Ram Chander vs State of Haryana

S.K. Jain, J.

Ram Chander and Balbir Singh, petitioners herein, were arrested on 12.5.1992 in case FIR No. 46 dated 11.5.1992 under Sections 306, 498A, 304B, Indian Penal Code registered in Police Station Ding. An application was moved on their behalf for their release on bail. Vide his order dated 14.4.1992, Annexure P4 Judicial Magistrate Ist Class, Sirsa, released them on bail.

Vide his order dated 27.8.1992, the learned Magistrate recalled his order dated 14.8.1992 and directed the detention of both the accused, petitioners herein, in judicial custody. The operative part of his order reads as under :

"xx xx xxx xx xx

Accused were admitted to bail vide order dated 14.8.1992 on the sole plea of Section 167(2) proviso of the Code of Criminal procedure. On 19.8.1992 facts were brought before the Court that challan had been presented to the Court on 8.8.1992. Consequently, matter of concealment of facts was reported to Ld. Distt. and Sessions Judge vide order dated 19.8.1992 through memo No. 399 dated 19.8.1992 and Ld. District and Sessions Judge was pleased to institute an inquiry vide memo No. 3167 dated 25.8.1992 so as to fix responsibility of officer at fault. As only eight days gap was there for appearance of accused notice was not deemed necessary to be served upon them for showing cause as to why the order be not recalled. Since both the accused have put up appearance today and the ground for bail under Section 167 Cr.P.C. was nonexistent even on that date they were admitted to bail but for concealment, this Court continues to assume power to commit the accused to judicial custody. Since the concealment of facts have come to notice, the ground on hand is not available to the accused. Hence their bail order dated 14.8.1992 is recalled to that extent.

Both the accused be detained in judicial custody and be produced on 10.9.1992 for checking up of copies of challans being supplied herewith."

Feeling aggrieved, the petitioner has filed Criminal Revision on 5.9.1992 which was heard and dismissed by Shri S.R. Bansal, Additional Sessions Judge, Sirsa, vide his judgment dated 10.9.1992. This judgment of learned Additional Sessions Judge, Sirsa dated 10.9.1992 alongwith the judgment of the learned Judicial Magistrate, Ist Class, Sirsa dated 27.8.1992 and FIR No. 46 dated 11.5.1992 under Sections 306, 498A and 304B Indian Penal Code are sought to be quashed through this petition under Section 482 of the Code of Criminal Procedure.

I have heard the learned Counsel for the parties. The following facts are not disputed :

(i) that the petitioners were arrested n 12.5.1992;

(ii) that they were bailed out on 14.8.1992, in case of nonpresentation of challan within 90 days.

(iii) that Criminal Ahalmad attached with the Court of Judicial Magistrate, Ist Class, Sirsa, for the first time on 19.8.1992 had put up the challan before the Magistrate and had brought to his notice that the challan had been forwarded on 8.8.1992 and that on account of rush of work he could make not requisite entry in the relevant register; and

(iv) the vide his order dated 27.8.1992 the learned Judicial Magistrate, Ist Class, Sirsa recalled his order dated 14.8.1992 without issuing notice to the accused.

From the above factors, it is evident that the petitioners having been arrested on 12.5.1992 had completed 90 days in Police custody on 13.8.1992 on which date they had been directed to be detained till 27.8.1992. This necessitated the filing of an application on behalf of the accused for their release on bail in view of the provisions of Section 167(2) Code of Criminal Procedure. Till the date neither the challan papers were put up before the Magistrate nor there was any entry of the said challan in the relevant register maintained by the Ahalmad of the Court. As a result thereof the Magistrate had released the accused on bail vide his order dated 14.8.1992. It was only on 19.8.1992 that the Ahalmed had put up the challan before the Magistrate and brought to his notice that the prosecution had forwarded the challan to the Court on 8.8.1992. It is, thus, evident that till 19.8.1992, the challan was not put up before the Magistrate. If the information supplied by the Ahalmad to the Magistrate to the effect that the challan had been forwarded by the prosecution on 8.8.1992 is taken to be true even then it can at the best be said that the challan was filed by the prosecution with the Ahalmad. So, the question would be as to whether the filing of the challan papers by the prosecution with the Ahalmad would tantamount to the presentation of the challan before the Magistrate. In similar circumstances, this Court in Het Ram v. The State, 1975 CLR 658, has held that even if the challan papers were left with the Ahalmad earlier, it was of no consequence and the only possible conclusion was that the challan was presented on the date it was actually put up before the Magistrate.

When the above ratio is applied to the facts of this case the only conclusion that can be arrived at is that the challan was presented on 19.8.1992, when it was actually up before the Magistrate. It is thus clear that the challan was not put up before the Magistrate before the expiry of 80 days from the arrest of the accused and, therefore, the learned trial Magistrate had rightly released the accused on bail vide his order dated 14.8.1992. The next question to be answered is as to whether the learned trial Magistrate could recall his order dated 14.8.1992.

On the plain reading of subsection (2) of Section 167 Criminal Procedure Code it becomes clear that the Magistrate to whom an accused person is forwarded under this Section, may authorise his detention for a term not exceeding fifteen days in the whole, and if the Magistrate had on 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. The Magistrate may authorise his detention beyond the period of 15 days if adequate grounds exist for doing so, but on Magistrate can authorise the detention of the accused persons in custody for a total period exceeding ninety day or 60 days as the case may be, pending upon the nature of the crime alleged to have been committed. The proviso to subsection (1) of Section 167 of the Code, therefore, fixes time limit within which the investigation must be completed and if the same is not completed within the said prescribed period, the accused has a right to be released on bail if he is prepared to and does furnish bail. Where a person is released on bail in such circumstances under subsection (2) of Section 167 Cr.P.C., such release must be deemed to be one under provisions in regard to bail and bonds.

In the present case, as stated earlier the petitioners were arrested on 12.5.1992. The Magistrate went on authorising their detention. Unfortunately, the investigation agency did not show urgency and did not complete the investigation within the maximum period prescribed by proviso to Section 167(1) and hence on the accused making an application for release on bail, the learned Magistrate having no alternative, directed them to be released on bail vide his order dated 14.8.1992. Undoubtedly this release was solely on account of the fact that the investigating agency had failed to complete the investigation within the maximum period prescribed by the proviso to Section 167(2) Cr.P.C. i.e. 90 days. This default on the part of the investigation agency enabled the accused to seek and secure their release on bail. The investigating agency submitted the chargesheet at a later date as already held in the earlier part of the judgment. On 19.8.1992 for the first time the Ahalmad had put up the challan papers before the learned Magistrate who had recalled his order dated 14.8.1992 releasing the accused on bail saying as under :

"xx xx xx xx xx

As only eight days gap was there for appearance of accused notice was not considered necessary to be served upon them for showing cause as to why the order has not recalled. Since both the accused have put up appearance today and the ground for bail under Section 167 Cr.P.C. was nonexistent even on that date they were admitted to bail but for concealment, this Court continues to assume power to commit the accused to judicial custody. Since the concealment of facts have come to notice, the ground of bail is not available to the accused. Hence their bail bonds are forfeited and cancelled and bail order dated 14.8.1992 is recalled to that extent.

xx xx xx xx."

Chapter XXXIII of the Code of Criminal Procedure comprises of Sections 436 to 450; of these Sections 437 and 439 have relevance so far as the question at issue is concerned. Subsections (1) and (2) of Section 437 insofar as they are relevant herein provide as under :

"437. When bail may be taken in case of nonbailable offence;

(1) When any person accused of, or suspected of, the commission of any nonbailable 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 Sessions, he may be released on bail, but

(i) such person shall not be so released if there appears reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment; or

(ii) such person shall not be released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a nonbailable and cognizable offence."

Before I proceed further to deal with the submissions made before me it is necessary to bear in mind the scheme of the Code insofar as it relates to investigation on the criminal law having been set in motion by the filing of an FIR. Section 41 empowers any police officer to arrest any person without an order from the Magistrate or without an order from the Magistrate or without a warrant in the case cataloged at clauses (a) to (i) of subsection (1) thereof. Section 57 next provides that the person arrested shall not be detained in custody by the police officer for a period longer than that which is reasonable but such period shall not exceed 24 hours exclusive of the time necessary for journey from the place of arrest to the Magistrate'';s court in the absence of a special order under Section 167 of the Code. Article 22(2) of the Constitution also provides that every person who is arrested and detained in custody shall be produced before the nearest Magistrate within a period of 24 hours of such arrest excluding the time necessary for journey from the place of arrest to this court of Magistrate and no such person shall be detained in custody beyond the said period without the authority of the Magistrate. Sections 15 enjoins on an officerincharge of a Police Station to recor every information relating to a cognizable or a noncognizance offence. Section 15 enjoins on an officerincharge of a police station to investigate any cognizance offence without a formal order of a Magistrate. Such an investigation can also be undertake, if empowered by a Magistrate under Section 190 of the Code. Section 157 prescribes the procedure for investigation with which I am not concerned. It is in this back drop that I must consider the scope and ambit of Section 167 of the Code. Except that once a person is arrested and detained in custody, the investigation must be completed as far as possible within 24 hours. If that is not possible, the arrested or detained person must be produced before the nearest Magistrate before the expirey of 24 hours excluding the time consumed during journey to the Magistrate''s Court. If the investigation cannot be completed within the said period of 24 hours, the Magistrate before whom the accused person is produced, whether he has or has not jurisdiction to try the case, can authorise this further detention in custody from time to time for a period not exceeding 15 days in the whole. If he has no jurisdiction to try the case or commit for trial and considers his further detention unnecessary, he must forward the accused to the Magistrate having jurisdiction. Such Magistrate may authorise the further detention of the accused person otherwise than in the custody of the police, beyond the period of 15 days if he is satisfied that adequate grounds exist for so doing. But even he cannot authorise the detention of the accused person in custody for a period exceeding 90 days if the investigation relates to an offence punishable with death imprisonment for life or imprisonment for a term of not less than 10 years, or 60 days where the investigation relates to any other offence, if the accused person is prepared to furnish bail. In other words, if on the expiry of the aforesaid period of 90/60 days, the accused person offers to furnish bail, the Magistrate is bound to release him on bail and such release shall be deemed to be under Chapter XXXIII of the Code. As pointed out earlier powers the Court to release an accused person on bail and at the same time also provide for cancellation of bail in certain eventualities. The legislative history of Section 167 shows that under the Code of 1898 the detention of an accused person in custody was not permitted for a term exceeding 15 days in the whole. This provision was breached by the convenient practice, albeit of doubtful legality, of filing `preliminary'' chargesheet and then seeking remand under Section 344 (Section 30 under the Code) which really did not come into play during investigation. But it was at the same time realised that in genuine and complex cases the investigation may not be completed within the short period of 15 days even if the investigation agency proceeds with the utmost sense of urgency. The Law Commission had recommended that the period be increased to 60 days but it was apprehended that while this increase would become a rule, yet the practice of doubtful legality of filing a preliminary charge sheet and seeking remand may not be curbed. The Joint Select Committee, therefore, felt that the maximum period within which the investigation must be completed must be provided in the statute and a right should be conferred on the accused for being released on bail if within the prescribed period the investigation is not completed. It, therefore, while retaining Subsection (2) of Section 167 in the same language introduced the proviso extracted earlier prescribing the outer limit within which the investigation must be completed. While conferring a right on the accused to be released on bail provisions of Chapter XXXIII of the Code. So far as Chapter XXXIII is concerned, Section 437 has since undergone an amendment w.e.f. 23rd September, 1980, vide Criminal Procedure (Amendment Act, 1980). It is not necessary to note the background of the amendment but it is sufficient to state that once bail has been granted under that provision if can be cancelled and the accused person can be arrested and committed to custody if the court considers it necessary so to do. That is the import of subsection (5) of Section 437 of the Code. The circumstances in which the court will exercise the power of the cancellation of bail have been set out in a number of judgments of the Supreme Court. At this stage it is sufficient to state that the Legislature has conferred on the court the power to grant bail as well as to cancel the same. Similarly subsection (1) of Section 437 empowers the High Court as well as the Court of Session to direct any accused person to be released on bail. Subsection (2) thereof provides that the High Court or the Court of Session may cancel the bail and direct that the person released on bail under subsection (1) be rearrested and recommmitted to custody. The circumstances under which the court will exercise the power conferred by Section 439(1) will have to be noticed later. This is brief is the scheme of the Code. In the backdrop of this scheme. I have to consider the question whether bail once granted under subsection (2) of Section 167 of the Code for failure to complete the investigation within the prescribed time can be cancelled on the mere ground that subsequently a chargesheet has been produced which discloses that the accused persons had committed a serious crime punishable with death or imprisonment for life or imprisonment for a term exceeding 10 years.

I may now notice the case law on the subject. In Bashir and others v. State of Haryana, 1978(1) SCR 585, the FIR lodged against eleven persons disclosed the commission of an offence punishable under Sections 302/149 Indian Penal Code. Eight of the eleven accused persons were released on bail but the bail applications of the remaining three persons were rejected on the ground that they were the authorizes of the fatal injuries. The High Court too declined to grant them bail. However, as the challan was not filed within the time prescribed the remaining three accused were also released on bail under Section 167(2) of the Code. Subsequently, the police filed the challan and thereupon all the eleven accused were committed to stand trial before the Session Court. An application for cancellation of the bail of the three accused persons whose bail was earlier rejected was moved on the ground that they were released under Section 167(2) for failure to file the challans within the prescribed time and since the challans were filed, the Court should cancel their bail. The Sessions Judge allowed the application and ordered cancellation of the bail on the ground that on the filing of the challans the Court had jurisdiction to do so. The High Court dismissed the appeal. Thereupon the Supreme Court was moved by special leave on the plea that once the bail is granted under Section 167(2) of the Code it cannot be cancelled the on the mere filing of a challan but could be cancelled only under Section 437(5) of the Code. The Supreme Court after examining the relevant provisions to which I have adverted hereinabove concluded as under :

"The power of the Court to cancel bail if it considers it necessary is preserved in cases where a person has been released on bail under Section 437(1) or (2) and these provisions are applicable to a person who has been released under Section 167(2). Under Section 437(2) when a person is released pending inquiry on the ground that there are not sufficient grounds to believe that the had committed a nonbailable offence, may be committed to custody by court which released him on bail if it is satisfied that there are sufficient grounds for so doing after inquiry is completed. As the provisions of Section 437(1), (2) and (5) are applicable to a person who has been released under Section 167(2) the mere fact that subsequent to him release a challan has been filed is not sufficient to commit him to custody. I this case the bail was cancelled and the appellants were ordered to be arrested and committed to custody on the ground that subsequently a chargesheet had been filed and that before the appellants were directed to be released under Section 167(2) their bail petitions were dismissed on merits by the Sessions Court and the High Court. The factor that before an order was passed under Section 167(2) the bail petitions of the accused were dismissed on merits is not relevant for the purposes of taking action under Section 437(5). Neither is it a valid ground that subsequent to release of the appellants a challan was filed by the police. The Court before directing the arrest of the accused and committing them to custody should consider it necessary to do so under Section 437(5). This may be done by the court coming to the conclusion that after the challan had been filed there are sufficient grounds that the accused had committed a nonbailable offence and that it is necessary that he should be arrested and committed to custody. It may also order arrest and committal to custody on other grounds such as tampering of the evidence or that his being at large is not in the interests of justice. But it is necessary that the Court should proceed on the basis that he has been deemed to have been released under Section 437(1) and (2)."

It will thus be seen that once an accused person has been released on bail by the thrust of the proviso to Section 167(2), the mere fact that subsequent to his release a challan has been filed is not sufficient to cancel his bail. In such a situation his bail can be cancelled only if consideration germane to cancellation of bail under Section 437(5) or for that matter Section 439(2) exist. That is because the release of a person Section 167(2) is equated to his release under Chapter XXXIII of the Code.

In Raghubir Singh and others v. State of Bihar, 1986(3) SCR 802, a similar question came up for consideration. In that case on the night between 29th/30th November, 1984 the Security Police Patrol on duty near Jogbani check post on the IndoNepal Border intercepted a speeding jeep with five occupants, one of them being a dismissed IPS officer. He was wanted. A detention order under the National Security Act was passed against him but could not be executed as he had gone underground. On being questioned they initially refused to disclose their identity and the manner in which they behaved aroused suspicion. One of the security officers however identified the IPS officer and on search of their baggage a substantial cash was found with one of the occupants. A number of documents and other articles were also seized which established the identity of the fleeing IPS officer. On the basis of the information derived from the seizure of various documents, cash, etc. an FIR was registered for under Sections 121A, 123, 124A, 153A, 165A, 505 an 120B Indian Penal Code and Section 5(2) of the Prevention of Corruption Act. However, before the submission of the chargesheet the prevention imprisonment order was served on the IPS officer and he was removed to Bhagalapur jail. The other four persons were also similarly detained in the same jail. These persons applied for bail under the proviso to Section 167(2) of the Code. The learned Magistrate granted bail but imposed a condition that the surety should be residents of Araria town. Ultimately these persons could secure securities from Araria but could not be released as the preventive imprisonment orders were in force. Subsequently the surety of all the five persons appeared in court and prayed to be discharged. Whereupon the learned Magistrate passed an order discharging him and issued formal warrants of arrest under Section 444(2) of the Code. At this stage the detention order against the IPS Officer came to be quashed. Subsequently the chargesheet was filed in the court of the learned Magistrate by the police. The bail application of four of the accused was rejected and the High Court confirmed the same. The case was thereafter transferred to the Special Judge (Vigilance), Patna. The IPS Officer moved an application offering cash security but it was rejected on the ground that the High Court had already rejected the application of the other four accused persons. The case was later transferred to the special Judge, Bhadur. When the matter came before the Supreme Court on of the grounds urged was that the High Court as well as the Special Judge were wrong in holding that the order of the Magistrate directing them to be released on bail under Section 167(2) had come to an end by the passage of time particularly after cognizance of the case was taken. Dealing with this contention the Supreme Court examined the scope of Section 167 read with Sections 437 and 439 of the Code and the ratio of the decision in Bashire''s case and proceeded to observe as under :

"The order for release on bail may however be cancelled under Section 437(5) or Section 439(2). Generally the grounds for cancellation of bail, broadly, are interference or attempt to interfere with the due course of administration of justice, or evasion or attempt to evade the course of justice, or abuse of the liberty granted to him..... where bail has been granted under the proviso to Section 167(2) for the default of the prosecution in not completing the investigation in sixty days after the defect in ccured by the filing of a chargesheet, the prosecution may seek to have the bail cancelled on the ground that there are reasonable grounds to believe that the accused has committed a nonbailable offence and that it is necessary to arrest him and commit him to custody. In the last mentioned case, one would expect very strong grounds indeed."

Proceeding further while dealing with the facts on hand the Supreme Court observed :

"The order for release on bail was not an order on merits but was what one may call an orderondefualt, an order that could be rectified for special reasons after the defect was cured. The order was made long ago but for one reason or the other, accused failed to take advantage of the order for several months. Probably for that reasons, the prosecuting agency did not move in the matter and seems to have proceeded on the assumption that the order had lapsed with the filing of the chargesheet. The question is should we now send the matter down to the High Court to give an opportunity to the prosecution to move that court for cancellation of bail ? Having regard to the entirety of the circumstances, the long lapse of time since the original order for bail was made, the consequent change in circumstances and situation, and the directions that we have now given for the expeditious disposal of the case, we do not think that we will be justified in exercising our discretion to interfere under Article 136 of the Constitution in these matters at this stage."

It will thus be clear that Supreme Court came to the conclusion that once an order for release on bail is made under the proviso to Section 167(2) it is not defeated by lapse of time and on the mere filing of the chargesheet at a subsequent date. The order of release on bail can no doubt be cancelled for special reasons germane to cancellation of bail under Sections 437(5) or 439(2). The Supreme Court then set out the grounds on which generally bail once granted could be cancelled and then proceeded to state that in the peculiar facts and circumstances of the case it would not be justified in interfering with the impugned order. Therefore, the final order which the court made was in the backdrop of the special facts and circumstances of the case.

In Rajnikant''s case (supra), the accused persons were arrested on 23rd March, 1988 by the officers of the Narcotic Control Bureau at Bombay. They were produced before the Additional Chief Metropolitan Magistrate, New Delhi and were remanded to judicial custody till 2th April, 1988. The remand order was subsequently renewed from time to time. On 10th May, 1988 the accused moved for bail and while the said application was pending, a chargesheet was submitted on 23rd June, 1988 for the commission of offences under Sections 21, 23 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. On 22nd July, 1988 the accused filed an application for bail under Section 167(2) of the Code on the ground that the chargesheet had been filed after the expiry of the period of 90 days. The learned Magistrate by his order dated 29th July, 1988 enlarged them on bail. The prosecution sought cancellation of the bail but the learned Magistrate did not accede to that request whereupon the High Court of Delhi was moved under Section 439(2) read with Section 482 of the Code. In that application the nature of offence committed, the part played by the accused, the gravity of the offence, etc. were set out. It was also mentioned that two of the accused persons had earlier absconded and as such the investigation could not be completed within the time prescribed by the proviso to Section 167(2) of the Code. The High Court following the dicta of Raghubir Singh''s case cancelled the bail. It was against this order that the accused approached the Supreme Court by Special Leave under Article 136 of the Constitution. After considering the provisions of Section 167(2) read with the Chapter XXXIII of the Code and in particular Sections 437(5) and 439(2), the Supreme Court came to the following conclusion :

"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 default of prosecution in filing charge within the prescribed period. The right to bail under Section 167(1) proviso (a) thereto is absolute. It is Court''s discretion. If the investigating agency fails to file chargesheet before the expiry of 90 days or 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 chargesheet is filed, the bail granted under proviso (a) to Section 167(2) could be cancelled."

On this line of reasoning the Supreme Court upheld the order of the High Court and refused to interfere.

On a conjoint reading of Sections 57 and 67 of the Code it is clear that the legislative object was to ensure speedy investigation after a person has been taken in custody. It expects that the investigation should be completed within 24 hours and if this is not possible within 15 days and failing that within the time stipulated in clause (a) of the proviso to Section 167(2) of the Code. The law expects that the investigation must be completed with despatch and the role of the Magistrate is to oversee the course of investigation and prevent abuse of the law by the investigating agency. As stated earlier, the legislative history shows that before the introduction of the proviso to Section 167(2) the maximum time allowed to the investigating agency was 15 days under subsection (2) of Section 167 exceeding which the accused could be enlarged on bail. From experience this was found to be insufficient particularly in complex cases and hence the proviso was added to enable the Magistrate to detain the accused in custody for a period exceeding 15 days but not exceeding the outer limit fixed under the proviso (a) to that subsection. I may here mention that the period prescribed by the proviso has been enlarged by State amendments and wherever there is such enlargement, the proviso will have to be read accordingly. The purpose and object of providing for the release of the accused under subsection (2) of Section 167 on the failure of the investigating agency completing the investigation within the extended time allowed by the proviso was to instill a sense of urgency in the investigating agency completing the investigation within the extended time allowed by the proviso was to instill a sense of urgency in the investigating agency to complete the investigation promptly and within the statutory timeframe. Once the order of release is passed under Section 437(1) or (2) or Section 439(1), it follows as a natural consequence that the said order can be cancelled under subsection (5) of Section 437 or subsection (2) of Section 439 on consideration relevant for cancellation of an order thereunder. As stated in Raghubir Singh''s case, the ground for cancellation under Sections 437(5) and 439(2) are identical, namely, bail granted under Section 437(1) or (2) or 439(1) can be cancelled where (i) the accused misuses his liberty by indulging in similar criminal activity, (ii) interferes with the course of investigation, (iii) attempts to tamper with evidence or witnesses, (iv) threatens witnesses or indulges in similar activities which would hamper smooth investigation, (v) there is likelihood of his flying to another country, (vi) attempts to make himself scare by going underground or becoming unattempted to make himself scare by going underground or becoming unavailable to be investigating agency, (vii) attempts to place himself beyond the reach of his surety, etc. These grounds are illustrative and not exhaustive. It must also be remembered that rejection of bail stands on one footing but cancellation of bail is a harsh order because it interferes with the liberty of the individual and hence it must not be lightly resorted to.

In State (Delhi Administration) v. Sanjay Gandhi, 1978(2) SCC 411, the Supreme Court observed that the 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 nonbailable 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 conductive to a fair trial to allow the accused to retain his freedom during the trial. The Supreme Court, therefore, observed that the power to take back in custody an accused who has been enlarged on bail has to be exercised with care and circumspection. But the power, though of an extraordinary nature, is meant to be exercised in appropriate cases when, by a preponderance of probabilities, it is clear that the accused is interfering with the course of justice by tampering with witnesses. But, that does not mean that the power though extraordinary in character must not be exercised even if the ends of justice so demand.

In Bhagirathsingh S/o Mahipat Singh Judeja v. State of Gujarat, 1984(1) SCC 284, the Supreme Court observed that very cogent and overwhelming circumstances are necessary for an order seeking cancellation of the bail. Even where a prima facie case is established the approach of the Court in the matter of bail is not that the accused should be detained by way of punishment but whether the presence of the accused would be readily available for trial or that he is likely to abused the discretion granted in his favour by tampering wit evidence. It is wrong to think that bail secured by virtue of the proviso (a) to Section 167 is an undeserved one. To so think is to doubt the legislative wisdom in prescribing the outer limit for filing the chargesheet and to ignore the legislative history. As pointed out earlier, the legislative history of Section 167 shows that by proviso (a) the detention period was enhanced to a maximum of 90 days from 15 days earlier allowed. When the legislature made it obligatory that the accused shall be released on bail if the chargesheet is not filed within the outer limit provided by the proviso (a), it manifested concern for individual liberty notwithstanding the gravity of the allegation against the accused. It would not be permissible to interfere with the legislative mandate on imaginary apprehensions, e.g., an obligatorily Investigation Officer deliberately not filing the chargesheet in time as such misconduct can be dealt with departmentally. To permit the prosecution to have the bail cancelled on the mere filing of the chargesheet is to permit the police to trifle with individual liberty at its sweet will and set at naught the purpose and object of the legislative mandate. The paramount consideration must be to balance the need to safeguard individual liberty and to protect the interest of administration of justice so as to prevent its failure.

The perusal of the application dated 3rd of August, 1992 moved on behalf of the prosecution seeking remand (Annexure P1), order of the Magistrate on the said application passed on 13th August, 1992 (Annexure P2), order dated 14.8.1992 passed on the application of the accused seeking bail under Section 167.2 (proviso) Cr.P.C. (Annexure P1) and order dated 27.9.1992 (Annexure P4) vide which bail was cancelled, would reveal that the learned Magistrate before passing the order of cancellation of bail did not apply his mind to the facts of this case. From his order dated 27th of September, 1992, it is clear that he had cancelled the bail believing the representation of his Ahalmad before him on 19th of August, 1992 that the 8.8.1992 was totally false. It was a delineate act on the part of the said Ahlmad to help the prosecution because in the application dated 13.8.1992 (Annexure 1) for seeking remand Hawa Singh M.H.C., Police Station, Dingh had stated as under :

"It is submitted that in the above case, remand of the accused for ten days has expired. The investigation remains to be completed, hence accused be given judicial remand."

On this application, the learned Magistrate vide his order of even date (Annexure P2) passed the following order :

"Heard. Pending investigation, accused are remanded to judicial custody to be produced on 27.8.1992."

On 14.8.1992, the learned Magistrate had passed order (Annexure P3) saying as under :

"..........Since the investigation is not completed within 90 days, accused cannot be detained in custody in view of Section 167(2) proviso Cr.P.C. Both the accused, are, therefore, admitted to bail in the sum of Rs. 10,000/ with one surety in the like amount."

On 27th September, 1992, he passed order (Annexure P4) which has been reproduced in the earlier part of this judgment. So, had the learned Magistrate applied his mind in the present case, he must have found that the Ahlmad had made a false statement before him on 19th August, 1992 to the effect that the challan papers had been handed over to him on 8th August, 1992. Had the challan papers been filed on 8th of August, 1992 how Hawa Singh, M.H.C., Police Station, Dingh, on 13.8.1992 in his application (Annexure P1) could seek remand on the ground that the investigation was incomplete.

All the above said facts which are apparent on the face of the record seem to have missed notice of the leaned Additional Sessions Judge while deciding the revision petition against the order dated 27.8.1992 passed by the learned Magistrate and, therefore, he had arrived at a wrong conclusion. Otherwise also, I find it difficult to agree with his view that the ratio of Rajnikant''s case (supra) applied to the case with full vigour. Otherwise also, the bail of the petitioners could not be cancelled on filing of the challan papers subsequently.

I sum up as under :

The provisions of the Code, in particular Sections 57 and 167 manifest the legislative anxiety that once a person''s liberty has been interfered with by the police arresting him without a Court''s order or a warrant, the investigation must be carried out with utmost urgency and completed within the maximum period allowed by the proviso (a) to Section 162(2) of the Code. It must be realised that the said proviso was introduced in the Code by way of enlargement of time for which the arrested accused could be kept in custody. Therefore, the prosecuting agency must realise that if it fails to show a sense of urgency in the investigation of the case and omits or defaults to file a chargesheet within the time prescribed and the order passed to that effect under Section 167(2) would be an order under Section 437(1) or (2) or 439(1) of the Code. Since Section 167 does not empower cancellation of the bail, the power to cancel the bail can only be traced to Section 437(1) of the Code. The bail can then be cancelled on considerations which are valid for cancellation of bail granted under Section 437(1) or (2) or 439(1) of the Code. The fact that the bail was secured by the thrust of proviso (a) to Section 167(2) of the Code then recedes in the background. Once the accused has been released on bail his liberty cannot interfered on the ground that the prosecution has subsequently submitted a chargesheet. Such a view would introduce a sense of complacency in the investigating agency as against a sense of urgency expected by Sections 57 and 167(2) of the Code. I am, therefore, of the view that once an accused is released on bail under Section 167(2), he cannot be taken back in custody merely on the filing of a chargesheet but there must exist special reasons for so doing besides the fact that the chargesheet reveals the commission of a nonbailable crime. In holding the above view, I am fortified by the ratio laid down by their Lordships of the Supreme Court in Aslam Babalal Desai v. State of Maharashtra, 1992(II) SVLR (Cr.) 205, wherein it has been held as under :

"............We are, therefore, of the view that once an accused is released on bail under Section 167(2) he cannot be taken back in custody merely on the filing of a chargesheet but there must exist special reasons for so doing besides the fact that the chargesheet reveals the commission of a nonbailable crime. The ratio of Rajnikant''s case to the extent it is inconsistent herewith does not, with respect, state the law correctly."

It has further been held in the last but one para of the said report as under :

"The view we are taking is consistent with this Court''s view in the case of Bashir and Raghubir (supra) but if any ambiguity has arisen on account of certain observation in Rajnikant''s case our endeavour is to clear the same and set the controversy at rest."

Even where two views are possible, this being a matter belonging to the field of criminal justice involving the liberty of an individual, the provision must be construed strictly in favour of individual liberty since even the law expects early completion of the investigation. The delay in completion of the investigation can be on pain of the accused being released on bail. The prosecution cannot be allowed to trifle with individual liberty if it does not take its task seriously and does not complete it within the time allowed by law. It would also result in avoidable difficulty to the accused if the latter is asked to secure a surety and a few days later be placed behind the bars at the sweet will of the prosecution on production of a chargesheet.

In view of the above discussion. I am 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 chargesheet, and if the order of the Magistrate dated 27.8.1992, confirmed in Revision Petition by the Additional Sessions Judge, Sirsa, vide his order dated 10.9.1992, is allowed to exist, it will tantamount to misuse of the process of law. I do not find any force in the arguments of the learned Counsel for the State in view of the provisions of Section 397 of the Code, this petition under Section 482 was not maintainable because the provisions of Section 397(c) of the Code do not constitute a total, or, complete bar to the exercise of inherent jurisdiction by the High Court under Section 482 of the Code. The limitation is seal (sic) and no more. It must, of course, be observed that where an order is amenable to revision, the order of the revisional Court should be interfered with very sparingly and that too only for the purposes as envisaged by Section 482 of the Code. Such cases would clearly be few and far between.

The case in hand is one of the type where, in order to prevent the misuse of the process of the Court it is expedient to interfere. On this point, reference can be had to :

1) R.P. Kapur v. State of Punjab, AIR 1960 SC 866;

2) Madhu Limaye v. State of Maharashtra, AIR 1973 SC 47;

3) Raj Kapoor and others v. State (Delhi Admn.) and others, AIR 1980 SC 258;

4) Rajan Kumar Manchanda v. State of Karnataka, 1988(2) Recent Criminal Reports 622 (SC) : 1987(4) Judgments Today (SC) 637 ; and

5) Charanjit Singh and others v. Gursharan Kaur, 1990(2) Recent Criminal Reports 584 : 1991(1) PLR 388 .

In view of the above discussion, this petition is allowed and the orders dated 27.8.1992 passed by Judicial Magistrate Ist Class Sirsa, Annexure P1, and that of the Additional Sessions Judge, Sirsa, dated 10.9.1992, Annexures P6, are quashed. The petitioners are directed to be released on bail to the satisfaction of the Chief Judicial Magistrate, Sirsa.