“Sadly Not Alive To Constitutional Obligation”: Orissa HC Frowns Upon NDPS Judge For Rejecting Default Bail Despite Non-Submission Of Chargesheet

The Orissa High Court has criticised a Special NDPS Judge for not applying ‘judicial mind’ while denying default bail to an accused person basing upon chargesheet submitted against a co-accused.

Terming the rejection order as ‘blatantly illegal’, the Single Judge Bench of Justice Sashikanta Mishra observed,

“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.”

On 03.09.2021, one Manoranjan Das was apprehended while he was in possession of brown sugar. Two other persons, who were supposedly assisting him, managed to flee. In course of investigation, it came to light that three persons, namely, Manoranjan Das, Suresh Chandra Sahu (present petitioner) and Lizu hatched conspiracy with mafia to deal with brown sugar.

Manoranjan Das was arrested and forwarded to the Court of Special Judge, Khordha on 04.09.2021 and steps were taken to apprehend the other accused persons, who had absconded. Chargesheet dated 10.03.2022 was submitted against Manoranjan Das under Sections 21(C)/29 of NDPS Act keeping the investigation open under Section 173(8) of CrPC.

On 17.08.2022, the present petitioner, Sarat Chandra Sahoo was taken on remand in the case as he was in custody in connection with another case and was lodged in Sub-Jail, Khordha since 28.05.2022. On 20.02.2023, the petitioner filed an application under Section 167(2) of CrPC to release him as despite expiry of the period of 180 days no charge sheet was submitted against him.

However, by order dated 20.02.2023, the Court below observed that the investigating officer had submitted chargesheet dated 10.03.2022 against accused Manoranjan Das and also against other accused including the petitioner, showing them as absconders and keeping the investigation open. Observing thus, the petition was rejected as having no merit.

The petitioner, therefore, approached the High Court seeking quashment of the above order of the lower Court which denied default bail to him on a wrong premise.

Court’s Observations

The Court noted that though the final chargesheet against the petitioner was said to be submitted on 12.02.2023, it was actually received on 22.02.2023. A copy of the chargesheet revealed that on the first page thereof, the Special Judge endorsed ‘seen’ and put his signature with date 22.02.2023.

Thus, the Court noted that as on 13.02.2023, i.e., the 181st day, no chargesheet had been submitted against the petitioner. Further, the order sheet also revealed that the case was never posted on that date (13.02.2023) nor the accused person was produced before the Court to inform him of his right to be released on default bail.

The Court observed that the application for default bail filed by the petitioner was rejected by referring to the chargesheet dated 10.03.2022 which was submitted only against the accused Manoranjan Das, wherein the petitioner and two others were shown only as suspects but not charge-sheeted.

The Court further took notice of the fact that the petitioner was remanded much later, i.e., on 17.08.2022. Thus, it questioned as to how the Special Judge observed in his order that the said chargesheet was submitted against the present petitioner.

“A Judicial Officer as senior as an Additional District & Sessions Judge committing such gross blunder is a matter of serious concern. It also proves the contention raised on behalf of the petitioner that as on the date of passing of the impugned order i.e.,20.02.2023, only one charge sheet was on record i.e., charge sheet No.9 dated 10.03.2022, which learned Court below, for the reasons best known to him, held to have been submitted also against the present petitioner.”

Accordingly, the Court held that the accused petitioner had acquired an indefeasible right to be released on bail for non-submission of chargesheet by 13.02.2023. Consequently, it quashed the order of the Court below which denied the default bail to the petitioner.

Notably, this is not first time that Justice Mishra has rebuked a Judicial Officer for not allowing default bail even though chargesheet was not submitted. Last month, he criticised two judicial officers, including a Sessions Judge for rejecting default bail of two persons accused of murder, despite the fact that the chargesheet was not filed before the Court within the stipulated statutory period. Therein, he had observed,

“It must be kept in mind that the Court is not supposed to act as an agent of the prosecution so as to be left at its mercy. When the question of liberty of a person is involved, it is expected that the Court shall rise to the occasion to dispense justice without in the least aligning itself with any party whatsoever. It has been emphasized time and again that right to default bail is akin to the fundamental right of liberty guaranteed under Article 21 of the Constitution of India.”

In December last year, Justice Mishra had censured a Special NDPS Judge for mechanical reference to numerous case laws, without there being any relevance of those authorities to the facts and circumstances of the case. He therein reminded,

"It goes without saying that the case laws are to be applied only to the facts and circumstances of the case at hand and not to be applied mechanically."

Also, in July last year, he came down heavily on two Courts of Sub-Divisional Judicial Magistrates for their apparent inaction/negligence, which resulted in about 'nine years' delay in grant of custody of accused to the investigating agency.

Case Title: Suresh Chandra Sahoo @ Sura @ Sarat Chandra Sahoo @ Somanath v. State of Odisha

Case No.: CRLMC No. 1500 of 2023

Date of Judgment: May 19, 2023

Counsel for the Petitioner: M/s. A.S. Paul & P. Martha, Advocates

Counsel for the State: Mr. S.K. Mishra, Additional Standing Counsel

Citation: 2023 LiveLaw (Ori) 60

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