1 acd IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 5330 OF 2009 Kamalakar Vinayak Badbade ... Applicant Versus The State of Maharashtra & Anr. ... Respondents. ... Mr. Subhash Jha i/b M/s Law Global, for the applicant. Mr. S.A. Shaikh, APP for the State. CORAM : D.G. KARNIK, J. DATED : 11th March 2010 P.C. 1. After this application was decided by an order dated 22.1.2010, learned APP has moved this court again to recall the order on the ground that a binding decision of the Supreme Court was not cited in the matter. 2. In order to appreciate the contention of the learned A.P.P. it is necessary to set out the facts very briefly. A F.I.R. for an offence punishable under sections 406, 420 read with section 34 of the IPC was lodged by Mahesh Tilekar at Samarth 2 Police Station. In the course of investigation the applicant was arrested on 4.4.2009 and was produced before the JMFC. On 18.5.2009 the I.O. intimated the Court that during the investigation it was revealed that the applicant was also liable to be punished under section 409 of the IPC. The I.O. further informed the Court that I.O. was accordingly investigating in respect of added section also. 3. Investigation was not completed and a chargesheet was not filed within 60 days of his arrest. The applicant therefore moved the Magistrate for bail on the ground that the chargesheet was not filed within 60 days and he was entitled to a bail. The prosecution opposed it on the ground that the offence under section 409 of the I.P.C. was punishable with imprisonment for life or imprisonment up to 10 years and therefore the custody could extend up to 90 days. Learned Magistrate upheld the contention of the prosecution and rejected the application for bail. The applicant therefore approached this Court for bail by the present application. 4. At the stage of initial hearing, the learned counsel appearing for the applicant referred to a decision of this Court in the case of Vijay Govind Kasar Vs. The State of Maharashtra 2007 (Supp) Bom.C.R. 532 wherein it was held that in a similar case that it would be governed by a clause (a)(ii) of the proviso to the section-167(2) of the Cr.P.C. 3 Learned APP however referred to another decision of a Single Judge of this Court in the case of The State of Maharashtra Vs. Ketan Sheth & Anr. 2003 All M.R. (Cri)3, wherein this Court held in another similar case that it would be governed by clause (a)(i) of proviso to the section-167(2) of the Cr.P.C. In view of the apparently conflicting decision by two Single Benches of this Court, I referred the matter to the Hon’ble the Chief Justice for making reference to a larger bench. 5. Learned APP submitted that the matter has been covered by a decision of the Supreme Court in the case of Bhupinder Singh Vs. Jarnail Singh (2006) 6 SCC 277 wherein the Supreme Court has held that where the offence is punishable with imprisonment for life or for term up to 10 years the case would be governed by clause (a)(i) of the proviso to the section 167(2) of the Cr.P.C. Learned APP also invited my attention to a decision of a Division Bench of this Court in the case of Nijamuddin Mohammad Bashir Khan Vs. State of Maharashtra, (2006)ALL MR (Cri) 3110, wherein same view has been taken. Both these decisions were not cited and were not noticed when the order of reference was passed.In view of this, the order of reference is required to be recalled. 6. Mr. Jha, learned counsel appearing for the applicant fairly stated that this court has power to recall its own order in the event it is noticed 4 that the order is passed in ignorance of a binding decision of the Supreme Court. In this connection he invited my attention to a decision of the Karnataka High Court in the case of Giridharilal Vs. Pratap Rai Mehta C.P. 109 of 1989 Criminal Law Journal 2382, wherein the Karnataka High Court has pointed out the distinction between a power of review and the power to recall an order. Though, review may not be permissible under section 362 of Cr.P.C., the court can recall its own order wherever necessary. Apart from inherent power which this Court has under section 482 of the Cr.P.C., the High Court being a Court of Record can recall its own order and in case any mistake is noticed, the same can be corrected. Accordingly, the order dated 22.1.2010 is recalled and set aside. 7. Mr. Jha, learned counsel appearing for the applicant states that section 409 of the I.P.C. is wrongly applied by the Police. Whether section-409 has been rightly applied or not would be an issue arising at the trial and it is not necessary to express any opinion at this stage. Suffice to say that since the chargesheet is filed within 90 days, the applicant is not entitled to bail under sections 167(2) of the Cr. P.C. Consequently, the application is dismissed. (D.G. KARNIK,J.)