T.R. Handa, J.
1. The petitioner Shri Ramesh Chand was arrested on 2.6.1983 in connection with a case registered against him with police station Ghumarwin, district Bilaspur, under Sections 302/376 I.P.C. The petitioner had been remanded by the Sub-Divisional Judicial Magistrate, Ghumarwin to custody from time to time during the investigation of the sold case. Since the police did not file a charge-sheet against him within 90 days of the date of his arrest, the learned Sub-Divisional Judicial Magistrate. Ghumarwin ordered his release on bail on 2.9.1983. The said order was obviously passed in terms of Section 167(2) Cr.P.C. which provision mandates that no Magistrate shall authorise the detention of the accused in custody under that section for a total period exceeding 90 days where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term not less than 10 years.
2. Before the petitioner could be actually released in pursuance of the aforesaid order of the Magistrate, however, the State moved the Sessions Judge under Section 439(2) of the Code for cancellation of the bail allowed to the petitioner by the Sub-Divisional Judicial Magistrate. The Sessions Judge it appears then passed an interim order suspending the operation of the order of the Magistrate releasing the petitioner on bail. Later vide his final order passed on 21.9.1983 he accepted the prayer of the State. set aside the order of the Magistrate dated 2-9-1983 and ordered that the petitioner be arrested and committed to judicial custody. The petitioner has now approached this Court in revision against the order of the Sessions Judge which operates to cancel his bail.
3. The impugned order of the Sessions Judge shows that the State had sought the cancellation of the bail allowed to the petitioner on the ground that as per information of the Investigating Officer the relations of the accused had already started threatening the witnesses with dire consequences in case they deposed against the accused. The learned Sessions Judge, however, made no observations with respect to this apprehension of the Investigating Officer nor did he comment if this could be n valid ground for cancellation of the bail. All that appears to have influenced the learned Sessions Judge in cancelling the bail was that there were serious accusations ngainst the petitioner who was alleged to have murdered a minor girl of ten years after committing rape on her. On account of the serious nature of the accusation the learned Sessions Judge apprehended that the petitioner was likely to jump the bail and abscond to avoid the consequences of the offences alleged to have been committed by him. The operative part of the impugned order passed by the Sessions Judge reads like this:
In view of the above discussion. I accept the application, set aside the order of the lower Court dated 2.9.1983 and order that the accused be arrested and committed to judicial custody.
4. After hearing the learned Counsel for the parties and considering the law applicable to the case I am of the firm view that the impugned order of the Sessions Judge which operates to set aside the order of the learned Sub-Divisional Judicial Magistrate passed in the lawful exercise of his jurisdiction under Section 167(2) of the Code cannot be sustained.
5. Section 167 of the Code may be extracted:
167. (1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by Section 57, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the police officer making the investigation. if he is not below the rank of Sub-Inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.
(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, 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:
(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-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter.
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It is clear from a perusal of the above provisions that the Magistrate had not only the jurisdiction but was also duty bound to order release of the petitioner on bail when the police failed to file the charge-sheet against him in Court within 90 days of the date of his arrest. It may be observed that as per the admitted case of the parties the charge-sheet in this case was not filed within the statutory period of 90 days. In these circumstances no exception can be taken against the order of the learned Sub-Divisional Judicial Magistrate. In fact the learned Sessions Judge has also observed in the impugned order that the order of the Magistrate releasing the petitioner on bail under Section 167(2) of the Code was perfectly justified. It being so I fail to appreciate as to how the learned Sessions Judge then proceeded to set aside that legal order of the Sub-Divisional Judicial Magistrate passed under Section 167(2) of the Code.
6. It is true that an order passed under Section 167(2) releasing an accused person on bail is to be deemed as an order passed under the provisions of Chapter XXXIII of the Code. This Chapter is under the caption 'Provisions as to Bail and Bonds'. Section 439 which falls under this Chapter deals with the powers of the High Court and the Court of Session with regard to the release of the accused on bail. Sub-section (2) of Section 439 of the Code next provides that a High Court or Court of Session may direct that any person who has been released on bail under the said Chapter may be arrested and committed to custody. It was under this provision that the State approached the Sessions Judge for cancellation of the bail allowed to the petitioner by the Sub-Divisional Judicial Magistrate and the learned* Sessions Judge passed the impugned order. This provision whereas it does empower a Sigh Court or Court of Session to cancel the bail already allowed to an accused person and to direct his arrest, it nowhere empowers the Court to set aside an order allowing ball to an accused person passed in accordance with law. This section is obviously intended to be invoked for cancellation of bails in cases where the accused after his release on bail misuses his liberty or where his re-arrest is considered necessary for akin reasons. In case this provision can be invoked to set aside lawful order passed under Section 167(2) of the Code directing the release of an accused person on bail, it would certainly amount to complete frustration of the provisions of Section 167(2) of the Code. A legal order passed in compliance with the mandatory provisions of Section 167(2) of the Code would in this manner be made non est by invoking the powers conferred on a High Court or Court of Session under Section 439(2) of the Code. This certainly could not be the intention of the Legislature in enacting Section 167(2) of the Code.
As observed by the Supreme Court in the case of The State v. Sanjay Gandhi : 1978CriLJ952 cancellation of bail necessarily involves the review of a decision already made and can by and large be permitted only if, by reason of supervening circumstances, it would be no longer conducive to a fair trial to allow the accused to retain his freedom during the trial. Before an order cancelling the bail under Section 439(2) of the Code can be passed it is necessary for the prosecution to show some act or conduct on the part of the accused person from which is reasonable inference may be drawn that he has tampered with the prosecution witnesses or has in any other manner misused or abused the liberty allowed to him. The bail may also be cancelled if the prosecution succeeds in showing that there is a reasonable apprehension that the accused will interfere with the course of justice in case he is allowed to remain on bail. The I serious nature of the accusation against the accused is certainly a relevant factor while considering his release on bail but once an accused person is released on bail in spite of such nature of the offence, this factor by itself will not justify the cancellation of the bail already granted without some supervening circumstances of the type referred to above. As earlier observed the petitioner is deemed to have been released under the provisions of Chapter XXXIII of the Code though his release order was actually passed under Section 167(2) of the Code. No infirmity can be found with that order of his release so as to justify the Sessions Judge to set the same aside. The prosecution had to make out a case for cancellation of that order based on some subsequent developments which could show that the petitioner had abused his liberty. In the instant case there was no occasion for the petitioner to have abused his liberty inasmuch as he was never actually released from custody. In these circumstances the impugned order only operates to set at naught a valid order passed in compliance with the mandatory provisions of Section 167(2). Such an order cannot be allowed to stand.
7. I would, therefore, accept this revision petition, quash the order of the learned Sessions Judge, restore that of the Sub-Divisional Judicial Magistrate passed on 2.9.1983 and direct that the petitioner be released on his furnishing bail bond as directed by the learned Sub-Divisional Judicial Magistrate. I may make it clear that this order wduld not stand in the way of the State moving for cancellation of the bail granted to the petitioner in case it is considered necessary to do so on account of the conduct of the petitioner after his release or other supervening circumstances.