J. Kennedy Paul vs State

The Court

Heard the learned Counsel for the petitioner and the learned Additional State Public Prosecutor.

Though the matter is posted for admission, with the consent of the parties, as the same can be disposed off, is taken for final disposal.

The petitioner-accused 2 was released on bail in Cr. No. 206 of 2001 under the provisions of Section 167(2) of the Criminal Procedure Code for the default of prosecution in not filing the charge-sheet within the time-limit prescribed. While so releasing, the Court below has imposed certain conditions on the petitioner, one of the conditions, namely Condition No. 6 reads as follows:

"He shall surrender before this Court immediately after filing of the charge-sheet by the Police",

In this petition, the petitioner has challenged this condition as illegal and not maintainable one, on the ground that releasing on bail u/s 167(2) of the Criminal Procedure Code has to be deemed as releasing on bail under the provisions of Chapter XXIII of the Code and if that is so, cancellation of same by indirect method of asking him to surrender immediately after the charge-sheet is filed will be invalid, since once a person is released on bail for whatever reasons whether u/s 167(2) or 438 or Section 439 of the Criminal Procedure Code, the same cannot be annulled unless there is appropriate application by the prosecution for cancelling the same either u/s 437(5) or 439(2) of the Criminal Procedure Code. By imposing the present Condition No. 6, indirectly, the order of the bail itself is curtailed till the filing of the charge-sheet which in view of the well-settled principles laid down by the Apex Court in the case of Dr. Bipin Shantilal Panchal Vs. State of Gujarat, and in the case of Raghubir Singh and Others Vs. State of Bihar, , wherein the Apex Court has observed that an order of release on bail made under the provisions of Section 167(2) of the Criminal Procedure Code cannot be defeated by lapse of time or by filing of charge-sheet and the order of release on bail can be cancelled only either u/s 437(5) or 439(2) of the Criminal Procedure Code. As such, in my view, when once bail has been granted under the provisions of Section 167(2) of the Criminal Procedure Code for the default of prosecution, not completing the investigation in the required time framed, the same cannot cure the defect immediately after filing of charge-sheet. Only course open for the prosecution in such circumstance is that, it has to seek for cancellation of bail on the grounds mentioned and available under the provisions of Sections 437(5) and 439(2) "like reasonable grounds to believe that the accused has committed the non-bailable offence or that it is just necessary to arrest him and commit him to the custody or that he has violated any of the conditions imposed". Hence without prima facie there being any material at this stage of grant itself u/s 167(2) of the Criminal Procedure Code, the imposition of the Condition No. 6, in my view is clearly illegal and hence the condition is directed to be deleted. However, it is made clear that it is open for the prosecution to seek remedy of cancellation of bail if circumstances are disclosed by filing appropriate application in this regard which has to be considered independently by the Court as provided under the law.

In the result, petition is allowed. The impugned Condition No. 6 directing the petitioner to surrender before the Trial Court immediately after filing of the charge-sheet by the police is hereby set aside.