| SooperKanoon Citation | sooperkanoon.com/535063 |
| Subject | Criminal |
| Court | Orissa High Court |
| Decided On | Dec-01-2004 |
| Case Number | Crl. Revn. No. 696 of 2004 |
| Judge | R.N. Biswal, J. |
| Reported in | 2005CriLJ1451; 2005(I)OLR127 |
| Acts | Arms Act - Sections 25 and 27; Code of Criminal Procedure (CrPC) , 1974 - Sections 164 and 167(2); Indian Penal Code (IPC) - Sections 34, 302 and 307 |
| Appellant | Rakesh Swain |
| Respondent | State of Orissa |
| Appellant Advocate | D. Panda, ;B.P. Hal, ;G.R. Mohanty, ;A. Parida and ;R. Mohalik, Advs. |
| Respondent Advocate | Addl. S.C. |
| Disposition | Revision dismissed |
| Cases Referred | and Dinesh Yadav v. State |
Notice (8): Undefined variable: kword [APP/View/Case/amp.ctp, line 120]Code Contextecho "<div class='table-bordered'><b>Excerpt:</b><br/>";if (trim($desc['Judgement']['casenote'])) {echo $this->Wand->highlight($this->Excerpt->extractRelevant($kword,strtolower(strip_tags($desc['Judgement']['casenote']))), $query);$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Rakesh Swain Vs State of Orissa - Citation 535063 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '535063', 'acts' => 'Arms Act - Sections 25 and 27; Code of Criminal Procedure (CrPC) , 1974 - Sections 164 and 167(2); Indian Penal Code (IPC) - Sections 34, 302 and 307', 'appealno' => 'Crl. Revn. No. 696 of 2004', 'appellant' => 'Rakesh Swain', 'authreffered' => '', 'casename' => 'Rakesh SwaIn Vs. State of Orissa', 'casenote' => ' - LABOUR & SERVICES Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b) Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in reduction of pay of employee on promotion Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules. - So, it clearly shows that the bail petition was filed after the charge- sheet was received by the learned S.', 'caseanalysis' => null, 'casesref' => ' and Dinesh Yadav v. State;', 'citingcases' => '', 'counselplain' => 'D. Panda, ;B.P. Hal, ;G.R. Mohanty, ;A. Parida and ;R. Mohalik, Advs.', 'counseldef' => 'Addl. S.C.', 'court' => 'Orissa', 'court_type' => 'HC', 'decidedon' => '2004-12-01', 'deposition' => 'Revision dismissed', 'favorof' => null, 'findings' => null, 'judge' => 'R.N. Biswal, J.', 'judgement' => 'ORDER<p style="text-align: justify;">R.N. Biswal, J.</p><p style="text-align: justify;">1. In this revision the petitioner has challenged the legality and propriety of the order dated 4-10-2004 passed by the S.D.J.M., Bhubaneswar in G. R. Case No. 1049 of 2004, wherein he rejected the petition under Section 167(2) Cr. P.C. filed by the petitioner.</p><p style="text-align: justify;">2. The case of the petitioner is that having been arrested on 5-6-2004 in Chandaka P.S. Case No. 23 of 2004 corresponding to the aforesaid G. R. Case for the offence under Sections 302/307/34 I.P.C. read with Sections 25 and 27 of the Arms Act he was remanded to judicial custody on the next date. Even though, in the meantime the statutory period of 120 days expired on 3-4-2004 charge-sheet could not be submitted. On 4-10-2004 he filed the petition under Section 167(2) Cr. P.C. for his release on bail. </p><p style="text-align: justify;">3. Learned trial Court rejected the petition holding that in view of the nature of allegations made, he is not inclined to admit the accused-petitioner to bail. Being aggrieved with this order the petitioner has preferred the present Revision.</p><p style="text-align: justify;">4. Learned counsel for the petitioner submits that an accused has a statutory right to be released on bail if the final form cannot be submitted within the statutory period of 120 days as per proviso (a) to Section 167(2) Cr. P.C. In the present case the petitioner having been arrested on 5-6-2004 was remanded to judicial custody on 6-6-2004 where he has been detained since then. The period of 120 clays was completed on 3-10-2004. The petitioner filed the petition under Section 167(2) Cr. P.C. on 4-10-2004. Since final form was not submitted within 120 days of the first date of remand of the petitioner to judicial custody, the trial Court ought not have rejected the petition, particularly when it was filed prior to submission of charge-sheet. In support of his submission he relied on the decisions in Mohamed Iqbal Madar Sheikh v. State of Maharashtra, 1996 (1) Crimes 4 (SC), Udaya Mohanlal Acharya v. State of Maharashtra; 2001 (2) Ori LR (SC) 290 : (2001 Cri LJ 1832), Ganesh Prasad v. State of M.P., 2001 Cri LJ 3444 and Dinesh Yadav v. State, 2002 Cri LJ 1067 (Patna High Court).</p><p style="text-align: justify;">5. Mr. Rout, learned Additional Standing Counsel did not dispute the point of law as raised by learned counsel for the petitioner. However, he contended that the petition under Section 167(2) Cr. P.C. was filed only after the submission of charge-sheet on 4-10-2004. As soon as the charge-sheet was submitted the right of the petitioner to be released on bail under proviso (a) to Section 167(2) Cr. P.C. extinguished. In view of the rival contentions of the learned counsel for the petitioner and the learned Additional Standing Counsel with regard to the time of submission of the charge-sheet and filing of petition under Section 167(2) Cr. P.C., it would be profitable to peruse the L.C.R. On perusal of the L.C.R. it is found that on 15-9-2004 the accused-petitioner was remanded to judicial custody till 29-9-2004. On 28-9-2004 the I.O. made an application before the S.D.J.M., Bhubaneswar for recording the statement of some witnesses Under Section 164 Cr.P.C. So, the learned S.D.J.M., Bhubaneswar transferred the case to the Court of Shri U. B. Jena, J.M.F.C., Bhubaneswar to record the statement of the witnesses under the said provision. Since the accused-petitioner could not be produced on 29-9-2004 due to shortage of escort party, the J.M.F.C. could not record the statement of witnesses on that date and remanded the accused-petitioner till 14-10-2004. After recording the statement of witnesses under Section 164 Cr. P.C. the J.M.F.C. transferred the record to the S.D.J.M., Bhubaneswar on 4-10-2004. The order sheet of that date shows that on the same date the S.D.J.M., Bhubaneswar received the charge-sheet against the accused persons under Sections 302/307/34 I.P.C. read with Sections 25 and 27 of the Arms Act, issued N.B.W. of arrest against the absentee accused, noticed the bailers and remanded the petitioner to custody. He also ordered to place the record on the date fixed i.e. 14-10-2004. On the same date i.e. 4-10-2004 later on, on the strength of an advanced petition, the record was put up and the petition for bail under Section 167(2) Cr. P.C. was filed. So, it clearly shows that the bail petition was filed after the charge- sheet was received by the learned S.D.J.M., Bhubaneswar. As such, the right, which had accrued in favour of the petitioner, was extinguished by the time charge-sheet was submitted. Filing of petition under Section 167(2) Cr. P.C. thereafter cannot be favourably entertained.</p><p style="text-align: justify;">6. Hence, the Criminal Revision stands dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '2005CriLJ1451; 2005(I)OLR127', 'ratiodecidendi' => '', 'respondent' => 'State of Orissa', 'sub' => 'Criminal', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'rakesh-swain-vs-state-orissa', 'args' => array( (int) 0 => '535063', (int) 1 => 'rakesh-swain-vs-state-orissa' ) ) $title_for_layout = 'Rakesh Swain Vs State of Orissa - Citation 535063 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '535063', 'acts' => 'Arms Act - Sections 25 and 27; Code of Criminal Procedure (CrPC) , 1974 - Sections 164 and 167(2); Indian Penal Code (IPC) - Sections 34, 302 and 307', 'appealno' => 'Crl. Revn. No. 696 of 2004', 'appellant' => 'Rakesh Swain', 'authreffered' => '', 'casename' => 'Rakesh SwaIn Vs. State of Orissa', 'casenote' => ' - LABOUR & SERVICES Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b) Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in reduction of pay of employee on promotion Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules. - So, it clearly shows that the bail petition was filed after the charge- sheet was received by the learned S.', 'caseanalysis' => null, 'casesref' => ' and Dinesh Yadav v. State;', 'citingcases' => '', 'counselplain' => 'D. Panda, ;B.P. Hal, ;G.R. Mohanty, ;A. Parida and ;R. Mohalik, Advs.', 'counseldef' => 'Addl. S.C.', 'court' => 'Orissa', 'court_type' => 'HC', 'decidedon' => '2004-12-01', 'deposition' => 'Revision dismissed', 'favorof' => null, 'findings' => null, 'judge' => 'R.N. Biswal, J.', 'judgement' => 'ORDER<p>R.N. Biswal, J.</p><p>1. In this revision the petitioner has challenged the legality and propriety of the order dated 4-10-2004 passed by the S.D.J.M., Bhubaneswar in G. R. Case No. 1049 of 2004, wherein he rejected the petition under Section 167(2) Cr. P.C. filed by the petitioner.</p><p>2. The case of the petitioner is that having been arrested on 5-6-2004 in Chandaka P.S. Case No. 23 of 2004 corresponding to the aforesaid G. R. Case for the offence under Sections 302/307/34 I.P.C. read with Sections 25 and 27 of the Arms Act he was remanded to judicial custody on the next date. Even though, in the meantime the statutory period of 120 days expired on 3-4-2004 charge-sheet could not be submitted. On 4-10-2004 he filed the petition under Section 167(2) Cr. P.C. for his release on bail. </p><p>3. Learned trial Court rejected the petition holding that in view of the nature of allegations made, he is not inclined to admit the accused-petitioner to bail. Being aggrieved with this order the petitioner has preferred the present Revision.</p><p>4. Learned counsel for the petitioner submits that an accused has a statutory right to be released on bail if the final form cannot be submitted within the statutory period of 120 days as per proviso (a) to Section 167(2) Cr. P.C. In the present case the petitioner having been arrested on 5-6-2004 was remanded to judicial custody on 6-6-2004 where he has been detained since then. The period of 120 clays was completed on 3-10-2004. The petitioner filed the petition under Section 167(2) Cr. P.C. on 4-10-2004. Since final form was not submitted within 120 days of the first date of remand of the petitioner to judicial custody, the trial Court ought not have rejected the petition, particularly when it was filed prior to submission of charge-sheet. In support of his submission he relied on the decisions in Mohamed Iqbal Madar Sheikh v. State of Maharashtra, 1996 (1) Crimes 4 (SC), Udaya Mohanlal Acharya v. State of Maharashtra; 2001 (2) Ori LR (SC) 290 : (2001 Cri LJ 1832), Ganesh Prasad v. State of M.P., 2001 Cri LJ 3444 and Dinesh Yadav v. State, 2002 Cri LJ 1067 (Patna High Court).</p><p>5. Mr. Rout, learned Additional Standing Counsel did not dispute the point of law as raised by learned counsel for the petitioner. However, he contended that the petition under Section 167(2) Cr. P.C. was filed only after the submission of charge-sheet on 4-10-2004. As soon as the charge-sheet was submitted the right of the petitioner to be released on bail under proviso (a) to Section 167(2) Cr. P.C. extinguished. In view of the rival contentions of the learned counsel for the petitioner and the learned Additional Standing Counsel with regard to the time of submission of the charge-sheet and filing of petition under Section 167(2) Cr. P.C., it would be profitable to peruse the L.C.R. On perusal of the L.C.R. it is found that on 15-9-2004 the accused-petitioner was remanded to judicial custody till 29-9-2004. On 28-9-2004 the I.O. made an application before the S.D.J.M., Bhubaneswar for recording the statement of some witnesses Under Section 164 Cr.P.C. So, the learned S.D.J.M., Bhubaneswar transferred the case to the Court of Shri U. B. Jena, J.M.F.C., Bhubaneswar to record the statement of the witnesses under the said provision. Since the accused-petitioner could not be produced on 29-9-2004 due to shortage of escort party, the J.M.F.C. could not record the statement of witnesses on that date and remanded the accused-petitioner till 14-10-2004. After recording the statement of witnesses under Section 164 Cr. P.C. the J.M.F.C. transferred the record to the S.D.J.M., Bhubaneswar on 4-10-2004. The order sheet of that date shows that on the same date the S.D.J.M., Bhubaneswar received the charge-sheet against the accused persons under Sections 302/307/34 I.P.C. read with Sections 25 and 27 of the Arms Act, issued N.B.W. of arrest against the absentee accused, noticed the bailers and remanded the petitioner to custody. He also ordered to place the record on the date fixed i.e. 14-10-2004. On the same date i.e. 4-10-2004 later on, on the strength of an advanced petition, the record was put up and the petition for bail under Section 167(2) Cr. P.C. was filed. So, it clearly shows that the bail petition was filed after the charge- sheet was received by the learned S.D.J.M., Bhubaneswar. As such, the right, which had accrued in favour of the petitioner, was extinguished by the time charge-sheet was submitted. Filing of petition under Section 167(2) Cr. P.C. thereafter cannot be favourably entertained.</p><p>6. Hence, the Criminal Revision stands dismissed.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '2005CriLJ1451; 2005(I)OLR127', 'ratiodecidendi' => '', 'respondent' => 'State of Orissa', 'sub' => 'Criminal', 'link' => null, 'circuit' => null ) ) $casename_url = 'rakesh-swain-vs-state-orissa' $args = array( (int) 0 => '535063', (int) 1 => 'rakesh-swain-vs-state-orissa' ) $url = 'https://sooperkanoon.com/case/amp/535063/rakesh-swain-vs-state-orissa' $ctype = ' High Court' $caseref = ' and Dinesh Yadav v. State<br>'include - APP/View/Case/amp.ctp, line 120 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 120]- labour & services pay scale:[tarun chatterjee & r.m. lodha,jj] fixation - orissa service code (1939), rule 74(b) promotion - government servant, by virtue of rule 74(b), gets higher pay than what he was getting immediately before his promotion - circular dated 19.3.1983 modifying earlier circular dated 18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. - so, it clearly shows that the bail petition was filed after the charge- sheet was received by the learned s.Code Contextecho "<div class='table-bordered'><b>Excerpt:</b><br/>";if (trim($desc['Judgement']['casenote'])) {echo $this->Wand->highlight($this->Excerpt->extractRelevant($kword,strtolower(strip_tags($desc['Judgement']['casenote']))), $query);$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Rakesh Swain Vs State of Orissa - Citation 535063 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '535063', 'acts' => 'Arms Act - Sections 25 and 27; Code of Criminal Procedure (CrPC) , 1974 - Sections 164 and 167(2); Indian Penal Code (IPC) - Sections 34, 302 and 307', 'appealno' => 'Crl. Revn. No. 696 of 2004', 'appellant' => 'Rakesh Swain', 'authreffered' => '', 'casename' => 'Rakesh SwaIn Vs. State of Orissa', 'casenote' => ' - LABOUR & SERVICES Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b) Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in reduction of pay of employee on promotion Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules. - So, it clearly shows that the bail petition was filed after the charge- sheet was received by the learned S.', 'caseanalysis' => null, 'casesref' => ' and Dinesh Yadav v. State;', 'citingcases' => '', 'counselplain' => 'D. Panda, ;B.P. Hal, ;G.R. Mohanty, ;A. Parida and ;R. Mohalik, Advs.', 'counseldef' => 'Addl. S.C.', 'court' => 'Orissa', 'court_type' => 'HC', 'decidedon' => '2004-12-01', 'deposition' => 'Revision dismissed', 'favorof' => null, 'findings' => null, 'judge' => 'R.N. Biswal, J.', 'judgement' => 'ORDER<p style="text-align: justify;">R.N. Biswal, J.</p><p style="text-align: justify;">1. In this revision the petitioner has challenged the legality and propriety of the order dated 4-10-2004 passed by the S.D.J.M., Bhubaneswar in G. R. Case No. 1049 of 2004, wherein he rejected the petition under Section 167(2) Cr. P.C. filed by the petitioner.</p><p style="text-align: justify;">2. The case of the petitioner is that having been arrested on 5-6-2004 in Chandaka P.S. Case No. 23 of 2004 corresponding to the aforesaid G. R. Case for the offence under Sections 302/307/34 I.P.C. read with Sections 25 and 27 of the Arms Act he was remanded to judicial custody on the next date. Even though, in the meantime the statutory period of 120 days expired on 3-4-2004 charge-sheet could not be submitted. On 4-10-2004 he filed the petition under Section 167(2) Cr. P.C. for his release on bail. </p><p style="text-align: justify;">3. Learned trial Court rejected the petition holding that in view of the nature of allegations made, he is not inclined to admit the accused-petitioner to bail. Being aggrieved with this order the petitioner has preferred the present Revision.</p><p style="text-align: justify;">4. Learned counsel for the petitioner submits that an accused has a statutory right to be released on bail if the final form cannot be submitted within the statutory period of 120 days as per proviso (a) to Section 167(2) Cr. P.C. In the present case the petitioner having been arrested on 5-6-2004 was remanded to judicial custody on 6-6-2004 where he has been detained since then. The period of 120 clays was completed on 3-10-2004. The petitioner filed the petition under Section 167(2) Cr. P.C. on 4-10-2004. Since final form was not submitted within 120 days of the first date of remand of the petitioner to judicial custody, the trial Court ought not have rejected the petition, particularly when it was filed prior to submission of charge-sheet. In support of his submission he relied on the decisions in Mohamed Iqbal Madar Sheikh v. State of Maharashtra, 1996 (1) Crimes 4 (SC), Udaya Mohanlal Acharya v. State of Maharashtra; 2001 (2) Ori LR (SC) 290 : (2001 Cri LJ 1832), Ganesh Prasad v. State of M.P., 2001 Cri LJ 3444 and Dinesh Yadav v. State, 2002 Cri LJ 1067 (Patna High Court).</p><p style="text-align: justify;">5. Mr. Rout, learned Additional Standing Counsel did not dispute the point of law as raised by learned counsel for the petitioner. However, he contended that the petition under Section 167(2) Cr. P.C. was filed only after the submission of charge-sheet on 4-10-2004. As soon as the charge-sheet was submitted the right of the petitioner to be released on bail under proviso (a) to Section 167(2) Cr. P.C. extinguished. In view of the rival contentions of the learned counsel for the petitioner and the learned Additional Standing Counsel with regard to the time of submission of the charge-sheet and filing of petition under Section 167(2) Cr. P.C., it would be profitable to peruse the L.C.R. On perusal of the L.C.R. it is found that on 15-9-2004 the accused-petitioner was remanded to judicial custody till 29-9-2004. On 28-9-2004 the I.O. made an application before the S.D.J.M., Bhubaneswar for recording the statement of some witnesses Under Section 164 Cr.P.C. So, the learned S.D.J.M., Bhubaneswar transferred the case to the Court of Shri U. B. Jena, J.M.F.C., Bhubaneswar to record the statement of the witnesses under the said provision. Since the accused-petitioner could not be produced on 29-9-2004 due to shortage of escort party, the J.M.F.C. could not record the statement of witnesses on that date and remanded the accused-petitioner till 14-10-2004. After recording the statement of witnesses under Section 164 Cr. P.C. the J.M.F.C. transferred the record to the S.D.J.M., Bhubaneswar on 4-10-2004. The order sheet of that date shows that on the same date the S.D.J.M., Bhubaneswar received the charge-sheet against the accused persons under Sections 302/307/34 I.P.C. read with Sections 25 and 27 of the Arms Act, issued N.B.W. of arrest against the absentee accused, noticed the bailers and remanded the petitioner to custody. He also ordered to place the record on the date fixed i.e. 14-10-2004. On the same date i.e. 4-10-2004 later on, on the strength of an advanced petition, the record was put up and the petition for bail under Section 167(2) Cr. P.C. was filed. So, it clearly shows that the bail petition was filed after the charge- sheet was received by the learned S.D.J.M., Bhubaneswar. As such, the right, which had accrued in favour of the petitioner, was extinguished by the time charge-sheet was submitted. Filing of petition under Section 167(2) Cr. P.C. thereafter cannot be favourably entertained.</p><p style="text-align: justify;">6. Hence, the Criminal Revision stands dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '2005CriLJ1451; 2005(I)OLR127', 'ratiodecidendi' => '', 'respondent' => 'State of Orissa', 'sub' => 'Criminal', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'rakesh-swain-vs-state-orissa', 'args' => array( (int) 0 => '535063', (int) 1 => 'rakesh-swain-vs-state-orissa' ) ) $title_for_layout = 'Rakesh Swain Vs State of Orissa - Citation 535063 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '535063', 'acts' => 'Arms Act - Sections 25 and 27; Code of Criminal Procedure (CrPC) , 1974 - Sections 164 and 167(2); Indian Penal Code (IPC) - Sections 34, 302 and 307', 'appealno' => 'Crl. Revn. No. 696 of 2004', 'appellant' => 'Rakesh Swain', 'authreffered' => '', 'casename' => 'Rakesh SwaIn Vs. State of Orissa', 'casenote' => ' - LABOUR & SERVICES Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b) Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in reduction of pay of employee on promotion Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules. - So, it clearly shows that the bail petition was filed after the charge- sheet was received by the learned S.', 'caseanalysis' => null, 'casesref' => ' and Dinesh Yadav v. State;', 'citingcases' => '', 'counselplain' => 'D. Panda, ;B.P. Hal, ;G.R. Mohanty, ;A. Parida and ;R. Mohalik, Advs.', 'counseldef' => 'Addl. S.C.', 'court' => 'Orissa', 'court_type' => 'HC', 'decidedon' => '2004-12-01', 'deposition' => 'Revision dismissed', 'favorof' => null, 'findings' => null, 'judge' => 'R.N. Biswal, J.', 'judgement' => 'ORDER<p>R.N. Biswal, J.</p><p>1. In this revision the petitioner has challenged the legality and propriety of the order dated 4-10-2004 passed by the S.D.J.M., Bhubaneswar in G. R. Case No. 1049 of 2004, wherein he rejected the petition under Section 167(2) Cr. P.C. filed by the petitioner.</p><p>2. The case of the petitioner is that having been arrested on 5-6-2004 in Chandaka P.S. Case No. 23 of 2004 corresponding to the aforesaid G. R. Case for the offence under Sections 302/307/34 I.P.C. read with Sections 25 and 27 of the Arms Act he was remanded to judicial custody on the next date. Even though, in the meantime the statutory period of 120 days expired on 3-4-2004 charge-sheet could not be submitted. On 4-10-2004 he filed the petition under Section 167(2) Cr. P.C. for his release on bail. </p><p>3. Learned trial Court rejected the petition holding that in view of the nature of allegations made, he is not inclined to admit the accused-petitioner to bail. Being aggrieved with this order the petitioner has preferred the present Revision.</p><p>4. Learned counsel for the petitioner submits that an accused has a statutory right to be released on bail if the final form cannot be submitted within the statutory period of 120 days as per proviso (a) to Section 167(2) Cr. P.C. In the present case the petitioner having been arrested on 5-6-2004 was remanded to judicial custody on 6-6-2004 where he has been detained since then. The period of 120 clays was completed on 3-10-2004. The petitioner filed the petition under Section 167(2) Cr. P.C. on 4-10-2004. Since final form was not submitted within 120 days of the first date of remand of the petitioner to judicial custody, the trial Court ought not have rejected the petition, particularly when it was filed prior to submission of charge-sheet. In support of his submission he relied on the decisions in Mohamed Iqbal Madar Sheikh v. State of Maharashtra, 1996 (1) Crimes 4 (SC), Udaya Mohanlal Acharya v. State of Maharashtra; 2001 (2) Ori LR (SC) 290 : (2001 Cri LJ 1832), Ganesh Prasad v. State of M.P., 2001 Cri LJ 3444 and Dinesh Yadav v. State, 2002 Cri LJ 1067 (Patna High Court).</p><p>5. Mr. Rout, learned Additional Standing Counsel did not dispute the point of law as raised by learned counsel for the petitioner. However, he contended that the petition under Section 167(2) Cr. P.C. was filed only after the submission of charge-sheet on 4-10-2004. As soon as the charge-sheet was submitted the right of the petitioner to be released on bail under proviso (a) to Section 167(2) Cr. P.C. extinguished. In view of the rival contentions of the learned counsel for the petitioner and the learned Additional Standing Counsel with regard to the time of submission of the charge-sheet and filing of petition under Section 167(2) Cr. P.C., it would be profitable to peruse the L.C.R. On perusal of the L.C.R. it is found that on 15-9-2004 the accused-petitioner was remanded to judicial custody till 29-9-2004. On 28-9-2004 the I.O. made an application before the S.D.J.M., Bhubaneswar for recording the statement of some witnesses Under Section 164 Cr.P.C. So, the learned S.D.J.M., Bhubaneswar transferred the case to the Court of Shri U. B. Jena, J.M.F.C., Bhubaneswar to record the statement of the witnesses under the said provision. Since the accused-petitioner could not be produced on 29-9-2004 due to shortage of escort party, the J.M.F.C. could not record the statement of witnesses on that date and remanded the accused-petitioner till 14-10-2004. After recording the statement of witnesses under Section 164 Cr. P.C. the J.M.F.C. transferred the record to the S.D.J.M., Bhubaneswar on 4-10-2004. The order sheet of that date shows that on the same date the S.D.J.M., Bhubaneswar received the charge-sheet against the accused persons under Sections 302/307/34 I.P.C. read with Sections 25 and 27 of the Arms Act, issued N.B.W. of arrest against the absentee accused, noticed the bailers and remanded the petitioner to custody. He also ordered to place the record on the date fixed i.e. 14-10-2004. On the same date i.e. 4-10-2004 later on, on the strength of an advanced petition, the record was put up and the petition for bail under Section 167(2) Cr. P.C. was filed. So, it clearly shows that the bail petition was filed after the charge- sheet was received by the learned S.D.J.M., Bhubaneswar. As such, the right, which had accrued in favour of the petitioner, was extinguished by the time charge-sheet was submitted. Filing of petition under Section 167(2) Cr. P.C. thereafter cannot be favourably entertained.</p><p>6. Hence, the Criminal Revision stands dismissed.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '2005CriLJ1451; 2005(I)OLR127', 'ratiodecidendi' => '', 'respondent' => 'State of Orissa', 'sub' => 'Criminal', 'link' => null, 'circuit' => null ) ) $casename_url = 'rakesh-swain-vs-state-orissa' $args = array( (int) 0 => '535063', (int) 1 => 'rakesh-swain-vs-state-orissa' ) $url = 'https://sooperkanoon.com/case/amp/535063/rakesh-swain-vs-state-orissa' $ctype = ' High Court' $caseref = ' and Dinesh Yadav v. State<br>'include - APP/View/Case/amp.ctp, line 120 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
Notice (8): Undefined variable: kword [APP/View/Case/amp.ctp, line 123]Code Context}//highest occurence of word in the judgementecho $this->Wand->highlight($this->Excerpt->extractRelevant($kword,strtolower(strip_tags($desc['Judgement']['judgement']))), $query) . "</div>";$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Rakesh Swain Vs State of Orissa - Citation 535063 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '535063', 'acts' => 'Arms Act - Sections 25 and 27; Code of Criminal Procedure (CrPC) , 1974 - Sections 164 and 167(2); Indian Penal Code (IPC) - Sections 34, 302 and 307', 'appealno' => 'Crl. Revn. No. 696 of 2004', 'appellant' => 'Rakesh Swain', 'authreffered' => '', 'casename' => 'Rakesh SwaIn Vs. State of Orissa', 'casenote' => ' - LABOUR & SERVICES Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b) Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in reduction of pay of employee on promotion Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules. - So, it clearly shows that the bail petition was filed after the charge- sheet was received by the learned S.', 'caseanalysis' => null, 'casesref' => ' and Dinesh Yadav v. State;', 'citingcases' => '', 'counselplain' => 'D. Panda, ;B.P. Hal, ;G.R. Mohanty, ;A. Parida and ;R. Mohalik, Advs.', 'counseldef' => 'Addl. S.C.', 'court' => 'Orissa', 'court_type' => 'HC', 'decidedon' => '2004-12-01', 'deposition' => 'Revision dismissed', 'favorof' => null, 'findings' => null, 'judge' => 'R.N. Biswal, J.', 'judgement' => 'ORDER<p style="text-align: justify;">R.N. Biswal, J.</p><p style="text-align: justify;">1. In this revision the petitioner has challenged the legality and propriety of the order dated 4-10-2004 passed by the S.D.J.M., Bhubaneswar in G. R. Case No. 1049 of 2004, wherein he rejected the petition under Section 167(2) Cr. P.C. filed by the petitioner.</p><p style="text-align: justify;">2. The case of the petitioner is that having been arrested on 5-6-2004 in Chandaka P.S. Case No. 23 of 2004 corresponding to the aforesaid G. R. Case for the offence under Sections 302/307/34 I.P.C. read with Sections 25 and 27 of the Arms Act he was remanded to judicial custody on the next date. Even though, in the meantime the statutory period of 120 days expired on 3-4-2004 charge-sheet could not be submitted. On 4-10-2004 he filed the petition under Section 167(2) Cr. P.C. for his release on bail. </p><p style="text-align: justify;">3. Learned trial Court rejected the petition holding that in view of the nature of allegations made, he is not inclined to admit the accused-petitioner to bail. Being aggrieved with this order the petitioner has preferred the present Revision.</p><p style="text-align: justify;">4. Learned counsel for the petitioner submits that an accused has a statutory right to be released on bail if the final form cannot be submitted within the statutory period of 120 days as per proviso (a) to Section 167(2) Cr. P.C. In the present case the petitioner having been arrested on 5-6-2004 was remanded to judicial custody on 6-6-2004 where he has been detained since then. The period of 120 clays was completed on 3-10-2004. The petitioner filed the petition under Section 167(2) Cr. P.C. on 4-10-2004. Since final form was not submitted within 120 days of the first date of remand of the petitioner to judicial custody, the trial Court ought not have rejected the petition, particularly when it was filed prior to submission of charge-sheet. In support of his submission he relied on the decisions in Mohamed Iqbal Madar Sheikh v. State of Maharashtra, 1996 (1) Crimes 4 (SC), Udaya Mohanlal Acharya v. State of Maharashtra; 2001 (2) Ori LR (SC) 290 : (2001 Cri LJ 1832), Ganesh Prasad v. State of M.P., 2001 Cri LJ 3444 and Dinesh Yadav v. State, 2002 Cri LJ 1067 (Patna High Court).</p><p style="text-align: justify;">5. Mr. Rout, learned Additional Standing Counsel did not dispute the point of law as raised by learned counsel for the petitioner. However, he contended that the petition under Section 167(2) Cr. P.C. was filed only after the submission of charge-sheet on 4-10-2004. As soon as the charge-sheet was submitted the right of the petitioner to be released on bail under proviso (a) to Section 167(2) Cr. P.C. extinguished. In view of the rival contentions of the learned counsel for the petitioner and the learned Additional Standing Counsel with regard to the time of submission of the charge-sheet and filing of petition under Section 167(2) Cr. P.C., it would be profitable to peruse the L.C.R. On perusal of the L.C.R. it is found that on 15-9-2004 the accused-petitioner was remanded to judicial custody till 29-9-2004. On 28-9-2004 the I.O. made an application before the S.D.J.M., Bhubaneswar for recording the statement of some witnesses Under Section 164 Cr.P.C. So, the learned S.D.J.M., Bhubaneswar transferred the case to the Court of Shri U. B. Jena, J.M.F.C., Bhubaneswar to record the statement of the witnesses under the said provision. Since the accused-petitioner could not be produced on 29-9-2004 due to shortage of escort party, the J.M.F.C. could not record the statement of witnesses on that date and remanded the accused-petitioner till 14-10-2004. After recording the statement of witnesses under Section 164 Cr. P.C. the J.M.F.C. transferred the record to the S.D.J.M., Bhubaneswar on 4-10-2004. The order sheet of that date shows that on the same date the S.D.J.M., Bhubaneswar received the charge-sheet against the accused persons under Sections 302/307/34 I.P.C. read with Sections 25 and 27 of the Arms Act, issued N.B.W. of arrest against the absentee accused, noticed the bailers and remanded the petitioner to custody. He also ordered to place the record on the date fixed i.e. 14-10-2004. On the same date i.e. 4-10-2004 later on, on the strength of an advanced petition, the record was put up and the petition for bail under Section 167(2) Cr. P.C. was filed. So, it clearly shows that the bail petition was filed after the charge- sheet was received by the learned S.D.J.M., Bhubaneswar. As such, the right, which had accrued in favour of the petitioner, was extinguished by the time charge-sheet was submitted. Filing of petition under Section 167(2) Cr. P.C. thereafter cannot be favourably entertained.</p><p style="text-align: justify;">6. Hence, the Criminal Revision stands dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '2005CriLJ1451; 2005(I)OLR127', 'ratiodecidendi' => '', 'respondent' => 'State of Orissa', 'sub' => 'Criminal', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'rakesh-swain-vs-state-orissa', 'args' => array( (int) 0 => '535063', (int) 1 => 'rakesh-swain-vs-state-orissa' ) ) $title_for_layout = 'Rakesh Swain Vs State of Orissa - Citation 535063 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '535063', 'acts' => 'Arms Act - Sections 25 and 27; Code of Criminal Procedure (CrPC) , 1974 - Sections 164 and 167(2); Indian Penal Code (IPC) - Sections 34, 302 and 307', 'appealno' => 'Crl. Revn. No. 696 of 2004', 'appellant' => 'Rakesh Swain', 'authreffered' => '', 'casename' => 'Rakesh SwaIn Vs. State of Orissa', 'casenote' => ' - LABOUR & SERVICES Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b) Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in reduction of pay of employee on promotion Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules. - So, it clearly shows that the bail petition was filed after the charge- sheet was received by the learned S.', 'caseanalysis' => null, 'casesref' => ' and Dinesh Yadav v. State;', 'citingcases' => '', 'counselplain' => 'D. Panda, ;B.P. Hal, ;G.R. Mohanty, ;A. Parida and ;R. Mohalik, Advs.', 'counseldef' => 'Addl. S.C.', 'court' => 'Orissa', 'court_type' => 'HC', 'decidedon' => '2004-12-01', 'deposition' => 'Revision dismissed', 'favorof' => null, 'findings' => null, 'judge' => 'R.N. Biswal, J.', 'judgement' => 'ORDER<p>R.N. Biswal, J.</p><p>1. In this revision the petitioner has challenged the legality and propriety of the order dated 4-10-2004 passed by the S.D.J.M., Bhubaneswar in G. R. Case No. 1049 of 2004, wherein he rejected the petition under Section 167(2) Cr. P.C. filed by the petitioner.</p><p>2. The case of the petitioner is that having been arrested on 5-6-2004 in Chandaka P.S. Case No. 23 of 2004 corresponding to the aforesaid G. R. Case for the offence under Sections 302/307/34 I.P.C. read with Sections 25 and 27 of the Arms Act he was remanded to judicial custody on the next date. Even though, in the meantime the statutory period of 120 days expired on 3-4-2004 charge-sheet could not be submitted. On 4-10-2004 he filed the petition under Section 167(2) Cr. P.C. for his release on bail. </p><p>3. Learned trial Court rejected the petition holding that in view of the nature of allegations made, he is not inclined to admit the accused-petitioner to bail. Being aggrieved with this order the petitioner has preferred the present Revision.</p><p>4. Learned counsel for the petitioner submits that an accused has a statutory right to be released on bail if the final form cannot be submitted within the statutory period of 120 days as per proviso (a) to Section 167(2) Cr. P.C. In the present case the petitioner having been arrested on 5-6-2004 was remanded to judicial custody on 6-6-2004 where he has been detained since then. The period of 120 clays was completed on 3-10-2004. The petitioner filed the petition under Section 167(2) Cr. P.C. on 4-10-2004. Since final form was not submitted within 120 days of the first date of remand of the petitioner to judicial custody, the trial Court ought not have rejected the petition, particularly when it was filed prior to submission of charge-sheet. In support of his submission he relied on the decisions in Mohamed Iqbal Madar Sheikh v. State of Maharashtra, 1996 (1) Crimes 4 (SC), Udaya Mohanlal Acharya v. State of Maharashtra; 2001 (2) Ori LR (SC) 290 : (2001 Cri LJ 1832), Ganesh Prasad v. State of M.P., 2001 Cri LJ 3444 and Dinesh Yadav v. State, 2002 Cri LJ 1067 (Patna High Court).</p><p>5. Mr. Rout, learned Additional Standing Counsel did not dispute the point of law as raised by learned counsel for the petitioner. However, he contended that the petition under Section 167(2) Cr. P.C. was filed only after the submission of charge-sheet on 4-10-2004. As soon as the charge-sheet was submitted the right of the petitioner to be released on bail under proviso (a) to Section 167(2) Cr. P.C. extinguished. In view of the rival contentions of the learned counsel for the petitioner and the learned Additional Standing Counsel with regard to the time of submission of the charge-sheet and filing of petition under Section 167(2) Cr. P.C., it would be profitable to peruse the L.C.R. On perusal of the L.C.R. it is found that on 15-9-2004 the accused-petitioner was remanded to judicial custody till 29-9-2004. On 28-9-2004 the I.O. made an application before the S.D.J.M., Bhubaneswar for recording the statement of some witnesses Under Section 164 Cr.P.C. So, the learned S.D.J.M., Bhubaneswar transferred the case to the Court of Shri U. B. Jena, J.M.F.C., Bhubaneswar to record the statement of the witnesses under the said provision. Since the accused-petitioner could not be produced on 29-9-2004 due to shortage of escort party, the J.M.F.C. could not record the statement of witnesses on that date and remanded the accused-petitioner till 14-10-2004. After recording the statement of witnesses under Section 164 Cr. P.C. the J.M.F.C. transferred the record to the S.D.J.M., Bhubaneswar on 4-10-2004. The order sheet of that date shows that on the same date the S.D.J.M., Bhubaneswar received the charge-sheet against the accused persons under Sections 302/307/34 I.P.C. read with Sections 25 and 27 of the Arms Act, issued N.B.W. of arrest against the absentee accused, noticed the bailers and remanded the petitioner to custody. He also ordered to place the record on the date fixed i.e. 14-10-2004. On the same date i.e. 4-10-2004 later on, on the strength of an advanced petition, the record was put up and the petition for bail under Section 167(2) Cr. P.C. was filed. So, it clearly shows that the bail petition was filed after the charge- sheet was received by the learned S.D.J.M., Bhubaneswar. As such, the right, which had accrued in favour of the petitioner, was extinguished by the time charge-sheet was submitted. Filing of petition under Section 167(2) Cr. P.C. thereafter cannot be favourably entertained.</p><p>6. Hence, the Criminal Revision stands dismissed.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '2005CriLJ1451; 2005(I)OLR127', 'ratiodecidendi' => '', 'respondent' => 'State of Orissa', 'sub' => 'Criminal', 'link' => null, 'circuit' => null ) ) $casename_url = 'rakesh-swain-vs-state-orissa' $args = array( (int) 0 => '535063', (int) 1 => 'rakesh-swain-vs-state-orissa' ) $url = 'https://sooperkanoon.com/case/amp/535063/rakesh-swain-vs-state-orissa' $ctype = ' High Court' $caseref = ' and Dinesh Yadav v. State<br>'include - APP/View/Case/amp.ctp, line 123 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 123]orderr.n. biswal, j.1. in this revision the petitioner has challenged the legality and propriety of the order dated 4-10-2004 passed by the s.d.j.m., bhubaneswar in g. r. case no. 1049 of 2004, wherein he rejected the petition under section 167(2) cr. p.c. filed by the petitioner.2. the case of the petitioner is that having been arrested on 5-6-2004 in chandaka p.s. case no. 23 of 2004 corresponding to the aforesaid g. r. case for the offence under sections 302/307/34 i.p.c. read with sections 25 and 27 of the arms act he was remanded to judicial custody on the next date. even though, in the meantime the statutory period of 120 days expired on 3-4-2004 charge-sheet could not be submitted. on 4-10-2004 he filed the petition under section 167(2) cr. p.c. for his release on bail. 3. learned.....Code Context}//highest occurence of word in the judgementecho $this->Wand->highlight($this->Excerpt->extractRelevant($kword,strtolower(strip_tags($desc['Judgement']['judgement']))), $query) . "</div>";$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Rakesh Swain Vs State of Orissa - Citation 535063 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '535063', 'acts' => 'Arms Act - Sections 25 and 27; Code of Criminal Procedure (CrPC) , 1974 - Sections 164 and 167(2); Indian Penal Code (IPC) - Sections 34, 302 and 307', 'appealno' => 'Crl. Revn. No. 696 of 2004', 'appellant' => 'Rakesh Swain', 'authreffered' => '', 'casename' => 'Rakesh SwaIn Vs. State of Orissa', 'casenote' => ' - LABOUR & SERVICES Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b) Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in reduction of pay of employee on promotion Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules. - So, it clearly shows that the bail petition was filed after the charge- sheet was received by the learned S.', 'caseanalysis' => null, 'casesref' => ' and Dinesh Yadav v. State;', 'citingcases' => '', 'counselplain' => 'D. Panda, ;B.P. Hal, ;G.R. Mohanty, ;A. Parida and ;R. Mohalik, Advs.', 'counseldef' => 'Addl. S.C.', 'court' => 'Orissa', 'court_type' => 'HC', 'decidedon' => '2004-12-01', 'deposition' => 'Revision dismissed', 'favorof' => null, 'findings' => null, 'judge' => 'R.N. Biswal, J.', 'judgement' => 'ORDER<p style="text-align: justify;">R.N. Biswal, J.</p><p style="text-align: justify;">1. In this revision the petitioner has challenged the legality and propriety of the order dated 4-10-2004 passed by the S.D.J.M., Bhubaneswar in G. R. Case No. 1049 of 2004, wherein he rejected the petition under Section 167(2) Cr. P.C. filed by the petitioner.</p><p style="text-align: justify;">2. The case of the petitioner is that having been arrested on 5-6-2004 in Chandaka P.S. Case No. 23 of 2004 corresponding to the aforesaid G. R. Case for the offence under Sections 302/307/34 I.P.C. read with Sections 25 and 27 of the Arms Act he was remanded to judicial custody on the next date. Even though, in the meantime the statutory period of 120 days expired on 3-4-2004 charge-sheet could not be submitted. On 4-10-2004 he filed the petition under Section 167(2) Cr. P.C. for his release on bail. </p><p style="text-align: justify;">3. Learned trial Court rejected the petition holding that in view of the nature of allegations made, he is not inclined to admit the accused-petitioner to bail. Being aggrieved with this order the petitioner has preferred the present Revision.</p><p style="text-align: justify;">4. Learned counsel for the petitioner submits that an accused has a statutory right to be released on bail if the final form cannot be submitted within the statutory period of 120 days as per proviso (a) to Section 167(2) Cr. P.C. In the present case the petitioner having been arrested on 5-6-2004 was remanded to judicial custody on 6-6-2004 where he has been detained since then. The period of 120 clays was completed on 3-10-2004. The petitioner filed the petition under Section 167(2) Cr. P.C. on 4-10-2004. Since final form was not submitted within 120 days of the first date of remand of the petitioner to judicial custody, the trial Court ought not have rejected the petition, particularly when it was filed prior to submission of charge-sheet. In support of his submission he relied on the decisions in Mohamed Iqbal Madar Sheikh v. State of Maharashtra, 1996 (1) Crimes 4 (SC), Udaya Mohanlal Acharya v. State of Maharashtra; 2001 (2) Ori LR (SC) 290 : (2001 Cri LJ 1832), Ganesh Prasad v. State of M.P., 2001 Cri LJ 3444 and Dinesh Yadav v. State, 2002 Cri LJ 1067 (Patna High Court).</p><p style="text-align: justify;">5. Mr. Rout, learned Additional Standing Counsel did not dispute the point of law as raised by learned counsel for the petitioner. However, he contended that the petition under Section 167(2) Cr. P.C. was filed only after the submission of charge-sheet on 4-10-2004. As soon as the charge-sheet was submitted the right of the petitioner to be released on bail under proviso (a) to Section 167(2) Cr. P.C. extinguished. In view of the rival contentions of the learned counsel for the petitioner and the learned Additional Standing Counsel with regard to the time of submission of the charge-sheet and filing of petition under Section 167(2) Cr. P.C., it would be profitable to peruse the L.C.R. On perusal of the L.C.R. it is found that on 15-9-2004 the accused-petitioner was remanded to judicial custody till 29-9-2004. On 28-9-2004 the I.O. made an application before the S.D.J.M., Bhubaneswar for recording the statement of some witnesses Under Section 164 Cr.P.C. So, the learned S.D.J.M., Bhubaneswar transferred the case to the Court of Shri U. B. Jena, J.M.F.C., Bhubaneswar to record the statement of the witnesses under the said provision. Since the accused-petitioner could not be produced on 29-9-2004 due to shortage of escort party, the J.M.F.C. could not record the statement of witnesses on that date and remanded the accused-petitioner till 14-10-2004. After recording the statement of witnesses under Section 164 Cr. P.C. the J.M.F.C. transferred the record to the S.D.J.M., Bhubaneswar on 4-10-2004. The order sheet of that date shows that on the same date the S.D.J.M., Bhubaneswar received the charge-sheet against the accused persons under Sections 302/307/34 I.P.C. read with Sections 25 and 27 of the Arms Act, issued N.B.W. of arrest against the absentee accused, noticed the bailers and remanded the petitioner to custody. He also ordered to place the record on the date fixed i.e. 14-10-2004. On the same date i.e. 4-10-2004 later on, on the strength of an advanced petition, the record was put up and the petition for bail under Section 167(2) Cr. P.C. was filed. So, it clearly shows that the bail petition was filed after the charge- sheet was received by the learned S.D.J.M., Bhubaneswar. As such, the right, which had accrued in favour of the petitioner, was extinguished by the time charge-sheet was submitted. Filing of petition under Section 167(2) Cr. P.C. thereafter cannot be favourably entertained.</p><p style="text-align: justify;">6. Hence, the Criminal Revision stands dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '2005CriLJ1451; 2005(I)OLR127', 'ratiodecidendi' => '', 'respondent' => 'State of Orissa', 'sub' => 'Criminal', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'rakesh-swain-vs-state-orissa', 'args' => array( (int) 0 => '535063', (int) 1 => 'rakesh-swain-vs-state-orissa' ) ) $title_for_layout = 'Rakesh Swain Vs State of Orissa - Citation 535063 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '535063', 'acts' => 'Arms Act - Sections 25 and 27; Code of Criminal Procedure (CrPC) , 1974 - Sections 164 and 167(2); Indian Penal Code (IPC) - Sections 34, 302 and 307', 'appealno' => 'Crl. Revn. No. 696 of 2004', 'appellant' => 'Rakesh Swain', 'authreffered' => '', 'casename' => 'Rakesh SwaIn Vs. State of Orissa', 'casenote' => ' - LABOUR & SERVICES Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b) Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in reduction of pay of employee on promotion Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules. - So, it clearly shows that the bail petition was filed after the charge- sheet was received by the learned S.', 'caseanalysis' => null, 'casesref' => ' and Dinesh Yadav v. State;', 'citingcases' => '', 'counselplain' => 'D. Panda, ;B.P. Hal, ;G.R. Mohanty, ;A. Parida and ;R. Mohalik, Advs.', 'counseldef' => 'Addl. S.C.', 'court' => 'Orissa', 'court_type' => 'HC', 'decidedon' => '2004-12-01', 'deposition' => 'Revision dismissed', 'favorof' => null, 'findings' => null, 'judge' => 'R.N. Biswal, J.', 'judgement' => 'ORDER<p>R.N. Biswal, J.</p><p>1. In this revision the petitioner has challenged the legality and propriety of the order dated 4-10-2004 passed by the S.D.J.M., Bhubaneswar in G. R. Case No. 1049 of 2004, wherein he rejected the petition under Section 167(2) Cr. P.C. filed by the petitioner.</p><p>2. The case of the petitioner is that having been arrested on 5-6-2004 in Chandaka P.S. Case No. 23 of 2004 corresponding to the aforesaid G. R. Case for the offence under Sections 302/307/34 I.P.C. read with Sections 25 and 27 of the Arms Act he was remanded to judicial custody on the next date. Even though, in the meantime the statutory period of 120 days expired on 3-4-2004 charge-sheet could not be submitted. On 4-10-2004 he filed the petition under Section 167(2) Cr. P.C. for his release on bail. </p><p>3. Learned trial Court rejected the petition holding that in view of the nature of allegations made, he is not inclined to admit the accused-petitioner to bail. Being aggrieved with this order the petitioner has preferred the present Revision.</p><p>4. Learned counsel for the petitioner submits that an accused has a statutory right to be released on bail if the final form cannot be submitted within the statutory period of 120 days as per proviso (a) to Section 167(2) Cr. P.C. In the present case the petitioner having been arrested on 5-6-2004 was remanded to judicial custody on 6-6-2004 where he has been detained since then. The period of 120 clays was completed on 3-10-2004. The petitioner filed the petition under Section 167(2) Cr. P.C. on 4-10-2004. Since final form was not submitted within 120 days of the first date of remand of the petitioner to judicial custody, the trial Court ought not have rejected the petition, particularly when it was filed prior to submission of charge-sheet. In support of his submission he relied on the decisions in Mohamed Iqbal Madar Sheikh v. State of Maharashtra, 1996 (1) Crimes 4 (SC), Udaya Mohanlal Acharya v. State of Maharashtra; 2001 (2) Ori LR (SC) 290 : (2001 Cri LJ 1832), Ganesh Prasad v. State of M.P., 2001 Cri LJ 3444 and Dinesh Yadav v. State, 2002 Cri LJ 1067 (Patna High Court).</p><p>5. Mr. Rout, learned Additional Standing Counsel did not dispute the point of law as raised by learned counsel for the petitioner. However, he contended that the petition under Section 167(2) Cr. P.C. was filed only after the submission of charge-sheet on 4-10-2004. As soon as the charge-sheet was submitted the right of the petitioner to be released on bail under proviso (a) to Section 167(2) Cr. P.C. extinguished. In view of the rival contentions of the learned counsel for the petitioner and the learned Additional Standing Counsel with regard to the time of submission of the charge-sheet and filing of petition under Section 167(2) Cr. P.C., it would be profitable to peruse the L.C.R. On perusal of the L.C.R. it is found that on 15-9-2004 the accused-petitioner was remanded to judicial custody till 29-9-2004. On 28-9-2004 the I.O. made an application before the S.D.J.M., Bhubaneswar for recording the statement of some witnesses Under Section 164 Cr.P.C. So, the learned S.D.J.M., Bhubaneswar transferred the case to the Court of Shri U. B. Jena, J.M.F.C., Bhubaneswar to record the statement of the witnesses under the said provision. Since the accused-petitioner could not be produced on 29-9-2004 due to shortage of escort party, the J.M.F.C. could not record the statement of witnesses on that date and remanded the accused-petitioner till 14-10-2004. After recording the statement of witnesses under Section 164 Cr. P.C. the J.M.F.C. transferred the record to the S.D.J.M., Bhubaneswar on 4-10-2004. The order sheet of that date shows that on the same date the S.D.J.M., Bhubaneswar received the charge-sheet against the accused persons under Sections 302/307/34 I.P.C. read with Sections 25 and 27 of the Arms Act, issued N.B.W. of arrest against the absentee accused, noticed the bailers and remanded the petitioner to custody. He also ordered to place the record on the date fixed i.e. 14-10-2004. On the same date i.e. 4-10-2004 later on, on the strength of an advanced petition, the record was put up and the petition for bail under Section 167(2) Cr. P.C. was filed. So, it clearly shows that the bail petition was filed after the charge- sheet was received by the learned S.D.J.M., Bhubaneswar. As such, the right, which had accrued in favour of the petitioner, was extinguished by the time charge-sheet was submitted. Filing of petition under Section 167(2) Cr. P.C. thereafter cannot be favourably entertained.</p><p>6. Hence, the Criminal Revision stands dismissed.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '2005CriLJ1451; 2005(I)OLR127', 'ratiodecidendi' => '', 'respondent' => 'State of Orissa', 'sub' => 'Criminal', 'link' => null, 'circuit' => null ) ) $casename_url = 'rakesh-swain-vs-state-orissa' $args = array( (int) 0 => '535063', (int) 1 => 'rakesh-swain-vs-state-orissa' ) $url = 'https://sooperkanoon.com/case/amp/535063/rakesh-swain-vs-state-orissa' $ctype = ' High Court' $caseref = ' and Dinesh Yadav v. State<br>'include - APP/View/Case/amp.ctp, line 123 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]ORDERCode Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Rakesh Swain Vs State of Orissa - Citation 535063 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '535063', 'acts' => 'Arms Act - Sections 25 and 27; Code of Criminal Procedure (CrPC) , 1974 - Sections 164 and 167(2); Indian Penal Code (IPC) - Sections 34, 302 and 307', 'appealno' => 'Crl. Revn. No. 696 of 2004', 'appellant' => 'Rakesh Swain', 'authreffered' => '', 'casename' => 'Rakesh SwaIn Vs. State of Orissa', 'casenote' => ' - LABOUR & SERVICES Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b) Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in reduction of pay of employee on promotion Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules. - So, it clearly shows that the bail petition was filed after the charge- sheet was received by the learned S.', 'caseanalysis' => null, 'casesref' => ' and Dinesh Yadav v. State;', 'citingcases' => '', 'counselplain' => 'D. Panda, ;B.P. Hal, ;G.R. Mohanty, ;A. Parida and ;R. Mohalik, Advs.', 'counseldef' => 'Addl. S.C.', 'court' => 'Orissa', 'court_type' => 'HC', 'decidedon' => '2004-12-01', 'deposition' => 'Revision dismissed', 'favorof' => null, 'findings' => null, 'judge' => 'R.N. Biswal, J.', 'judgement' => 'ORDER<p style="text-align: justify;">R.N. Biswal, J.</p><p style="text-align: justify;">1. In this revision the petitioner has challenged the legality and propriety of the order dated 4-10-2004 passed by the S.D.J.M., Bhubaneswar in G. R. Case No. 1049 of 2004, wherein he rejected the petition under Section 167(2) Cr. P.C. filed by the petitioner.</p><p style="text-align: justify;">2. The case of the petitioner is that having been arrested on 5-6-2004 in Chandaka P.S. Case No. 23 of 2004 corresponding to the aforesaid G. R. Case for the offence under Sections 302/307/34 I.P.C. read with Sections 25 and 27 of the Arms Act he was remanded to judicial custody on the next date. Even though, in the meantime the statutory period of 120 days expired on 3-4-2004 charge-sheet could not be submitted. On 4-10-2004 he filed the petition under Section 167(2) Cr. P.C. for his release on bail. </p><p style="text-align: justify;">3. Learned trial Court rejected the petition holding that in view of the nature of allegations made, he is not inclined to admit the accused-petitioner to bail. Being aggrieved with this order the petitioner has preferred the present Revision.</p><p style="text-align: justify;">4. Learned counsel for the petitioner submits that an accused has a statutory right to be released on bail if the final form cannot be submitted within the statutory period of 120 days as per proviso (a) to Section 167(2) Cr. P.C. In the present case the petitioner having been arrested on 5-6-2004 was remanded to judicial custody on 6-6-2004 where he has been detained since then. The period of 120 clays was completed on 3-10-2004. The petitioner filed the petition under Section 167(2) Cr. P.C. on 4-10-2004. Since final form was not submitted within 120 days of the first date of remand of the petitioner to judicial custody, the trial Court ought not have rejected the petition, particularly when it was filed prior to submission of charge-sheet. In support of his submission he relied on the decisions in Mohamed Iqbal Madar Sheikh v. State of Maharashtra, 1996 (1) Crimes 4 (SC), Udaya Mohanlal Acharya v. State of Maharashtra; 2001 (2) Ori LR (SC) 290 : (2001 Cri LJ 1832), Ganesh Prasad v. State of M.P., 2001 Cri LJ 3444 and Dinesh Yadav v. State, 2002 Cri LJ 1067 (Patna High Court).</p><p style="text-align: justify;">5. Mr. Rout, learned Additional Standing Counsel did not dispute the point of law as raised by learned counsel for the petitioner. However, he contended that the petition under Section 167(2) Cr. P.C. was filed only after the submission of charge-sheet on 4-10-2004. As soon as the charge-sheet was submitted the right of the petitioner to be released on bail under proviso (a) to Section 167(2) Cr. P.C. extinguished. In view of the rival contentions of the learned counsel for the petitioner and the learned Additional Standing Counsel with regard to the time of submission of the charge-sheet and filing of petition under Section 167(2) Cr. P.C., it would be profitable to peruse the L.C.R. On perusal of the L.C.R. it is found that on 15-9-2004 the accused-petitioner was remanded to judicial custody till 29-9-2004. On 28-9-2004 the I.O. made an application before the S.D.J.M., Bhubaneswar for recording the statement of some witnesses Under Section 164 Cr.P.C. So, the learned S.D.J.M., Bhubaneswar transferred the case to the Court of Shri U. B. Jena, J.M.F.C., Bhubaneswar to record the statement of the witnesses under the said provision. Since the accused-petitioner could not be produced on 29-9-2004 due to shortage of escort party, the J.M.F.C. could not record the statement of witnesses on that date and remanded the accused-petitioner till 14-10-2004. After recording the statement of witnesses under Section 164 Cr. P.C. the J.M.F.C. transferred the record to the S.D.J.M., Bhubaneswar on 4-10-2004. The order sheet of that date shows that on the same date the S.D.J.M., Bhubaneswar received the charge-sheet against the accused persons under Sections 302/307/34 I.P.C. read with Sections 25 and 27 of the Arms Act, issued N.B.W. of arrest against the absentee accused, noticed the bailers and remanded the petitioner to custody. He also ordered to place the record on the date fixed i.e. 14-10-2004. On the same date i.e. 4-10-2004 later on, on the strength of an advanced petition, the record was put up and the petition for bail under Section 167(2) Cr. P.C. was filed. So, it clearly shows that the bail petition was filed after the charge- sheet was received by the learned S.D.J.M., Bhubaneswar. As such, the right, which had accrued in favour of the petitioner, was extinguished by the time charge-sheet was submitted. Filing of petition under Section 167(2) Cr. P.C. thereafter cannot be favourably entertained.</p><p style="text-align: justify;">6. Hence, the Criminal Revision stands dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '2005CriLJ1451; 2005(I)OLR127', 'ratiodecidendi' => '', 'respondent' => 'State of Orissa', 'sub' => 'Criminal', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'rakesh-swain-vs-state-orissa', 'args' => array( (int) 0 => '535063', (int) 1 => 'rakesh-swain-vs-state-orissa' ) ) $title_for_layout = 'Rakesh Swain Vs State of Orissa - Citation 535063 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '535063', 'acts' => 'Arms Act - Sections 25 and 27; Code of Criminal Procedure (CrPC) , 1974 - Sections 164 and 167(2); Indian Penal Code (IPC) - Sections 34, 302 and 307', 'appealno' => 'Crl. Revn. No. 696 of 2004', 'appellant' => 'Rakesh Swain', 'authreffered' => '', 'casename' => 'Rakesh SwaIn Vs. State of Orissa', 'casenote' => ' - LABOUR & SERVICES Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b) Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in reduction of pay of employee on promotion Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules. - So, it clearly shows that the bail petition was filed after the charge- sheet was received by the learned S.', 'caseanalysis' => null, 'casesref' => ' and Dinesh Yadav v. State;', 'citingcases' => '', 'counselplain' => 'D. Panda, ;B.P. Hal, ;G.R. Mohanty, ;A. Parida and ;R. Mohalik, Advs.', 'counseldef' => 'Addl. S.C.', 'court' => 'Orissa', 'court_type' => 'HC', 'decidedon' => '2004-12-01', 'deposition' => 'Revision dismissed', 'favorof' => null, 'findings' => null, 'judge' => 'R.N. Biswal, J.', 'judgement' => 'ORDER<p>R.N. Biswal, J.</p><p>1. In this revision the petitioner has challenged the legality and propriety of the order dated 4-10-2004 passed by the S.D.J.M., Bhubaneswar in G. R. Case No. 1049 of 2004, wherein he rejected the petition under Section 167(2) Cr. P.C. filed by the petitioner.</p><p>2. The case of the petitioner is that having been arrested on 5-6-2004 in Chandaka P.S. Case No. 23 of 2004 corresponding to the aforesaid G. R. Case for the offence under Sections 302/307/34 I.P.C. read with Sections 25 and 27 of the Arms Act he was remanded to judicial custody on the next date. Even though, in the meantime the statutory period of 120 days expired on 3-4-2004 charge-sheet could not be submitted. On 4-10-2004 he filed the petition under Section 167(2) Cr. P.C. for his release on bail. </p><p>3. Learned trial Court rejected the petition holding that in view of the nature of allegations made, he is not inclined to admit the accused-petitioner to bail. Being aggrieved with this order the petitioner has preferred the present Revision.</p><p>4. Learned counsel for the petitioner submits that an accused has a statutory right to be released on bail if the final form cannot be submitted within the statutory period of 120 days as per proviso (a) to Section 167(2) Cr. P.C. In the present case the petitioner having been arrested on 5-6-2004 was remanded to judicial custody on 6-6-2004 where he has been detained since then. The period of 120 clays was completed on 3-10-2004. The petitioner filed the petition under Section 167(2) Cr. P.C. on 4-10-2004. Since final form was not submitted within 120 days of the first date of remand of the petitioner to judicial custody, the trial Court ought not have rejected the petition, particularly when it was filed prior to submission of charge-sheet. In support of his submission he relied on the decisions in Mohamed Iqbal Madar Sheikh v. State of Maharashtra, 1996 (1) Crimes 4 (SC), Udaya Mohanlal Acharya v. State of Maharashtra; 2001 (2) Ori LR (SC) 290 : (2001 Cri LJ 1832), Ganesh Prasad v. State of M.P., 2001 Cri LJ 3444 and Dinesh Yadav v. State, 2002 Cri LJ 1067 (Patna High Court).</p><p>5. Mr. Rout, learned Additional Standing Counsel did not dispute the point of law as raised by learned counsel for the petitioner. However, he contended that the petition under Section 167(2) Cr. P.C. was filed only after the submission of charge-sheet on 4-10-2004. As soon as the charge-sheet was submitted the right of the petitioner to be released on bail under proviso (a) to Section 167(2) Cr. P.C. extinguished. In view of the rival contentions of the learned counsel for the petitioner and the learned Additional Standing Counsel with regard to the time of submission of the charge-sheet and filing of petition under Section 167(2) Cr. P.C., it would be profitable to peruse the L.C.R. On perusal of the L.C.R. it is found that on 15-9-2004 the accused-petitioner was remanded to judicial custody till 29-9-2004. On 28-9-2004 the I.O. made an application before the S.D.J.M., Bhubaneswar for recording the statement of some witnesses Under Section 164 Cr.P.C. So, the learned S.D.J.M., Bhubaneswar transferred the case to the Court of Shri U. B. Jena, J.M.F.C., Bhubaneswar to record the statement of the witnesses under the said provision. Since the accused-petitioner could not be produced on 29-9-2004 due to shortage of escort party, the J.M.F.C. could not record the statement of witnesses on that date and remanded the accused-petitioner till 14-10-2004. After recording the statement of witnesses under Section 164 Cr. P.C. the J.M.F.C. transferred the record to the S.D.J.M., Bhubaneswar on 4-10-2004. The order sheet of that date shows that on the same date the S.D.J.M., Bhubaneswar received the charge-sheet against the accused persons under Sections 302/307/34 I.P.C. read with Sections 25 and 27 of the Arms Act, issued N.B.W. of arrest against the absentee accused, noticed the bailers and remanded the petitioner to custody. He also ordered to place the record on the date fixed i.e. 14-10-2004. On the same date i.e. 4-10-2004 later on, on the strength of an advanced petition, the record was put up and the petition for bail under Section 167(2) Cr. P.C. was filed. So, it clearly shows that the bail petition was filed after the charge- sheet was received by the learned S.D.J.M., Bhubaneswar. As such, the right, which had accrued in favour of the petitioner, was extinguished by the time charge-sheet was submitted. Filing of petition under Section 167(2) Cr. P.C. thereafter cannot be favourably entertained.</p><p>6. Hence, the Criminal Revision stands dismissed.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '2005CriLJ1451; 2005(I)OLR127', 'ratiodecidendi' => '', 'respondent' => 'State of Orissa', 'sub' => 'Criminal', 'link' => null, 'circuit' => null ) ) $casename_url = 'rakesh-swain-vs-state-orissa' $args = array( (int) 0 => '535063', (int) 1 => 'rakesh-swain-vs-state-orissa' ) $url = 'https://sooperkanoon.com/case/amp/535063/rakesh-swain-vs-state-orissa' $ctype = ' High Court' $caseref = ' and Dinesh Yadav v. State<br>' $content = array( (int) 0 => 'ORDER<p>R.N. Biswal, J.', (int) 1 => '<p>1. In this revision the petitioner has challenged the legality and propriety of the order dated 4-10-2004 passed by the S.D.J.M., Bhubaneswar in G. R. Case No. 1049 of 2004, wherein he rejected the petition under Section 167(2) Cr. P.C. filed by the petitioner.', (int) 2 => '<p>2. The case of the petitioner is that having been arrested on 5-6-2004 in Chandaka P.S. Case No. 23 of 2004 corresponding to the aforesaid G. R. Case for the offence under Sections 302/307/34 I.P.C. read with Sections 25 and 27 of the Arms Act he was remanded to judicial custody on the next date. Even though, in the meantime the statutory period of 120 days expired on 3-4-2004 charge-sheet could not be submitted. On 4-10-2004 he filed the petition under Section 167(2) Cr. P.C. for his release on bail. ', (int) 3 => '<p>3. Learned trial Court rejected the petition holding that in view of the nature of allegations made, he is not inclined to admit the accused-petitioner to bail. Being aggrieved with this order the petitioner has preferred the present Revision.', (int) 4 => '<p>4. Learned counsel for the petitioner submits that an accused has a statutory right to be released on bail if the final form cannot be submitted within the statutory period of 120 days as per proviso (a) to Section 167(2) Cr. P.C. In the present case the petitioner having been arrested on 5-6-2004 was remanded to judicial custody on 6-6-2004 where he has been detained since then. The period of 120 clays was completed on 3-10-2004. The petitioner filed the petition under Section 167(2) Cr. P.C. on 4-10-2004. Since final form was not submitted within 120 days of the first date of remand of the petitioner to judicial custody, the trial Court ought not have rejected the petition, particularly when it was filed prior to submission of charge-sheet. In support of his submission he relied on the decisions in Mohamed Iqbal Madar Sheikh v. State of Maharashtra, 1996 (1) Crimes 4 (SC), Udaya Mohanlal Acharya v. State of Maharashtra; 2001 (2) Ori LR (SC) 290 : (2001 Cri LJ 1832), Ganesh Prasad v. State of M.P., 2001 Cri LJ 3444 and Dinesh Yadav v. State, 2002 Cri LJ 1067 (Patna High Court).', (int) 5 => '<p>5. Mr. Rout, learned Additional Standing Counsel did not dispute the point of law as raised by learned counsel for the petitioner. However, he contended that the petition under Section 167(2) Cr. P.C. was filed only after the submission of charge-sheet on 4-10-2004. As soon as the charge-sheet was submitted the right of the petitioner to be released on bail under proviso (a) to Section 167(2) Cr. P.C. extinguished. In view of the rival contentions of the learned counsel for the petitioner and the learned Additional Standing Counsel with regard to the time of submission of the charge-sheet and filing of petition under Section 167(2) Cr. P.C., it would be profitable to peruse the L.C.R. On perusal of the L.C.R. it is found that on 15-9-2004 the accused-petitioner was remanded to judicial custody till 29-9-2004. On 28-9-2004 the I.O. made an application before the S.D.J.M., Bhubaneswar for recording the statement of some witnesses Under Section 164 Cr.P.C. So, the learned S.D.J.M., Bhubaneswar transferred the case to the Court of Shri U. B. Jena, J.M.F.C., Bhubaneswar to record the statement of the witnesses under the said provision. Since the accused-petitioner could not be produced on 29-9-2004 due to shortage of escort party, the J.M.F.C. could not record the statement of witnesses on that date and remanded the accused-petitioner till 14-10-2004. After recording the statement of witnesses under Section 164 Cr. P.C. the J.M.F.C. transferred the record to the S.D.J.M., Bhubaneswar on 4-10-2004. The order sheet of that date shows that on the same date the S.D.J.M., Bhubaneswar received the charge-sheet against the accused persons under Sections 302/307/34 I.P.C. read with Sections 25 and 27 of the Arms Act, issued N.B.W. of arrest against the absentee accused, noticed the bailers and remanded the petitioner to custody. He also ordered to place the record on the date fixed i.e. 14-10-2004. On the same date i.e. 4-10-2004 later on, on the strength of an advanced petition, the record was put up and the petition for bail under Section 167(2) Cr. P.C. was filed. So, it clearly shows that the bail petition was filed after the charge- sheet was received by the learned S.D.J.M., Bhubaneswar. As such, the right, which had accrued in favour of the petitioner, was extinguished by the time charge-sheet was submitted. Filing of petition under Section 167(2) Cr. P.C. thereafter cannot be favourably entertained.', (int) 6 => '<p>6. Hence, the Criminal Revision stands dismissed.<p>', (int) 7 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 8 $i = (int) 0include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
R.N. Biswal, J.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Rakesh Swain Vs State of Orissa - Citation 535063 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '535063', 'acts' => 'Arms Act - Sections 25 and 27; Code of Criminal Procedure (CrPC) , 1974 - Sections 164 and 167(2); Indian Penal Code (IPC) - Sections 34, 302 and 307', 'appealno' => 'Crl. Revn. No. 696 of 2004', 'appellant' => 'Rakesh Swain', 'authreffered' => '', 'casename' => 'Rakesh SwaIn Vs. State of Orissa', 'casenote' => ' - LABOUR & SERVICES Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b) Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in reduction of pay of employee on promotion Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules. - So, it clearly shows that the bail petition was filed after the charge- sheet was received by the learned S.', 'caseanalysis' => null, 'casesref' => ' and Dinesh Yadav v. State;', 'citingcases' => '', 'counselplain' => 'D. Panda, ;B.P. Hal, ;G.R. Mohanty, ;A. Parida and ;R. Mohalik, Advs.', 'counseldef' => 'Addl. S.C.', 'court' => 'Orissa', 'court_type' => 'HC', 'decidedon' => '2004-12-01', 'deposition' => 'Revision dismissed', 'favorof' => null, 'findings' => null, 'judge' => 'R.N. Biswal, J.', 'judgement' => 'ORDER<p style="text-align: justify;">R.N. Biswal, J.</p><p style="text-align: justify;">1. In this revision the petitioner has challenged the legality and propriety of the order dated 4-10-2004 passed by the S.D.J.M., Bhubaneswar in G. R. Case No. 1049 of 2004, wherein he rejected the petition under Section 167(2) Cr. P.C. filed by the petitioner.</p><p style="text-align: justify;">2. The case of the petitioner is that having been arrested on 5-6-2004 in Chandaka P.S. Case No. 23 of 2004 corresponding to the aforesaid G. R. Case for the offence under Sections 302/307/34 I.P.C. read with Sections 25 and 27 of the Arms Act he was remanded to judicial custody on the next date. Even though, in the meantime the statutory period of 120 days expired on 3-4-2004 charge-sheet could not be submitted. On 4-10-2004 he filed the petition under Section 167(2) Cr. P.C. for his release on bail. </p><p style="text-align: justify;">3. Learned trial Court rejected the petition holding that in view of the nature of allegations made, he is not inclined to admit the accused-petitioner to bail. Being aggrieved with this order the petitioner has preferred the present Revision.</p><p style="text-align: justify;">4. Learned counsel for the petitioner submits that an accused has a statutory right to be released on bail if the final form cannot be submitted within the statutory period of 120 days as per proviso (a) to Section 167(2) Cr. P.C. In the present case the petitioner having been arrested on 5-6-2004 was remanded to judicial custody on 6-6-2004 where he has been detained since then. The period of 120 clays was completed on 3-10-2004. The petitioner filed the petition under Section 167(2) Cr. P.C. on 4-10-2004. Since final form was not submitted within 120 days of the first date of remand of the petitioner to judicial custody, the trial Court ought not have rejected the petition, particularly when it was filed prior to submission of charge-sheet. In support of his submission he relied on the decisions in Mohamed Iqbal Madar Sheikh v. State of Maharashtra, 1996 (1) Crimes 4 (SC), Udaya Mohanlal Acharya v. State of Maharashtra; 2001 (2) Ori LR (SC) 290 : (2001 Cri LJ 1832), Ganesh Prasad v. State of M.P., 2001 Cri LJ 3444 and Dinesh Yadav v. State, 2002 Cri LJ 1067 (Patna High Court).</p><p style="text-align: justify;">5. Mr. Rout, learned Additional Standing Counsel did not dispute the point of law as raised by learned counsel for the petitioner. However, he contended that the petition under Section 167(2) Cr. P.C. was filed only after the submission of charge-sheet on 4-10-2004. As soon as the charge-sheet was submitted the right of the petitioner to be released on bail under proviso (a) to Section 167(2) Cr. P.C. extinguished. In view of the rival contentions of the learned counsel for the petitioner and the learned Additional Standing Counsel with regard to the time of submission of the charge-sheet and filing of petition under Section 167(2) Cr. P.C., it would be profitable to peruse the L.C.R. On perusal of the L.C.R. it is found that on 15-9-2004 the accused-petitioner was remanded to judicial custody till 29-9-2004. On 28-9-2004 the I.O. made an application before the S.D.J.M., Bhubaneswar for recording the statement of some witnesses Under Section 164 Cr.P.C. So, the learned S.D.J.M., Bhubaneswar transferred the case to the Court of Shri U. B. Jena, J.M.F.C., Bhubaneswar to record the statement of the witnesses under the said provision. Since the accused-petitioner could not be produced on 29-9-2004 due to shortage of escort party, the J.M.F.C. could not record the statement of witnesses on that date and remanded the accused-petitioner till 14-10-2004. After recording the statement of witnesses under Section 164 Cr. P.C. the J.M.F.C. transferred the record to the S.D.J.M., Bhubaneswar on 4-10-2004. The order sheet of that date shows that on the same date the S.D.J.M., Bhubaneswar received the charge-sheet against the accused persons under Sections 302/307/34 I.P.C. read with Sections 25 and 27 of the Arms Act, issued N.B.W. of arrest against the absentee accused, noticed the bailers and remanded the petitioner to custody. He also ordered to place the record on the date fixed i.e. 14-10-2004. On the same date i.e. 4-10-2004 later on, on the strength of an advanced petition, the record was put up and the petition for bail under Section 167(2) Cr. P.C. was filed. So, it clearly shows that the bail petition was filed after the charge- sheet was received by the learned S.D.J.M., Bhubaneswar. As such, the right, which had accrued in favour of the petitioner, was extinguished by the time charge-sheet was submitted. Filing of petition under Section 167(2) Cr. P.C. thereafter cannot be favourably entertained.</p><p style="text-align: justify;">6. Hence, the Criminal Revision stands dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '2005CriLJ1451; 2005(I)OLR127', 'ratiodecidendi' => '', 'respondent' => 'State of Orissa', 'sub' => 'Criminal', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'rakesh-swain-vs-state-orissa', 'args' => array( (int) 0 => '535063', (int) 1 => 'rakesh-swain-vs-state-orissa' ) ) $title_for_layout = 'Rakesh Swain Vs State of Orissa - Citation 535063 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '535063', 'acts' => 'Arms Act - Sections 25 and 27; Code of Criminal Procedure (CrPC) , 1974 - Sections 164 and 167(2); Indian Penal Code (IPC) - Sections 34, 302 and 307', 'appealno' => 'Crl. Revn. No. 696 of 2004', 'appellant' => 'Rakesh Swain', 'authreffered' => '', 'casename' => 'Rakesh SwaIn Vs. State of Orissa', 'casenote' => ' - LABOUR & SERVICES Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b) Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in reduction of pay of employee on promotion Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules. - So, it clearly shows that the bail petition was filed after the charge- sheet was received by the learned S.', 'caseanalysis' => null, 'casesref' => ' and Dinesh Yadav v. State;', 'citingcases' => '', 'counselplain' => 'D. Panda, ;B.P. Hal, ;G.R. Mohanty, ;A. Parida and ;R. Mohalik, Advs.', 'counseldef' => 'Addl. S.C.', 'court' => 'Orissa', 'court_type' => 'HC', 'decidedon' => '2004-12-01', 'deposition' => 'Revision dismissed', 'favorof' => null, 'findings' => null, 'judge' => 'R.N. Biswal, J.', 'judgement' => 'ORDER<p>R.N. Biswal, J.</p><p>1. In this revision the petitioner has challenged the legality and propriety of the order dated 4-10-2004 passed by the S.D.J.M., Bhubaneswar in G. R. Case No. 1049 of 2004, wherein he rejected the petition under Section 167(2) Cr. P.C. filed by the petitioner.</p><p>2. The case of the petitioner is that having been arrested on 5-6-2004 in Chandaka P.S. Case No. 23 of 2004 corresponding to the aforesaid G. R. Case for the offence under Sections 302/307/34 I.P.C. read with Sections 25 and 27 of the Arms Act he was remanded to judicial custody on the next date. Even though, in the meantime the statutory period of 120 days expired on 3-4-2004 charge-sheet could not be submitted. On 4-10-2004 he filed the petition under Section 167(2) Cr. P.C. for his release on bail. </p><p>3. Learned trial Court rejected the petition holding that in view of the nature of allegations made, he is not inclined to admit the accused-petitioner to bail. Being aggrieved with this order the petitioner has preferred the present Revision.</p><p>4. Learned counsel for the petitioner submits that an accused has a statutory right to be released on bail if the final form cannot be submitted within the statutory period of 120 days as per proviso (a) to Section 167(2) Cr. P.C. In the present case the petitioner having been arrested on 5-6-2004 was remanded to judicial custody on 6-6-2004 where he has been detained since then. The period of 120 clays was completed on 3-10-2004. The petitioner filed the petition under Section 167(2) Cr. P.C. on 4-10-2004. Since final form was not submitted within 120 days of the first date of remand of the petitioner to judicial custody, the trial Court ought not have rejected the petition, particularly when it was filed prior to submission of charge-sheet. In support of his submission he relied on the decisions in Mohamed Iqbal Madar Sheikh v. State of Maharashtra, 1996 (1) Crimes 4 (SC), Udaya Mohanlal Acharya v. State of Maharashtra; 2001 (2) Ori LR (SC) 290 : (2001 Cri LJ 1832), Ganesh Prasad v. State of M.P., 2001 Cri LJ 3444 and Dinesh Yadav v. State, 2002 Cri LJ 1067 (Patna High Court).</p><p>5. Mr. Rout, learned Additional Standing Counsel did not dispute the point of law as raised by learned counsel for the petitioner. However, he contended that the petition under Section 167(2) Cr. P.C. was filed only after the submission of charge-sheet on 4-10-2004. As soon as the charge-sheet was submitted the right of the petitioner to be released on bail under proviso (a) to Section 167(2) Cr. P.C. extinguished. In view of the rival contentions of the learned counsel for the petitioner and the learned Additional Standing Counsel with regard to the time of submission of the charge-sheet and filing of petition under Section 167(2) Cr. P.C., it would be profitable to peruse the L.C.R. On perusal of the L.C.R. it is found that on 15-9-2004 the accused-petitioner was remanded to judicial custody till 29-9-2004. On 28-9-2004 the I.O. made an application before the S.D.J.M., Bhubaneswar for recording the statement of some witnesses Under Section 164 Cr.P.C. So, the learned S.D.J.M., Bhubaneswar transferred the case to the Court of Shri U. B. Jena, J.M.F.C., Bhubaneswar to record the statement of the witnesses under the said provision. Since the accused-petitioner could not be produced on 29-9-2004 due to shortage of escort party, the J.M.F.C. could not record the statement of witnesses on that date and remanded the accused-petitioner till 14-10-2004. After recording the statement of witnesses under Section 164 Cr. P.C. the J.M.F.C. transferred the record to the S.D.J.M., Bhubaneswar on 4-10-2004. The order sheet of that date shows that on the same date the S.D.J.M., Bhubaneswar received the charge-sheet against the accused persons under Sections 302/307/34 I.P.C. read with Sections 25 and 27 of the Arms Act, issued N.B.W. of arrest against the absentee accused, noticed the bailers and remanded the petitioner to custody. He also ordered to place the record on the date fixed i.e. 14-10-2004. On the same date i.e. 4-10-2004 later on, on the strength of an advanced petition, the record was put up and the petition for bail under Section 167(2) Cr. P.C. was filed. So, it clearly shows that the bail petition was filed after the charge- sheet was received by the learned S.D.J.M., Bhubaneswar. As such, the right, which had accrued in favour of the petitioner, was extinguished by the time charge-sheet was submitted. Filing of petition under Section 167(2) Cr. P.C. thereafter cannot be favourably entertained.</p><p>6. Hence, the Criminal Revision stands dismissed.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '2005CriLJ1451; 2005(I)OLR127', 'ratiodecidendi' => '', 'respondent' => 'State of Orissa', 'sub' => 'Criminal', 'link' => null, 'circuit' => null ) ) $casename_url = 'rakesh-swain-vs-state-orissa' $args = array( (int) 0 => '535063', (int) 1 => 'rakesh-swain-vs-state-orissa' ) $url = 'https://sooperkanoon.com/case/amp/535063/rakesh-swain-vs-state-orissa' $ctype = ' High Court' $caseref = ' and Dinesh Yadav v. State<br>' $content = array( (int) 0 => 'ORDER<p>R.N. Biswal, J.', (int) 1 => '<p>1. In this revision the petitioner has challenged the legality and propriety of the order dated 4-10-2004 passed by the S.D.J.M., Bhubaneswar in G. R. Case No. 1049 of 2004, wherein he rejected the petition under Section 167(2) Cr. P.C. filed by the petitioner.', (int) 2 => '<p>2. The case of the petitioner is that having been arrested on 5-6-2004 in Chandaka P.S. Case No. 23 of 2004 corresponding to the aforesaid G. R. Case for the offence under Sections 302/307/34 I.P.C. read with Sections 25 and 27 of the Arms Act he was remanded to judicial custody on the next date. Even though, in the meantime the statutory period of 120 days expired on 3-4-2004 charge-sheet could not be submitted. On 4-10-2004 he filed the petition under Section 167(2) Cr. P.C. for his release on bail. ', (int) 3 => '<p>3. Learned trial Court rejected the petition holding that in view of the nature of allegations made, he is not inclined to admit the accused-petitioner to bail. Being aggrieved with this order the petitioner has preferred the present Revision.', (int) 4 => '<p>4. Learned counsel for the petitioner submits that an accused has a statutory right to be released on bail if the final form cannot be submitted within the statutory period of 120 days as per proviso (a) to Section 167(2) Cr. P.C. In the present case the petitioner having been arrested on 5-6-2004 was remanded to judicial custody on 6-6-2004 where he has been detained since then. The period of 120 clays was completed on 3-10-2004. The petitioner filed the petition under Section 167(2) Cr. P.C. on 4-10-2004. Since final form was not submitted within 120 days of the first date of remand of the petitioner to judicial custody, the trial Court ought not have rejected the petition, particularly when it was filed prior to submission of charge-sheet. In support of his submission he relied on the decisions in Mohamed Iqbal Madar Sheikh v. State of Maharashtra, 1996 (1) Crimes 4 (SC), Udaya Mohanlal Acharya v. State of Maharashtra; 2001 (2) Ori LR (SC) 290 : (2001 Cri LJ 1832), Ganesh Prasad v. State of M.P., 2001 Cri LJ 3444 and Dinesh Yadav v. State, 2002 Cri LJ 1067 (Patna High Court).', (int) 5 => '<p>5. Mr. Rout, learned Additional Standing Counsel did not dispute the point of law as raised by learned counsel for the petitioner. However, he contended that the petition under Section 167(2) Cr. P.C. was filed only after the submission of charge-sheet on 4-10-2004. As soon as the charge-sheet was submitted the right of the petitioner to be released on bail under proviso (a) to Section 167(2) Cr. P.C. extinguished. In view of the rival contentions of the learned counsel for the petitioner and the learned Additional Standing Counsel with regard to the time of submission of the charge-sheet and filing of petition under Section 167(2) Cr. P.C., it would be profitable to peruse the L.C.R. On perusal of the L.C.R. it is found that on 15-9-2004 the accused-petitioner was remanded to judicial custody till 29-9-2004. On 28-9-2004 the I.O. made an application before the S.D.J.M., Bhubaneswar for recording the statement of some witnesses Under Section 164 Cr.P.C. So, the learned S.D.J.M., Bhubaneswar transferred the case to the Court of Shri U. B. Jena, J.M.F.C., Bhubaneswar to record the statement of the witnesses under the said provision. Since the accused-petitioner could not be produced on 29-9-2004 due to shortage of escort party, the J.M.F.C. could not record the statement of witnesses on that date and remanded the accused-petitioner till 14-10-2004. After recording the statement of witnesses under Section 164 Cr. P.C. the J.M.F.C. transferred the record to the S.D.J.M., Bhubaneswar on 4-10-2004. The order sheet of that date shows that on the same date the S.D.J.M., Bhubaneswar received the charge-sheet against the accused persons under Sections 302/307/34 I.P.C. read with Sections 25 and 27 of the Arms Act, issued N.B.W. of arrest against the absentee accused, noticed the bailers and remanded the petitioner to custody. He also ordered to place the record on the date fixed i.e. 14-10-2004. On the same date i.e. 4-10-2004 later on, on the strength of an advanced petition, the record was put up and the petition for bail under Section 167(2) Cr. P.C. was filed. So, it clearly shows that the bail petition was filed after the charge- sheet was received by the learned S.D.J.M., Bhubaneswar. As such, the right, which had accrued in favour of the petitioner, was extinguished by the time charge-sheet was submitted. Filing of petition under Section 167(2) Cr. P.C. thereafter cannot be favourably entertained.', (int) 6 => '<p>6. Hence, the Criminal Revision stands dismissed.<p>', (int) 7 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 8 $i = (int) 1include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
1. In this revision the petitioner has challenged the legality and propriety of the order dated 4-10-2004 passed by the S.D.J.M., Bhubaneswar in G. R. Case No. 1049 of 2004, wherein he rejected the petition under Section 167(2) Cr. P.C. filed by the petitioner.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Rakesh Swain Vs State of Orissa - Citation 535063 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '535063', 'acts' => 'Arms Act - Sections 25 and 27; Code of Criminal Procedure (CrPC) , 1974 - Sections 164 and 167(2); Indian Penal Code (IPC) - Sections 34, 302 and 307', 'appealno' => 'Crl. Revn. No. 696 of 2004', 'appellant' => 'Rakesh Swain', 'authreffered' => '', 'casename' => 'Rakesh SwaIn Vs. State of Orissa', 'casenote' => ' - LABOUR & SERVICES Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b) Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in reduction of pay of employee on promotion Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules. - So, it clearly shows that the bail petition was filed after the charge- sheet was received by the learned S.', 'caseanalysis' => null, 'casesref' => ' and Dinesh Yadav v. State;', 'citingcases' => '', 'counselplain' => 'D. Panda, ;B.P. Hal, ;G.R. Mohanty, ;A. Parida and ;R. Mohalik, Advs.', 'counseldef' => 'Addl. S.C.', 'court' => 'Orissa', 'court_type' => 'HC', 'decidedon' => '2004-12-01', 'deposition' => 'Revision dismissed', 'favorof' => null, 'findings' => null, 'judge' => 'R.N. Biswal, J.', 'judgement' => 'ORDER<p style="text-align: justify;">R.N. Biswal, J.</p><p style="text-align: justify;">1. In this revision the petitioner has challenged the legality and propriety of the order dated 4-10-2004 passed by the S.D.J.M., Bhubaneswar in G. R. Case No. 1049 of 2004, wherein he rejected the petition under Section 167(2) Cr. P.C. filed by the petitioner.</p><p style="text-align: justify;">2. The case of the petitioner is that having been arrested on 5-6-2004 in Chandaka P.S. Case No. 23 of 2004 corresponding to the aforesaid G. R. Case for the offence under Sections 302/307/34 I.P.C. read with Sections 25 and 27 of the Arms Act he was remanded to judicial custody on the next date. Even though, in the meantime the statutory period of 120 days expired on 3-4-2004 charge-sheet could not be submitted. On 4-10-2004 he filed the petition under Section 167(2) Cr. P.C. for his release on bail. </p><p style="text-align: justify;">3. Learned trial Court rejected the petition holding that in view of the nature of allegations made, he is not inclined to admit the accused-petitioner to bail. Being aggrieved with this order the petitioner has preferred the present Revision.</p><p style="text-align: justify;">4. Learned counsel for the petitioner submits that an accused has a statutory right to be released on bail if the final form cannot be submitted within the statutory period of 120 days as per proviso (a) to Section 167(2) Cr. P.C. In the present case the petitioner having been arrested on 5-6-2004 was remanded to judicial custody on 6-6-2004 where he has been detained since then. The period of 120 clays was completed on 3-10-2004. The petitioner filed the petition under Section 167(2) Cr. P.C. on 4-10-2004. Since final form was not submitted within 120 days of the first date of remand of the petitioner to judicial custody, the trial Court ought not have rejected the petition, particularly when it was filed prior to submission of charge-sheet. In support of his submission he relied on the decisions in Mohamed Iqbal Madar Sheikh v. State of Maharashtra, 1996 (1) Crimes 4 (SC), Udaya Mohanlal Acharya v. State of Maharashtra; 2001 (2) Ori LR (SC) 290 : (2001 Cri LJ 1832), Ganesh Prasad v. State of M.P., 2001 Cri LJ 3444 and Dinesh Yadav v. State, 2002 Cri LJ 1067 (Patna High Court).</p><p style="text-align: justify;">5. Mr. Rout, learned Additional Standing Counsel did not dispute the point of law as raised by learned counsel for the petitioner. However, he contended that the petition under Section 167(2) Cr. P.C. was filed only after the submission of charge-sheet on 4-10-2004. As soon as the charge-sheet was submitted the right of the petitioner to be released on bail under proviso (a) to Section 167(2) Cr. P.C. extinguished. In view of the rival contentions of the learned counsel for the petitioner and the learned Additional Standing Counsel with regard to the time of submission of the charge-sheet and filing of petition under Section 167(2) Cr. P.C., it would be profitable to peruse the L.C.R. On perusal of the L.C.R. it is found that on 15-9-2004 the accused-petitioner was remanded to judicial custody till 29-9-2004. On 28-9-2004 the I.O. made an application before the S.D.J.M., Bhubaneswar for recording the statement of some witnesses Under Section 164 Cr.P.C. So, the learned S.D.J.M., Bhubaneswar transferred the case to the Court of Shri U. B. Jena, J.M.F.C., Bhubaneswar to record the statement of the witnesses under the said provision. Since the accused-petitioner could not be produced on 29-9-2004 due to shortage of escort party, the J.M.F.C. could not record the statement of witnesses on that date and remanded the accused-petitioner till 14-10-2004. After recording the statement of witnesses under Section 164 Cr. P.C. the J.M.F.C. transferred the record to the S.D.J.M., Bhubaneswar on 4-10-2004. The order sheet of that date shows that on the same date the S.D.J.M., Bhubaneswar received the charge-sheet against the accused persons under Sections 302/307/34 I.P.C. read with Sections 25 and 27 of the Arms Act, issued N.B.W. of arrest against the absentee accused, noticed the bailers and remanded the petitioner to custody. He also ordered to place the record on the date fixed i.e. 14-10-2004. On the same date i.e. 4-10-2004 later on, on the strength of an advanced petition, the record was put up and the petition for bail under Section 167(2) Cr. P.C. was filed. So, it clearly shows that the bail petition was filed after the charge- sheet was received by the learned S.D.J.M., Bhubaneswar. As such, the right, which had accrued in favour of the petitioner, was extinguished by the time charge-sheet was submitted. Filing of petition under Section 167(2) Cr. P.C. thereafter cannot be favourably entertained.</p><p style="text-align: justify;">6. Hence, the Criminal Revision stands dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '2005CriLJ1451; 2005(I)OLR127', 'ratiodecidendi' => '', 'respondent' => 'State of Orissa', 'sub' => 'Criminal', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'rakesh-swain-vs-state-orissa', 'args' => array( (int) 0 => '535063', (int) 1 => 'rakesh-swain-vs-state-orissa' ) ) $title_for_layout = 'Rakesh Swain Vs State of Orissa - Citation 535063 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '535063', 'acts' => 'Arms Act - Sections 25 and 27; Code of Criminal Procedure (CrPC) , 1974 - Sections 164 and 167(2); Indian Penal Code (IPC) - Sections 34, 302 and 307', 'appealno' => 'Crl. Revn. No. 696 of 2004', 'appellant' => 'Rakesh Swain', 'authreffered' => '', 'casename' => 'Rakesh SwaIn Vs. State of Orissa', 'casenote' => ' - LABOUR & SERVICES Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b) Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in reduction of pay of employee on promotion Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules. - So, it clearly shows that the bail petition was filed after the charge- sheet was received by the learned S.', 'caseanalysis' => null, 'casesref' => ' and Dinesh Yadav v. State;', 'citingcases' => '', 'counselplain' => 'D. Panda, ;B.P. Hal, ;G.R. Mohanty, ;A. Parida and ;R. Mohalik, Advs.', 'counseldef' => 'Addl. S.C.', 'court' => 'Orissa', 'court_type' => 'HC', 'decidedon' => '2004-12-01', 'deposition' => 'Revision dismissed', 'favorof' => null, 'findings' => null, 'judge' => 'R.N. Biswal, J.', 'judgement' => 'ORDER<p>R.N. Biswal, J.</p><p>1. In this revision the petitioner has challenged the legality and propriety of the order dated 4-10-2004 passed by the S.D.J.M., Bhubaneswar in G. R. Case No. 1049 of 2004, wherein he rejected the petition under Section 167(2) Cr. P.C. filed by the petitioner.</p><p>2. The case of the petitioner is that having been arrested on 5-6-2004 in Chandaka P.S. Case No. 23 of 2004 corresponding to the aforesaid G. R. Case for the offence under Sections 302/307/34 I.P.C. read with Sections 25 and 27 of the Arms Act he was remanded to judicial custody on the next date. Even though, in the meantime the statutory period of 120 days expired on 3-4-2004 charge-sheet could not be submitted. On 4-10-2004 he filed the petition under Section 167(2) Cr. P.C. for his release on bail. </p><p>3. Learned trial Court rejected the petition holding that in view of the nature of allegations made, he is not inclined to admit the accused-petitioner to bail. Being aggrieved with this order the petitioner has preferred the present Revision.</p><p>4. Learned counsel for the petitioner submits that an accused has a statutory right to be released on bail if the final form cannot be submitted within the statutory period of 120 days as per proviso (a) to Section 167(2) Cr. P.C. In the present case the petitioner having been arrested on 5-6-2004 was remanded to judicial custody on 6-6-2004 where he has been detained since then. The period of 120 clays was completed on 3-10-2004. The petitioner filed the petition under Section 167(2) Cr. P.C. on 4-10-2004. Since final form was not submitted within 120 days of the first date of remand of the petitioner to judicial custody, the trial Court ought not have rejected the petition, particularly when it was filed prior to submission of charge-sheet. In support of his submission he relied on the decisions in Mohamed Iqbal Madar Sheikh v. State of Maharashtra, 1996 (1) Crimes 4 (SC), Udaya Mohanlal Acharya v. State of Maharashtra; 2001 (2) Ori LR (SC) 290 : (2001 Cri LJ 1832), Ganesh Prasad v. State of M.P., 2001 Cri LJ 3444 and Dinesh Yadav v. State, 2002 Cri LJ 1067 (Patna High Court).</p><p>5. Mr. Rout, learned Additional Standing Counsel did not dispute the point of law as raised by learned counsel for the petitioner. However, he contended that the petition under Section 167(2) Cr. P.C. was filed only after the submission of charge-sheet on 4-10-2004. As soon as the charge-sheet was submitted the right of the petitioner to be released on bail under proviso (a) to Section 167(2) Cr. P.C. extinguished. In view of the rival contentions of the learned counsel for the petitioner and the learned Additional Standing Counsel with regard to the time of submission of the charge-sheet and filing of petition under Section 167(2) Cr. P.C., it would be profitable to peruse the L.C.R. On perusal of the L.C.R. it is found that on 15-9-2004 the accused-petitioner was remanded to judicial custody till 29-9-2004. On 28-9-2004 the I.O. made an application before the S.D.J.M., Bhubaneswar for recording the statement of some witnesses Under Section 164 Cr.P.C. So, the learned S.D.J.M., Bhubaneswar transferred the case to the Court of Shri U. B. Jena, J.M.F.C., Bhubaneswar to record the statement of the witnesses under the said provision. Since the accused-petitioner could not be produced on 29-9-2004 due to shortage of escort party, the J.M.F.C. could not record the statement of witnesses on that date and remanded the accused-petitioner till 14-10-2004. After recording the statement of witnesses under Section 164 Cr. P.C. the J.M.F.C. transferred the record to the S.D.J.M., Bhubaneswar on 4-10-2004. The order sheet of that date shows that on the same date the S.D.J.M., Bhubaneswar received the charge-sheet against the accused persons under Sections 302/307/34 I.P.C. read with Sections 25 and 27 of the Arms Act, issued N.B.W. of arrest against the absentee accused, noticed the bailers and remanded the petitioner to custody. He also ordered to place the record on the date fixed i.e. 14-10-2004. On the same date i.e. 4-10-2004 later on, on the strength of an advanced petition, the record was put up and the petition for bail under Section 167(2) Cr. P.C. was filed. So, it clearly shows that the bail petition was filed after the charge- sheet was received by the learned S.D.J.M., Bhubaneswar. As such, the right, which had accrued in favour of the petitioner, was extinguished by the time charge-sheet was submitted. Filing of petition under Section 167(2) Cr. P.C. thereafter cannot be favourably entertained.</p><p>6. Hence, the Criminal Revision stands dismissed.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '2005CriLJ1451; 2005(I)OLR127', 'ratiodecidendi' => '', 'respondent' => 'State of Orissa', 'sub' => 'Criminal', 'link' => null, 'circuit' => null ) ) $casename_url = 'rakesh-swain-vs-state-orissa' $args = array( (int) 0 => '535063', (int) 1 => 'rakesh-swain-vs-state-orissa' ) $url = 'https://sooperkanoon.com/case/amp/535063/rakesh-swain-vs-state-orissa' $ctype = ' High Court' $caseref = ' and Dinesh Yadav v. State<br>' $content = array( (int) 0 => 'ORDER<p>R.N. Biswal, J.', (int) 1 => '<p>1. In this revision the petitioner has challenged the legality and propriety of the order dated 4-10-2004 passed by the S.D.J.M., Bhubaneswar in G. R. Case No. 1049 of 2004, wherein he rejected the petition under Section 167(2) Cr. P.C. filed by the petitioner.', (int) 2 => '<p>2. The case of the petitioner is that having been arrested on 5-6-2004 in Chandaka P.S. Case No. 23 of 2004 corresponding to the aforesaid G. R. Case for the offence under Sections 302/307/34 I.P.C. read with Sections 25 and 27 of the Arms Act he was remanded to judicial custody on the next date. Even though, in the meantime the statutory period of 120 days expired on 3-4-2004 charge-sheet could not be submitted. On 4-10-2004 he filed the petition under Section 167(2) Cr. P.C. for his release on bail. ', (int) 3 => '<p>3. Learned trial Court rejected the petition holding that in view of the nature of allegations made, he is not inclined to admit the accused-petitioner to bail. Being aggrieved with this order the petitioner has preferred the present Revision.', (int) 4 => '<p>4. Learned counsel for the petitioner submits that an accused has a statutory right to be released on bail if the final form cannot be submitted within the statutory period of 120 days as per proviso (a) to Section 167(2) Cr. P.C. In the present case the petitioner having been arrested on 5-6-2004 was remanded to judicial custody on 6-6-2004 where he has been detained since then. The period of 120 clays was completed on 3-10-2004. The petitioner filed the petition under Section 167(2) Cr. P.C. on 4-10-2004. Since final form was not submitted within 120 days of the first date of remand of the petitioner to judicial custody, the trial Court ought not have rejected the petition, particularly when it was filed prior to submission of charge-sheet. In support of his submission he relied on the decisions in Mohamed Iqbal Madar Sheikh v. State of Maharashtra, 1996 (1) Crimes 4 (SC), Udaya Mohanlal Acharya v. State of Maharashtra; 2001 (2) Ori LR (SC) 290 : (2001 Cri LJ 1832), Ganesh Prasad v. State of M.P., 2001 Cri LJ 3444 and Dinesh Yadav v. State, 2002 Cri LJ 1067 (Patna High Court).', (int) 5 => '<p>5. Mr. Rout, learned Additional Standing Counsel did not dispute the point of law as raised by learned counsel for the petitioner. However, he contended that the petition under Section 167(2) Cr. P.C. was filed only after the submission of charge-sheet on 4-10-2004. As soon as the charge-sheet was submitted the right of the petitioner to be released on bail under proviso (a) to Section 167(2) Cr. P.C. extinguished. In view of the rival contentions of the learned counsel for the petitioner and the learned Additional Standing Counsel with regard to the time of submission of the charge-sheet and filing of petition under Section 167(2) Cr. P.C., it would be profitable to peruse the L.C.R. On perusal of the L.C.R. it is found that on 15-9-2004 the accused-petitioner was remanded to judicial custody till 29-9-2004. On 28-9-2004 the I.O. made an application before the S.D.J.M., Bhubaneswar for recording the statement of some witnesses Under Section 164 Cr.P.C. So, the learned S.D.J.M., Bhubaneswar transferred the case to the Court of Shri U. B. Jena, J.M.F.C., Bhubaneswar to record the statement of the witnesses under the said provision. Since the accused-petitioner could not be produced on 29-9-2004 due to shortage of escort party, the J.M.F.C. could not record the statement of witnesses on that date and remanded the accused-petitioner till 14-10-2004. After recording the statement of witnesses under Section 164 Cr. P.C. the J.M.F.C. transferred the record to the S.D.J.M., Bhubaneswar on 4-10-2004. The order sheet of that date shows that on the same date the S.D.J.M., Bhubaneswar received the charge-sheet against the accused persons under Sections 302/307/34 I.P.C. read with Sections 25 and 27 of the Arms Act, issued N.B.W. of arrest against the absentee accused, noticed the bailers and remanded the petitioner to custody. He also ordered to place the record on the date fixed i.e. 14-10-2004. On the same date i.e. 4-10-2004 later on, on the strength of an advanced petition, the record was put up and the petition for bail under Section 167(2) Cr. P.C. was filed. So, it clearly shows that the bail petition was filed after the charge- sheet was received by the learned S.D.J.M., Bhubaneswar. As such, the right, which had accrued in favour of the petitioner, was extinguished by the time charge-sheet was submitted. Filing of petition under Section 167(2) Cr. P.C. thereafter cannot be favourably entertained.', (int) 6 => '<p>6. Hence, the Criminal Revision stands dismissed.<p>', (int) 7 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 8 $i = (int) 2include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
2. The case of the petitioner is that having been arrested on 5-6-2004 in Chandaka P.S. Case No. 23 of 2004 corresponding to the aforesaid G. R. Case for the offence under Sections 302/307/34 I.P.C. read with Sections 25 and 27 of the Arms Act he was remanded to judicial custody on the next date. Even though, in the meantime the statutory period of 120 days expired on 3-4-2004 charge-sheet could not be submitted. On 4-10-2004 he filed the petition under Section 167(2) Cr. P.C. for his release on bail.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Rakesh Swain Vs State of Orissa - Citation 535063 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '535063', 'acts' => 'Arms Act - Sections 25 and 27; Code of Criminal Procedure (CrPC) , 1974 - Sections 164 and 167(2); Indian Penal Code (IPC) - Sections 34, 302 and 307', 'appealno' => 'Crl. Revn. No. 696 of 2004', 'appellant' => 'Rakesh Swain', 'authreffered' => '', 'casename' => 'Rakesh SwaIn Vs. State of Orissa', 'casenote' => ' - LABOUR & SERVICES Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b) Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in reduction of pay of employee on promotion Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules. - So, it clearly shows that the bail petition was filed after the charge- sheet was received by the learned S.', 'caseanalysis' => null, 'casesref' => ' and Dinesh Yadav v. State;', 'citingcases' => '', 'counselplain' => 'D. Panda, ;B.P. Hal, ;G.R. Mohanty, ;A. Parida and ;R. Mohalik, Advs.', 'counseldef' => 'Addl. S.C.', 'court' => 'Orissa', 'court_type' => 'HC', 'decidedon' => '2004-12-01', 'deposition' => 'Revision dismissed', 'favorof' => null, 'findings' => null, 'judge' => 'R.N. Biswal, J.', 'judgement' => 'ORDER<p style="text-align: justify;">R.N. Biswal, J.</p><p style="text-align: justify;">1. In this revision the petitioner has challenged the legality and propriety of the order dated 4-10-2004 passed by the S.D.J.M., Bhubaneswar in G. R. Case No. 1049 of 2004, wherein he rejected the petition under Section 167(2) Cr. P.C. filed by the petitioner.</p><p style="text-align: justify;">2. The case of the petitioner is that having been arrested on 5-6-2004 in Chandaka P.S. Case No. 23 of 2004 corresponding to the aforesaid G. R. Case for the offence under Sections 302/307/34 I.P.C. read with Sections 25 and 27 of the Arms Act he was remanded to judicial custody on the next date. Even though, in the meantime the statutory period of 120 days expired on 3-4-2004 charge-sheet could not be submitted. On 4-10-2004 he filed the petition under Section 167(2) Cr. P.C. for his release on bail. </p><p style="text-align: justify;">3. Learned trial Court rejected the petition holding that in view of the nature of allegations made, he is not inclined to admit the accused-petitioner to bail. Being aggrieved with this order the petitioner has preferred the present Revision.</p><p style="text-align: justify;">4. Learned counsel for the petitioner submits that an accused has a statutory right to be released on bail if the final form cannot be submitted within the statutory period of 120 days as per proviso (a) to Section 167(2) Cr. P.C. In the present case the petitioner having been arrested on 5-6-2004 was remanded to judicial custody on 6-6-2004 where he has been detained since then. The period of 120 clays was completed on 3-10-2004. The petitioner filed the petition under Section 167(2) Cr. P.C. on 4-10-2004. Since final form was not submitted within 120 days of the first date of remand of the petitioner to judicial custody, the trial Court ought not have rejected the petition, particularly when it was filed prior to submission of charge-sheet. In support of his submission he relied on the decisions in Mohamed Iqbal Madar Sheikh v. State of Maharashtra, 1996 (1) Crimes 4 (SC), Udaya Mohanlal Acharya v. State of Maharashtra; 2001 (2) Ori LR (SC) 290 : (2001 Cri LJ 1832), Ganesh Prasad v. State of M.P., 2001 Cri LJ 3444 and Dinesh Yadav v. State, 2002 Cri LJ 1067 (Patna High Court).</p><p style="text-align: justify;">5. Mr. Rout, learned Additional Standing Counsel did not dispute the point of law as raised by learned counsel for the petitioner. However, he contended that the petition under Section 167(2) Cr. P.C. was filed only after the submission of charge-sheet on 4-10-2004. As soon as the charge-sheet was submitted the right of the petitioner to be released on bail under proviso (a) to Section 167(2) Cr. P.C. extinguished. In view of the rival contentions of the learned counsel for the petitioner and the learned Additional Standing Counsel with regard to the time of submission of the charge-sheet and filing of petition under Section 167(2) Cr. P.C., it would be profitable to peruse the L.C.R. On perusal of the L.C.R. it is found that on 15-9-2004 the accused-petitioner was remanded to judicial custody till 29-9-2004. On 28-9-2004 the I.O. made an application before the S.D.J.M., Bhubaneswar for recording the statement of some witnesses Under Section 164 Cr.P.C. So, the learned S.D.J.M., Bhubaneswar transferred the case to the Court of Shri U. B. Jena, J.M.F.C., Bhubaneswar to record the statement of the witnesses under the said provision. Since the accused-petitioner could not be produced on 29-9-2004 due to shortage of escort party, the J.M.F.C. could not record the statement of witnesses on that date and remanded the accused-petitioner till 14-10-2004. After recording the statement of witnesses under Section 164 Cr. P.C. the J.M.F.C. transferred the record to the S.D.J.M., Bhubaneswar on 4-10-2004. The order sheet of that date shows that on the same date the S.D.J.M., Bhubaneswar received the charge-sheet against the accused persons under Sections 302/307/34 I.P.C. read with Sections 25 and 27 of the Arms Act, issued N.B.W. of arrest against the absentee accused, noticed the bailers and remanded the petitioner to custody. He also ordered to place the record on the date fixed i.e. 14-10-2004. On the same date i.e. 4-10-2004 later on, on the strength of an advanced petition, the record was put up and the petition for bail under Section 167(2) Cr. P.C. was filed. So, it clearly shows that the bail petition was filed after the charge- sheet was received by the learned S.D.J.M., Bhubaneswar. As such, the right, which had accrued in favour of the petitioner, was extinguished by the time charge-sheet was submitted. Filing of petition under Section 167(2) Cr. P.C. thereafter cannot be favourably entertained.</p><p style="text-align: justify;">6. Hence, the Criminal Revision stands dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '2005CriLJ1451; 2005(I)OLR127', 'ratiodecidendi' => '', 'respondent' => 'State of Orissa', 'sub' => 'Criminal', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'rakesh-swain-vs-state-orissa', 'args' => array( (int) 0 => '535063', (int) 1 => 'rakesh-swain-vs-state-orissa' ) ) $title_for_layout = 'Rakesh Swain Vs State of Orissa - Citation 535063 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '535063', 'acts' => 'Arms Act - Sections 25 and 27; Code of Criminal Procedure (CrPC) , 1974 - Sections 164 and 167(2); Indian Penal Code (IPC) - Sections 34, 302 and 307', 'appealno' => 'Crl. Revn. No. 696 of 2004', 'appellant' => 'Rakesh Swain', 'authreffered' => '', 'casename' => 'Rakesh SwaIn Vs. State of Orissa', 'casenote' => ' - LABOUR & SERVICES Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b) Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in reduction of pay of employee on promotion Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules. - So, it clearly shows that the bail petition was filed after the charge- sheet was received by the learned S.', 'caseanalysis' => null, 'casesref' => ' and Dinesh Yadav v. State;', 'citingcases' => '', 'counselplain' => 'D. Panda, ;B.P. Hal, ;G.R. Mohanty, ;A. Parida and ;R. Mohalik, Advs.', 'counseldef' => 'Addl. S.C.', 'court' => 'Orissa', 'court_type' => 'HC', 'decidedon' => '2004-12-01', 'deposition' => 'Revision dismissed', 'favorof' => null, 'findings' => null, 'judge' => 'R.N. Biswal, J.', 'judgement' => 'ORDER<p>R.N. Biswal, J.</p><p>1. In this revision the petitioner has challenged the legality and propriety of the order dated 4-10-2004 passed by the S.D.J.M., Bhubaneswar in G. R. Case No. 1049 of 2004, wherein he rejected the petition under Section 167(2) Cr. P.C. filed by the petitioner.</p><p>2. The case of the petitioner is that having been arrested on 5-6-2004 in Chandaka P.S. Case No. 23 of 2004 corresponding to the aforesaid G. R. Case for the offence under Sections 302/307/34 I.P.C. read with Sections 25 and 27 of the Arms Act he was remanded to judicial custody on the next date. Even though, in the meantime the statutory period of 120 days expired on 3-4-2004 charge-sheet could not be submitted. On 4-10-2004 he filed the petition under Section 167(2) Cr. P.C. for his release on bail. </p><p>3. Learned trial Court rejected the petition holding that in view of the nature of allegations made, he is not inclined to admit the accused-petitioner to bail. Being aggrieved with this order the petitioner has preferred the present Revision.</p><p>4. Learned counsel for the petitioner submits that an accused has a statutory right to be released on bail if the final form cannot be submitted within the statutory period of 120 days as per proviso (a) to Section 167(2) Cr. P.C. In the present case the petitioner having been arrested on 5-6-2004 was remanded to judicial custody on 6-6-2004 where he has been detained since then. The period of 120 clays was completed on 3-10-2004. The petitioner filed the petition under Section 167(2) Cr. P.C. on 4-10-2004. Since final form was not submitted within 120 days of the first date of remand of the petitioner to judicial custody, the trial Court ought not have rejected the petition, particularly when it was filed prior to submission of charge-sheet. In support of his submission he relied on the decisions in Mohamed Iqbal Madar Sheikh v. State of Maharashtra, 1996 (1) Crimes 4 (SC), Udaya Mohanlal Acharya v. State of Maharashtra; 2001 (2) Ori LR (SC) 290 : (2001 Cri LJ 1832), Ganesh Prasad v. State of M.P., 2001 Cri LJ 3444 and Dinesh Yadav v. State, 2002 Cri LJ 1067 (Patna High Court).</p><p>5. Mr. Rout, learned Additional Standing Counsel did not dispute the point of law as raised by learned counsel for the petitioner. However, he contended that the petition under Section 167(2) Cr. P.C. was filed only after the submission of charge-sheet on 4-10-2004. As soon as the charge-sheet was submitted the right of the petitioner to be released on bail under proviso (a) to Section 167(2) Cr. P.C. extinguished. In view of the rival contentions of the learned counsel for the petitioner and the learned Additional Standing Counsel with regard to the time of submission of the charge-sheet and filing of petition under Section 167(2) Cr. P.C., it would be profitable to peruse the L.C.R. On perusal of the L.C.R. it is found that on 15-9-2004 the accused-petitioner was remanded to judicial custody till 29-9-2004. On 28-9-2004 the I.O. made an application before the S.D.J.M., Bhubaneswar for recording the statement of some witnesses Under Section 164 Cr.P.C. So, the learned S.D.J.M., Bhubaneswar transferred the case to the Court of Shri U. B. Jena, J.M.F.C., Bhubaneswar to record the statement of the witnesses under the said provision. Since the accused-petitioner could not be produced on 29-9-2004 due to shortage of escort party, the J.M.F.C. could not record the statement of witnesses on that date and remanded the accused-petitioner till 14-10-2004. After recording the statement of witnesses under Section 164 Cr. P.C. the J.M.F.C. transferred the record to the S.D.J.M., Bhubaneswar on 4-10-2004. The order sheet of that date shows that on the same date the S.D.J.M., Bhubaneswar received the charge-sheet against the accused persons under Sections 302/307/34 I.P.C. read with Sections 25 and 27 of the Arms Act, issued N.B.W. of arrest against the absentee accused, noticed the bailers and remanded the petitioner to custody. He also ordered to place the record on the date fixed i.e. 14-10-2004. On the same date i.e. 4-10-2004 later on, on the strength of an advanced petition, the record was put up and the petition for bail under Section 167(2) Cr. P.C. was filed. So, it clearly shows that the bail petition was filed after the charge- sheet was received by the learned S.D.J.M., Bhubaneswar. As such, the right, which had accrued in favour of the petitioner, was extinguished by the time charge-sheet was submitted. Filing of petition under Section 167(2) Cr. P.C. thereafter cannot be favourably entertained.</p><p>6. Hence, the Criminal Revision stands dismissed.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '2005CriLJ1451; 2005(I)OLR127', 'ratiodecidendi' => '', 'respondent' => 'State of Orissa', 'sub' => 'Criminal', 'link' => null, 'circuit' => null ) ) $casename_url = 'rakesh-swain-vs-state-orissa' $args = array( (int) 0 => '535063', (int) 1 => 'rakesh-swain-vs-state-orissa' ) $url = 'https://sooperkanoon.com/case/amp/535063/rakesh-swain-vs-state-orissa' $ctype = ' High Court' $caseref = ' and Dinesh Yadav v. State<br>' $content = array( (int) 0 => 'ORDER<p>R.N. Biswal, J.', (int) 1 => '<p>1. In this revision the petitioner has challenged the legality and propriety of the order dated 4-10-2004 passed by the S.D.J.M., Bhubaneswar in G. R. Case No. 1049 of 2004, wherein he rejected the petition under Section 167(2) Cr. P.C. filed by the petitioner.', (int) 2 => '<p>2. The case of the petitioner is that having been arrested on 5-6-2004 in Chandaka P.S. Case No. 23 of 2004 corresponding to the aforesaid G. R. Case for the offence under Sections 302/307/34 I.P.C. read with Sections 25 and 27 of the Arms Act he was remanded to judicial custody on the next date. Even though, in the meantime the statutory period of 120 days expired on 3-4-2004 charge-sheet could not be submitted. On 4-10-2004 he filed the petition under Section 167(2) Cr. P.C. for his release on bail. ', (int) 3 => '<p>3. Learned trial Court rejected the petition holding that in view of the nature of allegations made, he is not inclined to admit the accused-petitioner to bail. Being aggrieved with this order the petitioner has preferred the present Revision.', (int) 4 => '<p>4. Learned counsel for the petitioner submits that an accused has a statutory right to be released on bail if the final form cannot be submitted within the statutory period of 120 days as per proviso (a) to Section 167(2) Cr. P.C. In the present case the petitioner having been arrested on 5-6-2004 was remanded to judicial custody on 6-6-2004 where he has been detained since then. The period of 120 clays was completed on 3-10-2004. The petitioner filed the petition under Section 167(2) Cr. P.C. on 4-10-2004. Since final form was not submitted within 120 days of the first date of remand of the petitioner to judicial custody, the trial Court ought not have rejected the petition, particularly when it was filed prior to submission of charge-sheet. In support of his submission he relied on the decisions in Mohamed Iqbal Madar Sheikh v. State of Maharashtra, 1996 (1) Crimes 4 (SC), Udaya Mohanlal Acharya v. State of Maharashtra; 2001 (2) Ori LR (SC) 290 : (2001 Cri LJ 1832), Ganesh Prasad v. State of M.P., 2001 Cri LJ 3444 and Dinesh Yadav v. State, 2002 Cri LJ 1067 (Patna High Court).', (int) 5 => '<p>5. Mr. Rout, learned Additional Standing Counsel did not dispute the point of law as raised by learned counsel for the petitioner. However, he contended that the petition under Section 167(2) Cr. P.C. was filed only after the submission of charge-sheet on 4-10-2004. As soon as the charge-sheet was submitted the right of the petitioner to be released on bail under proviso (a) to Section 167(2) Cr. P.C. extinguished. In view of the rival contentions of the learned counsel for the petitioner and the learned Additional Standing Counsel with regard to the time of submission of the charge-sheet and filing of petition under Section 167(2) Cr. P.C., it would be profitable to peruse the L.C.R. On perusal of the L.C.R. it is found that on 15-9-2004 the accused-petitioner was remanded to judicial custody till 29-9-2004. On 28-9-2004 the I.O. made an application before the S.D.J.M., Bhubaneswar for recording the statement of some witnesses Under Section 164 Cr.P.C. So, the learned S.D.J.M., Bhubaneswar transferred the case to the Court of Shri U. B. Jena, J.M.F.C., Bhubaneswar to record the statement of the witnesses under the said provision. Since the accused-petitioner could not be produced on 29-9-2004 due to shortage of escort party, the J.M.F.C. could not record the statement of witnesses on that date and remanded the accused-petitioner till 14-10-2004. After recording the statement of witnesses under Section 164 Cr. P.C. the J.M.F.C. transferred the record to the S.D.J.M., Bhubaneswar on 4-10-2004. The order sheet of that date shows that on the same date the S.D.J.M., Bhubaneswar received the charge-sheet against the accused persons under Sections 302/307/34 I.P.C. read with Sections 25 and 27 of the Arms Act, issued N.B.W. of arrest against the absentee accused, noticed the bailers and remanded the petitioner to custody. He also ordered to place the record on the date fixed i.e. 14-10-2004. On the same date i.e. 4-10-2004 later on, on the strength of an advanced petition, the record was put up and the petition for bail under Section 167(2) Cr. P.C. was filed. So, it clearly shows that the bail petition was filed after the charge- sheet was received by the learned S.D.J.M., Bhubaneswar. As such, the right, which had accrued in favour of the petitioner, was extinguished by the time charge-sheet was submitted. Filing of petition under Section 167(2) Cr. P.C. thereafter cannot be favourably entertained.', (int) 6 => '<p>6. Hence, the Criminal Revision stands dismissed.<p>', (int) 7 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 8 $i = (int) 3include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
3. Learned trial Court rejected the petition holding that in view of the nature of allegations made, he is not inclined to admit the accused-petitioner to bail. Being aggrieved with this order the petitioner has preferred the present Revision.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Rakesh Swain Vs State of Orissa - Citation 535063 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '535063', 'acts' => 'Arms Act - Sections 25 and 27; Code of Criminal Procedure (CrPC) , 1974 - Sections 164 and 167(2); Indian Penal Code (IPC) - Sections 34, 302 and 307', 'appealno' => 'Crl. Revn. No. 696 of 2004', 'appellant' => 'Rakesh Swain', 'authreffered' => '', 'casename' => 'Rakesh SwaIn Vs. State of Orissa', 'casenote' => ' - LABOUR & SERVICES Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b) Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in reduction of pay of employee on promotion Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules. - So, it clearly shows that the bail petition was filed after the charge- sheet was received by the learned S.', 'caseanalysis' => null, 'casesref' => ' and Dinesh Yadav v. State;', 'citingcases' => '', 'counselplain' => 'D. Panda, ;B.P. Hal, ;G.R. Mohanty, ;A. Parida and ;R. Mohalik, Advs.', 'counseldef' => 'Addl. S.C.', 'court' => 'Orissa', 'court_type' => 'HC', 'decidedon' => '2004-12-01', 'deposition' => 'Revision dismissed', 'favorof' => null, 'findings' => null, 'judge' => 'R.N. Biswal, J.', 'judgement' => 'ORDER<p style="text-align: justify;">R.N. Biswal, J.</p><p style="text-align: justify;">1. In this revision the petitioner has challenged the legality and propriety of the order dated 4-10-2004 passed by the S.D.J.M., Bhubaneswar in G. R. Case No. 1049 of 2004, wherein he rejected the petition under Section 167(2) Cr. P.C. filed by the petitioner.</p><p style="text-align: justify;">2. The case of the petitioner is that having been arrested on 5-6-2004 in Chandaka P.S. Case No. 23 of 2004 corresponding to the aforesaid G. R. Case for the offence under Sections 302/307/34 I.P.C. read with Sections 25 and 27 of the Arms Act he was remanded to judicial custody on the next date. Even though, in the meantime the statutory period of 120 days expired on 3-4-2004 charge-sheet could not be submitted. On 4-10-2004 he filed the petition under Section 167(2) Cr. P.C. for his release on bail. </p><p style="text-align: justify;">3. Learned trial Court rejected the petition holding that in view of the nature of allegations made, he is not inclined to admit the accused-petitioner to bail. Being aggrieved with this order the petitioner has preferred the present Revision.</p><p style="text-align: justify;">4. Learned counsel for the petitioner submits that an accused has a statutory right to be released on bail if the final form cannot be submitted within the statutory period of 120 days as per proviso (a) to Section 167(2) Cr. P.C. In the present case the petitioner having been arrested on 5-6-2004 was remanded to judicial custody on 6-6-2004 where he has been detained since then. The period of 120 clays was completed on 3-10-2004. The petitioner filed the petition under Section 167(2) Cr. P.C. on 4-10-2004. Since final form was not submitted within 120 days of the first date of remand of the petitioner to judicial custody, the trial Court ought not have rejected the petition, particularly when it was filed prior to submission of charge-sheet. In support of his submission he relied on the decisions in Mohamed Iqbal Madar Sheikh v. State of Maharashtra, 1996 (1) Crimes 4 (SC), Udaya Mohanlal Acharya v. State of Maharashtra; 2001 (2) Ori LR (SC) 290 : (2001 Cri LJ 1832), Ganesh Prasad v. State of M.P., 2001 Cri LJ 3444 and Dinesh Yadav v. State, 2002 Cri LJ 1067 (Patna High Court).</p><p style="text-align: justify;">5. Mr. Rout, learned Additional Standing Counsel did not dispute the point of law as raised by learned counsel for the petitioner. However, he contended that the petition under Section 167(2) Cr. P.C. was filed only after the submission of charge-sheet on 4-10-2004. As soon as the charge-sheet was submitted the right of the petitioner to be released on bail under proviso (a) to Section 167(2) Cr. P.C. extinguished. In view of the rival contentions of the learned counsel for the petitioner and the learned Additional Standing Counsel with regard to the time of submission of the charge-sheet and filing of petition under Section 167(2) Cr. P.C., it would be profitable to peruse the L.C.R. On perusal of the L.C.R. it is found that on 15-9-2004 the accused-petitioner was remanded to judicial custody till 29-9-2004. On 28-9-2004 the I.O. made an application before the S.D.J.M., Bhubaneswar for recording the statement of some witnesses Under Section 164 Cr.P.C. So, the learned S.D.J.M., Bhubaneswar transferred the case to the Court of Shri U. B. Jena, J.M.F.C., Bhubaneswar to record the statement of the witnesses under the said provision. Since the accused-petitioner could not be produced on 29-9-2004 due to shortage of escort party, the J.M.F.C. could not record the statement of witnesses on that date and remanded the accused-petitioner till 14-10-2004. After recording the statement of witnesses under Section 164 Cr. P.C. the J.M.F.C. transferred the record to the S.D.J.M., Bhubaneswar on 4-10-2004. The order sheet of that date shows that on the same date the S.D.J.M., Bhubaneswar received the charge-sheet against the accused persons under Sections 302/307/34 I.P.C. read with Sections 25 and 27 of the Arms Act, issued N.B.W. of arrest against the absentee accused, noticed the bailers and remanded the petitioner to custody. He also ordered to place the record on the date fixed i.e. 14-10-2004. On the same date i.e. 4-10-2004 later on, on the strength of an advanced petition, the record was put up and the petition for bail under Section 167(2) Cr. P.C. was filed. So, it clearly shows that the bail petition was filed after the charge- sheet was received by the learned S.D.J.M., Bhubaneswar. As such, the right, which had accrued in favour of the petitioner, was extinguished by the time charge-sheet was submitted. Filing of petition under Section 167(2) Cr. P.C. thereafter cannot be favourably entertained.</p><p style="text-align: justify;">6. Hence, the Criminal Revision stands dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '2005CriLJ1451; 2005(I)OLR127', 'ratiodecidendi' => '', 'respondent' => 'State of Orissa', 'sub' => 'Criminal', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'rakesh-swain-vs-state-orissa', 'args' => array( (int) 0 => '535063', (int) 1 => 'rakesh-swain-vs-state-orissa' ) ) $title_for_layout = 'Rakesh Swain Vs State of Orissa - Citation 535063 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '535063', 'acts' => 'Arms Act - Sections 25 and 27; Code of Criminal Procedure (CrPC) , 1974 - Sections 164 and 167(2); Indian Penal Code (IPC) - Sections 34, 302 and 307', 'appealno' => 'Crl. Revn. No. 696 of 2004', 'appellant' => 'Rakesh Swain', 'authreffered' => '', 'casename' => 'Rakesh SwaIn Vs. State of Orissa', 'casenote' => ' - LABOUR & SERVICES Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b) Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in reduction of pay of employee on promotion Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules. - So, it clearly shows that the bail petition was filed after the charge- sheet was received by the learned S.', 'caseanalysis' => null, 'casesref' => ' and Dinesh Yadav v. State;', 'citingcases' => '', 'counselplain' => 'D. Panda, ;B.P. Hal, ;G.R. Mohanty, ;A. Parida and ;R. Mohalik, Advs.', 'counseldef' => 'Addl. S.C.', 'court' => 'Orissa', 'court_type' => 'HC', 'decidedon' => '2004-12-01', 'deposition' => 'Revision dismissed', 'favorof' => null, 'findings' => null, 'judge' => 'R.N. Biswal, J.', 'judgement' => 'ORDER<p>R.N. Biswal, J.</p><p>1. In this revision the petitioner has challenged the legality and propriety of the order dated 4-10-2004 passed by the S.D.J.M., Bhubaneswar in G. R. Case No. 1049 of 2004, wherein he rejected the petition under Section 167(2) Cr. P.C. filed by the petitioner.</p><p>2. The case of the petitioner is that having been arrested on 5-6-2004 in Chandaka P.S. Case No. 23 of 2004 corresponding to the aforesaid G. R. Case for the offence under Sections 302/307/34 I.P.C. read with Sections 25 and 27 of the Arms Act he was remanded to judicial custody on the next date. Even though, in the meantime the statutory period of 120 days expired on 3-4-2004 charge-sheet could not be submitted. On 4-10-2004 he filed the petition under Section 167(2) Cr. P.C. for his release on bail. </p><p>3. Learned trial Court rejected the petition holding that in view of the nature of allegations made, he is not inclined to admit the accused-petitioner to bail. Being aggrieved with this order the petitioner has preferred the present Revision.</p><p>4. Learned counsel for the petitioner submits that an accused has a statutory right to be released on bail if the final form cannot be submitted within the statutory period of 120 days as per proviso (a) to Section 167(2) Cr. P.C. In the present case the petitioner having been arrested on 5-6-2004 was remanded to judicial custody on 6-6-2004 where he has been detained since then. The period of 120 clays was completed on 3-10-2004. The petitioner filed the petition under Section 167(2) Cr. P.C. on 4-10-2004. Since final form was not submitted within 120 days of the first date of remand of the petitioner to judicial custody, the trial Court ought not have rejected the petition, particularly when it was filed prior to submission of charge-sheet. In support of his submission he relied on the decisions in Mohamed Iqbal Madar Sheikh v. State of Maharashtra, 1996 (1) Crimes 4 (SC), Udaya Mohanlal Acharya v. State of Maharashtra; 2001 (2) Ori LR (SC) 290 : (2001 Cri LJ 1832), Ganesh Prasad v. State of M.P., 2001 Cri LJ 3444 and Dinesh Yadav v. State, 2002 Cri LJ 1067 (Patna High Court).</p><p>5. Mr. Rout, learned Additional Standing Counsel did not dispute the point of law as raised by learned counsel for the petitioner. However, he contended that the petition under Section 167(2) Cr. P.C. was filed only after the submission of charge-sheet on 4-10-2004. As soon as the charge-sheet was submitted the right of the petitioner to be released on bail under proviso (a) to Section 167(2) Cr. P.C. extinguished. In view of the rival contentions of the learned counsel for the petitioner and the learned Additional Standing Counsel with regard to the time of submission of the charge-sheet and filing of petition under Section 167(2) Cr. P.C., it would be profitable to peruse the L.C.R. On perusal of the L.C.R. it is found that on 15-9-2004 the accused-petitioner was remanded to judicial custody till 29-9-2004. On 28-9-2004 the I.O. made an application before the S.D.J.M., Bhubaneswar for recording the statement of some witnesses Under Section 164 Cr.P.C. So, the learned S.D.J.M., Bhubaneswar transferred the case to the Court of Shri U. B. Jena, J.M.F.C., Bhubaneswar to record the statement of the witnesses under the said provision. Since the accused-petitioner could not be produced on 29-9-2004 due to shortage of escort party, the J.M.F.C. could not record the statement of witnesses on that date and remanded the accused-petitioner till 14-10-2004. After recording the statement of witnesses under Section 164 Cr. P.C. the J.M.F.C. transferred the record to the S.D.J.M., Bhubaneswar on 4-10-2004. The order sheet of that date shows that on the same date the S.D.J.M., Bhubaneswar received the charge-sheet against the accused persons under Sections 302/307/34 I.P.C. read with Sections 25 and 27 of the Arms Act, issued N.B.W. of arrest against the absentee accused, noticed the bailers and remanded the petitioner to custody. He also ordered to place the record on the date fixed i.e. 14-10-2004. On the same date i.e. 4-10-2004 later on, on the strength of an advanced petition, the record was put up and the petition for bail under Section 167(2) Cr. P.C. was filed. So, it clearly shows that the bail petition was filed after the charge- sheet was received by the learned S.D.J.M., Bhubaneswar. As such, the right, which had accrued in favour of the petitioner, was extinguished by the time charge-sheet was submitted. Filing of petition under Section 167(2) Cr. P.C. thereafter cannot be favourably entertained.</p><p>6. Hence, the Criminal Revision stands dismissed.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '2005CriLJ1451; 2005(I)OLR127', 'ratiodecidendi' => '', 'respondent' => 'State of Orissa', 'sub' => 'Criminal', 'link' => null, 'circuit' => null ) ) $casename_url = 'rakesh-swain-vs-state-orissa' $args = array( (int) 0 => '535063', (int) 1 => 'rakesh-swain-vs-state-orissa' ) $url = 'https://sooperkanoon.com/case/amp/535063/rakesh-swain-vs-state-orissa' $ctype = ' High Court' $caseref = ' and Dinesh Yadav v. State<br>' $content = array( (int) 0 => 'ORDER<p>R.N. Biswal, J.', (int) 1 => '<p>1. In this revision the petitioner has challenged the legality and propriety of the order dated 4-10-2004 passed by the S.D.J.M., Bhubaneswar in G. R. Case No. 1049 of 2004, wherein he rejected the petition under Section 167(2) Cr. P.C. filed by the petitioner.', (int) 2 => '<p>2. The case of the petitioner is that having been arrested on 5-6-2004 in Chandaka P.S. Case No. 23 of 2004 corresponding to the aforesaid G. R. Case for the offence under Sections 302/307/34 I.P.C. read with Sections 25 and 27 of the Arms Act he was remanded to judicial custody on the next date. Even though, in the meantime the statutory period of 120 days expired on 3-4-2004 charge-sheet could not be submitted. On 4-10-2004 he filed the petition under Section 167(2) Cr. P.C. for his release on bail. ', (int) 3 => '<p>3. Learned trial Court rejected the petition holding that in view of the nature of allegations made, he is not inclined to admit the accused-petitioner to bail. Being aggrieved with this order the petitioner has preferred the present Revision.', (int) 4 => '<p>4. Learned counsel for the petitioner submits that an accused has a statutory right to be released on bail if the final form cannot be submitted within the statutory period of 120 days as per proviso (a) to Section 167(2) Cr. P.C. In the present case the petitioner having been arrested on 5-6-2004 was remanded to judicial custody on 6-6-2004 where he has been detained since then. The period of 120 clays was completed on 3-10-2004. The petitioner filed the petition under Section 167(2) Cr. P.C. on 4-10-2004. Since final form was not submitted within 120 days of the first date of remand of the petitioner to judicial custody, the trial Court ought not have rejected the petition, particularly when it was filed prior to submission of charge-sheet. In support of his submission he relied on the decisions in Mohamed Iqbal Madar Sheikh v. State of Maharashtra, 1996 (1) Crimes 4 (SC), Udaya Mohanlal Acharya v. State of Maharashtra; 2001 (2) Ori LR (SC) 290 : (2001 Cri LJ 1832), Ganesh Prasad v. State of M.P., 2001 Cri LJ 3444 and Dinesh Yadav v. State, 2002 Cri LJ 1067 (Patna High Court).', (int) 5 => '<p>5. Mr. Rout, learned Additional Standing Counsel did not dispute the point of law as raised by learned counsel for the petitioner. However, he contended that the petition under Section 167(2) Cr. P.C. was filed only after the submission of charge-sheet on 4-10-2004. As soon as the charge-sheet was submitted the right of the petitioner to be released on bail under proviso (a) to Section 167(2) Cr. P.C. extinguished. In view of the rival contentions of the learned counsel for the petitioner and the learned Additional Standing Counsel with regard to the time of submission of the charge-sheet and filing of petition under Section 167(2) Cr. P.C., it would be profitable to peruse the L.C.R. On perusal of the L.C.R. it is found that on 15-9-2004 the accused-petitioner was remanded to judicial custody till 29-9-2004. On 28-9-2004 the I.O. made an application before the S.D.J.M., Bhubaneswar for recording the statement of some witnesses Under Section 164 Cr.P.C. So, the learned S.D.J.M., Bhubaneswar transferred the case to the Court of Shri U. B. Jena, J.M.F.C., Bhubaneswar to record the statement of the witnesses under the said provision. Since the accused-petitioner could not be produced on 29-9-2004 due to shortage of escort party, the J.M.F.C. could not record the statement of witnesses on that date and remanded the accused-petitioner till 14-10-2004. After recording the statement of witnesses under Section 164 Cr. P.C. the J.M.F.C. transferred the record to the S.D.J.M., Bhubaneswar on 4-10-2004. The order sheet of that date shows that on the same date the S.D.J.M., Bhubaneswar received the charge-sheet against the accused persons under Sections 302/307/34 I.P.C. read with Sections 25 and 27 of the Arms Act, issued N.B.W. of arrest against the absentee accused, noticed the bailers and remanded the petitioner to custody. He also ordered to place the record on the date fixed i.e. 14-10-2004. On the same date i.e. 4-10-2004 later on, on the strength of an advanced petition, the record was put up and the petition for bail under Section 167(2) Cr. P.C. was filed. So, it clearly shows that the bail petition was filed after the charge- sheet was received by the learned S.D.J.M., Bhubaneswar. As such, the right, which had accrued in favour of the petitioner, was extinguished by the time charge-sheet was submitted. Filing of petition under Section 167(2) Cr. P.C. thereafter cannot be favourably entertained.', (int) 6 => '<p>6. Hence, the Criminal Revision stands dismissed.<p>', (int) 7 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 8 $i = (int) 4include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
4. Learned counsel for the petitioner submits that an accused has a statutory right to be released on bail if the final form cannot be submitted within the statutory period of 120 days as per proviso (a) to Section 167(2) Cr. P.C. In the present case the petitioner having been arrested on 5-6-2004 was remanded to judicial custody on 6-6-2004 where he has been detained since then. The period of 120 clays was completed on 3-10-2004. The petitioner filed the petition under Section 167(2) Cr. P.C. on 4-10-2004. Since final form was not submitted within 120 days of the first date of remand of the petitioner to judicial custody, the trial Court ought not have rejected the petition, particularly when it was filed prior to submission of charge-sheet. In support of his submission he relied on the decisions in Mohamed Iqbal Madar Sheikh v. State of Maharashtra, 1996 (1) Crimes 4 (SC), Udaya Mohanlal Acharya v. State of Maharashtra; 2001 (2) Ori LR (SC) 290 : (2001 Cri LJ 1832), Ganesh Prasad v. State of M.P., 2001 Cri LJ 3444 and Dinesh Yadav v. State, 2002 Cri LJ 1067 (Patna High Court).
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Rakesh Swain Vs State of Orissa - Citation 535063 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '535063', 'acts' => 'Arms Act - Sections 25 and 27; Code of Criminal Procedure (CrPC) , 1974 - Sections 164 and 167(2); Indian Penal Code (IPC) - Sections 34, 302 and 307', 'appealno' => 'Crl. Revn. No. 696 of 2004', 'appellant' => 'Rakesh Swain', 'authreffered' => '', 'casename' => 'Rakesh SwaIn Vs. State of Orissa', 'casenote' => ' - LABOUR & SERVICES Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b) Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in reduction of pay of employee on promotion Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules. - So, it clearly shows that the bail petition was filed after the charge- sheet was received by the learned S.', 'caseanalysis' => null, 'casesref' => ' and Dinesh Yadav v. State;', 'citingcases' => '', 'counselplain' => 'D. Panda, ;B.P. Hal, ;G.R. Mohanty, ;A. Parida and ;R. Mohalik, Advs.', 'counseldef' => 'Addl. S.C.', 'court' => 'Orissa', 'court_type' => 'HC', 'decidedon' => '2004-12-01', 'deposition' => 'Revision dismissed', 'favorof' => null, 'findings' => null, 'judge' => 'R.N. Biswal, J.', 'judgement' => 'ORDER<p style="text-align: justify;">R.N. Biswal, J.</p><p style="text-align: justify;">1. In this revision the petitioner has challenged the legality and propriety of the order dated 4-10-2004 passed by the S.D.J.M., Bhubaneswar in G. R. Case No. 1049 of 2004, wherein he rejected the petition under Section 167(2) Cr. P.C. filed by the petitioner.</p><p style="text-align: justify;">2. The case of the petitioner is that having been arrested on 5-6-2004 in Chandaka P.S. Case No. 23 of 2004 corresponding to the aforesaid G. R. Case for the offence under Sections 302/307/34 I.P.C. read with Sections 25 and 27 of the Arms Act he was remanded to judicial custody on the next date. Even though, in the meantime the statutory period of 120 days expired on 3-4-2004 charge-sheet could not be submitted. On 4-10-2004 he filed the petition under Section 167(2) Cr. P.C. for his release on bail. </p><p style="text-align: justify;">3. Learned trial Court rejected the petition holding that in view of the nature of allegations made, he is not inclined to admit the accused-petitioner to bail. Being aggrieved with this order the petitioner has preferred the present Revision.</p><p style="text-align: justify;">4. Learned counsel for the petitioner submits that an accused has a statutory right to be released on bail if the final form cannot be submitted within the statutory period of 120 days as per proviso (a) to Section 167(2) Cr. P.C. In the present case the petitioner having been arrested on 5-6-2004 was remanded to judicial custody on 6-6-2004 where he has been detained since then. The period of 120 clays was completed on 3-10-2004. The petitioner filed the petition under Section 167(2) Cr. P.C. on 4-10-2004. Since final form was not submitted within 120 days of the first date of remand of the petitioner to judicial custody, the trial Court ought not have rejected the petition, particularly when it was filed prior to submission of charge-sheet. In support of his submission he relied on the decisions in Mohamed Iqbal Madar Sheikh v. State of Maharashtra, 1996 (1) Crimes 4 (SC), Udaya Mohanlal Acharya v. State of Maharashtra; 2001 (2) Ori LR (SC) 290 : (2001 Cri LJ 1832), Ganesh Prasad v. State of M.P., 2001 Cri LJ 3444 and Dinesh Yadav v. State, 2002 Cri LJ 1067 (Patna High Court).</p><p style="text-align: justify;">5. Mr. Rout, learned Additional Standing Counsel did not dispute the point of law as raised by learned counsel for the petitioner. However, he contended that the petition under Section 167(2) Cr. P.C. was filed only after the submission of charge-sheet on 4-10-2004. As soon as the charge-sheet was submitted the right of the petitioner to be released on bail under proviso (a) to Section 167(2) Cr. P.C. extinguished. In view of the rival contentions of the learned counsel for the petitioner and the learned Additional Standing Counsel with regard to the time of submission of the charge-sheet and filing of petition under Section 167(2) Cr. P.C., it would be profitable to peruse the L.C.R. On perusal of the L.C.R. it is found that on 15-9-2004 the accused-petitioner was remanded to judicial custody till 29-9-2004. On 28-9-2004 the I.O. made an application before the S.D.J.M., Bhubaneswar for recording the statement of some witnesses Under Section 164 Cr.P.C. So, the learned S.D.J.M., Bhubaneswar transferred the case to the Court of Shri U. B. Jena, J.M.F.C., Bhubaneswar to record the statement of the witnesses under the said provision. Since the accused-petitioner could not be produced on 29-9-2004 due to shortage of escort party, the J.M.F.C. could not record the statement of witnesses on that date and remanded the accused-petitioner till 14-10-2004. After recording the statement of witnesses under Section 164 Cr. P.C. the J.M.F.C. transferred the record to the S.D.J.M., Bhubaneswar on 4-10-2004. The order sheet of that date shows that on the same date the S.D.J.M., Bhubaneswar received the charge-sheet against the accused persons under Sections 302/307/34 I.P.C. read with Sections 25 and 27 of the Arms Act, issued N.B.W. of arrest against the absentee accused, noticed the bailers and remanded the petitioner to custody. He also ordered to place the record on the date fixed i.e. 14-10-2004. On the same date i.e. 4-10-2004 later on, on the strength of an advanced petition, the record was put up and the petition for bail under Section 167(2) Cr. P.C. was filed. So, it clearly shows that the bail petition was filed after the charge- sheet was received by the learned S.D.J.M., Bhubaneswar. As such, the right, which had accrued in favour of the petitioner, was extinguished by the time charge-sheet was submitted. Filing of petition under Section 167(2) Cr. P.C. thereafter cannot be favourably entertained.</p><p style="text-align: justify;">6. Hence, the Criminal Revision stands dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '2005CriLJ1451; 2005(I)OLR127', 'ratiodecidendi' => '', 'respondent' => 'State of Orissa', 'sub' => 'Criminal', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'rakesh-swain-vs-state-orissa', 'args' => array( (int) 0 => '535063', (int) 1 => 'rakesh-swain-vs-state-orissa' ) ) $title_for_layout = 'Rakesh Swain Vs State of Orissa - Citation 535063 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '535063', 'acts' => 'Arms Act - Sections 25 and 27; Code of Criminal Procedure (CrPC) , 1974 - Sections 164 and 167(2); Indian Penal Code (IPC) - Sections 34, 302 and 307', 'appealno' => 'Crl. Revn. No. 696 of 2004', 'appellant' => 'Rakesh Swain', 'authreffered' => '', 'casename' => 'Rakesh SwaIn Vs. State of Orissa', 'casenote' => ' - LABOUR & SERVICES Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b) Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in reduction of pay of employee on promotion Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules. - So, it clearly shows that the bail petition was filed after the charge- sheet was received by the learned S.', 'caseanalysis' => null, 'casesref' => ' and Dinesh Yadav v. State;', 'citingcases' => '', 'counselplain' => 'D. Panda, ;B.P. Hal, ;G.R. Mohanty, ;A. Parida and ;R. Mohalik, Advs.', 'counseldef' => 'Addl. S.C.', 'court' => 'Orissa', 'court_type' => 'HC', 'decidedon' => '2004-12-01', 'deposition' => 'Revision dismissed', 'favorof' => null, 'findings' => null, 'judge' => 'R.N. Biswal, J.', 'judgement' => 'ORDER<p>R.N. Biswal, J.</p><p>1. In this revision the petitioner has challenged the legality and propriety of the order dated 4-10-2004 passed by the S.D.J.M., Bhubaneswar in G. R. Case No. 1049 of 2004, wherein he rejected the petition under Section 167(2) Cr. P.C. filed by the petitioner.</p><p>2. The case of the petitioner is that having been arrested on 5-6-2004 in Chandaka P.S. Case No. 23 of 2004 corresponding to the aforesaid G. R. Case for the offence under Sections 302/307/34 I.P.C. read with Sections 25 and 27 of the Arms Act he was remanded to judicial custody on the next date. Even though, in the meantime the statutory period of 120 days expired on 3-4-2004 charge-sheet could not be submitted. On 4-10-2004 he filed the petition under Section 167(2) Cr. P.C. for his release on bail. </p><p>3. Learned trial Court rejected the petition holding that in view of the nature of allegations made, he is not inclined to admit the accused-petitioner to bail. Being aggrieved with this order the petitioner has preferred the present Revision.</p><p>4. Learned counsel for the petitioner submits that an accused has a statutory right to be released on bail if the final form cannot be submitted within the statutory period of 120 days as per proviso (a) to Section 167(2) Cr. P.C. In the present case the petitioner having been arrested on 5-6-2004 was remanded to judicial custody on 6-6-2004 where he has been detained since then. The period of 120 clays was completed on 3-10-2004. The petitioner filed the petition under Section 167(2) Cr. P.C. on 4-10-2004. Since final form was not submitted within 120 days of the first date of remand of the petitioner to judicial custody, the trial Court ought not have rejected the petition, particularly when it was filed prior to submission of charge-sheet. In support of his submission he relied on the decisions in Mohamed Iqbal Madar Sheikh v. State of Maharashtra, 1996 (1) Crimes 4 (SC), Udaya Mohanlal Acharya v. State of Maharashtra; 2001 (2) Ori LR (SC) 290 : (2001 Cri LJ 1832), Ganesh Prasad v. State of M.P., 2001 Cri LJ 3444 and Dinesh Yadav v. State, 2002 Cri LJ 1067 (Patna High Court).</p><p>5. Mr. Rout, learned Additional Standing Counsel did not dispute the point of law as raised by learned counsel for the petitioner. However, he contended that the petition under Section 167(2) Cr. P.C. was filed only after the submission of charge-sheet on 4-10-2004. As soon as the charge-sheet was submitted the right of the petitioner to be released on bail under proviso (a) to Section 167(2) Cr. P.C. extinguished. In view of the rival contentions of the learned counsel for the petitioner and the learned Additional Standing Counsel with regard to the time of submission of the charge-sheet and filing of petition under Section 167(2) Cr. P.C., it would be profitable to peruse the L.C.R. On perusal of the L.C.R. it is found that on 15-9-2004 the accused-petitioner was remanded to judicial custody till 29-9-2004. On 28-9-2004 the I.O. made an application before the S.D.J.M., Bhubaneswar for recording the statement of some witnesses Under Section 164 Cr.P.C. So, the learned S.D.J.M., Bhubaneswar transferred the case to the Court of Shri U. B. Jena, J.M.F.C., Bhubaneswar to record the statement of the witnesses under the said provision. Since the accused-petitioner could not be produced on 29-9-2004 due to shortage of escort party, the J.M.F.C. could not record the statement of witnesses on that date and remanded the accused-petitioner till 14-10-2004. After recording the statement of witnesses under Section 164 Cr. P.C. the J.M.F.C. transferred the record to the S.D.J.M., Bhubaneswar on 4-10-2004. The order sheet of that date shows that on the same date the S.D.J.M., Bhubaneswar received the charge-sheet against the accused persons under Sections 302/307/34 I.P.C. read with Sections 25 and 27 of the Arms Act, issued N.B.W. of arrest against the absentee accused, noticed the bailers and remanded the petitioner to custody. He also ordered to place the record on the date fixed i.e. 14-10-2004. On the same date i.e. 4-10-2004 later on, on the strength of an advanced petition, the record was put up and the petition for bail under Section 167(2) Cr. P.C. was filed. So, it clearly shows that the bail petition was filed after the charge- sheet was received by the learned S.D.J.M., Bhubaneswar. As such, the right, which had accrued in favour of the petitioner, was extinguished by the time charge-sheet was submitted. Filing of petition under Section 167(2) Cr. P.C. thereafter cannot be favourably entertained.</p><p>6. Hence, the Criminal Revision stands dismissed.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '2005CriLJ1451; 2005(I)OLR127', 'ratiodecidendi' => '', 'respondent' => 'State of Orissa', 'sub' => 'Criminal', 'link' => null, 'circuit' => null ) ) $casename_url = 'rakesh-swain-vs-state-orissa' $args = array( (int) 0 => '535063', (int) 1 => 'rakesh-swain-vs-state-orissa' ) $url = 'https://sooperkanoon.com/case/amp/535063/rakesh-swain-vs-state-orissa' $ctype = ' High Court' $caseref = ' and Dinesh Yadav v. State<br>' $content = array( (int) 0 => 'ORDER<p>R.N. Biswal, J.', (int) 1 => '<p>1. In this revision the petitioner has challenged the legality and propriety of the order dated 4-10-2004 passed by the S.D.J.M., Bhubaneswar in G. R. Case No. 1049 of 2004, wherein he rejected the petition under Section 167(2) Cr. P.C. filed by the petitioner.', (int) 2 => '<p>2. The case of the petitioner is that having been arrested on 5-6-2004 in Chandaka P.S. Case No. 23 of 2004 corresponding to the aforesaid G. R. Case for the offence under Sections 302/307/34 I.P.C. read with Sections 25 and 27 of the Arms Act he was remanded to judicial custody on the next date. Even though, in the meantime the statutory period of 120 days expired on 3-4-2004 charge-sheet could not be submitted. On 4-10-2004 he filed the petition under Section 167(2) Cr. P.C. for his release on bail. ', (int) 3 => '<p>3. Learned trial Court rejected the petition holding that in view of the nature of allegations made, he is not inclined to admit the accused-petitioner to bail. Being aggrieved with this order the petitioner has preferred the present Revision.', (int) 4 => '<p>4. Learned counsel for the petitioner submits that an accused has a statutory right to be released on bail if the final form cannot be submitted within the statutory period of 120 days as per proviso (a) to Section 167(2) Cr. P.C. In the present case the petitioner having been arrested on 5-6-2004 was remanded to judicial custody on 6-6-2004 where he has been detained since then. The period of 120 clays was completed on 3-10-2004. The petitioner filed the petition under Section 167(2) Cr. P.C. on 4-10-2004. Since final form was not submitted within 120 days of the first date of remand of the petitioner to judicial custody, the trial Court ought not have rejected the petition, particularly when it was filed prior to submission of charge-sheet. In support of his submission he relied on the decisions in Mohamed Iqbal Madar Sheikh v. State of Maharashtra, 1996 (1) Crimes 4 (SC), Udaya Mohanlal Acharya v. State of Maharashtra; 2001 (2) Ori LR (SC) 290 : (2001 Cri LJ 1832), Ganesh Prasad v. State of M.P., 2001 Cri LJ 3444 and Dinesh Yadav v. State, 2002 Cri LJ 1067 (Patna High Court).', (int) 5 => '<p>5. Mr. Rout, learned Additional Standing Counsel did not dispute the point of law as raised by learned counsel for the petitioner. However, he contended that the petition under Section 167(2) Cr. P.C. was filed only after the submission of charge-sheet on 4-10-2004. As soon as the charge-sheet was submitted the right of the petitioner to be released on bail under proviso (a) to Section 167(2) Cr. P.C. extinguished. In view of the rival contentions of the learned counsel for the petitioner and the learned Additional Standing Counsel with regard to the time of submission of the charge-sheet and filing of petition under Section 167(2) Cr. P.C., it would be profitable to peruse the L.C.R. On perusal of the L.C.R. it is found that on 15-9-2004 the accused-petitioner was remanded to judicial custody till 29-9-2004. On 28-9-2004 the I.O. made an application before the S.D.J.M., Bhubaneswar for recording the statement of some witnesses Under Section 164 Cr.P.C. So, the learned S.D.J.M., Bhubaneswar transferred the case to the Court of Shri U. B. Jena, J.M.F.C., Bhubaneswar to record the statement of the witnesses under the said provision. Since the accused-petitioner could not be produced on 29-9-2004 due to shortage of escort party, the J.M.F.C. could not record the statement of witnesses on that date and remanded the accused-petitioner till 14-10-2004. After recording the statement of witnesses under Section 164 Cr. P.C. the J.M.F.C. transferred the record to the S.D.J.M., Bhubaneswar on 4-10-2004. The order sheet of that date shows that on the same date the S.D.J.M., Bhubaneswar received the charge-sheet against the accused persons under Sections 302/307/34 I.P.C. read with Sections 25 and 27 of the Arms Act, issued N.B.W. of arrest against the absentee accused, noticed the bailers and remanded the petitioner to custody. He also ordered to place the record on the date fixed i.e. 14-10-2004. On the same date i.e. 4-10-2004 later on, on the strength of an advanced petition, the record was put up and the petition for bail under Section 167(2) Cr. P.C. was filed. So, it clearly shows that the bail petition was filed after the charge- sheet was received by the learned S.D.J.M., Bhubaneswar. As such, the right, which had accrued in favour of the petitioner, was extinguished by the time charge-sheet was submitted. Filing of petition under Section 167(2) Cr. P.C. thereafter cannot be favourably entertained.', (int) 6 => '<p>6. Hence, the Criminal Revision stands dismissed.<p>', (int) 7 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 8 $i = (int) 5include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
5. Mr. Rout, learned Additional Standing Counsel did not dispute the point of law as raised by learned counsel for the petitioner. However, he contended that the petition under Section 167(2) Cr. P.C. was filed only after the submission of charge-sheet on 4-10-2004. As soon as the charge-sheet was submitted the right of the petitioner to be released on bail under proviso (a) to Section 167(2) Cr. P.C. extinguished. In view of the rival contentions of the learned counsel for the petitioner and the learned Additional Standing Counsel with regard to the time of submission of the charge-sheet and filing of petition under Section 167(2) Cr. P.C., it would be profitable to peruse the L.C.R. On perusal of the L.C.R. it is found that on 15-9-2004 the accused-petitioner was remanded to judicial custody till 29-9-2004. On 28-9-2004 the I.O. made an application before the S.D.J.M., Bhubaneswar for recording the statement of some witnesses Under Section 164 Cr.P.C. So, the learned S.D.J.M., Bhubaneswar transferred the case to the Court of Shri U. B. Jena, J.M.F.C., Bhubaneswar to record the statement of the witnesses under the said provision. Since the accused-petitioner could not be produced on 29-9-2004 due to shortage of escort party, the J.M.F.C. could not record the statement of witnesses on that date and remanded the accused-petitioner till 14-10-2004. After recording the statement of witnesses under Section 164 Cr. P.C. the J.M.F.C. transferred the record to the S.D.J.M., Bhubaneswar on 4-10-2004. The order sheet of that date shows that on the same date the S.D.J.M., Bhubaneswar received the charge-sheet against the accused persons under Sections 302/307/34 I.P.C. read with Sections 25 and 27 of the Arms Act, issued N.B.W. of arrest against the absentee accused, noticed the bailers and remanded the petitioner to custody. He also ordered to place the record on the date fixed i.e. 14-10-2004. On the same date i.e. 4-10-2004 later on, on the strength of an advanced petition, the record was put up and the petition for bail under Section 167(2) Cr. P.C. was filed. So, it clearly shows that the bail petition was filed after the charge- sheet was received by the learned S.D.J.M., Bhubaneswar. As such, the right, which had accrued in favour of the petitioner, was extinguished by the time charge-sheet was submitted. Filing of petition under Section 167(2) Cr. P.C. thereafter cannot be favourably entertained.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Rakesh Swain Vs State of Orissa - Citation 535063 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '535063', 'acts' => 'Arms Act - Sections 25 and 27; Code of Criminal Procedure (CrPC) , 1974 - Sections 164 and 167(2); Indian Penal Code (IPC) - Sections 34, 302 and 307', 'appealno' => 'Crl. Revn. No. 696 of 2004', 'appellant' => 'Rakesh Swain', 'authreffered' => '', 'casename' => 'Rakesh SwaIn Vs. State of Orissa', 'casenote' => ' - LABOUR & SERVICES Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b) Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in reduction of pay of employee on promotion Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules. - So, it clearly shows that the bail petition was filed after the charge- sheet was received by the learned S.', 'caseanalysis' => null, 'casesref' => ' and Dinesh Yadav v. State;', 'citingcases' => '', 'counselplain' => 'D. Panda, ;B.P. Hal, ;G.R. Mohanty, ;A. Parida and ;R. Mohalik, Advs.', 'counseldef' => 'Addl. S.C.', 'court' => 'Orissa', 'court_type' => 'HC', 'decidedon' => '2004-12-01', 'deposition' => 'Revision dismissed', 'favorof' => null, 'findings' => null, 'judge' => 'R.N. Biswal, J.', 'judgement' => 'ORDER<p style="text-align: justify;">R.N. Biswal, J.</p><p style="text-align: justify;">1. In this revision the petitioner has challenged the legality and propriety of the order dated 4-10-2004 passed by the S.D.J.M., Bhubaneswar in G. R. Case No. 1049 of 2004, wherein he rejected the petition under Section 167(2) Cr. P.C. filed by the petitioner.</p><p style="text-align: justify;">2. The case of the petitioner is that having been arrested on 5-6-2004 in Chandaka P.S. Case No. 23 of 2004 corresponding to the aforesaid G. R. Case for the offence under Sections 302/307/34 I.P.C. read with Sections 25 and 27 of the Arms Act he was remanded to judicial custody on the next date. Even though, in the meantime the statutory period of 120 days expired on 3-4-2004 charge-sheet could not be submitted. On 4-10-2004 he filed the petition under Section 167(2) Cr. P.C. for his release on bail. </p><p style="text-align: justify;">3. Learned trial Court rejected the petition holding that in view of the nature of allegations made, he is not inclined to admit the accused-petitioner to bail. Being aggrieved with this order the petitioner has preferred the present Revision.</p><p style="text-align: justify;">4. Learned counsel for the petitioner submits that an accused has a statutory right to be released on bail if the final form cannot be submitted within the statutory period of 120 days as per proviso (a) to Section 167(2) Cr. P.C. In the present case the petitioner having been arrested on 5-6-2004 was remanded to judicial custody on 6-6-2004 where he has been detained since then. The period of 120 clays was completed on 3-10-2004. The petitioner filed the petition under Section 167(2) Cr. P.C. on 4-10-2004. Since final form was not submitted within 120 days of the first date of remand of the petitioner to judicial custody, the trial Court ought not have rejected the petition, particularly when it was filed prior to submission of charge-sheet. In support of his submission he relied on the decisions in Mohamed Iqbal Madar Sheikh v. State of Maharashtra, 1996 (1) Crimes 4 (SC), Udaya Mohanlal Acharya v. State of Maharashtra; 2001 (2) Ori LR (SC) 290 : (2001 Cri LJ 1832), Ganesh Prasad v. State of M.P., 2001 Cri LJ 3444 and Dinesh Yadav v. State, 2002 Cri LJ 1067 (Patna High Court).</p><p style="text-align: justify;">5. Mr. Rout, learned Additional Standing Counsel did not dispute the point of law as raised by learned counsel for the petitioner. However, he contended that the petition under Section 167(2) Cr. P.C. was filed only after the submission of charge-sheet on 4-10-2004. As soon as the charge-sheet was submitted the right of the petitioner to be released on bail under proviso (a) to Section 167(2) Cr. P.C. extinguished. In view of the rival contentions of the learned counsel for the petitioner and the learned Additional Standing Counsel with regard to the time of submission of the charge-sheet and filing of petition under Section 167(2) Cr. P.C., it would be profitable to peruse the L.C.R. On perusal of the L.C.R. it is found that on 15-9-2004 the accused-petitioner was remanded to judicial custody till 29-9-2004. On 28-9-2004 the I.O. made an application before the S.D.J.M., Bhubaneswar for recording the statement of some witnesses Under Section 164 Cr.P.C. So, the learned S.D.J.M., Bhubaneswar transferred the case to the Court of Shri U. B. Jena, J.M.F.C., Bhubaneswar to record the statement of the witnesses under the said provision. Since the accused-petitioner could not be produced on 29-9-2004 due to shortage of escort party, the J.M.F.C. could not record the statement of witnesses on that date and remanded the accused-petitioner till 14-10-2004. After recording the statement of witnesses under Section 164 Cr. P.C. the J.M.F.C. transferred the record to the S.D.J.M., Bhubaneswar on 4-10-2004. The order sheet of that date shows that on the same date the S.D.J.M., Bhubaneswar received the charge-sheet against the accused persons under Sections 302/307/34 I.P.C. read with Sections 25 and 27 of the Arms Act, issued N.B.W. of arrest against the absentee accused, noticed the bailers and remanded the petitioner to custody. He also ordered to place the record on the date fixed i.e. 14-10-2004. On the same date i.e. 4-10-2004 later on, on the strength of an advanced petition, the record was put up and the petition for bail under Section 167(2) Cr. P.C. was filed. So, it clearly shows that the bail petition was filed after the charge- sheet was received by the learned S.D.J.M., Bhubaneswar. As such, the right, which had accrued in favour of the petitioner, was extinguished by the time charge-sheet was submitted. Filing of petition under Section 167(2) Cr. P.C. thereafter cannot be favourably entertained.</p><p style="text-align: justify;">6. Hence, the Criminal Revision stands dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '2005CriLJ1451; 2005(I)OLR127', 'ratiodecidendi' => '', 'respondent' => 'State of Orissa', 'sub' => 'Criminal', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'rakesh-swain-vs-state-orissa', 'args' => array( (int) 0 => '535063', (int) 1 => 'rakesh-swain-vs-state-orissa' ) ) $title_for_layout = 'Rakesh Swain Vs State of Orissa - Citation 535063 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '535063', 'acts' => 'Arms Act - Sections 25 and 27; Code of Criminal Procedure (CrPC) , 1974 - Sections 164 and 167(2); Indian Penal Code (IPC) - Sections 34, 302 and 307', 'appealno' => 'Crl. Revn. No. 696 of 2004', 'appellant' => 'Rakesh Swain', 'authreffered' => '', 'casename' => 'Rakesh SwaIn Vs. State of Orissa', 'casenote' => ' - LABOUR & SERVICES Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b) Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in reduction of pay of employee on promotion Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules. - So, it clearly shows that the bail petition was filed after the charge- sheet was received by the learned S.', 'caseanalysis' => null, 'casesref' => ' and Dinesh Yadav v. State;', 'citingcases' => '', 'counselplain' => 'D. Panda, ;B.P. Hal, ;G.R. Mohanty, ;A. Parida and ;R. Mohalik, Advs.', 'counseldef' => 'Addl. S.C.', 'court' => 'Orissa', 'court_type' => 'HC', 'decidedon' => '2004-12-01', 'deposition' => 'Revision dismissed', 'favorof' => null, 'findings' => null, 'judge' => 'R.N. Biswal, J.', 'judgement' => 'ORDER<p>R.N. Biswal, J.</p><p>1. In this revision the petitioner has challenged the legality and propriety of the order dated 4-10-2004 passed by the S.D.J.M., Bhubaneswar in G. R. Case No. 1049 of 2004, wherein he rejected the petition under Section 167(2) Cr. P.C. filed by the petitioner.</p><p>2. The case of the petitioner is that having been arrested on 5-6-2004 in Chandaka P.S. Case No. 23 of 2004 corresponding to the aforesaid G. R. Case for the offence under Sections 302/307/34 I.P.C. read with Sections 25 and 27 of the Arms Act he was remanded to judicial custody on the next date. Even though, in the meantime the statutory period of 120 days expired on 3-4-2004 charge-sheet could not be submitted. On 4-10-2004 he filed the petition under Section 167(2) Cr. P.C. for his release on bail. </p><p>3. Learned trial Court rejected the petition holding that in view of the nature of allegations made, he is not inclined to admit the accused-petitioner to bail. Being aggrieved with this order the petitioner has preferred the present Revision.</p><p>4. Learned counsel for the petitioner submits that an accused has a statutory right to be released on bail if the final form cannot be submitted within the statutory period of 120 days as per proviso (a) to Section 167(2) Cr. P.C. In the present case the petitioner having been arrested on 5-6-2004 was remanded to judicial custody on 6-6-2004 where he has been detained since then. The period of 120 clays was completed on 3-10-2004. The petitioner filed the petition under Section 167(2) Cr. P.C. on 4-10-2004. Since final form was not submitted within 120 days of the first date of remand of the petitioner to judicial custody, the trial Court ought not have rejected the petition, particularly when it was filed prior to submission of charge-sheet. In support of his submission he relied on the decisions in Mohamed Iqbal Madar Sheikh v. State of Maharashtra, 1996 (1) Crimes 4 (SC), Udaya Mohanlal Acharya v. State of Maharashtra; 2001 (2) Ori LR (SC) 290 : (2001 Cri LJ 1832), Ganesh Prasad v. State of M.P., 2001 Cri LJ 3444 and Dinesh Yadav v. State, 2002 Cri LJ 1067 (Patna High Court).</p><p>5. Mr. Rout, learned Additional Standing Counsel did not dispute the point of law as raised by learned counsel for the petitioner. However, he contended that the petition under Section 167(2) Cr. P.C. was filed only after the submission of charge-sheet on 4-10-2004. As soon as the charge-sheet was submitted the right of the petitioner to be released on bail under proviso (a) to Section 167(2) Cr. P.C. extinguished. In view of the rival contentions of the learned counsel for the petitioner and the learned Additional Standing Counsel with regard to the time of submission of the charge-sheet and filing of petition under Section 167(2) Cr. P.C., it would be profitable to peruse the L.C.R. On perusal of the L.C.R. it is found that on 15-9-2004 the accused-petitioner was remanded to judicial custody till 29-9-2004. On 28-9-2004 the I.O. made an application before the S.D.J.M., Bhubaneswar for recording the statement of some witnesses Under Section 164 Cr.P.C. So, the learned S.D.J.M., Bhubaneswar transferred the case to the Court of Shri U. B. Jena, J.M.F.C., Bhubaneswar to record the statement of the witnesses under the said provision. Since the accused-petitioner could not be produced on 29-9-2004 due to shortage of escort party, the J.M.F.C. could not record the statement of witnesses on that date and remanded the accused-petitioner till 14-10-2004. After recording the statement of witnesses under Section 164 Cr. P.C. the J.M.F.C. transferred the record to the S.D.J.M., Bhubaneswar on 4-10-2004. The order sheet of that date shows that on the same date the S.D.J.M., Bhubaneswar received the charge-sheet against the accused persons under Sections 302/307/34 I.P.C. read with Sections 25 and 27 of the Arms Act, issued N.B.W. of arrest against the absentee accused, noticed the bailers and remanded the petitioner to custody. He also ordered to place the record on the date fixed i.e. 14-10-2004. On the same date i.e. 4-10-2004 later on, on the strength of an advanced petition, the record was put up and the petition for bail under Section 167(2) Cr. P.C. was filed. So, it clearly shows that the bail petition was filed after the charge- sheet was received by the learned S.D.J.M., Bhubaneswar. As such, the right, which had accrued in favour of the petitioner, was extinguished by the time charge-sheet was submitted. Filing of petition under Section 167(2) Cr. P.C. thereafter cannot be favourably entertained.</p><p>6. Hence, the Criminal Revision stands dismissed.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '2005CriLJ1451; 2005(I)OLR127', 'ratiodecidendi' => '', 'respondent' => 'State of Orissa', 'sub' => 'Criminal', 'link' => null, 'circuit' => null ) ) $casename_url = 'rakesh-swain-vs-state-orissa' $args = array( (int) 0 => '535063', (int) 1 => 'rakesh-swain-vs-state-orissa' ) $url = 'https://sooperkanoon.com/case/amp/535063/rakesh-swain-vs-state-orissa' $ctype = ' High Court' $caseref = ' and Dinesh Yadav v. State<br>' $content = array( (int) 0 => 'ORDER<p>R.N. Biswal, J.', (int) 1 => '<p>1. In this revision the petitioner has challenged the legality and propriety of the order dated 4-10-2004 passed by the S.D.J.M., Bhubaneswar in G. R. Case No. 1049 of 2004, wherein he rejected the petition under Section 167(2) Cr. P.C. filed by the petitioner.', (int) 2 => '<p>2. The case of the petitioner is that having been arrested on 5-6-2004 in Chandaka P.S. Case No. 23 of 2004 corresponding to the aforesaid G. R. Case for the offence under Sections 302/307/34 I.P.C. read with Sections 25 and 27 of the Arms Act he was remanded to judicial custody on the next date. Even though, in the meantime the statutory period of 120 days expired on 3-4-2004 charge-sheet could not be submitted. On 4-10-2004 he filed the petition under Section 167(2) Cr. P.C. for his release on bail. ', (int) 3 => '<p>3. Learned trial Court rejected the petition holding that in view of the nature of allegations made, he is not inclined to admit the accused-petitioner to bail. Being aggrieved with this order the petitioner has preferred the present Revision.', (int) 4 => '<p>4. Learned counsel for the petitioner submits that an accused has a statutory right to be released on bail if the final form cannot be submitted within the statutory period of 120 days as per proviso (a) to Section 167(2) Cr. P.C. In the present case the petitioner having been arrested on 5-6-2004 was remanded to judicial custody on 6-6-2004 where he has been detained since then. The period of 120 clays was completed on 3-10-2004. The petitioner filed the petition under Section 167(2) Cr. P.C. on 4-10-2004. Since final form was not submitted within 120 days of the first date of remand of the petitioner to judicial custody, the trial Court ought not have rejected the petition, particularly when it was filed prior to submission of charge-sheet. In support of his submission he relied on the decisions in Mohamed Iqbal Madar Sheikh v. State of Maharashtra, 1996 (1) Crimes 4 (SC), Udaya Mohanlal Acharya v. State of Maharashtra; 2001 (2) Ori LR (SC) 290 : (2001 Cri LJ 1832), Ganesh Prasad v. State of M.P., 2001 Cri LJ 3444 and Dinesh Yadav v. State, 2002 Cri LJ 1067 (Patna High Court).', (int) 5 => '<p>5. Mr. Rout, learned Additional Standing Counsel did not dispute the point of law as raised by learned counsel for the petitioner. However, he contended that the petition under Section 167(2) Cr. P.C. was filed only after the submission of charge-sheet on 4-10-2004. As soon as the charge-sheet was submitted the right of the petitioner to be released on bail under proviso (a) to Section 167(2) Cr. P.C. extinguished. In view of the rival contentions of the learned counsel for the petitioner and the learned Additional Standing Counsel with regard to the time of submission of the charge-sheet and filing of petition under Section 167(2) Cr. P.C., it would be profitable to peruse the L.C.R. On perusal of the L.C.R. it is found that on 15-9-2004 the accused-petitioner was remanded to judicial custody till 29-9-2004. On 28-9-2004 the I.O. made an application before the S.D.J.M., Bhubaneswar for recording the statement of some witnesses Under Section 164 Cr.P.C. So, the learned S.D.J.M., Bhubaneswar transferred the case to the Court of Shri U. B. Jena, J.M.F.C., Bhubaneswar to record the statement of the witnesses under the said provision. Since the accused-petitioner could not be produced on 29-9-2004 due to shortage of escort party, the J.M.F.C. could not record the statement of witnesses on that date and remanded the accused-petitioner till 14-10-2004. After recording the statement of witnesses under Section 164 Cr. P.C. the J.M.F.C. transferred the record to the S.D.J.M., Bhubaneswar on 4-10-2004. The order sheet of that date shows that on the same date the S.D.J.M., Bhubaneswar received the charge-sheet against the accused persons under Sections 302/307/34 I.P.C. read with Sections 25 and 27 of the Arms Act, issued N.B.W. of arrest against the absentee accused, noticed the bailers and remanded the petitioner to custody. He also ordered to place the record on the date fixed i.e. 14-10-2004. On the same date i.e. 4-10-2004 later on, on the strength of an advanced petition, the record was put up and the petition for bail under Section 167(2) Cr. P.C. was filed. So, it clearly shows that the bail petition was filed after the charge- sheet was received by the learned S.D.J.M., Bhubaneswar. As such, the right, which had accrued in favour of the petitioner, was extinguished by the time charge-sheet was submitted. Filing of petition under Section 167(2) Cr. P.C. thereafter cannot be favourably entertained.', (int) 6 => '<p>6. Hence, the Criminal Revision stands dismissed.<p>', (int) 7 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 8 $i = (int) 6include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
6. Hence, the Criminal Revision stands dismissed.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Rakesh Swain Vs State of Orissa - Citation 535063 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '535063', 'acts' => 'Arms Act - Sections 25 and 27; Code of Criminal Procedure (CrPC) , 1974 - Sections 164 and 167(2); Indian Penal Code (IPC) - Sections 34, 302 and 307', 'appealno' => 'Crl. Revn. No. 696 of 2004', 'appellant' => 'Rakesh Swain', 'authreffered' => '', 'casename' => 'Rakesh SwaIn Vs. State of Orissa', 'casenote' => ' - LABOUR & SERVICES Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b) Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in reduction of pay of employee on promotion Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules. - So, it clearly shows that the bail petition was filed after the charge- sheet was received by the learned S.', 'caseanalysis' => null, 'casesref' => ' and Dinesh Yadav v. State;', 'citingcases' => '', 'counselplain' => 'D. Panda, ;B.P. Hal, ;G.R. Mohanty, ;A. Parida and ;R. Mohalik, Advs.', 'counseldef' => 'Addl. S.C.', 'court' => 'Orissa', 'court_type' => 'HC', 'decidedon' => '2004-12-01', 'deposition' => 'Revision dismissed', 'favorof' => null, 'findings' => null, 'judge' => 'R.N. Biswal, J.', 'judgement' => 'ORDER<p style="text-align: justify;">R.N. Biswal, J.</p><p style="text-align: justify;">1. In this revision the petitioner has challenged the legality and propriety of the order dated 4-10-2004 passed by the S.D.J.M., Bhubaneswar in G. R. Case No. 1049 of 2004, wherein he rejected the petition under Section 167(2) Cr. P.C. filed by the petitioner.</p><p style="text-align: justify;">2. The case of the petitioner is that having been arrested on 5-6-2004 in Chandaka P.S. Case No. 23 of 2004 corresponding to the aforesaid G. R. Case for the offence under Sections 302/307/34 I.P.C. read with Sections 25 and 27 of the Arms Act he was remanded to judicial custody on the next date. Even though, in the meantime the statutory period of 120 days expired on 3-4-2004 charge-sheet could not be submitted. On 4-10-2004 he filed the petition under Section 167(2) Cr. P.C. for his release on bail. </p><p style="text-align: justify;">3. Learned trial Court rejected the petition holding that in view of the nature of allegations made, he is not inclined to admit the accused-petitioner to bail. Being aggrieved with this order the petitioner has preferred the present Revision.</p><p style="text-align: justify;">4. Learned counsel for the petitioner submits that an accused has a statutory right to be released on bail if the final form cannot be submitted within the statutory period of 120 days as per proviso (a) to Section 167(2) Cr. P.C. In the present case the petitioner having been arrested on 5-6-2004 was remanded to judicial custody on 6-6-2004 where he has been detained since then. The period of 120 clays was completed on 3-10-2004. The petitioner filed the petition under Section 167(2) Cr. P.C. on 4-10-2004. Since final form was not submitted within 120 days of the first date of remand of the petitioner to judicial custody, the trial Court ought not have rejected the petition, particularly when it was filed prior to submission of charge-sheet. In support of his submission he relied on the decisions in Mohamed Iqbal Madar Sheikh v. State of Maharashtra, 1996 (1) Crimes 4 (SC), Udaya Mohanlal Acharya v. State of Maharashtra; 2001 (2) Ori LR (SC) 290 : (2001 Cri LJ 1832), Ganesh Prasad v. State of M.P., 2001 Cri LJ 3444 and Dinesh Yadav v. State, 2002 Cri LJ 1067 (Patna High Court).</p><p style="text-align: justify;">5. Mr. Rout, learned Additional Standing Counsel did not dispute the point of law as raised by learned counsel for the petitioner. However, he contended that the petition under Section 167(2) Cr. P.C. was filed only after the submission of charge-sheet on 4-10-2004. As soon as the charge-sheet was submitted the right of the petitioner to be released on bail under proviso (a) to Section 167(2) Cr. P.C. extinguished. In view of the rival contentions of the learned counsel for the petitioner and the learned Additional Standing Counsel with regard to the time of submission of the charge-sheet and filing of petition under Section 167(2) Cr. P.C., it would be profitable to peruse the L.C.R. On perusal of the L.C.R. it is found that on 15-9-2004 the accused-petitioner was remanded to judicial custody till 29-9-2004. On 28-9-2004 the I.O. made an application before the S.D.J.M., Bhubaneswar for recording the statement of some witnesses Under Section 164 Cr.P.C. So, the learned S.D.J.M., Bhubaneswar transferred the case to the Court of Shri U. B. Jena, J.M.F.C., Bhubaneswar to record the statement of the witnesses under the said provision. Since the accused-petitioner could not be produced on 29-9-2004 due to shortage of escort party, the J.M.F.C. could not record the statement of witnesses on that date and remanded the accused-petitioner till 14-10-2004. After recording the statement of witnesses under Section 164 Cr. P.C. the J.M.F.C. transferred the record to the S.D.J.M., Bhubaneswar on 4-10-2004. The order sheet of that date shows that on the same date the S.D.J.M., Bhubaneswar received the charge-sheet against the accused persons under Sections 302/307/34 I.P.C. read with Sections 25 and 27 of the Arms Act, issued N.B.W. of arrest against the absentee accused, noticed the bailers and remanded the petitioner to custody. He also ordered to place the record on the date fixed i.e. 14-10-2004. On the same date i.e. 4-10-2004 later on, on the strength of an advanced petition, the record was put up and the petition for bail under Section 167(2) Cr. P.C. was filed. So, it clearly shows that the bail petition was filed after the charge- sheet was received by the learned S.D.J.M., Bhubaneswar. As such, the right, which had accrued in favour of the petitioner, was extinguished by the time charge-sheet was submitted. Filing of petition under Section 167(2) Cr. P.C. thereafter cannot be favourably entertained.</p><p style="text-align: justify;">6. Hence, the Criminal Revision stands dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '2005CriLJ1451; 2005(I)OLR127', 'ratiodecidendi' => '', 'respondent' => 'State of Orissa', 'sub' => 'Criminal', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'rakesh-swain-vs-state-orissa', 'args' => array( (int) 0 => '535063', (int) 1 => 'rakesh-swain-vs-state-orissa' ) ) $title_for_layout = 'Rakesh Swain Vs State of Orissa - Citation 535063 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '535063', 'acts' => 'Arms Act - Sections 25 and 27; Code of Criminal Procedure (CrPC) , 1974 - Sections 164 and 167(2); Indian Penal Code (IPC) - Sections 34, 302 and 307', 'appealno' => 'Crl. Revn. No. 696 of 2004', 'appellant' => 'Rakesh Swain', 'authreffered' => '', 'casename' => 'Rakesh SwaIn Vs. State of Orissa', 'casenote' => ' - LABOUR & SERVICES Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b) Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in reduction of pay of employee on promotion Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules. - So, it clearly shows that the bail petition was filed after the charge- sheet was received by the learned S.', 'caseanalysis' => null, 'casesref' => ' and Dinesh Yadav v. State;', 'citingcases' => '', 'counselplain' => 'D. Panda, ;B.P. Hal, ;G.R. Mohanty, ;A. Parida and ;R. Mohalik, Advs.', 'counseldef' => 'Addl. S.C.', 'court' => 'Orissa', 'court_type' => 'HC', 'decidedon' => '2004-12-01', 'deposition' => 'Revision dismissed', 'favorof' => null, 'findings' => null, 'judge' => 'R.N. Biswal, J.', 'judgement' => 'ORDER<p>R.N. Biswal, J.</p><p>1. In this revision the petitioner has challenged the legality and propriety of the order dated 4-10-2004 passed by the S.D.J.M., Bhubaneswar in G. R. Case No. 1049 of 2004, wherein he rejected the petition under Section 167(2) Cr. P.C. filed by the petitioner.</p><p>2. The case of the petitioner is that having been arrested on 5-6-2004 in Chandaka P.S. Case No. 23 of 2004 corresponding to the aforesaid G. R. Case for the offence under Sections 302/307/34 I.P.C. read with Sections 25 and 27 of the Arms Act he was remanded to judicial custody on the next date. Even though, in the meantime the statutory period of 120 days expired on 3-4-2004 charge-sheet could not be submitted. On 4-10-2004 he filed the petition under Section 167(2) Cr. P.C. for his release on bail. </p><p>3. Learned trial Court rejected the petition holding that in view of the nature of allegations made, he is not inclined to admit the accused-petitioner to bail. Being aggrieved with this order the petitioner has preferred the present Revision.</p><p>4. Learned counsel for the petitioner submits that an accused has a statutory right to be released on bail if the final form cannot be submitted within the statutory period of 120 days as per proviso (a) to Section 167(2) Cr. P.C. In the present case the petitioner having been arrested on 5-6-2004 was remanded to judicial custody on 6-6-2004 where he has been detained since then. The period of 120 clays was completed on 3-10-2004. The petitioner filed the petition under Section 167(2) Cr. P.C. on 4-10-2004. Since final form was not submitted within 120 days of the first date of remand of the petitioner to judicial custody, the trial Court ought not have rejected the petition, particularly when it was filed prior to submission of charge-sheet. In support of his submission he relied on the decisions in Mohamed Iqbal Madar Sheikh v. State of Maharashtra, 1996 (1) Crimes 4 (SC), Udaya Mohanlal Acharya v. State of Maharashtra; 2001 (2) Ori LR (SC) 290 : (2001 Cri LJ 1832), Ganesh Prasad v. State of M.P., 2001 Cri LJ 3444 and Dinesh Yadav v. State, 2002 Cri LJ 1067 (Patna High Court).</p><p>5. Mr. Rout, learned Additional Standing Counsel did not dispute the point of law as raised by learned counsel for the petitioner. However, he contended that the petition under Section 167(2) Cr. P.C. was filed only after the submission of charge-sheet on 4-10-2004. As soon as the charge-sheet was submitted the right of the petitioner to be released on bail under proviso (a) to Section 167(2) Cr. P.C. extinguished. In view of the rival contentions of the learned counsel for the petitioner and the learned Additional Standing Counsel with regard to the time of submission of the charge-sheet and filing of petition under Section 167(2) Cr. P.C., it would be profitable to peruse the L.C.R. On perusal of the L.C.R. it is found that on 15-9-2004 the accused-petitioner was remanded to judicial custody till 29-9-2004. On 28-9-2004 the I.O. made an application before the S.D.J.M., Bhubaneswar for recording the statement of some witnesses Under Section 164 Cr.P.C. So, the learned S.D.J.M., Bhubaneswar transferred the case to the Court of Shri U. B. Jena, J.M.F.C., Bhubaneswar to record the statement of the witnesses under the said provision. Since the accused-petitioner could not be produced on 29-9-2004 due to shortage of escort party, the J.M.F.C. could not record the statement of witnesses on that date and remanded the accused-petitioner till 14-10-2004. After recording the statement of witnesses under Section 164 Cr. P.C. the J.M.F.C. transferred the record to the S.D.J.M., Bhubaneswar on 4-10-2004. The order sheet of that date shows that on the same date the S.D.J.M., Bhubaneswar received the charge-sheet against the accused persons under Sections 302/307/34 I.P.C. read with Sections 25 and 27 of the Arms Act, issued N.B.W. of arrest against the absentee accused, noticed the bailers and remanded the petitioner to custody. He also ordered to place the record on the date fixed i.e. 14-10-2004. On the same date i.e. 4-10-2004 later on, on the strength of an advanced petition, the record was put up and the petition for bail under Section 167(2) Cr. P.C. was filed. So, it clearly shows that the bail petition was filed after the charge- sheet was received by the learned S.D.J.M., Bhubaneswar. As such, the right, which had accrued in favour of the petitioner, was extinguished by the time charge-sheet was submitted. Filing of petition under Section 167(2) Cr. P.C. thereafter cannot be favourably entertained.</p><p>6. Hence, the Criminal Revision stands dismissed.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '2005CriLJ1451; 2005(I)OLR127', 'ratiodecidendi' => '', 'respondent' => 'State of Orissa', 'sub' => 'Criminal', 'link' => null, 'circuit' => null ) ) $casename_url = 'rakesh-swain-vs-state-orissa' $args = array( (int) 0 => '535063', (int) 1 => 'rakesh-swain-vs-state-orissa' ) $url = 'https://sooperkanoon.com/case/amp/535063/rakesh-swain-vs-state-orissa' $ctype = ' High Court' $caseref = ' and Dinesh Yadav v. State<br>' $content = array( (int) 0 => 'ORDER<p>R.N. Biswal, J.', (int) 1 => '<p>1. In this revision the petitioner has challenged the legality and propriety of the order dated 4-10-2004 passed by the S.D.J.M., Bhubaneswar in G. R. Case No. 1049 of 2004, wherein he rejected the petition under Section 167(2) Cr. P.C. filed by the petitioner.', (int) 2 => '<p>2. The case of the petitioner is that having been arrested on 5-6-2004 in Chandaka P.S. Case No. 23 of 2004 corresponding to the aforesaid G. R. Case for the offence under Sections 302/307/34 I.P.C. read with Sections 25 and 27 of the Arms Act he was remanded to judicial custody on the next date. Even though, in the meantime the statutory period of 120 days expired on 3-4-2004 charge-sheet could not be submitted. On 4-10-2004 he filed the petition under Section 167(2) Cr. P.C. for his release on bail. ', (int) 3 => '<p>3. Learned trial Court rejected the petition holding that in view of the nature of allegations made, he is not inclined to admit the accused-petitioner to bail. Being aggrieved with this order the petitioner has preferred the present Revision.', (int) 4 => '<p>4. Learned counsel for the petitioner submits that an accused has a statutory right to be released on bail if the final form cannot be submitted within the statutory period of 120 days as per proviso (a) to Section 167(2) Cr. P.C. In the present case the petitioner having been arrested on 5-6-2004 was remanded to judicial custody on 6-6-2004 where he has been detained since then. The period of 120 clays was completed on 3-10-2004. The petitioner filed the petition under Section 167(2) Cr. P.C. on 4-10-2004. Since final form was not submitted within 120 days of the first date of remand of the petitioner to judicial custody, the trial Court ought not have rejected the petition, particularly when it was filed prior to submission of charge-sheet. In support of his submission he relied on the decisions in Mohamed Iqbal Madar Sheikh v. State of Maharashtra, 1996 (1) Crimes 4 (SC), Udaya Mohanlal Acharya v. State of Maharashtra; 2001 (2) Ori LR (SC) 290 : (2001 Cri LJ 1832), Ganesh Prasad v. State of M.P., 2001 Cri LJ 3444 and Dinesh Yadav v. State, 2002 Cri LJ 1067 (Patna High Court).', (int) 5 => '<p>5. Mr. Rout, learned Additional Standing Counsel did not dispute the point of law as raised by learned counsel for the petitioner. However, he contended that the petition under Section 167(2) Cr. P.C. was filed only after the submission of charge-sheet on 4-10-2004. As soon as the charge-sheet was submitted the right of the petitioner to be released on bail under proviso (a) to Section 167(2) Cr. P.C. extinguished. In view of the rival contentions of the learned counsel for the petitioner and the learned Additional Standing Counsel with regard to the time of submission of the charge-sheet and filing of petition under Section 167(2) Cr. P.C., it would be profitable to peruse the L.C.R. On perusal of the L.C.R. it is found that on 15-9-2004 the accused-petitioner was remanded to judicial custody till 29-9-2004. On 28-9-2004 the I.O. made an application before the S.D.J.M., Bhubaneswar for recording the statement of some witnesses Under Section 164 Cr.P.C. So, the learned S.D.J.M., Bhubaneswar transferred the case to the Court of Shri U. B. Jena, J.M.F.C., Bhubaneswar to record the statement of the witnesses under the said provision. Since the accused-petitioner could not be produced on 29-9-2004 due to shortage of escort party, the J.M.F.C. could not record the statement of witnesses on that date and remanded the accused-petitioner till 14-10-2004. After recording the statement of witnesses under Section 164 Cr. P.C. the J.M.F.C. transferred the record to the S.D.J.M., Bhubaneswar on 4-10-2004. The order sheet of that date shows that on the same date the S.D.J.M., Bhubaneswar received the charge-sheet against the accused persons under Sections 302/307/34 I.P.C. read with Sections 25 and 27 of the Arms Act, issued N.B.W. of arrest against the absentee accused, noticed the bailers and remanded the petitioner to custody. He also ordered to place the record on the date fixed i.e. 14-10-2004. On the same date i.e. 4-10-2004 later on, on the strength of an advanced petition, the record was put up and the petition for bail under Section 167(2) Cr. P.C. was filed. So, it clearly shows that the bail petition was filed after the charge- sheet was received by the learned S.D.J.M., Bhubaneswar. As such, the right, which had accrued in favour of the petitioner, was extinguished by the time charge-sheet was submitted. Filing of petition under Section 167(2) Cr. P.C. thereafter cannot be favourably entertained.', (int) 6 => '<p>6. Hence, the Criminal Revision stands dismissed.<p>', (int) 7 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 8 $i = (int) 7include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109