SURESH SINGH Vs. THE STATE AND OTHERS

JUDGEMENT

(1.) This application on behalf of the informant for cancellation of bail is directed against an order of Sessions Judge, dated the 24th of May, 1976, granting bail to opposite party nos. 2 and 3 in Barhiya P.S. Case No. 19. (11) 75 under Sec. 302 of the Indian Penal Code. It may be mentioned here that bail has been granted by the Sessions Judge, Monghyr, under the provisions of Sec. 167(2) of the Code of Criminal Procedure. 1973. Short facts are that the petitioner lodged a first information report stating that, on the 26th of November, 1975 opposite party nos. 2 and 3, along with six others who were named in the first information report, mercilessly assaulted the deceased Bilayat Singh on account of previous enmity. A case was registered and investigation was taken up by the Police and opposite party nos. 2 and 3 were apprehended in the case. It seems that, after the case was investigated by the police, an interim chargesheet was submitted on the 24th January 1976. The operative portion of the chargesheet reads as follows:

(2.) Opposite party nos. 2 and 3 filed an application for bail before the Sub -divisional Magistrate that no charge -sheet had been submitted in this case and they were in custody for more than sixty days and, therefore, they were entitled to bail under the provisions of Sec. 167(2) of the Code of Criminal Procedure, 1973. It was submitted before the learned Magistrate that investigation had not been completed and there was no provision for interim charge -sheet in the Criminal Procedure Code and, therefore, they were entitled to bail. The learned Magistrate, however, held that the chargesheet had been submitted, though it had been wrongly termed as interim charge -sheet and that it was a chargesheet for all practical purposes and, therefore, opposite party nos. 2 and 3 were not entitled to bail, though they were in custody for more than sixty days.

(3.) Against the order aforesaid, opposite party nos. 2 and 3 moved the Sessions Judge, Monghyr, in which a prayer was reiterated by them that interim chargesheet was not warranted by law and, therefore, they were entitled to bail as they have been in custody for more than 60 days and investigation had not been completed. In support of their contention, they relied on a decision of this Court in Cr. Misc. No. 2139 of 1976 (Shiv Shankar Prasad Sao V. The State of Bihar disposed of on the 11th May 1976 which is now reported in 1976 BBCJ No. 11). It was held by D.P. Sinha, J. that interim chargesheet is unwarranted by law and cannot defeat the provisions of Sec. 167(2) proviso (a) of the new Code of Criminal Procedure. This was opposed by the Public Prosecutor on the ground that interim charge -sheet was a chargesheet for all practical purposes and, therefore, no bail should be granted to opposite party nos. 2 and 3. But the learned Sessions Judge, relying on the decision of the High Court, granted bail to opposite party nos. 2 and 3 and directed that they should be released on bail of Rs. 8,000/ - each with two sureties of the like amount each to the satisfaction of the court below.