JUDGMENT : R.K. Dash, J. - This application under Section 439(2) read with Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the new Code') is filed by the Superintendent of Police, Central Bureau of Investigation (for brevity, 'CBI'). Special Police Establishment, Bhubaneswar, seeking cancellation of bail granted to the opposite party, accused in S.C Case No. 399 of 1995. 2. A brief resume of the facts lending to the present proceeding may be stated thus: One Anwar Khan lodged a written report at Tamka Police Station alleging that on 24.7.1993 Shyamapada Rout (hereinafter referred to as 'the deceased') was abducted, assaulted and confined by Chakradhar Alda and others and on the basis of the said report, the police registered a case under Sections 147, 148, 368, 323, 325 and 506 read with Section 149, IPC and took up investigation, but later on investigation was entrusted to CID (CD). When the matter stood thus, the wife of the deceased moved the Supreme Court complaining that the law enforcing agency of the State failed to take appropriate step to trace the whereabouts of her husband. She prayed for entrusting the investigation of the case to CBI. The Court accepted her prayer and directed the CBI to take up investigation and submit its report in accordance with law. Pursuant to this direction, the CBI proceeded with the investigation in course of which it came to light that the accused persons involved in the case have committed murder of the deceased. Opposite party, one of the accused was apprehended and sent to judicial custody. There upon he moved the lower Court for his release on bail. The same having been rejected, he approached this Court in Cri. Misc. Case No.639 of 1995 which was however, disposed of without considering on merit since the learned counsel appearing for him submitted that as in the mean time chargesheet has been laid, prayer would be renewed before the learned Addl. C.J.M., Bhubaneswar. This is the reason why the opposite party again knocked the door of the Court below and sought for his release. The said prayer was again turned down whereafter, a motion was made before the learned Addl. Sessions Judge, Bhubaneswar. C.J.M., Bhubaneswar. This is the reason why the opposite party again knocked the door of the Court below and sought for his release. The said prayer was again turned down whereafter, a motion was made before the learned Addl. Sessions Judge, Bhubaneswar. It was contended that the investigation having not been completed within the period of 90 days from the date of detention and the report submitted by the C.B.I. being not a police report within the meaning of Section 2(r) read with Section 173, the opposite party was entitled as of right to be enlarged on bail under Section 167(2) of the new Code. This submission found favour with the learned Addl. Sessions Judge and consequently, the opposite party was admitted to bail by order dated 24.5.1995 which is impugned in the present proceeding. 3. Learned counsel appearing for the petitioner strenuously contended that on completion of investigation the report/charge-sheet submitted in the case was accepted as a complete one on the basis of which the Magistrate took cognisance of the offence under Section 190(1)(b) and so, the learned Addl. Sessions Judge had no power to admit the opposite party to bail by resorting to Section 167(2) of the new Code. True it is, submitted the counsel, that the Investigated Officer mentioned in the report/charge-sheet that supplementary charge-sheet would be submitted after further investigation, but from that it could not have been inferred that the investigation was not complete in so far as the opposite party was concerned. 4. Per contra, Shri H.K. Jena, learned counsel for the opposite party, urged that proviso the Section 167 of the new Code mandates that if the investigation is not completed within 90 days in serious offences and 60 days in lesser ones from the date of arrest, it is obligatory on the Court to release the accused on bail. In other words, if the investigating agency fails to file charge-sheet before expiry of 90 or 60 days, as the case may be, the Magistrate will have no power to remand the accused beyond such stipulated period. In the present case, the Investigating Officer in order to defeat the aforesaid beneficial provision submitted a report/charge-sheet which was incomplete one and therefore, the learned Additional Sessions Judge committed no wrong in extending the benefit of the said provision by admitting the opposite party to bail. In the present case, the Investigating Officer in order to defeat the aforesaid beneficial provision submitted a report/charge-sheet which was incomplete one and therefore, the learned Additional Sessions Judge committed no wrong in extending the benefit of the said provision by admitting the opposite party to bail. Lastly, Shri Jena submitted that the principles enunciated by the Apex Court as well as this Court with regard to cancellation of bail having not been satisfied by the petitioner, the impugned order however wrong it may be, cannot be interfered with. 5. Before adverting to the questions posed, it is desirable to have a glimpse of the relevant provisions of the old Code as well as the new Code bearing on the issue. 6. Chapter XIV of the old Code relates to 'information to the police and their power to investigate'. Under Section 167(2), the Magistrate, whether he had jurisdiction to try the case or not, could authorise the detention of the accused forwarded to him in custody for a term not exceeding fifteen days in whole. Since this period was too short for investigation, in cases of serious nature the police were forced to resort to filing incomplete report/charge-sheet and seek extension of remand under Section 344. This device was resorted to as an inevitable necessity. It was however, noticed that in large number of cases investigations being not completed quickly, the accused persons were languishing in jail for years together. This attracted the attention of both Select Committee and the Law Commission to suggest for bringing out necessary amendments in the new Code. The remarks of the Select Committee in the context run as follows : "There is a persistent complaint that investigations are not being completed quickly by the police and that in many cases the accused persons are kept in detention on remand, for a very long period causing hardship and misery to such under-trial prisoners and their families. The remarks of the Select Committee in the context run as follows : "There is a persistent complaint that investigations are not being completed quickly by the police and that in many cases the accused persons are kept in detention on remand, for a very long period causing hardship and misery to such under-trial prisoners and their families. Although stringent provisions are already there in the existing Code requiring investigations to be completed quickly, they have not had the desired effect A drastic remedy, therefore, is called for in this behalf." The Law Commission in its 41st report equally observed thus: "It is, therefore, desirable as was observed in the fourteenth report, that some time-limit should be placed on the power of the police to obtain remand, while investigation is still going on; and if the present time-limit of fifteen days is too short, it would be better to fix a longer period rather than countenance a practice which violates the spirit of the legal safeguard. Like the earlier Law Commission we feel that fifteen days is perhaps too short, and we propose therefore to follow the recommendation in the Fourteenth Report that the maximum period under Section 167 should be fixed at sixty days." Consequently, to remedy the situation, the legislature in its wisdom thought to put a time-limit on the powers of the police to obtain remand during investigation after taking care to provide a longer period of remand so that the investigation may not be affected. Accordingly, a time limit of 60 days with a provision for its extension under certain circumstances was fixed by adding Proviso (a) to Sub-section (2) of Section 167 of the new Code. Since this time limit was found to be insufficient to complete the investigation in serious cases involving sentence of death, imprisonment for life, etc., certain amendments were brought in the proviso to Section 167(2) by Act 45 of 1978. Under the said amendment, the ceiling limit for remand period in cases where investigation relates to offences punishable with death, imprisonment for life or imprisonment for a term not less than 10 years was raised to 90 days while in other cases the earlier limit of 60 days remained unchanged. Under the said amendment, the ceiling limit for remand period in cases where investigation relates to offences punishable with death, imprisonment for life or imprisonment for a term not less than 10 years was raised to 90 days while in other cases the earlier limit of 60 days remained unchanged. According to this new provision, if within the time limit, the report/charge-sheet is not filed, it is obligatory on the Court to release the accused on bail, not withstanding the nature and seriousness of the crime. 7. Next, I will refer to Section 173(1) of the old Code, which is almost pari materia with Section 167(2) of the new Code, which provided that as soon as the investigation is completed the officer in charge of the police station shall forward to the Magistrate empowered to take cognizance of the offence on police report, a report in the prescribed form stating the names of the parties, nature of the information and the names of the persons who appear to be acquainted with the circumstances of the case, whether an offence appears to have been committed and, if so, by whom, whether the accused has been arrested, whether he has been released on his bond and, if so, with or without surety. The law was, however, silent as to whether further investigation can be taken up after submission of the report under Section 173 and after cognizance of the offence has been taken by the Magistrate, if fresh materials come to light. Only by Judge-made laws it was held that the police has further power to investigate the case after putting in the report as provided in Section 173. Reference in this context may be made to the case of Ram Lal Narang v. State (Delhi Administration) : AIR 1979 Supreme Court 1791, where the Court observed : "As observed by us earlier, there was no provision in the Code of Criminal Procedure, 1898 which, expressly or by necessary implication, barred the right of the police to further investigate after cognizance of the case had been taken by the Magistrate. Neither Section 173 nor Section 190 lead us to hold that the power of the police to further investigate was exhausted by the Magistrate taking cognizance of the offence. Practice, convenience and preponderance of authority, permitted repeated investigations on discovery of fresh facts. Neither Section 173 nor Section 190 lead us to hold that the power of the police to further investigate was exhausted by the Magistrate taking cognizance of the offence. Practice, convenience and preponderance of authority, permitted repeated investigations on discovery of fresh facts. In our view, not with standing that a Magistrate had taken cognizance of the offence upon a police report submitted under Section 173 of the 1898 Code, the right of the police to further investigate was not exhausted and the police could exercise such right as often as necessary when fresh information come to light. Where the police desired to make a further investigation, the police could express their regard and respect for the Court by seeking its formal permission to make further investigation." Keeping in view the authoritative pronouncements, it was felt necessary to have a specific provision in the new Code giving power to the police to make further investigation even after submission of the report/charge-sheet and accordingly, Sub-section (8) was inserted in Section 173 of the new Code which runs thus: "Nothing in this Section shall be deemed to preclude further investigation in respect of an offence after a report under Sub-section (2) has been forwarded to the Magistrate and, where upon such investigation the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of Sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under Sub-section (2)." 8. The question now arises whether in the present case, report/charge-sheet submitted by the Investigating Officer was a complete report/charge-sheet or incomplete one and whether such report/charge-sheet was submitted as device to frustrate the legislative intention as envisaged by proviso to Section 167(2) of the new Code. 9. Provisions of Sections 167(2) and 173(1) and (2) of the new Code if read conjointly, go the show that investigation should be done as expeditiously as possible which would not only benefit the accused but also the State. Section 173(1) of the old Code though prescribes for early investigation, but it did not have the desired result. 9. Provisions of Sections 167(2) and 173(1) and (2) of the new Code if read conjointly, go the show that investigation should be done as expeditiously as possible which would not only benefit the accused but also the State. Section 173(1) of the old Code though prescribes for early investigation, but it did not have the desired result. Therefore, some check was imposed by the Legislature in the proviso to Section 167(2) of the new Code with the object to ensure that the accused is not kept under detention during investigation for more than ninety days or sixty days, as the case may be, and on expiry of the said period, the accused has a right to be released on bail. But in order to defeat the said beneficial provisions, if the Investigating Officer submits a report/charge-sheet which is an incomplete one; in other words, not a report/charge-sheet in terms of Section 173(2), then in that case investigation cannot be said to be complete and cognisance of the offence taken n the basis thereof is bad in law. The purpose of submission of report under Section 173(2) with details as mentioned therein is d enable the Magistrate to satisfy himself whether on the basis of tie report/charge-sheet and materials filed along with it, a case or taking cognisance is made out or not. Therefore, if the report/charge-sheet and the materials filed therewith are sufficient to satisfy the Magistrate to take cognisance, his power is not fettered the label the investigating agency chooses to give to the report/charge-sheet submitted by it under Section 173(2). The terminology used for submitting the report, does not affect the jurisdiction if the Magistrate to take cognizance. It is the jurisdiction of the Magistrate and the Magistrate alone to decide whether the material placed by the prosecution with the report/charge-sheet was sufficient to take cognizance or not. The power of the Magistrate take cognizance cannot be controlled by the investigating agency. Sub-section (8) of Section 173 which was introduced in the new Code should be read and interpreted in the manner which will sub-serve the legislative intention. The power of the Magistrate take cognizance cannot be controlled by the investigating agency. Sub-section (8) of Section 173 which was introduced in the new Code should be read and interpreted in the manner which will sub-serve the legislative intention. On a plain reading of the said provision, it would appear that even after submission of the re-port/charge-sheet under Sub-section (2) of Section 173, the Investigating Officer will still have power to make further investigation in respect of the offence and submit a report containing the evidence, oral and documentary, obtained during such investigation. So resort to this new provision by the Investigating Officer does not necessarily mean that investigation is either incomplete or has been reopened. 10. It is not disputed at the Bar that the charge-sheet filed in the present case contains the full particulars, i.e. names of the parties, the nature of the information and the names of the persons who appear to be acquainted with the circumstances of the case, names of the persons who committed the offence, etc., as provided in Section 173(2). It was, however, contended by Shri Jena, learned counsel for the opposite party that since the Investigating Officer has specifically mentioned therein that after collection of evidence during further investigation, a supplementary charge-sheet will be submitted, the report/charge-sheet cannot be said to be a complete one. Such contention is not acceptable for two reasons; firstly, as stated earlier, Section 173(8) of the new Code gives handle to the Investigating Officer to make further investigation after submission of the report/charge-sheet under Section 173(2) and therefore, whatever has been stated in the charge-sheet as aforesaid is in terms of the said provision, and secondly, the learned Additional C.J.M. before whom the case was initially pending, accepted the said report/charge-sheet and consequently took cognizance of the offences. Taking cognisance of an offence upon a police report under Section 190(1)(b) of the new Code by the Magistrate is not an empty formality. He must apply his judicial mind to the facts mentioned in the police report and if satisfied that a prima facie case has been made out against the accused, then he will take cognizance of the offence. The order of the learned Additional C.J.M. in taking cognizance of the offence in the present case was not challenged by the opposite party in the higher forum. The order of the learned Additional C.J.M. in taking cognizance of the offence in the present case was not challenged by the opposite party in the higher forum. In course of argument in the present application the validity of the said order was also not questioned on behalf of the opposite party. So, when the learned Addl. C.J.M. took cognizance of the offence by treating the report/charge-sheet as one under Section 173(2) of the new Code, it was not permissible for the learned Addl. Sessions Judge to hold that the investigation was still in progress against the opposite, party. Had he kept himself alive to the relevant provisions of the new Code, such a wrong and illegal order could not have been passed by admitting the opposite party to bail under Section 167(2). In the above view of the matter, I am of the opinion that the impugned order is unsustainable. 11. Nextly it was argued by Shri Jena that once bail has been granted by the learned Additional Sessions Judge, the same can not be cancelled unless cogent and overwhelming circumstances are made out, as ruled by the Apex Court and followed by this Court. Shri Mohanty, learned counsel for the petitioner, fairly does not challenge the correctness of the said legal position. Under Section 439(2) of the new Code both High Court and the Court of Session have concurrent power to direct for arrest of a person who has been released on bail under Chapter XXXIII. Sections 436, 437, 438 and 439 of the new Code which relates to the provisions as the bail and bail bond come under the said chapter. Regarding the scope of power of the High Court and the Sessions Court, to cancel bail under Section 439(2) of the new Code, the Supreme Court in State through Delhi Administration v. Sanjay Gandhi : AIR 1978 Supreme Court 961, held : "Rejection of bail when bail is applied for is one thing, cancellation of bail already granted is quite another. It is easier to reject a bail application in a non-bailable case than to cancel a bail granted in such a case. It is easier to reject a bail application in a non-bailable case than to cancel a bail granted in such a case. Cancellation of bail necessarily involves the review of a decision already made and can by and large be permitted only if, by reason of supervening circumstances, it would be no longer conducive to a fair trial to allow the accused to retain his freedom during the trial......" 12. Further reference may be made to Bhagirathasingh Judeja v. State of Gujarat : AIR 1984 Supreme Court 372, where the Court observed that cogent and overwhelming circumstances are necessary for an order seeking cancellation of bail. The above decisions of the Supreme Court have no application to the facts of the present case. Those were cases where the bail granted by the lower Court on merit was attempted to be cancelled by the High Courts. Since the orders were not without jurisdiction, the Supreme Court laid down the guidelines as to when the power of cancellation of bail should be exercised. In the case in hand, the impugned order admitting the opposite party to bail is bad from its inception, in as much as the learned Additional Sessions Judge by illegally resorting to Section 167(2) released the opposite party. In the above view of the matter, the submission of Shri Jena that in view of the authoritative pronouncements of the Supreme Court referred to above, this Court should not cancel the bail of the opposite party does not hold good. This takes me to find whether the opposite party should be taken back to custody since granting of bail by the learned Additional Sessions Judge has been held to be illegal and without jurisdiction. 13. Admittedly there are a number of accuse persons involved in the case and many of them have been released on bail. The opposite party who stands on the same footing has been allowed to enjoy the liberty pursuant to the impugned order. There is no allegation against him that he has misused his liberty in any manner. In that view of the matter, I am not inclined to cancel the bail, even though I have held the impugned order to be illegal and without jurisdiction. 14. The Criminal Misc. Case is accordingly disposed of. Final Result : Disposed Of