The right to bail under the proviso to Sec. 167(2) of the Code of Criminal Procedure is extinguished once the charge-sheet is filed, and the filing of the charge-sheet after the passing of the bail order does not affect the bail already granted.

R.A.Sharma, J.

1. A Division Bench in Cr. W.J.C. No. 94 of 1998(R) has referred the following question relating to interpretation and scope of Proviso(a) to Sub-sec. (2) of Sec. 167 of the Code of Criminal Procedure (hereinafter referred to as the Code) for decision by the Full Bench:

Whether the right of an accused for release on bail on an application made under Sec. 167(2)(a)(i) of the Code remains enforceable even after filing of the belated charge-sheet though filed after the said application but: before passing of the order for bail and/or before execution of the bail bond?

The reason for referring the said question to the Full Bench is the different views, regarding the interpretation and scope of Proviso (a) to Sec. 167(2) of the Code, expressed by two different Division Benches of this Court in Dr. Braj Nandan Sharma @ Dr. B.N. Sharma V/s. The State of Bihar and Ors. 1997 BCCR 69 and in Chutar Mahto V/s. The State of Bihar and Anr. Cr. W.J.C. No. 02/98(r). Pending the above reference, a learned Single Judge in Cr. W.J.C. No. 176/98(R) has also referred the following question to the Full Bench:

Whether on expiry of statutory period of 90 days, prayer for release on bail is made under Sec. 167(2)(a)(i) of the Code and on receipt of report that charge-sheet has not been received, order for release on bail under Section 167(2)(a)(i) of the Code is passed and the bail bond is also furnished, before its acceptance and issuance of release order, the order granting bail under Sec. 167(2)(a)(i) of the Code can be recalled, on receipt of subsequent report that by then charge-sheet has been received.

2. Sec. 167 of the Code, in so far as it is relevant for the present controversy, is reproduced below:

167. Procedure when investigation cannot be completed in twenty-four hours.-

(1) *****

(2) The Magistrate to whom an accused-person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time to authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole ; and if he has no 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: Provided that- (a) The Magistrate may authorise the detention of the accused-person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused-person in custody under this paragraph for a total period exceeding- (i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years.

(ii) sixty days, where the investigation relates to any other offence. and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused-person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this Sub-sec. shall be deemed to be so released tinder the provisions of Chapter XXXIII for the purpose of that Chapter-

(b) *****

(c) *****

Explanation I.-For the avoidance of doubts it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail. Explanation II.-If any question arises whether an accused-person was produced before the Magistrate as required under paragraph (b), the production of the accused-person may be proved by his signature on the order authorizing detention.

3. The controversy, which has been referred to the Full Bench, is no more res intergra. It has already been decided by the apex Court. In Sanjay Dutt V/s. State through C.B.I., Bombay (II) -- , the apex Court has laid down that the right of an accused to bail under the prov