180 days for completion of the investigation is stipulated in sub-section (4) of section 36-A of the N.D.P.S. Act: Orissa High Court
It was the duty and responsibility of the Court to appraise the petitioners of their indefeasible right of default bail on account of non-submission of final form within the extended period of completion of the investigation. Such an opinion was held by The Hon’ble High Court of Orissa before The Hon’ble Mr. Justice S.K. Sahoo in the matter of Rajendar Kakodiya @ Rajendra Kakodia and another Vs. State of Odisha [BLAPL No. 1197 of 2021 ]. The facts of the case were associated with an application filed by the petitioners for bail under sections 439 of Cr.P.C. A charge sheet was submitted in connection to the petitioner for alleged commission of offences under sections 20(b)(ii)(C), 25, 27-A and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. It was reported that a speeding car, bike and truck was going towards Raipur. The said vehicles did not stop when they were signalled to stop, the police upon chasing them were able to detain them. Petitioner no.1 Rajendra Kakodia was found to be driving the truck bearing registration No. CG 04 MD-9036 and petitioner no.2 Swarup Ulkey was the helper of the truck. On search smell of contraband, ganja was found coming from the truck. eleven packets containing contraband ganja and 289 packets containing rice bran in plastic bags were found in the truck. The net weight of ganja came to be 498 kg. The petitioner approached the court for bail application. Upon verification of the order sheet of the learned trial Court, it is found that Investigating Officer was unable to complete the same within 180 days of the institution of the case. Counsel representing the petitioner filed an interim application and challenged the extension granted by the learned trial Court to complete the investigation. It was contended that mere service of copies of the petition on the defence counsel is not sufficient compliance as per law. It was found, that the occasion arose for putting up the case record in advance prior to the date fixed was on account of filing of the petition by the learned Special Public Prosecutor along with the prayer of the Investigating Officer to extend the time for completion of the investigation.  The Hon’ble Court stated that “… the period of completion of the investigation was extended to a further period of three months, such extended period has to commence from 02.04.2021 and not from 18.03.2021 on which date the order was passed. The extended period ended on 30.06.2021. The learned trial Court should have clarified this aspect in the order dated 18.03.2021 itself, which has not been done…” The Hon’ble High Court of Orissa considering all the facts and submissions ruled out that “… Let the petitioners be released on bail in the aforesaid case on furnishing a bail bond of Rs.2,00,000/- (rupees two lakhs) each with two local solvent sureties each for the like amount to the satisfaction of the learned Court in seisin over the matter with further conditions as the learned Court may deem just and proper including the condition that they shall appear before the learned trial Court on each date to which the case would be posted for trial. Violation of any of the conditions shall entail cancellation of bail. The BLAPL is accordingly allowed…” Click here to read the Judgment
IN THE HIGH COURT OF ORISSA CUTTACK BLAPL No. 11921 Application under section 439 of the Code of Criminal Procedure 1973 in connection with T.R. Case No.17 of 2020 arising out of Muniguda P.S. Case No.131 of 2020 pending in the Court of Addl. Sessions Judge cum Special Judge Gunupur. 1. Rajendar Kakodiya Rajendra Kakodia 2. Sarup Uikey @ Swarup Ulkey Versus ....... Petitioners State of Odisha Opp. Party For Petitioners: Mr. Saktidhar Das Senior Advocate For Opp. Party: A.S.C. P R E S E N T: Mr. P.K. Mohanty THE HONOURABLE MR. JUSTICE S.K. SAHOO Date of Hearing: 07.10.2021 Date of Order: 18.10.2021 S.K. SAHOO J. This is an application for bail under section 439 of Cr.P.C. filed by Rajendar Kakodiya @ Rajendra Kakodia and Sarup Uikey @ Swarup Ulkey in connection with Muniguda P.S. Case No.1320 corresponding to T.R. Case No.120 pending in the Court of learned Addl. Sessions Judge cum 2 Special Judge Gunupur in which charge sheet has been submitted for alleged commission of offences under sections 20(b)(ii)(C) 25 27 A and 29 of the Narcotic Drugs and Psychotropic Substances Act 198525 27 A and 29 of the N.D.P.S. Act. The co accused persons were produced in the Court of learned Special Judge Gunupur on 04.10.2020 along with the seized contraband ganja packets. On the prayer of the Investigating Officer the learned S.D.J.M. drew up two sample packets of fifty grams from each of the packets and sent it to R.F.S.L. Berhampur for chemical examination and opinion. The rest of the contraband ganja in eleven packets was kept in Court Malkhana Gunupur. The petitioners were not produced on 04.10.2020 with the other co accused persons as they were tested positive for COVID 19. The petitioner no.1 Rajendra Kakodia was forwarded to Court on 13.10.2020 and the petitioner no.2 Swarup Ulkey was forwarded to Court on 18.10.2020 and both of them were remanded to jail custody. The petitioners moved an application for bail on 04.12.2020 before the learned trial Court which was rejected on 5 the very day. The petitioners approached this Court for bail on 11.02.2021 against such rejection order. On verification of the order sheet of the learned trial Court it is found that on 15.03.2021 the case record was put up on a petition filed by the learned Special Public Prosecutor along with the prayer of the Investigating Officer in which extension of time was sought for to complete the investigation as the Investigating Officer was unable to complete the same within one hundred and eighty days of the institution of the case which was to end on 1st April 2021. The learned trial Court on 15.03.2021 directed the learned Special Public Prosecutor to serve the copy of the petition on the learned defence counsel by 17.03.2021 and the petition was also ordered to be placed on that day for consideration. On 17.03.2021 the learned trial Court observed that the copy of the prayer of the Investigating Officer was served on the learned defence counsel but no objection was filed. The petition was ordered to be placed on 18.03.2021 for hearing. On 18.03.2021 on considering the prayer made by the Investigating Officer and the petition of the learned Special Public Prosecutor dated 15.03.2021 the learned trial Court extended the completion of investigation for a further period of 6 three months. The order dated 18.03.2021 is quoted herein below in extenso: “The record is put up today on the prayer of the I.O. through the Special P.P. for extension of three months investigation as per the provisions under section 36A(4) of the N.D.P.S. Act. The Special P.P. has also submitted a report in brief. Copy of the prayer of the I.O. is served on the adversary. Heard on the prayer of maintaining the guidelines issued by the Health Authority from time to time. Gone through the prayer of the I.O. and the grounds taken by him report of the Spl. P.P. the up to date C.D. along with other connecting papers submitted by the I.O. along with his prayer. Investigation reveals commercial quantity of contraband Ganja has been seized from the possession of persons. So consideration the facts and circumstances of the case and the interest of justice the prayer of the I.O. is allowed. Accordingly the period for completion of is extended to further period of three months. Intimate the I.O. accordingly.” The petitioners moved an application for default bail under section 167(2) of Cr.P.C. on 16.04.2021 on the ground that the Investigating Officer had failed to complete the 7 investigation within the statutory period of one hundred and eighty days. The learned trial Court rejected the petition on the ground that on 18.03.2021 on the prayer of the Investigating Officer through Special Public Prosecutor time for completion of investigation had been extended for a further period of three months25 27 A and 29 of the N.D.P.S. Act against seven accused persons including the two petitioners. It is very clear that even though charge sheet is dated 29.06.2021 but it was filed in Court on 09.07.2021 and on perusal of the charge sheet along with connected documents the learned trial Court found prima facie case against all the seven accused persons charge sheeted for commission of the aforesaid 8 offences and accordingly cognizance of the offences was taken. Since the investigation was kept open for the arrest of the other co accused persons the learned trial Court while passing the cognizance order directed the Investigating Officer to complete the investigation as early as possible. Mr. S.D. Das learned Senior Advocate appearing for the petitioners contended that in view of the ratio laid down by this Court in the case of Lambodar Bag Vrs. State of Odisha reported in 71 Odisha Criminal Reports 31 the extension of time granted by the learned trial Court on 18.03.2021 for completion of investigation considering the prayer made by the I.O. and the petition filed by the Special Public Prosecutor without hearing the petitioners or their counsel is illegal. He further relied on the decisions of the Hon’ble Supreme Court in the case of Rakesh Kumar Paul Vrs. State of Assam reported in 15 Supreme Court Cases 67 so also M. Ravindran Vrs. Intelligence Officer Directorate of Revenue Intelligence reported in 2 Supreme Court Cases 485. The learned counsel further submitted that as per the order dated 18.03.2021 the extension of ninety days period was granted to complete the investigation and such period of ninety days expired on 16.06.2021 but neither the final form was submitted nor any further application was filed by the 9 learned Special Public Prosecutor praying for further extension of time to complete the investigation and therefore the remand orders of the petitioners passed on the subsequent dates as well as their detention is illegal and unjustified. It is argued that when the petition dated 15.03.2021 was filed for extending the period to complete the investigation the learned trial Court should have taken steps for production of the petitioners in Court who were in jail custody to hear such petition on the date fixed to enable them to have their say or at least could have made necessary arrangement to hear them in virtual mode particularly when the learned defence counsel did not file any objection nor appeared on the date fixed for hearing on the petition. Mere service of copies of the petition on the learned defence counsel is not sufficient compliance as per law and therefore in view of the illegalities committed by the learned trial Court in extending the period of completion of investigation and more particularly when after the completion of extended period of investigation the Court has not informed the petitioners of their right of default bail the petitioners are entitled to be released on bail. Mr. P.K. Mohanty learned Addl. Standing Counsel appearing for the State of Odisha on the other hand opposed the prayer for bail and contended that the learned trial Court directed for service of copy of the petition dated 15.03.2021 filed 10 by the learned Special Public Prosecutor on the learned defence counsel who was appearing for the petitioners by 17.03.2021 and the same was accordingly served but since neither any objection was filed by the learned defence counsel nor on the date of consideration of the extension petition i.e. on 18.03.2021 the defence counsel remained present to oppose the prayer made it cannot be said that the learned trial Court has committed any illegality in extending the period to complete the investigation. It is argued that when the opportunity of hearing offered was not availed by the learned defence counsel it cannot be said that there is any violation of principle of natural justice or any prejudice has been caused to the petitioners by passing the extension order. Learned counsel further submitted that when the Court granted three months more time to complete the investigation as per the order dated 18.03.2021 the same has to be calculated from 02.04.2021 as one hundred and eighty days period as per section 36 A of the N.D.P.S. Act was supposed to expire on 01.04.2021 if the same is calculated from the date of first remand of first set of accused persons made on 04.10.2019 and not from the date of passing of the order. He argued that even if no further application for extension of period of investigation was filed after three months which ended on 30.06.2021 but since the petitioners have failed to apply for 11 default bail in between 01.07.2021 till the submission of charge sheet on 09.07.2021 when the right accrued to them after submission of charge sheet the right to default bail stands extinguished and therefore the petitioners are not entitled to be released on bail. Adverting to the contentions raised by the learned counsel for the respective parties it is apparent that the bail has been sought for mainly on the ground that the extension of ninety days period granted to complete the investigation as per the order dated 18.03.2021 without hearing the petitioners is illegal and unjustified. The next ground is that when the extension period of ninety days for completion of investigation was over and charge sheet was not filed and no further extension application was filed the petitioners should have been informed of their right of default bail by the trial Court which was not done. Before dealing with those points certain factual aspects are required to be considered: i) The petitioners were arrested at the spot on 03.10.2020 by the informant but they were not forwarded to Court on 04.10.2020 when the other four co accused persons were forwarded since the petitioners were tested positive for Covid 19 and they were referred to Covid Care Centre J.K. Pur 12 with due intimation to S.P. Rayagada as well as S.D.P.O. Bisam Cuttack. ii) After recovery the petitioner no.1 Rajendra Kakodia was produced before the learned Special Judge on 13.10.2020 with antigen test report and he was remanded to judicial custody. The petitioner No.2 Swarup Ulkey was forwarded to Court on 18.10.2020 with his test report and he was remanded to judicial custody. iii) On perusal of the order sheet it appears that Advocate Mahesh Patnaik and his associates filed power on behalf of the two petitioners in the trial Court on 22.10.2020. iv) The copy of the petition dated 15.03.3021 filed by the learned Special Public Prosecutor along with the prayer of the I.O. was served on the learned defence counsel by 17.03.2021. The proviso to sub sectionof section 36 A of the N.D.P.S. Act makes it clear that if it is not possible on the part of the Investigating Officer to complete the investigation within a period of one hundred and eighty days in a case in which the accusation is for an offence punishable under section 19 or section 24 or section 27 A of the N.D.P.S. Act or for the offences involving commercial quantity the Special Court is empowered to extend the said period up to one year on the report of the 13 Public Prosecutor indicating the progress of investigation and the specific reasons for the detention of the accused beyond the said period of one hundred and eighty days. The said period of one hundred and eighty days has to be calculated from the date of first remand of the accused and not from the date of institution of the case. For example an accused arrested on the accusation of committing an offence under N.D.P.S. Act commercial quantity after one hundred twenty days of the institution of the case cannot claim for default bail under section 167(2) of Cr.P.C. if the investigation is not completed within the next sixty days of his first remand. In the case of Lambodar Bagrelying on the decision of the Hon’ble Supreme Court in the case of Hitendra Vishnu Thakur Vrs. State of Maharashtra reported in A.I.R. 1994 Supreme Court 2623 this Court held that the Public Prosecutor after an independent application of his mind to the request of the investigating agency is required to make a the Court the progress of investigation and disclosing justification for keeping the accused in further custody to enable the investigating agency to complete the investigation. The Public Prosecutor is not merely a post office or a forwarding agency and when a request is made by an Investigating Officer for extension of time to complete the 14 investigation the Public Prosecutor may or may not agree with the reasons given by the Investigating Officer for seeking extension of time and may find that the investigation had not progressed in the proper manner or that there has been unnecessary deliberate or avoidable delay in completing the investigation. The consequence of acceptance of the report of the Public Prosecutor by the concerned Court affects the liberty of an accused and therefore it has to be strictly complied with. Mere reproduction of the application or request of the Investigating Officer by the Public Prosecutor in his report without demonstration of application of his mind and recording his own satisfaction would not be a proper report to seek extension of time. In the case in hand the petition dated 15.03.2021 filed by the Special Public Prosecutor indicates that the Investigating Officer was not able to file charge sheet within six months period from the date of institution of the case which was going to be completed on 1st April 2021. One of the co accused namely Sambit Lodhy could not be apprehended as he belonged to Sagar district in Madhya Pradesh another co accused namely Anil Agarwal of Saraipali district of Chhattisgarh could not be apprehended and similarly another co accused Rama Deep of village Tusara of Bolangir district could not be 15 apprehended and therefore ninety days further time was sought for to file the charge sheet. The prayer of the Investigating Officer was also enclosed with the petition dated 15.03.2021. It seems that the case record was put up on 15.03.2021 to pass necessary orders on the petition filed by the Special Public Prosecutor. The learned trial Court found that the copy of the petition dated 15.03.2021 had not been served on the other side though the copies were enclosed with the petition dated 15.03.2021. The learned trial Court directed the Special Public Prosecutor to serve the copy of the petition on the learned defence counsel by 17.03.2021 and the matter was posted on that day for consideration of the prayer made in the petition. It seems from the order dated 17.03.2021 that the copy of the petition dated 15.03.2021 was served on the learned defence counsel but no objection was filed and accordingly the petition was placed on 18.03.2021 for hearing and on 18.03.2021 in the absence of the defence counsel after going through the prayer of the Investigating Officer and the grounds taken by him the report of the Special Public Prosecutor the learned trial Court thought it proper to grant extension of three months time to complete the investigation. The question that now crops up for consideration is whether reasonable opportunity of hearing has been afforded to 16 the petitioners before grant of extension order. Even though the copy of the petition dated 15.03.2021 was served on the learned counsel appearing for the petitioners but there is nothing on record to show that he was informed about the date of posting of such petition for hearing. I am of the humble view that mere service of the petition dated 15.03.2021 on the learned counsel for the petitioners without any intimation to him as to on what date such petition is fixed for hearing is not sufficient compliance of principle of natural justice. The learned Court should have at least ordered the Special Public Prosecutor to intimate the date of hearing of such petition in writing by way of a memo to obtain signature of the learned defence counsel on such memo and file the memo in Court. Prior to the filing of the petition dated 15.03.2021 as per the order dated 08.03.2021 the date of the case was posted to 22.03.2021 and therefore it was not expected of the learned counsel for the petitioners to take necessary action on receipt of such petition with promptitude hearing of which was fixed in interregnum and prepare objection with consultation with the petitioners who were in jail custody and also to file it immediately and get ready for hearing of such petition and appear on the date fixed to have his say. Everything seems to have been done in a hurry even though as per the petition itself the date of completion of investigation was to 17 expire on 01.04.2021. In the case of Lambodar Bag this Court held that even though sub sectionof section 36 A of the N.D.P.S. Act does not specifically provide for issuance of notice to the accused on the report of the Public Prosecutor before granting extension but it must be read into the provision both in the interest of the accused and the prosecution as well as for doing complete justice between the parties and since there is no prohibition to the issuance of such notice to the accused no extension shall be granted by the Special Court without such notice. Moreover report has to be filed by the Public Prosecutor in advance and not on the last day so that on being noticed the accused gets a fair opportunity to have his say and oppose the extension sought for by the prosecution. Prior to the filing of the petition dated 15.03.2021 when the case was posted to 08.03.2021 on that date neither the petitioners nor any other co accused persons were produced in Court however on the basis of intermediate custody warrants they were remanded to custody and since no final form was received the case was adjourned to 22.03.2021 awaiting submission of final form and the Superintendents of Sub jail Gunupur and Bissam Cuttack were directed to produce the accused persons on the date fixed. Thus the occasion arose for putting up the case record in advance prior to the date fixed was 18 on account of filing of the petition dated 15.03.2021 by the learned Special Public Prosecutor along with the prayer of the Investigating Officer to extend the time for completion of the investigation. The order dated 15.03.2021 indicates that the Special Public Prosecutor was asked to serve the copy of the petition on learned counsel the petitioners by 17.03.2021 on which date it was fixed for consideration of the prayer made in the petition. There is nothing on record that the date of consideration of the petition was also intimated to the learned counsel for the petitioners. When the petition for extension was supposed to be taken up for hearing on an earlier date than the date to which the case was originally posted as per the order dated 08.03.2021 no fault can be found with the learned counsel for the petitioners in not taking step immediately in filing his objection or in not attending the Court to have his say on the date fixed i.e. on 18.03.2021. Therefore I am of the humble view that the extension of time granted by the learned trial Court to the Investigating Officer to complete investigation was without affording reasonable opportunity of hearing either to the petitioners or their counsel representing them and as such the same is illegal and unjustified. 19 Coming to the default bail under section 167(2) of Cr.P.C. it is the settled principle of law that an order for release on bail under the proviso of section 167(2) of the Cr.P.C. is an order on default on the part of the prosecution to file charge sheet within the prescribed period. It is a legislative command and not a judicial discretion of the Court. An indefeasible right accrues in favour of the accused for being released on bail on account of default by the investigating agency in completing the investigation within the period prescribed. If an accused entitled to be released on bail under the provisomakes an application before the Magistrate there is no discretion left in the Magistrate and the only thing he is required to find out is whether the specified period under the statute has elapsed or not and whether a challan has been filed or not. The merits of the case are not to be gone into while releasing the accused on bail under provisoto section 167(2) of Cr.P.C. In the case of Rakesh Kumar Paulwhich is a three Judge Bench decision the majority view was that if the investigation is not completed within the period stipulated under the proviso to sub sectionof section 167 of Cr.P.C. then the accused in custody is entitled to ‘default bail’ if no charge sheet or challan is filed and the accused applies for ‘default bail’ and is prepared to and does furnish bail for release. The accused can 20 avail his liberty by filing an application stating that the statutory period for filing the charge sheet or challan has expired and the same has not yet been filed and therefore the indefeasible right has accrued in his or her favour and further the accused is prepared to furnish the bail bond. It would be the duty and responsibility of a Court on coming to know that the accused before it is entitled to ‘default bail’ to at least appraise him or her of the indefeasible right. A contrary view would diminish the respect for personal liberty. In the case of Lamobdar Bag it was held that when the extended period of completion of investigation expired and no prosecution report was filed it was obligatory on the part of the learned trial Judge to point out the petitioners of their entitlement of being released on bail. It was further held that had the learned trial Judge informed the petitioners of their right and the petitioners on being so informed failed to file an application for release on bail on account of the default by the investigating agency in the completion of investigation within the extended period after the prosecution report is filed they would have lost their valuable right. In the case of M.Ravindran it is held as follows : 21 “25.1. Once the accused files an application for bail under the proviso to Section 167(2) he is deemed to have ‘availed of’ or enforced his right to be released on default bail accruing after expiry of the stipulated investigation. Thus if the accused applies for under Section 167(2) Cr.P.C. read with Section 36 A(4) N.D.P.S. Act upon expiry of 180 days or the extended period as the case may be the Court must release him on bail forthwith without any unnecessary delay after getting necessary information from the Public Prosecutor as mentioned supra. Such prompt action will the prosecution frustrating the legislative mandate to release the accused on bail in case of default by the investigative agency. 25.2. The right to be released on default bail continues to remain enforceable if the accused has applied for such bail notwithstanding pendency of the bail application or subsequent filing of the chargesheet or a report seeking extension of time by the prosecution before the Court or filing of the chargesheet during the interregnum when challenge to the rejection of the bail application is pending before a higher Court. 25.3. However where the accused fails to apply for default bail when the right accrues to him 22 and subsequently a charge sheet additional complaint or a report seeking extension of time is preferred before the Magistrate the right to default bail would be Magistrate would be at cognizance of the case or grant further time for completion of the investigation as the case may be though the accused may still be released on bail under other provisions of the Cr.P.C. 25.4. Notwithstanding the order of default bail passed by the Court by virtue of Explanation I to Section 167(2) the actual release of the accused from custody is contingent on the directions passed by the competent Court granting bail. If the accused fails to furnish bail and or comply with the terms and conditions of the bail order within the time stipulated by the Court his continued detention in custody is In the case in hand as per order dated 18.03.2021 the period for completion of investigation was extended by the learned trial Court to a further period of three months. Four accused persons were forwarded to Court on 04.10.2020 after their arrest and they were remanded to judicial custody. In my humble view one hundred and eighty days for completion of investigation as stipulated in sub section of section 36 A of 23 the N.D.P.S. Act is to be calculated from 04.10.2020 for those four accused persons which ended up on 01.04.2021. Since as per the order dated 18.03.2021 the period of completion of investigation was extended to a further period of three months such extended period has to commence from 02.04.2021 and not from 18.03.2021 on which date the order was passed. The extended period ended on 30.06.2021. The learned trial Court should have clarified this aspect in the order dated 18.03.2021 itself which has not been done. The petitioner no.1 was produced in Court for the first time on 13.10.2020 along with the forwarding report and he was remanded to judicial custody. Similar order was passed for the petitioner no.2 Swarup Ulkey on 18.10.2020 by the learned trial Court when he was produced for the first time. For them the completion period of investigation of one hundred and eighty days is certainly different than the other four co accused persons who were forwarded on 04.10.2020. However on completion of their one hundred and eighty days period from the date of their first remand when the petitioners moved for default bail the same was rejected by the learned trial Court as per order dated 16.04.2021 on the ground that the time for completion of investigation had been extended for further period of three monthsas per order dated 18.03.2021. However prior to 30.06.2021 no further application 24 for extending the period to complete the investigation was filed by the Investigating Officer with the report of the Public Prosecutor. Therefore the detention of the petitioners in judicial custody becomes illegal from 01.07.2021. Even though the charge sheet is dated 29.06.2021 but it was filed in Court on 09.07.2021 on which date the case record was put up before the learned trial Court and cognizance of offences was taken as already stated. In view of the ratio laid down by the Hon’ble Supreme Court in the case of Rakesh Kumar Paul as well as of this Court in the case of Lambodar Bag it was the duty and responsibility of the Court to appraise the petitioners of their indefeasible right of default bail on account of non submission of final form within the extended period of completion of investigation and non submission of any application by the Investigating Officer with the report of the Public Prosecutor to extend further period to complete the investigation. The learned trial Court in the case in hand has not informed the petitioners of their valuable right of default bail either on 01.07.2021 or till the submission of charge sheet on 09.07.2021. Even though the petitioners were represented by their counsel but there is nothing on record that the learned 25 counsel informed the petitioners in that respect and he even did not file any application for default bail on 01.07.2021 or thereafter till the charge sheet was filed and cognizance of offences was taken. Had the Court or their learned counsel informed the petitioners of their valuable right and the petitioners on being so informed would not have taken any step to file an application for default bail the right of default bail would have been extinguished by subsequent filing of charge sheet on 09.07.2021. An accused should not suffer for laches or omission of the Court. Criminal justice is not one sided. It has many facets and a balance has to be drawn between conflicting rights and duties. In the factual scenario the petitioners cannot be stated to have voluntarily given up their indefeasible right for default bail. In the case of M.Ravindranit was held that the final form was required to be filed within one hundred and eighty days from the first date of remand and the day on which the accused was remanded to judicial custody has to be excluded and the date on which charge sheet is filed in Court has to be included. It was further held that in case of any ambiguity in the construction of a penal statute the Courts must favour the interpretation which leans towards protecting the rights of the accused giving the ubiquitous power disparity between the 26 individual accused and the State machinery. In the case of Sanjay Dutt Vrs. State reported in 5 Supreme Court Cases 410 it is held that a positive corresponding obligation is cast upon the accused to promptly apply for default bail as soon as the period of investigation expires. Once a charge sheet is filed such waiver of right by the accused becomes final and section 167(2) of Cr.P.C. ceases to apply. In the case of Hitendra Vishnu Thakur it is held that the Court cannot suo motu grant bail without considering whether the accused is ready to furnish bail bond or not. The Hon’ble Supreme Court in the case of M. Ravindran in para 18.10 agreed with the view expressed in the case Rakesh Kumar Paul that as a cautionary measure the counsel for the accused as well as the Court ought to inform the accused of the availability of indefeasible right under section 167(2) of Cr.P.C. once it accrues to him without any delay. This is especially where the accused is from an underprivileged section of society and is unlikely to have access information about his legal rights. Such knowledge sharing by the Magistrates will thwart any dilatory tactics by the prosecution and also ensure that the obligation spelt out under Article 21 of the Constitution and the Statements of Objects and Reasons of the Cr.P.C. are upheld. 27 When no final form was filed within the extended period of ninety days granted for completion of investigation and no further extension application was filed the petitioners should have been informed of their right of default bail. There is nothing on record that the learned trial Court as well as the counsel for the petitioners appearing for them in the trial Court apprised the petitioners of their valuable right of being released on default bail under section 167(2) of Cr.P.C. Therefore it would be unfair to the petitioners to keep them in custody in such a situation. To sum up the foregoing discussions when the extension to complete the investigation was granted without affording reasonable opportunity of hearing either to the petitioners or the counsel representing them in the learned trial Court when prior to the completion of extended period of investigation no further extension application was filed by the Investigating Officer with the report of the Special Public Prosecutor no information was given to the petitioners by the learned trial Court as well as the counsel for the petitioners after the extended period of ninety days expired to avail the indefeasible right of default bail under section 167(2) of Cr.P.C. even though no application for default bail was moved before the learned trial Court for the second time but since the rejection of 28 the first default bail is under challenge in this application I am inclined to release the petitioners on bail. Let the petitioners be released on bail in the aforesaid case on furnishing a bail bond of Rs.2 00 000 each with two local solvent sureties each for the like amount to the satisfaction of the learned Court in seisin over the matter with further conditions as the learned Court may deem just and proper including the condition that they shall appear before the learned trial Court on each date to which the case Violation of any of the conditions shall entail The BLAPL is accordingly allowed. Urgent certified copy of the order be granted on would be posted for trial. cancellation of bail. proper application. Orissa High Court Cuttack Dated 18th October 2021 PKSahoo S.K. Sahoo J. 