Orissa High Court
Gopal Pal vs State Of Odisha ……. Opposite Party on 10 April, 2025
THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No.1092 of 2024
(In the matter of an application under Section 482 of the Criminal
Procedure Code, 1973)
Gopal Pal ....... Petitioner
-Versus-
State of Odisha ....... Opposite Party
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
CORAM:
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA
-----------------------------------------------------------------------------------------
Date of Hearing: 05.03.2025 :: Date of Judgment: 10.04.2025
———————————————————————————-
S.S. Mishra, J. The petitioner has filed the present application under
Section 482 of the Code of Criminal Procedure, 1973, seeking
quashing of the criminal proceedings initiated against him and
assailing the order dated 26.02.2024, passed by the learned
Sessions Judge-cum-Special Judge, Malkangiri arising out of
Kalimela P.S. Case No.212 of 2023, corresponding to Special
G.R. Case No.182 of 2023.
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2. Heard, Mr. Basudev Pujari, learned Counsel for the
petitioner and Mr. S.N. Biswal, learned Additional Standing
Counsel for the opposite party.
3. The prosecution case in brief is that on 28.08.2023, the
informant, Sujit Kumar Biswas, while performing patrolling
duties in the Ghat road area of Kamalapadar under Kalimela P.S.,
noticed an individual was standing with a heap of plastic bags on
the roadside at around 11:20 P.M. Upon seeing the patrolling
party, the person immediately fled into the jungle, but was
pursued and apprehended. The accused, identified as Gopal Pal,
in the instant case the petitioner-accused was found to be
carrying a gun (SBML gun).
The petitioner-accused admitted to have been guarding
the plastic bags, which contained contraband Ganja intended for
transportation out of the State. He further disclosed that the Ganja
had been entrusted to him by one Pratham Patra @ Ghatak Patra
and his associates. The petitioner also named several other
individuals, who were involved in the trafficking racket.
A total of 42 plastic jerry bags containing 1050 kg of
contraband Ganja (excluding the weight of the bags) were seized.
Based on this information, an FIR was filed, and an investigation
was initiated and it is pertinent to mention that the accused
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petitioner was taken to custody on the very same day, i.e., on
28.08.2023.
4. The charge sheet concerning the incident was filed before the
learned Sessions Judge-cum-Special Judge, Malkangiri, on
24.02.2024 (Saturday). In the meanwhile, the petitioner moved
an application for bail under Section 167(2) of the Cr.P.C. on
26.02.2024 (Monday), asserting that he had been remanded to
custody on 28.08.2023 and had completed 180 days of detention
on 23.02.2024, contending that, in terms of Section 36A(4) of
the NDPS Act read with Section 167(2) of the Cr.P.C., the
statutory period for filing the charge sheet in offences under the
NDPS Act was 180 days, and since the charge sheet had not been
filed within that period, he was entitled to default bail. However,
by impugned order dated 26.02.2024, the learned Sessions Judge-
cum-Special Judge, Malkangiri, rejected the application, noting
that the charge sheet had already been filed on 24.02.2024.
5. Learned Counsel for the petitioner submits that the
petitioner was unaware of his right to default bail, neither was he
informed about the same on the 181st day of being taken into
custody. The charge sheet was filed while the petitioner was in
custody on 24.02.2024 (Saturday), and the bail application was
subsequently filed on 26.02.2024 (Monday). However, the bail
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application was rejected on technical grounds, despite the fact
that the right to default bail is an indefeasible right of the
accused.
6. The learned Counsel for the petitioner relied on several
judgments of this Court to support his contention regarding the
petitioner’s indefeasible right to default bail.
In Suresh Chandra Sahoo @ Sura @ Sarat Chandra
Sahoo v. State of Odisha1, this Court held that the denial of
default bail was invalid where the charge sheet was filed 10 days
after the expiry of 180 days. The Court observed that the accused
was neither produced before the Court on the 181st day nor
informed of his right to be released on default bail, thereby
setting aside the order of rejection.
Further, in Lambodar Bag v. State of Orissa2, this
Court emphasized that while Section 36A(4) of the NDPS Act
does not explicitly mandate notice to the accused before granting
an extension of the statutory period, such a requirement must be
read into the provision in the interest of justice. The Court held
that no extension shall be granted by the Special Court without
issuing such a notice and that the prosecution must submit its
1
AIRONLINE 2023 ORI 361
2
2018 (II) OLR – 918
Page 4 of 10
report in advance, not on the last day, to ensure the accused has a
fair opportunity to contest the extension.
7. Further he relied on the principles laid down in the
judgement of Laxmidhar Behera v. State of Odisha3, in which
this Court held thus:-
” Section 167 Cr.P.C. specifically stipulates that the
Magistrate in an pending investigation can remand the
accused for a term not exceeding 15 days at a time and
in total for a period of 90 days, in Odisha context 120
days, where the investigation relates to an offence
punishable with death, imprisonment for life or
imprisonment for a term of not less than ten years, and
60 days, where the investigation relates to any other
offence. Under this provision, the power of the
Magistrate to detain the accused in custody comes to an
end after expiry of the aforesaid period unless the
charge sheet is filed as the learned Magistrate
thereafter has no jurisdiction to remand the accused
under Section 167 of Cr.P.C. in a case pending
investigation. However, the same is subject to exception
that if the accused after expiry of the period, even if bail
is offered does not avail of the same, then under the
enabling provision of the said section, the Magistrate
can remand the accused, even if investigation has not
been completed within the stipulated period. The Apex
Court in a number of cases have held that the accused
incarcerated is required to be informed by the Court
remanding him under Section 167 of Cr.P.C. when the
investigation is not completed within the stipulated
period, regarding accrual of his right to be released on
bail for such default of the investigation. Reference in
this regard can be made to the case Rakesh Kumar
Paul v. State of Assam, reported in (2017) 15 SCC 67.”
Learned Counsel for the petitioner relying on the above
case contends that the learned Special Judge, Malkangiri, erred in
rejecting the bail application without informing the accused of his
3
2021 (1) OLR-810
Page 5 of 10
statutory right, thereby also violating the principles of natural
justice. Further, the restrictions under Section 37 of the NDPS
Act do not apply to default bail, as affirmed in Lambodar Bag v.
State of Orissa (supra). Since the charge-sheet was filed
belatedly on 24.02.2024 (181st day), the petitioner’s right to
default bail had already accrued and could not be defeated. The
rejection of bail has caused serious prejudice to the petitioner,
warranting interference by this Court to uphold the settled legal
principles and prevent a miscarriage of justice.
8. The current Investigating Officer (hereinafter IO, for
brevity), in his compliance affidavit, submits that the delay in
filing the charge-sheet arose as he assumed charge of the case 32
days after the petitioner was taken into custody. He further states
that the intervening time was diligently spent due to recording of
the Section 161 Cr.P.C. statements of the Executive Magistrate
and other witnesses, as well as completing the requisite official
procedures. Acknowledging the lapse, the IO tenders his
unconditional apology for the delay.
9. The right to personal liberty and a fair trial are sacrosanct
principles enshrined under Article 21 of the Constitution of India.
The statutory protection granted to an accused under Section
167(2) of the Cr.P.C. and corresponding provisions of the special
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statutes ensures that no individual is unjustly detained beyond the
prescribed period unless valid extensions are granted in
accordance with the law. The Hon’ble Supreme Court, in
multiple rulings, has emphasized that procedural safeguards must
be strictly adhered to, failing which the accused is entitled to bail
as a matter of right. In Hitendra Vishnu Thakur v. State of
Maharashtra4, the Apex Court has laid down clear principles
regarding the grant of bail upon default of the investigating
agency, holding as follows:
“Thus, we find that once the period for filing the charge-sheet
has expired and either no extension under clause (bb) has been
granted by the Designated Court or the period of extension has
also expired, the accused person would be entitled to move an
application for being admitted to bail under sub-section (4) of
Section 20 TADA read with Section 167 of the Code and the
Designated Court shall release him on bail, if the accused seeks
to be so released and furnishes the requisite bail. We are not
impressed with the argument of the learned counsel for the
appellant that on the expiry of the period during which
investigation is required to be completed under Section 20(4)
TADA read with Section 167 of the Code, the court must release
the accused on bail on its own motion even without any
application from an accused person on his offering to furnish
bail. 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 and once such
an application is made, the court should issue a notice to the
public prosecutor who may either show that the prosecution has
obtained the order for extension for completion of investigation
from the court under clause (bb) or that the challan has been
filed in the Designated Court before the expiry of the prescribed
period or even that the prescribed period has actually not
expired and thus resist the grant of bail on the alleged ground of
‘default’. The issuance of notice would avoid the possibility of an
accused obtaining an order of bail under the ‘default’ clause by
either deliberately or inadvertently concealing certain facts and4
(1994) 4 SCC 602
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would avoid multiplicity of proceedings. It would, therefore,
serve the ends of justice if both sides are heard on a petition for
grant of bail on account of the prosecution’s ‘default’. Similarly,
when a report is submitted by the public prosecutor to the
Designated Court for grant of extension under clause (bb), its
notice should be issued to the accused before granting such an
extension so that an accused may have an opportunity to oppose
the extension on all legitimate and legal grounds available to
him. It is true that neither clause (b) nor clause (bb) of sub-
section (4) of Section 20 TADA specifically provide for the
issuance of such a notice but in our opinion the issuance of such
a notice must be read into these provisions both in the interest of
the accused and the prosecution as well as for doing complete
justice between the parties. This is a requirement of the
principles of natural justice and the issuance of notice to the
accused or the public prosecutor, as the case may be, would
accord with fair play in action, which the courts have always
encouraged and even insisted upon. It would also strike a just
balance between the interest of the liberty of an accused on the
one hand and the society at large through the prosecuting
agency on the other hand. There is no prohibition to the issuance
of such a notice to the accused or the public prosecutor in the
scheme of the Act and no prejudice whatsoever can be caused by
the issuance of such a notice to any party…………….”
The above judgment reinforces that an accused must be
informed of his statutory rights and given the opportunity to seek
bail when the investigating agency defaults in completing the
investigation within the stipulated time. However, in the instant
case, the accused was neither produced before the Magistrate nor
made aware of his right to seek bail under the ‘default’ clause.
The interpretation of the Hon’ble Apex Court in the aforesaid
judgment directly flows from statutory provisions contained in the
Proviso (a) to Section 167(2) of Cr.P.C., 1973 which reads thus: –
“(a) the Magistrate may authorise the detention of the
accused person, otherwise than in the custody of the
police, beyond the period of fifteen days, if he is
satisfied that adequate grounds exist for doing so, but
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no Magistrate shall authorise the detention of the
accused person in custody under this paragraph for a
total period exceeding,
(i)ninety days, where the investigation relates to
an offence punishable with death, imprisonment
for life or imprisonment for a term of not less than
ten years;
(ii)sixty days, where the investigation relates to
any other offence, and, 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,
and every person released on bail under this sub-
section shall be deemed to be so released under
the provisions of Chapter XXXIII for the purposes
of that Chapter;”
Special emphasis has to be supplied to the fact that the grant
of bail under the aforesaid provision is not automatic rather
dependent upon the preparedness of the accused person to furnish
bail bond. However, in the same breath in order to enable the
accused to be prepared to furnish bail bond or otherwise, 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.
Which in the fact of the present case has not been complied with
and the accused in the first available opportunity moved the
application for default bail. Such a lapse amounts to a grave
miscarriage of justice, directly infringing upon his fundamental
rights under Article 21, which guarantees personal liberty and the
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right to a speedy trial. Denying an individual the protection ofprocedural safeguards enshrined in law not only weakens the
administration of justice but also undermines the constitutional
mandate of fairness and due process. Therefore, judicial
intervention is necessary to rectify this violation and uphold the
rule of law.
10. Taking into consideration of the entire conspectus, material
available on record, the judgments cited and on basis of the
foregoing discussion, the impugned order dated 26.02.2024 passed
by the learned Sessions Judge-cum-Special Judge, Malkangiri in
Special G.R. Case No.182 of 2023, arising out of Kalimela P.S.
Case No.212 of 2023, is quashed, and the accused-petitioner be
released on bail subject to such conditions as may be imposed by
the learned trial court. However, at this stage, it would not be
appropriate to quash the entire proceedings, as beseeched.
11. With the above direction, this CRLMC is disposed of.
(S.S. Mishra)
Judge
Orissa High Court, Cuttack,
Dated the 10th April, 2025/ Subhasis
Signature Not Verified
Digitally Signed
Signed by: SUBHASIS MOHANTY
Designation: Personal Assistant
Reason: Authentication
Location: High Court of Orissa, Cuttack.
Date: 10-Apr-2025 18:24:51
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