“Court Not Supposed To Act As Agent Of Prosecution”: Orissa HC Pulls-Up Trial Judges For Rejecting Default Bail Despite Non-Submission Of Chargesheet

While setting aside the orders of both the Courts below, the Single Judge Bench of Justice Sashikanta Mishra said,

“It must be kept in mind that the Court is not supposed to act as an agent of the prosecution so as to be left at its mercy. When the question of liberty of a person is involved, it is expected that the Court shall rise to the occasion to dispense justice without in the least aligning itself with any party whatsoever. It has been emphasized time and again that right to default bail is akin to the fundamental right of liberty guaranteed under Article 21 of the Constitution of India.”

It added, "A bare reading of the observations as above, prompts this Court to hold that the Presiding Officer travelled beyond his brief to somehow condone the default of the prosecution by calling for the charge sheet that had not been placed before him."

Case Background

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 case was put up for consideration of an application filed by them for release on default bail, as per the provision under Section 167(2) of CrPC, on the ground that chargesheet had not been submitted even after lapse of the statutory period of 120 days.

The Judicial Magistrate First Class (JMFC) found that a chargesheet had in fact been submitted by the investigating officer on 05.11.2022, but for some reason, it was not placed before the Court. Thus, he directed the Court Sub-Inspector (CSI) attached to the Court to place the chargesheet in the open court forthwith.

Subsequently, a staff of CSI placed the chargesheet in presence of both the parties. On perusal of the chargesheet, the JMFC having found that the same had been submitted on 05.11.2022 but was not placed before the Court due to laches and lapse of CSI staff, held that the right of the accused persons to statutory bail came to an end.

Being aggrieved, they moved the Court of Sessions citing accrual of indefeasible right to default bail. However, the Sessions Judge conceded to the finding of the JMFC that as the chargesheet was submitted by the I.O. on 05.11.2022, though was not placed before the Court, the rights of accused persons to default bail came to an end. The application was thus rejected.

Court’s Observations

The Court noted that the chargesheet was placed before the JMFC for the first time on 11.11.2022, which is five days after the stipulated period of 120 days, i.e., 07.11.2022.

“It is reiterated that an indefeasible right to be released on bail accrued to the petitioners on the 121^st 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 of the accused persons to inform them of their right to be released on default bail”, it observed.

The Court was of the opinion that the JMFC committed a glaringly manifest illegality by condoning the delay of the prosecution in submitting the chargesheet.

“Chargesheet is to be filed in the Court and not before the Court Sub-Inspector. Even if for some reason it is submitted before the Sub-Inspector, the same is required to be immediately placed before the concerned Court without any delay. Submission of the charge sheet before the Court Sub-Inspector is therefore, not the same thing as submission before the Court because once it is filed, it is to be taken on record by passing a judicial order,” it clarified.

The Court lamented that the JMFC, despite noting that due to laches and lapse of CSI staff the chargesheet could not be placed before the Court in time, travelled beyond his brief to somehow condone the default of the prosecution by calling for the chargesheet that had not been placed before him.

Justice Mishra opined that the JMFC could not have taken such an unconscionable view which defeated the valuable right of the accused persons. Above all, he was surprised by the fact that the Sessions Judge, despite being a senior judicial officer, also failed to appreciate the principle of law.

“It is unfortunate that learned Sessions Judge, despite taking note of the manifest illegality chose to turn the other way instead of exercising his jurisdiction appropriately. The bail application was thus mechanically rejected without so much even entering into a discussion as regards the illegality committed by the Court below. Learned Sessions Judge ought to have exhibited the sensitivity required of a senior officer in such fact situation,” he noted.

Consequently, Justice Mishra held that both the Courts below have committed gross illegality in rejecting the petition filed by the petitioners for default bail, despite non-submission of charge sheet within the stipulated period. Thus, he ordered to release the petitioners on default bail forthwith.

Case Title: Raja @ Raj Kishore Behera & Anr. v. State of Odisha

Case No.: CRLMC No. 343 of 2023

Date of Judgment: April 4, 2023

Counsel for the Petitioners: Mr. C. Mishra, P.K. Nanda, & D. Sahoo, Advocates

Counsel for the State: Mr. S.K. Mishra, Addl. Standing Counsel

Citation: 2023 LiveLaw (Ori) 51