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2021 Supreme(Ori) 102
IN THE HIGH COURT OF ORISSA AT CUTTACK
S.K. PANIGRAHI, J.
Suraj Mandal – Petitioner
Versus
State of Orissa – Respondent
CRL. REV. Nos. 210, 211, 212 of 2021
Decided On : 23-12-2021
Advocate Appeared:
For the Petitioner: Mr. Suryakanta Dwibedi.
For the Respondents: Mr. P.K. Maharaj, Mr. M.K. Mohanty.
Point of Law: It is necessary to view how the matter has been dealt by the statue especially with respect of interpretation of Section 167(2) of the Cr.P.C. is concerned.
Headnote:
Indian Penal Code, 1860 - Sections 147, 148, 302, 307, 333, 120-B, 353 and 149 - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 20(b)(ii)(C), 25, 27-A, 29 - Criminal Procedure Code, 1973 - Section 167(2) - Terrorist and Disruptive Activities (Prevention) Act, 1987 - Section 20(4)(b) - Murder - Violently assaulted police officers - Stick, axe and other weapons - Detention order - Without Notice - Informant, S.I. of Police alleging that he had obtained certain reliable information regarding a group of 100 persons carrying balance-around 2.00 A.M. they apprehended a group of people carrying some incriminating articles on their shoulder and enquired about their identity said group violently assaulted police officers and their unit by means of stick, axe and other weapons resulting in death of Banabasi-Maharana who was one of Home Guards present at spot.
Finding of the Court:
The Magistrate to whom an accused person is for-warded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction - Section 36A of NDPS Act prescribes modified application of the Cr.P.C. as indicated therein - Effect of Sub-clause (4) of Section 36A of NDPS Act requires that the investigation into certain offences under NDPS Act be completed within a period of 180 days instead of 90 days as provided under Section 167(2), Cr.P.C. - This case deals with Section 20(4)(b) of Act, 1987 (“TADA Act” for brevity), however, provisions regarding limitations and restrictions on grant of bail are para-materia in NDPS Act and TADA Act - In view of above, impugned order granting 60 days further time to Investigating Officer for submitting charge sheet and final order rejecting bail petition passed by learned Sessions-cum-Special Judge in T.R, do not suffer from any infirmity due to gravity of offence committed.
Result: CLR. REV. dismissed.
JUDGMENT :
S.K. PANIGRAHI, J.
1. The present petitions have been directed against the judgment and order dated 02.03.2021 passed by the learned Sessions Judge-cum-Special Judge, Malkangiri in T.R. No. 94 of 2020, arising out of Maithili P.S. Case No. 125 of 2020, whereby the petitioners assail the legality of the order of the learned Sessions-cum-Special Judge, Malkangiri in granting 60 days further time to the Investigating Officer for submitting charge sheet under Sections 147, 148, 302, 307, 333, 120-B, 353 and 149 of the Indian Penal Code (hereinafter referred to as “the I.P.C.” for brevity) read with Section 20(b)(ii)(C), 25, 27-A, 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “the NDPS Act” for brevity) without issuing notice to the petitioners.
2. Shorn of unnecessary details, the substratum of the issue presented before this Court remains that on 06.09.2020 one Girish Chandra Maharana (informant), S.I. of Police of K. Gumma Outpost under the Orkel P.S. lodged a written report before the I.I.C. of Maithili P.S. alleging that he had obtained certain reliable information regarding a group of 100 persons carrying balance stick on their shoulders and moving towards Maithili P.S. On receiving such information, the I.I.C. of Maithili P.S. accompanied by the informant proceeded towards the spot. On 06.09.2020 at around 2.00 A.M. they apprehended a group of people carrying some incriminating articles on their shoulder and enquired about their identity.
3. The said group violently assaulted the police officers and their unit by means of stick, axe and other weapons resulting in death of Banabasi Maharana who was one of the Home Guards present at the spot. The Police was able to detain 36 persons at the said spot as other persons took advantage of darkness to facilitate their escape. The informant along with the I.I.C. of Maithili P.S. effected seizure of 1917 kgs of Ganja and the detained persons, weren’t able to produce any documents permitting transportation and possession of the same.
4. Mr. Suryakanta Dwibedi, leaned counsel for the Petitioners in all the aforesaid cases submitted that on 02.03.2021, a petition under Section 36-A (4) of the N.D.P.S. Act for further extension of 60 days for submission of charge sheet was made by the learned Special Public Prosecutor and the same was allowed by learned Sessions-cum-Special Judge, Malkangiri without any due notice to the Petitioners. He further submitted that the charge sheet was not filed even after 60 additional days and that the Petitioners accrued their indefeasible right to be released on bail on 01.05.2021 as per section 167(2) of the Cr.P.C.
5. Per contra, the learned counsel for the State has submitted that the order dated 02.03.2021 does not suffer from any illegality or irregularity as the effected seizure accounts for 1917 kgs of Ganja which is a commercial quantity. Moreover, learned counsel for the State has also argued that the gravity of the offence which includes violent conduct of the accused persons that resulted in death of one of the Home Guards.
6. Firstly, the matter of concern is whether Section 167(2) overrides the provisions for bail under NDPS Act, which are special and stringent. It is necessary to view how the matter has been dealt by the statue especially with respect of interpretation of Section 167(2) of the Cr.P.C. is concerned: Section 167(2) of the Cr.P.C. read as follows:
“(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:
Provided that:
(a) one the Magistrate may authorise t
