Krishna Ballabh Sinha, J.@mdashThis application under Sections 439 and 440 of the Code of Criminal Procedure (hereinafter referred to as ''the
Code'') has been filed by the sole petitioner for being released on bail.
2. In order to appreciate the points raised on behalf of the parties, it is necessary to set forth some relevant facts of the case. A dacoity was
committed on 12-11-1981 at about 12.30 A.M. in the house of one Babulal Singh, in which one Dwarika was done to death by the culprits. In
course of police investigation, the petitioner was arrested and thereafter he was remanded to custody on 23-7-1982. He has been identified by
three witnesses on Test Identification Parade. After he spent 90 days in the custody, a petition was filed in the Court of the Chief Judicial
Magistrate for release of the petitioner on bail under the provisions of Section 167(2) of the Code and the Court passed the order for his release
on the same day. It appears that the bail bond was not furnished by him and, therefore, the said order was recalled on 8-11-1982. The petitioner
moved the Sessions Judge, Vaishali, for bail, but his prayer was rejected.
3. The learned Counsel, appearing on behalf of the petitioner, mainly contended that having passed an order for release of the petitioner on bail on
22-10-1982, the Chief Judicial Magistrate was not empowered to recall his order on 8-11-1982. It was urged that once the petitioner was
ordered to be released on bail, the only course open to the Chief Judicial Magistrate was to take step for cancellation of bail bond if the
circumstances so required. Submission was made that the Chief Judicial Magistrate as also the Sessions Judge passed orders without correctly
appreciating the provision of Section 167(2) of the Code.
4. The learned Counsel appearing on behalf of the State, on the other hand, contended that charge-sheet in this case was submitted on 11-10-
1982, much prior to the 22nd October, 1982, when the order for release of the petitioner was passed and so the order obtained after suppressing
the truth could not be maintained.
5. It may be useful to refer to certain Sections of the Code of Criminal Procedure here. According to Section 57 of the Code, a Police Officer
cannot detain in custody any person after his arrest for more than twenty-four hours in absence of a special order of the Magistrate u/s 167 of the
Code. The next relevant provision is contained in Section 167 of the Code. When it is not possible to conclude the investigation within twenty four
hours and there are grounds for believing that the accusation or information is well-founded, the Officer-in-charge of the Police Station or any
Police Officer, making the investigation, has to forward the accused to the nearest Judicial Magistrate. The Magistrate to whom the accused
person is forwarded, may order for detention of the accused in custody from time to time for a term not exceeding fifteen days. The proviso of
sob-Section (2) of Section 167 of the Code clearly states that the Magistrate may authorise detention of the accused person beyond the period of
fifteen days, if he is satisfied that there are adequate grounds for doing so. It further says that no Magistrate shall authorise the detention of the
accused person in custody under this Section for a total period exceeding 90 days or 60 days, depending on the quantum of punishment
prescribed for different offences. After the expiry of the said period, the accused has to be released on bail if he is prepared and does furnish bail,
So an accused, against whom there is allegation of committing an offence punishable u/s 396 of the Indian Penal Code, cannot be detained in
custody during the police investigation for a period more than 90 days. After expiry of the said period a statutory right accrues to him for being
released on bail. Section 167 has been placed in Chapter XII of the Code, which begins with the heading ""Information to the Police and their
power to investigation"". This is new provision and has been introduced with a view to expedite investigation of offence by the police. It also puts a
limitation on the power of the Magistrate to remand the accused in custody during the period of police investigation. Chapter XXXIII of the Code
deals with power and procedure with regard to consideration of bail by different Courts. No doubt, an accused released on bail u/s 167(2) of the
Code is deemed to have been released under Chapter XXXIII. but under the scheme of the Code a separate Chapter has been devoted for the
purpose of bail.
6. In Section 167 of the Code, certain conditions have been laid down for release of an accused on bail. The first condition is that the report u/s
173 of the Code is not submitted within the prescribed period and secondly, the accused in custody must furnish bail bond. Failure on the part of
police to submit charge-sheet within the prescribed period, alone, cannot entitle an accused to be released on bail unless he furnishes bail bond.
After submission of a report by the police u/s 173 of the Code, a new legal situation emerges and the right which is available to the accused for
being released on bail during the course of police investigation, is extinguished. The provisions of Chapter XII cease to become applicable under
the changed situation. As the report is submitted after completion of investigation, the power of the Magistrate to remand the accused to custody
under this Section comes to an end. The remedy for the accused, thereafter, lies in taking recourse to the provision of Chapter XXXIII of the
Code.
7. In the instant case, there is no dispute that the charge-sheet was submitted by the police on 11-10-1982. It appears from the order of the
learned Sessions Judge that the Chief Judicial Magistrate had put his signature on the charge-sheet was not attached with the record of the case
and, therefore, an order for release of the petitioner was passed on 22-10-1982 under Sub-section (2) of Section 167 of the Code. In the
background of the facts stated above, it is manifest that charge-sheet was submitted before the order of release of the petitioner on bail was
passed. So the very first ground for application of provision of Section 167(2) of the Code was not available and the order for release on bail was
passed on account of some mistake or collusive action on the part of those, who were responsible for maintaining the record. In spite of the order
of release passed by the Chief Judicial Magistrate, the petitioner failed to fulfil the condition of furnishing bail bond as required under Sub-section
(2) of Section 167 of the Code. It is true that a Criminal Court has got no power to recall or review its order except to correct its clerical or
arithmetical error as laid down u/s 362 of the Code. But the petitioner, himself, failed to furnish bail bond and so he was not released on bail. The
order passed by the Magistrate cannot be said to be an order of recall. Although in this case, the learned Magistrate has used the expression
Recall"", but in substance it was neither an order of recall nor cancellation of the bail bond. So, I do not find any substance in the argument put
forward by the learned Counsel for the petitioner that the Magistrate had recalled his order resulting in cancellation of his bail.
8. The learned Counsel, appearing for the petitioner has referred to the case of Bashir and Others Vs. State of Haryana, . In my view, the principle
laid down in this case has got no application on the facts of the present case-The appellants in the Supreme Court were released u/s 167(2) o the
Code on account of non-submission of report by the police u/s 11 of the 173 of the Code. But in this case, although the order for the release of the
petitioner on bail was passed, he failed to furnish bail bond. So. the order had not taken effect and the petitioner remained in custody. Reliance ha
also been placed on behalf of the petitioner on Kailash Kant Jha v. The State Bihar 1978 B.L.J. 680. wherein it has been held that the bail of an
accused person, who has been directed to be released in accordance with Sub-section (2) of Section 167 of the Code should not be cancelled
merely because later on the charge-sheet is received. But as stated above, in this case the charge-sheet was submitted before the order for release
of the petitioner on bail was passed. So there was no occasion for cancellation of bail. As mentioned above, the petitioner has been identified at
the T.I. Parade by three witnesses and hence, in my opinion, he does not deserve bail. So, I find no merit in this application and it is, accordingly
dismissed.