The mere submission of a charge sheet is not sufficient grounds for canceling bail granted under section 167(2) of the CrPC. However, the court can consider the materials on record to determine if the accused has committed a non-bailable offense and if it is necessary to remand them to custody. A Magistrate passing an order of commitment under section 209 of the CrPC has the power to remand the accused to custody during and until the conclusion of the trial, even if the accused was previously released on bail.

Nagendra Prasad Singh, J.

1. This is an application for bail, on behalf of two petitioners, who are accused for offences under sections 302, 149, 148 and 324 of the Indian Penal Code. The occurrence alleged to have been taken place on 12th June, 1977 at about 7.30 a m. in which one Ram Bilash Choudhary was assaulted by these petitioners along with some other. The allegation is that petitioner no.1 gave a Barchi blow on the left side of the abdomen of the victim whereas petitioner no.2 gave a Barchi blow on the left side of the chest of the deceased. The other accused persons, who are on bail alleged to have been given lathi blows when the victim after having received the Barchi blows was trying to run away.

2. First Information Report was lodged on the same day at about 11.30 a. m. From the order-sheet of the learned Chief Judicial Magistrate, it appears that these petitioners were taken into custody on 28th June, 1977. The investigation proceeded and a charge-sheet dated 16th July, 1977 was submitted by the investigating Officer, which was received by the learned Chief Judicial Magistrate on 24th July, 1977. A petition for bail was filed on behalf of these two petitioners before the learned Chief Judicial Magistrate, which was taken up for consideration on 27th of August, 1977. Several points were urged in support of that application including that the charge sheet had not been submitted within sixty days from the date when the petitioners wore taken in custody and as such they were entitled to be released on bail in accordance with proviso to sub-section (2)of section 167 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code ). It was also submitted that after submission of charge-sheet no cognizance had been taken and as such the remand of the petitioners was without any authority in law. This argument was advanced in view of sub-section (2) of section 309 of the Code which authorise a Magistrate to remand an accused only after taking cognizance of an offence or on commencement of the trial. It was urged on behalf of the petitioners that as no cognizance had been taken, they were entitled to be released on bail. The learned Chief Judicial Magistrate after considering the provision of sub-section (2) of section 167 and sub-section (2) of section 309 directed the petitioners to be released on hail by his order dated the 27th August, 1977.

3. It appears that cognizance on the basis of the charge-sheet was take n on 1st of September, 1977. On 12th of September, 1977 the learned Magistrate perused the materials on record and passed an order of commitment in accordance with the requirement of section 209 of the Code, committing these petitioners along with others to the Court of Session. While committing the the accused persons to the Court of Session he also remanded these petitioners along with others to custody by his order dated the 12th September, 1977. Thereafter a prayer for bail was made before the learned Sessions fudge, darbhanga who rejected the prayer of bail made on behalf of the petitioner observing that they had been enlarged on bail in view of the provision of subsection (2) of section 167 and sub-section (2) of section 209 and their applications for bail on merit having been rejected earlier, now after the submission of the charge-sheet and passing of the commitment order these petitioners could be taken in custody.

4. Being aggrieved by the said order passed by the learned Sessions Judge the present application for bail has been filed on behalf of the petitioners. The learned counsel appearing for the petitioners submitted that the view taken by the learned Sessions Judge for rejecting the bail application of the petitioners was erroneous in law. In other words, according to learned counsel once an accused person is released on bail even in accordance with the proviso of sub section (2) of section 167 of the Code, he cannot be committed to custody unless the question of cancellatio