Judgment V.S. KOTWAL, J.:---The surrounding of a hospital which are normally peaceful witnessed a peculiar incident. Not being aware of the design alleged to have been engineered by the person, who was no stranger, on Ashok Singh, the complainant was standing outside the Parsi General Hospital located on Bemanji Petit Road in this metropolitan city engaged in the process of counting currency notes. At that point of time the respondent herein, who was know before hand to the complainant, all of a sudden emerged on the scene and before the complainant could grasp the implications of the situation, the respondent whipped out a knife, held it against the person of the complainant and snatched the bundle of the aid currency notes, which amount to about Rs. 200/- After having achieved the object, the respondent stated fleeing away from the spot. The complainant's reaction was as expected. He stated shouting, which attracted the attention of the passes by. May be that it was the co-incidence, which proved to be very costly and unfortunate for on Vishwanath, who was then passing by the road. He and his fiend responded to the shouts given by the complainant and soon they realised that the respondent had committed mischief and was running away with the booty. These two persons, therefore, chased the respondent for a short distance. The respondent first brandished the knife in order to abandon the chase. By that time the gap of distance was reduced considerably. However, the other friend of Viswanath became more apprehensive of his own safety and withdrew from the chase, whereas Vishwanath was more bold and firm and went ahead all alone. The moment he was in the close proximity of the respondent and thus was obviously in the danger zone, the respondent became more active an aggressive and immediately he inflicted two stab blows in quick succession, which landed on the thigh of Vishwanath, who collapsed on the ground, which facilitated respondent's escape from the spot. Vishwanth's friends and other persons gathered there and saw that Vishwanath's condition was rather precarious as he was profusely bleeding Vishwanath was taken to Nair Hospital, though within a short time of his entry he succumbed to the injuries. 2. The matter was reported to Gamdevi Police Station when the whole of investigation started moving swiftly. Vishwanth's friends and other persons gathered there and saw that Vishwanath's condition was rather precarious as he was profusely bleeding Vishwanath was taken to Nair Hospital, though within a short time of his entry he succumbed to the injuries. 2. The matter was reported to Gamdevi Police Station when the whole of investigation started moving swiftly. I due course the Sub-Inspector attached to the said police station lodged his complaint on the basis of which offence under sections 392 and 302 read with section 34 of the Indian Penal Code pertaining to the act of robber in which Ashok Singh was looted as also an offence under section 302 of the Penal Code as regards homicidal death of Vishwanath was registered. Investigation commenced and the respondent- accused came to be arrested on April 14, 1981. He was accompanied by his associate who was equally involved in the said transaction. He was however, absconding for quite some time and ultimately he came to be arrested on October 5, 1981. The matter was then entrusted to D.C.B., C.I.D when it was registers under new Crime Register number, attached to that wing. After completing the investigation, charge-sheet came to be filed in the Court of the learned Metropolitan Magistrate, 19th Court. Bombay against the respondent herein on July 20, 1981 while the co-accused was shown as absconding. This would complete the narration of the facts of the first phase pertaining to the investigation, culminating in the filing of the charge-sheet. Thereafter certain developments occured when the matter was lodged in the Court. It is relevant to note even at this juncture that after the arrest of the respondent in April 1981 no attempt was made by in whatsoever at any stage before commitment to more the learned Magistrate for bail with the result that from time he was remanded to Police Custody and thereafter to judicial custody. In due course, the respondent was committed to the Court of Sessions in July 1981, which is the subject matter of Sessions Case No. 439 of 1981 pending before the sessions Court, greater Bombay. After the arrest of the co-accused he was also separately committed to the Court of sessions which is the subject matter of Session Case No. 107 of 1982. For obvious reasons, both the Sessions cases were amalgamated. 3. After the arrest of the co-accused he was also separately committed to the Court of sessions which is the subject matter of Session Case No. 107 of 1982. For obvious reasons, both the Sessions cases were amalgamated. 3. It is on September 28, 1981 that for the first time and that too after committal that the respondent filed an application for bail, being Criminal Misc, Application No. 310 of 1981, in the Sessions Court. This application came to be rejected by the Sessions Court on merits. In the meanwhile the co-accused was released by the learned Magistrate on bail, though he jumped bail, but thereafter was re-arrested. 4. Thereafter came into existence further development, which has given rise to this proceeding. The sessions trial was fixed for hearing, though it was adjourned on some occasions since the learned Judge appears to have been busy in other judicial work assigned to him. The matter was then adjourned to January 11, 1983 on which date the prosecution witnesses were present awaiting their turn to give evidence. It is on that day that for the first time the respondent-accused moved the learned Additional Sessions Judge making a peculiar request for bail not resting his claim on the merits of the matter but entitling to take recourse to the provisions of section 167(2) of the Code of Criminal Procedure. In effect it was submitted on behalf of the respondent that since the charge -sheet was not filed with the stipulated period of 90 days after the arrest of the respondent accused, he was entitled to bail, not withstanding the so-called lapse of not presenting an application before the learned Magistrate as equally notwithstanding the motion for bail was rejected previously on merits by the Sessions Court. On the same day, the prosecution moved the Sessions Court suggesting in clear terms that Ashok Singh, who was an important prosecution witness, was threatened by the respondent-accused in corridor of the Court premises when the accused was being taken to the lavatory escorted by the police. 5. The said bail application was not disposed of on 11th, but was adjourned to 12th January 1983 for hearing, on which date the precaution allegations about the threats were also to be considered. On that day, Ashok Singh was placed in the witness box and his examination-in-chief was partially recorded. 5. The said bail application was not disposed of on 11th, but was adjourned to 12th January 1983 for hearing, on which date the precaution allegations about the threats were also to be considered. On that day, Ashok Singh was placed in the witness box and his examination-in-chief was partially recorded. The learned Additional Sessions Judge was persuaded to uphold the validity of the defence contention vis-a-vis the provisions of section 167(2) of the Code of Criminal Procedure and he accordingly directed release of the respondent-accused on bail, though this order was formally passed on the next day i.e. on January 13, 1983. The prosecution asked for stay of the operation of this order to enable them to move this Court. That motion was however, rejected on 14th January, 1983. 6. It is under these circumstances that the prosecution felt obliged to move this Court in this application of cancellation of bail taking serious exception to the validity of the impugned order recorded by the learned trial Judge. 7. To appreciate the thrust of the controversy, a few landmarks in the proceeding can be recapitulated while trying to avoid unnecessary details, though I have indicated quite in details the outline and the structure of the developments. The incident occured on 13th January 1981. The respondent accused was arrested on 14th April ,1981. From time to time he was remanded first to the police custody and then to judicial custody. The charge-sheet was filed on July 20, 1981. The respondent-accused was committed to the Court of Sessions under section 209 of the Code of Criminal Procedure on July 30, 1981. The other accused was absconding for quite some time, who was also committed after he was traced. Both the Sessions Cases were obviously amalgamated as they pertain to the same incident. No application for bail either under section 167(2) or under section 437 of the Code of Criminal Procedure was ever filed by the respondent-accused before the learned Magistrate before he was committed to the Court of Sessions. For the first time on September 28, 1981, obviously after the committal, that the respondent-accused moved the Sessions Court for bail. This bail application was initiated on merits and not under the provisions of section 167 (2) of the Code of Criminal Procedure. For the first time on September 28, 1981, obviously after the committal, that the respondent-accused moved the Sessions Court for bail. This bail application was initiated on merits and not under the provisions of section 167 (2) of the Code of Criminal Procedure. This came to be rejected on merits by the Sessions Court, since thereafter the Sessions Cases were fixed for hearing though could not reach the effective hearing On January 11, 1983 for the first time an application for bail purporting to be one under section 167(2) of the Code of Criminal Procedure was filed by the respondent-accused and that too before the Sessions Court, long after the commitment. That prayer was granted and the accused was released on bail on 13th January, 1983. In between, on 11th January itself an allegation of threat to the prosecution witness was levelled. Motion for stay of operation made by the prosecution was rejected on January 14, 1983. These dates and the developments thereunder would give a fair idea which has generated this controversy. 8. The learned Additional Sessions Judge after considering the provisions contained in section 167(2) of the Code predominantly relied on the ratio of the Full Bench decision of Gujarat High Court in (Babubhai Purushottamdas Patel v. State of Gujarat)1, 1982 Cri. L.J. 284 which decision expressly overruled the earlier decision of the Division Bench of the Same High Court in the matter of (Umedsingh v. State of Gujarat)2, A.I.R. 1977 Gujarat 11. In the said Full Bench decision according to the learned trial Judge, it was expressly held that the entitlement of the accused to bail under section 167(2) in the event of charge-sheet being not filed within a stipulated period of 90 days is absolute and unfettered without any restriction, and the learned trial Judge was further under impression that the said ratio also laid down a proposition quite on high premise that once such bail is granted, then the same cannot be challenged and the bail cannot be cancelled. The learned trial Judge was also of the view that no-filing of such an application before the magistrate, filing of the charge-sheet before making of such an application and even committal of the proceeding to the Sessions Court would in no manner wipe out his right that is inherent in the accused as bestowed by the said provisions. The learned trial Judge was also of the view that no-filing of such an application before the magistrate, filing of the charge-sheet before making of such an application and even committal of the proceeding to the Sessions Court would in no manner wipe out his right that is inherent in the accused as bestowed by the said provisions. The learned trial Judge, therefore, was of the opinion that not withstanding those lapses, the accused was entitled to bail essentially, predominantly and in fact solely on the ground that the charge-sheet was not filed within the stipulated period of 90 days after the arrest of the accused. 9. Shri J.A. Barday, the leaned Public Prosecutor for the State, has seriously controverted the correctness of this view taken by the trial Court. According to him, the relevant provisions of the Code are completely misconstrued and he has further submitted that there is an equally incorrect reading of the ratio of the Full Bench decisions of the Gujarat High Court which was relied upon by the trial Court. Shri S.M. Gupte, the learned Counsel for the respondent-accused, while adopting the reasons assigned by the trial Court, relied on some other judicial pronouncements in support of his contention that the said right, which accrues in favour of the accused under section 167(2) of the Code, is absolute, which cannot be circumscribed by any limitations whatsoever and no power vests in any Court to cancel the said bail, barring exception that such a motion for cancellation can be made only if there are allegations that the accused has tempered with the prosecution evidence or is likely to abscond. In effect, the learned Counsel submits that though the provisions of section 437(5) of the Code of Criminal Procedure may come into operation in the limited filed for cancellation of bail, such a field is available only as regards the limited category of that provision which stipulates that the accused has tampered with the prosecution evidence or has committed breach of the conditions of bail, meaning thereby that the Court would perhaps have no jurisdiction to cancel to bail once so granted under section 167(2) of the Code if there are of such allegations or lapse on the part of the accused. To put it in other form, the learned Counsel endeavoured to submit that the primary category embraced by section 437(5), which is irrespective of any lapse on the part of the accused an resting solely on the merits of the matter, would not entitle the Court to cancel the bail. 10. Since the matter involved is of some general importance, it is deemed essential and proper to consider all the facets thereof in the necessary details. Chapter IV of the Code of Criminal Procedure pertains to the arrest of the prospective accused persons with the corresponding power of the police in that behalf. The Police Officer is enjoined under section 57 of the Code not produce the arrested accused person before the learned Magistrate within 24 hour of his arrest, since he is not authorised to detain such person beyond a period of 24 hours without producing him before the learned Magistrate. One can easily skip over the other provisions, which may not be so germane to this controversy. Section 167 of the Code is placed in Chapter XII under the title as "Information to the police and their powers to investigate." It starts with the recording of the First information Report under section 154 of the Code and then refers to the various powers of the police to investigate. It would not burden the various powers of the police to investigate. It would not burden the record in the context of the controversy to analyse the provisions contained in section 167, 209, 309 and those contained in section 437 of the Code of Criminal Procedure, as the controversy mainly revolves around the said provisions. 11. The first clause of section 167 stipulates production of the accused within 24 hours before the learned Magistrate when the Police can ask for remand on the ground that the investigation could not be complete. 11. The first clause of section 167 stipulates production of the accused within 24 hours before the learned Magistrate when the Police can ask for remand on the ground that the investigation could not be complete. Sub-clause (2), which is of primary importance, clearly stipulates that the Magistrate having jurisdiction to take cognizance of that offence can authorise detention of the accused in such custody either police custody or judicial custody as deemed proper by him beyond the said period of 24 hours with the restriction that in case of police custody it cannot exceed a period of 15 days on the whole which is the upper ceiling though a departure is made as regards posers of the Metropolitan Magistrate in this metropolitan area vis-a-vis remanding accused to the police custody without any ceiling. Proviso to sub-section (2), which is of much importance, stipulates that the detention of the accused in the custody otherwise than the police custody which obviously would be jail or judicial custody, can be granted beyond the said period of 15 days for adequate reasons. This is, however circumscribed by a clear mandate that such a detention can never be directed for a total period of 90 days in respect of serious offences and 60 days in other category of offences and the corollary of the said matter is that after the expiry of the said stipulated period of 90 or 60 days as the case may be, the accused are entitled as of right to be enlarged on bail and this jurisdiction of enlarging the accused on bail can be deemed to be exercised by the learned Magistrate under the provisions of Chapter XXXIII of the Code which relates to the powers of the Court including that of the Magistrate to grant bail. In effect, therefore, on a proper analysis it would be clear that the accused would be required to be produced before the concerned Magistrate within 24 hours after his arrest. Outside this metropolitan city the police custody can be granted if so satisfied by the learned Magistrate for a period with an upper ceiling of 15 days in whole. The custody thereafter when the investigation still is incomplete or for some reasons the charge-sheet is not filed would only be jail or judicial custody. Outside this metropolitan city the police custody can be granted if so satisfied by the learned Magistrate for a period with an upper ceiling of 15 days in whole. The custody thereafter when the investigation still is incomplete or for some reasons the charge-sheet is not filed would only be jail or judicial custody. However, in that category also the detention can be only upto an upper ceiling of 90 days in respect of serious offences and 60 days for the other category of offences whereafter the right accrues in favour of the accused to get bail ipso facto irrespective of the merits of the matter and it is only on the premise that the charge-sheet is not filed within 90 days or 60 days as the case may be. The leaned Magistrate gets no choice or discretion in that behalf. This power is deemed to be exercised under the powers of bail envisaged by Chapter XXXIII of the Code of Criminal Procedure. Section 309 of the Code of Criminal Procedure (which replaces section 344 of the Old Code) prescribes the procedure after Magistrate takes cognizance or after the commencement of enquiry or trial when he is required to adjourn the proceedings and further prescribes the jurisdiction of the Magistrate to remand the accused if in custody during the said period. The custody contemplated therein is obviously judicial custody. 12. Section 209 of the Code of Criminal Procedure relates to the Commitment of the case to the Court of sessions where it appears to the learned Magistrate that the offence is exclusively triable by the Court of Sessions in which event he has to commit him to the Sessions Court and follow the formality such as ending the code and documents to the Court of Sessions and intimating to the learned Public Prosecutor. One of the items in the said procedural form pertaining to this provision is included in sub-clause (b) which reads as :--- "Subject to the provisions of this Code relating to bail remand the accused to custody during, ad until the conclusion of, the trial." This provision of section 209 can obviously said to be self-contained one, relating to the commitment of the accused if the offence is exclusively triable by the Court of Sessions and it also has an in built provision relating to the necessity of the accused being remanded to the custody, the duration of which may be during an till the conclusion of the trial. 13. The forum is then shifted to the Court of Sessions after the commitment when the provisions contained in Chapter XVIII of the Code come into operation, relating to the framing of the charge or discharging the accused on merits as the case may be or with contingency of emitting the case to the trial Magistrate by framing a charge for an offence which can be legitimately tried by the learned Magistrate. If a charge is framed then the trial proceeds until its termination either in acquittal or conviction being recorded. This provision, however, may not detain us in this proceeding. 14. The last category of provisions which are quite relevant pertaining to the power of the Magistrate, Sessions Court and the High Court to grant bail in certain cases and those are clubbed together and placed in Chapter XXXIII under the title "Provisions as to bail and bonds". Section 437 assumes more importance in the wake of this controversy as it pertains to the powers of the learned Magistrate which is quite relevant herein. It is split up into about 7 different clauses, of which clauses (1), (2) and (5) are more germane. Clause (1) is general enunciation of the powers of the learned Magistrate stipulating that a person accused of a non-bailable offences may be enlarged on bail by the Magistrate and thus it vests jurisdiction in the Magistrate to exercise that power of granting of bail even in respect of non-bailable offences. However, his according to jurisdiction is hedged in by two limitations incorporated in sub-clauses (i) and (ii) almost giving a mandate to the learned Magistrate not to release a person of bail, who was embraced by those two clauses. However, his according to jurisdiction is hedged in by two limitations incorporated in sub-clauses (i) and (ii) almost giving a mandate to the learned Magistrate not to release a person of bail, who was embraced by those two clauses. The fist sub-clause clearly stipulates that if there appears reasonable ground for believing that the accused is guilty of an offence punishable with death or imprisonments of life, the Magistrate has no jurisdiction to grant bail. The second sub-clause pertains to the category of such accused persons who have previous conviction of a particular kind to their credit either which, however, we are not much concerned in this controversy. There are obvious provisos to these limits when it is indicated that the accused under 16 years or who is sick or infirm or who is a woman can be released on bail by the Magistrate notwithstanding those limitations in the said two sub-clauses and a residuary power is also vested in the Magistrate that in case of any special reasons, the disqualification under sub-clause (ii) may not create any impediment in enlarging such accused on bail. The legislature also indicated that the only ground of holding test identification parade should not serve as a phohibition from that provision. Sub-section (2) contemplates a different contingency when at that stage on the material so far collected no reasonable grounds for believing about the accused having committed con-bailable offences are not in existence, but the learned Magistrate feels that further enquiries are necessary, then in that event the liberty and freedom of the accused person can be granted. 15. Sub-section (5) however, pertains to the powers of the learn Magistrate to cancel the bail, if it was so granted under sub-section (1) or (2), It would thus be clear that this provision of section 437 also by it self is a compost and self-contained unit. Section 439 pertains to the powers of the Sessions Court and the High Court in the matter of granting bail wherein the limits in respect of nature of the offence that re-case of the Magistrate are released or withdrawn when the matter is so considered by the Session Court or High Court. 16. On examination of the scheme of he Code with reference to these provisions it would be appropriate to consider the ratio and the judicial pronouncement in the context of the controversy create by the parties. 16. On examination of the scheme of he Code with reference to these provisions it would be appropriate to consider the ratio and the judicial pronouncement in the context of the controversy create by the parties. As stated, shri S.M. Gupte, the learned Counsel for the respondent-accused, submits that the right to bail under section 167(2) is absolute and according to him the concept of such absolute right is so spacious that it would wipe out any hurdle that would come in it way and would condone all the lapses on the part of the accused such as not applying to the learned Magistrate within the stipulated period of 90 days or even applying after the bail was refused on merits and the further specious consequence that it can embrace is that once so enlarged on bail under such an absolute right. It cannot be circumscribed the accused or arrested at any time meaning thereby that is entitled, as of right to continue to be on bail till the Sessions trial concludes one way or the other and this would be irrespective of defect that the Magistrate or even the Sessions Court may be fully satisfied that not only offence is a brutal and ghastly one, but there is overwhelming evidence to come to a reasonable conclusion about the guilt of the accused. For obvious reasons, this submission, which tends to being under its sweep such a far reaching consequence, cannot be upheld. It would be also apparent that the main plank of the trial Court's order where reliance was placed on the Full Bench decision of Gujarat High Court is also slippery one, inasmuch as the said ratio has not been correctly construed by the learned Judge. In fact, the learned Additional Sessions Judge has not at all applied is mind to all the necessary features and was perhaps more carried away by the superficial gloss of the matter. 17. The necessity for a larger Bench of the Gujarat High Court to consider this issue arose on account of the ratio of a Division Bench in the matter of (Umed Singh Jadeja v. The State of Gujarat)2, reported in A.I.R. 1977 Gujarat 11 and it does proper that this ratio was expressly overruled by the Full Bench. It would, therefore, be proper to refer to this ratio of the Division Bench at the threshold itself. It would, therefore, be proper to refer to this ratio of the Division Bench at the threshold itself. In the said case, an incident of assault and rioting occurred on September 20, 1974 where ultimately the offence under section 302 read with section 149 of the India Penal Code was registered. Four accused were arrested on September 21, 1974 while the fifth on September 23, 1974 Bail application made before the learned Magistrate on September 30, 1974 came to be rejected on October 3, 1974. Similar request for bail was rejected by the Sessions court on October 11, 1974. An unsuccessful attempt was made to move the High Court in revision for the same relief though the application was withdrawn. It is thereafter that yet another application for bail was filed on November 29, 1974. As luck would have it, was on November 22, 1974 that the charge sheet was filed. The Division Bench held, when the application for bail was presented before it, that the said application was filed obviously after the charge-sheet was filed before the learned Magistrate and, therefore, it would be only the provisions of section 437 of the Code that would come into operation, thereby putting in the background the provisions of section 167 (2) of the Code. It was under those circumstances that the bail application was rejected. During the course of the judgment the Division Bench further observed referring to the contingency that if after filing of a bail application under section 167(2) of the Code of Criminal Procedure and before its disposal the police filed a charge-sheet, the said application for bail cannot be entertained because according to the Division Bench, the provisions contained in section 167(2) co-exist only upto the stage of investigation meaning thereby that one the charge-sheet is filed the investigation comes to an end and the Magistrate is deemed to have taken cognizance and, therefore, the jurisdiction of the Magistrate to grant bail under section 167 (2) of the Code ipso facto comes to an end. It is suggested that it is immaterial if the charge-sheet is filed after the bail application but before its disposal and, therefore, the Magistrate is bound to take into consideration the event of filing of the charge-sheet. It is suggested that it is immaterial if the charge-sheet is filed after the bail application but before its disposal and, therefore, the Magistrate is bound to take into consideration the event of filing of the charge-sheet. The Division Bench observed that reference, to the provisions of section 437(5) of the Code transferred to the concept of bail under section 167(2) is a deeming fiction and that after filing of the charge-sheet even if bail was granted earlier under section 167(2) of the Code the Magistrate can be justified in cancelling the same under section 437(5) of the Code if on merits the accused did not deserve bail. 18. The Full Bench of the Gujarat High Court in Babubhai Prushotamdas Patel v. State of Gujarat, 1982 Cr. L.J. 284 no doubt expressly overruled the ratio of the Division Bench in Umed Singh's case (supra), Certain propositions have been laid down by the Full Bench on which strong reliance is placed by Shri Gupte, the learned Counsel for the respondent-accused in support of his argument. It would be necessary to analyses the said ratio in that judgment in proper perspective. In the said case, the petitioner accused along with other was charged for an offence under sections 302, 342 read with section 34 of the Indian Penal Code on the allegations that while a gold chain on the person of his wife being snatched away he and others assaulted certain persons suspecting them to be involved in the said robbery in which one of the victim died. This incident occurred on the night of 16th and 17th October, 1980. The petitioner moved the trial Court for bail, which was rejected. This order was confirmed by the Session Court and on the further forum of the High Court six accused were released on bail while the petitioner had to remain unsuccessful. The further details of the dates make the picture quite clear. The petitioner was arrested on October 21, 1980 and produced before the committing Magistrate on October 22, 1980. The charge-sheet came to be filed on January 21, 1981 which was obviously beyond a period of 90 days. The petitioner filed an application for bail under section 167(2) of the Code of Criminal Procedure on January 20, 1981. i.e. one day prior to the police filing the charge-sheet, though by that time, stipulated period of 90 days was over. The charge-sheet came to be filed on January 21, 1981 which was obviously beyond a period of 90 days. The petitioner filed an application for bail under section 167(2) of the Code of Criminal Procedure on January 20, 1981. i.e. one day prior to the police filing the charge-sheet, though by that time, stipulated period of 90 days was over. The matter was first placed before the learned Single Judge and thereafter having regard to the importance of the controversy it ultimately come to be placed before the Full Bench. The said Court directed the release of the petitioner-accused presumably upholding the right of the petitioner under section 167(2) of the Code of Criminal Procedure. The ratio in Umed Singh's case (supra) was expressly overruled as is apparent from the discussion and particularly contained in paragraph 23. A query was posed and equally answered that the contingency can be visualised when an application for bail is filed immediately after the expiry of 90 days under section 167, but for some reason the Magistrate could not dispose of the application and before his decision the police filed a charge-sheet, in which event whether the right accrued in favour of the accused on the date of the application for bail comes to an end and this query was answered in negative, which was in contrast with the ratio in Umed singh's case. The Full Bench observed in that behalf that it would frustrate the object of the legislature, since it was essentially aimed at preventing any abuse of the power to carry out investigation which can be frustrated ingeniously if the investigating Officer could delay the investigation and thereby the outer limit prescribed by the legislature could be converted into conferring power on Investigating Officer to delay the completion of investigation. The Full Bench also held in terms that it is logical to hold that the provisions of section 167 creating a right in favour of the accused to get bail after the stipulated period is absolute by itself which cannot be jeopardised by filing of the charge-sheet subsequent to the application though admittedly after the period of 90 days is over. They have also held that in such contingency it is immaterial whether the offence alleged is ghastly or brutal and it is equally immaterial whether there did exist reasonable grounds to believe about the guilt of the accused. They have also held that in such contingency it is immaterial whether the offence alleged is ghastly or brutal and it is equally immaterial whether there did exist reasonable grounds to believe about the guilt of the accused. A reference to provisional of section 309 which are corresponding to those of section 344 of the Old Code are also made holding that the power of remanding accused in custody though formed under section 309 of the Code, still it is that very power being that provision which is the source through which even during the pendency of investigation the accused can be remanded to jail custody. It is also observed that refusal of bail on merits at any tie would not wipe out the entitlement of the accused to get bail if a statutory period of 90 days is transgressed. The power of remand under section 309 of the code is thus to be reading the context of the right to bail under section 167(2) of the Code when the aid right must prevail over the fact mentioned above. Strong reliance is placed by Shri Gupte, the learned Counsel, on certain observations reflected in the said judgment regarding the provisions contained in section 209. According to the Full Bench, it was indicated that once bail is granted under section 167(2) of the Code, its continuance will not be affected by the mere committal of the accused to the Court of Session under section 209 of the Code. In that behalf reliance was placed by the Full Bench on the terminology used in sub-clause (b) of section 209, which according to it was an intentional one. The process of reasoning relating to sub-clause (b) of section 209 of the Code of Criminal Procedure to the effect as :--- "...........It is clear that so far as section 209 is concerned, the powers of remanding the accused to custody or when the case is exclusively triable by Court of Sessions the power of committing the accused to custody are all subject to the provisions of the Code relating to bail. It is true that Chapter XXXIII is headed 'provisions as to bail and bonds' but if the legislature wanted that the provisions of the Code relating to bail referred to in section 209 should only be the provisions of Chapter XXXIII, the legislature would have mentioned the provisions of Chapter XXXIII instead of referring to the generic phrase' provisions of the Code relating to bail........" The process further indicate that in view of the precise terminology being used in section 209 it would mean that the provisions of section 437(5) for cancellation of bail would not apply to the case when the accused is to be committed to the Court of Sessions. The further implied line of reasoning is that by user of the generic term in sub-clause (b) of section 209 relating to the provisions of bail in the Code, it would ipso facto refer to section 167 (2) which also elates to the provisions of bail. It is this combined reading that prompted the aid Court to hold, though by necessary implications, that once the accused is released on bail under section 167(2), he cannot be taken into custody on the eye of his commitment to the Court of Sessions, but as a matter of rule that he will have to be continued to be on bail even though he is committed to the Court of Sessions and thereby it was suggested that his bail could not be cancelled under section 437(5) though of course it was qualified that such bail can be cancelled only in the latter part of sub-Clause (5) of section 437 if the accused commits any breach of the conditions of bail. In other words, at the time of committal even if the Magistrate is satisfied that there are reasonable grounds to believe that the accused is guilty of offence punishable with death or imprisonment for life in which event he normally would not have released the accused on bail and if so released he would have cancelled it under sub-clause (5) of section 437 of the Code, the Magistrate thus will have to shut his eyes to that feature and almost mechanically allow the continuation of the accused on bail once released under section 167(2) till the final conclusion of the trial in the Sessions Court. 19. 19. Despite the apparent and ostensible support in effect to Shri Gupte's contention, the ratio of that decision of the Full Bench needs to be examined on the touch-stone of other features and the provisions of the Code. As stated, the said ratio can be split up into several sub-ratios. The ratio that filing of the charge-sheet after the bail application but before its decision and certainly after 90 days would not wipe out the right of the accused to get bail user section 167(2) of the Code can well be accepted without any demur. The concept of deeming fiction as sought to be incorporated in section 167(2) of the Code vis-a-vis section 437 of the Code, however, requires certain reservation. Similarly, with respect to the learned Judges, I am not include to endorse the view while comparing the provisions of section 209 in the context of sections 167 and 437 of the Code and I am also not inclined to endorse in its entirety the generalised ratio about the continuation of the accused to be on bail even while committing the accused to the Court of Sessions mainly because of certain terminology used in section 209 of the Code. The said ratio, with due respect to the learned Judges, in my opinion, is rather to specious and too generalised and therefore, also requires some clarifications. I would presently point out that some observations in the very judgment by the necessary implications destroy such a broad proposition, which is sought to be canvassed by Shri Gupte, the learned Counsel, and which ostensibly though mistakenly, tends to create an impression likewise under the ratio of the said decision of the Full Bench. 20. To be precise, the Full Bench has observed as :--- "To prevent any such abuse of the power to carry on the investigation, the right or the entitlement conferred on the accused to be released on bail after 90 days, must be considered to be an absolute right, subject of course to the cancellation of the bail if the requirements of section 437(5) are satisfied. The Court before directing arrest of the accused and committing them to the custody should consider it necessary to do so under section 437 (5). The Court before directing arrest of the accused and committing them to the 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 the challan has been filed there are sufficient grounds that the accused had committed a non-bailable offence and that it would be necessary that he should be arrested and committed to the custody." 21. It hardly requires any comments to suggest that even the Full Bench was quite alive to this position with reference to the powers of the learned Magistrate embodied in section 437(5) when it was in terms indicated that the Magistrate even after having enlarged the accused on bail on the only ground of non-filing the charge-sheet within 90 days can take him back into custody under the process of cancellation of bail under section 437(5) and it is expressly indicated that this can be done by the learned Magistrate if after filing of the charge-sheet he is satisfied that the accused has committed the non-bailable offence and it is necessary to arrest him. By necessary implication, therefore, a direct nexus has been established even under this ratio between section 167(2) and section 437(1) and (5) of the Code and permissibility of such a course that though the accused having been so released under section 167(2) he could be taken back into custody by cancellation of his bail and this by further implication can legitimately be done not only on the ground of any lapse committed by the accused regarding conditions of bail or about the allegations of his tampering with the evidence, but even on the general principle as contained in he said provisions if the learned Magistrate is satisfied that there are sufficient grounds that the accused has committed a non-bailable offence and that it is necessary to arrest and commit him to the custody which in turn would have reference to the provisions of section 437(1) with the provisions making it equally relevant the consideration about the satisfaction of the learned Magistrate regarding the existence of reasonable grounds to believe that the accused has committed and would be guilty of an offence punishable with death or imprisonment for life. This satisfaction obviously stipulates application of mind by the learned Magistrate to the merits of the case and to no other consideration. This satisfaction obviously stipulates application of mind by the learned Magistrate to the merits of the case and to no other consideration. The user of the more generic term in sub-section (5) would cover all such stipulations since it makes reference to sub-sections (1) and (2) which are the only basic foundations regarding granting of bail. Significantly, the learned Judges in the said Full Bench decision unequivocally observed that for the purpose of cancellation of bail under sub-section (5) the Magistrate (a) has to consider about the existence of sufficient grounds about the complicity of the accused in the said offence and necessity to take him in custody and (b) this can be done after the filing of the charge-sheet. Both the parts read together make it not only permissible but necessary regarding the application of mind even to the merits of the case after the filing of the charge-sheet. In my opinion, therefore, the answer is furnished by the learned Judges themselves in the said ratio, which obviously tends to demolish the specious submission canvassed by Shri Gupte in that behalf. The deductions are drawn from the observations themselves in the said judgment. It, however, it is otherwise, then with respect, I am unable to persuade myself to agree with the said proposition which would be too spacious and generalised as also offending the object and specific provisions of the Code. 22. This gets reinforced by very eloquent observation of the Supreme Court in (Bashir v. State of Haryana)3, A.I.R. 1978 S.C. 55, as :--- "........The power of the Court to cancel the bail if it considers it necessary is preserved in case where the person has been released on bail under section 437(1) and (2) of the Code and those provisions are applicable to the person who has been released under section 167(2) of the Code......." It was then further observed with reference to the situation when the accused is already released on bail under section 167(2) of the Code as :--- ".......The fact that before the order was passed under section 167(2) the bail petitions of the accused were dismissed on merit is not relevant for the purpose of taking an action under section 437(5). Neither is it a valid ground that subsequent to the release of the accused a challan was filed by the police......." It is thereafter that the Supreme Court observed, which observations are extremely relevant, as :--- ".......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 the challan was filed there are sufficient grounds to believe that the accused had committed non-bailable offence and that it is necessary that he should be arrested and committed to the custody..........It may also arrest and commit to custody on other ground such as tampering with the evidence and that he being at large is not in the interest of justice........" 23. The offence being non-bailable is the requirement of the whole of section 437. Formation of opinion of the Magistrate about the necessity to take the accused in custody is the further requirement of sub-section (5). This can be attracted by a variety of contingencies. One would consist of the default or attempt to tamper with the evidence or any breach of conditions of bail by the accused. The other, however, may be de hors of the former and of a generalised character, such as covered by the proviso to sub-section (1) in that there are reasonable grounds to believe that the accused is guilty of an offence punishable with death or imprisonment for life, which may be the normal consideration for not granting bail and which thereby can equally satisfy the necessity to take the accused in custody, if already released on bail. In effect, therefore, such satisfaction about the nature of offence and involvement of the accused therein would, when read in the context of sub-section (1) with the proviso thereto, answer the stipulation under sub-section (5). The first category may be non-bailable, but not necessarily one punishable with death or imprisonment for life. This would also be in consonance with the provisions of sub-section (2) read with sub-section (5) of section 437 wherein releasing the accused at an earlier stage would be permissible, though impliedly the necessity to take him in custody in the face of additional material collected in the further enquiry, is visualised. This again would be pointer to the construction of section 437(5) as also section 167(2). This again would be pointer to the construction of section 437(5) as also section 167(2). In any event, the construction of section 437 (5) as indicated hereinabove vis-a-vis different categories is accepted by the Supreme Court in Bashir' case (supra). It is thus made clear that the right of the Magistrate to cancel the bail under section 437(5) of the Code in case he has released the accused on bail under sub-section (1) or (2) is preserved under this provision and the same analogy would apply to the case where the accused is released on bail under section 167(2). The position is further clarified expressly when it is observed that the Magistrate has an authority to cancel the bail under section 437(5) even though he is released on bail earlier and that authority can be exercised not only when the accused commits lapse such as tempering with the evidence but also on the general principle that the learned Magistrate is satisfied that there are reasonable grounds to believe that he is guilty of certain non-bailable offence. As stated earlier, section 437(5) contemplates more then one contingencies one of which would obviously have relevance to section 437(1) along with the proviso. It would thus be clear that the consideration of the merits in the context of section 437 is not only permissible but also obligatory meaning thereby that even after releasing the accused, the bail can be cancelled on the said general principle which conclusion can be arrived at only on perusal of the papers of investigation on merits. It is further expressly stipulated that his would squarely apply even to the bail granted under section 167(2) of the Code. It is further expressly stipulated that his would squarely apply even to the bail granted under section 167(2) of the Code. Thus reading in juxtaposition it would be clear that in the first instance, the provision of cancellation of bail under section 437(5) would equally apply even to a case where the accused is released on bail under section 167(2) of the Code and secondly cancellation can be even on the ground that the accused has committed a non-bailable offence and it is necessary to take him in custody, which in a composite form amounts to the satisfaction that the accused is guilty of an offence punishable with death or imprisonment for life and thus not restricting to the other contingency relating to the lapses or breach of conditions or other allied matters, and which thus necessarily would touch the merits of the charge-sheet. This is the inevitable result, which has been enunciated by the Supreme Court in Bashir's case (supra) and significantly it has been impliedly accepted by the Full Bench of the Gujarat High Court as already discussed. 24. It would, therefore, be clear that the controversy as to whether the provision of section 167 co-exist only with the stage of investigation and its termination synchronises with the filing of the charge-sheet may not furnish any confrontation as such. It may be that even assuming as held by the Full Bench in Babubhai's case that this right to get bail under section 167 of the Code is not restricted only upto the stage of investigation and what ever label one may attach to the situation, the fact remains and which is inescapable that one the charge-sheet is filed the necessity for the learned Magistrate to examine the matter on merits would obviously come into existence in a patent form which upto stage was below the surface in the latent form, as while releasing the accused under section 167(2) he had to concentrate only on the issue whether the charge-sheet was filed within 90 days or not. Once that necessity to examine the matter which, as stated earlier, is brought on the surface after filing of the charge-sheet, it would be futile to contend that, even if the Magistrate is satisfied on merits that there are reasonable grounds to believe that the accused would be guilty of the said offence when there is more than adequate material both the involvement of the accused as also there is necessity to take him in custody that he would be compelled to ignore and overlook all these features and would equally be compelled not to cancel the bail under section 437(5) but to continue the accused to be on bail even upto the stage of conclusion of the Sessions trial. 25. There is yet another shade to this aspect. Reference to the provisions contained Chapter XXXIII relating to bail and bonds as embodied in section 167(2) of the Code has a restrictive meaning. It does not mean that the provisions of section 437(5) remain not only stale but inactive once the bail is granted under section 167. By such a reference what has really been done is, there is no transplanting as such of those provisions in the latter one, but the reference really speaking only indicates the vesting of jurisdiction in the Magistrate to release the accused on bail under section 167(2). It is obvious that the source out of which springs the authority of the Magistrate to release the accused on bail falls only under section 437. Therefore, section 167(2) without any reference to the provisions of section 437 would have been merely an idle or empty provision. The right or the entitlement of the accused is the substantive clause of that provision under section 167(2) of the Code, being contingent on the police not filing the charge-sheet within the stipulated period. However, that was not enough, since there has got to be some provision under which this basis of the right or entitlement could be translated into action by releasing the accused on bail and it is in that context that the reference is made to the provisions of Chapter XXXIII which contains section 437 which thus would indicate that such reference is restricted only as an enabling provision, so as to enable the learned Magistrate to release the accused on bail under section 167(2) of the Code. Reference in the same provision to the command to the Magistrate to release the accused on bail once such right accrues in his favour no doubt may ostensibly tend to suggest that not only the right or entitlement but even its implementation are both clubbed together in composite form in section 167(2) read with the proviso and thus those would be independent of section 437. However, really there was no necessity to make any reference to Chapter XXXIII in section 167(2) while considering the question of releasing the accused on bail. In effect, therefore, the said reference highlights the basic source of power to release the accused on bail. The right or entitlement to bail can be distinct from the machinery or process of releasing on bail. The deeming fiction thus enables the Magistrate just as to release the accused on bail even to cancel the bail if already granted, since both the provisions incorporated in section 437 regarding releasing on bail and cancellation of bail would co-exist. That would, therefore, indicate that all the provisions of section 437 of the Code including sub-section (5) regarding cancellation of bail cannot be overshadowed by those of section 167(2). It is also relevant to not that reference in section 167(2) is to Chapter XXXIII and not individually to section 437, though, of course, bail can be granted therein only under sub-section (1) or (2), which in turn would further make the apparent fallacy quite bold viz, that if it is assumed that the accused who is released under section 167(2) is actually released under section 437(1) or (2) then, sub-section (1) would be accompanied by its proviso which would further assume that there was no impediment in releasing the accused on bail as contemplated by proviso (i) to section 437(1) though in reality thee may exist reasonable grounds to believe that the accused would be guilty of an offence as contemplated therein in which event the Magistrate would have no power to release the accused. This would thus mean that by this process what is expressly prohibited under section 437 is impliedly overcome under section 167(2). 26. This would thus mean that by this process what is expressly prohibited under section 437 is impliedly overcome under section 167(2). 26. A reference is made in some of the decisions to the ratio in (Natabar Parida v. State of Orissa)4, A.I.R. 1975 S.C. 1465 on which reliance was equally placed by Shri Gupte and that essentially pertains to the provisions contained in section 309 of the Code, which is corresponding to section 344 of the old Code. It was suggested that the provisions of the Code indicated that remand can be granted from time to time during investigation while the new provision of section 309 suggest that it can be done even after filing of the charge-sheet. Comparing the provisions of sections 167 and 309 of the Code, it was observed that the former would apply during the stage of investigation while the latter after the Court takes cognizance or after the commencement of trial, though both relate to the power of remand particularly to judicial custody. It also enunciates a proposition that the accused may not get the benefit of section 167(2) if he was arrested prior to the coming into force of this provision. This ratio really speaking may not govern the fate of this proceeding. However, there is some reference, which is relevant in the limited field, wherein the Supreme Court after taking survey of the provisions of section 167(2) and section 309, the Code felt that notwithstanding the provisions contained in section 309, there is a legislative command to the Magistrate to release the accused on bail if he is so prepared, if the charge-sheet is to filed within 90 days, which can apply even to serious offences, which may even be ghastly or brutal and which, the Supreme Court eloquently observed, 'may furnish as paradise for the criminals' which consideration according to the Court was immaterial. It is in that behalf ultimately observed as :--- "........Yet the intention of the legislature seems to be to grant no discretion to the Court and to make it obligatory to release the accused on bail. It has been provided in proviso (a) that the accused released on bail under section 167 will be deemed to be so released under the provisions of Chapter XXXIII and for the purpose of that Chapter. It has been provided in proviso (a) that the accused released on bail under section 167 will be deemed to be so released under the provisions of Chapter XXXIII and for the purpose of that Chapter. That may empower the Court releasing him on bail, if it considers necessary so to do, to direct that such person be arrested and committed to custody as provided in sub-section (5) of section 437 occurring in Chapter XXXIII....." However, as stated, this ratio does not resolve the controversy posed in this proceeding since it predominately highlights the legislative command incorporated in section 167. The observations therein are thus relevant only in a limited field. 27. It is true that sub-section (1) of section 437 of the Code with sub-clauses (i) and (ii) suggests the jurisdiction of the Magistrate to grant bail and the limits therefore incorporated in those two sub-clauses and it is equally true that it has been observed in some of these ratios that the accused, who is released on bail under section 167(2) would be deemed to have been so released under sub-section (1) or (2) of section 437 of the Code. This however stops at that and should not be confused to mean that by resting on this analogy and interpretation by confused the accused under section 167 (2) the learned Magistrate has held that there are no reasonable grounds to believe that he is guilty of the said offence. Reference to sub-sections (1) and (2) creates only the enabling provision. It is thus manifest inasmuch as while releasing the accused under section 167 the Magistrate need not even peruse a single document much less need he apply his mind about the existence or otherwise of reasonable grounds an he can mechanically release the accused on bail. This would, therefore, high-light the concept of reference to the provisions of section 437 as contained in section 167. To put it in other form, merits of the matter are irrelevant and need not even be considered while releasing the accused on bail under section 167(2) if the charge-sheet is not filed within the stipulated period. In contrast, only the merits are relevant and not the question relating to the filing of the charge-sheet while granting bail under section 437. In contrast, only the merits are relevant and not the question relating to the filing of the charge-sheet while granting bail under section 437. In this situation, therefore, when the considerations for bail are entirely on different tracks, it would be a fallacy to say tat by making reference to the provisions of Chapter XXXIII containing section 437 in section 167, the accused would be so released or at least deemed to have been so released under section 437 on the basis of the consideration on merits as is relevant under sub-sections (1) and (2) of section 437. In reality as also under the deeming fiction he is not released on the considerations relevant to section 437. Therefore, it is manifest that by such deeming fiction and its incorporation in the provisions of section 167, only the implementation of releasing the accused on bails introduced, for which purpose reference to the basic power of releasing on bail was necessary. Otherwise, it would amount to confusing the release on technical ground under section 167(2) tantamount and equivalent to the release on merits under section 437, though it is not so in reality. Indeed, the necessity only to create such a deeming fiction reveals the reality about its user in a restrictive seances only as an enabling provision. This would logically embrace the provisions of section 437 (5) so as to enable the Magistrate to cancel the bail. 28. This would, therefore, forfeit the right of the accused person to contend that the Magistrate cannot go back, after having released him on bail, to cancel bail holding that there did exist such reasonable grounds. In fact, such consideration was non-existent when bail was granted under section 167(2). However, the non-filing of the charge-sheet within the prescribed period was the only consideration that was in existence and not any material on merit, meaning thereby that once that material is placed before the Court after the filing of charge-sheet, the existence or otherwise of the relevant reasonable grounds have to be taken into account for the purposes of cancellation of bail even though the accused is released under section 167 on an entirely different premise. If the contention raised by Shri Gupte is to be accepted, then it, apart from resulting in ignoring the relevant mandatory provisions of the Code and frustrating the legislative intent thereunder, would entail into far-reaching and almost atrocious consequences. If the contention raised by Shri Gupte is to be accepted, then it, apart from resulting in ignoring the relevant mandatory provisions of the Code and frustrating the legislative intent thereunder, would entail into far-reaching and almost atrocious consequences. Thus, extending to the so called logical end, the argument would well be that on a particular date immediately after the completion of 90 days when no charge-sheet filed the accused gets bail. The charge-sheet is filed thereafter and the Magistrate is satisfied that not only the offence is ghastly but the involvement of the accused is deep and full with overwhelming credible evidence and also about the necessity to take him in custody. Even then he is helpless. He then commits the accused under section 209 of the Code to the Court of Sessions when he is satisfied that the offence is exclusively triable by the Court of Sessions. Even then he has to continue the accused to be on bail. Then on the forum of the Sessions Court the accused has got to be continued on bail even though the learned Judge is satisfied that there is overwhelming evidence against the accused in which event the accused otherwise would not have been granted bail on merits. Even the Session Judge there would be helpless. He has then to continue the trial which terminated in conviction or acquittal Upto that point of time the accused gets protection. It is also clear that by this process of reasoning even the powers under section 439 of the Code which are vested in the Sessions Court and the High Court would become almost idle or empty and equally not only the Session Court by even this Court would be helpless even if it is satisfied that the bail deserves to be cancelled immediately. In my opinion, this result could never be intended by the legislature which would lead only to an absurdity completely frustrating the object behind the enactment. I am also tempted to observe that the situation under which the investigation is not complete and the charge-sheet is not filed within stipulated period of 90 days or 60 days, a the case may be, by the police can be for more than one reason inasmuch as it may be that inspite of diligence by the police, on account of some unforeseen reason beyond their control, they could not do so. The second contingency is that it may be on account of their sheer negligence. In both these contingencies, the accused could get benefit, almost of a lasting nature. One is also tempted to visualise yet another contingency that if this view as propagated by the defence is to be accepted then apart from the diligence or negligence on the part of the police, it would leave the doors open for the scope of mischief being committed by the police for the benefit of the accused so that they can deliberately delay the filing of the charge-sheet. This can hardly be the object of the legislature. The underlying principle that the person should not languish in custody for undue period and to put the police into action to complete the investigation as early as possible, is apparent. This object is not frustrated and will be achieved by granting bail to the accused, though, it cannot be stretched that far as sought to be done by the learned Counsel for the accused. The ratio, therefore, is inescapable. 29. This really is enough to seal the fate of this proceeding inasmuch as the learned Additional Sessions Judge was thoroughly in error in granting bail only on that count, without reference whatsoever to the merits and as stated, his reading of the Full Bench decision of the Gujarat High Court is not correct and apart from that, the relevant provisions of the Code do not warrant that conclusion. Consequently on this basis alone, the accused for-feits the right to get bail, which can be done legitimately and lawfully by resorting to provisions of section 437(5) by cancelling the same. The impugned order, therefore, which is fully untenable and erroneous, must be corrected. 30. I may incidentally observe that as regards the aspect pertaining to section 209 of the Code as enunciated in the Full Bench decision of the Gujarat High Court in Babubhai's case, it is difficult for me to persuade myself to accept the same in its entirety. 31. I am inclined to take the view, with utmost respect to the learned Judges that the said ratio can be considered with certain reservations. 31. I am inclined to take the view, with utmost respect to the learned Judges that the said ratio can be considered with certain reservations. As stated earlier, the predominent ground on which that view was propagated was based on user of particular terminology in Clause (b) of section 209, which is in contrast with the terminology used in section 167(2) with reference to Chapter XXXIII. The learned Judges took the view that the provision of sub-clause (b) of section 209 is broader in itself and would govern the case where the accused is released on bail under section 167(2) of the Code or otherwise according to the learned Judges, the legislature would have referred to Chapter XXXIII vis-a-vis the provisions of bail in Clause (b) of section 209 of the Code. In the first instance, I feel that the distinction sought to be made is not real. However, the more fundamental feature is that it proceeds on the footing that the provisions of section 167(2) are independent of and in addition to those contained in Chapter XXXIII. This in my opinion, with respect, is an erroneous foundation. As indicated earlier, reference to Chapter XXXIII in section 167 is not tantamount to say that these provisions are bodily lifted and incorporated in toe provisions. That reference is merely an item enabling the learned Magistrate to release the accused under section 167(2) of the Code. It is clear that the basis of section 167(2) is entitlement of the accused to get bail. The Magistrate must have some authority or jurisdiction to grant that bail to as to implement that object into action. That process of implementation is not incorporated in section 167(2) by itself, but it becomes capable of such implantation only by reference to Chapter XXXIII. Further elaboration in my opinion is not necessary, since this aspect is already discussed in detail, though in other context. In my opinion, therefore, reference to the provisions of bail in sections 167(2) and 209(b) are in reality on par with each other since the source is the one that is contained in Chapter XXXIII. It is also clear that the learned Magistrate at the time of commitment would be essentially required to be satisfied as to whether it appears that the offence as disclosed through the papers is triable exclusively by the Court of sessions. It is also clear that the learned Magistrate at the time of commitment would be essentially required to be satisfied as to whether it appears that the offence as disclosed through the papers is triable exclusively by the Court of sessions. This Court had an occasion to consider the scope of the powers of the learned Magistrate in the matter of committing the case to the Court of Session as also the powers in the matter of granting of bail in such cases which are triable exclusively by the Court of Sessions in (Dr. Datta Samant v. State of Maharashtra)5, 1981 Bom.C.R. 193 to which I am a party and, therefore, restating of those propositions is unnecessary. It is clear that without perusing papers and before charge-sheet is field the accused can be released on bail after a period of 90 days is over. The papers are lodged in the Court when the charge-sheet is filed. Those are got to be perused by the Magistrate, to decide whether the case can be committed to the Court of Sessions. If at that stage through the process of perusal it reveals to the Magistrate, which occasion had to arisen earlier, that there did exist reasonable grounds to believe that the accused is guilty of an offence punishable with death or imprisonment for life then at the time of committal, he can certainly take the accused in custody, which, involves the mode of bail under section 437(5) of the Code. If this authority and power is not upheld, then an equally anomalous result as indicated earlier would ensue and which would again frustrate the object of the Code. In my opinion, therefore, the ratio enunciated by the Full Bench of Gujarat High Court in Babubai's case in that category cannot be accepted wholesale, and it will have to be held that the Magistrate has legitimate jurisdiction to cancel the bail and to take the accused in custody at the time of commitment of the case to the Court of Sessions, though, as discussed in Dr. Datta Samant's case (supra), the Magistrate may have in some cases power to grant bail to the accused, if the facts so justify, and thus entirely depending on the merits of the matter, and which also will have to be in consonance with and not in violation of the provisions of bail under section 437 of the Code, which, however, is entirely distinct from the process of mechanically granting of bail under section 167(2). It need not be restated that for committal proceedings as also for enlarging the accused on bail in the matter which is exclusively triable by the Court of Sessions, a limited field is carved out within the framework of the provisions of sections 209 and 439 of the Code for the operation by the Magistrate. The interpretation of section 209 of the Code, therefore, will have to be in consonance with this provision of the Code. This aspect, however, is not quite germane to this proceeding since it is being raised in a different context, since the controversy relates more to the question about the scope of section 167 along with its duration and its impact on the provisions contained in section 209. Reference, therefore, to the other aspects arising out of sections 209 and 437 would be incidental, more so when the scope of the general powers of bail in cases of non bailable offences under section 439, the powers to commit the case to the Court of Sessions when the offence is exclusively triable by that Court and the field of powers vesting in the Magistrate to grant bail even though the case is being committed to the Court of Sessions, are also elaborately discussed in Dr. Datta Samant's case (supra) and as such restating of the said principles over again is unnecessary, though the same can be conveniently read in this proceeding also. There is thus no substance in that contention also as raised by Shri Gupte, the learned Counsel. 32. The Division Bench of this Court had an occasion to consider this aspect in (Shrawan Hanaji Undirwade v. State of Maharashtra)6, 1976 Mh.L.J. 654. The first proposition enunciated therein is that section 167(2) creates a right in favour of the accused to be released on bail if he is prepared and furnishes bail. 32. The Division Bench of this Court had an occasion to consider this aspect in (Shrawan Hanaji Undirwade v. State of Maharashtra)6, 1976 Mh.L.J. 654. The first proposition enunciated therein is that section 167(2) creates a right in favour of the accused to be released on bail if he is prepared and furnishes bail. It is also observed that detention of the accused beyond a period of 60 days is not ipso facto Illegal, since it is necessary for the accused to apply in that behalf. It is also indicated that mere preparedness of the accused to furnish the bail is not enough, but he is enjoined further to furnish security in that behalf. It is enunciated as :--- ".........A right created under section 167 of the Code could be exercised by the accused before the completion of the investigation and filing of the charge-sheet in that behalf. Once the charge-sheet is filed then the Magistrate can exercise his power of granting him bail only under section 437 of the Code......" With respect, therefore, this ratio justifies the view that I am taking in this matter. Shri Gupte relied on some of the observations of the Supreme Court in (Hussainara Khatoon v. State of Bihar)7, A.I.R. 1979 S.C. 1379. It does not upset any of the observations in this decision of the Division Bench as the Supreme Court observed that it is the duty of the Magistrate to make the accused aware of his right to get bail under section 167(2) if the charge-sheet is not filed within the prescribed period. 33. Yet another Division Bench of this Court had an occasion to deal with this aspect in Criminal Applications Nos. 2439 2517 of 1976 decided on October 20, 1976. The interpretation of section 167(2) read in the context of section 437(5) as also section 209 of the Code figures under discussion. This Court clearly held that granting of bail under section 167(2) has obviously its own limitation and, therefore, shorter duration and the accused can be taken back under custody under section 437(5) and it is further indicated that this can be so done, even while committing the accused to the Court of Sessions under section 209 and the provision of sub-clause (3) of section 209 was accordingly interpreted. This Court observed as :--- "...........Clause (b) of section 209 makes it obligatory on the Magistrate to remand the accused in custody during and until the conclusion of the trial subject, however, to the provisions of new Code relating thereto. Section 167 in terms fictionally provides that the person so released shall be deemed to be released under the provisions of Chapter XXXIII. Thus deeming fiction will necessarily employ that provision with regard to the cancellation of bail provided under section 437(5) automatically while dealing with an application in a case for bail granted under section 437............Section 209 referred to above requires a Magistrate to commit that person to custody and for the purpose of committing the accused to custody while committing to the accused to custody while committing to the Court of Session, it is obvious that the only power that can e exercised by the Magistrate would be the power under section 437(5) of the Code.........." The Division Bench further held that section 167(2) and section 437(5) operate under different conditions and after examining the scheme of this provision, it is observed as :--- "............Having regard to the scheme of this provision in sections 167 and 437, we are of the view that once a charge-sheet is put up the accused if he wants to take advantage of the bail must bring has case within the provisions of section 437(1) and if that is not possible, the Magistrate must take recourse to his power under section 437(5) to cancel the bail............" 34. A similar situation had arisen in (Kapur Singh v. State of Haryana)8, 1975 Cri. L.J. 1007, on which reliance was placed by the Division Bench in Criminal Applications Nos. 2439 and 2517 of 1976 (supra) when the accused was all along on bail under section 167(2) but when the challan was filed, the learned Magistrate found that the offences were exclusively triable by the Court of Sessions and accordingly he committed him in the custody while transmitting the case to the Court of Sessions under section 209 sub-clauses (a) and (b) of the Code. Prayer for bail was rejected. Prayer for bail was rejected. The Supreme Court while rejecting the motion for bail upheld the Magistate's power to cancel the bail and take the accused in custody at the time of committing the case to the Court of Sessions, though he was earlier released on bail under section 167(2) of the Code. This authority, therefore, reinforces my findings and squarely answers the question posed on behalf of the appellant by Shri Gupte. 35. These features and ratios squarely answer in the affirmative not only the permissibility but the necessity of the accused being taken in custody under section 209(b) while committing him to the Court of Sessions. 36. The logical deductions emerging out of the aforesaid discussion vis-a-vis the provisions contained in sections 167(2), 209, 309 and 437 as also having reference to the various ratios of the judicial pronouncements which are elaborately discussed hereinabove, can be catalogued as :--- Non filing of the charge-sheet within the stipulated period of 60 days or 90 days, as the case may be, accrues a right in favour of the accused for being entitled to be released on bail under section 167(2) of the Code provided the accused is prepared and furnishes bail. The said entitlement is irrespective of any other consideration. The merits of the matter recedes in the background to which the learned Magistrate need not address himself, but has to restrict only to the two termini, the arrest of the accused, filing of the charge-sheet and the span of period involved in between. This right of being entitled to bail is absolute only in that limited filed, but the filed and extent of such absoluteness cannot be expanded beyond a circuit and as such certain limitation are hedged in, which, however, would come on the forefront only after filing of the charge-sheet. Section 167(2) is incorporated only as an enabling provision so that on the happening of that contingency and right being accrued in favour of the accused and the motion being made in that behalf, the Magistate gets jurisdiction and authority to release the accused on bail. However, the main and more fundamental source of authority out of which this jurisdiction springs remains intact in the provisions contained in Chapter XXXIII, which includes section 437(1). However, the main and more fundamental source of authority out of which this jurisdiction springs remains intact in the provisions contained in Chapter XXXIII, which includes section 437(1). In effect, therefore, the right or entitlement to bail which falls predominently under section 167(2) is distinct from the machinery or process of releasing on bail which essentially flows out of the principal provisions regarding bail as incorporated in Chapter XXXIII. Reference to Chapter XXXIII in the provisions of section 167(2) has its relevance and significance in this sense. The deeming fiction merely enables the learned Magistrate to uphold the validity of the right of the accused and to release him on bail. The further consequence of this deeming fiction would be that the provisions contained in section 437(1), (2) and (5) remain active and in force all throughout whereby all the considerations for release of the accused on bail under sub-section (1) with the prohibition from such a release as contemplated by the proviso thereto and also the necessity of cancellation of bail under sub-section (5) could remain in existence, and thus there cannot be allowed to be over-shadowed by the provisions of section 167(2). To put it in other form, reference in section 167 in a generic term to Chapter XXXIII which pertains to the provisions of bail and allied provisions and not restricting the reference to section 437(1) only is strong pointer to justify the conclusion that along with provisions and power of grating bail, the other jurisdiction of cancellation of bail under sub-section (5) ipso facto would be capable of being in operation. The release of the accused on bail under section 167(2) can not necessarily be of a permanent duration not only during the pendency of the committal proceedings but also thereafter even till the conclusion of the Sessions trial in the Sessions Court. The situation, therefore, may get a different complexion after filing the charge-sheet. The facts and circumstances of a given case may create such a situation demanding placing of the accused in custody, which obviously can be done by virtue of the provisions of section 437(5) in effect by cancellation of bail. Permissibility to resort to this course in a given case would be implicit notwithstanding the accused having been released on bail under section 167(2) on the earlier occasion. Permissibility to resort to this course in a given case would be implicit notwithstanding the accused having been released on bail under section 167(2) on the earlier occasion. This can be based on the satisfaction of the learned Magistrate about the existence of a non-bailable offence and necessity of taking the accused in custody. This stipulation under section 437(5) may embrace variety of contingencies, one of which would be that the accused commits a lapse or breach of conditions of bail or tampers with evidence. However, the other would be de hors of these considerations, which would be with reference to section 437 (1) read along with its provisions under which the satisfaction about the offence being punishable with death or imprisonment for life and involvement of the accused therein would justify the detention of the accused in custody, which in turn would permit creating such detention by placing him in custody if already released on bail. Consequently, it cannot be said to be impermissible to assess the situation, after filing of the charge-sheet and if the facts so demand and justify, squarely attracting the said two provisions of section 437(1) with the proviso and section 437(5), to take back the accused in custody notwithstanding he has been released on bail under section 167(2) on the earlier occasion. In that contingency it would be the merits of the matter that would be exclusively relevant which had then become patent though on the previous occasion when the accused was released under section 167(2). The merits, though in existence, were in latent form. As such at such latter point of time, the learned Magistrate will have to address himself to the merits and not to the technical aspect as to the point of time when the charge-sheet is filed. Similarly, the provisions of section 209 regarding the commitment of the accused to the Court of Sessions cannot be allowed to have predominance over the provisions of Chapter XXXIII. Similarly, the provisions of section 209 regarding the commitment of the accused to the Court of Sessions cannot be allowed to have predominance over the provisions of Chapter XXXIII. In that behalf it would be idle to make a distinction on the basic aspects in the provisions of sections 167 and 209 vis-a-vis granting of bail in that it would not be permissible to conclude that by virtue of sub-clause (b) to section 209 containing the user of the particular terminology vis-a-vis the provisions of Code relating to bail and not making reference to Chapter XXXIII in that context, a contrast is sought to be made in that terminology under sections 167 and 209. In other words, it would be impermissible to hold that sub-clause (b) of section 209 is broader in itself and would govern the case where the accused is already released on bail under section 167(2) of the Code. It would, therefore, be irrational to hold that once the accused is released on bail under section 167(2) he will to be continued to be on bail even on the eve of the commitment to the Court of Sessions whereby section 209(b) would be controlled by section 167(2). Manifestly both the said provisions vis-a-vis this aspect would be on par and would equally be governed by the provisions in Chapter XXXIII contained in section 437, more so as section 167(2) is merely an enabling provision, which entitles the accused to ask for bail and invests authority in the Magistrate to grant bail though its implementation is basically under Chapter XXXIII. In effect, therefore, sub-clause (b) of section 209 would be controlled by Chapter XXXIII without any reference to section 167(2). The net result would be that if the facts and circumstances so demand about the commitment of the accused to the Court of Sessions as also non-granting of bail or cancellation of bail if already granted, is well justified by section 437(1) with the proviso and section 437(5), then on the eve of commitment, the accused can be taken in custody which would be notwithstanding his having been already released on bail though not on merits but only under section 167(2). The ratio in Full Bench decision of Gujarat High Court in Babubhai's case (supra) which will have to be considered, with respect, with certain reservations and cannot be accepted wholesale for the reasons already assigned. The ratio in Full Bench decision of Gujarat High Court in Babubhai's case (supra) which will have to be considered, with respect, with certain reservations and cannot be accepted wholesale for the reasons already assigned. These deduction would be the harmonious blending of all the relevant provisions in the achievement of the legislative intent as also the object and scheme of the Code. 37. In the instant case several developments had occurred in between the arrest of the accused and his being enlarged on bail almost in the midst of the Sessions trial in Sessions Court, though surprisingly only under section 167(2). These developments thus would further change the complexion in favour of the prosecution. In this view of the matter the State must succeed as the order of bail recorded by the learned Additional Sessions Judge being wholly unsustainable deserves to be set aside. 38. Shri S.M. Gupte, the learned Counsel for the respondent-accused, after having exhausted has armoury of the features elating to these propositions in law, endeavoured to submit that in view of the peculiar facts of the case he should be allowed to agitate a prayer for bail even on this forum during this proceeding treating it as one under section 439 of the Code of Criminal Procedure. In the strict sense, there ought to have been separate application and since that has not been done, really speaking it is unnecessary to embark on that enquiry. However, to ward off any likelihood of miscarriage of justice and in deference to the learned Counsel. I have heard him on that point. The learned Counsel submits that even taking the allegations at the maximum the offence cannot fall squarely under section 300 of the Indian Penal Code, inasmuch as the accused had in the first instance, no intention to assault, much less to murder Vishwanath as he had no grudge against him. Secondly as the blows were inflicted on the thigh even the requisite knowledge about the likelihood of death being caused cannot be attributed to the accused. The learned Counsel, therefore, submits that the offence is likely to be scaled down to other section. It is also submitted that his client has been reporting to the Sessions Court almost every day and he has been on bail for quite some time. The learned Counsel, therefore, submits that the offence is likely to be scaled down to other section. It is also submitted that his client has been reporting to the Sessions Court almost every day and he has been on bail for quite some time. Reliance was also placed on some of the so called discrepancies and artificiality in the statements of various witnesses to persuade the Court to discard those statements at this stage. It is also submitted by Shri Gupte that false allegations are levelled against his client that he threatened P.W. Ashok Singh, which according to him, is apparent inasmuch as these allegations are levelled only when his bail application was posted for hearing and it was so engineered as a counter blast. As against this, Shri J.A. Bardey, the learned Public Prosecutor for the State, equally strongly submits that these finer shades cannot be appreciated at this stage. According to him, the prosecution could be in a position, having regard to the attendant circumstances to establish even an offence under section 302 of the Penal Code notwithstanding the blows having been landed on the thigh. According to him, two forceful bows were inflicted in quick succession causing profuse bleeding when the victim succumbed thereto soon after the assault. The truthfulness of the allegations about the threats being given to Ashok Singh are reiterated. In addition thereto, it is submitted on behalf of the prosecution that this very accused has been involved in three cases of robbery where the victims were relieved of their valuables at the point of knife for which a separate Sessions case is still pending against him as all the said three incidents have been clubbed together. It is also suggested that there is a potential and real danger of tempering with the prosecution evidence if the accused is enlarged on bail. It is further submitted that there are not less than eye-witnesses to the incident. 39. I refrain from expressing any opinion on merits of the rival contentions for obvious reason. The first is, this motion is made almost on the eve of the sessions trial which had commenced on 12th January, 1983 and a statement is made at the Bar that it is to be continued as from March 7, 1983, and therefore, few days thereafter the sessions trial would conclude. The first is, this motion is made almost on the eve of the sessions trial which had commenced on 12th January, 1983 and a statement is made at the Bar that it is to be continued as from March 7, 1983, and therefore, few days thereafter the sessions trial would conclude. The involvement of the accused in three additional incidents for which a separate sessions case is awaiting its trial also cannot be ignored. The allegations of the prosecution that there is likelihood of the tampering with the prosecution evidence and positive assertion that an attempt in that behalf was made on January 11, 1983 though cannot be effectively agitated upon in this proceeding, still those cannot be completely ignored. In addition to this, there is yet a formidable feature against which the defence are likely to stumble. It is an accepted position that after the commitment, Bail Application No. 310 of 1983 was filed by the accused in Sessions Court and it was considered on merits and thereafter it was rejected by the Sessions Court against which no further proceedings were initiated in this Court and, therefore, presumably at least at that stage the verdict was accepted. Having regard to all these features in cumulative manner, in my opinion it, would not be proper to consider much less to grant the relief claimed on behalf of the respondent. This would also be in keeping with the judicial propriety so that the discretion of the learned Sessions Judge, who would be in charge of the Sessions trial, which is to be heard on and from March 7, 1980, should remain unfettered in the assessment of the prosecution evidence in the context of the rival contentions. The motion, therefore, cannot be granted. 40. In the result, rule is made absolute. 41. The impugned order dated January 14, 1983 recorded by the learned Additional Sessions Judge in Sessions Case No. 439 of 1981 releasing the respondent-accused on bail is set aside and the bail granted in favour of the respondent-accused by the learned Additional Sessions Judge is hereby cancelled. The respondent-accused to surrender to his bail forthwith. In the event of any lapse being committed by the accused in surrounding, the learned Additional Sessions Judge is directed to take further steps in accordance with law including issuance of non-bailable warrant forthwith against the accused. 42. The respondent-accused to surrender to his bail forthwith. In the event of any lapse being committed by the accused in surrounding, the learned Additional Sessions Judge is directed to take further steps in accordance with law including issuance of non-bailable warrant forthwith against the accused. 42. At the request of the learned Counsel for the respondent-accused time upto Wednesday, the 2nd March, 1983 is granted to the respondent-accused for surrendering to the bail. -----