The submission of the charge-sheet before the order of release on bail is passed extinguishes the right of the accused to be released on bail under Sec.167(2) of the Code of Criminal Procedure.

Krishna Ballabh Sinha, J.

1. This application under Sections 439 and 440 of the Code of Criminal Procedure (hereinafter referred to as the Code) has been filed by the sole petitioner for being released on bail.

2. In order to appreciate the points raised on behalf of the parties, it is necessary to set forth some relevant facts of the case. A dacoity was committed on 12-11-1981 at about 12.30 A.M. in the house of one Babulal Singh, in which one Dwarika was done to death by the culprits. In course of police investigation, the petitioner was arrested and thereafter he was remanded to custody on 23-7-1982. He has been identified by three witnesses on Test Identification Parade. After he spent 90 days in the custody, a petition was filed in the Court of the Chief Judicial Magistrate for release of the petitioner on bail under the provisions of Sec.167(2) of the Code and the Court passed the order for his release on the same day. It appears that the bail bond was not furnished by him and, therefore, the said order was recalled on 8-11-1982. The petitioner moved the Sessions Judge, Vaishali, for bail, but his prayer was rejected.

3. The learned Counsel, appearing on behalf of the petitioner, mainly contended that having passed an order for release of the petitioner on bail on 22-10-1982, the Chief Judicial Magistrate was not empowered to recall his order on 8-11-1982. It was urged that once the petitioner was ordered to be released on bail, the only course open to the Chief Judicial Magistrate was to take step for cancellation of bail bond if the circumstances so required. Submission was made that the Chief Judicial Magistrate as also the Sessions Judge passed orders without correctly appreciating the provision of Sec.167(2) of the Code.

4. The learned Counsel appearing on behalf of the State, on the other hand, contended that charge-sheet in this case was submitted on 11-10-1982, much prior to the 22nd October, 1982, when the order for release of the petitioner was passed and so the order obtained after suppressing the truth could not be maintained.

5. It may be useful to refer to certain Sections of the Code of Criminal Procedure here. According to Sec. 57 of the Code, a Police Officer cannot detain in custody any person after his arrest for more than twenty-four hours in absence of a special order of the Magistrate under Sec.167 of the Code. The next relevant provision is contained in Sec.167 of the Code. When it is not possible to conclude the investigation within twenty four hours and there are grounds for believing that the accusation or information is well-founded, the Officer-in-charge of the Police Station or any Police Officer, making the investigation, has to forward the accused to the nearest Judicial Magistrate. The Magistrate to whom the accused person is forwarded, may order for detention of the accused in custody from time to time for a term not exceeding fifteen days. The proviso of sob-Section (2) of Sec.167 of the Code clearly states that the Magistrate may authorise detention of the accused person beyond the period of fifteen days, if he is satisfied that there are adequate grounds for doing so. It further says that no Magistrate shall authorise the detention of the accused person in custody under this Section for a total period exceeding 90 days or 60 days, depending on the quantum of punishment prescribed for different offences. After the expiry of the said period, the accused has to be released on bail if he is prepared and does furnish bail, So an accused, against whom there is allegation of committing an offence punishable under Sec.396 of the Indian Penal Code, cannot be detained in custody during the police investigation for a period more than 90 days. After expiry of the said period a statutory right accrues to him for being released on bail. Sec.167 has been placed in Chapter XII of the Code, which begins with the heading "Information to the Police and their power to investigation". This is new p