APPLICANTS 1. (In Jail) SsiWg^Ss. g IN THE HON'BLE HIGHCOURT OF CHHATTISGARH AT BILASPUR Cr.M.P.No.SJZ&^OlO Kesa Barik (wrongly mentioned the the real name is Kela Barik) S/o Dandpaai Barik, aged about 40 years R/o Bhorampur, P.S. Enjali Katu, Distt- Ganjam (Orissa). Jagarmath Naik S/o Raju Naik, age 26 years R/o Barampur,T:S. Enjali Katu, Distt - Ganjam (Orissa). Versus NON-APPLICANT State of Chhattisgarh Through District Magistrate Durg. ANAPPLICATION U/ S 482 OF THE CODE OF CRIMINAL PROCEDURE. ^-^.•'•"K-^ ^•**"i^-'' ..-^^^^ ^^&^J? % .•*? ''lgtgl^ 'j jj ;s?!-'/.y' HIGH COURT OF CHHATTISGARH : fi&ASPUR Single Bench : Hon'ble Shri Manindra Mohan Shrivastava, J. Cr.M.P. No.912 of 2010 APPLICANTS Kesa Barik (wrongly mentioned, the real name is Kela Barik) and one another Versus NON-APPLICANT State of Chhattisgarh (Anplication u/S 482 ofCr.P.C.) Appearance: Shri Uttam Pandey, counsel for the applicants. •-Shri Satish Gupta, Govt. Advoeate for the State. ORDER (Passed on _^_January, 2011) 1. This petition under Section 482 Cr.P.C. is directed against the ^ order dated 27.9.2010 passed in N.D.P.S. Case No.22/10 by the Special Judge (NDPS) Durg, by which the applicants' application under Section 167 (2) of Cr.P.C. has been rejected. 2. The facts, in nutshell, giving rise to petition under Section 482 Cr.P.C. are that according to the prosecution on 14.7.2010, information was received that four persons including one lady are sitting near Power House Bus Stand for illegally selling ganja, awaiting customers. Upon receipt of information, fhe police team arrived at fhe spot and it is alleged that frora ...fy3*^: /f^^ x til-.:.-.iy ^ '"S.,. '"""^ai'' '^^'^'.'^s^ Krishna Chand Padhi, 4.500 kg., from Ke]g"Barik 8.800 kg., from Jagannath Naik 7.00 kg. and from Jayanti Sahu 8.800 kg. of ganja was seized. 3. After usual investigation, a charge sheet was filed in fhe Special Court against all four accused persons alleging commission of offence under Section 20 (B) of fhe Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the Act of 1985°). Out of these four accused persons, Krishna Chand Padhi, moved an application praying that the prosecution is obliged to file separate charge sheet in his case. The application was allowed and prosecution was directed that a separate charge sheet be filed against Krishna Chand Padhi, otherwise, on the basis of charge sheet before the Court, only Krishna Chand Padhi would be prosecuted and the prosecution would be required to file separate charge sheet against rexiaining 3 accused, which also included the applicants herein. 4. Though the Special Judge passed an order directing prosecution to file separate charge sheet in respect of the applicants and other accused, before the prosecution could file a separate charge sheet, the applieants herein flled an application under Section 167 (2) Cr.P.C. for their release by grariting them bail, on the submission that fhe joint charge sheet was not accepted by the Court and the prosecution has failed to file separate charge sheet even after expiry of 60 days from fhe date of their arrest. The said application has been ^'. ^ %^.y1./ '^•/j-^-'"" ^' •^. y-:'~-"' ,ff ^^ rejected by the Special Court. It is against fliis order that the applicants have approached this Court. 5. Learned counsel for the applicants argued that once the Court allowed the application of the other accused- Krishna Chand Padhi, directing filing of separate cliarge sheet, by holding that filing of joint charge sheet by the prosecyjapn against all the accused persons was rendered wholly inconsequential and in the eye of law, no charge sheet could be said to have been filed against the applicants. Furfher submission of learned counsel for the applicants is that the Court below committed gross illegality in holding that the default was merely technical in nature ignoring the mandate of law. It has been argued that non-filing of separate charge sheet against the applicants within period of 60 days, entitled the applicants to grant of bail by default as provided under Section 167 (2) of the Cr.P.C. Lsarned counsel for the applicants placed reliance on the decision in the case of Vishnu Soni Vs. State of Chhattisgarh1 SE Sontosh Kumar Mohapatra (% Kaia Guna & Anr. Vs. State of Orissa2 6. On the other hand, leamed counsel for the State/respondent argued fhat application of the applicants has rightly been rejected. Learned counsel for the State argued that the provision of Section 167 (2) Cr.P.C are not attracted and even assuming, though not admittmg, that charge sheet has not i III (2007) CCR 88 2 I (2005) CCR 113 been filed within the period of 60 days, the .^pglicants are not entitled to grant of bail by default. The other submission of leamed counsel for the State is that in any case, charge sheet was filed against the applicants by the police, but later on, an order was passed by the Court on 24.9.2010 for fiUng separate charge sheet, therefore, in these circumstances, the provision of Section 167 (2) Cr.P.C., even assuming to be applicable, are not attracted and the applicants are not entitied to be released on bail on the ground that charge sheet has not been filed within 60 days from the date of their arrest, as, in fact, the charge sheet had been filed against the applicants, though jointly along with other accused persons. .t^t- 7.It is not in dispute that after the applicants were arrested, investigation was made and a charge sheet was iiled before the Special Court against the applicants and 2 other persons n^mely PCrishna Chand Padhi and Jayanti Sahu. It is not the case of the applicants nor is borne out from the petition filed before this Court that fhe said charge sheet was not filed within a period of 60 days. On the contrary, it is revealed that the applicants were arrested on 15.7.2010 and the chargesheet was ,iiled on 13.9.2010 i.e. on the 60th day and once charge sheet has been filed by the police within 60 days of arrest, no occasion would arise to grant bail by default as provided under Section 167 (2) of Cr.P.C. The peculiar facts of the case are that one of the accused subsequently moved an applicafion contending that separate charge sheet should be filed in his ^''y^ -'^ s^!a-S B ^; case and he could not be tried along wi'Ehi.other accused persons in a common charge sheet filed against all four persons, which was eventually allowed by the Special Judge, directing that separate charge sheet be fUed in respect of the accused persons including the applicants and it was ordered that if that is not done, the charge sheet filed, shall be treated only in respect of one accused Krishna Chand Padhi. Thus, it was in those circumstances that the prosecution is required to file separate charge sheet in respect of each of the applicants. In the case of Guria alias Gunasekaran Vs. The State3, considering similar argura.ents in a fact situation where charge- sheet filed was returned for being filed after rectification of defects, it was held fhat right under Section 167 (2) of the Cr.P.C. could be made available to the accused only in the contingency provided therefor and after the expiry ofthe time, if the charge-sheet or the final report has been filed into the Court, the remedy of bail made available to the accused person is extinguished and it would not survive after the filing of the charge-sheet or the final report. It has been further held that if the final report is filed, the remedy provided under Section 167 (2) ofCr.P.C. wiU not be available. 8. Under these peci.iliar circumstances, the applicants are not entitled to contend that the prosecution failed to file charge sheet within the stipulated period of 60 days from their respective dates of arrest. In my opinion, the applicants are not 3 1997 CRI.L.J. 626 (Madras High Court) J^"^. ^, i ? y; '^^-M'aj^ •' % ~w ^ ta».</',..1' %;^ :^»<".^" .,-ff5'"' s®-?'^^-^ entitled to bail by default in those peculife pircumstances, because a charge sheet was filed against the applicants also on 60th day from the date of their arrest. Therefore, I do not find any illegality in the order rejecting the application of applicants for grant of bail. » 9. In fhe result, fhere is no m.erit in the .petition. The same deserves to be dismissed and is accordingly dismissed. Sd/- Manindra Mohan Shrivastava Judge Praveen