The right to bail accrued in favor of the accused under section 167(2) proviso is extinguished upon the filing of a charge sheet.

JUDGMENT - A.A. Desai, J.:---Both these applications raise a common question as to whether filing of a charge sheet during the pendency of application under proviso (a) to sub-section (2) of section 167 of the Code of Criminal Procedure for release on bail, obliterates the right accrued in favour of the accused.

2. This Court has an occasion to deal with such a situation in a case of (Shrawan Hanaji Undirwade and another v. State of Maharshtra)1, reported in 1976 Maharashtra Law Journal 654. The Division Bench while examining the scheme of sections 167, 173 and 437 of the Code of Criminal Procedure held that a right created under section 167 of the Code could be availed by the accused before the completion of the investigation. Once the charge sheet is filed then the Magistrate can exercise his power only under section 437 of the Code. It thus follows from the ruling that the Magistrate on the completion of the investigation is divested of his authority under section 167 of the Code, to release the accused on bail.

3. By an Act No. 45 of 1978 the Legislative has merely amended the provisions by extending the period of sixty days to ninety days. In case of investigation relating to offence punishable either with death or imprisonment for life or imprisonment for a term of not less than ten years. However, the substantive provisions as then contained in the Code of 1973, by this amendment remained unaffected.

4. Mr. S.A. Bobde, the learned Counsel appearing for the applicants made a submission before me that the right accrued in favour of the accused under the provisions is absolute and it does not get affected even if the charge sheet is filed, when the application based on that right is under consideration before the Magistrate. Mr. Bobde placed reliance on the decision reported in (The State of Maharashtra v. Sharad B. Sarda)2, 1983(1) Bombay Cases Reporter 578. His Lordship has observed that the right accrued in favour of the accused after ninety days is absolute, and the said right cannot be permitted to be defeated by resorting to the provisions of section 10 of the General Clauses Act. His Lordship has held in para 14 that "So on merely filing of the charge sheet after the expiry of the period of ninety days or sixty days, as the case may be, the accused is not deprived of a right earned by him to be released on bail." The learned Judge upheld the contention of the defence that if an accused is released on bail in view of the provisions of section 167(2) of the Code then the prosecution can only ask for cancellation of bail as provided under section 437(5), which lays down that any Court which has released an accused person on bail under sub section (1) or (2) of section 437 shall record in writing his reasons for so doing. The Judgement of the Division Bench cited supra perhaps was not referred to for the perusal, before the learned Single Judge.

5. Mr. Bobde then placed reliance on the decision of the Full Bench of Gujarat High Court in case of (Babhubhai Parshottamdas v. State of Gujarath)3, reported in 1982 Criminal Law Journal 284. The Full Bench has held that the case has to be considered purely in the light of section 167(2) proviso when the period of ninety days is over. Mare subsequent filing of charge sheet will not authorise to take the accused back in custody. The Full Bench was considering the question whether on release of the accused in view of the mandate under section 167, can he be taken back in custody, subsequent of filing of the charge sheet.

6. Mr. Bobde then placed reliance on the decision of the Full Bench of Orissa High Court in case of (Bijayaketan Mohanty v. State of Orissa)4, reported in 1982 Criminal law Journal 1986. The Full Bench was considering a case where the order of release on bail was passed by the magistrate. However, before giving effect, the prosecution filed a charge sheet. The learned Magistrate, therefore, refused to give effect to the order already passed and cancelling the

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