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Andhra High Court · body

2005 DIGILAW 343 (AP)

Bukke Ranuka v. State Of A. P.

2005-04-08

V.V.S.RAO

body2005
V. V. S. RAO, J. ( 1 ) THE petitioners are A1, A2 and A4 in Crime No. 50 of 2004 of P. S. K. V. Pally in Chittoor District under Section 302 read with Section 34 of the Indian Penal code, 1860 (for short ipc ). As per the first Information Report given by the father of one Eswar Naik, the latter was murdered by Al to A4 as the deceased refused to allow Renuka (A1) to go to Quwait which resulted in a quarrel between them. It was also alleged that after the deceased refused the request of Al to go to Quwait she lodged a complaint in K. V. Pally Police station and left the matrimonial home and was living in the house of A2 to A4. There was a mediation by relatives. As per the advice of the mediators Eswar Naik agreed to stay for two days with parents-in-law, but while the complainant was in his agricultural fields he came to know that eshwar Naik was murdered. ( 2 ) THE complaint was given on 25. 10. 2004 and the police registered a crime and took up the investigation. A1 to A4 were arrested on 19. 11. 2004 and sent to remand for judicial custody. They moved the Court of the III Additional Sessions judge, Tirupathi by filing Crl. M. P. No. 1838 of 2004 for bail. The said Court dismissed the petition on 27. 12. 2004 taking a view that the accusations levelled against A1 to a4 are well-founded and pending investigation, they cannot be released on bail. A1 to A4 thereafter filed Criminal petition No. 87 of 2005 before this Court on 10. 1. 2005 for bail. By an order dated 31. 1. 2005 this Court dismissed the petition for bail having regard to the nature of accusations levelled against the petitioners and also noticing the fact that investigation is in progress. This Court further gave liberty to A1 to A4 to renew their request for bail after completion of investigation and filing of the charge-sheet. ( 3 ) THE police could not complete the investigation and file charge-sheet within 90 days. Therefore, A1 to A4 again moved crl. M. P. No. 279 of 2005 on the file of the court of the III Additional Sessions Judge, tirupathi for bail. By an order dated 23. 2. ( 3 ) THE police could not complete the investigation and file charge-sheet within 90 days. Therefore, A1 to A4 again moved crl. M. P. No. 279 of 2005 on the file of the court of the III Additional Sessions Judge, tirupathi for bail. By an order dated 23. 2. 2005 the learned III Additional Sessions judge dismissed the petition again having regard to the observations made by this court that the accused may renew their request after filing of the charge-sheet. Aggrieved by the same, A1, A2 and A4 filed the present petition for bail. ( 4 ) THE learned Counsel for the petitioners, Sri T. Niranjan Ready, submits that the learned III Additional Sessions Judge was not correct in rejecting the application for bail placing reliance on the observations made by this Court. He would urge that the petitioners have a right to be released on bail under Section 167 (2) (a) of the Code of Criminal Procedure, 1973 (for short "cr. P. C. " ). According to the learned counsel, the moment the police/investigating agency failed to submit the charge-sheet before the criminal Court within 90 days in relation to an offence punishable with death or imprisonment for life, the accused gets right to be released on bail and if any imprisonment after expiry of 90 days would amount to unlawful detention violating the fundamental right under Article 21 of the constitution of India. According to the learned Counsel, the offence was registered on 25. 10. 2004 and after expiry of period of 90 days the criminal Court cannot authorise the detention of the accused in custody notwithstanding any observation made by the High Court. He placed reliance on hussainara Khatoon v. State of Bihar, AIR 1979 SC 1377 = (1980) 1 SCC 108 and dr. Bipin Shantilal Panchal v. State of gujarat, (1996) 1 SCC 718 = 1996 (1) ald (Crl.) 149 (SC), in support of his contention. ( 5 ) PER contra, the learned Additional public Prosecutor while opposing this petition submits that the provisions of Section 167 (2) cr. P. C. , only fetter the jurisdiction of the magistrate to authorise the detention of an accused person beyond a period of 90 days and while considering the request of the accused for bail under Section 167 (2) Cr. P. C. , the provisions of Section 437 of the Code cannot be ignored. P. C. , only fetter the jurisdiction of the magistrate to authorise the detention of an accused person beyond a period of 90 days and while considering the request of the accused for bail under Section 167 (2) Cr. P. C. , the provisions of Section 437 of the Code cannot be ignored. He would also urge that the petitioners herein along with other accused moved Criminal Petition No. 87 of 2005 before this Court and having obtained liberty from this Court to move petition for bail after filing of the charge- sheet they cannot now turn around and impeach the discretion exercised by the learned HI Additional Sessions Judge, thirupathi. ( 6 ) ON the merits of the case for the purpose of granting bail under Section 437 read with Section 439 Cr. P. C. , this Court does not see any strong reasons to disagree with the order dated 31. 1. 2005 in Criminal petition No. 87 of 2005. For the same reasons expressed therein, this petition is liable to be dismissed. However, this Court having regard to the submissions made by the learned Counsel for the petitioners are not able to countenance the point raised by the petitioners herein. ( 7 ) THE power of the criminal Court as well as this Court to grant bail is neither unfetted nor unchallenged. The power of the Court to release an accused on bail is subject to the provisions of Sections 436 to 450 Cr. P. C. These provisions appear in chapter XXXIII titled as "provisions as to bail and Bond". For the purpose of this case a reference to Section 438 Cr. P. C. , which enables a Court to direct the police to release an accused in the event of his arrest is not necessary. Similarly, a reference to Section 436 Cr. P. C. , is also not necessary as the same deals with bail to a person accused of a bailable offence. A reference to sections 437 and 439 Cr. P. C. , may however be made supplying due emphasis to those sub-sections and clauses of the main provision. 437. Similarly, a reference to Section 436 Cr. P. C. , is also not necessary as the same deals with bail to a person accused of a bailable offence. A reference to sections 437 and 439 Cr. P. C. , may however be made supplying due emphasis to those sub-sections and clauses of the main provision. 437. When bail may be taken in case of non- bailable offence : (1) When any person accused, of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer-in- charge of a police station or appears or is brought before a Court other than the High court or Court of Session, he may be released on bail but (i) such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life; (ii) such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a non-bailable and cognizable offence: provided that the Court may direct that a person referred to in clause (i) or clause (ii) be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm; provided FURTHER that the Court may also direct that a person referred to in clause (ii) be released on bail if it is satisfied that it is just and proper so to do for any special reason: provided ALSO that the mere fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by the court. (2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial as the case may be, that there are not reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt the accused shall, subject to the provisions of Section 446a and pending such inquiry, be released on bail, or, at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided. (3) When a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code, 1860 (45 of 1860) or abetment of, or conspiracy or attempt to commit, any such offence, is released on bail under sub-section (1), the Court may impose any condition which the Court considers necessary (a) in order to ensure that such person shall attend in accordance with the conditions of the bond executed under this Chapter, or (b) in order to ensure that such person shall not commit an offence similar to the offence of which he is accused or of the commission of which he is suspected, or (c) otherwise in the interest of justice. (4) An officer or a Court releasing any person on bail under sub-section (1) or subsection (2), shall record in writing his or its reasons or special reasons for so doing. (5) Any Court which has released a person on bail under sub-section (1) of subsection (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody. (6) If, in any case triable by a Magistrate, the trial of a person accused of any non- bailable offence is not concluded within a period of sixty days from the first date fixed for taking evidence in the case, such person shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, the magistrate otherwise directs. (7) If, at any time after the conclusion of the trial of a person accused of a non-bailable offence and before judgment is delivered the court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence, it shall release the accused, if he is in custody, on the execution by him of a bond without sureties for his appearance to hear judgment delivered. 439. Special powers of High Court or Court of Session regarding bail : (1) A High court or Court of Sessions may direct (a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-section (3) of Section 437, may impose any condition which it considers necessary for the purpose mentioned in that sub-section; (b) that any condition imposed by a magistrate when releasing any person on bail be set aside or modified: provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice. (2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody. ( 8 ) AN analysis of Section 437 of g. P. C. , would show that any arrested person may be released on bail when such person is brought before any criminal Court, "other than the High Court or Court of Session". In the hierarchy of criminal Courts, the court of Judicial Magistrate of First Class (apart from the Court of Executive magistrate in certain other cases) is the court of primary jurisdiction, though certain offences are exclusively triable by the court of Session. When sub-section (1) of section 437 requires the criminal Court "other than the High Court or Court of session" to release the accused on bail, the power so conferred has to be necessarily within the ambit of Section 437 of Cr. P. C. Section 437 has seven sub-sections. When sub-section (1) of section 437 requires the criminal Court "other than the High Court or Court of session" to release the accused on bail, the power so conferred has to be necessarily within the ambit of Section 437 of Cr. P. C. Section 437 has seven sub-sections. Subsection (1) does not permit the criminal court other than the High Court or Court of Session to release the accused if such person is suspected of commission of an offence punishable with death or imprisonment for life, if the Court finds reasonable grounds for believing that the accused is guilty of the offence punishable with death or life imprisonment. In respect of other offences, if the accused had been previously convicted of an offence punishable with death imprisonment for life or imprisonment for seven years or more or accused had been previously convicted on two or more occasions of a non-bailable and cognizable offence, the Court of Judicial Magistrate of first Class cannot grant bail. Though as per first proviso to sub-section (1) of section 437, the Court may favourably consider the case of an accused aged below 16 years or a woman or a sick person. Sub-sections (2) to (7) of Section 437 of cr. P. C. , deal with different situations regarding different types of accused and the extent of the power of the Court to release such persons on bail. Sub-section (5) of section 437 of Cr. P. C. , empowers the Court granting the bail to an accused to cancel the bail and direct the arrest of such person if it considers necessary. Section 437 (6) of Cr. P. C. , deals with special situation only in relation to an accused suspected of commission of a non-cognizable offence triable by Magistrate. It is to the effect that if a person, who is triable by Magistrate, is in custody during the period of sixty days from the date fixed for taking evidence and the trial is not concluded within sixty days, such person shall be released on bail by the Magistrate. This is again is not inflexible rule and for reasons to be recorded in writing, the Magistrate may refuse to release the accused facing a charge of committing an offence triable by magistrate. ( 9 ) SECTION 437 (1) of Cr. P. C, and other provisions in sub-sections (2) to (7) of section 437 of Cr. This is again is not inflexible rule and for reasons to be recorded in writing, the Magistrate may refuse to release the accused facing a charge of committing an offence triable by magistrate. ( 9 ) SECTION 437 (1) of Cr. P. C, and other provisions in sub-sections (2) to (7) of section 437 of Cr. P. C. , it is interesting to note - in relation to a criminal Court, "other than the High Court or Court of Session", the mandate requiring the Magistrate to release the accused on bail in the event of trial not being completed within sixty days also is not in relation to the High Court or court of Session. Further, the requirement of releasing the accused on bail in the event of the police not completing investigation within sixty days or ninety days as the case may be is also very conspicuous by its absence in Section 437 of Cr. P. C. The power of the High Court or Court of Session regarding bail is found in Section 439 of cr. P. C. This power, as per the text of section 439 of Cr. P. C. , is absolute power and is only subject to the condition in section 439 (l) (a) of Cr. P. C. That is to say, if a person is accused of an offence as specified in Section 437 (3) of Cr. P. C. , the high Court may impose any condition which it considers necessary for the purpose mentioned in Section 437 (3) of Cr. P. C. Section 439 of Cr. P. C. , does not impose any restrictions as contained in Section 437 (1) of Cr. P. C. But while exercising power under Section 439 of Cr. P. C. , the High Court or Court of Session cannot ignore the circumstances in which and subject to which and the conditions contained in all the subsections of Section 437 of Cr. P. C. ( 10 ) AS noticed earlier, the provisions of Sections 436 to 450 as to bail and bonds appear in Chapter XXXIII of Cr. P. C. Chapter XII of Cr. P. C. , deals with the provisions regarding information to the police and their powers to investigate. In this Chapter, we find Sections 154 to 176. These provisions contain guidelines intended to act as check on the powers exercised by the investigating police. P. C. Chapter XII of Cr. P. C. , deals with the provisions regarding information to the police and their powers to investigate. In this Chapter, we find Sections 154 to 176. These provisions contain guidelines intended to act as check on the powers exercised by the investigating police. The anxiety of the legislature is to see that the police complete investigation into an allegation of commission of cognizable offence, production of accused expeditiously, filing of a report of investigation expeditiously and filing of a charge-sheet expeditiously. The endeavour is to see that the police do not unnecessarily become instrumental in detaining a citizen in preinvestigation and pre-trial detention in custody as the same would impinge upon the right of the citizen to life and liberty. In this background, we may refer Section 167 of Cr. P. C. , which reads as under: 167. Procedure when investigation cannot be completed in twenty four hours : (1) 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 if he is not below the rank of Sub-Inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate. (2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has no 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; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction: provided that, (a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorize the detention of the accused person in custody under this paragraph for a total period exceeding (i) ninety days, where the investigation relates to an offence punishable will death, imprisonment for life of imprisonment for a term of not less than ten years: (ii) sixty days, where the investigation relates to any other offence, 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, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter xxxiii for the purpose of that Chapter; b) no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him; (c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police. Explanation I:for the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail. Explanation II :if any question arises whether an accused person was produced before the Magistrate as required under paragraph (b), the production of the accused person may be proved by his signature on the order authorizing detention. Explanation II :if any question arises whether an accused person was produced before the Magistrate as required under paragraph (b), the production of the accused person may be proved by his signature on the order authorizing detention. (2a) 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 a Judicial Magistrate is not available , transmit to the nearest Executive magistrate, on whom the powers of a Judicial magistrate or Metropolitan Magistrate have been conferred, a copy of the entry in the diary hereinafter prescribed 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 released on bail except where an order for further detention of the accused person has been made by a magistrate competent to make such order; and, where an order for such further detention is made, the period during which the accused person was detained in custody under the orders made by an Executive magistrate under this sub-section, shall be taken into account in computing the period specified in paragraph (a) of the proviso to sub-section (2): provided that before the expiry of the period aforesaid, the Executive Magistrate shall transmit to the nearest Judicial magistrate the records of the case together with a copy of the entries in the diary relating to the case which was transmitted to him by the Officer-in-Charge of the Police station or the Police Officer making the investigation, as the case may be. (3 ). . . . . . . . . (4 ). . . . . . . . . . (3 ). . . . . . . . . (4 ). . . . . . . . . . (5) If in any case triable by a Magistrate as a summons case, the investigation is not concluded within a period of six months from the date on which the accused was arrested, the Magistrate shall make an order stopping further investigation into the offence unless the officer making the investigation satisfied the Magistrate that for special reasons and in the interests of justice the continuation of the investigation beyond the period of six months is necessary. (6) Where any order stopping further investigation into an offence has been made sub-section (5), the Sessions Judge may, if he is satisfied, on an application made to him or otherwise, that further investigation into the offence ought to be made, vacate the order made under sub-section (6) and direct further investigation to be made into the offence subject to such directions with regard to bail and for other matters as he may specify. ( 11 ) A reading of Section 167 of Cr. P. C, would show that it casts the duty on the magistrate before whom the accused is produced. While ordering the detention of the accused in custody, the Magistrate is given power to do so for a period not exceeding fifteen days at a time. However, the period of detention in the case of a person accused of an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years cannot exceed ninety days and such period cannot exceed sixty days in other offences. By reading 167 (2) of Cr. P. C. , it is not possible to accept that it would confer any right on the person to get an order of release on bail as a matter of course when the Police fail to complete investigation. Be it noted, the purpose of detaining an accused in custody is to enable the police to complete investigation without unnecessary interference and also with a view to see that the same accused would not indulge in other crime. Therefore, the Parliament thought it fit to cast a duty on the Magistrate while passing an order of detention pending investigation. As per section 167 (2) of Cr. Therefore, the Parliament thought it fit to cast a duty on the Magistrate while passing an order of detention pending investigation. As per section 167 (2) of Cr. P. C. , it is the duty of the Magistrate to inform the accused that he is entitled to apply for bail before appropriate court having regard to a situation that the police did not complete investigation and file charge-sheet within sixty/ninety days. Section 167 (2) of Cr. P. C. , does not enable the criminal Court to automatically release the accused in such an event nor the same confers a right on the accused. ( 12 ) IN Hussainara Khatoon v. State of bihar (supra), the Supreme Court laid down as under: when an undertrial prisoner is produced before a Magistrate and he has been in detention for 90 days or 60 days, as the case may, the Magistrate must, before making an order of further remand to judicial custody, point out to the undertrial prisoner that he is entitled to be released on ball. The state Government must also provide at its own cost a lawyer to the undertrial prisoner with a view to enable him to apply for bail in exercise of his right under proviso (a) to sub-section (2) of Section 167 and the magistrate must take care to see that the right of the undertrial prisoner to the assistance of a lawyer provided at State cost is secured to him and he must deal with the application for bail in accordance with the guidelines laid down by us in our Order dated 12th February, 1979. We hope and trust that every Magistrate in the country and every State Government will act in accordance with this mandate of the Court. This is the constitutional obligation of the state Government and the Magistrate and we have no doubt that if this is strictly carried out, there will be considerable improvement in the situation in regard to undertrial prisoners and there will be proper observance of the rule of law. ( 13 ) IN Dr. This is the constitutional obligation of the state Government and the Magistrate and we have no doubt that if this is strictly carried out, there will be considerable improvement in the situation in regard to undertrial prisoners and there will be proper observance of the rule of law. ( 13 ) IN Dr. Bipin Shantilal Panchal v. State of Gujarat (supra), the Supreme Court dealing with a case under Narcotic Drugs and Psychotropic Substances Act, 1985, made the following observations: whether the accused who was entitled to be released on bail under proviso to subsection (2) of Section 167 of the Code, not having made an application when such right had accrued, can exercise that right at a later stage of the proceeding, has been examined by a Constitution Bench of this court in the case of Sanjay Dutt v. State through CBI, (1994) 5 SCC 410 = 1994 scc (Cri) 1433) and it has been said: (SCC p. 444, Para 53) the indefeasible right of the accused to be released on bail in accordance with section 20 (4) (bb) of the TADA Act read with Section 167 (2) of the Code of Criminal procedure in default of completion of the investigation and filing of the challan within the time allowed, as held in Hitendra Vishnu thakur, (1994) 4 SCC 602 = 1994 SCC (Cri.) 1087, is a right which enures to, and is enforceable by the accused only from the time of default till the filing of the challan and it does not survive or remain enforceable on the challan being filed. If the accused applied for bail under this provision on expiry of the period of 180 days or the extended period, as the case may be, then he has to be released on bail forthwith. The accused, so released on bail may be arrested and committed to custody according to the provisions of the Code of Criminal Procedure the right of the accused to be released on bail after fling of the challan, notwithstanding the default in filing it within the time allowed, is governed from the time of filing of the challan only by the provisions relating to the grant of bail applicable at that stage. Therefore, if an accused person fails to exercise his right to be released on bail for the failure of the prosecution to file the charge-sheet within the maximum time allowed by law, he cannot be contend that he had an indefeasible right to exercise it at any time notwithstanding the fact that in the meantime the charge-sheet is filed. But on the other hand if he exercises the right within the time allowed by law and is released on bail under such circumstances, he cannot be rearrested on the mere filing of the charge-sheet, as pointed out in Aslam babalal Desai v. State of Maharashtra, (1992) 4 SCC 272 = 1992 SCC (Cri) 870. ( 14 ) A perusal of the above two extracts from the Apex Judgments would not even suggest remotely that the accused has a right to get an order of release on bail in the eventuality of the police not completing the investigation in sixty/ninety days. According to the dicta laid down by the supreme Court, it shall be the duty of the magistrate to inform the accused when such accused is brought before the Court for the purpose of extending remand, that such an accused is entitled to apply for bail in exercise of right under proviso (a) to subsection (2) of Section 167 of Cr. P. C. The right of an accused to apply for bail after sixty/ninety days of remand, AS indefeasible right provided that the substantive provision, dealing with granting of bail permits the release on bail. Thus, Section 167 (2) of cr. P. C. , confers a procedural right on the accused to move for bail whereas sections 437 and 439 of Cr. P. C. , deal with substantive right of accused for bail. In either case, it cannot be said that an accused can get an order of bail as a matter of course or in a routine manner de hors the provisions of Section 437 (1) of Cr. PC. , assuming that the person is alleged to have committed an offence punishable with death or life imprisonment. In either case, it cannot be said that an accused can get an order of bail as a matter of course or in a routine manner de hors the provisions of Section 437 (1) of Cr. PC. , assuming that the person is alleged to have committed an offence punishable with death or life imprisonment. Even in such a case, the court competent to release an accused on bail has to consider every case on its own merits and it would not be correct to say that an accused would be entitled to bail the moment police failed to complete investigation within sixty/ninety days as the case may be. ( 15 ) IN Natabar Parida v. State of orissa, AIR 1975 SC 1465 , the Supreme court for the first time considered the scope of Section 167 of Cr. P. C. , 1973. After referring to Section 344 of the Code of criminal Procedure, 1898, the Supreme Court ruled as under: in serious offences of criminal conspiracy murders, dacoities, robberies by inter-state gangs or the like. It may not be possible for the police, in the circumstances as they do exist in the various parts of our country, to complete the investigation within the period of 60 days. Yet the intention of the legislature seems to be to grant no discretion to the Court and to make it obligatory for it to release the accused on bail. Of course, it has been provided in proviso (a) that the accused released on bail under Section 167 will be deemed to be so released under the provisions of Chapter XXXIII and for the purposes of that Chapter. That may empower the Court releasing him on bail, it if considers necessary so to do, to direct that such person be arrested and committed to custody as provided in sub-section (5) of Section 437 occurring in Chapter XXXIII. It is also clear that after the taking of the cognizance the power of remand is to be exercised under Section 309 of the New Code. But if it is not possible to complete the investigation within a period of 60 days then even in serious and ghastly types of crimes the accused will be entitled to be released on bail. But if it is not possible to complete the investigation within a period of 60 days then even in serious and ghastly types of crimes the accused will be entitled to be released on bail. Such a law may be a "paradise for the criminals ", but surely it would not be so, as sometimes it is supposed to be because of the Courts. (emphasis supplied) ( 16 ) IN Rajnikant v. Intelligence Officer, narcotic Control Bureau, New Delhi, AIR 1990 SC 71 = 1990 Cri. LJ 62, the Supreme court held that the bail granted under Section 167 (2) of Cr. P. C. , by Magistrate may be cancelled if the Investigation reveals the commission of serious offence. The Supreme court held as under: an order for release on bail under proviso (a) to Section 167 (2) may appropriately be termed as an order-on-default. Indeed, it is a release on bail on the default of the prosecution in filing charge-sheet within the prescribed period The right to bail under Section 167 (2) proviso (a) thereto is absolute. It is a legislative command and not Court s discretion. If the investigating agency fails to file charge-sheet before the expiry of 90/60 days, as the case may be, the accused in custody should be released on bail. But at that stage, merits of the case are not to be examined. Not at all. In fact, the Magistrate has no power to remand a person beyond the stipulated period of 90/60 days. He must pass an order of bail and communicate the same to the accused to furnish the requisite bail bonds. The accused cannot, therefore, claim any special right to remain on bail. If the investigation reveals that the accused has committed a serious offence and charge- sheet is filed, the bail granted under proviso (a) to Section 167 (2) could be cancelled. ( 17 ) A reading of the two judgments of the Supreme Court as above, would show that the Magistrate has no discretion. If investigation is not completed within a period of 60/90 days as the case may be, it is the duty of the Magistrate to inform the accused that he has a right to be released on bail provided the accused furnishes adequate security. If investigation is not completed within a period of 60/90 days as the case may be, it is the duty of the Magistrate to inform the accused that he has a right to be released on bail provided the accused furnishes adequate security. After filing the charge-sheet, however, it is always open for the learned magistrate to cancel the bail granted under Section 167 (2) of Cr. PC. It must be remembered, as noticed in the beginning of this order, Section 437 of Cr. P. C. , deals with the power of the Criminal Court other than the High Court and the Sessions court. Therefore, the mandatory provision under Section 167 (2) of Cr. P. C. , which controls the discretion or otherwise of the learned Magistrate, may not - it is doubtful; control the discretion exercised by the High court or the Sessions Court. ( 18 ) IN the present case, this Court while dismissing the application for bail gave liberty to the petitioners but move for bail after filing of the charge-sheet. That only means that this Court refused to consider any application for bail unless charge-sheet is filed. Impliedly, the direction also binds the learned Sessions Court and the learned Sessions Judge could not have taken a view different from the High court s view. In that view of the matter, the criticism of the order of the learned sessions Judge by the learned Counsel fa the petitioners is not well placed. ( 19 ) IN the result, for the above reasons, this criminal petition is dismissed as devoid of merit.