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[22] For proper appreciation of the controversy, it would be proper to refer to the provisions of Sections 167(2) and 439(2) of Cr.P.C.

(2) 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:

[24] Section 439 falls within Chapter XXXIll. Section 439(1) refers to the special powers of the High Court or the Court of Session regarding bail. Sub- section 2 of Section 439 Cr.P.C. says that a High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody. A Fair reading of Section 167(2) and Section 439(2) would clearly bring out the intention of the legislature. A person released under Section 167 (2) would be deemed to have been released under Section 439 and High Court or Court of Session may direct that any person who has been released on bail be arrested and commit him to custody. Section 439(2) from its very language would come into operation after the bail is granted and not at the time when grant of bail is an issue under consideration before the Court. Section 167(2) and Section 439(2) have been subject matter of judicial scrutiny numbers of times. Though the issue is not res-integra but I feel it is my duty to tell to the Lower Courts that judicial obsession or the fear should not weigh in their way while deciding the bail applications.

[31] This judgment is not an authority to say that the Court while considering an application under Section 167(2) of the Cr.P.C is entitled to see whether on a Subsequent application the bail granted under Section 167(2) is likely to be cancelled or not. If that course is adopted it would create a legal problem. The grant of bail under Section 167(2) on default of the prosecution is mandatory Cril. Petn. Nos.5 & 6 of 2021 but cancellation of the bail under Section 437(5) or 439(2) depends upon the exercise of the discretion. In no case under Section 439(2) could be read with Section 167(2). Section 439(2) would come into operation only after the bail is granted to an accused either under Section 167(2) or Section 439(1). It would be fallacy of law to say that on the bail application of the prosecution as the bail can be cancelled, bail should not be granted. The Hon'ble Supreme Court has clearly observed that grounds for cancellation of bail are different such as interference or attempt to interfere with the due course of administration of justice, or evasion or attempt to evade the course of justice, or abuse of the liberty granted to him. The bail granted under Section 167(2) is liable to be cancelled if the Court comes to the conclusion that it was necessary to again arrest the accused and commit him to custody but for such a procedure one would accept strong grounds.

[34] From the above judgments of the Hon'ble Supreme Court, it would clearly appear that irrespective of the nature of the offence or the provisions of law for violation of which the accused has been arrested if the challan/charge- sheet is not filed within the period prescribed i.e. 60 days or 90 days, the accused would have a right to be released on bail. Once the bail is granted to an accused under Section 167(2) of the Cr.P.C on simply filing of the challan the accused cannot be taken back in custody. The law mandates that once an accused is released under Section 167(2) he would be deemed to have been released under provisions of Chapter XXXIII of the Cr.P.C. Such an accused can be taken back in custody if an application under Section 437(5) or 439(2) is filed, For cancellation of the bail, the Court is required to see not only the allegations but will have to keep in mind the observations made by the Hon'ble Supreme Court. None has an authority to say that because accused has committed a ghastly crime and as the bail granted to him is likely to be cancelled under Section 437(5) or 439(2), bail under Section 167(2) should not Cril. Petn. Nos.5 & 6 of 2021 be granted. For following the provisions of law if the accused is required to go to the jail then violation of Section 167(2) would open the lock of the jail and lapses on the part of the prosecution/investigation agency would pave his path for his coming out.