Sanatan Sahu vs State of Orissa

A. Pasayat, J.—Petitioner assails the order dated 16-1-1991 passed by the learned Sessions Judge, Koraput, Jeypore, cancelling the bail granted by the learned Sub-divisional Judicial Magistrate, Jeypore.

It appears that the petitioner was released on bail by extending the privilege provided under proviso (a) to Sub-section (2) of Section 167 of the Code of Criminal Procedure, 1973 (in short ''the Code''). The petitioner was arrested for being in illegal possession of 9 Kgs. 600 gms.of Ganja. The petitioner was arrested and was remanded to custody on refusal of bail by the learned Sub-divisional Judicial Magistrate, on 18-8-1990. Petitioner''s bail application before the learned Sessions Judge was once turned down on 20-10-1990. Since no final form was received from the investigating agency, application for bail was moved on 22-10-1990 before the learned Sub-divisional Judicial Magistrate, who taking note of proviso (a) to Sub-section (2) of Section 167 released the petitioner on bail. Subsequently on completion of investigation charge-sheet has been submitted. An application for cancellation of bail was filed by the prosecution.

The learned Sessions Judge was of the view that there was material to show that the petitioner had committed serious offence for which punishment up to five years'' rigorous imprisonment and fine extending Rupees 50,000/- can be imposed and therefore, the bail granted was to be cancelled. He was of the view that provisions of Section 167(2) have no application to offences under the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short ''the Act''). The accused has made this application for interference with the order cancelling bail granted.

It is submitted that the learned Sessions Judge was not justified in holding that the proviso to Sub-section (2) of Section 167 was not applicable to offences under the Act and therefore, his order cancelling bail granted is illegal; though the petitioner was released on bail long time back there is no allegation of his having misused the liberty; and therefore cancellation of bail is not proper.

So far as the question as to whether Section 167(2) proviso applies to the proceedings under the Act is concerned, I find this Court had occasion to consider this aspect in 1991 4 Ori Cri 162 : Dayanidhi Khilla v. The State, where it has been held that the Sub-section (2) of Section 167 is applicable. Therefore, the contrary view indicated by learned Sessions Judge is indefensible.

The residual question is whether the bail which was granted in October, 1990 can be cancelled. As observed by the Supreme Court in Rajnikant Jivanlal and Another Vs. Intelligence Officer, Narcotic Control Bureau, New Delhi, and (1990) 2 Ori LR 213 : State v. Surendranath Mohanty, where an accused has been released by application of the proviso (a) to Sub-section (2) of Section 167 of the Code and subsequently a charge-sheet has been submitted, it is open to the Court to cancel the bail granted. This is imperated because of the statutory prohibition contained in Section 37 of the Act prohibiting grant of bail in cases involving offences punishable imprisonment for five years and more. While releasing an accused by application of the proviso (a) to Sub-section (2) of Section 167 merits of the case are not gone into. An order for release under proviso (a) to Section 167(2) of the Code has been termed as an order on default. It is a release on default of prosecution in not filing charge-sheet or prosecution report, as the case may be, within prescribed period. The right to such bail is absolute, without any discretion and is a legislative command. At that stage merits of the case are not examined. This view has the authority of the apex Court in Rajnikant''s case (supra). The prosecution has option to seek cancellation of bail after defect of non-filing of charge-sheet within stipulated time is cured, on the ground that accused has committed non-bailable offence. (See Raghubir Singh and Others Vs. State of Bihar, . Therefore, there is nothing wrong in the consideration of merits of the case vis-a-vis Section 37 of the Act while dealing with a case for cancellation of bail. Merely because an accused after release on bail has not misused his liberty cannot confer any right on him to continue on bail. This is one of the factors which may be considered by the Court; but while dealing with the offences under the Act which provides for such rigid conditions relating to bail, the good conduct after release on bail cannot be a very relevant consideration. In view of the mandate of Section 37 of the Act, I feel cancellation of bail was in order.

The application is, accordingly, rejected. Application rejected.