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Hrishikesh Sahoo vs State Of Karnataka By on 2 July, 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 02ND DAY OF JULY 2018

BEFORE

THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA

CRIMINAL PETITION NO.2966 OF 2018

BETWEEN:

HRISHIKESH SAHOO
S/O JAGANNATH SAHOO,
AGED ABOUT 43 YEARS
R/AT FLAT NO.306,
S.K.RESIDENCY, 6TH CROSS,
KASUVANAHALLI,
SASRJAPURA,
BENGALURU-560035. … PETITIONER

(By Sri. HASHMATH PASHA, ADVOCATE)

AND:

STATE OF KARNATAKA BY
WOMEN POLICE STATION,
EAST ZONE,
BANGALORE-560086.
(REPRESENTED BY THE LEARNED
STATE PUBLIC PROSECUTOR) … RESPONDENT

(BY SRI: S.VISHWA MURTHY, HCGP)

THIS CRL.P IS FILED U/S.439 CR.P.C PRAYING TO ENLARGE
THE PETITIONER ON BAIL IN CRIME NO.19/2017
(SPL.C.C.NO.356/2017) OF WOMEN POLICE STATION, EAST ZONE,
BANGALORE CITY FOR THE OFFENCE PUNISHABLE UNDER SECTIONS
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498A,376,354,506 OF IPC AND SECTION 5(M) (L) R/W 6 OF
PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT.

THIS CRL.P COMING ON FOR ORDERS THIS DAY, THE COURT
MADE THE FOLLOWING:-

ORDER

The petitioner has sought for his release on bail under

section 439 of Cr.P.C. in Crime No.19/2017.

2. The investigation is completed and charge-sheet is

laid against the petitioner/accused No.1 and accused Nos.2 and

3 for the offences punishable under sections 498A, 377, 354,

506 of IPC and sections 5(m), 5(l) read with section 6 of POCSO

Act.

3. Heard the learned counsel for the petitioner and the

learned HCGP.

4. Even though the petition is filed under section 439 of

Cr.P.C., it is seen from the records that, on the earlier occasion,

the petitioner had approached this court by making a petition

under section 439 of Cr.P.C. The said petition has been
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dismissed on merits by order dated 17.11.2017 in Criminal

Petition No.5739/2017.

5. In the course of hearing, learned counsel for the

petitioner Sri.Hashmath Pasha, placing reliance on the decision

of the Hon’ble Supreme Court of India in RAKESH KUMAR PAUL

vs. STATE OF ASSAM reported in (2017) 15 SCC 67, with

reference to para 44, submitted that, irrespective of the

dismissal of the earlier bail petition under section 439 of Cr.P.C.,

the petitioner is entitled to maintain the petition under section

167(2) of Cr.P.C. It is the submission of the learned counsel

that the petitioner was remanded to judicial custody on

22.03.2017. Since the offences charged against the petitioner

are punishable with imprisonment for ten years, an indefeasible

right has accrued to the petitioner under section 167(2) of

Cr.P.C., on account of the failure of the prosecution to file the

charge-sheet within 90 days from the date of his remand.

Having regard to the date of remand, the charge-sheet was

required to be filed by 19.06.2017, but the Investigating Officer

presented the charge-sheet before the court only on 21.06.2017
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i.e., on the 92nd day after the remand. On the same day, an

application was filed by the petitioner under section 167(2) of

Cr.P.C. In view of the ratio laid down in the above decision, it

was the duty and responsibility of the court on coming to know

that the accused person before it is entitled to “default bail”, to

apprise the petitioner of his indefeasible right. In the case on

hand, the learned Sessions Judge not only failed to apprise the

petitioner of his right to make the application, but the application

filed by him under section 167(2) of Cr.P.C., has been rejected

solely on the ground that earlier to the filing of the application,

the Investigating Officer has filed the charge-sheet. It is the

submission of the learned counsel that the endorsement found

on the charge-sheet indicates that the charge-sheet was filed

into the court at 12.40 p.m. on 21.06.2017, whereas the

petitioner has presented the petition in the office at 10.30 a.m.

Hence, in the light of the law expounded by the Hon’ble Supreme

Court in the above decision, the petitioner is entitled for “default

bail” under section 167(2) of Cr.P.C.

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6. Refuting the contention, the learned HCGP would

contend that the petitioner having not made any application

before the submission of the charge-sheet, the right of the

petitioner to seek statutory bail is lost once the charge-sheet is

filed before the court and hence, the petitioner is not entitled for

any relief at the hands of this Court.

7. In the light of the contentions urged by the parties,

the only point that arises for consideration is:

Whether in the fact situation of the present case,

the petitioner is entitled to “default bail” or

“statutory bail” in terms of section 167(2) of

Cr.P.C.?

8. In order to answer the above question, it is

necessary to take note of the chronology of the dates leading to

the presentation of the petition. On 21.03.2017, FIR came to be

registered against the petitioner on the basis of the complaint

lodged by his wife alleging commission of the offences

punishable under sections 498A, 506, 323, 377 of IPC and

section 10 of POCSO Act. Petitioner/accused was remanded to
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judicial custody on 22.03.2017. The accused moved an

application under section 439 of Cr.P.C. before the trial court at

the stage of investigation. The said application was dismissed by

order dated 01.06.2017. On 21.06.2017, charge sheet was laid

against the petitioner/accused No.1 and accused Nos.2 and 3 for

the offences punishable under sections 498A, 377, 354, 506 of

IPC and sections 5(m), 5(l) read with section 6 of POCSO Act.

On the same day i.e., on 21.06.2017, petitioner moved an

application for bail under section 167(2) read with section 439 of

Cr.P.C. before the Sessions Court and the same was dismissed

by order dated 28.06.2017. The observation made by the

learned Sessions Judge in his order dated 28.06.2017 would

indicate that the petitioner had earlier filed an application before

the trial court under section 167(2) read with section 439 of

Cr.P.C. It is recorded that the said petition was also dismissed

by order dated 05.06.2017. Thereafter, the petitioner

approached this Court once again moving a petition under

section 439 of Cr.P.C. As already noted above, even that

petition came to be dismissed on merits by order dated

17.11.2017 in Criminal Petition No.5739/2017.
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9. It is pertinent to note that the charge-sheet was filed

on 21.06.2017 much earlier to the presentation of the petition

before this Court under section 439 of Cr.P.C. It is relevant to

note that neither in the said petition nor in the course of hearing

before this Court, the petitioner sought for his release under

section 167(2) of Cr.P.C. Undisputedly, as on the date of

presentation of the petition before this Court in Criminal Petition

No.5739/2017, charge-sheet was already filed into the court.

Inspite of it, the petitioner sought bail only under section 439 of

Cr.P.C. It is only during the hearing of this petition the learned

counsel for the petitioner has canvassed a plea that the

petitioner is entitled to invoke section 167(2) of Cr.P.C. as of

right. In order to support this argument, learned counsel has

heavily placed reliance on the decision of the Hon’ble Supreme

Court in the case of Rakesh Kumar, referred to supra. But in

view of the facts discussed above, in my opinion, the said

decision does not avail to the benefit of the petitioner.

10. In the said case, the issues that fell for consideration

of the Hon’ble Supreme Court are: (i) When an accused is
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charged with an offence in which the punishment imposable is

up to 10 years, whether the accused is entitled to grant of bail in

terms of Section 167(2) of the Code if the investigating agency

does not file the charge-sheet within a period of 60 days? and

(ii) Whether an accused can be enlarged on bail under Section

167(2) even though he may not have made an application in

writing under Section 167(2) of the Code but has orally argued

that he is entitled to grant of “default bail”?

11. In the aforesaid case, the first information report

was lodged on 27.10.2016 in respect of allegations made under

the provisions of the Prevention of Corruption Act, 1988. On

20.12.2016 (before the expiry of 60 days), the petitioner applied

for bail before the Special Judge. His application was rejected.

Subsequently, on or about 11.01.2017 (after the expiry of 60

days of detention but before the expiry of 90 days of detention),

the petitioner applied for regular bail before the Gauhati High

Court, but the application was rejected on 11.01.2017. The

prayer made in the application for bail was for grant of “regular

bail” under section 439 of Cr.P.C. Even though the petitioner
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had not applied for “default bail”, he contended before the High

Court that he was entitled to “default bail” since no charge-sheet

had been filed against him within 60 days. It is in that context,

the Hon’ble Supreme Court (Two Judges) held that in the

matters of personal liberty and Article 21 of the Constitution, it is

not always advisable to be formalistic or technical. In para 40,

Hon’ble Mr.Justice Madan B.Lokur and Hon’ble Mr.Justice Deepak

Gupta, on behalf of the Bench, observed that in matter of

personal liberty, court should not be too technical and must lean

in favour of personal liberty. Consequently, whether the accused

makes a written application for “default bail” or an oral

application for “default bail” is of no consequence. The Court

concerned must deal with such an application by considering the

statutory requirements, namely, whether the statutory period for

filing a charge-sheet or challan has expired, whether the charge-

sheet or challan has been filed and whether the accused is

prepared to and does furnish bail. In the above decision, the

Hon’ble Supreme Court has proceeded on the basis that the

Constitutional Courts have taken the view that in the matters

concerning personal liberty and penal statutes, it is the
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obligation of the Court to inform the accused that he or she is

entitled to free legal assistance as a matter of right. Drawing

parallel from this principle, in para 44, it is held as under:

“That being so we are of the clear opinion
that adapting this principle, it would
equally be the duty and responsibility of a
court on coming to know that the accused
person before it is entitled to “default bail”,
to at least apprise him or her of the
indefeasible right. A contrary view would
diminish the respect for personal liberty,
on which so much emphasis has been laid
by this Court as is evidenced by the
decisions above, and also adverted to in
Nilara Yadav”.

12. In the case on hand, as already referred above, the

petitioner did make an application before the trial court prior to

the submission of the charge-sheet as well as after the

submission of the charge-sheet. The application filed by him

subsequent to the submission of the charge-sheet was rejected

mainly on the ground that the accused had no right to claim his

release on bail after filing of the charge-sheet. Petitioner did not
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invoke section 167(2) of Cr.P.C. before this Court in Criminal

Petition No.5739/2017 nor did the learned counsel contend that

the petitioner is entitled for default bail, apparently for the

reason that the application filed under section 167(2) of Cr.P.C.

was rightly rejected. Petitioner having already made an

application under section 167(2) of Cr.P.C., and having suffered

an adverse order, there was absolutely no occasion for this

Court, while dealing with the petition in Criminal Petition

No.5739/2017, to apprise the petitioner of his indefeasible right.

Therefore, the ratio laid down in the above decision cannot be

taken shelter by the petitioner. Petitioner has to stand or fall on

the strength of his case under section 439 of Cr.P.C. But,

unfortunately, the said petition being the second attempt made

by the petitioner before this court, in the absence of any

changed circumstance, the petitioner is not entitled for the relief

of bail even on merits. Needless to say that while dealing with

the petition filed under section 439 of Cr.P.C. in Criminal Petition

No.5739/2017, this Court has dealt at length the materials

produced by the prosecution along with the charge sheet and

has considered the rival contentions urged by the parties and
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has rejected the bail application on merits. Petitioner has not

made out any changed circumstance to sustain this petition.

For these reasons, the petition is liable to be dismissed.

Accordingly, Criminal Petition is dismissed.

Sd/-

JUDGE

Bss

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