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2007 DIGILAW 1483 (PAT)

Jakir Hussain, Sk. Irshad v. State Of Bihar

2007-09-10

NAVIN SINHA

body2007
Judgment 1. Heard learned Counsel for the petitioner, the State and opposite party no. 1. 2. The prayer in this application is for cancellation of the compulsive statutory bail granted to the opposite party no. 1 under Sec. 167(2) of the Code of Criminal Procedure in a Police case under Sec. 364A and other provisions of the Penal Code consequent to the failure of the Police to submit charge-sheet within 90 days. 3. The petitioner is a named accused in the First Information Report. 4. The law in this regard stands settled. The mere submission of a charge- sheet subsequently cannot be a ground for cancellation of the compulsive statutory bail granted earlier in absence of charge-sheet. However, if after grant of statutory bail charge-sheet is submitted based on materials collected during investigation pointing to the guilt and complicity of the accused the position is entirely different. 5. In AIR 1993 SC 1 , (Aslam Baba Lal Desai vs. State of Maharashtra) the Supreme Court by majority judgment at para- graph 14 in the relevant extract held: "Since Sec. 167 does not empower cancellation of the bail, the power to cancel the bail can only be traced to Section 437(5) or 439(2) of the Code. The bail can then be cancelled on considerations which are valid for cancellation of bail granted under Sec. 437(1) or (2) or 439(1) of the Code.....We are therefore of the view that once an accused is released on bail under Section 167(1) he cannot be taken back in custody merely on the filing of a charge- sheet but there must exist special reasons for so doing besides the fact that the charge-sheet reveals the commission of a non-bailable crime." The Court then went on to hold in the relevant extract in paragraph 15: "We are, therefore, of the view that unless there are strong grounds for cancellation of the bail the bail once granted cannot be cancelled on mere production of the charge-sheet". Concurring with the majority view K. Ramaswami, J. by his additional reason at paragraph 40 of the judgment in the relevant extract held: "But during investigation some strong prima facie evidence and gravity and magnitude of the crime or the manner in which the crime was committed and other appending circumstances may be relevant as prima facie ground to have a fresh look to cancel the bail." 6. In the present case it is not in controversy from the case diary and the materials during investigation that apart from the informant and other witnesses corroborating the allegations, the victim on his return has specifically named and identified the opposite party no. 1 as the person armed and who abducted him. 7. In the serious nature of the accusation, this Court considers it proper to arrive at the conclusion that sufficient ground, as discussed above, has been made out to cancel the statutory compulsive bail granted to the opposite party no. 1. The order dated 13.1.2005 of the Sessions Judge, West Champaran at Bettiah is set aside. The opposite party no. 1 is directed to surrender within two weeks. 8. If an application for regular bail is preferred by him, the same shall be considered by the court below on its own merits on basis of the materials that may be available during investigation. The cancellation of the compulsive bail by this Court shall not in any manner inhibit or restrict the independent application of mind by the court below to such application for regular bail.