Sanjay Kumar And Another vs State Of Orissa
2022 Latest Caselaw 6345 Ori

                 IN THE HIGH COURT OF ORISSA AT CUTTACK
AFR                          CRLMC No.1301 of 2022

           Sanjay Kumar and Another                ....            Petitioners
                                                  Mr. Manas Chand, Advocate


                                       -Versus-


           State of Orissa                      ....         Opposite Party
                                              Mr. Pradip Kumar Rout, AGA

                     CORAM:
                     JUSTICE R.K. PATTANAIK

                       DATE OF JUDGMENT: 03.11.2022


      1.

The petitioners invoked the inherent jurisdiction of this Court assailing the impugned order dated 26th April, 2022 passed in T.R. No.8 of 2020 by the learned Additional Sessions Judge- cum-Special Judge, Koraput, who rejected application moved under Section 167(2) Cr.P.C. for their release on default bail on the ground that the same is untenable in law when the extension to file chargesheet was allowed without providing them any opportunity to file objection.

2. The petitioners have been chargesheeted under Sections 20(b)(ii)(c)and 25 of the NDPS Act in connection with Semiliguda P.S. Case No.7 of 2020 corresponding to T.R.No.8 of 2020 pending in the file of the learned court below. According to the petitioners, the time to file the chargesheet by 180 days was allowed to be unilaterally extended on the strength of advance petitions filed by the prosecution without even directing service of copies thereof on the defence. For the aforesaid reason, when there was no objection received from the petitioners, the

Sanjay Kumar and another Vrs. State of Orissa

extension allowed in derogation to Section 36(A) of NDPS Act and the same could not have been allowed.

3. Mr. Chand, learned counsel for the petitioners submits that the statutory right for default bail was frustrated by extending the period to file the chargesheet and it was accomplished without providing the petitioners an opportunity to submit objection which is clearly evident from the orders dated 13th July 2020 and 12th August 2020 of the learned court below. While contending so, Mr. Chand cites the following orders of this Court in CRLMC No.1358 of 2020 (dated 8th February, 2021), CRLMC No.446 of 2021 (dated 19th March, 2021) and CRLMC 453 of 2021 (dated 21st October, 2021) to contend that the petitioners are entitled to default bail which is an indefeasible right as that was taken away or purposefully defeated by granting extension to file chargesheet without inviting any objection from the defence.

4. Mr. Rout, learned AGA on the other hand submits that there is no illegality in the impugned order of the learned court below who rightly declined to entertain the plea for default bail of the petitioners and therefore, it calls for no interference.

5. Learned court below rejected the application of the petitioners for default bail on the ground that it has been after a lapse of more than one and half years and that apart, such a right is extinguished after filing of the chargesheet in view of the decision of the Apex Court in M. Ravindran Vrs. The Intelligence Officers, Directorate of Revenue Intelligence (2021) 81 OCR (SC)

548.

6. Mr. Chand, learned counsel for the petitioners refers to the orders of the learned court below as at Annexure-1 to show that no objections were invited from the petitioners on both occasions

Sanjay Kumar and another Vrs. State of Orissa

while allowing extension to file chargesheet and under such circumstances, they are entitled to bail in terms of Section 167(2) Cr.P.C. read with Section 36(A) of NDPS Act. In the orders of this Court so referred to by Mr. Chand, a conclusion is drawn that whenever an extension to file chargesheet is prayed for, opportunity to submit objection by the defence to be provided or else it would amount to defeating the rights of the accused. In CRLMC 453 of 2021, this Court referred to the decisions rendered in Lambodar Bag Vrs. State of Orissa (2018) 71 OCR 31; Iswar Tiwari Vrs. State of Odisha (2020) 80 OCR 289 and the other two decided in CRLMC No.1358 of 2020 (Rohiteswar Meher Vrs. State of Orissa) besides CRLMC No.446 of 2021(Kishore Pujari Vrs. State of Orissa) before reaching at a conclusion that the extension in terms of proviso to Section 36(A)(4) of NDPS Act without inviting objection to be bad in law and consequently directed release the accused on bail with conditions. Having regard to the decisions (supra), the Court is of the considered view that in the present case as well the petitioners are similarly situated as no opportunity was provided to them to submit an objection before acceding to the request for extension to file the chargesheet. In other words, since no opportunity of hearing was afforded to the petitioners before allowing extension as was prayed for by the Public Prosecutor on both the occasions, such action of the learned court below cannot be justified which thereby compels the court to reach at a logical conclusion that they are entitled to default bail, a right which is not abridged upon or extinguished even by delay. Hence, the inescapable conclusion of the Court is that the petitioners are entitled to the benefit of default bail under Section 167(2) Cr.P.C.

7. Accordingly, it is ordered.

Sanjay Kumar and another Vrs. State of Orissa

8. In the result, the petition stands allowed. As a necessary corollary, the impugned order dated 26th April, 2022 under Annexure-1 by the learned Additional Sessions Judge-cum-Special Judge, Koraput is hereby set aside. Consequently, the petitioners are directed to be released on bail in terms of Section 167(2) Cr.P.C. in connection with T.R. No.8 of 2020 subject to conditions as would be fixed by the court below with a rider that they shall unfailingly attend and physically remain present on each and every date of posting of the case till the end of trial.

9.

(R.K. Pattanaik) Judge

U.K. Sahoo