MRINAL YADAV Vs. STATE OF BIHAR

JUDGEMENT

(1.) Learned Counsel for the petitioner is permitted to make necessary correction in the petition.

(2.) Heard learned Counsel for the parties.

(3.) The petitioner had earlier filed an application under Article 226 of the Constitution of India which has subsequently been converted into an application under Section 482 of the Code of Criminal Procedure (hereinafter the 'Code'). The petitioner is an accused in Godda PS. Case No. 252 of 1996 for an offence under Sections 25 (1) (b) and 26 (3) of the Arms Act. He has invoked the inherent powers of this Court for quashing the order dated 301.1997 passed by the learned C.J.M. whereby he recalled his earlier order dated 25.1.1997 directing release of the petitioner on bail under Section 167 (2) of the Code. It appears that the learned C.J.M. by his order dated 25.1.1997 directed release of the petitioner on bail of Rs. 10,000/- with two sureties of the like amount each after giving him the benefit of the provisions of Section 167 (2) (a) of the Code. The benefit was given on the basis that after the arrest of the petitioner in the said case on 25.11.1996, the police had not submitted charge sheet even after completion of 60 days from the date of the said arrest. From the perusal of the order sheet dated 25.1.1997 and 30.1.1997 copy of which is Annexure-2 it appears that after the order dated 25.1.1997 was passed the learned A.P.P. filed an application on 28.1.1997 for recall of the order on the ground that the petitioner was not entitled to be released on bail under Section 167 of the Code for he could have been given the advantage only if he had remained in custody for 90 days or more without police completing investigation and submitting charge- sheet. That application of the learned A.P.P. was allowed on 30.1.1997 in presence of the learned Counsel for the petitioner and the Court's earlier order dated 25.1.1997 was recalled. The learned C.J.M. took the view that since one of offence alleged against the petitioner namely Section 26 (3) of the Arms Act was punishable up to 10 year's rigorous imprisonment the period for the purpose of Section 167 of the Code would be 90 days and not 60 days. Learned Counsel for the petitioner has passed the application on two grounds first that the learned C.J.M. having granted bail to the petitioner by order dated 25.1.1997, had no legal jurisdiction to review and recall his earlier order by his subsequent order dated 30.1.1997. Another ground pressed is that the learned C.J.M. had taken the correct view of law that the petitioner was entitled to be released on bail after the expiry of 60 days without investigation being completed and charge-sheet submitted by the police as offence under Section 26 (3) of the Arms Act was punishable up to 10 years RI and the provision of Clause (1) of sub-section (2) of Section 1157 of the Code had no application to the facts of the case which prescribed the period of 90 days where the investigation relates to an offence punishable for imprisonment for life or imprisonment for a term of no less than ten years. The offence described under sub-section (2) of Section 26 provide maximum punishment with imprisonment for a term which may extend to ten years, whereas Section 167 (2) (a) (i) of the Code provides 90 days for offences punishable with imprisonment for life or imprisonment for a term of not less than ten years. Thus in view of the clear provisions of Section 167 of the Code as also the punishment provided under Section 26 (2) and (3) of the Arms Act, there appears no doubt that the learned C.J.M. had taken the correct view of law while ordering the release of the petitioner on bail by order dated 25.1.1997 considering the period of 60 days during which the police did not complete investigation and file charge-sheet. In view of this it is not necessary to consider the other ground namely the competence of the Magistrate to have reviewed and recalled the earlier order releasing the petitioner on bail.