The investigation was complete and the report/charge-sheet was accepted by the Magistrate, therefore, the learned Additional Sessions Judge had no power to admit the accused to bail under Section 167(2) of the Code of Criminal Procedure, 1973.

JUDGMENT :

R.K. Dash, J. - This application under Section 439(2) read with Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the new Code') is filed by the Superintendent of Police, Central Bureau of Investigation (for brevity, 'CBI'). Special Police Establishment, Bhubaneswar, seeking cancellation of bail granted to the opposite party, accused in S.C Case No. 399 of 1995.

2. A brief resume of the facts lending to the present proceeding may be stated thus:

One Anwar Khan lodged a written report at Tamka Police Station alleging that on 24.7.1993 Shyamapada Rout (hereinafter referred to as 'the deceased') was abducted, assaulted and confined by Chakradhar Alda and others and on the basis of the said report, the police registered a case under Sections 147, 148, 368, 323, 325 and 506 read with Section 149, IPC and took up investigation, but later on investigation was entrusted to CID (CD). When the matter stood thus, the wife of the deceased moved the Supreme Court complaining that the law enforcing agency of the State failed to take appropriate step to trace the whereabouts of her husband. She prayed for entrusting the investigation of the case to CBI. The Court accepted her prayer and directed the CBI to take up investigation and submit its report in accordance with law. Pursuant to this direction, the CBI proceeded with the investigation in course of which it came to light that the accused persons involved in the case have committed murder of the deceased. Opposite party, one of the accused was apprehended and sent to judicial custody. There upon he moved the lower Court for his release on bail. The same having been rejected, he approached this Court in Cri. Misc. Case No.639 of 1995 which was however, disposed of without considering on merit since the learned counsel appearing for him submitted that as in the mean time chargesheet has been laid, prayer would be renewed before the learned Addl. C.J.M., Bhubaneswar. This is the reason why the opposite party again knocked the door of the Court below and sought for his release. The said prayer was again turned down whereafter, a motion was made before the learned Addl. Sessions Judge, Bhubaneswar. It was contended that the investigation having not been completed within the period of 90 days from the date of detention and the report submitted by the C.B.I. being not a police report within the meaning of Section 2(r) read with Section 173, the opposite party was entitled as of right to be enlarged on bail under Section 167(2) of the new Code. This submission found favour with the learned Addl. Sessions Judge and consequently, the opposite party was admitted to bail by order dated 24.5.1995 which is impugned in the present proceeding.

3. Learned counsel appearing for the petitioner strenuously contended that on completion of investigation the report/charge-sheet submitted in the case was accepted as a complete one on the basis of which the Magistrate took cognisance of the offence under Section 190(1)(b) and so, the learned Addl. Sessions Judge had no power to admit the opposite party to bail by resorting to Section 167(2) of the new Code. True it is, submitted the counsel, that the Investigated Officer mentioned in the report/charge-sheet that supplementary charge-sheet would be submitted after further investigation, but from that it could not have been inferred that the investigation was not complete in so far as the opposite party was concerned.

4. Per contra, Shri H.K. Jena, learned counsel for the opposite party, urged that proviso the Section 167 of the new Code mandates that if the investigation is not completed within 90 days in serious offences and 60 days in lesser ones from the date of arrest, it is obligatory on the Court to release the accused on bail. In other words, if the investigating agency fails to file charge-sheet before expiry of 90 or 60 days, as the case may be, the Magistrate will have no power to remand the accused beyond such stipu