Madaba Ramaiah vs State of Andhra Pradesh

This revision petition is directed against the order of the II Additional Munsif Magistrate, Gurasala, u/Ss. 397 and 401, Cr.P.C. by which the learned Magistrate cancelled the bail granted to the petitioner on 29-7-1991.

The petitioner along with his son were produced before the learned Magistrate on 30-4-1991 in Cr. No. 42/91 of Rentachinthala Police Station for an alleged offence under Ss. 324, 302 read with 34, IPC. The petitioner was remanded to judicial custody. As the prosecution has not filed the charge-sheet till 28-7-1991 i.e., 90th day after remand, on 29-7-1991 bail was granted on an application filed by him as the prosecution failed to file a charge-sheet within the prescribed time of 90 days as contemplated u/S. 167(2), Cr.P.C. Subsequently on the same day at about 5-30 p.m. the prosecution has filed a charge-sheet and on the next day they filed an application for cancellation of bail.

The learned Magistrate after hearing both sides cancelled the bail earlier granted to the petitioner on the ground that the prosecution has filed the charge-sheet on the 91st day, the 90th day being Sunday and the offence alleged against the petitioner is of a serious nature.

Sri T. Bali Reddy, the learned Counsel for the petitioner contends that when once bail has been granted under the provisions of S. 167(2), Cr.P.C. the Court has no power to either cancel or review the said order and the power to cancel bail was vested only with the Session Court or the High Court under S. 437(5), Cr.P.C. He also contended that as the charge-sheet was filed at 5-30 p.m. on 29-7-1991 i.e., beyond the working hours of the Court it could not be treated as one filed within ninety days and therefore the learned Magistrate erred in cancelling the bail treating the charge-sheet as one filed within the prescribed time at 90 days.

In support of his contention, he relied upon S. 362, Cr.P.C. which reads as follows :

"362. Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error."

It is clear from the above provision that the Court has got power to correct a clerical or arithmetical error. In this connection it is necessary to read the proviso to sub-sec. (2) to S. 167, Cr.P.C. which is as follows :

"167. (1) & (2) xx xx xx xx xx

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 authorise 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 with death, imprisonment for life or imprisonment for a term of not less than ten years; (ii) sixty days where the investigation relates to any other offences, 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."

In this case, the offence alleged against the petitioner is u/Ss. 324 and 302 read with S. 34, IPC. As the charge-sheet has not been filed within 90 days, he was released on bail. When he was so released it must be held that the release is only on the technical ground. There are decisions to the effect that if an accused person was so released on bail u/S. 167, Cr.P.C. for the failure of the prosecution to file a charge-sheet within 60 days or 90 days, as the case may be, the person so released on bail shall be deemed to be so released under the provisions of Chapter XXXIII.

In Kallam Chinnaiah v. State of A.P., (1979) 2 Andh WR 375, Punnayya, J., in similar circumstances, held :

"Cancellation of bail u/s 437(5), Cr.P.C. can be ordered by the Court which has released the accused on bail only on the grounds that the accused on bail committed misconduct or misuse of the terms of the bail bond or that the accused is tampering with the evidence or is trying to abscond after the charge-sheet has been filed. In the absence of any such grounds, the Magistrate is not competent to take the accused into custody, cancelling the bail on the mere ground that the charge-sheet has been filed."

The Supreme Court in Bashir and Others Vs. State of Haryana, , also observed that the filing of a challan subsequent to release is not a valid ground for cancellation of bail.

In the case on hand the 90th day from the date of production of the accused, happened to be a holiday being Sunday. If the 90th day or 60th day from the date of production of the accused happened to be a holiday, the prosecution can file a charge-sheet on the next working day. In this case also the prosecution has got a right to file the charge-sheet on 29-7-1991 but only during the course of the working hours of the Court. Since the charge-sheet has been filed beyond the working hours of the Court i.e., at 5.30 p.m. on the 91st day the learned Magistrate was not justified in treating the charge-sheet as having been filed on 29-7-1991 during the working hours of the Court and cancel the bail. It is for the reason, the petitioner is entitled for the benefit of the proviso to sub-section (2) of Section 167, Cr.P.C.

It is to be observed that the Magistrate should not entertain an application for bail on the 60th day or 90th day, as the case may be, in the early hours of the day itself. They shall have to wait till the end of the working hours or in fairness it is better that the application can be posted for disposal on the next day or some other day. The action of the Magistrate in passing an order on the early hours on the 90th day created this situation. The mere fact that notice has been given to the APP and granted bail after hearing him does not mean that the action that has been taken in a valid act particularly the prosecution has got a right to file the same on the next working day if the last day happens to be a holiday. When an accused person is released on the ground that the charge-sheet has not been filed, the Court has no power to correct it u/s 362, Cr.P.C. on the ground that there was some defect in granting bail. There is no provision in the Code for cancellation of bail in the case of persons that were released under the proviso to sub-section (2) of Section 167, Cr.P.C.

Since the release of the petitioner is on technical grounds i.e., non-filing of a charge-sheet within 90 days, and as there is no provision for cancellation of bail under such circumstances, it will not come in the way of the investigating agency to arrest him again, but the Court has no power to cancel the bail when once it has applied its mind and granted bail on the ground that the charge-sheet has not been filed on the ninetieth day.

With the above observation, the revision case is allowed and the order of the learned Magistrate granting bail shall stand.

Revision allowed.