Right Of Accused To Be Released On Default Bail Must Be Zealously Guarded Without Any Breach: Orissa High Court
The Orissa High Court said that an investigation could be challenged for being not over or incomplete in absence of a chemical examination report since an opinion is to be formed that the seized article to be a contraband substance.
Justice R.K. Pattanaik, Orissa High Court
The Orissa High Court emphasized that the right of an accused to be released on default bail in terms of Section 167(2) of Criminal Procedure Code, 1973 (CrPC) must be zealously guarded without any breach.
The Court was deciding a Revision Petition filed under Section 397 read with Section 401 of CrPC, assailing the Order of the Additional Sessions Judge by which an Application seeking default bail in terms of Section 167(2) CrPC read with Section 364(4) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) was declined.
A Single Bench of Justice R.K. Pattanaik observed, “Nevertheless, the learned court below was required to inform the petitioner regarding the right to be released on bail in terms of Section 167(2) Cr.P.C. immediately after expiry of the period. Such right of an accused being a fundamental right, according to the Court, is required to be zealously guarded without any breach. Notwithstanding the delay in demanding release, the learned Court below was to consider the same since further detention without statutory compliance infringed upon the petitioner’s fundamental right guaranteed under the Constitution of India.”
The Bench said that an investigation could be challenged for being not over or incomplete in absence of a chemical examination report since an opinion is to be formed that the seized article to be a contraband substance.
Advocate Tirtha Kumar Sahu appeared for the Petitioner while ASC B. Dash appeared for the Opposite Party.
Brief Facts
In 2021, a case was registered under Section 20(b)(ii)(C) of the NDPS Act, whereafter, the investigation was commenced. It was pleaded that on the requisition of the Investigating Officer (IO), the Trial Court without receiving the case diary, illegally forwarded the Petitioner-accused for having committed the alleged offence, which was in violation of Section 167(1) CrPC, following which the Application for bail was filed. However, the same was rejected primarily considering the nature of allegations and recovery of commercial quantity of Ganja.
It was further pleaded that IO failed to file chargesheet within the stipulated period of 180 days and on 182nd day, without the chemical examination report, the preliminary chargesheet was filed against the accused by not considering the fact that the chargesheet was incomplete. Allegedly, in absence of such report, cognizance of the offence was taken unlawfully without informing the accused of his indefeasible right to go on bail under Section 167(2) CrPC. The application moved by the accused for default bail was declined and hence, he approached the High Court.
Reasoning
The High Court in the above regard, noted, “In the present case, the learned court below was unaware of any such consequence to follow and simply waited to respond upon receiving the preliminary chargesheet ( to be treated as a final chargesheet, since investigation was not pending in real terms) under the impression that the right of the petitioner for default bail stood extinguished thereby. A duty cast upon the learned Court below to inform the petitioner to go on bail was not sincerely discharged when a complete chargesheet was not filed within the stipulated period.”
The Court added that the right to go on statutory bail under Section 167(2) CrPC was not informed to the accused any time before receiving the chargesheet, where was occasion for him to avail the remedy making an application demanding release.
“That apart, the learned Court below was under the impression that the right of default bail is lost after filling of the chargesheet and as the investigation is complete”, it remarked.
The Court observed that the Trial Court failed in its solemn duty to let the accused know about him having the right to go on default bail and that apart, was oblivious of the consequence of receiving a chargesheet in a case of present nature without a chemical examination report, which could lead to an impression that the investigation is inchoate, hence, further detention would be unauthorized.
“The petitioner has been in custody from 9th April, 2021 and in similar cases, the Apex Court pending decision in the SLPs, directed release of some of the accused persons on interim bail on account of for long detention. In any view of the matter, regard being had to the discussions held herein before, the Court reaches at a conclusion that the petitioner, who is in custody since 9th April, 2021 and though involved in a case leading to recovery and seizure of commercial quantity of contraband Ganja, deserves to be released on bail under Section 167(2) Cr.P.C. as a right to go on default bail accrued to him, which could not be availed of, as he was not informed about it upon expiry of the statutory period, a duty, which is not only cast upon the Courts but even to the extent including the investigating agency as held in Satender Kumar Antil (supra)”, it concluded.
Accordingly, the High Court allowed the Revision Petition, set aside the impugned Order, and directed the immediate release of the accused.
Cause Title- Ajay Singh v. State of Odisha (Case Number: CRLREV No.312 of 2022)
