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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
