IMPORTANT POINT
The right to default bail under Section 167(2) of the Cr.P.C. is triggered by the filing of a bail application after the expiration of the statutory period for filing a charge sheet, and this right cannot be extinguished by subsequent actions of the prosecution.

JUDGMENT :

Sanjay Kumar Dwivedi, J.

Heard the learned counsel for the petitioner and Mr. Jai Prakash, the learned A.A.G. appearing on behalf of the respondent State.

2. This petition has been filed under section 482 of the Cr.P.C. read with Article 215 of the Constitution of India for modification of the order dated 17.07.2003 passed in W.P.(Cr.) No.314 of 2023.

3. The office has raised objection with regard to maintainability of the present case. By the order dated 17.07.2023 this Court has rejected the prayer of the petitioner relying on the minority view in Uday Mohanlal Acharya v. State of Maharashtra, (2001) 5 SCC 453. On that day, neither the learned counsel for the petitioner nor the learned counsel for the respondent State were correctly apprised the Court on the law point already settled by the Larger Bench of the Hon’ble Supreme Court in view of that the said order has been passed relying on the minority view as on prima facie it appears that this order was passed on the human error by this Bench. Further the prayer was made for default bail in light of section 167(2) of the Cr.P.C. Recently the Hon’ble Supreme Court in the case of State, through C.B.I. v. T. Gangi Reddy @ Yerra Gangi Reddy, (2023) 4 SCC 253, held at paragraph no.21.2, which is quoted below :

21.2. That every person released on bail under Section 167(2)CrPC shall be deemed to be so released under the provisions of Chapter XXXIII CrPC, which includes Sections 437(5) and 439(2).

4. The bail under section 167(2) Cr.P.C comes under the provision of Chapter-XXXIII Cr.P.C which includes sections 437 (5) and 439(2) of the Cr.P.C. In the case of Ramadhar Sahu v. State of Madhya Pradesh in S.L.P. (Cr.) No.11130 of 2023, the Hon’ble Supreme Court has held that a bail plea dismissed confers on the detailed accused a right to file fresh application for bail on certain changed circumstances. Thus, an order rejecting the prayer for bail does not empower the court for considering plea afresh if there is any alteration of the circumstance. The condition of bail would also be verified if the case is made out for such variation based on that factor and it has been held that the provision contemplated under section 362 of the Criminal Procedure Code would not apply in such cases. Further if a procedural review is there not substantial review then section 362 Cr.P.C. is not attracted and that has been held by the Hon’ble Supreme Court in the case of Ganesh Patel v. Umakant Rajoria, 2022 Livelaw (SC) 283, wherein it has been held as under :

“This application for recall of the order was maintainable as it was an application seeking a procedural review, and not a substantive review to which section 362 of the Code of Criminal Procedure, 1973, would be attracted (Grindlays Bank Ltd. v. Central Government Industrial Tribunal and Ors. 1980 (Suppl.) SCC 420]. On the aspect of the difference between recall and review and when an order of recall can be passed reference can be made to Budhia Swain and Others v. Gopinath Deb and Others, (1999) 4 SCC 396.

The High Court was therefore right in recalling the order and listing MCRC No.6576 of 2017 for hearing and decision on merits”

5. By a Full Bench of this Court in the case of Court On Its Own Motion v. K.K. Jha Kamal, 2007 SCC Online Jhar. 521 a petition under Article 215 of the Constitution of India was entertained by the Court and was decided on merit and in the said judgment, certain judgments of Hon’ble Supreme Court was considered at paragraph nos.5,7,8 and 9 of the said judgment, which are as under :

“5. In Re. M.M. Thomas v. State of Kerala reported in (2000) 1 SCC 666 : AIR 2000 SC 540, the Hon'ble Supreme Court dealt with the power of review under Article 21.5 of the Constitution of India in paras 14 to 17 of the said Judgment. From the said decision of the Apex Court, it is evident that the High Court has power to review its own Judgment/Order if there are errors apparent on the face of the record.

(Emphasis supplied)

7. In re. K.C.