3 30.6.2021 Three vs Unknown
2021 Latest Caselaw 6734 Ori

                                     CRLMC No.558 of 2021




                     CRLMC No.558 of 2021 and CRLMC No.650 of 2021
3   30.6.2021

Three Petitioners in total, namely, Prakash Shrivas, Rakesh Kumar Barman and Raju Biswakarma in both the cases are the accused persons in T.R.Case No.13 of 2019 pending in the court of the learned Additional Sessions Judge-Cum-Special Judge, Jeypore. All the petitioners were arrested on 14.3.2019 and have prayed for their release on default bail by quashing the order dated 7.9.2019 wherein extension of time for completion of investigation was allowed. Accordingly, both the cases are heard analogously and disposed of by this common order.

2. The allegations in nutshell are that the petitioners while possessing and transporting K225.100gm. of ganja in a vehicle, were intercepted by Jeypore Police resulting registration of Jeypore Sadar P.S.Case No.58 dated 13.3.2019.

3. The Petitioners were produced before the learned Sessions Judge, Koraput at Jeypore and have been remanded to custody on 14.3.2019. The investigation continued and 180 days completed on 9.9.2019. Before the said date, on 7.9.2019 a petition was filed by the I.O. praying for extension of time to complete the investigation. The learned Sessions Judge on the same day allowed the prayer of the I.O. The order dated 7.9.2019 of the learned Special Judge reads as follows:-

"The case record is put up today as the I.O.

has submitted up-to date case diary, statement U/s.161 Cr.P.C. and other connected papers, along with a petition to extend the stipulated time for submission of charge sheet for a period of one month on the ground stated there in. Heard.

The learned Special P.P. submitting on behalf of the I.O. that the major part of investigation is completed, but the ownership particulars of the vehicle bearing reg.No.CG-16-CE-5446 yet to be received from the R.T.O., Koraput, so far it is not possible to complete the investigation within the stipulated period of 180 days. The stipulated period to submit the charge sheet is going to be expired on 09.09.2019, therefore the prayer has been made to extend further period of one month for completion of the investigation and submission of charge sheet in this case.

Heard the learned Special P.P. Perused the contents of the petition. After having gone through the petition in detail and having heard the submission by the learned Special P.P. on behalf of the I.O., it is felt that the I.O. requires more time for submission of the charge sheet for some justified reasons cited in the petition.

Accordingly, the I.O. is to proceed with the ongoing investigation and permitted 30 days time with effect from 10.09.2019 and he is further directed to submit the charge sheet after the extended time as per provision of Sec.36-A(4) proviso of N.D.P.S.Act. Put up on the date fixed i.e. on 10.09.2019 awaiting receipt of F.F."

4. Chargesheet was submitted on 13.9.2019 and cognizance was taken on the same day for commission of offence under Section 20(b)(ii)(C) of the N.D.P.S.Act.

5. The Petitioners contend before this Court that remanding them to custody beyond 9.9.2019 is against the principles of law enumerated in 167(2) of the Cr.P.C. It is further contended that without giving an opportunity of hearing to the accused-petitioners and even without intimating them of their right of release on default bail, grant of extension of time to complete the investigation beyond 180 days period is gross violation of law and right accrued in favour of the Petitioners for default bail. Thus, the order of the learned Sessions Judge dated 7.9.2019 and subsequent remand of the petitioners in custody is illegal. It is thus prayed that the petitioners may be released on bail as a matter of right protected in 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. In this regard, the Petitioners rely on the decision of this Court reported in (2018)71 OCR-31 (Lambodar Bag Vrs. State of Orissa) and the judgment in CRLMC No.1358 of 2020, disposed of on 8.2.2021 (Rohiteswar Meher Vrs. State of Odissha).

6. It is the settled law that right guaranteed under Section 167(2) to the accused is 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 his 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 Sub-section (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."

7. 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 his right for release on bail.

8. It is also held in the case of Lambodar Bag(supra) that, even the accused has not applied for his release on default bail, still his 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 non-submission 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. 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."

9. In the present cases, the petitioners are inside custody till date and it is clear from order dated 7.9.2019 of the learned Sessions Judge-Cum-Special Judge that the accused-petitioners have not been given any opportunity of hearing to lead their legitimate objection nor they have been informed of their right on default bail before granting extension of time to the prosecution for completion of investigation.

10. Thus, in consideration of all the facts, the order dated 7.9.2020 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 petitioner on bail in the aforesaid case on furnishing bail bond of Rs.50,000/- (fifty thousand) with two sureties each for the like amount to the satisfaction of the Court in seisin over the matter with further condition that one of such surety shall be their relative respectively and that, they shall co-operate for expeditious conclusion of trial. 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.

11. Both the petitions are accordingly allowed.

Copy of this order be uploaded in the High Court's official website as per Court's Notice No.4798, dated 15th April, 2021.

................................... B.P.Routray, J