RAMESH CHANDRA SAHU Vs. STATE

JUDGEMENT

(1.) THE Petitioner charged with commission of offences under Sections 458 and 395 of the Indian Penal Code was directed to be released on bail by order dated 7 -7 -1981 by the learned Sessions Judge when charge -sheet was not submitted within 90 days from the date of his arrest. Before he was in fact, released from jail custody, the learned Sessions Judge was informed that charge -sheet had been submitted and the Petitioner should not be set free and the order should be recalled. The Petitioner contended that filing of the charge -sheet could not reverse the process and he was entitled to be released. The learned Sessions Judge rejected the contention of the Petitioner holding:

(2.) THE learned Sessions Judge committed mistakes in procedure and on merits. Firstly, the application filed by the, Petitioner for bail had already been allowed by order date 7 -7 -1981 and the Petitioner had been directed to be released on bail. The learned Sessions Judge could cancel the bail granted to the Petitioner; but the same could not be achieved by recalling the order which amounted to review thereof. Review was not permissible in view of Section 362 of the Code of Criminal Procedure which permits only correction of clerical or arithmetical error. Secondly, having directed release of the Petitioner by order dated 7 -7 -1981, the learned Sessions Judge had no jurisdiction to stay his order and interrupt the release of the Petitioner because the Public Prosecutor made a motion that charge -sheet in the meanwhile had been filed. There is no sanction for the course adopted. Thirdly, there being no distinction between a bail granted under Section 167(2), Code of Criminal Procedure and that granted under Chapter XXXIII, of the Code, it was impermissible to refuse bailor recall the order granting bail on the ground that there were some materials from which the complicity of the Petitioner could prima facie be seen. The legislature did not intended to confer the benefits in one hand and take back the same in another under a different guise. The liberty granted by the Court by grant of bail could only be taken a way on well established grounds for cancellation of bail. Could a bail granted upon consideration of materials be cancelled on the ground that a fresh witness has been found who implicates the accused in the commission of the crime. No different treatment could be meted to a bail granted under Section 167(2). Lord Asquith has said in regard to deeming fiction one should not permit one's imagination to boggle. See the decision in Mangal Hemrum and Ors. v. State of Orissa. One should go the whole hog unless the statute prohibits it. I am, therefore, of the opinion that the learned Sessions Judge was in error in recalling the order and dismissing the petition. I vacate the order dated 14 -8 -1981 passed by the learned Sessions Judge.