KALLAM CHINNIAH Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) In this case, this Court dismissed the bail application on 28th June, 1979, when the accused submitted application for grant of bail. While the accused were under custody, the investigation was not completed within 60 days. Hence invoking the provisions of section 167 (2), Criminal Procedure Code, the learned Magistrate did not extend the judicial custody beyond 60 days, but released the accused on bail on their furnishing bond in accordance with the provisions of Chapter XXXIII. But after the charge- sheet was filed, the learned Magistrate took the accused into custody. Hence, the accused filed this application with a request that they should be enlarged on bail.

(2.) Sri Rama Rao, the learned Counsel for the petitioners, contends that when once the accused were enlarged on bail under section 167 (2), Criminal Procedure Cods, it is not open to the learned Magistrate to take the accused into custody, unless he cancels (the bail granted by him under section 437 (5), Criminal Procedure Code. He further contends that since the learned Magistrate has not followed the provisions of section 437 (5), Criminal Procedure Code, and took the accused into custody cancelling the bail only on the ground that the charge-sheet! is filed, the order is illegal.

(3.) Evidently the order passed by the learned Magistrate is not in conformity with the provisions of section 437 (5), Criminal Procedure Code. It is now well-settled that where the investigation has not been completed even in cases of murder or dacoity within 60 days after -the accused has been remanded to judicial custody under section 167 of the Criminal Procedure Code, it is mandatory for the Magistrate under the proviso (a) to section 167 (2) to release the accused on bail, if be is prepared to furnish bail. The accused so released on such a bail under the proviso (a) to section 167 (2), Criminal Procedure Code, shall be deemed to be released under the provisions of Chapter XXXIII. The Supreme Court held in Natabar Panda v. State of Orissa that even if it is not possible to complete the investigation within 60 days in serious and ghastly types of crimes like murder or dacoity, still the accused is entitled to be enlarged on bail under the proviso (a) to section 167 (2), Criminal Procedure Code. Such a law may be a paradise for the criminals but it would be so under the command of the Legislature.