JUDGMENT : A. Pasayat, J. - An interesting question relating to the ambit of application of Section 167(2-A) of the Code of Criminal Procedure, 1973 (in short, the 'Code') is the subject-matter of controversy in this application. 2. A brief reference to the fact situation which is undisputed is necessary. Petitioner is one of the accused persons in G. R. Case No. 244 of 1990 pending in the Court of Judicial Magistrate, first class, Banpur. The offence alleged agaist him is u/s 304-B/34 of. the Indian Penal Code, 1860 (in short, 1PC'). The petitioner was arrested on 28 4-1991 and was produced in the Court of Judicial Magistrate, first class (in short, "JMFC'). Since the JMFC was absent, the Special Judicial Magistrate, who was in charge heard and rejected the bail application filed by the petitioner, and remanded him to custody till 10- 5-1991. An application u/s 439 of the Code was filed before the learned Subordinate Judge-cum-Assistant Sessions Judge, Khurda. The bail application was rejected by order dated 6-5-1991. 'Another bail application u/s 439 of the Code was filed in the Court of Assistant -Sessions Judge, Khurda and by order dated 9-5-1991 the prayer for bail was accepted on the ground that the order of remand passed by the learned Special Judical Magistrate exceed seven days and therefore, as a matter of right the petitioner was entitled to bail in terms of Section 167(2-A) of the Code. An application for cancellation of bail was filed before the learned Sessions Judge, Puri u/s 439(2). It was urged in support of the application that Section 167(2-A) had no application to the facts of the case and therefore, grant of bail was improper. The gravity of the offences alleged was also highlighted. The motion for cancellation was resisted by the present petitioner on the .ground that Section 167(2-A) clearly had application and in any event there being no intervening circumstances, cancellation of bail was not warranted. The learned Sessions Judge, Puri accepted the prayer for cancellation of bail primarily being of the view that the remand order was passed by the learned Special Judicial Magistrate while he was not functioning as an Executive Magistrate, but as a Judicial Magistrate and therefore, there was nothing illicit to warrant grant of bail. The learned Sessions Judge, Puri accepted the prayer for cancellation of bail primarily being of the view that the remand order was passed by the learned Special Judicial Magistrate while he was not functioning as an Executive Magistrate, but as a Judicial Magistrate and therefore, there was nothing illicit to warrant grant of bail. According to him, the expression "available'' used in Section 167(2-A) refers to postings of a Judicial Magistrate, and when a Judicial Magistrate was posted at Banpur, merely because the Presiding Officer was absent, the Special Judicial Magistrate cannot be termed to be an Executive Magistrate exercising functions u/s 167(2-A). The learned counsel for the petitioner urges that the approach and the interpretation made by the learned Sessions Judge are not legally tenable. It is urged that the expression 'available' should be construed to mean available for dealing with the case. The learned counsel for State, however, submits that merely because an order of remand is irregular in some manner, that does not per se entitle a person to bail and in any event the bail granted can be cancelled subsequently on materials being placed before the appropriate Court. 3. For resolution of the dispute a conjoint reading of various provisions in the Code relating to arrest of an accused and production before the Court is necessary. Section 41 deals with "arrest by Police without warrant". Section 56 obligates a police officer making an arrest without warrant to take or send the person arrested before a Magistrate having jurisdiction in the case, or before the officer in charge of a police station. The provision is made subject to the provisions of bail and has to be taken recourse to without unnecessary delay. Section 57 provides no person shall be detained in custody by police officer without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate u/s 167, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court. Section 167 provides that whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by Section 57, and there are grounds for believing that the accusation or information is well-founded, the officer-in-charge of the police station or the police officer making the investigation, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary and shall at the same time forward the accused to such Magistrate. The Magistrate to whom an accused person, is forwarded may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole, unless he is satisfied that there are adequate grounds for detention of the accused not exceeding sixty days in the custody of a person other than a police officer or ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years, and on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail. Section 167(2-A) which was inserted by Criminal Procedure Code (Amendment) Act, 1976 provides that notwithstanding anything contained in Sub-section (1) or Sub-section (2), the officer in charge of the police station or the police officer making the investigation,if he is not below the rank of a Sub-Inspector, may, where Judicial Magistrate is not available transmit to the nearest Executive Magistrate on whom the powers of a Judicial Magistrate have been conferred, a copy of the entry in the diary relating to the case, and shall, at the same time forward the accused to such Executive Magistrate, and thereupon such Executive Magistrate, may, for reasons to be recorded in writing, authorise the detention of the accused person in such custody as he may think fit for a term not exceeding seven days in the aggregate; and on the expiry of the period of detention so authorised, the accused person shall be rele- ased on bail except where an order for further detention of the accused person has been made by a Mgistrate competent to make such order. While computing the period of detention specified in parapraph (a) of the proviso to Sub-section (2) of Section 157 the period during which the accused person was detained in custody, under the orders made by an Executive Magistrate is to be taken into account. In the instant case, the controversy primarily revolves round the question whether the Special Judicial Magistrate who passed the order of remand was an Executive Magistrate on whom powers of a Judicial Magistrate have been conferred and therefore, his power of remand was restricted to seven days or he was a Judicial Magistrate and could direct remand for fifteen days. 4. The provision relating to appointment of Judicial Magistrates and Special Judicial Magistrates have been dealt with in Sections 11, 12, 13 and 20 of the Code. Section 11 provides that in every district, and at such places, as the State Government may, after consultation with the High Court, by notification, specify there shall be established as many Courts of Judicial Magistrates of the first class and of the second class. The presiding officers of such Courts shall be appointed by the High Court, Section 12 deals with Chief Judicial Magistrate and Additional Chief Judicial Magistrate. The appointment of Chief Judicial Magistrate is made by the High Court. The presiding officers of such Courts shall be appointed by the High Court, Section 12 deals with Chief Judicial Magistrate and Additional Chief Judicial Magistrate. The appointment of Chief Judicial Magistrate is made by the High Court. The High Court has the power to confer the powers of a Judicial Magistrate of the first class or of the second class on any member of the Judicial Service of the State, functioning as a Judge in a Civil Court whenever it appears to it to be expedient or necessary. So far as the appointment of Special Judicial Magistrate is concerned, the High Court may confer upon any person who holds or has held any post under the Government, all or any of the powers conferred or conferable by or under the Code on a Judicial Magistrate of the second class, in respect of particular cases or to particular classes of cases or two cases generally, in any district not being a metropolitan area, if requested by the State Government or the" Central Government to do so. No such power shall be conferred on a person unless he possesses such qualification or experience in relation to legal affairs as the High Court may by Rules specify. These Magistrates are called Special Judicial Magistrates, and are appointed for such term, not exceeding one year at a time, as may be prescribed by the High Court by general or special order. So far as the Executive Magistrates are concerned, in every district and in every metropolitan area, the State Government may appoint as many persons as it thinks fit to be Executive Magistrates and shall appoint one of them to be the District Magistrate. 5. ln exercise of the powers conferred by th3 proviso to Section 13 of the Code, this Court has made Rules with regard to appointment of Special Judicial Magistrates, who is called. "The Appointment of Special Judicial Magistrate Rules. 1974" (in short, the 'Rules'). 5. ln exercise of the powers conferred by th3 proviso to Section 13 of the Code, this Court has made Rules with regard to appointment of Special Judicial Magistrates, who is called. "The Appointment of Special Judicial Magistrate Rules. 1974" (in short, the 'Rules'). Rule 4 prescribes that no person shall be appointed as a Special Judicial Magistrate by the High Court unless (i) he is a Bachelor of laws from a recognised University and is holding gazetted post under the Government; or (ii) he has exercised the powers of a Judicial Magistrate at any time; or (iii) he is or has been an Executive Magistrate; or (iv) he is an officer of the Orissa Administrative Service, Class II having exercised the powers of a Magistrate for not less than three years. 6. So far as applicability of Section 167(2-A) is concerned, the period of remand is restricted to seven days who an Executive Magistrate who has been conferred with the powers of a Judicial Magistrate makes the order on production of an accused. There may be Special Judicial Magistrates who are not Executive IV Magistrates. This is apparent from Rule 4 of the Rules. So far as the case at hand is concerned, I have perused the notification of this Court issued relating to conferment of powers of a Judicial Magistrate of the first class. By notification No. 336-A dated 15-5-1991 which is relevant, one Shri Bishnu Prasad Panda, Tahasildar, Banpur was conferred with the powers of a Judicial Magi- strate, first class. Since there is no indication in the notification as to whether Shri Panda was an Executive Magistrate, I called for and perused the file relating to conferment of powers of Judicial Magistrate on Shri Panda. Prior to the notification dated 15-5-1991, Shri Panda was conferred with similar powers by notification No. 92-A dated 6-3-1990. From the bio-data of Shri Panda submitted by the Additional District Magistrate, Puri indicating the educational qualification and other relevant details, 1 find that Shri Panda does not have Bachelor of law degree from a recognised university, and also has not exercised the powers of a Judicial Magistrate at any time prior to 6-3-1990. He was, however, functioning as Executive Magistrate since 1978, and was an officer of the Orissa Administrative Service, Class 11, having exercised the powers of a Magistrate for eleven years. He was, however, functioning as Executive Magistrate since 1978, and was an officer of the Orissa Administrative Service, Class 11, having exercised the powers of a Magistrate for eleven years. From these details, it is to be construed that he was conferred with powers of Judicial Magistrate while functioning as Executive Magistrate though there is nothing specific either in the notification dated 6-3-1990 or in the notificatidn dated 15-5-1991. The restriction relating to powers of remand for seven days was operative, so for as Shri Panda is concerned, and he could not have Directed remand for more than seven days. It may be clarified here that interpretation of the expression 'available' as made by the learned Sessions Judge is not correct. The said expression cannot be construed to refer to an appointment or posting. 'Available' in the context used, refers to availability to deal with a person who is produced, and to pass orders relating to bail or remand, as the case may be. It may be clarified here that the Rules make it apparent, that even persons other than Executive Magistrates can be conferred with the powers of Judicial Executive Magistrate. Such Special Judicial Magistrate has power of remand for fifteen days in terms of Section 167(1) and (2). In the above premises, the learned Assistant Sessions Judge was justified in holding that the restriction of seven days' period applied and the petitioner was entitled to bail. 7. The learned counsel for State, however, submits that merely because such a person has been released on bail it is not impermissible to cancel the bail. The submission needs careful consideration. Where an accused has been released by application of the proviso (a) to Sub-sec (2) of Section 167 of the Code, and subesquently charge sheet has been submitted, it is open to the Court to cancel the bail. While the release of the accused has been made by application of proviso (a) to Sub-section (2) of Section 167, merits of the case are not none into. An order of release in such circumstance has baton termed as a order on default'. While the release of the accused has been made by application of proviso (a) to Sub-section (2) of Section 167, merits of the case are not none into. An order of release in such circumstance has baton termed as a order on default'. It is a release on default of the prosecution for not Iiimg the charge sheet within the prescribed period The right to such bail is absolute, without any discretion and is a legislative command The prosecution has option to seek cancellation of bail after the defect of non-filing the charge sheet within the stipulated time is cured on the ground that the accused has committed non bailable offence. This view expressed by me Sanatan shau v. State of Orissa (1991) 4 OCR 516. The view has the authoritative prop of the observations by the Supreme Court in Rajnikant Jivanlal and Another Vs. Intelligence Officer, Narcotic Control Bureau, New Delhi, and in Raghubir Singh and Others Vs. State of Bihar. Applying the analogy where an accused is released on bail because the special Judicial Magistrate directed remand for for a period beyond seven days, it is open to the prosecution to seek cancellation on the ground that the accused has committed non bailable offence. a person relesed on bail because of remand made by a Special Judicial Magistrate for a period exceeding seven days, does not stand on a better footing than a person who is released on bail application of the Proviso (a) to Sub-section (2) of Section 167.) Therefore, in appropriate case if a person has been released on bail it is open to the prosecution to seek canceliation. The plea of the Petitoner however, is that there being no intervening circumstance and material to suggest that the petitioner indulged in any action whereby it ammount to misuse of liberty granted to him, the prosecution should be forbidden from seeking cancellation. Such plea is often made and mostly rejected. Absence of intervening circumstances is definitely one of the factors which has to be considered while dealing with a matter relating to is absence of intervening circumstance prayer for cancellation of bail has to be turned down. 8. From the records submitted. Such plea is often made and mostly rejected. Absence of intervening circumstances is definitely one of the factors which has to be considered while dealing with a matter relating to is absence of intervening circumstance prayer for cancellation of bail has to be turned down. 8. From the records submitted. I find that till 22-2 1992 resut of the investigation have not been intimated to the Court and the matter has been adjourned from time to time on the ground that the final form has not been received from the investigating Officer. The alleged occurrence is of the year 1990, and considering the nature of allegations made, it is not understood as to why the results of the investigation have not been intimated to the Court. Expedition is imperated in such cases. 9. Order directing cancellation of bail of the petitioner is interdicted, and is set aside. The revision application accordingly succeeds. Final Result : Allowed