Smt. Sabita Das On Behalf Of ... vs The State Of Tripura
2021 Latest Caselaw 1041 Tri

                              HIGH COURT OF TRIPURA
                                    AGARTALA

                                B.A. No. 76 of 2021

Smt. Sabita Das on behalf of accused
Sri Narayan Das
                                                             ........Petitioner(s)
                                     Versus

The State of Tripura
                                                         ........Respondent(s)

For Petitioner(s) : Mr. Subrata Sarkar, Sr. Adv.

Ms. Piyali Chakraborty, Adv.

Ms. Monalisha Pal, Adv.

For Respondent(s) : Mr. S. Debnath, Addl. P.P.

HON‟BLE MR. JUSTICE S.G. CHATTOPADHYAY Order

08/10/2021

Accused Narayan Das @ Naru is stated to be in jail for about

265 days for killing his 28 years' old wife Jaya Das (Sahi) and mother in

law Smt. Kajli Sahi in their house in broad day light on 11.01.2021 in

presence of a good number of eye witnesses.

[2] Smt. Sabita Das, stated to be a relative of the accused, has

filed this application under section 439 Cr.P.C. for granting bail to

accused Narayan Das who is an FIR named accused in Ambassa PS case

No. 2021/ABS/01 registered for offence punishable under section 302

IPC which has culminated into Sessions Trial (T-I) No. 20 of 2021 after

filing of charge sheet.

[3] Heard Mr. Subrata Sarkar, learned senior advocate appearing

along with Ms. Piyali Chakraborty and Ms. Monalisha Pal, advocates for

the petitioner. The State respondent is represented by Mr. S. Debnath,

learned Addl. P.P.

[4] Factual background of the case is as under:

On 11.01.2021, one Goutam Paul, Son of Suresh Ch. Paul of

Ambassa colony, Dhalai lodged a written complaint to the police officer

whom he met in the house of the deceased alleging, inter alia, that at

about 10.30 am on the day he came to the house of his neighbor Raju

Sahi following the cry of some women. Some other neighbours also

joined him. Having arrived at the house of Raju Sahi, he saw the blood

stained body of Smt. Jaya Das (Sahi) who is the sister of Raju Sahi and

the blood stained body of Kajli Sahi (Singh) who is the mother of said

Raju Sahi. Both of their bodies were lying in the verandah of their

house. Dao blows on their bodies were also visible. The right hand of

Smt. Kajli Sahi was found severed from her body which was lying near

her body. Both the bodies were lying in a pool of blood. In front of their

bodies, accused Narayan Das, husband of said Jaya Das (Sahi) was

standing with a sharp edged dao in his hand who was saying that

whoever comes would be killed. The neighbouring people had

surrounded the house from a safe distance so as to prevent the escape

of accused Narayan Das. Police came and arrested Narayan Das. On the

basis of said ejahar, case was registered and investigation was taken

up. The injured were declared dead in hospital and after holding post

mortem examination of the dead bodies doctor opined that death was

caused due to excessive blood loss. After investigation, police submitted

charge sheet No.15 of 2021 dated 12.04.2021.

[5] Bone of contention of Mr. Sarkar, learned senior advocate is

that the occurrence took place on 11.01.2021. Investigating agency was

statutorily required to submit charge sheet within a period of 90 days in

terms of section 167(2)(a)(i), Cr.P.C. But charge sheet dated

12.04.2021 was field beyond statutory period of 90 days as a result of

which the accused was entitled to default bail which is an indefeasible

right of the accused. Learned senior advocate submits that during

investigation, accused was admitted in Kamalpur sub jail in Dhalai

District. The Chief Judicial Magistrate, Ambassa, Dhalai Judicial District

by his order dated 10.03.2021 in case No. 2021 ABS 001 issued a

direction to the Superintendent of Kamalpur Sub Jail to shift the

accused to Kendriya Sansodhanagar at Agartala for his treatment in

AGMC and GBP hospital at Agartala. It was also directed by the learned

Chief Judicial Magistrate that after treatment the accused be shifted

back to Kamalpur sub jail. On 20.04.2021, said charge sheet dated

12.04.2021 was received by the the learned Chief Judicial Magistrate

and the learned Chief Judicial Magistrate took cognizance of offence

punishable under section 302 IPC against the accused on the basis of

the said charge sheet. It is also reflected in the said order of the Chief

Judicial Magistrate that till 20.04.2021 accused was not sent back to

Kamalpur sub jail from Agartala. He, therefore, directed the

Superintendent of Kendriya Sansodhanagar, Agartala to produce the

accused before him on 04.05.2021. Learned senior advocate submits

that the statutory period of 90 days expired on 11.04.2021 and charge

sheet dated 12.04.2021 was filed in the court on expiry of the statutory

period. Therefore, accused was entitled to default bail. But no bail

petition could be submitted for release of the accused under the default

clause due to the fact that accused was at Agartala for treatment.

Learned senior advocate submits that it was the duty of the court to

apprise the accused of his indefeasible right to default bail accruing

from the failure of investigating agency in filing charge sheet within 90

days so that the accused could have availed his right. In support of his

contention, Mr. Sarkar, learned senior advocate has relied on the

decision of the Apex Court in Rakesh Kumar Paul Vs. State of

Assam reported in (2017) 15 SCC 67 wherein the Apex Court has

held as under:

"43. This Court and other constitutional courts have also taken the view that in the matters concerning personal liberty and penal statutes, it is the obligation of the court to inform the accused that he or she is entitled to free legal assistance as a matter of right. In Khatri (2) v. State of Bihar (1981) 1 SCC 627 the Judicial Magistrate did not provide legal representation to the accused since they did not ask for it. It was held by this Court that this was unacceptable and that the Magistrate or the Sessions

Judge before whom an accused appears must be held under an obligation to inform the accused of his or her entitlement to obtain free legal assistance at the cost of the State. In Suk Das v. UT of Arunachal Pradesh (1986) 2 SCC 401 the accused was tried and convicted without legal representation, due to his poverty. He had not applied for legal representation but notwithstanding this, this Court held that the trial was vitiated and the sentence awarded was set aside, particularly since the accused was not informed of his entitlement to free legal assistance, nor was an inquiry made from him whether he wanted a lawyer to be provided at State expense. In Rajoo v. State of M.P (2012) 8 SCC 553 the High Court dismissed the appeal of the accused without enquiring whether he required legal assistance at the expense of the State even though he was unrepresented. Relying on Khatri and Suk Das this Court remanded his appeal to the High Court for re-hearing after giving an opportunity to the accused to take legal assistance. Finally, in Mohd.

Ajmal Amir Kasab v. State of Maharashtra (2012) 9 SCC 1 this Court relied on Khatri and held that in paragraph 474 of the Report as follows: [Mohd. Ajmal case (2012) 9 SCC 1, SCC p 186]

"474... it is the duty and obligation of the Magistrate before whom a person accused of committing a cognizable offence is first produced to make him fully aware that it is his right to consult and be defended by a legal practitioner and, in case he has no means to engage a lawyer of his choice, that one would be provided to him from legal aid at the expense of the State. The right flows from Articles 21 and 22(1) of the Constitution and needs to be strictly enforced. We, accordingly, direct all the Magistrates in the country to faithfully discharge the aforesaid duty and obligation and further make it clear that any failure to fully discharge the duty would amount to dereliction in duty and would make the Magistrate concerned liable to departmental proceedings."

44. Strong words indeed. That being so we are of the clear opinion that adapting this principle, it would equally be the duty and responsibility of a court on coming to know that the accused person before it is entitled to „default bail‟, to at least apprise him or her of the indefeasible right. A contrary view would diminish the respect for personal liberty, on which so much emphasis has been laid by this Court as is evidenced by the decisions mentioned above, and also adverted to in Nirala Yadav.

Application of the law to the petitioner"

[6] Counsel has also relied on the decision of the Apex Court in

M. Ravindran Vs. Intelligence Officer, Directorate of Revenue

Intelligence reported in 2020 AIR (SC) 5245 and contended that

once the accused was entitled to default bail, his right to be released on

default bail still continues even though charge sheet has been filed by

this time. Learned senior advocate submits that accused was prevented

from availing this indefeasible right due to his illness and it was the

duty of the Magistrate before whom his matter was pending to apprise

him about his right and give the benefit to him by releasing him on bail.

Counsel, therefore, urges for releasing the accused on bail.

[7] Mr. S. Debnath, learned Addl. P.P representing the State

respondent on the other hand submits that release of the accused on

bail is likely to bring about a disastrous consequence. Learned Addl. P.P

submits that accused brutally killed his wife and mother in law together.

He chopped the hands of his wife and cut it into pieces in presence of

eye witnesses. He was so violent that none of the neighbours dared to

go in front of him. Even during investigation, eye witnesses stated to

police that the accused stated to them that he would kill many others

once he is released from jail. Learned Addl. P.P. submits that in such

situation, if the accused is released on bail some other lives are likely to

be lost. It is also contended by Mr. Debnath, learned Addl. P.P that

charge sheet dated 12.04.2021 was submitted on the 91 st day on the

basis of which the learned Chief Judicial Magistrate took cognizance of

offence on 20.04.2021. Learned Addl. P.P submits that no petition was

filed by the accused or his lawyer before the learned Chief Judicial

Magistrate for releasing him on bail under the default clause. It is not a

case that during the pendency of his bail application 90 days expired

and charge sheet was submitted subsequently. Counsel submits that

since there was no bail application pending, the charge sheet submitted

after 90 days shall not make the accused entitled to bail under default

clause because the law provides that accused can be entitled to bail in

such circumstances only if he applies for bail and informs the court that

he is ready to furnish bail bond. Learned Addl. P.P. urges the court to

reject his bail application.

[8] In so far as the submission of Mr. Sarkar, learned senior

advocate with regard to the duty and responsibility of a court to apprise

the accused about his entitlement to default bail is concerned, the

Hon'ble Supreme Court in paragraph 44 in the case of Rakesh Kumar

Paul (supra) has observed that it would equally be the duty and

responsibility of a court on coming to know that the accused person

before it is entitled to "default bail", to at least apprise him/her of the

indefeasible right. Therefore, there can be no controversy on the issue

that the court before which the charge sheet is required to be filed will

perform its duty and responsibility to apprise the accused of his

indefeasible right to be released on default bail if the charge sheet is

not submitted within the statutory period provided under section 167(2)

Cr.P.C.

[9] In so far as the entitlement of the accused to default bail in

the present case is concerned, it is clear that no application for release

of the accused under default clause was pending before the learned

Chief Judicial Magistrate when the charge sheet was filed on the 91 st

day from the date of occurrence. In the case of M. Ravindran (supra)

which has been relied on by the counsel of the petitioner, the Hon'ble

Apex Court has observed as under:

"18. Therefore, in conclusion:

18.1 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.

18.2 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 charge-sheet or a report seeking extension of time by the prosecution before the Court; or filing of the charge-sheet during the interregnum when challenge to the rejection of the bail application is pending before a higher Court.

18.3 However, where the accused fails to apply for default bail when the right accrues to him, and subsequently a charge-sheet, 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 cognizance 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 provisions of the CrPC.

18.4 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."

[10] In the said judgment of M. Ravindran (supra), the

Hon'ble Apex Court referred to its earlier judgment in Uday

Mohanlal Acharya v. State of Maharashtra reported in AIR 2001

SC 1910 wherein it was contended that right of an accused under

section 167(2) of Cr.P.C is indefeasible right which occurs

immediately upon the failure on the part of the investigating agency

to file charge sheet within prescribed time and such right remains

unaffected even upon filing of charge sheet thereafter. In the said

case of Uday Mohanlal Acharya (Supra) the Apex Court held as

under:

"6. There cannot be any dispute that on expiry of the period indicated in the proviso to sub-section (2) of Section 167 of the Code of Criminal Procedure the accused has to be released on bail, if he is prepared to and does furnish the bail. Even though a Magistrate does not possess any jurisdiction to refuse the bail when no charge sheet is filed after expiry of the period stipulated under the proviso to sub section (2) of Section 167 and even though the accused may be prepared to furnish the bail required, but such furnishing of bail has to be in accordance with the order passed by the Magistrate. In other words, without an order of the Magistrate the legislative mandate engrafted in the proviso to sub- section (2) of Section 167 cannot be given effect to and there lies the rub. The grievance of the accused is that for a variety of reasons the Magistrate or even the superior court would refuse to pass an order releasing the accused on bail, notwithstanding the preconditions required under the proviso are satisfied and then when the accused moves the High Court or the Supreme Court during the interregnum the police files a challan. It was also contended by Mr Tulsi that a Public Prosecutor may take adjournment from the court when the bail application was being moved and then would persuade the investigating agency to file a challan and then contend that the court would not be entitled to release the accused on bail under the proviso to sub-section (2) of Section 167, and in that situation not only the positive command of the Legislature is flouted but also an unauthorised period of custody is being legalised and this would be an infraction of the constitutional provision within the meaning of Article 22. In Hitendra Vishnu Thakur v. State of Maharashtra (AIR 1994 SC 2623) (supra) two learned Judges of this Court construed the

provisions of Section 167 of the Code of Criminal Procedure read with sub-section (4) of Section 20 of TADA. After examining in detail the object behind the enactment of Section 167 of the Code of Criminal Procedure and the object of Parliament introducing the proviso to sub-section (2) of Section 167 prescribing the outer limit within which the investigation must be completed the Court expressed that the proviso to sub- section (2) of Section 167 read with Section 20(4)(b) of TADA creates an indefeasible right in an accused person on account of the default by the investigating agency in the completion of the investigation within the maximum period prescribed or extended, as the case may be, to seek an order for his release on bail and such order is generally termed as an "order on default". The Court also held that an obligation is cast upon the court to inform the accused of his right of being released on bail and enable him to make an application in that the accused would be entitled to move an application for being admitted on bail and the Designated Court shall release him on bail if the accused seeks to be so released and furnishes the requisite bail. The Court declined to agree with the contention of the accused that the Magistrate must release the accused on bail on its own motion even without any application from an accused person on his offering to furnish bail."

[11] Reiterating the principles of law laid down in the case of

Uday Mohanlal (supra), as well as in the case of Hitendra Vishnu

Thakur v. State of Maharashtra reported in AIR 1994 SC 2623

and Rakesh Kumar Paul (supra) and other cases, the Apex Court

in the case of M. Ravindran (supra) concluded in paragraph 18.3

that where the accused fails to apply for default bail when the right

accrues to him, and subsequently a charge sheet, additional

complaint or a report seeking extension of time is preferred before

the Magistrate, the right to default bail would be extinguished.

[12] In the given case, it is evident from the record that case

was lodged on 11.01.2021 and the accused was arrested from the

crime scene on the same day and after completion of investigation,

charge sheet dated 12.04.2021 was submitted on the 91st day though

the Magistrate took cognizance of the offence on 20.04.2021. No bail

petition was filed on behalf of the accused when his right to default

bail accrued. Therefore, in view of the judgment of the Apex Court in

the case of M. Ravindran (supra) accused cannot claim his release

on default bail at this stage.

[13] Apart from it, in the given case the accused killed his wife

and mother in law by chopping them with a dao in the presence of his

children. Perused the statement of his children who gave a detailed

account to police about the horrible incidence. They have also stated

that at the time of killing their mother and grandmother, their father

also terrorized them. Even though charge sheet has been filed and

accused is in custody for about ten months, this court is of the view

that if he is released on bail, there is every likelihood of his

influencing the witnesses who are his children and other near

relatives. Likelihood of his fleeing away from justice cannot also be

ruled out particularly in view of the gravity of the offence which was

witnessed by a lot of eye witnesses.

[14] For the reasons stated above, his bail application stands

rejected. Since, the charge sheet has been submitted, the trial court

is directed to decide the matter as expeditiously as possible.

Observations made hereinabove are for the limited purpose of

considering the present bail application of the accused which in no

way shall affect the trial and decision of the case on merit.

[15] In terms of the above, the bail petition stands rejected and

disposed of. Return the case diary.

JUDGE

Rudradeep