Afr Sumanta Sabara & Anr vs State Of Odisha
2022 Latest Caselaw 1035 Ori

             IN THE HIGH COURT OF ORISSA AT CUTTACK

                           CRLMC No. 2543 of 2021
      An application under Section 482 of the Code of Criminal Procedure,
      1973 challenging the order dated 11.10.2021 passed by learned Special
      Judge, Gunupur in T.R. Case No. 54 of 2021.
                                         ---------------
AFR   Sumanta Sabara & Anr.                                .....   Petitioners


                               -Versus-

      State of Odisha                                      .....   Opp. Party

      Advocate(s) appeared in this case :-
      _________________________________________________________

         For Petitioner        :           Mr. Manoranjan Padhy,
                                           Advocate

         For Opp. Party        :Miss S. Mishra,
                                Addl. Standing Counsel
      _________________________________________________________
      CORAM :
            JUSTICE SASHIKANTA MISHRA

                                      ORDER

th 4 February, 2022

SASHIKANTA MISHRA, J.

The short point that arises for consideration in the present

case filed under Section 482 Cr.P.C. is, whether the right of an

accused, who has been granted default bail, survives after submission

of charge sheet when he fails to comply with the conditions imposed

by the Court while granting such default bail.

2. Bereft of unnecessary details, the facts of the case are that

the accused-petitioners are facing trial in T.R. Case No. 54 of 2021

pending in the court of learned Special Judge, Gunupur for the alleged

commission of offence under Sections 20(b)(ii)(C)/29/25 of NDPS

Act.

3. Admittedly the petitioners were remanded to custody on

08.04.2021. Though investigation commenced, yet the same could not

be completed within the stipulated period of 180 days, i.e., by

05.10.2021. As such, both the petitioners filed an application with

prayer for being released as per the provisions under Section 167(2)

Cr.P.C read with Section 36(A) of NDPS Act. Learned trial court after

considering the period of detention and the fact of non-submission of

charge sheet within the stipulated period, allowed the prayer for default

bail by imposing the following conditions.

"Therefore, let the accused persons, namely (1) Jisaya Gamango and (2) Sumanta Sabar, be released on bail of Rs.50,000/- (Rupees fifty thousand only) each with two local solvent sureties of the like amount with further conditions that;

(i) they shall appear before the Court on each date of posting till conclusion of trial,

(ii) If they fail to appear, any one of their bailor shall be physically present before the Court; and

(iii) they shall not commit similar type of offence.

Despite such order however, the accused persons did not furnish bail

bond as directed by the trial court and on the next day, i.e., on

08.10.2021, the I.O. submitted the charge sheet. The accused persons

furnished bail bonds along with two sureties and connected documents

on 11.10.2021 with prayer to release them on bail as per the order

passed earlier, i.e., on 07.10.2021. Learned trial Court, however, after

considering the ratio laid down by the Apex court in the case of Uday

Mohanlal Acharya vs. State of Maharashtra, reported in AIR 2001

SC 1910: (2001) 5 SCC 453, M. Ravindran vs. The Intelligence

Officer, Directorate of Revenue Intelligence, reported in 2020 SCC

Online 867 : AIR 2020 SC 5245 and of this Court in the case of

Pratima Nayak vs. State of Odisha, reported in 2011 SCC Online Ori

260 : 2011 (I) ILR-Cut. 595 held that sufficient time has been given to

the accused persons to comply with the terms and conditions of the

order dated 07.10.2021, but they failed to comply with the same and in

the meantime, the I.O. has submitted the charge sheet. As such, the

trial court was not inclined to accept the bail bond furnished on behalf

of the accused persons by order dated 11.10.2021, which is impugned

in the present application.

4. Heard Mr. Manoranjan Padhy, learned counsel for the

petitioners and Ms. S. Mishra, learned Additional Standing Counsel for

the State.

5. It is contended by Mr. Padhy that the accused persons

having once being held to be entitled to default bail, mere non-

submission of bail bond cannot forfeit such right. It is further

contended that since no time was stipulated by the trial court to furnish

bail bonḍ, the right of the accused persons for default bail, which has

already been granted, cannot be defeated merely because of delay in

submission of the bail bonds. Mr. Padhy has relied upon the decision

of the Apex in the case of Rakesh Kumar Paul vs. State of Assam,

reported in (2017) 15 SCC 67 to argue that in the matter of personal

liberty, the Courts are not expected to adopt a hyper-technical

approach and rather considering the fact that in the case of accused

persons who belong to marginalized communities, a liberal view ought

to be taken.

6. Ms. S. Mishra, on the other hand, has relied upon the

decision of the Apex court in the case of Uday Mohanlal Acharya

(supra) and the case of M. Ravindran (supra) to contend that the right

of the accused persons for being released on default bail stands

extinguished once they fail to comply with the conditions of such bail

and in the meantime charge sheet is filed.

6. It would be apposite to refer to the statutory provision at

the outside. Section 167(2) Cr.P.C reads as under:

167. Procedure when investigation cannot be completed in twenty-four hours-

xx xx xx (2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:

Provided that--

[(a) the Magistrate may authorise the detention of the accused person, otherwise than in custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding

(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;

(ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;] [(b) no Magistrate shall authorise detention of the accused in custody of the police under this section unless the accused is produced before him in person for the first time and subsequently every time till the accused remains in the custody of the police, but the Magistrate may extend further detention in judicial custody on production of the accused

either in person or through the medium of electronic video linkage;]

(c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police.

[Explanation I.--For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail.] [Explanation II.--If any question arises whether an accused person was produced before the Magistrate as required under clause (b), the production of the accused person may be proved by his signature on the order authorising detention or by the order certified by the Magistrate as to production of the accused person through the medium of electronic video linkage, as the case may be.] [Provided further that in case of a woman under eighteen years of age, the detention shall be authorised to be in the custody of a remand home or recognised social institution.]

7. In Uday Mohanlal Acharya (supra), it was held as under:

"In our considered opinion it would be more in consonance with the legislative mandate to hold that an accused must be held to have availed of his indefeasible right, the moment he files an application for being released on bail and offers to abide by the terms and conditions of bail. To interpret the expression "availed of" to mean actually being released on bail after furnishing the necessary bail required would cause great injustice to the accused and would defeat the very purpose of the proviso to Section 167(2) of the Criminal Procedure Code and further would make an illegal custody to be legal, inasmuch as after the expiry of the stipulated period the Magistrate had no further jurisdiction to remand and such custody of the accused is without any valid order of remand. xxxxxxxxxx"

However, interpreting the language employed in

Explanation-I to the proviso to Section 167(2) Cr.P.C., the Apex court

further held as follows:

"It is in this sense it can be stated that if after expiry of the period, an application for being released on bail is filed, and the accused offers to furnish the bail and thereby avail of his

indefeasible right and then an order of bail is passed on certain terms and conditions but the accused fails to furnish the bail, and at that point of time a challan is filed, then possibly it can be said that the right of the accused stood extinguished. xxxxxxxxxx"

The above view was crystallized under paragraph 13.5 of

the judgment referred to in impugned order. In view of some confusion

arising in relation to what was stated in Uday Mohanlal Acharya

(supra) under paragraphs-13.5 and 13.6 thereof, the Apex Court, in the

case of M. Ravindran (supra) after interpreting several other decisions,

such as, Sanjay Dutt vs. State (II), reported in 1994 SCC (5) 410 and

Hitendra Vishnu Thakur and others vs. State of Maharashtra and

others, reported in AIR 1994 SC 2623 held under paragraph-13, as

under:

"13. It is true that Explanation I to Section 167(2), CrPC provides that the accused shall be detained in custody so long as he does not furnish bail. However, as mentioned supra, the majority opinion in Uday Mohanlal Acharya expressly clarified that Explanation I to Section 167(2) applies only to those situations where the accused has availed of his right to default bail and undertaken to furnish bail as directed by the Court, but has subsequently failed to comply with the terms and conditions of the bail order within the time prescribed by the Court. We find ourselves in agreement with the view of the majority. In such a scenario, if the prosecution subsequently files a chargesheet, it can be said that the accused has forfeited his right to bail under Section 167(2), CrPC. Explanation I is only a safeguard to ensure that the accused is not immediately released from custody without complying with the bail order."

9. Coming to the facts of the present case, it is not in dispute

that the order granting default bail was passed on 07.10.2021 and

charge sheet was filed on 08.10.2021. Till such time, the accused

persons had not furnished the bail bonds of the sureties as directed by

the Court. It is true that no time limit was specified for furnishing of

bail bond, but then non-stipulation of time cannot mean that the same

can be kept indefinitely open to allow the accused persons to comply

with the conditions of the order at their own sweet will or will nullify

the effect of the charge-sheet being submitted in the meantime. It is

therefore, imperative that if an order for default bail is passed, it is in

the interest of the accused to act with promptitude and diligence. In the

case at hand, the bail bond was sought to be furnished on 11.10.2021,

i.e., four days after the order of default bail was passed and charge

sheet had also been submitted. This is, therefore, a case where the

Court granted default bail, but the accused failed to abide by the terms

and conditions imposed therein and since in the meantime, charge

sheet had been submitted, the so called indefeasible right granted, but

not actually exercised, stood extinguished in view of the ratio of the

cases referred above.

10. This Court is, therefore, of the view that in the facts and

circumstances of the case, learned court below has committed no

illegality in not accepting the bail bonds furnished by the accused

persons and therefore, the impugned order does not warrant any

interference whatsoever.

11. The CRLMC is, therefore, dismissed.

12. As the restrictions due to resurgence of Covid-19 situation

are continuing, learned counsel for the parties may utilize a printout of

the order available in the High Court's website, at par with certified

copy, subject to attestation by the concerned advocate, in the manner

prescribed vide Court's Notice No. 4587, dated 25th March, 2020,

modified by Notice No. 4798, dated 15th April, 2021, and Court's

Office Order circulated vide Memo Nos. 514 and 515 dated 7th

January, 2022.

...........................

Sashikanta Mishra, Judge

Orissa High Court, Cuttack The 4th February, 2022/ A.K. Rana