IMPORTANT POINT
The right to default bail under Section 167(2) of the Cr.P.C. is a fundamental right that cannot be undermined by procedural lapses of the prosecution or the courts.

JUDGMENT

Sashikanta Mishra, J.

The petitioners are accused persons in G.R. Case No. 777 of 2022 pending in the court of learned J.M.F.C.(O), Bhubaneswar. In the present application filed under Section 482 of Cr.P.C., they seek to challenge the order passed by the courts below in rejecting their application filed under Section 167(2) of Cr.P.C. for grant of default bail.

2. The aforementioned case has arisen out of Balipatna P.S. Case No.183 dated 07.07.2022 registered for commission of the offence under Sections 302/364/120(B)/114/34 of IPC..

3. Both the petitioners were arrested on 11.07.2022 and remanded to judicial custody on the same day. Their application for bail was also rejected on the same day. On 11.11.2022, the record was put up on the strength of advance petition filed on behalf of the petitioners for consideration of another application filed by them for release on default bail as per provision under Section 167(2) of Cr.P.C. on the ground that charge sheet had not been submitted, even after lapse of the statutory period of 120 days. Learned J.M.F.C. after hearing both sides found that a charge sheet had actually been submitted by the I.O. on 05.11.2022, but for some reason had not been placed before the Court. Since the charge sheet was not tagged to the case record, learned J.M.F.C. directed the CSI attached to the Court to place the charge sheet in the open court forthwith, pursuant to which a staff of CSI placed the charge sheet in presence of both parties. On perusal of the charge sheet, learned J.M.F.C. having found that the same had been submitted on 05.11.2022 and was not placed before the Court for consideration due to laches and lapse of CSI staff, but the same having been filed within the stipulated period, the right of the accused persons to statutory bail came to an end. On such findings learned J.M.F.C. rejected the application for default bail.

4. The petitioners thereafter moved the Court of Sessions seeking bail citing accrual of indefeasible right under Section 167(2) of Cr.P.C. Learned Sessions Judge took note of the finding of learned J.M.F.C. that the charge sheet had been submitted by the I.O. on 05.11.2022, but was not placed before him. It was further held that the materials available on record prima facie suggest complicity of the petitioners in the alleged crime. The application was thus rejected.

5. Heard Mr. P.K.Nanda, learned counsel for the petitioners and Mr. S.K. Mishra, learned Additional Standing Counsel for the State.

6. In order to appreciate the contentions, it would be apposite to refer to the sequence of events stated below.

Before that however, it is to be noted that since the petitioners were arrested and remanded to judicial custody on 11.07.2022, the calculation of the statutory period would be as follows:-

7. Admittedly, the charge sheet was placed before the PO for the first time on 11.11.2022, which is five days after the stipulated period of 120 days, i.e., 07.11.2022. This Court finds from the order sheet of the case record that the case was posted to 04.11.2022 on which date the accused persons were remanded till 17.11.2022. It is not understood as to why the case was adjourned beyond 07.11.2022 as the same was the last date for submission of charge sheet. In all fairness, the case should have been adjourned to 07.11.2022 or at best 08.11.2022 on which date, the accused persons could be said to have acquired an indefeasible right to be released on bail for default of prosecution in submitting the charge sheet. It is reiterated that an indefeasible right to be released on bail accrued to the petitioners on the 121st day, i.e., 08.11.2022. In view of the well settled legal position, it was incumbent upon learned J.M.F.C. to have directed production