IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 3163 OF 2008 1.Sanjay Gulab Varbhavan 2.Sunny Millapa Maynar ...Applicants Vs. The State of Maharashtra & Anr. ... Respondents --- Shri Deepak Girme i/b. K.S. Patil for Applicants Shri Rajesh More, APP for State ---- CORAM: V.M. KANADE J. DATED 25TH MARCH, 2009 P.C. 1. Heard the learned Counsel appearing on behalf of the Applicants and the learned APP for the State. 2. The Applicants seek bail on two grounds. Firstly, it is submitted that the Applicants ought to have been granted bail since indefeasible right has been granted in favour of the Applicants on account of chargesheet not being filed in a statutory period as laid down under section 167 (2) of the Cr.P.C. Secondly, it is submitted that though the Learned Magistrate had granted bail on account of non-filing of the chargesheet within 90 days, the said order dated 26.8.2007 was recalled on 27.8.2007 by the Learned Magistrate and the earlier order was modified after it was recalled without giving any notice to the Applicant herein. It is submitted that, therefore, the said order of modification without notice to the Applicants is liable to be set aside. It is also submitted that the Sessions Court had also not taken into consideration the aforesaid as prayed and has erred in rejecting the Applicants' application for bail. 3. Brief facts are as under: The Applicants were arrested on 28.5.2007 for the offence punishable under section 302 r/w. 34 of the Indian Penal Code. The chargesheet was to be filed on or before 26.5.2007. An application was filed for bail under section 167 (2) of Cr.P.C. on 26.8.2007. The Learned Judicial Magistrate, First Class called for the report from the Nazir and after verifying the report, came to the conclusion that the chargesheet has not been filed till 5.35 p.m. on 26.5.2007. The Senior Clerk, JMFC Court No.2 has also recorded that the chargesheet has not been filed on 26.5.2007. This is evident from the original record which was called by this Court. In view of the said report from the Nazir and from the Senior Clerk, the Learned Magistrate was pleased to release the Applicants on bail on 26.8.2007 at 5.45 p.m. Thereafter, on 26.8.2007, the said order was recalled and in view of the report of the Nazir who had submitted that in fact the chargesheet was filed on 24.8.2007 by the police, however, acknowledgment was not given by her due to heavy work, she could not make entry in the register on 24.8.2007, when the chargesheet was submitted at 4.p.m. In view of this report, the Court recalled its earlier order and the application for bail filed by the Applicants was rejected and also the application moved by the sureties for acceptance as sureties was also rejected. 4. The Learned APP for State has filed affidavit in reply. In affidavit in reply, it is stated that in fact, the outward register maintained by the police station indicates that when chargesheet was sent to the Court for the purpose of filing it on the same day, however, no acknowledgment was given to Faraskhana Police Station, Pune. It is submitted that though the chargesheet was submitted before the Learned Judicial Magistrate on 24.8.2007, the entry was effected on the register on 27.8.2007 since closed for holidays on 25.8.2007 and 26.8.2007 being Saturday and Sunday. The copy of the extract of the register dated 23.8.2007 and 27.8.2007 is also annexed to the said affidavit. In the present case, the short question which falls for consideration is whether the Learned Magistrate was justified in modifying his order dated 26.8.2007 without giving notice to the present Applicants and without giving opportunity to the Applicants to file his say regarding the report filed by the Nazir. 5. In my view, the Learned Magistrate clearly erred in recalling the order without giving notice to the Applicants. In his earlier order dated 26.8.2007, he has recorded that the Nazir had given a time till 5.25 p.m. in the evening no chargesheet has been filed. Mere entry in the outward register of the police station would not be sufficient to prove that in fact, chargesheet was filed in the Court on that day. It is difficult to believe that Nazir Department of the court would not give acknowledgment to the police after having received the chargesheet. In the present case, the Senior Clerk of the said court also has submitted that the chargesheet had not been received. The said endorsement has been made in the original record of the Court. So, therefore, apart from the report of the Nazir, the Senior Clerk also has given the said report. 6. Under these circumstances, therefore, the subsequent report given by the Nazir that she had inadvertently not given acknowledgment due to heavy work ought not to have been accepted by the Learned Magistrate without affording an opportunity to the Applicants to file his say on the said report. 7. Section 167 (2) of Cr.P.C. creates indefeasible right in favour of the Applicant of being released on bail in the event no chargesheet has been filed and the Court has no other option but to release the accused on that ground. 8. Under these circumstances, therefore, in my view, the order of modification passed by the Learned Magistrate has to be set aside and quashed. The order is set aside and, as such, the initial oder passed by the Learned Magistrate shall revive . The Learned Magistrate shall accept the sureties which are offered by the Applicants and shall release them on bail. It is clarified that it is open for the prosecution to file application for cancellation of bail or take such other appropriate proceeding before the appropriate Court seeking cancellation of bail granted to the Applicants. All submissions made by the other side are kept open. 9. Application is allowed and disposed of. V.M. KANADE J.