SC 3948) (supra), in his conclusions,

Madan B. Lokur, J. observed in para 49 as under:

"49. The petitioner is held entitled to the grant of

"default bail" on the facts and in the circumstances of this

case. The trial Judge should release the petitioner on

"default bail" on such terms and conditions as may be

reasonable. However, we make it clear that this does not

prohibit or otherwise prevent the arrest or re-arrest of the

petitioner on cogent grounds in respect of the subject charge

and upon arrest or re-arrest, the petitioner is entitled to

petition for grant of regular bail which application should be

considered on its own merit. We also make it clear that this

will not impact on the arrest of the petitioner in any other

case."

In his concurring judgment, Deepak Gupta, J. agreed

with conclusions drawn and directions given by Madan B.

Lokur, J. in paragraphs 49 to 51 of his judgment. According

to the aforesaid conclusions, it would not prohibit or

otherwise prevent the arrest or re-arrest of the accused on

cogent grounds in respect of the charge in question and upon

arrest or re-arrest the accused would be entitled to petition

for grant of regular bail which application would then be

considered on its own merit."

In case of M. Rabindran vs Intelligence Officer, Director of

Revenue Intelligence reported in 2020 SCC Online SC 867 the

identical issue was raised and various judgments of the Supreme Court

rendered in this regard were considered. The primary question which

was raised therein is whether in the grab of an indefeasible right to get a

default bail the court is left with no other option but to suo motu grant

bail to the accused in the event the charge-sheet is not submitted within

the statutory period. To answer the aforesaid question, the Apex Court

arrived at the following conclusion:

"43. Having considered both opinions, we have arrived at the

conclusion that the majority opinion in Uday Mohanlal Acharya

(supra) is the correct interpretation of the decision rendered by the

Constitution Bench in Sanjay Dutt (supra). The decision in Snjay

Dutt merely casts a positive corresponding obligation upon the

accused to promptly apply for default bail as soon as the

prescribed period of investigation expires. As the decision in

Hitendra Vishnu Thakur (supra) expressly cautious, the Court

cannot suo motu grant bail without considering whether the

accused is ready to furnish bail or not. This is an in-built

safeguard within Section 167(2) to ensure that the accused is not

automatically released from custody without obtaining the

satisfaction of the Court that he is able to guarantee his presence

for further investigation, or for trial, as the case may be. Further,

as the majority opinion in Rakesh Kumar Paul (supra) pointed out,

there could be rare occasions where the accused voluntarily

forfeits his right to bail on account of threat to his personal

security outside of remand or for some other reasons. The decision

in Sanjay Dutt clarifies that once a chargesheet is filed, such

waiver of the right by the accused becomes final and Section 167

(2) ceases to apply.

44. However, the Constitution Bench decision in Sanjay Dutt

cannot be interpreted so as to mean that even where the accused

has promptly exercised his right under Section 167(20 and

indicated his willingness to furnish bail, he can be denied bail on

account of delay in deciding his application or erroneous rejection

of the same. Nor can he be kept detained in custody on account of

subterfuge of the prosecution in filing a police report or additional

complaint on the same day that the bail application is filed.

45. The arguments of the State that the expression "availed

of" would only mean actual release after furnishing the necessary

bail would cause grave injustice to the accused and would defeat

the very purpose of the Proviso to Section 167(2), CrPC. If the

arguments of Mr. Lekhi are accepted, there will be many instances

where the Public Prosecutor might prolong the hearing of the

application for bail so as to facilitate the State to file an

additional complaint or investigation report before the Court

during the interregnum. In some cases, the Court may also delay

the process for one reason or the other. In such an event, the

indefeasible right of the accused to get the order of bail in his

favour would be defeated. This could not have been the intention of

the legislature. If such a practice is permitted, the same would

amount to deeming illegal custody as legal. After the expiry of the

stipulated period, the Court has no further jurisdiction to remand

the accused to custody. The prosecution would not be allowed to

take advantage of its own default of not filing the investigation

report/complaint against the appellant within the stipulated

period.

48. We agree with the view expressed in Rakesh kumar Paul

(supra) that as a cautionary measure, the counsel for the accused

as well as the magistrate ought to inform the accused of the

availability of the indefeasible right under Section 167(2) once it

accrues to him, without any delay. This is especially where the

accused is form an underprivileged section of society and is

unlikely to have access to information about his legal rights. Such

knowledge-sharing by magistrates will thwart any dilatory tactics

by the prosecution and also ensure that the obligations spelled out

under Article 21 of the Constitution and the Statement of Objects

and Reasons of the CrPC are upheld."

Ultimately the Apex Court held:

"78. Therefore, in conclusion:

78.1 Once the accused files an application for bail

under the proviso to Section 167(2) he is deemed to have 'availed

of' or enforced his right to be released on default bail, accruing

after expiry of the stipulated time limit for investigation. Thus, if

the accused applies for bail under Section 167(2), CrPC read with

Section 36A (4), NDPS Act upon expiry of 180 days or the extended

period, as the case may be, the Court must release him on bail

forthwith without any unnecessary delay after getting necessary

information from the public prosecutor, as mentioned supra. Such

prompt action will restrict the prosecution from frustrating the

legislative mandate to release the accused on bail in case of

default by the investigative agency.

78.2 The right to be released on default bail continues to

remain enforceable if the accused has applied for such bail,

notwithstanding pendency of the bail application; or subsequent

filing of the chargesheet or a report seeking extension of time by

the prosecution before the Court; or filing of the chargesheet

during the interregnum when challenge to the rejection of the bail

application is pending before a higher court.

78.3 However, where the accused fails to apply for default

bail when the right accrues to him, and subsequently a

chargesheet, additional complaint or a report seeking extension of

time is preferred before the Magistrate, the right to default bail

would be extinguished. The Magistrate would be at liberty to take

congizance of the case or grant further time for completion of the

investigation, as the case may be, though the accused may still be

released on bail under other provisionsof the CrPC.

78.4 Notwithstanding the order of default bail passed by the

Court, by virtue of Explanation I to Section 167(2), the actual

release of the accused from custody is contingent on the directions

passed by the competent Court granting bail. If the accused fails to

furnish bail and/or comply with the terms and conditions of the

bail order within the time stipulated by the Court, his continued

detention in custody is valid.

On the basis of the law so enunciated in the above referred

decisions the moment an application for bail is filed immediately upon

the expiration of the statutory period and in absence of the charge-sheet

having filed by the prosecution, such right is an indefeasible right

circumscribed by the conditions that he is prepared to and furnished the

bond. The Court cannot keep the application for bail pending and invite

the prosecution to file the charge-sheet in the mean time or an

application seeking extension of time and accept the charge-sheet or

extend the time to file the charge-sheet to subterfuge the indefeasible

right accrued to the applicant. However, such indefeasible right cannot

be construed to mean that the Court will immediately release the

accused on bail suo motu. It is imperative on the Court to inform the

accused of such right or the accused has to assert such right

immediately upon the expiration of the statutory period. If such right is

not exercised by the accused and in the meantime the charge-sheet is

filed or the time is extended subsequent filing of an application for bail

cannot be regarded as an exercise of an indefeasible right.

On the conspectus of the aforesaid law having propounded we

ventured to consider the facts involved in the instant case. The orders

passed in the instant case would reveal that petitioner was apprehended

on 28.8.2009 and was produced before the Special Judge under the

NDPS Act on 29.8.2019 and on the prayer of the investigating officer he

was remanded till 12.9.2019. On the said returnable date the remand

was extended till 26.9.2019 which was further extended till 2nd

November, 2019 even on that day the remand was extended till

16.11.2019 and in the meantime the order came to be passed for

direction upon for sending the sample to the Director of Forensic Science

for chemical examination. On 29.11.2019 the petitioner filed an

application seeking direction upon the superintendent of the correctional

home to extend the proper medical treatment to the petitioner which was

allowed by the Court and the next date was fixed on 13.12.2019. Even on

the said date the remand was extended and the order came to be passed

in the meantime extending such remand till 24.2.2020. However, the

case was taken up on 20th February, 2020 on the basis of an application

filed by the prosecution seeking extension of time to submit the charge-

sheet which was allowed by extending the same for a period of 30 days

therefrom. On the date so fixed i.e. 24.2.2020, an application for bail was

filed by the petitioner on the ground that he is in custody for a period of

181 days since the charge-sheet has not been submitted he is entitled to

be released on bail. The application for bail was rejected without

recording the fact that the time was extended for a period of 30 days on

28th of February, 2020. The matter was thereafter listed on 7th of March,

2020 and another application for bail was filed by the petitioner which

was kept on record and the hearing date was fixed on 13th March, 2020.

Even on that day the hearing was not taken up and the next date was

fixed on the 21st March, 2020. In the meantime, on 19.3.2020 an

application was filed by the prosecution for extension of time to submit

the final report, which was considered and allowed by extending the

period for another 30 days. After 21.3.2020 there is no order until 12th

June, 2020 when the matter was put up before the Special Judge on an

application for bail filed by the petitioner in electronic form. Taking note

of the said fact, the Special Judge fixed the date 19.6.2020 for hearing

the application for bail. On the said date so fixed the learned Judge

recorded the fact that the charge-sheet has not been filed till date but

rejected the application for bail solely on the ground that the earlier

application for bail filed before this Court was rejected, therefore, the

petition cannot be rejected on 28.4.2020 and, therefore, the petitioner is

not entitled to be released on bail. However, another application for bail

was taken out on 26.2.2020 which was again fixed for hearing on

6.7.2020. Interestingly, on 8.7.2020 an application was taken out by the

prosecution seeking extension of time to file the charge-sheet which was

considered and allowed by the Court by extending the period by 30 days.

Further extension was granted to the prosecution on 6.8.2020 to submit

the report and the application for bail which was filed by the petitioner

was subsequently rejected. From the aforesaid fact it revealed that the

time was extended for submission of the charge-sheet on the prayer of

the prosecution having made before the expiration of the period and was

extended from time to time. It is interesting to note that on 19.3.2020 the

time was extended for a period of 30 days but there was no application

taken out for extension before the expiry of extended period. The

extension was sought on 18.7.2020 after the expiry of the extended

period and the court mechanically extended the period without realising

that on 12.6.2020 the petitioner applied for a bail. The said application

would reveal that the petitioner invoked the right under Section 167 of

the Cr.P.C as the prosecution failed to submit the charge-sheet within

the extended time and asserted the indefeasible right accrued to him.

As has been held in the above noted decision, it is absolutely

unjust on the part of the Court to keep the application for bail pending

and invite the prosecution to file an application seeking extension of time

to submit the charge-sheet and allowing the said prayer and

simultaneously dismissed the application for bail. When an application

for bail was filed, the extended period expired or likely to expire and if

such prayer is made even at the time of the hearing of the application,

the Court should not ignore the same and defeat the right accrued to him

by extending the period and simultaneously dismissed the application for

bail.

We, thus, find that the indefeasible right cannot be defeated in

such circuitous manner and, therefore, the petitioner is entitled to be

released on bail because of the statutory interdiction.

The application for bail is allowed. The petitioner shall be released

on bail upon furnishing the security.

Accordingly, the petitioner shall be released on bail upon

furnishing a bond of Rs. 10,000/- (Rupees Ten Thousand), with two

sureties of like amount each, one of whom must be local, to the

satisfaction of the learned Additional Chief Judicial Magistrate, subject

to the condition that the petitioner shall appear before the Trial Court on

every date of hearing until further orders.

In the event the petitioner fails to do so without any justifiable

cause, the Trial Court shall be at liberty to pass necessary order in

accordance with law without any further reference to this Court.

The application for bail, being CRM 3526 of 2021, is thus granted.

Attend the Court case.

Urgent photostat certified copies of this judgment, if applied for, be made available to the parties subject to compliance with requisite

formalities.

I agree.

(Bibek Chaudhuri, J.)                              (Harish Tandon,J.)