Judgment :- ARUNACHALAM, J. ( 1 ) THE petitioner is A-2 in S. C. No. 117 of1989 pending trial on the file of the Additional Sessions Judge, Vellore. He along with seven others are said to have committed offences under sections 3o2and 397 LP. C. Bail is pleaded on the ground that the detention of the petitioner is violative of the provisions of section 167 (2) of the Criminal Procedure Code read with article 21 of the Constitution of India. ( 2 ) BAIL being sought in this petition on a legal ground, the factual details of occurrence need not have to be traversed. The relevant dates, which may have a significance in deciding this issue have to be stated. The petitioner was arrested on 10. 8. 1988 in respect of an occurrence said to have taken place on 27. 7. 1988. The charge sheet was filed on 27. 4. 1989, though dated 13. 4. 1989, nearly 8-1/2 months after the arrest of the petitioner. In between, by an order of detention dated 11-9-1988, the petitioner was incarcerated under the National Security Act. Even though the period of preventive detention was over on 10. 9. 1989, the petitioner is still in jail, in view of his involvement in the very same crime. ( 3 ) MR. ,r. Sankara S ubbu, the learned counsel appearing for the petitioner, contended that if the charge sheet was not filed within the prescribed time Iimitof90 days, the accused must be released on bail and the subsequent filing of charge sheet could have no consequence, since the non-release of the petitioner on the 91 st Day would infringe the Constitutional and procedural mandate. Drawin6 my attention to certain reported cases, he would contend that in law, the Magistrate was bound to pass an order of bail on the default of the prosecution in filing the chargesheet with in the period contemplated under section 167 (2) of the Criminal Procedure Code and communicate the same to the accused. In short, his contention is that on the expiry of time limit, the accused acquired an inbuilt or absolute right and that could not be taken away by the subsequent filing of the charge sheet. Thiru R. Shanmughasundaram, the learned Additional Public Prosecutor does not dispute the relevant dates, detailed earlier. In short, his contention is that on the expiry of time limit, the accused acquired an inbuilt or absolute right and that could not be taken away by the subsequent filing of the charge sheet. Thiru R. Shanmughasundaram, the learned Additional Public Prosecutor does not dispute the relevant dates, detailed earlier. However, he would submit that if the accused had come out on bail in pursuance of the deemed order, the remedy for the prosecution may be to file an application for cancellation of bail. Inasmuch as the accused had not produced sureties and the charge sheet has now been filed, the detention subsequent. to 27-4-1989 cannot be deemed to be illegal. Even if the right to bail arising out of the default of the prosecution in filing the charge sheet may be absolute, on technical grounds, the accused cannot be released, since he was a Sri Lankan and the prosecution was interested in his availability for trial, which may not be feasible, if he were to be set at liberty. Though the petitioner is not the person, who fired the shots at the deceased, three in number, he had possessed the weapon before it was taken away from him by A-i in this case. He would place reliance for his submission on two decisions of this Court, which I will refer to a little Later. ( 4 ) I have carefully considered the contentions put forth by either counsel. In Natabar Panda and others v. The Slate of Orissa , the Supreme Court, while considering the scope of the proviso (a) to sub-section (2) of section 167 of the Criminal Procedure Code, observed as follows: But if it is not possible to complete the investigation within a period of 60 days, then even in serious and ghastly types of crimes the accused will be entitled to be released on bail Such a law may bail Paradise for the criminals, but surely it would not so, as sometimes it is supposed to be, because of the courts. It would be so under the command of the Legislature. It is therefore, apparent that the intention of the Legislature was to grant no discretion to the Court and it is obligatory for it to release the accused on bail. It would be so under the command of the Legislature. It is therefore, apparent that the intention of the Legislature was to grant no discretion to the Court and it is obligatory for it to release the accused on bail. In Hussainara Khatoon and others v. State of Bihar, the Supreme Court held that when an undertrial prisoner was produced before a Magistrate and he had been in detention for 90 days or 60 days, as the case may be, the Magistrate must, before making an order of further remand to judicial custody, point out to the undertrial prisoner that he is entitled to be released on bail. Further the State Government must also provide at its own cost a lawyer to the undertrial prisoner with a view to enable him to apply for bail in exercise of his right under proviso (1) to subsection (2) of section i67 and the Magistrate must take care to see that the right of the undertrial prisoner to the assistance of a lawyer provided at State costs is secured to him. In Rajnikant Jivanlal v. Intelligence Officer, Narcotic Control Bureau, New Delhi, the Supreme Court, while considering the power of the High Court to cancel bail under section 437 (5) or section 439 (2) of an accused released on bail, under proviso (a) to section i67 (2) of the Criminal Procedure Code, held as follows: An order for release on bail under proviso (a) to section i67 (2) may appropriately be termed as an order on default. Indeed, it is a release on bail on the default of the prosecution in filing chargesheet within the prescribed period. The right to bail under section i67 (2) proviso (a) thereto is absolute. It is a legislative command and not courts discretion. If the investigating agency fails to file charge-sheet before the expiry of 90/60 days, as the case may be, the accused in custody should be released on bail. But at that stage, merits of the case are not to be examined at all. In fact, the Magistrate has no power to remand a person beyond the stipulated period of 90/60 days. He must pass an order of bail and communicate the same to the accused to furnish the requisite bail bonds. But at that stage, merits of the case are not to be examined at all. In fact, the Magistrate has no power to remand a person beyond the stipulated period of 90/60 days. He must pass an order of bail and communicate the same to the accused to furnish the requisite bail bonds. ( 5 ) ACCORDING to the Supreme Court, the accused cannot claim any special right to remain on bail, if the investigation reveals that the accused had committed a serious offence and chargesheet had been filed. In that contingency, the bail granted under proviso (a) to section 167 (2) could be cancelled. The consideration for cancellation of bail will depend upon the serious nature of the crime, procuring the presence of the accused for trial, the genuine apprehension of the possible tampering of evidence by the accused and similar such aspects. The last two decisions referred to by me indicate that the Magistrate, on the expiry of the period of 60/90 days, must not only inform the accused of his entitlement to be released on bail, but also pass a bail order and communicate the same to the accused. If that be so, it is apparent that on the expiry of the statutory period, thr right to bail under section 167 (2) proviso (a) is absolute and an order of bail must be deemed to have been made and all that the accused may have to do thereafter is to execute bonds. ( 6 ) ON facts, though an order of bail has not been passed by the remand Magistrate and the accused had also not been communicated of his right to bail, in law, it must be deemed that an order of bail had been passed and the accused should only be prepared to and furnish bail. The intervening order of preventive detention cannot extinguish this right of the accused to bail, though during the period of preventive detention the order of bail, deemed to have been made, would be kept in suspension or abeyance, in view of the accused not having offered sureties or executed his personal bond. ( 7 ) THIS view of mine is supported by the observations of the Supreme Court in Raghubir Singh v. State of Bihar. ( 7 ) THIS view of mine is supported by the observations of the Supreme Court in Raghubir Singh v. State of Bihar. In that case the Supreme Court was considering the order for release on bail made under proviso to section 167 (2) of the Criminal Procedure Code in conjunction with Sections 309, 344,437 (5) and 439 (2) of the Code in the background of article 21 of the Constitution of India. The Supreme Court observed that the order for release on bail made under proviso to section 167 (2), Cr. P. C. cannot be defeated even if the charge-sheet were to be filed beyond 60/90 days, as the case may be for bail can be cancelled in such cases only under section 437 (5) or section 439 (2), Cr. P. C. The Supreme Court further negatived the argument of the State Counsel that the order for release on bail stood extinguished on the remand of the accused to custody. It was held that there was no substance whatever in that submission, since section 309 (2) merely enabled the Court to remand the accused if in custody. It did not empower the Court to remand the accused, if he was on bail. . It did not enable the Court to cancel bail, as it were, which could be done under sections 437 (5) and 439 (2 ). When as accused person was granted bail, whether, under the proviso, to section 167 (2) or under the provisions of Chapter 32, the only way the bail may be cancelled is to proceed under section 437 (5) or section 439 (2), Cr. P. C. At this stage, the learned additional Public Prosecutor submitted that in the case decided by the Supreme Court, in pursuance of the order for bail, the accused had produced sureties and that was not the case here. In that case, though sureties had been produced, which had not been accepted the accused therein were under preventive detention, as in this case. The Supreme Court observed as follows: An order for release on bail made under the proviso to section 167 (2) is not defected by lapse of time, the filing of the charge-sheet or by remand to custody under section 309 (2 ). The order for release on bail may however be cancelled under section 437 (5) or section 439 (2 ). The order for release on bail may however be cancelled under section 437 (5) or section 439 (2 ). Generally the grounds for cancellation of bail, broadly, are interference or attempt to interfere with the due course of administration of justice, or evasion or attempt to evade the course of justice, or abuse of the liberty granted to him. The due administration of justice may be interfered with by intimidating or suborning witnesses, by interfering with investigation, by creating or causing disappearance of evidence, etc. The course of justice may be evaded or attempted to be evaded by leaving the country or going underground or otherwise placing himself beyond the reach of the sureties. He may abuse the liberty gramed to him by indulging in similar or other unlawful acts. Where bail has been granted under the proviso to section 167 (2) for the default of the prosecution in not completing the investigation in sixty days, after the defect is cured by the filing of a charge- sheet, the prosecution may seek to have the bail cancelled on the ground that there are reasonable grounds to believe that the accused has committed a non-bailable offence and that it is necessary to arrest him and commit him to custody. In the last mentioned case, one would expect very strong grounds indeed. The Supreme Court also held that there was no time limit for execution of bond after order of release is made. In view of the authoritative enunciation of law by the Supreme Court, the bail order, which is deemed to have been made under the proviso to section 167 (2) cannot be defeated by lapse of time and the only way to annul it would be by seeking cancellation of bail, if circumstances of the case. so warranted. In Bashir and others v. State of Haryana. dealing with the power of cancellation of bail, the Supreme Court held that the power of the Court to cancel bail if it considered necessary was preserved in cases where a person had been released on bail under section 437 (1) or (2) and these provisions were applicable to a person who had been released under section 167 (2 ). dealing with the power of cancellation of bail, the Supreme Court held that the power of the Court to cancel bail if it considered necessary was preserved in cases where a person had been released on bail under section 437 (1) or (2) and these provisions were applicable to a person who had been released under section 167 (2 ). A Division Bench of the Delhi High Court in Noor Mohd v. State , and a Full Bench of the Gujarat High Court in Babubhai Parshoitamdas v. State of Gujarat , held that the right of the accused to be released on bail after 90 days was absolute and was subject only to section 437 (5), Cr. P. C. Mere subsequent filing of the chargesheet was not sufficient. These decisions taken along with the observations of the Supreme Court, will show that the power of the Magistrate to remand the accused to jail custody came to an end with the expiry of 90/60 days from the date when the accused was first produced before the Magistrate after his arrest. Once the period of 90/ 60 days expired, on the command of the Legislature, if a charge sheet were not to be filed, the accused is entitled to be released on bail. The power of remand under section 309 (2), Cr. P. C. after first taking cognizance of the offence will have to be read in the light of the right of entitlement of the accused to be released on bail under section 167 (2) (a), Cr. P. C. Two decisions of this Court brought to my notice by the learned Additional Public Prosecutor need consideration. . Maheswaran, J. in Kumarakuppan, in Re: 8, held, following the decision of the Gujarat High Court in Umed Singh Vakmatji Jadeja v. State of Gujarat and the view expressed by the Andhra Pradesh High Court in Nathala Vinod Prabhu v. State of Andhra Pradesh that after a charge sheet was filed pending an application under section 167, Cr. P. C. the investigation had come to an end and so also the power of the Magistrate to grant bail under the provisions of section 167 (2 ). Maheswaran, J, did not agree with the view of the Delhi High Court referred to above in Noor Mohd. T s case (supra ). P. C. the investigation had come to an end and so also the power of the Magistrate to grant bail under the provisions of section 167 (2 ). Maheswaran, J, did not agree with the view of the Delhi High Court referred to above in Noor Mohd. T s case (supra ). Though the learned Judge had relied upon the observations of the Supreme Court in Bashirs case (supra) dealing with cancellation of bail, in the present context of the Supreme Courts decisions referred to by me, the order of release on bail, made under the proviso cannot be defeated by lapse of time. The subsequent filing of the charge sheet or remand to the custody under section 309 (2), Cr. P. C. in the changed context of the law available on the subject as on date, the decision of Maheswaran, 1. , will no longer be applicable. The said decision of the Gujarat High Court relied on by the learned judge has been overruled by the Full Bench of the Gujarat High Court in Babubhais (supra) case. The decision of a Division Bench of this court reported in W. P. No. 1638 of 1980 Nagalingam v. State dated 21-4-1980, holding that even if there had been an illegality when the Magistrate first continued the remand, the same got cured by subsequent remand orders under section 309 (2), Cr. P. C. cannot hold good in view of the decision of the Supreme Court in Raghubir Singh v. State of Bihar (supra ). ( 8 ) THE net result of the analysis is that the accused is entitled to bai, which must be deemed to have been made on the expiry of 90 days. This can only be annulled by a cancellation of bail if circumstances so warrant. ( 9 ) IN the result. I direct the petitioner to be released on bail on his executing a bond for a sum of Rs. 25,000/- (Rupees twenty five thousand only) with two sureties each for Rs. 50,000/ (Rupees fifty thousand only, possessing immoveable property, to the satisfaction of the Additional Sessions Judge, Vellore, and on further condition that the petitioner should reside at Vellore and daily report before the Vellore Town Police Station at 8 A. M. , 2p. M. and 8 P. M. until further orders. Ordered accordingly. Petition allowed.