The Orissa High Court has strongly reprimanded a Special Judge and the order passed by him whereby the accused was denied the right to default bail despite the fact that the charge sheet was not submitted within the statutory period. The Court observed that,

“…A Judicial Officer as senior as an Additional District & Sessions Judge committing such gross blunder is a matter of serious concern”.

Justice Sashikanta Mishra in the initial lines of the order noted, “The present case is yet another instance of lack of application of judicial mind by a Special Judge under the NDPS Act resulting in violation of the right to liberty guaranteed under Article 21 of Constitution of India and disregard to the statutory mandate embodied under Section 167(2) of the Code of Criminal Procedure and Section 36-A of NDPS Act”.

Advocate A.S. Paul, appeared for the petitioner and Advocate S.K. Mishra, Addl. Standing Counsel appeared for the State.

In the present matter, an FIR was lodged by the Inspector of Police, STF against Manoranjan Das, who was apprehended as he was in possession of brown sugar weighing 1 kg 34 grams . As per the averments, Manoranjan Das along with the present petitioner, Suresh Chandra Sahu and others hatched conspiracy with brown sugar to deal with brown sugar.

Thereafter, a charge sheet no. 9 dated March 10, 2022 was submitted against Manoranjan Das under Sections 21(C)/29 of NDPS Act, keeping the investigation open under Section 173(8) of Cr.P.C. On August 17, 2022, the petitioner was taken on remand in the aforementioned case as he was in custody already for a different matter.

Pursuant to which on February 20, 2023, the petitioner filed an application under Section 167(2) Cr.P.C. to release him as despite expiry of the period of 180 days no charge sheet was submitted against him.

The Court however, denied bail based on the charge sheet filed on March 10, 2023.

The Investigating Agency then submitted a final charge sheet No. 5 dated February 2, 2023 naming all the accused, under Sections 21(C)/29 of NDPS Act, also keeping the investigation open under Section 173(8) of CrPC.

On March 4, 2023 on the basis of such charge sheet, the Court took cognizance of the offences.

The petitioner while challenging the impugned order, argued that:

-the petitioner having been remanded on August 17, 2022, 180 days expired on February 13, 2023;

-though the charge sheet No.5 submitted against the petitioner mentions the date February 12, 2023, yet the same was actually submitted in the Court on February 22, 2023, i.e.10 days after the expiry of 180 days;

-he was neither produced before the Court on February 13, 2023, i.e., on the 181st day nor his indefeasible right to be released on default bail was informed to him.

-that the charge sheet no. 9 that was filed on March 3, 2023 was only against Manoranjan Das, therefore while rejecting the bail, the order is grossly illegal being contrary to the statutory mandate as well as the settled position of law.

The respondents, however, while referring to the records submitted inter alia that t there is no evidence of the charge sheet having actually been submitted to the Court on February 12, 2023.

The single-judge bench, after considering the rival contentions had called for the photocopy of the entire order sheet of the case. The Court, however, did not find mention of the date in the order sheet on which the charge sheet was received, and further directed the Trial Court to explain the discrepancies.

After considering the factual matrix in the present matter, records placed, and the contentions of the petitioner, the Court observed, “Reading of the impugned order reveals that the application for default bail filed by the petitioner was rejected by referring to the charge sheet No.9 dated March 10, 2022 which, as stated earlier was submitted only against the accused Manoranjan Das, wherein the petitioner and two others were shown as suspects only but not charge-sheeted. In fact, by such time the present petitioner had not even been arrested. He was remanded much later, i.e., on August 17, 2022. So, how could the Special Judge observe in his order that the said charge sheet was submitted against the present petitioner also is beyond the comprehension of this Court”.

“The Apex Court as well as this Court in series of decisions have emphasized on the production of the accused before the Court (either physically or virtually) and of informing him of his indefeasible right. It has also been emphasized time and again that the right to be released on default bail is akin to the fundamental right to liberty guaranteed under Article 21 of the Constitution of India. From what has been narrated hereinbefore, it is more than evident that learned Special Judge was sadly not alive to this Constitutional obligation”, the order further read.

The Court therefore, while allowing the petition held that the accused petitioner had acquired an indefeasible right to be released on bail for non-submission of charge sheet by February 13, 2023. Furthermore, that the rejection of the application for default bail is blatantly illegal as even on February 20, 2023 no charge sheet was submitted against him.

Cause Title: Suresh Chandra Sahoo v. State of Odisha

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