ASHOK PASWAN Vs. STATE OF BIHAR

JUDGEMENT

(1.) This application under Sections 439 and 440 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') has been filed by the sole petitioner for being released on bail.

(2.) In order to appreciate the points raised on behalf of the parties, it is necessary to set forth some relevant facts of the case. A dacoity was committed on 12-11-1981 at about 12.30 A.M. in the house of one Babulal Singh, in which one Dwarika was done to death by the culprits. In course of police investigation, the petitioner was arrested and thereafter he was remanded to custody on 23-7-1982. He has been identified by three witnesses on Test Identification Parade. After he spent 90 days in the custody, a petition was filed in the Court of the Chief Judicial Magistrate for release of the petitioner on bail under the provisions of Section 167(2) of the Code and the Court passed the order for his release on the same day. It appears that the bail bond was not furnished by him and, therefore, the said order was recalled on 8-11-1982. The petitioner moved the Sessions Judge, Vaishali, for bail, but his prayer was rejected.

(3.) The learned Counsel, appearing on behalf of the petitioner, mainly contended that having passed an order for release of the petitioner on bail on 22-10-1982, the Chief Judicial Magistrate was not empowered to recall his order on 8-11-1982. It was urged that once the petitioner was ordered to be released on bail, the only course open to the Chief Judicial Magistrate was to take step for cancellation of bail bond if the circumstances so required. Submission was made that the Chief Judicial Magistrate as also the Sessions Judge passed orders without correctly appreciating the provision of Section 167(2) of the Code.