The main legal point established in the judgment is that the accused have an indefeasible right to default bail if charge sheet is not submitted within 120 days, and the court must inform them of this right. The cancellation of bail when charge sheet is submitted after the grant of bail is illegal.

ORDER :

Sashikanta Mishra, J.

1. The I.A. has been filed on the ground that during pendency of the bail application, the right to be released on default bail has accrued to the accused petitioners.

2. Heard Mr. Bhabani Sankar Das, learned counsel for the petitioners and Mr. P. Tripathy, learned Addl. Standing Counsel for the State.

3. The petitioners are in custody since 02.08.2021 in connection with Khamar P.S. Case No. 143 of 2021 corresponding to G.R. Case No.317 of 2021 pending in the Court of learned S.D.J.M., Pallahara for the alleged commission of offence under Sections 302/201/120-B/34 of IPC.

4. The prosecution allegation is that one Srimati Gagarai lodged FIR on 31.07.2021 that on the previous day at about 5 p.m. her husband had been to the forest to collect some branches of trees for feeding of goats along with his son Purna Chandra Gagarai. Suddenly her son came back and informed that while his father had gone to the house of Budhuram Chhatar, he was assaulted by some persons. On getting such information, the informant sent her daughters, Sumitra, Sukanti and her son Purna Chandra to bring their father back but they returned and informed that Rasi Hembran and Titu Dang were dragging the body of the deceased by means of a rope tied around his neck and that all the accused persons were in a drunken condition. Accordingly, the informant suspected that the accused persons had killed her husband and thrown his dead body into the river. Basing on this report, Khamar Police registered P.S. Case No. 143 of 2021 which corresponds to G.R. Case No.317 of 2021 of the Court of learned S.D.J.M., Pallahara for the alleged commission of offence under Sections 302/201/120-B/34 of IPC followed by investigation. In the meantime, the petitioners were arrested on 02.08.2021 and forwarded to the Court of learned S.D.J.M., Pallahara and on the same day they were remanded to judicial custody.

5. While the regular bail application was filed before this Court on the ground that the case had been falsely foisted against the petitioners, yet as already stated, during pendency of the bail application, the petitioners claim to have acquired an indefeasible right to be released on bail as per the provision of Section 167(2) of Cr.P.C as the investigating agency had not submitted charge sheet within the stipulated period of 120 days.

6. It is submitted by Mr. Das that the petitioners being remanded to custody for the first time on 02.08.2021, the stipulated period of 120 days expired on 30th November, 2021, but charge sheet was not submitted within the aforesaid period and therefore, the indefeasible right of the accused petitioners to be released on default bail accrued on 1st December, 2021. It is further submitted that though the accused petitioners were produced before the Court on 01.12.2021, yet their right to be released on default bail was not informed to them. The petitioners being unaware of the legal provisions also could not apply for default bail. However, upon receiving proper legal advice they filed an application seeking release on default bail on 14.12.2021. The bail application was considered on the same day and was allowed by directing release of the petitioners on certain terms and conditions. On the next day at 10.30 a.m. the petitioners submitted the bail bonds as per order passed by learned Court below. On the same day charge sheet was also 5 submitted. Learned Court below considered the prayer of the learned public prosecutor for recalling the order of bail and accordingly by order dated 15.12.2021, held that as the petitioners had not complied with the conditions of the order dated 14.12.2021 by submitting bail bonds prior to submission of the charge sheet, their right to be released on default bail stood automatically extinguished. According to Mr. Das, the order passed by learned Court below on 15.12.2021 in recalling the order of bail is entirely contrary to law as the petitioners had submitted the bail bonds within a rea