R.N Misra, C.J:— This application under section 439 of the Code of Criminal Procedure of 1973 (hereinafter referred to as the ‘Code’) is for enlargement of the petitioner on bail.

2. On the basis of a First Information Report lodged on 6-6-1981, by a police constable alleging that one Kunia alias Pradeep Mohanty had been murdered, a case was registered under section 302, Indian Penal Code and investigation was undertaken by the Capital Police Station, Bhubaneswar. Four persons appeared to have been implicated in the occurrence, namely Babu alias Bijayaketan Mohanty, Jitu alias Binod Behari Mohapatra, Babu alias Jayanta Kumar Rath and Bulu alias Suresh Mohapatra. Suresh remained untraced but the other three accused persons were apprehended. Bijayaketan, the present petitioner, made an application to the Sub-Divisional Judicial Magistrate of Bhubaneswar for being enlarged on bail and his application was rejected on 25-6-1981. On 23-9-1981, bail on his behalf was again moved on the ground that the petitioner had remained in custody for ninety days and yet no charge-sheet was submitted. Keeping the proviso to section 167(2) of the Code in view, the learned Sub-Divisional Judicial Magistrate passed the following order:—

“Bail moved for accused Bijayaketan Mohanty who is in custody since 25-6-1981 forwarded in a case under section 302, I.P.C The said accused has undergone detention for over 90 days and yet no F.F is submitted. No report is received from the I.O either. By lapse of time and prolonged detention, the accused has, therefore, become entitled to bail under section 167, Cr. P.C

The accused is released on bail of Rs. 10,000/- with two sureties for the like amount subject to the conditions that he shall not leave the jurisdiction of the Bhubaneswar Municipality and shall report at the police station as and when required until submission of final form.”

3. Order No. 23 of the Sub-Divisional Judicial Magistrate indicates that bail bonds along with affidavits had been filed for giving effect to the aforesaid order. At that stage, the Assistant Public Prosecutor filed an application for cancellation of the order on the ground that charge sheet had in the meantime been submitted. On the basis of such an application, the following order was made on the same day:—

“Bail bonds along with affidavits are filed on behalf of accused Bijayaketan Mohanty who was released today on bail under section 167, Cr P.C for the delay in submission of the charge-sheet, as the said accused had undergone 90 days of detention. In the meantime, charge-sheet in the case has been received before bail bonds are furnished and the bail order given effect to. The A.P.P files a petition with copy served on the defence advocate for cancellation of bail in the changed circumstances. Heard. With the submission of the charge-sheet by the prosecution, the provisions of section 167, Cr. P.C which had entitled the accused to an order of bail have become inapplicable. The accused is, therefore, not entitled to be released on bail. Perused the evidence on record. I find a prima facie case under section 302/34, I.P.C against the accused in respect of which cognisance is already taken which is triable exclusively by the Court of Session. In the changed circumstances, I am not inclined to give effect to the order and cancel the order of bail under section 437(5), Cr. P.C As the accused is still in custody, there is no order regarding his arrest and commitment to custody. Bail bonds are rejected.”

4. It may be pointed out that after the application for grant of bail was rejected on 25-6-1981 by the Sub-Divisional Judicial Magistrate, the petitioner had moved for bail and had even come before this Court. In Criminal Miscellaneous Case No. 544 of 1981, his application for bail was rejected on merit. On 5-11-1981, petitioner moved the learned Sessions Judge of Puri for being enlarged on bail challenging the order dated 23-9-1981. By order dated 10-11-1981 the learned Sessions Judge rejected the application by holding:—

“There is no direct evidence that the present petitioner along with others had committed the murder of Kunia alias Pradeep Kumar Mohanty, son of Dinabandhu Mohanty. The nature of evidence collected during investigation is of the following type:—

(1) confession of the accused person made before the police;

(2) identification of the present petitioner and his co-accused persons by a shop-owner at Bhubaneswar regarding the fact that the petitioner along with others had purchased a ‘Katari’ from his shop;

(3) the petitioner along with his co-accused persons had visited a particular village where some of the inhabitants of the village had found some blood-like spots over the wearing apparel of the petitioner and his co-accused persons; and

(4) soon after the news of death of Pradeep Kumar spread like hot-cake, the petitioner and his coaccused persons left the said village.

The learned Public Prosecutor does not dispute the above-mentioned facts stated by the learned counsel appearing for the accused persons……………”

5. On a review of the materials, the learned Sessions Judge ultimately rejected the application. Thereupon, the petitioner moved for bail by filing the present application. When it came before a Division Bench for disposal, the learned Judges directed this case to be placed before a Full Bench. Though the order of reference is not a speaking one, we have been told at the Bar that on account of the observations of a Division Bench of this Court in the case of Matia Chalan v. State of Orissa 1, which appeared to be contrary to a Supreme Court decision in Bashir v. State of Haryana . 1977 4 SCC 410, the reference has been made to a larger Bench. section 167(2) of the Code provides:—

“The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:

Provided that—

(a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding,

(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;

(ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;

…………………………”

6. In Bashir's case a Division Court with two learned Judges of the Supreme Court observed:—

“As under section 167(2) a person who has been released on the ground that he had been in custody for a period over sixty days is deemed to be released under the provisions of Chapter XXXIII, his release should be considered as one under section 437(1) or (2). Section 437(5) empowers the Court to direct that the person so released may be arrested if it considers it necessary to do so. The power of the Court to cancel bail if it considers it necessary is preserved in cases where a person has been released on bail under section 437(1) or (2) and these provisions are applicable to a person who has been released under section 167(2). Under section 437(2) when a person is released pending inquiry on the ground that there are not sufficient grounds to believe that he had committed a non-bailable offence may be committed to custody by Court which released him on bail if it is satisfied that there are sufficient grounds for so doing after inquiry is completed. As the provisions of S. 437(1), (2) and (5) are applicable to a person who has been released under S. 167(2) the mere fact that subsequent to his release a challan has been filed is not sufficient to commit him to custody….”

7. The Division Bench of this Court (Matia chalan case) did refer to Bashir's case, and extracted parts thereof in the judgment. Thereafter it referred to the case of The State through the Delhi Administration v. Sanjay Gandhi . 1978 2 SCC 411, where the Supreme Court had observed:—

“………… Cancellation of bail necessarily involves the review of a decision already made and can by and large be permitted only if, by reason of supervening circumstances, it would be no longer conducive to a fair trial to allow the accused to retain his freedom during the trial …………………………”

8. After extracting the aforesaid portion from the Supreme Court decision, the Division Bench proceeded to say:—

“This observation applies to normal cases of cancellation of bail where the accused has been admitted to bail earlier on a consideration of the merits of the case, either by the Magistrate under section 437(1) or (2) or by the Sessions Judge or the High Court under section 439, Criminal Procedure Code. In cases of release of an accused under section 167(2) no decision is rendered for enlarging the accused on bail and, therefore, the normal rule envisaged in the extracted passage of the Supreme Court is inapplicable. It would apply where the accused has been admitted to bail either under section 437(1) or under section 439 and such bail is sought to be cancelled under section 437(5) or under section 439(2), Criminal Procedure Code”

9. We are inclined to agree with counsel for the petitioner that the observations of this Court are against what has been said by the Supreme Court in Bashir's case. The Supreme Court in clear terms, and in our opinion aptly, equated an order of release on bail made under section 167(2) proviso, with an order of grant of bail on merit in terms of section 437(1) of the Code. It was said by the Supreme Court in K. Kamaraja Nadar v. Kunju Thevar . A.I.R 1958 S.C 687.:—

“……………This is a deeming provision and creates a legal fiction. The effect of such a legal fiction however is that a position which otherwise would not obtain is deemed to obtain under those circumstances……………………”

10. Admission to bail under the proviso is certainly not one on merit and, therefore, could not be taken as one under section 437(1) of the Code. The legislature in its wisdom and to meet its policy has deemed an order of bail under the proviso as one on merit under section 437(1). That being the position, there was no warrant for the observation that what the Supreme Court said in Sanjay Gandhi's case, was applicable to a normal case of cancellation of bail and not to a case for cancellation of bail granted under the proviso to section 167(2) of the Code. The deeming provision in the proviso made the grant of bail thereunder equivalent to one under Chapter XXXIII of the Code and, therefore, the order of bail under section 167 of the Code for all purposes became an order under section 437 of the Code. It is relevant to indicate that in the same paragraph of the judgment of the Division Bench of this Court, where the aforesaid observations occur, the following also appears:—

“……………There can be, therefore, no controversy that where the accused has been admitted to bail under section 437(1) or (2) and 439(1), Criminal Procedure Code it cannot be cancelled unless new circumstances came into existence warranting such cancellation. This is what the Supreme Court has said. Applying the same principle to cases of statutory bail under section 167(2), Criminal Procedure Code it will be open to the Magistrate to cancel the bail under section 437(5), Criminal Procedure Code by reason of supervening circumstances coming into existence subsequently. The Magistrate had jurisdiction, power, in the instant case, to cancel bail under sub-section (5) of section 437 where the original bail was not granted on consideration of the merits of the case, but on the basis of mandate of the statute on account of non-filing of the charge-sheet within sixty days of the apprehension.”

11. These observations of the Division Bench seem to run counter to the observations made earlier, but the subsequent portion seems to lay down the correct position being in accord with the view in Bashir's case.

12. In Bashir's case, at page 58 of the Reporter, the Supreme Court again indicated:—

“…………In this case the bail was cancelled and the appellants were ordered to be arrested and committed to custody on the ground that subsequently a charge-sheet had beed filed and that before the appellants were directed to be released under S. 167(2), their bail petitions were dismissed on merits by the Sessions Court and the High Court. The fact that before an order was passed under S. 167(2) the bail petitions of the accused were dismissed on merits is not relevant for the purpose of taking action under S. 437(5). Neither is it a valid ground that subsequent to release of the appellants a challan (charge-sheet) was filed by the police, the Court before directing the arrest of the accused and committing them to custody should consider it necessary to do so under S. 437(5). This may be done by the Court coming to the conclusion that after the challan had been filed there are sufficient grounds that the accused had committed a non-bailable offence and that it is necessary that he should be arrested and committed to custody. It may also order arrest and committal to custody on other grounds such as tampering of the evidence or that his being at large is not in the interests of justice. But it is necessary that the Court should proceed on the basis that he has been deemed to have been released under S. 437(1) and (2).”

13. The Supreme Court has laid adequate emphasis on the position that admission to bail under the proviso to section 167(2) must be taken to be release under section 437(1) and (2) of the Code. The fact that charge-sheet has come subsequent to admission to bail in exercise of the power under the proviso, is by itself of no consequence. The Court has to come to the conclusion that there are sufficient grounds to prima facie take the view that the accused committed a non-bailable offence and that it is necessary that he should be arrested and committed to custody. Re-committal can be ordered also if the Court finds that the accused is involved in tampering of evidence or that the accused being at large would not be in the interests of justice. In the instant case, neither the learned Magistrate nor the Sessions Judge kept this perspective in view while dealing with the question of bail. The law has been succinctly stated by the Supreme Court in Bashir's case, and it is necessary that the matter should go back to the Sub Divisional Judicial Magistrate to be dealt with from the stage as it stood on the 23rd of September, 1981, when the first order admitting the petitioner to bail under section 167(2) of the Code had been made and the prosecution had applied for recall of the order. Section 437(5) of the Code provides:—

“Any Court which has released a person on bail under sub-section (1) or sub-section (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody.”

14. Ordinarily, by the time the application of sub-section (5) comes into play, the accused would be on bail and the question for consideration would be cancellation of the bail and recommittal of the accused to custody. In the instant case, as it appears, the charge-sheet was ready for being placed before the Court and there seems to be no justification why every attempt was not made by the prosecution to have it before the Court so as to avoid application of the proviso to section 167(2) of the Code. If it is a case of want of coordination, better control is called for; but if it is a case of manipulation it is indicative of a serious lapse and should not be permitted to be repeated. We do not intend to say anything more in the absence of clear material.

15. We think it appropriate to take note of the fact that a co-accused of the petitioner had been released on bail by this Court and one of the conditions imposed was that he should report at the police station. It has been reported in the local papers that while he was returning from the police station after reporting his appearance, he was picked up from a busy locality of the Capital Town of Bhubaneswar by a group of miscreants in a vehicle and taken to a lonely area where his right hand has been chopped off. One of the age-old considerations in the matter of grant of bail is ensuring the availability of the accused at the trial. The Supreme Court in the case of The State v. Captain Jagjit Singh . 1962 S.C.D 97. observed:—

“…………… It should then have taken into account the various considerations, such as, nature and seriousness of the offence, the character of the evidence, circumstance which are peculiar to the accused, a reasonable possibility of the presence of the accused not being secured at the trial, reasonable apprehension of witnesses being tampered with, the larger interests of the public or the State, and similar other considerations which arise when a Court is asked for bail in a non-bailable offence……………”

(Emphasis given is ours)

16. Non-availability can be out of voluntary acts like wilfully avoiding by absconding or putting an end to life by suicide; and by involuntary acts like the life of the accused being taken away as an act of reprisal. The majesty of law is affected when a wrong-doer escapes its mighty clutches whether arising out of a voluntary or involuntary situation. This becomes a relevant consideration within the phrase, as in Bashir's decision, “his being at large is not in the interests of justice”.

17. The order of release on bail made on 23-9-1981 should have been permitted to be worked out and then only the question of cancellation of the bail should have come for consideration. Once there is an order for release on bail whether on merit or under the statutory mandate the power to revoke the order is as found in sub-section (5) of section 437 of the Code.

18. That power to cancel bail can be exercised only when the accused is on bail and not in custody. We, therefore, direct that the petitioner be released on bail in terms of the magisterial order of 23rd September, 1981 and the application by the Assistant Public Prosecutor be treated as an application for cancellation of bail u/s. 437(5) of the Code and be disposed of accordingly. To avoid delay, we require the learned Magistrate, while dealing with the question of suffi-ciency of bail, to fix a date for the hearing of the application for cancellation and notify the parties for their appearance.

Dr. B.N Misra, J.:— I agree.

R.C Patnaik, J.:— I agree.

19. Ordered accordingly.