Allowed

Rakesh Tiwari v. State of Odisha

Orissa HC30 Nov 2021CRLMC/1597/2021

Case brief

AI extract

What is this about?

This court allowed a CRLMC to quash an order rejecting default bail, ruling that an extension of time for submitting a charge-sheet was illegal because the accused was not produced or heard, thus preserving the right to bail.

What did the court decide?

The impugned order dated 18.03.2021 is quashed; the petitioner is directed to be released on bail on such terms as the court below may deem fit.

Rakesh Tiwari Vs State of Odisha — Narcotics (NDPS) | Orissa HC (2021)

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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CRLMC No. 1597 of 2021

Rakeh Tiwari

….

Petitioner

Mr. D. Panda, Adv.

-Versus -

State of Odisha ….

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Opposite Party

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Mr. S.K. Mishra, Addl. Standing Counsel

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CORAM: JUSTICE SASHIKANTA MISHRA

ORDER_

30.11.2021

Order No.

This matter is taken up through hybrid mode.

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In this application filed under Section 482 Cr.P.C. the petitioner challenges the order dated 18.03.2021 passed by learned Special Judge, Malkangiri in T.R. Case No. 81/2020 in rejecting the application filed by him under Section 167(2) Cr.P.C. for grant of default bail with further prayer to direct release of the petitioner from custody.

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The facts of the case are that the petitioner is one of the accused in the above-mentioned case before the court below, which arises out of the Mathili P.S. Case No. 110 of 2020 for the alleged commission of offence under Sections 20(b)(ii)(C)/27-A of the NDPS Act. It is alleged that on 21.08.2020 while the S.I. of police of Mathili P.S. was conducting patrolling duty, he received information about illegal transportation of contraband

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ganja. Subsequently, a truck was intercepted, in which four persons including the driver were occupants. Search of the vehicle revealed several bags of Ganja in all, weighing 1217 KG 700 grams, which was seized. After following the statutory requirements, the accused persons were arrested. The present petitioner is one of the said accused persons and was forwarded to the court of learned Special Judge on 22.08.2020 on which date he was remanded to judicial custody. On 25.01.2021 a petition was filed by learned Special Public Prosecutor with request to extend the time for submission of charge sheet, which was allowed on 27.01.2021. The petitioner filed an application under Section 167(2) of Cr.P.C. on 18.03.2021 with prayer to enlarge him bail on the ground that charge sheet had not been submitted in time but, the same was rejected on the same day by the learned Special Judge by holding that the time for submission of charge sheet had been extended by 30 days beyond the stipulated period which had not expired. Said order is impugned in the present application.

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Heard Mr. D. Panda, learned counsel for the petitioner and Mr. S.K. Mishra, learned Addl. Standing Counsel for the State.

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It is submitted by Mr. Panda that the petitioner having been remanded to judicial custody for the first time on 22.08.2020, the stipulated period of 180 days expired on 17.02.2021. However, the Special Public Prosecutor filed a petition for extension of time on 25.01.2021 but without serving copy thereof on the petitioner. The said petition was heard by learned Special Judge

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on 27.01.2021 and was allowed by granting 30 days extension without having the accused produced or after hearing him. This, according to Mr. Panda, violates the law laid down by the apex court in the case of Hitendra Vishnu Thakur Vs. State of Maharashtra, reported in AIR 1994 SC 2623; Rakesh Kumar Paul vs. State of Assam, reported in (2017) 68 OCR (SC) 1: (2017) 15 SCC 67; M. Ravindran vs. Intelligence Officer, Directorate of Revenue Intelligence, reported in (2021) 81 OCR (SC) 548: (2021) 2 SCC 485; and of this Court in the case of Naresh Digal vs. State of Odisha reported in (2021) 81 OCR694.

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On such ground, it is submitted that the order granting extension of time has to be treated as non-est in the eye of law and therefore, the accused is entitled to default bail.

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Mr. S.K. Mishra, learned Addl. Standing Counsel on the other hand, contends that the petition was allowed before the stipulated period and after hearing the defence counsel and therefore, no further notice was required to be given to the accused. In any case, charge sheet having already been filed, the right of the accused of being released on default bail no longer survives.

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It appears that on 27.01.2021 only one of the accused persons namely, Tapas Sardar was produced and it was observed that the other accused persons were not produced as they had been shifted to Circle Jail, Koraput. It is also mentioned that the

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defence counsel was present who objected to the prayer for extension. A perusal of the case record would reveal that while Mr. Manas Swain had filed vakanaltnama for the accused persons on 22.08.2020, advocate Badal Panigrahi filed vakalantama on behalf of the accused- Tapas Sardar, for which the previous vakalatnama filed by Sri Manas Swain on behalf of Tapas Sardar was held to be ceased. Since it is not mentioned if advocate Manas Swain, who represented accused Rakesh Tiwari (petitioner) was present in the court or not, the observation of the learned Special Judge in the order dated 27.01.2021 regarding presence of defence counsel can only imply that advocate Badal Panigrahi representing accused Tapas Sardar was present. Therefore, it must be held that accused Rakesh Tiwari had gone unrepresented on that date. In the above fact situation, it can reasonably be inferred that the accused Rakesh Tiwari had no notice of the petition for extension filed by the Special Public Prosecutor.

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In the case of Hitendra Vishnu Thakur v. State of Maharashtra , reported in 1994 SCC (4) 602 and followed in a series of the decisions, the Apex Court has held that when a petition is filed by the Public Prosecutor seeking extension of time to submit charge-sheet, its notice should be issued to the accused before granting such extension so that he may have an opportunity to oppose it on all legitimate and legal grounds available to him. Be it noted here that the said decision pertains to Section 20(4) of TADA Act which is in pari materia to the

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provision under Section 36-A(4) of the NDPS Act. This Court in the case of Lambodar Bag v. State of Odisha , reported in 2018 (71) OCR 31 has also held that it is mandatory to grant an opportunity of hearing to the accused before granting extension of time to complete investigation. Relying upon the aforesaid case as also the case of Hitendra Vishnu Thakur (supra) and several other cases decided by the apex court and other High Courts, this Court has reiterated the said principle in the case of Iswar Tiwari v. State of Odisha, reported in 2020 (80) OCR 289. In summarizing the legal position as regards the provisions under Section 167(2) of Cr.P.C read with Section 36(A)(4) of the NDPS Act, this Court in Iswar Tiwari (supra) held that the notice must mandatorily be issued to the accused and he must be produced before the Court whenever such an application is taken up and that where any such report occurs the question of it being contested does not arise and a right accrues in favour of the accused.

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Examined in the background of the aforementioned legal proposition it is evident that the order passed by learned Special Judge on 27.01.2021 in granting extension of the time to complete investigation by thirty days without having the accused produced before him and without granting him an opportunity to have his say in the matter renders the same illegal and unsustainable in the eye of law.

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For the foregoing reasons, therefore, this Court is of the considered view that the indefeasible right of the accused must

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be held to have survived notwithstanding submission of chargesheet and therefore, he is entitled to be released on bail.

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In the result, the CRLMC is allowed. The impugned order dated 18.03.2021 is quashed. It is directed that the accused shall be released on bail on such terms and conditions as the learned court below may deem fit and proper.

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The CRLMC, is therefore, disposed of.

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( Sashikanta Mishra)
Judge

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A.K. Rana

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Rakesh Tiwari v. State of Odisha

Case brief

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Rakesh Tiwari v. State of Odisha

Case brief

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