Application Under Section 482 Of ... vs State Of Orissa
2023 Latest Caselaw 10030 Ori

           IN THE HIGH COURT OF ORISSA AT CUTTACK
                        CRLMC Nos. 1114 of 2023

      Application under Section 482 of Criminal Procedure Code,
      1973.
                                 ---------------

      Ranjan Kumar Patasani and another              ....     Petitioners

                                  -versus-

      State of Orissa                                .... Opp. Party


      Advocate(s) appeared in this case:-

      For Petitioners     : M/s. M. Chand, R.R. Mishra,
                            R.R. Mishra, A. Sahoo &
                            K.N. Panda, Advocates
                            A.K. Behera, Advocates
                                          Vs.
      For Opp. Party      :   Mr. S.N. Das,
                              Additional Standing Counsel
      __________________________________________________________

      CORAM:
           JUSTICE SASHIKANTA MISHRA

                                JUDGMENT

25th August, 2023

SASHIKANTA MISHRA, J.

The petitioners are accused persons in T.R. Case

No.46 of 2022 of the Court of learned 1st Additional

Sessions Judge-cum-Special Judge, Khurda. In the present

application filed under Section 482 of Cr.P.C., they

question the correctness of order dated 30.01.2023 passed

by the court below whereby cognizance of the offence under

Sections 21(C)/29 of the NDPS Act was taken. Further case

of the petitioners are that they are otherwise entitled to

default bail as per the provision under Section 36-A (4) of

the NDPS Act read with Section 167 (2) of Cr.P.C. for being

remanded to custody beyond the statutory period of 180

days.

2. The prosecution case, briefly stated is that upon

receiving reliable information regarding proposed delivery

of bulk quantity of Brown Sugar by three persons, the IIC

of S.T.F., CID, CB, Bhubaneswar proceeded to the spot and

found three persons standing there with one of them

holding a carry bag. The petitioner No.1 was one of the said

persons. On search of the bag, it was found to contain

Brown Sugar weighing 1kgs. 47 grams. Accordingly, the

case was registered and the petitioner No.1 was forwarded

to the Court on 12.06.2022 and the petitioner No.2 was

taken on remand being in judicial custody in connection

with another case. Upon completion of investigation,

charge sheet was submitted on 05.11.2022, but cognizance

was taken of the alleged offences on 30.01.2023.

3. Heard Mr. Manas Kumar Chand, learned counsel for

the petitioner and Mr. S.N. Das, learned Additional

Standing Counsel for the State.

4. Mr. Chand has forcefully argued that though the

charge sheet contains the endorsement of the learned

Special Judge that it was received on 05.11.2022, but the

same was actually taken on record on 30.01.2023 on which

date, cognizance was taken. Thus, it is a clear case where

the accused persons were remanded to custody despite

absence of a charge sheet in the record beyond the

statutory period of 180 days, which is completely contrary

to law and therefore, entitles them to be released on

default bail.

5. Mr. S.N. Das, learned State Counsel, on the other

hand, has vehemently opposed the contentions advanced

by Mr. Chand by submitting that the fact that the charge

sheet was not taken on record by the learned Special Judge

on the date of its submission by the I.O., i.e., 05.12.2022 is

not the same thing as non submission of charge sheet.

Since the charge sheet was submitted within the statutory

period of 180 days, the accused petitioners did not acquire

any indefeasible right of being released on default bail. Mr.

Das further contends that the very fact that the accused

petitioners have filed an application for discharge under

Section 227 of Cr.P.C., referring to the charge sheet filed on

05.11.2022 and also filed application of regular bail

thereafter, it cannot be said that they were not aware of

submission of the charge sheet on 05.11.2022.

6. Reference to the order dated 30.01.2023 reveals that

the learned Special Judge specifically mentioned in his

order that the charge sheet was received on 05.11.2022 but

inadvertently cognizance of the offence was not taken on

the said date. In order to appreciate the contentions put

forth before this Court, copy of the charge sheet and the

entire order sheet of the case was called for. On the first

page of the copy of the charge sheet, the Special Judge has

endorsed his signature with the date 05.11.2022 and seal.

The order sheet of the case before the court below reveals

that the case was posted on 04.11.2022 and thereafter

adjourned to 18.11.2022, which was taken up on the

record being advanced on 17.11.2022. There were several

adjournments thereafter such as, 19.11.2022, 02.12.2022,

15.12.2022, 27.12.2022, 10.01.2023, 13.01.2023,

25.1.2023 and finally 30.01.2023. As stated earlier, the

fact of submission of charge sheet on 05.11.2022 was for

the first time reflected in the order sheet as late as on

30.01.2023. It is nobody's case that the charge sheet was

not actually submitted on 05.11.2022 but was inserted into

the record later. Regardless, this Court is of the considered

view that the court below has dealt with the matter in a

most slipshod and careless manner, even though the

liberty of the accused persons was at stake. The question

that arises on such facts however is, whether delayed

taking of cognizance of the offences can entitle the accused

persons to default bail. In this regard, it is to be noted that

the NDPS Act provides for investigation to be completed

within 180 days, subject to extension for a maximum

period of one year as provided under Section 36-A (4) of the

Act. It goes without saying that in case charge sheet is not

submitted within the statutory period or the extended

period, as the case may be, an indefeasible right accrues in

favour of the accused persons to be released on bail. In the

instant case, the accused persons were first remanded to

custody on 12.06.2022 and therefore, 180 days expired on

09.12.2022. The charge sheet was filed much earlier, i.e.,

on 05.11.2022, though not formally taken on record. It has

been argued that remanding the accused persons beyond

09.12.2022 is illegal as it was without the charge sheet

being on record. It is true that the Special Judge should

have taken pain to ascertain whether any charge sheet had

been filed or not while remanding the accused persons

beyond 180 days but in the instant case fact remains that

charge sheet was in fact filed much before the expiry of 180

days. Under such circumstances, the delayed taking of

cognizance cannot enure to the benefit of the accused

persons in any manner whatsoever. Reference may be had

to the judgment of the Apex Court rendered in the case of

Serious Fraud Investigation Office vs. Rahul Modi &

Others, reported 2022 SCC OnLine SC 153 where, relying

upon some previous decisions on the point it was observed

as follows:-

" A close scrutiny of the judgments in Sanjay Dutt (supra), Madar Sheikh (supra) and M. Ravindran (supra) would show that there is nothing contrary to what has been decided in Bhikamchand Jain (supra). In all the above judgments which are relied upon by either side, this Court had categorically laid down that the indefeasible right of an accused to seek statutory bail under Section 167(2), Cr.P.C . arises only if the charge-sheet has not been filed before the expiry of the statutory period. Reference to cognizance in Madar Sheikh (supra) is in view of the fact situation where the application was filed after the charge-sheet was submitted and cognizance had been taken by the trial court. Such reference cannot be construed as this Court introducing an additional requirement of cognizance having to be taken within the period prescribed under proviso (a) to Section 167(2), CrPC, failing which the accused would be entitled to default bail, even after filing of the charge- sheet within the statutory period. It is not necessary to repeat that in both Madar Sheikh (supra) and M. Ravindran (supra), this Court expressed its view that non-filing of the charge-sheet within the statutory period is the ground for availing the indefeasible right to claim bail under Section 167(2), CrPC. The conundrum relating to the custody of the accused after the expiry of 60 days has also been dealt with by this Court in Bhikamchand Jain (supra). It was made clear that the accused remains in custody of the Magistrate till cognizance is taken by the relevant court. As the issue that arises for consideration in this case is squarely covered by the judgment in Bhikamchand Jain (supra), the order passed by the High Court on 31.05.2019 is hereby set aside."

(Emphasis supplied)

Similar view was taken by the Apex Court in a recent

judgment passed in the case of Judgebir Singh alias

Jasbir and Others v. National Investigation Agency,

reported in 2023 SCC Online SC 543 wherein the Apex

Court observed as under:

"54. This Court in the case of Suresh Kumar Bhikamchand Jain (supra) had the occasion to consider in detail the question whether cognizance of the chargesheet was necessary to prevent the accused from seeking default bail or whether mere filing of the chargesheet would suffice for the investigation to be deemed complete. The petitioner in the said case was arrested on 11.03.2012 on the allegation of misappropriation of amounts meant for development of slums in Jalgaon City. The petitioner therein was accused of committing offences punishable under Sections 120B, 409, 411, 406, 408, 465, 466, 468, 471, 177 and 109 read with Section 34, IPC and also under Sections 13(1)(c), 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988. The contention of the petitioner therein was that he could not have been remanded to custody in view of cognizance not being taken for want of sanction within the statutory period of 90 days. The scheme of the provisions relating to remand of an accused first during the stage of investigation and thereafter, after cognizance is taken, indicates that the legislature intended investigation of certain crimes to be completed within the period prescribed therein. This Court held that in the event of investigation not being completed by the investigating authorities within the prescribed period, the accused acquires an indefeasible right to be granted bail, if he offers to furnish bail. This Court was of the firm view that if on either the 61st day or the 91st day, an accused makes an application for being released on bail in default of chargesheet having been filed, the court has no option but to release the accused on bail. However, once the chargesheet was filed within the stipulated period, the right of the accused to statutory/default bail came to an end and the

accused would be entitled to pray for regular bail on merits. It was held by this Court that the filing of chargesheet is sufficient compliance with the provisions of proviso (a) to Section 167(2) of the CrPC and that taking of cognizance is not material to Section 167 of the CrPC. The scheme of CrPC is such that once the stage of investigation is completed, the court proceeds to the next stage, which is the taking of cognizance and trial. During the period of investigation, the accused is under the custody of the Magistrate before whom he or she is first produced, with such Magistrate being vested with the power to remand the accused to police custody and/or judicial custody, up to a maximum period as prescribed under Section 167(2) of the CrPC. Acknowledging the fact that an accused has to remain in custody of some court, this Court concluded that on filing of the chargesheet within the stipulated period, the accused continues to remain in the custody of the Magistrate till such time as cognizance is taken by the court trying the offence, when the said court assumes custody of the accused for purposes of remand during the trial in terms of Section 309 of the CrPC. This Court clarified that the two stages are different, with one following the other so as to maintain continuity of the custody of the accused with a court."

(Emphasis supplied)

8. Thus, the legal position that emerges is, the right of

the accused persons to be released on default bail is

contingent upon the failure of the Investigating Agency to

complete investigation within the statutory period of 180

days or the extended period, as the case may be. There is

however no statutory mandate for cognizance of the

offences being taken immediately on submission of the

charge sheet. Conversely, if the charge sheet has been

submitted in time, mere non-taking of cognizance

immediately cannot confer any vested right on the accused

persons to be released on bail. As regards the remand of

the accused persons beyond the statutory period, as was

held in Judgebir Singh (supra), the accused continues to

remain in custody of the Magistrate, till such time as

cognizance is taken by the Court trying the offence,

whereafter Section 309 comes into play. In view of what

has been discussed hereinbefore, this Court is unable to

accept the contentions advanced by Mr. Chand that

remanding the accused persons beyond the stipulated

period was in any manner illegal and that the delay in

taking cognizance entitles the accused persons to default

bail.

9. In the result, I find no merit in the CRLMC, which is

therefore, dismissed.

Signature Not Verified Digitally Signed Signed by: BHIGAL CHANDRA TUDU .................................

Designation: Senior Stenographer Reason: Authentication Sashikanta Mishra, Location: Orissa High Court, Cuttack Date: 30-Aug-2023 18:35:49 Judge B.C. Tudu, Sr.Steno