Pandi and Others vs State

Maheswaran, J.—This Criminal Miscellaneous Petition is to set aside the order of the learned Judicial Second Class Magistrate, Nilakottai,

refusing to release the petitioners on bail.

From the short order, it is seen that the offences alleged to have been committed by the petitioners are u/s 302 I.P.C. The petitioners filed an

application on 9th October, 1979, before the Judicial Second Class Magistrate, Nilakottai, in Crl. M.P. No. 1448 of 1979, praying for bail u/s

167(2)(a) Cri. P.C., as the petitioners were in custody for over a period of ninety days and the charge-sheet has not been laid. The court ordered

notice to the respondent Inspector of Police, Sholavandan and fixed the hearing on 10th October, 1979. But, in the meanwhile, on 9th October,

1979, itself, the charge-sheet was filed. The learned Magistrate dismissed the application on 10th October, 1979 on the ground that as the charge

sheet has been filed, there was no reason to invoke the provisions of Section 167(2). It is against that order that the petitioners have filed this

application invoking the inherent jurisdiction of this Court u/s 482, Cr.P.C.

Section 167(2), Cr. P.C. is a section that is newly introduced and which is not found in the earlier Code. What is contended for the petitioners

by their learned Counsel is that the detention of the applicants was illegal in view of the provisions contained in Section 167 Cr. P.C. and that when

they filed the application for bail u/s 167(2), the Magistrate ought to have at once released the petitioners on bail instead of issuing a notice to the

Inspector of Police, the respondent. It is not clear from the records that are available on what dates the petitioners were produced before the

Magistrate and whether orders of remand were passed by the learned Magistrate. But the question is whether the detention, which is said to be

illegal, would entitle the petitioners to be released on bail, I am unable to locate any provision in Section 167(2) which entitles the petitioners to bail

merely because the detention of the applicants at the stage of Section 167 Cr. P.C. was illegal. In this case, it should be noted that the application

for bail u/s 167(2) was filed on 9th October, 1979. The learned Magistrate gave notice to the respondent-Police, who, obviously on receipt of that

notice, has filed the charge-sheet on the same evening. The petition which was posted on the next day i.e., 10th October, 1979, was dismissed, as

the charge sheet was filed and as the Magistrate could no longer exercise the rights u/s 167 Cr. P.C. It is pointed out by Mr. Arunachalam that

where investigation is not over even after 60 or 90 days, as the case may be, the accused would be entitled to be released on bail and though such

a law may be a ''paradise for the criminals'', the courts are bound to obey it ''under the command of the legislature''. The question is whether the

Magistrate can act u/s 167(2), Cr. P.C. when a charge-sheet is filed. There can be no illegality or irregularity in the Magistrate ordering notice in an

application filed u/s 167(2) though such a notice may not be contemplated by the Code. The respondent-Police filed the charge sheet on the very

same evening, and the Magistrate dismissed the petition on the next day to which date the hearing of the petition was adjourned. In Umedsinh

Vakmatji Jadeja and Others Vs. The State of Gujarat, a Division Bench of Gujarat High Court in dealing with such a situation as the one before us,

observed thus -

Therefore, if an application is made u/s 167 for bail by an accused person who is detained in custody pending investigation for a period exceeding

60 days, he is entitled to bail. But if pending such an application for bail a charge sheet is filed in the court, the investigation comes to an end and so

also the power of the Magistrate granting bail to the accused under the provisions of Section 167(2). The Magistrate then can exercise power of

granting bail only u/s 437. The Magistrate to whom an application for bail u/s 167(2) is made has to take the subsequent event into consideration -

the subsequent event being the filing of the charge-sheet.

I adopt these observations with respect and hold that the moment the charge-sheet is filed, the proviso to Section 167(2), Cr. P.C. will cease to

operate. The Magistrate therefore was correct in dismissing the application. This criminal miscellaneous petition is dismissed.