Order.- In this case, this Court dismissed the bail application on 28th June, 1979, when the accused submitted application for grant of bail. While the accused were under custody, the investigation was not completed within 60 days. Hence invoking the provisions of section 167(2), Criminal Procedure Code, the learned Magistrate did not extend the judicial custody beyond 60 days, but released the accused on bail on their furnishing bond in accordance with the provisions of Chapter XXXIII. But after the charge-sheet was filed, the learned Magistrate took the accused into custody. Hence, the accused filed this application with a request that they should be enlarged on bail. 2. Sri Rama Rao, the learned Counsel for the petitioners, contends that when once the accused were enlarged on bail under section 167(2), Criminal Procedure Code, it is not open to the learned Magistrate to take the accused into custody, unless he cancels the bail granted by him under section 437 (5), Criminal Procedure Code. He further contends that since the learned Magistrate has not followed the provisions of section 437(5), Criminal Procedure Code, and took the accused into custody cancelling the bail only on the ground that the charge-sheet is filed, the order is illegal. 3. Evidently the order passed by the learned Magistrate is not in conformity with the provisions of section 437(5), Criminal Procedure Code. It is now well-settled that where the investigation has not been completed even in cases of murder or dacoity within 60 days after the accused has been remanded to judicial custody under section 167 of the Criminal Procedure Code, it is mandatory for the Magistrate under the proviso (a) to section 167(2) to release the accused on bail, if he is prepared to furnish bail. The accused so released on such a bail under the proviso (a) to section 167(2), Criminal Procedure Code, shall be deemed to be released under the provisions of Chapter XXXIII. The Supreme Court held in Natabar Parida v. State of Orissa1, that even if it is not possible to complete the investigation within 60 days in serious and ghastly types of crimes like murder or dacoity, still the accused is entitled to be enlarged on bail under the proviso (a) to section 167 (2), Criminal Procedure Code. Such a law may be a paradise for the criminals but it would be so under the command of the Legislature. 4. Such a law may be a paradise for the criminals but it would be so under the command of the Legislature. 4. But the questions are, can the accused released on bail under the proviso (a) to section 167(2), Criminal Procedure Code, continued to be on bail even after the charge-sheet is filed after the completion of investigation? Can the Magistrate take him into custody while committing the accused to Sessions Court after a charge-sheet has been filed? 5. Under the proviso (a) to section 167(2), Criminal Procedure Code, the accused is entitled to be enlarged on bail if the investigation is not completed within 60 days. The bail granted under section 167(2)(a) Criminal Procedure Code, should be deemed to be bail granted under the provisions of Chapter XXXIII of the Code. When once the bail granted to the accused was governed by the Chapter XXXIII of the Code, the bail should continue till it is cancelled under section 437(5), Criminal Procedure Code. The filing of charge-sheet after the completion of investigation cannot be a ground for cancellation of the bail granted under the proviso (a) to section 167(2), Criminal Procedure Code, as such a ground is not contemplated by section 437(5), Criminal Procedure Code. Cancellation of bail under section 437(5), Criminal Procedure Code, can be ordered by the Court which has released the accused on bail only on the grounds that the accused on bail committed misconduct or misuse of the term of the bail bond or that the accused is tampering with the evidence or is trying to abscond after the charge-sheet has been filed. In the absence of any such grounds, the Magistrate is not competent to take the accused into custody, cancelling the bail on the mere ground that the charge-sheet has been filed. Hence the Magistrate has no warrant to commit the accused who was actually on bail under the proviso (a) to section 167(2), Criminal Procedure Code, to custody while committing the accused to Sessions Court after the charge-sheet was filed. 6. The Supreme Court considered these questions in Bashir v. State of Haryana2. In the case before their Lordships, the accused were enlarged on bail under the proviso (a) to section 167 (2) on the ground that charge-sheet was not filed within 60 days. 6. The Supreme Court considered these questions in Bashir v. State of Haryana2. In the case before their Lordships, the accused were enlarged on bail under the proviso (a) to section 167 (2) on the ground that charge-sheet was not filed within 60 days. Subsequently, the police filed the charge-sheet and the Magistrate committed the accused to Sessions Court, but released them on bail. The complainant filed an application before the Sessions Court for cancellation of bail on the ground that the applications filed by these accused for grant of bail before they were enlarged on bail under section 167 (2) were dismissed by the Sessions Judge and the High Court. The Sessions Judge, holding that when a charge-sheet was filed under section 173 (2), Criminal Procedure Code, the Court has justification to cancel the bail, allowed the application of the complainant. An appeal was preferred by the accused to the High Court. Before the High Court it was contended on behalf of the accused that when the accused were released under section 167(2), Criminal Procedure Code, unless there was an allegation of misconduct or misuse of the terms of bail bond by them, the bail order could not be withdrawn. It was further contended that the order of bail could be cancelled only under the provisions of section 437(5), Criminal Procedure Code, as section 167(2) is deemed to be a bail order passed under Chapter XXXIII, Criminal Procedure Code. The High Court disagreed with the learned Counsel for the accused-appellants and dismissed the appeal. The High Court took the view that- “The order of bail was passed by the Magistrate in such cases because of the technicalities in law that is the failure of the investigating agency to discharge its duties in time in presenting the challan against the accused within the period directed by section 167, Criminal Procedure Code. The bail order was not on merits of the case. As soon as that ground for which the Court has no option but to release the accused on bail is fulfilled or complied with by the investigating agency, the Magistrate or the Court of Session or the High Court can on that ground cancel the bail allowed earlier. The bail order was not on merits of the case. As soon as that ground for which the Court has no option but to release the accused on bail is fulfilled or complied with by the investigating agency, the Magistrate or the Court of Session or the High Court can on that ground cancel the bail allowed earlier. When such an order of cancellation is passed it is to be presumed that the Court while cancelling the bail has taken into consideration the final report of the police and laid against the accused, first information report, statement under section 161, Criminal Procedure Code and the other material collected by the police during the investigation of the case”. 7. This view taken by the High Court was challenged before their Lordships of the Supreme Court. Before their Lordships, it was submitted that when once the bail was granted under section 167 (2), Criminal Procedure Code, it cannot be cancelled on the mere ground that subsequently the police filed charge-sheet, but the bail order can only be cancelled under the provisions of section 437(5), Criminal Procedure Code. Their Lordships did not accept the view taken by the High Court and held that: “as provisions of section 437(1), (2) and (5) are applicable to a person who has been released under section 167(2), the mere fact that subsequent to his release, a challan has been filed is not sufficient to commit him to custody. The fact that before an order was passed under section 167(2) the bail petitions of the accused were dismissed on merits is not relevant for the purpose of taking action under section 437(5). Neither is it a valid ground that subsequent to release of the appellant a challan 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 section 437(5). This may be done by the Court coming to the conclusion that after challan has 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 as committal to custody on other grounds such as tampering of evidence or that his being at large is not in the interests of justice. It may also order arrest as committal to custody on other grounds such as tampering of 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 section 437(1) and (2)”. Their Lordships approved the ruling in Ram Pal Singh v. State of U.P.1, which held that the bail under section 167(2) has the same incidents on the bail granted under Chapter XXXIII and is accordingly to remain valid till it is cancelled and the cancellation of bail can only be on the grounds known to law and the receipt of the charge-sheet in Court can by itself be no ground for cancellation of the bail. 8. In the case on hand, the learned Magistrate has cancelled the bail without assigning any reasons that such as tampering of the evidence or that the accused would abscond if he is at large. He cancelled the bail on the mere ground that charge-sheet was filed and he should therefore, be committed to custody, I think that the grounds on which the learned Magistrate cancelled the bail are not in conformity with the ruling of the Supreme Court cited above. It is true that under section 209, Criminal Procedure Code, the Magistrate has got the power to commit a case to the Court of Session, if he is satisfied that the offence is triable exclusively by the Court of Session. Cause (b) to section 209, Criminal Procedure Code, says “subject to the provisions of the Code relating to bail, remand the accused to custody during, and until the conclusion of the trial”. It is, therefore, clear that for taking the accused to custody, the Magistrate has to take into consideration the provisions of the Code relating to bail. If the accused was already enlarged on bail, be it even under section 167 (2), Criminal Procedure Code, before he was committed to the Sessions Court, he should be continued to be on bail unless he feels it necessary to invoke the provisions of section 437 (5) and cancels the same. Since, the Magistrate has not followed the provisions of section 437 (5) in cancelling the bail and in taking the accused into custody, the order is vitiated with illegality. 9. Since, the Magistrate has not followed the provisions of section 437 (5) in cancelling the bail and in taking the accused into custody, the order is vitiated with illegality. 9. The petitioners, are therefore, enlarged on bail on their entering into a bond for Rs. 2,000 each with two sureties each for a like sum each to the satisfaction of the Judicial First Class Magistrate, Jagityal.