ORDER
B.N. Dash, J.
1. The defect pointed out by the office be ignored
2. Heard learned counsel for the petitioner and the learned Add!. Public Prosecutor.
3. This is an application for bail Under Section 439, Cr. P. C. The petitioner was arrested on 2-2-1991 for having committed an offence Under Section 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act and was forwarded to the Court of the Judicial Magistrate, First Class, Kotpad. Charge-sheet was admittedly not submitted within sixty days from the date of arrest and after submission of charge-sheet the petitioner moved for bail Under Section 167(2), Cr. P.C. (for short ‘the Code’) which was rejected by the learned Magistrate. Thereafter, he preferred Criminal Revision No. 27 of 1991 in the Court of the Sessions Judge, Koraput, Jeypore which was ultimately heard by the learned Addl. Sessions Judge, Jeypore. The learned Addl. Sessions Judge dismissed the revision holding that by the time the bail was moved, charge-sheet had already been filed.
4. It is submitted on behalf of the petitioner that the ground given by the learned Addl. Sessions Judge is not tenable because the right of the petitioner to be released on bail Under Section 167(2) of the Code is absolute and his right for such bail is not to be effected by filing of charge-sheet. The learned Addl. Public Prosecutor on the other hand, contends that once charge-sheet1 is filed before prayer for bail is made, the accused is not entitled to be released on bail as of right. So the short question that falls for consideration is whether an accused is entitled to be released on bail as of right, if charge-sheet has already been filed by the time the prayer for bail is moved.
5. In Rajnikant Jivanla Patel and Anr. v. Intelligence Officer, Narcotic Control Bureau, New Delhi, AIR 1990 SC 71. it has been held as under :
“An order for release on bail under proviso (a) to Section 167(2) may appropriately be termed as an order-on-default. Indeed, it is a release on bail on the default of the prosecution in filing chargesheet within the prescribed period. The right to bail under Section 167(2) proviso (a) thereto is absolute. It is a legislative command and not Court’s discretion. If the investigating agency fails to file charge- sheet before the expiry of 90/60 days, as the case may be, the accused in custody should be released on bail But at that stage, merits of the case are not to be examined. Not at all. In fact, the Magistrate has no power to remand a person beyond the stipulated period of 90/60 days. He must pass an order of bail and communicate the same to the accused to furnish the requisite bail bonds.”
6. This decision of the Supreme Court has been followed in Dayanidhi Khilla v. The Stete, 1991 (1) OLR 207, 71(1991) CLT 332. In Raghubir Singh Mann v. State of Bihar, AIR 1987 SC 119, this case also came up for consideration. Therein, it has been held that an order for release on bail made under the proviso to Section 167(2) is not defeated by lapse of time, the filing of the charge-sheet or by remand to custody Under Section 309 ( ).
7. In view of the aforesaid decisions, I hold that the provision contained in Section 167(2) Cr.P.C is absolute and an accused is entitled to be released on bail as of right even if charge-sheet has already been submitted by the time he moves for bail.
8. In the result, the application for bail is allowed. The petitioner be released on bail of Rs. 5,000/- (Rupees five thousand) with two sureties each for the like amount to the satisfaction of the learned Judicial Magistrate, First Class, Kotpad.. If the prosecution wants that the petitioner should not be given the liberty to remain out-side, it may move for cancellation of bail at the appropriate Court.
9. The Criminal Misc. Case is accordingly disposed of.