- (1.) IN this writ application, the petitioner has prayed for a direction to the respondent commanding upon him to accept the bail bond of the petitioner in view of the order dated 8.8.2005 passed by Chief Judicial Magistrate, Ranchi in Doranda RS. Case No. 116 of 2005 whereby the petitioner has been granted bail on furnishing bail bond of Rs. 7,000 (seven thousand) with two sureties and for a writ, direction or order setting aside the order dated 9.8.2005 by which the court below has refused to accept the bail bond holding that his right under Section 167(2) Cr.P.C. has been extinguished, though earlier he has passed the said order enlarging the petitioner on bail under the provisions Amitabh Choudhary Versus State Of Jharkhand of Section 167(2) Cr.P.C.
(2.) THE case of the petitioner is that he, on expiry of 60 days of his custody, filed an application for his release under the provision of Section 167 (2) Cr.P.C. After receipt of the petition, the learned court below sent for a report from the G.R. clerk as to whether charge -sheet was sub -mitted in the case or not. The G.R. clerk thereupon reported that the charge -sheet was not submitted in the case. On perusal of the said report, the court below was satisfied that the charge -sheet was not submitted within the prescribed period and on that basis directed to release the petitioner on bail under the provision of Section 167(2) Cr.P.C, on furnishing bail bond of Rs. 7,000 (seven thousand) with two sureties. Next day on 9.8.2005 the petitioner was to furnish bail bond but his bail bond was not accepted on the ground that the G.R. Clerk has subsequently reported that the charge -sheet was submitted in this case. On the basis of the said later report of the G.R. clerk the court below rejected the petition for acceptance of bail bond holding that the right of the accused petitioner for his release on bail on the provision of Section 167(2) Cr.P.C. was extinguished after receipt of the charge -sheet. The point for consideration before this Court is as to whether once the court below having exercised his jurisdiction under Section 167(2) Cr.P.C. after thorough enquiry and on the basis of the report and having granted bail can subsequently reject the prayer for bail on the basis of the reported submission of the charge -sheet. The question involved in this case was considered by the Full Bench of the Patna High Court in the case of Kanhaiya Mahto and Anr. vs. State of Bihar and Ors., [1999(2) East Cr.C. 795 (Pat.) (FB)] wherein provisions of law and decisions on the point were thoroughly examined and after consideration of all the aspects it was . concluded and held that the right of the accused of release on bail on an application made in the proviso (a) to Section 167(2) Cr.P.C. remains enforceable till the charge -sheet has been filed but filing of the charge -sheet after passing the order granting bail, cannot affect the bail order already passed. If the charge -sheet has been filed after passing the order of the bail under proviso (a) to Section 167(2) Cr.P.C. the bail order does not get extinguished and it remains effective even if, the charge -sheet has been filed before furnishing of the bail bond and/or before issuing the release order.
(3.) IN my considered view also, the right given under Section 167(2) Cr.P.C. is a statutory right and once the power is exercised under the said provision by a competent court and order is passed on the materials on record and on due consideration of the fact that the charge sheet was not submitted within the prescribed time, the court after passing the order become functus officio and it cannot subsequently cancel or recall the said order.;