Grave Miscarriage of Justice’: Orissa High Court Quashes Bail Rejection, Holds Accused Must Be Informed of ‘Statutory Right’ to Default Bail Under Section 167(2) CrPC
Isabella Mariam
The High Court of Orissa at Cuttack, Single Bench of Justice Sibo Sankar Mishra, quashed the rejection order of a bail plea and directed the release of the petitioner on default bail. The Court held that the petitioner had an indefeasible right to bail under Section 167(2) of the Criminal Procedure Code, 1973, read with Section 36A (4) of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, due to the prosecution's failure to file the chargesheet within the stipulated 180-day period. The order dated 26.02.2024 of the Sessions Judge-cum-Special Judge, Malkangiri, was set aside.
The petitioner, Gopal Pal, filed an application under Section 482 of the Criminal Procedure Code, 1973 seeking quashing of criminal proceedings and the order dated 26.02.2024. The proceedings arose from Kalimela P.S. Case No. 212 of 2023, which corresponded to Special G.R. Case No. 182 of 2023.
According to the prosecution, on 28.08.2023, the informant, Sujit Kumar Biswas, while patrolling the Kamalapadar Ghat road area under Kalimela Police Station, noticed an individual standing beside a heap of plastic bags. Upon seeing the patrolling team, the individual attempted to flee but was apprehended. He was identified as Gopal Pal. A single-barrel muzzle-loading (SBML) gun was recovered from him, and he admitted to guarding the contraband.
He further disclosed that the ganja was to be transported out of state and was entrusted to him by one Pratham Patra @ Ghatak Patra and his associates. A total of 42 plastic jerry bags containing 1050 kg of ganja were seized. Gopal Pal was arrested on the same day.
On 24.02.2024 (Saturday), the police filed a chargesheet before the Sessions Judge-cum-Special Judge, Malkangiri. Meanwhile, the petitioner filed for bail under Section 167(2) on 26.02.2024, contending that 180 days had expired on 23.02.2024, and no chargesheet had been filed within that period. The learned trial court rejected the application on the ground that the chargesheet was already filed on 24.02.2024.
The petitioner’s counsel argued that the petitioner was not informed of his right to default bail on the 181st day of custody. He further contended that the right to default bail is an "indefeasible right" and cited several precedents:
- Suresh Chandra Sahoo @ Sura @ Sarat Chandra Sahoo v. State of Odisha, AIRONLINE 2023 ORI 361
- Lambodar Bag v. State of Orissa, 2018 (II) OLR – 918
- Laxmidhar Behera v. State of Odisha, 2021 (1) OLR – 810
In Suresh Chandra Sahoo, the Court stated: "the accused was neither produced before the Court on the 181st day nor informed of his right to be released on default bail" and quashed the order of rejection. In Lambodar Bag, it was recorded: "no extension shall be granted by the Special Court without issuing such a notice" to the accused. The judgment in Laxmidhar Behera reiterated the statutory timeline and the requirement of notifying the accused.
The Investigating Officer submitted a compliance affidavit acknowledging the delay and attributing it to the late assumption of charge. He explained that the time was used for recording statements and completing procedural formalities and tendered an unconditional apology.
Justice Sibo Sankar Mishra recorded that the right to personal liberty and a fair trial is protected under Article 21 of the Constitution. He stated: "The statutory protection granted to an accused under Section 167(2) of the Cr.P.C. and corresponding provisions of the special statutes ensures that no individual is unjustly detained beyond the prescribed period unless valid extensions are granted in accordance with the law."
The Court referred to Hitendra Vishnu Thakur v. State of Maharashtra, (1994) 4 SCC 602, and quoted:
"...once the period for filing the charge-sheet has expired... the accused person would be entitled to move an application for being admitted to bail... and the Designated Court shall release him on bail, if the accused seeks to be so released and furnishes the requisite bail."
It was further noted that: "In our opinion an accused is required to make an application if he wishes to be released on bail on account of the ‘default’ of the investigating/prosecuting agency... The issuance of notice would avoid the possibility of an accused obtaining an order of bail under the ‘default’ clause..."
Referring to Section 167(2) Cr.P.C., the Court reproduced the provision:
"...on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail..."
Justice Mishra stated: "the provision pre-supposes a positive obligation upon the Magistrate/ Court authorizing custody of the accused to inform the accused about his right to be released on bail upon furnishing bail bond."
In the present case, he found that this obligation was not fulfilled, and the petitioner moved for bail at the first available opportunity.
"Such a lapse amounts to a grave miscarriage of justice, directly infringing upon his fundamental rights under Article 21," recorded the Court.
The High Court quashed the order dated 26.02.2024 passed by the Sessions Judge-cum-Special Judge, Malkangiri and directed:
"the accused-petitioner be released on bail subject to such conditions as may be imposed by the learned trial court."
It was also stated: "at this stage, it would not be appropriate to quash the entire proceedings, as beseeched."
Advocates Representing the Parties:
For the Petitioner: M/s. Basudev Pujari, Abhas Mohanty, P. Patnaik, J. Sahoo and A. Mohanty, Advocates
For the Opposite Party: Mr. S.N. Biswal, Additional Standing Counsel
Case Title: Gopal Pal v. State of Odisha
Case Number: CRLMC No.1092 of 2024
Bench: Justice Sibo Sankar Mishra
[Read/Download order]
