The petitioner had an indefeasible right to be released on bail under CrPC 167(2) even upon filing of the chargesheet, as he had 'availed of' the right by applying for bail and offering to comply with the terms and conditions. The Sessions Judge's recall of the bail order was held to be without jurisdiction under CrPC 362.

By way of the present application under Articles 226 and 227 of the Constitution of India, the petitioner challenges the order dated 02.01.2015 passed by the learned Sessions Judge, Munger in G.R. No. 1930 of 2010 arising out of Haveli Kharagpur P.S. Case No. 265 of 2010 whereby the order dated 28.11.2014 passed by the learned Sub-Divisional Judicial Magistrate (For short ‘SDJM’), Munger granting bail to the petitioner under Section 167(2) of the Code of Criminal Procedure (For short ‘CrPC’) has been set aside and the bail bond furnished by the petitioner and accepted by the Sessions Judge has been cancelled.

2. Shorn of details, brief facts necessary for disposal of this application are that one Shamshad Ali, S.H.O. of Haveli Kharagpur Police Station submitted his written report dated 26.10.2010 on the basis of which, Haveli Kharagpur P.S. Case No. 265 of 2010 dated 26.10.2010 was registered under Section 147, 148, 149, 121-A, 122, 379, 427, 307, 353 of the Indian Penal Code, Section 27 of the Arms Act, Sections 10, 13 of the Unlawful Activities (Prevention) Act, 1967 (For short ‘the UAP Act’) and Section 17 of the Criminal Law Amendment Act against altogether ten named and 50-60 unknown accused persons. The petitioner is one of the accused named in the first information report.

3. In course of investigation, the petitioner was arrested and remanded to judicial custody on 28.03.2014. He filed an application for being released on bail on default under the proviso (a)(ii) to Section 167(2) of the CrPC and offered to furnish bail bond to the satisfaction of the Court. On the same day, the learned SDJM called for a report from the office as to whether or not on completion of investigation, the investigating officer of the case has submitted report under Section 173(2) of the CrPC. At about 4:30 p.m. the office reported that the police report has not been filed by the investigating agency in the court. Thereafter, the learned SDJM ordered the petitioner to be released on bail on furnishing bail bond of Rs. 5,000/- with two sureties of the like amount each to the satisfaction of the Court subject to the condition that out of the two sureties one must be a government servant.

4. On 01.12.2014, the SHO of Haveli Kharagpur police station filed a petition in the court of SDJM, Munger praying therein not to release the petitioner. Immediately, thereafter, on 01.12.2014 itself, the investigating officer of the case filed the police report under Section 173(2) of the CrPC in the Court. On the same day, the learned Additional Public Prosecutor conducting the case filed an application in the court of SDJM contending therein that in a writ petition bearing Cr.WJC No. 487 of 2014, vide order dated 04.08.2014, a Division Bench of this Court has held that the Court of Magistrate has no jurisdiction to pass any order in the cases in which offence is alleged to have been committed under the UAP Act. It was also contended that in absence of Special Court having been constituted in the State of Bihar, the Court of Sessions has to deal with the case in the same manner as may have been dealt with by a Special Court in cases arising out UAP Act.

5. The learned SDJM, Munger after hearing the learned Additional Public Prosecutor and having gone through the judgment passed in the aforesaid Cr.WJC No. 487 of 2014 transferred the record of the case to the court of Sessions Judge, Munger. The record was received in the court of Sessions Judge on transfer on 02.12.2014 whereafter on 04.12.2014, the petitioner furnished sureties and bail bond in the court of Sessions in compliance with the order dated 28.11.2014 passed by the learned SDJM, Munger which was found in order and, hence, it was accepted. After accepting the sureties and the bail bond, the learned Sessions Judge directed for issuance of release order of the petitioner. However, no release order was issued and the petitioner continued to remain in custody.

6. In the meantime, the learned Sessio