Judgment A.M. AHMADI, J. (Majority view) (K. Ramaswamy, J. concurring) :---Special leave granted. 2. Can bail granted under the proviso to sub-section (2) of section 167 of the Code of Criminal Procedure, 1973 (hereafter called the Code') for failure to complete the investigation within the period prescribed thereunder be cancelled on the mere presentation of the challan (charge-sheet) at any time thereafter? This is the question which we are called upon to answer in the backdrop of the following facts. 3. A complaint was lodged against the appellant and 8 others at Miraj City Police Station, District Sangli alleging commission of offences punishable under sections 147, 148, 302 and 323 read with section 149 I. P.C. in regard to an incident which took place at about 11 p.m. on 8th September, 1990. The appellant was arrested in that connection on the next day i.e. 9th September, 1990. The appellant thereafter made an application before the Sessions Judge, Sangli for being enlarged on bail. That application was rejected. The appellant approached the High Court but later withdrew the application and then once again moved the Sessions Judge, Sangli for bail under the proviso to section 167(2) of the Code on the ground that the investigation had not been completed within 90 days. The learned Sessions Judge by his order dated 11th March, 1991 directed the release of the appellant on bail. After the charge-sheet was submitted and the documents were tendered subsequent thereto, the State of Maharashtra moved an application under section 439(2) of the Code in the High Court for cancellation of bail granted by the Sessions Judge. The High Court by the impugned order dated 31st March, 1992 cancelled the bail. The High Court was of the view that since the learned Sessions Judge had granted bail on a technical ground, namely, failure to file the charge-sheet within the time allowed and since the investigation revealed the commission of a serious offence of murder, on the ratio of this Court's decision in (Rajnikant Jeevanlal Patel v. Intelligence Officer, NCB, New Delhi)1, (1989)3 S.C.C. 532, it was open to the High Court to direct cancellation of the bail. On this line of reasoning the High Court cancelled the bail and directed the appellant to surrender to the bail. In obedience to that order the appellant has surrendered to his bail. On this line of reasoning the High Court cancelled the bail and directed the appellant to surrender to the bail. In obedience to that order the appellant has surrendered to his bail. These, in brief, are the facts which have a bearing on the question under consideration. 4. Sub-section (1) of section 167 insofar as it is relevant for our purpose provides that whenever any person is arrested and detained in custody and it appears that the investigation cannot be completed within 24 hours and there are grounds for believing that the accusation or information is well founded, the officer-in-charge of the police station or the Investigating Officer not below the rank of Sub-Inspector shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary and forward the accused to such Magistrate. Sub-section (2) of section 167 which has bearing on the question under consideration may be extracted at this stage: "167(2):----The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction. Provided that --- (a) the Magistrate may authorise the detention of the accused persons, otherwise than in the custody of the police, beyond the period of fifteen days if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding,- (i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years; (ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter." At this stage we may mention that the State of Maharashtra has not made any amendment in the aforesaid provision. On a plain reading of this sub-section it becomes clear that the Magistrate to whom the accused is forwarded may authorise his detention in such custody as he may think fit for a term not exceeding 15 days in the whole. If the Magistrate has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he is required to order the accused to be forwarded to a Magistrate having jurisdiction. Such Magistrate may authorise his detention beyond the period of 15 days if adequate grounds exist but no Magistrate can authorise the detention of the accused persons in custody for a total period exceeding 90 days or 60 days as the case may be depending on the nature of the crime alleged to have been committed. The proviso, therefore, fixes the outer limit within which the investigation must be completed and if the same is not completed within the said prescribed period, the accused has a right to be released on bail if he is prepared to and does furnish bail. Where a person is released on bail in such circumstances under the said sub-section, such release must be deemed to be one under the provisions of Chapter XXXIII of the Code which contains provisions in regard to bail and bonds. Where a person is released on bail in such circumstances under the said sub-section, such release must be deemed to be one under the provisions of Chapter XXXIII of the Code which contains provisions in regard to bail and bonds. In the present case, as stated earlier, the appellant had applied for bail before the expiry of the period of 90 days which was refused by the learned Sessions Judge since the offence allegedly committed was of a serious nature. However, unfortunately the investigating agency did not show urgency and did not complete the investigation within the maximum period allowed by the proviso to section 167(2) and hence on the appellant making an application for release on bail, the learned Sessions Judge had no alternative but to direct that he be released on bail on his executing a bond for Rs. 5,000/- with one surety for like amount. Undoubtedly this release was solely on account of the fact that the investigating agency had failed to complete the investigation within the maximum period allowed by the proviso to section 167(2) i.e. 90 days. This default on the part of the investigating agency enabled the appellant to seek and secure his release on bail. The investigating agency submitted the charge-sheet at a later date and appended the documents subsequent thereto. On the completion of the charge-sheet the investigating agency moved the High Court for cancellation of the bail under section 439(2) of the Code. The High Court for reasons already stated earlier cancelled the bail and directed that the appellant be taken into custody. 5. Chapter XXXIII of the Code comprises sections 436 to 450; of these sections 437 and 439 have relevance so far as the question at issue is concerned. Sub-sections (1) (2) of section 437 insofar as relevant provide as under : "437. 5. Chapter XXXIII of the Code comprises sections 436 to 450; of these sections 437 and 439 have relevance so far as the question at issue is concerned. Sub-sections (1) (2) of section 437 insofar as relevant provide as under : "437. When bail may be taken in case of non-bailable offence.---(1) When any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail, but --- (i) such person shall not be so released if there appears reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life; (ii) such person shall not be released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a non-bailable and cognizable offence. (2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are not reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, the accused shall, subject to the provisions of section 446-A and pending such inquiry, be released on bail or, at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided." Sub-section (5) of section 437 empowers the Court which has released the person on bail under sub-section (1) or (2) to cause his arrest and commit him to custody, if it considers it necessary so to do. Section 439 empowers a High Court or a Court of Session to release any person accused of an offence and in custody on bail. Sub-section (2) next provides that a High Court or a Court of Session may direct that any person who has been released on bail under this chapter be arrested and commit him to custody. Section 439 empowers a High Court or a Court of Session to release any person accused of an offence and in custody on bail. Sub-section (2) next provides that a High Court or a Court of Session may direct that any person who has been released on bail under this chapter be arrested and commit him to custody. It will thus be seen from the aforesaid two sections that while power has been conferred on courts for grant of bail, power has also been conferred for cancellation of bail in fit cases. The language of the proviso to sub-section (2) of section 167 specifically states that when an accused person is released on bail for failure to complete the investigation within the time prescribed, every person so released on bail `shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of this Chapter'. 6. Now before we proceed to deal with the submissions made before us it is necessary to bear in mind the scheme of the Code insofar as it relates to investigation on the criminal law having been set in motion by the filing of a First Information Report. Section 41 empowers any police officer to arrest any person without an order from the Magistrate or without a warrant in the cases catalogued at Clauses (a) to (i) of sub-section (1) thereof. Section 57 next provides that the person arrested shall not be detained in custody by the police officer for a period longer than that which is reasonable but such period shall not exceed 24 hours exclusive of the time necessary for journey from the place of arrest to the Magistrate's Court in the absence of a special order under section 167 of the Code. Article 22(2) of the Constitution also provides that every person who is arrested and detained in custody shall be produced before the nearest Magistrate within a period of 24 hours of such arrest excluding the time necessary for journey from the place of arrest to the Court of Magistrate and no such person shall be detained in custody beyond the said period without the authority of the Magistrate. Sections 154 and 155 enjoin on an officer-in-charge of a police station to record every information relating to a cognizable or a non-cognizable offence. Sections 154 and 155 enjoin on an officer-in-charge of a police station to record every information relating to a cognizable or a non-cognizable offence. Section 156 empowers an officer-in-charge of a police station to investigate any cognizable offence without a formal order of a Magistrate. Such an investigation can also be undertaken, if empowered by a Magistrate under section 190 of the Code. Section 157 prescribes the procedure for investigation with which we are not concerned. It is in this back drop that we must consider the scope and ambit of section 167 of the Code. It will be seen from the above scheme that the Code expects that once a person is arrested and detained in custody, the investigation must be completed as far as possible within 24 hours. If that is not possible, the arrested or detained person must be produced before the nearest Magistrate before the expiry of 24 hours excluding the time consumed during journey to the Magistrate's Court. If the investigation cannot be completed within the said period of 24 hours, the Magistrate before whom the accused person is produced, whether he has or has not jurisdiction to try the case, can authorise his further detention in custody from time to time for a period not exceeding 15 days in the whole. If he has no jurisdiction to try the case or commit for trial and considers his further detention unnecessary, he must forward the accused to the Magistrate having jurisdiction. Such Magistrate may authorise the further detention of the accused person otherwise than in the custody of the police, beyond the period of 15 days if he is satisfied that adequate grounds exist for so doing. But even he cannot authorise the detention of the accused person in custody for a period exceeding 90 days, if the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years, or 60 days where the investigation relates to any other offence, if the accused person is prepared to furnish bail. In other words if on the expiry of the aforesaid period of 90/60 days, the accused person offers to furnish bail, the Magistrate is bound to release him on bail and such release shall be deemed to be under Chapter XXXIII of the Code. In other words if on the expiry of the aforesaid period of 90/60 days, the accused person offers to furnish bail, the Magistrate is bound to release him on bail and such release shall be deemed to be under Chapter XXXIII of the Code. As pointed out earlier Chapter XXXIII which includes sections 437 and 439 relevant for our purpose empowers the Court to release an accused person on bail and at the same time also provides for cancellation of bail in certain eventualities. The legislative history of section 167 shows that under the Code of 1898 the detention of an accused person in custody was not permitted for a term exceeding 15 days in the whole. This provision was breached by the convenient practice, albeit of doubtful legality, of filing a `preliminary' charge-sheet and then seeking remand under section 344 (section 309 under the Code) which really did not come into play during investigation. But it was at the same time realised that in genuine and complex cases the investigation may not be completed within the short period of 15 days even if the investigation agency proceeds with the utmost sense of urgency. The Law Commission had recommended that the period be increased to 60 days but it was apprehended that while this increase would become a rule, yet the practice of doubtful legality of filing a preliminary charge-sheet and seeking remand may not be curbed. The Joint Select Committee, therefore, felt that the maximum period within which the investigation must be completed must be provided in the statute and a right should be conferred on the accused for being released on bail if within the prescribed period the investigation is not completed. It, therefore, while retaining sub-section (2) of section 167 in the same language introduced the proviso extracted earlier prescribing the outer limit within which the investigation must be completed. While conferring a right on the accused to be released on bail it stated that the release so granted shall be deemed to be one under the provisions of Chapter XXXIII of the Code. So far as Chapter XXXIII is concerned, section 437 has since undergone an amendment w.e.f. 23rd September, 1980, vide Criminal Procedure (Amendment) Act, 1980. While conferring a right on the accused to be released on bail it stated that the release so granted shall be deemed to be one under the provisions of Chapter XXXIII of the Code. So far as Chapter XXXIII is concerned, section 437 has since undergone an amendment w.e.f. 23rd September, 1980, vide Criminal Procedure (Amendment) Act, 1980. It is not necessary to note the background of the amendment but it is sufficient to state that once bail has been granted under that provision it can be cancelled and the accused person can be arrested and committed to custody if the Court considers it necessary so to do. That is the import of sub-section (5) of section 437 of the Code. The circumstances in which the Court will exercise the power of the cancellation of bail have been set out in a number of judgments of this Court to which we will have an occasion to refer a little later. At this stage it is sufficient to state that the Legislature has conferred on the Court the power to grant bail as well as to cancel the same. Similarly sub-section (1) of section 439 empowers the High Court as well as the Court of Session to direct any accused person to be released on bail. Sub-section (2) thereof provides that the High Court or the Court of Session may cancel bail and direct that the person released on bail under sub-section (1) be re-arrested and re-committed to custody. Here again the circumstances under which the Court will exercise the power conferred by section 439(2) will have to be noticed later. This in brief is the scheme of the Code. In the backdrop of this scheme we have to consider the question whether bail once granted under sub-section (2) of section 167 of the Code for failure to complete the investigation within the prescribed time can be cancelled on the mere ground that subsequently a charge-sheet has been produced which discloses that the accused person has committed a serious crime punishable with death or imprisonment for life or imprisonment for a term exceeding 10 years. 7. We may now notice the case law on the subject. In (Bashir v. State of Haryana)2, (1978)1 S.C.R. 585 . lodged against eleven persons disclosed the commission of an offence punishable under sections 302/149, IPC. 7. We may now notice the case law on the subject. In (Bashir v. State of Haryana)2, (1978)1 S.C.R. 585 . lodged against eleven persons disclosed the commission of an offence punishable under sections 302/149, IPC. Eight of the eleven accused persons were released on bail but the bail applications of the remaining three persons were rejected on the ground that they were the authors of the fatal injuries. The High Court too declined to grant them bail. However, as the challan was not filed within the time prescribed the remaining three accused were also released on bail under section 167(2) of the Code. Subsequently the police filed the challan and thereupon all the eleven accused were committed to stand trial before the Sessions Court. An application for cancellation of the bail of the three accused persons whose bail was earlier rejected was moved on the ground that they were released under section 167(2) for failure to file the challans within the prescribed time and since the challans were filed, the Court should cancel their bail. The Sessions Judge allowed the application and ordered cancellation of the bail on the ground that on the filing of the challans the Court had jurisdiction to do so. The High Court dismissed the appeal. Thereupon this Court was moved by special leave on the plea that once the bail is granted under section 167(2) of the Code it cannot be cancelled on the mere filing of a challan but could be cancelled only under section 437(5) of the Code. This Court after examining the relevant provisions to which we have adverted hereinabove concluded as under : "The power of the Court to cancel bail if it considers it necessary is preserved in cases where a person has been released on bail under section 437(1) or (2) and these provisions are applicable to a person who has been released under section 167(2). Under section 437(2) when a person is released pending inquiry on the ground that there are no sufficient grounds to believe that he had committed a non-bailable offence may be committed to custody by Court which released him on bail if it is satisfied that there are sufficient grounds for so doing after inquiry is completed. Under section 437(2) when a person is released pending inquiry on the ground that there are no sufficient grounds to believe that he had committed a non-bailable offence may be committed to custody by Court which released him on bail if it is satisfied that there are sufficient grounds for so doing after inquiry is completed. As the provisions of section 437(1), (2) and (5) are applicable to a person who has been released under section 167(2) the mere fact that subsequent to his release a challan has been filed is not sufficient to commit him to custody. In this case the bail was cancelled and the appellants were ordered to be arrested and committed to custody on the ground that subsequently a charge-sheet had been filed and that before the appellants were directed to be released under section 167(2) their bail petitions were dismissed on merits by the Sessions Court and the High Court. The fact that before an order was passed under section 167(2) the bail petitions of the accused were dismissed on merits is not relevant for the purpose of taking action under section 437(5). Neither is it a valid ground that subsequent to release of the appellants a challan was filed by the police. The Court before directing the arrest of the accused and committing them to custody should consider it necessary to do so under section 437(5). This may be done by the Court coming to the conclusion that after the challan had been filed there are sufficient ground that the accused had committed a non-bailable offence and that it is necessary that he should be arrested and committed to custody. It may also order arrest and committal to custody on other grounds such as tampering of the evidence or that his being at large is not in the interests of justice. But it is necessary that the Court should proceed on the basis that he has been deemed to have been released under section 437(1) and (2)." (Empahsis supplied) It will thus be seen that once an accused person has been released on bail by the thrust of the proviso to section 167(2), the mere fact that subsequent to his release a challan has been filed is not sufficient to cancel his bail. In such a situation his bail can be cancelled only if considerations germane to cancellation of bail under section 437(5) or for that matter section 439(2) exist. That is because the release of a person under section 167(2) is equated to his release under Chapter XXXIII of the Code. 8. In (Raghubir Singh v. State of Bihar)3, (1986)3 S.C.R. 802 , a similar question came up for consideration. In that case on the night between 29th/30th November, 1984 the Security Police Patrol on duty near Jogbani Check Post on the Indo Nepal Border intercepted a speeding jeep with five occupants, one of them being a dismissed IPS Officer. He was wanted. A detention order under the National Secuirty Act was passed against him but could not be executed as he had gone underground. On being questioned they initially refused to disclose their identity and the manner in which they behaved aroused suspicion. One of the security officers however identified the IPS officer and on search of their baggage a substantial cash was found with one of the occupants. A number of documents and other articles were also seized which established the identity of the fleeing IPS Officer. On the basis of the information derived from the seizure of various documents, cash, etc., an FIR was registered for offences under section 121A,123, 124A, 153A, 165A, 505 and 120B IPC and section 5(3) of the Prevention of Corruption Act. However, before the submission of the charge-sheet the preventive detention order was served on the IPS officer and he was removed to Bhagalpur jail. The other four persons were also similarly detained in the same jail. These persons applied for bail under the proviso to section 167(2) of the Code. The learned Magistrate granted bail but imposed a condition that the surety should be residents of Araria town. Ultimately these persons could secure sureties from Araria but could not be released as the preventive detention orders were in force. Subsequently the surety of all the five persons appeared in Court and prayed to be discharged, whereupon the learned Magistrate passed an order discharging him and issued formal warrants of arrest under section 444(2) of the Code. At this stage the detention order against the IPS Officer came to be quashed. Subsequently the charge-sheet was filed in the Court of the learned Magistrate by the police. At this stage the detention order against the IPS Officer came to be quashed. Subsequently the charge-sheet was filed in the Court of the learned Magistrate by the police. The bail application of four of the accused was rejected and the High Court confirmed the same. The case was thereafter transferred to the Special Judge (Vigilance), Patna. The IPS Officer moved an application offering cash security but it was rejected on the ground that the High Court had already rejected the application of the other four accused persons. The case was later transferred to the Special Judge, Bhagalpur. When the matter came to this Court one of the grounds urged was that the High Court as well as the Special Judge were wrong in holding that the order of the Magistrate directing them to be released on bail under section 167(2) had come to an end by the passage of time particularly after cognizance of the case was taken. Dealing with this contention this Court examined the scope of section 167 read with section 437 and 439 of the Code and the ratio of the decision in Bashir's case, and proceeded to observe as under: "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 ................ 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." Proceeding further while dealing with the facts on hand this Court observed : "The order of release on bail was not an order on merits but was what one may call an order-on-default, an order that could be rectified for special reasons after the defect was cured. In the last mentioned case, one would expect very strong grounds indeed." Proceeding further while dealing with the facts on hand this Court observed : "The order of release on bail was not an order on merits but was what one may call an order-on-default, an order that could be rectified for special reasons after the defect was cured. The order was made long ago but for one reason or the other, the accused failed to take advantage of the order for several months. Probably for that reason, the prosecuting agency did not move in the matter and seems to have proceeded on the assumption that the order had lapsed with the filing of the charge-sheet. The question is should we now send the matter down to the High Court to give an opportunity to the prosecution to move that Court for cancellation of bail? Having regard to the entirety of the circumstances, the long lapse of time since the original order for bail was made, the consequent change in circumstances and situation, and the directions that we have now given for the expeditious disposal of the case, we do not think that we will be justified in exercising our discretion to interfere under Article 136 of the Constitution in these matters at this stage." It will thus be seen that this Court came to the conclusion that once an order for release on bail is made under the proviso to section 167(2) it is not defeated by lapse of time and on the mere filing of the charge-sheet at a subsequent date. The order for release on bail can no doubt be cancelled for special reasons germane to cancellation of bail under section 437(5) or 439(2). This Court then set out the grounds on which generally bail once granted could be cancelled and then proceeded to state that in the peculiar facts and circumstances of the case it would not be justified in interfering with the impugned order. Therefore, the final order which the Court made was in the backdrop of the special facts and circumstances of the case. 9. In Rajnikant's case, (supra), Shetty, J., sitting singly during vacation was concerned with a case in which the accused persons were arrested on 23rd March, 1988 by the officers of the Narcotic Control Bureau at Bombay. Therefore, the final order which the Court made was in the backdrop of the special facts and circumstances of the case. 9. In Rajnikant's case, (supra), Shetty, J., sitting singly during vacation was concerned with a case in which the accused persons were arrested on 23rd March, 1988 by the officers of the Narcotic Control Bureau at Bombay. They were produced before the Additional Chief Metropolitan Magistrate, New Delhi and were remanded to judicial custody till 12th April, 1988. The remand order was subsequently renewed from time to time. On 10th May, 1988 the accused moved for bail and while the said application was pending, a charge-sheet was submitted on 23rd June, 1988 for the commission of offences under sections 21, 23 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. On 22nd July, 1988 the accused filed an application for bail under section 167(2) of the Code on the ground that the charge-sheet had been filed after the expiry of the period of 90 days. The learned Magistrate by his order dated 29th July, 1988 enlarged them on bail. The prosecution sought cancellation of the bail but the learned Magistrate did not accede to that request whereupon the High Court of Delhi was moved under section 439(2) read with section 482 of the Code. In that application the nature of offence committed, the part played by the accused, the gravity of the offence, etc., were set out. It was also mentioned that two of the accused persons had earlier absconded and as such the investigation could not be completed within the time prescribed by the proviso to section 167(2) of the Code. The High Court following the dicta of Raghubir Singh's case, cancelled the bail. It was against this order that the accused approached this Court by special leave under Article 136 of the Constitution. Shetty, J., after considering the provisions of section 167(2) read with Chapter XXXIII of the Code and in particular sections 437(5) and 439(2) came to the following conclusion : "An order for release on bail under proviso (a) to section 167(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 charge-sheet within the prescribed period. The right to bail under section 167(2) proviso (a) thereto is absolute. It is a legislative command and not Court's discretion. Indeed, it is a release on bail on the default of the prosecution in filing charge-sheet within the prescribed period. The right to bail under section 167(2) proviso (a) thereto is absolute. It is a legislative command and not Court's discretion. If the investigation 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. Not 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. The accused cannot, therefore, claim any special right to remain on bail. If the investigation reveals that the accused has committed a serious offence and charge-sheet is filed, the bail granted under proviso (a) to section 167(2) could be cancelled. 10. On this line of reasoning the learned Judge upheld the order of the High Court and refused to interfere. It may here be mentioned that this Court's decision in Bashir's case, was not placed before the learned Judge. 11. On a conjoint reading of sections 57 and 167 of the Code it is clear that the legislative object was to ensure speedy investigation after a person has been taken in custody. It expects that the investigation should be completed within 24 hours and if this is not possible within 15 days and failing that within the time stipulated in Clause (a) of the proviso to section 167(2) of the Code. The law expects that the investigation must be completed with despatch and the role of the Magistrate is to over see the course of investigation and to prevent abuse of the law by the investigating agency. As stated earlier, the legislative history shows that before the introduction of the proviso to section 167(2) the maximum time allowed to the investigating agency was 15 days under sub-section (2) of section 167 failing which the accused could be enlarged on bail. From experience this was found to be insufficient particularly in complex cases and hence the proviso was added to enable the Magistrate to detain the accused in custody for a period exceeding 15 days but not exceeding the outer limit fixed under proviso (a) to that sub-section. From experience this was found to be insufficient particularly in complex cases and hence the proviso was added to enable the Magistrate to detain the accused in custody for a period exceeding 15 days but not exceeding the outer limit fixed under proviso (a) to that sub-section. We may here mention that the period prescribed by the proviso has been enlarged by State amendments and wherever there is such enalrgement the proviso will have to be read accordingly. The purpose and object of providing for the release of the accused under sub-section (2) of section 167 on the failure of the investigating agency completing the investigation within the extended time allowed by the proviso was to instil a sense of urgency in the investigating agency to complete the investigation promptly and within the statutory time-frame. The deeming fiction of correlating the release on bail under sub-section (2) of section 167 with Chapter XXXIII, i.e. sections 437 and 439 of the Code, was to treat the order as one passed under the latter provisions. Once the order of release is by fiction of law an order passed under section 437 (1) or (2) or 439(1) it follows as a natural consequence that the said order can be cancelled under sub-section (5) of section 437 or sub-section (2) of section 439 on considerations relevant for cancellation of an order thereunder. As stated in Raghubir Singh's case, the grounds for cancellation under sections 437(5) and 439(2) are identical, namely, bail granted under section 437(1) or (2) or 439(1) can be cancelled where (i) the accused misuses his liberty by indulging in similar criminal activity, (ii) interferes with the course of investigation (iii) attempts to tamper with evidence or witnesses, (iv) threatens witnesses or indulges in similar activities which would hamper smooth investigation, (v) there is likelihood of his fleeing to another country, (vi) attempts to make himself scarce by going underground or becoming unavailable to the investigating agency, (vii) attempts to place himself beyond the reach of his surety, etc. These grounds are illustrative and not exhaustive. It must also be remembered that rejection of bail stands on one footing but cancellation of bail is a harsh order because it interferes with the liberty of the individual and hence it must not be lightly resorted to. 12. These grounds are illustrative and not exhaustive. It must also be remembered that rejection of bail stands on one footing but cancellation of bail is a harsh order because it interferes with the liberty of the individual and hence it must not be lightly resorted to. 12. In (State (Delhi Admn.) v. Sanjay Gandhi)4, (1978)2 S.C.C. 411 , this Court observed rejection of bail when bail is applied for is one thing; cancellation of a bail already granted is quite another. It is easier to reject a bail application in a non-bailable case than to cancel a bail once granted. That is because cancellation of bail interferes with the liberty already secured by the accused either on the exercise of discretion by the Court or by the thrust of law. This Court, therefore, observed that the power to take back in custody an accused who has been enlarged on bail has to be exercised with care and circumspection. That does not mean that the power though extraordinary in character must not be exercised even if the ends of justice so demand. 13. In (Bhagirathsinh Judeja v. State of Gujarat)5, (1984)1 S.C.C. 284 , this Court observed that very cogent and overwhelming circumstances are necessary for an order seeking cancellation of the bail. Even where a prima facie case is established the approach of the Court in the matter of bail is not that the accused should be detained by way of punishment but whether the presence of the accused would be readily available for trial or that he is likely to abuse the discretion granted in his favour by tampering with evidence. It is wrong to think that bail secured by virtue of the proviso (a) to section 167 is an undeserved one. To so think is to doubt the legislative wisdom in prescribing the outer limit for filing the charge-sheet and to ignore the legislative history. As pointed out earlier the legislative history of section 167 shows that by proviso (a) the detention period was enhanced to a maximum of 90 days from 15 days earlier allowed. When the legislature made it obligatory that the accused shall be released on bail if the charge-sheet is not filed within the outer limit provided by proviso (a), it manifested concern for individual liberty notwithstanding the gravity of the allegation against the accused. When the legislature made it obligatory that the accused shall be released on bail if the charge-sheet is not filed within the outer limit provided by proviso (a), it manifested concern for individual liberty notwithstanding the gravity of the allegation against the accused. It would not be permissible to interfere with the legislative mandate on imaginary apprehension, e.g. an obliging investigation officer deliberately not filing the charge-sheet in time, as such misconduct can be dealt with departmentally. To permit the prosecution to have the bail cancelled on the mere filing of the charge-sheet is to permit the police to trifle with individual liberty at its sweet will and set at naught the purpose and object of the legislative mandate. The paramount consideration must be to balance the need to safeguard individual liberty and to protect the interest of administration of justice so as to prevent its failure. In the present case the High Court cancelled the bail solely on the ground that the bail was granted on technical grounds and the investigation revealed that there was eye-witness account disclosing the commission of a serious offence of murder. In its view the ratio of Rajnikant Jeevanlal Patel's case, applies to the case with full vigour. We find it difficult to agree. 14. We sum up as under : The provisions of the Code, in particular sections 57 and 167, manifest the legislative anxiety that once a person's liberty has been interfered with by the police arresting him without a Court's order or a warrant, the investigation must be carried out with utmost urgency and competed within the maximum period allowed by the proviso (a) to section 167 (2) of the Code. It must be realised that the said proviso was introduced in the Code by way of enlargement of time for which the arrested accused could be kept in custody. Therefore, the prosecuting agency must realise that if it fails to show a sense of urgency in the investigation of the case and omits or defaults to file a charge-sheet within the time prescribed, the accused would be entitled to be released on bail and the order passed to that effect under section 167 (2) would be an order under section 437 (1) or (2) or 439 (1) of the Code. Since section 167 does not empower cancellation of the bail, the power to cancel the bail can only be traced to section 437 (5) or 439 (2) of the Code. The bail can then be cancelled on considerations which are valid for cancellation of bail granted under section 437 (1) or (2) or 439 (1) of the Code. The fact that the bail was earlier rejected or that it was secured by the thrust of proviso (a) to section 167 (2) of the Code then recedes in the background. Once the accused has been released on bail his liberty cannot be interfered with lightly i.e. on the ground that the prosecution has subsequently submitted a charge-sheet. Such a view would introduce a sense of complacency in the investigating agency and would destroy the very purpose of instilling a sense of urgency expected by sections 57 and 167 (2) of the Code. We are, therefore, of the view that once an accused is released on bail under section 167(2) he cannot be taken back in custody merely on the filing of a charge-sheet but there must exist special reasons for so doing besides the fact that the charge-sheet reveals the commission of a non-bailable crime. The ratio of Rajnikant's case, to the extent it is inconsistent herewith does not, with respect, state the law correctly. 15. Even where two views are possible, this being a matter belonging to the field of criminal justice involving the liberty of an individual, the provision must be construed strictly in favour of individual liberty since even the law expects early completion of the investigation. The delay in completion of the investigation can be on pain of the accused being released on bail. The prosecution cannot be allowed to trifle with individual liberty if it does not take its task seriously and does not complete it within the time allowed by law. It would also result in avoidable difficulty to the accused if the latter is asked to secure a surety and a few days later be placed behind the bars at the sweet will of the prosecution on production of a charge-sheet. We are, therefore, of the view that unless there are strong grounds for cancellation of the bail, the bail once granted cannot be cancelled on mere production of the charge-sheet. We are, therefore, of the view that unless there are strong grounds for cancellation of the bail, the bail once granted cannot be cancelled on mere production of the charge-sheet. The view we are taking is consistent with this Court's view in the case of Bashir and Raghubir, (supra) but if any ambiguity has arisen on account of certain observations in Rajnikant's case, our endeavour is to clear the same and set the controversy at rest. 16. For the above reasons this appeal is allowed and the impugned order of the High Court is set aside. The matter is remitted to the High Court for reconsideration and disposal on merits in the light of the legal position hereinabove stated. Per M.M. PUNCHHI, J., (Minority view) :---I have read with admiration the neat analysis and exposition of law in the judgment prepared by my learned brother Ahmadi, J., but repsectfully, though regretfully, I have opted to differ. 18. The question, as it appears to me, which requires determination in this appeal rather is (in contrast to the one posed by brother Ahmadi, J.) whether an order granting bail under the proviso to sub-section (2) of section 167 of the Code of Criminal Procedure, 1973 (hereafter called the Code) for failure to complete the investigation within the period prescribed thereunder, after the presentation of the challan (charge-sheet) can be recalled or reviewed and on what grounds? 17. As between the plaintiffs and defendant No. 4, Mrs. Nanavati, the learned Counsel appearing for 4th defendant, has made a statement that no separate issues are required to be raised or settled. Mr. Bookwala, the learned Counsel appearing for defendants 5 to 18 has also stated that no separate issues are required to be raised or settled between the plaintiffs and defendants 5 to 18. Mr. Zaiwala, the learned Counsel appearing for defendants 19 to 32 has also stated that no separate issues between the plaintiffs and defendants 19 to 32 are required to be raised or settled. 18. Initially when the petition was taken up for hearing, Mr. Kathawala, the learned Counsel appearing for the petitioners so also Mr. Zaiwalla, the learned Counsel appearing for respondents 19 to 32 stated that the petition can not be disposed of merely on affidavits and oral evidence should be recorded. I find no substance in this submission. 18. Initially when the petition was taken up for hearing, Mr. Kathawala, the learned Counsel appearing for the petitioners so also Mr. Zaiwalla, the learned Counsel appearing for respondents 19 to 32 stated that the petition can not be disposed of merely on affidavits and oral evidence should be recorded. I find no substance in this submission. Firstly, the petition being under - section 33 of the Act, unless the Court deems it just and expedient, is to be decided on affidavits. In the case of (ONGC v. Offshore Enterprises)1, Arbitration Petition No. 210 of 1989, Dhanuka, J., of our Court in his judgment dated 24th February 1992, (Bom.C.R. 1993(2) 618) has held that the Arbitration Act would be totally defeated if every application is set down for recording of oral evidence merely because some sort of allegations are made by the petitioners in the petition in a strong language. He has further hold that the Court has to address itself to the question whether the Court deems it just and convenient to dispense with the normal rule of trying the petition on affidavits. Secondly, Mr. Kathawala, Mr. Zaiwalla so also Mrs. Nanavati and Mr. Bookwala have in terms stated that their respective clients do not desire to lead any oral evidence. They have further stated that if respondents 1 to 3 in the petition would lead oral evidence, respondents 4 to 32 reserve their right to lead oral evidence in rebuttal. Respondents 1 to 3 have also chosen not to lead any oral evidence in the petition. Hence, no question of recording oral evidence in the petition even arose. Moreover, the 4th respondent, though present in the Court at the time of hearing of the petition, has chosen not to examine himself and lead oral evidence. In the suit also, the parties hereto have made similar statements that no oral evidence is to be recorded. 19. Mr. Kathawala for the plaintiffs in the suit has stated that the documents being Exhibits A1 and A11 and B1 to B8 which are already on record as exhibits in the proceedings of IA No. 915 of 1989 taken out in the said Hyderabad Suit (Hyderabad Suit No. 1016 of 1989) be marked as exhibits in the suit. Mr. 19. Mr. Kathawala for the plaintiffs in the suit has stated that the documents being Exhibits A1 and A11 and B1 to B8 which are already on record as exhibits in the proceedings of IA No. 915 of 1989 taken out in the said Hyderabad Suit (Hyderabad Suit No. 1016 of 1989) be marked as exhibits in the suit. Mr. Kapadia, the learned Counsel appearing for defendants 1 to 3, has stated that he was not insisting on the formal proof of any of the documents marked as Exhibits A1 to A11 and B1 to B8 in the proceedings of said IA No. 915 of 1989. He further stated that xerox copies of the said exhibits produced by the plaintiffs in the proceedings of said IA No. 915 of 1989 may be taken in evidence in the suit subject, however, to proof of the truth of the contents thereof. Mr. Kapadia further stated that the fact of such finding as recorded in the said Exhibits being given would not be challenged by him. Mr. Zaiwalla, Mrs. Nanavati and Mr. Bookwala stated that they had no objection to the said procedure being followed. Accordingly, the xerox copies of the said documents which have been marked as Exhibit A1 to A11 and B1 to B8 in the proceeding of said IA 915 of 1989 in the said Hyderabad Suit have been marked as Exhibit A1 to A11 and B1 to B8 respectively in the suit subject to the above statements agreed amongst the Counsel appearing in the suit. The objection earlier taken by Mr. Sathe, the learned Counsel also appearing for defendants 1 to 3 along with Mr. Kapadia, for admission in evidence of the documents marked as Exhibit X1 to X3 was withdrawn and accordingly, the said documents were marked as Exhibits C, D and E respectively in the suit. No documentary evidence has been tendered on behalf of defendants 1 to 3. Similarly, no documentary evidence has been tendered on behalf of defendants 4 to 32. Mrs. Nanavati made a statement that the defendant No. 4 was also not leading oral evidence in the suit. 20. No documentary evidence has been tendered on behalf of defendants 1 to 3. Similarly, no documentary evidence has been tendered on behalf of defendants 4 to 32. Mrs. Nanavati made a statement that the defendant No. 4 was also not leading oral evidence in the suit. 20. The basic questions which arise for consideration in the petition as well as in the suit are two: 1) Whether the said Agreement is binding on the plaintiffs in the suit who are the petitioners in the petition the plaintiffs/petitioners at the material time of execution thereof being minors and they having opted to remain outside the said Agreement on attaining majority? and 2) If the said Agreement is held to be void as against the plaintiffs/petitioners, whether the said Agreement is also void as against defendants 4 to 32/respondents 4 to 32? According to Mr. Kathawala, Mrs. Nanavati, Mr. Bookwala and Mr. Zaiwala, the said Agreement is not binding on the petitioners in the petition and plaintiffs in the suit since the said Mahesh Chand, their father who signed and executed the said Agreement on their behalf had no legal capacity to sign and execute the same on their behalf, he being not their natural guardian since their mother, the said Jamunabai was not married to him. In their submission, in the facts of the case, the said Jamunabai being the mother of the petitioners in the petitions and plaintiffs in the suit was their natural guardian under section 6(b) of the Hindu Minority and Guardianship Act and she having not signed and executed the said Agreement on their behalf, the same in void ab initio and not binding on them. Mr. Bookwala and Mr. Zaiwala have further submitted that on the said Agreement being hold to be void ab initio qua the minor petitioners/plaintiffs, the same would be void also qua the other respondents/defendants, being inseverable. 21. It is an admitted position that the said Agreement has been signed by the said Mahesh Chand, the 4th respondent in the petition/4th defendant in the suit on behalf of the petitioners in the petition and plaintiff; in the suit as their father and guardian. According to Mr. Kathawala, Mrs. Nanavati, Mr. Bookwala and Mr. 21. It is an admitted position that the said Agreement has been signed by the said Mahesh Chand, the 4th respondent in the petition/4th defendant in the suit on behalf of the petitioners in the petition and plaintiff; in the suit as their father and guardian. According to Mr. Kathawala, Mrs. Nanavati, Mr. Bookwala and Mr. Zaiwala since the said Mahesh Chand was not married to the said Jamunabai, the petitioners in the petition who are plaintiffs in the suit are illegitimate children of the said Mahesh Chand and as such the said Jamunabai being their mother was their only natural guardian under the provisions of section 6(b) of the Hindu Minority and Guardianship Act. It has also been submitted on their behalf that both the said Mahesh Chand and the said Jamunabai have on affidavits denied that they were married to each other. It is also submitted on their behalf that there can not be presumption of legitimacy in respect of the petitioners/plaintiffs in the facts and circumstances of the case and the burden of proving negative did not lie on the petitioners/plaintiffs. Since the respondents 1 to 3 in the petition who are defendants 1 to 3 in the suit were asserting the fact of marriage between the said Mahesh Chand and the said Jamunabai, it was submitted by Mr. Kathawala, Mrs. Nanavati, Mr. Bookwala and Mr. Zaiwala that the burden of proving the marriage between the said Mahesh Chand and the said Jamunabai was on the said respondents/defendants. Reliance has been placed on Phipsan On Evidence, where it is stated that the burden of proof rests upon the party whether plaintiff or defendant, who substantially asserts the affirmative of the issue. Reliance has also been placed on the case of (Ch. Kanhaiya Bux Singh v. Mt. Ram Dei Kuer others)2, reported in A.I.R. 1944 Oudh. 162 where it has been held as under : "Where a plaintiff claims to recover property as the son of any person by his lawfully married wife and the defendant denies that the wife ever gave birth to the child and gets up that the plaintiff was the son of a woman other than the lawfully married wife, the onus of proof is upon the person who claims to show that the lawfully wedded wife gave birth to him, before invoking the presumption in section 112. There is no presumption in favour of legitimacy without laying the foundation for it under section 112 namely that a valid marriage took place between the parents." Mr. Kapadia has submitted that in the facts of the case it is not the case of the proof of negative but that since the petitioners/plaintiffs assert that they are illegitimate children of the said Mahesh Chand, the burden of proof of the assertion of the said fact lies on them. He has further submitted that though the said Mahesh Chand was present in Court, he has not chosen to lead his evidence and has attempted to run away from the truth. The said Jamunabai has died during the pendency of the petition as well as the suit. Mr. Kapadia further submitted that the said Mahesh Chand and the said Jamunabai have been living together as husband and wife and as a result of their union and/or cohabitation, five children are born to them. There is no dispute as regards the paternity of the petitioners/plaintiffs as also respondents 17 and 18 defendants 17 and 18. Both the said Mahesh Chand and Jamunabai have even attended the family functions as husband and wife which fact is admitted and not denied either by the petitioners/plaintiffs or any of the respondents/defendants from amongst the respondents 4 to 32/defendants 4 to 32. In the facts of the case, Mr. Kapadia submitted that though both the said Mahesh Chand and the said Jamunabai have chosen to deny their marriage with each other with an ulterior motive, in law they are presumed to have married to each other more particularly when the petitioners/plaintiffs have not discharged the burden of proving the fact asserted by them to the effect that they were not married to each other. Mr. Kapadia has submitted that the petitioners/plaintiffs are legitimate children of the said Mahesh Chand and as such the said Mahesh Chand being the father and natural guardian of the petitioners/plaintiffs was entitled in law to sign and execute the said agreement on their behalf. In support of his these submissions, Mr. Kapadia has relied upon the case of (Shivajirao Lagad v. Bapurao Lagad others)3, reported in A.I.R. 1957 M.P. 174 as also upon the case of (Hoovayya Kanthappa Shetty v. Renuka S. Shetty)4, reported in A.I.R. 1984 Bom. 229. Mr. Kapadia has also relied upon the case of (Bodri Prasad v. Dy. In support of his these submissions, Mr. Kapadia has relied upon the case of (Shivajirao Lagad v. Bapurao Lagad others)3, reported in A.I.R. 1957 M.P. 174 as also upon the case of (Hoovayya Kanthappa Shetty v. Renuka S. Shetty)4, reported in A.I.R. 1984 Bom. 229. Mr. Kapadia has also relied upon the case of (Bodri Prasad v. Dy. Director of Consolidation and others)5, reported in A.I.R. 1978 S.C. 1557. 22. Under section 114 of The Indian Evidence Act, 1872, the Court may presume the existence of any fact which it thinks likely to have happened, regard beign had to the common course of natural events and human conduct in their relation to the facts of the case. Under section 50 of the same Act, when the Court has to form an opinion as to the relationship of one person to another, the opinion expressed by conduct has to be extent of such relationship, of any person who, as a member of the family or otherwise has special means of knowledge on the subject, is a relevant fact. The said Mahesh Chand could have stopped in the witness box to give evidence as to the facts pertaining to his marriage before this Court which the said Mahesh Chand deliberately chose not to do so. The fact that the family functions were attended and participated by the said Mahesh Chand and the said Jamunabai as husband and wife has not been denied. The fact that the said Mahesh Chand is the father of the petitioners/plaintiffs is admitted. So also the fact that the said Jamunabai was the mother of the petitioners/plaintiffs is admitted. There was a long union and/or co-habitation between the said Mahesh Chand and the said Jamunabai as a consequence whereof five children including the petitioners/plaintiffs were born to them. At the time when the said agreement was signed and/or executed on 3rd January 1989, neither the said Mahesh Chand nor any of the other respondents/defendants had informed these defendants that the said Mahesh Chand was not married to the said Jamunabai. In the Arbitration Suit No. 197 of 1989 as also in the Arbitration Petition No. 16 of 1989, the said Mahesh Chand had filed affidavits affirmed on 27th January 1989 in his capacity as father and guardian of the petitioners/plaintiffs and had prayed therein for being appointed as guardian ad litem of the petitioners/plaintiffs. In the Arbitration Suit No. 197 of 1989 as also in the Arbitration Petition No. 16 of 1989, the said Mahesh Chand had filed affidavits affirmed on 27th January 1989 in his capacity as father and guardian of the petitioners/plaintiffs and had prayed therein for being appointed as guardian ad litem of the petitioners/plaintiffs. In those affidavits filed by the said Mahesh Chand, the said Mahesh Chand has not stated that he was not the natural guardian of the petitioners/plaintiffs or that the said Jamunabai was the natural guardian of the petitioners/plaintiffs. Under section 114 of the Indian Evidence Act, 1872, strong presumption arises in favour of wedlock where the partners have lived together for a long spell as husband and wife. Although the presumption is rebuttable, a heavy burden lies on one who seeks to deprive the relationship of legal origin. As held in the case of Shivajirai Lagad v. Bapurao Lagad others (supra), law presumes in favour of marriage and against concubinage and on him who challenges the legitimacy must be thrown the burden of proving it. Same view has been taken by this Court in the case of Hoovayya Kanthappa Shetty v. Renuka S. Shetty (supra). The paternity of the petitioners/plaintiffs being admitted and petitioners/plaintiffs pleading that they are illegitimate descents, the legal presumption being in favour of the legitimacy, the onus lies on petitioners/plaintiffs to prove it. No such burden has been discharged by the petitioners/plaintiffs. The Supreme Court in the case of Badri Prasad v. Dy Director of Consolidation others, (supra) has hold that law leans in favour of legitimacy and frowns upon bastardy. In the facts of the case, I hold that assertion of fact by petitioners/plaintiffs to the effect that the said Mahesh Chand and the said Jamunabai were not married to each other has not been proved and that the said Mahesh Chand and the said Jamunabai were presumed to have married to each other. I further hold that in the facts of the case, the petitioners/plaintiffs are the legitimate children of the said Mahesh Chand and Jamunabai since the said Jamunabai was the wife of the said Mahesh Chand. I further hold that in the facts of the case, the petitioners/plaintiffs are the legitimate children of the said Mahesh Chand and Jamunabai since the said Jamunabai was the wife of the said Mahesh Chand. I further hold that the said Mahesh Chand, being the father and natural guardian of the petitioners/plaintiffs had the legal capacity and/or authority to represent the petitioners/plaintiffs and to sign the said agreement on their behalf and as such, the said agreement signed and executed by the said Mahesh Chand on behalf of the petitioners/plaintiffs is valid, legal and binding on the petitioners/plaintiffs. 23. Clause 1 of the said consent terms arrived between the parties to the said Arbitration Petition No. 16 of 1989 in terms whereof the said order dated 31st January 1989 was passed by this Court, reads as under : "Subject to the terms and conditions contained in the agreement of reference dated 3rd January, 1989 ..... (a) ....." The compromise arrived between the parties as recorded in the said Consent Terms was made subject to the terms and conditions of the said agreement. On 31st January, 1989, this Court had accorded its sanction to the compromise in terms of the said Consent Terms which were certified by this Court to be in the interest and for the benefit of the minors including the petitioners/plaintiffs. In the circumstances, sanction was also accorded by this Court to the said agreement which was also held to be in the interest and for the benefit of the minors including the petitioners/plaintiffs. There is no set forms in which the certificate which the Court is required to record need be made. On 31st January, 1989, Pratap, J., (as he then was) passed the Order as under : "Order in terms of the consent terms dated 31st January 1989 signed by Advocates for the petitioners, respondent Nos. 1 to 4, respondent Nos. 22 to 31 and respondent Nos. 5 to 21 respectively and tendered in Court taken on record and marked `I'. Considering the facts and circumstances of the case and hearing respective counsel therein, the Consent Terms, are certified to be in the interest of and for the benefit of the minors. xxx xxx xxx" It is evident that Pratap, J., had the provisions of Order XXXII, Rule 7 of the Code of Civil Procedure, 1908 in view. Considering the facts and circumstances of the case and hearing respective counsel therein, the Consent Terms, are certified to be in the interest of and for the benefit of the minors. xxx xxx xxx" It is evident that Pratap, J., had the provisions of Order XXXII, Rule 7 of the Code of Civil Procedure, 1908 in view. He realised that he had to give permission and he also realised that the compromise had to be for the benefit of the minors. The portion of the said Order reproduced above shows that Pratap, J., did give requisite permission and that he was satisfied about the minors interest. In the facts, I hold that there was compliance with provisions of Order XXXII, Rule 7 of the Code of Civil Procedure. In this view of mine, I am fortified by the judgment of the Apex Court of our country in the case of (Bishundeo Narain another v. Seogani Rai others)6, reported in A.I.R. 1951 S.C. 280 on which reliance has been justifiably placed by Mr. Kapadia. The case of (Sadashivappa Gangappa others v. Sangappa Chanvirappa Mahamodkoti)7, reported in A.I.R. 1931 Bom. 500 as also the case of (Chhabba Lal v. Lallu Lal others)8, reported in A.I.R. 1946 P.C. 72 relied upon by Mr. Kathawala have no applicability as in my view the provisions of Order XXXII, Rule 7 of C.P.C are complied. 24. Prayer (a)(i) of the petition is identical to prayer (a) of the suit. Prayer (a)(ii) of the petition is not the subject matter of the suit. As stated by the petitioners in the petition, the petition is filed for abundant caution since in view of the provisions of section 32 of the Act, it is possible to hold that the suit for the reliefs prayed for therein may not be maintainable. In the said Arbitration Suit No. 197 of 1989 a decree in terms of prayers (a) and (b) thereof was passed by this Court on 31st January 1989 and the said agreement was ordered to be filed in this Court and reference of the disputes and differences between the parties thereto to the arbitration of the learned Arbitrators was made. The learned Arbitrators were directed to make and publish their award within six months from the date of entering upon the reference. Accordingly, the said agreement stood merged into the decree passed by this Court on 31st January 1989. The learned Arbitrators were directed to make and publish their award within six months from the date of entering upon the reference. Accordingly, the said agreement stood merged into the decree passed by this Court on 31st January 1989. The said decree can not be set aside except on available grounds such as fraud and gross negligence. No such ground has even been pleaded in the petition. The petitioners are not entitled to have the said decree set aside in the petition as sought by prayer (a)(ii) of the petition. 25. Mr. Kathawala, Mrs. Nanavati, Mr. Bookwala and Mr. Zaiwalla have, however, submitted that the said order passed on 31st January 1989 in the said Arbitration Suit No. 197 of 1989 is not a `decree' of this Court and as such, it was not incumbent upon the petitioners to plead grounds of fraud and/or gross negligence in the petition so as to get the same set aside by this Court. In support of their this submission, reliance has been placed on the case of (Kuppuswami Rao v. The King)9, reported in A.I.R. 1949 P.C. 1, where it has been held that `final order' must be an order which finally determines the points in dispute and brings the case to an end. Reliance has also been placed on the case of (M/s. Maltex Malsters (P). Ltd. v. M/s. Allied Engineers)10, reported in A.I.R. 1975 Delhi 123, where it has been held by the Delhi High Court that the order accepting the application under section 20 of the Act is not the `decree' that is envisaged in Order 41, Rule 1 of CPC. Reliance has also been placed on the case of (Bimal Kumar Ghosh and another v. Saikat Sarkar)11, reported in A.I.R. 1987 Calcutta 208, where Calcutta High Court has held that application under section 20 of the Act though has to be registered as a suit as provided in section 20(2) of the Act is not a suit in the fullest sense of the terms. This submission is devoid of any merit. Under section 20 of the Act, the application, when filed, is to be numbered and registered as a suit with the applicant as `plaintiff and other parties as defendants'. This submission is devoid of any merit. Under section 20 of the Act, the application, when filed, is to be numbered and registered as a suit with the applicant as `plaintiff and other parties as defendants'. As borne out from the minutes of the Order dated 31st January 1989 passed in the said Arbitration Suit No. 197 of 1989, decree in terms of prayers (a) and (b) thereof was passed. Since the plaintiffs therein were minors, the said Mahesh Chand was appointed their guardian ad litem alongwith others to look after the interest of his minor children in the suit. The said Order passed in the said Arbitration Suit No. 197 of 1989 finally disposed of the said suit. After the said Order, the suit has not remained alive to have the rights of parties thereto still to be determined. In the case of (Mohanlal Maganlal Thakkar v. State of Gujarat)12, reported in A.I.R. 1968 S.C. 733, the Supreme Court has observed that generally speaking, a judgment or order which determines the principal matter in question is termed final. As held by Privy Council in the case of (V.M. Abdul Rahman others v. D.K. Cassim Sons another)13, reported in A.I.R. 1933 P.C. 58, the finality must be a finality in relation to the suit. The said order dated 31st January, 1989 is final in relation to the said Arbitration Suit. 26. As aforesaid, in order to preserve family peace and harmony and to resolve all disputes and differences amongst the said three groups as also to avoid future disputes, a family arrangement as recorded in the said agreement was arrived at. Since the parties to the said family arrangement were unable to agree upon the value of 1/3rd share of the said Ramesh Chand Group in the said businesses, in the said Hyderabad properties and of their 28% interest in the business of the said WIG as also to the mode, manner and time of payment thereof and also as to whether the payment thereof was to be made with or without interest and with intent to resolve things, the parties to the said family arrangement agreed to refer the disputes and/or differences in respect thereof or pertaining thereto to the arbitration of the learned Arbitrators as provided therein. The said arbitration agreement is a part of the family arrangement arrived at amongst the said three groups and was signed also by the said Mahesh Chand for and on behalf of the petitioners/plaintiffs and respondents 17 and 18/defendants 17 and 18 as their father and guardian. The said Mahesh Chand who signed the said family arrangement, was, at that time also the head of his family comprised of the said Mahesh Chand Group. It being a family arrangement, each head of the said family groups was entitled and had the capacity to represent members of his family therein. The petitioners/plaintiffs being the members of the said Mahesh Chand Group and part of the family headed by the said Mahesh Chand are bound by the said family arrangement entered on their behalf by the said Mahesh Chand also in his capacity as head of the said family. There is no averment in the petition and/or the plaint filed in the suit that the said family arrangement was not voluntary or that it was induced by fraud, coercion or undue influence. Taking the totality of the circumstances into consideration, it appears that the said family arrangement was bona fide arrived amongst the said three groups so as to solve the family disputes by a fair and equitable division or allotment of properties amongst the members of the said groups. As held by the Supreme Court in the case of ( Kale others v. Dy. Director of Consolidation others)14, reported in A.I.R. 1976 S.C. 807, the family arrangements are governed by a special equity peculiar to themselves and would be enforced if honestly made. The principles which apply to the case of ordinary compromise between the strangers, do not apply to the case of compromise in the nature of family arrangements. The object of such arrangement is to protect the family from long drawn litigation or perpetual strikes which mar the unity and solidarity of the family and create hatred and bad blood between the various members of the family. Even on this footing, the said arrangement being integral part of the said family arrangement is valid, legal and binding on the petitioners/plaintiffs. 27. The petitioners/plaintiffs hold 32 equity shares out of 1080 equity shares in respondent No. 30/defendant No. 30. Similarly, petitioners/plaintiffs hold 127 equity shares out of 5050 equity shares in respondent No. 32/defendant No. 32. Even on this footing, the said arrangement being integral part of the said family arrangement is valid, legal and binding on the petitioners/plaintiffs. 27. The petitioners/plaintiffs hold 32 equity shares out of 1080 equity shares in respondent No. 30/defendant No. 30. Similarly, petitioners/plaintiffs hold 127 equity shares out of 5050 equity shares in respondent No. 32/defendant No. 32. Both the respondent No. 30/defendant No. 30 and respondent No. 32/defendant No. 32 being limited companies, are duly incorporated and registered under the provisions of The Companies Act, 1956. They are separate legal entities by themselves and are distinct and separate from the petitioners/plaintiffs. The petitioners/plaintiffs are fractional shareholders therein and since both the said limited companies are parties to the said agreement, it does not lie in the mouth of the petitioners/plaintiffs to say that their corporate interest has not been taken care of while having reference to arbitration of the learned Arbitrators. Moreover, Mr. Kapadia, on behalf of these defendants, as stated in their written statement filed in the suit, has made a statement to the effect that notwithstanding the provisions contained in the said agreement and the order dated 31st January 1989 passed in the said Arbitration Petition No. 16 of 1989, these defendants shall not claim any amount from the petitioners/plaintiffs and/or respondents Nos. 17 and 18/defendant Nos. 17 and 18 under the said agreement or the said Order or in the said arbitration proceedings and as such, the petitioners/plaintiffs would not be adversely affected by the said agreement, the said order or the said arbitration proceedings. This, in my view, even otherwise sufficiently protects the interest of the petitioners/plaintiffs and the grievance now sought to be made on behalf of the petitioners/plaintiffs is wholly unjustified. 28. Mr. Bookwala and Mr. Zaiwalla have submitted that if the said agreement is held to be void qua petitioners/plaintiffs, it should also be held void qua the respondents/defendants other than these defendants as, in their submission, the said agreement is not severable. Reliance in this respect has been placed on the case of Chhabba Lal v. Kallu Lal others (supra) wherein the Privy Council has held that if minors successfully challenge an agreement to refer, it is avoided against all parties thereto. Reliance has also been placed upon the case of (Mohd. Amin others v. Vakil Ahmad and others)15, reported in (1953) S.C.A. 245. Reliance has also been placed upon the case of (Mohd. Amin others v. Vakil Ahmad and others)15, reported in (1953) S.C.A. 245. It is a case under Mahomodan Law whereunder, a de facto guardian has no power to transfer any right or interest in the immovable property of the minor. The Supreme Court in that case, on the basis of uncontested position before it, observed that if the deed of settlement was void, it could not be void only qua the minor but would be void altogether qua all the parties including those who were sui juris. In my view, the submission of Mr. Bookwala and Mr. Zaiwalla is devoid of any merit. Mr. Kapadia has submitted that even if the said agreement is held to be void qua the petitioners/plaintiffs (which in his submission is not void), it is not void qua the other parties thereto. In support of his submissions, Mr. Kapadia has put reliance upon the case of (Kaushalya Devi others v. Baijnath Sayal others)16, reported in A.I.R. 1961 S.C. 790. In that case it was contended that the preliminary decree passed in the suit for partition was invalid in that at the time of passing the said decree the Court had failed to comply with the mandatory provisions of Order XXXII, Rule 7 of the CPC. The Supreme Court while laying down the law in this respect has in terms held: "The effect of the failure to comply with O. 32, R. 7(1) is specifically provided by O. 32, R. 7 (2) which says that any such agreement or compromise entered into without the leave of the Court so recorded shall be voidable against all parties other than the minor. Mr. Jha reads this provision as meaning that the impugned agreement is voidable against the parties to it who are major and is void in respect of the minor : in other words, he contends that the effect of this provision is that the major parties to it can avoid it and the minor need not avoid it at all because it is a nullity so far as he is concerned. In our opinion this contention is clearly inconsistent with the plain meaning of the rule. In our opinion this contention is clearly inconsistent with the plain meaning of the rule. What the rule really means is that the impugned agreement can be avoided by the minor against the parties who are major and that it cannot be avoided by the parties who are major against the minor. It is voidable and not void. It is, voidable at the instance of the minor and not at the instance of any other party. It is voidable against the parties that are major but not against a minor. This provision has been made for the protection of minors, and it means nothing more than this that the failure to comply with the requirements of O. 32, Rule 7(1) will entitle a minor to avoid the agreement and its consequences. If he avoids the said agreement it would be set aside but in no case can the infirmity in the agreement be used by other parties for the purpose of avoiding it in their own interest. The protection of the minor's interest requires that he should be given liberty to avoid it. No such consideration arises in respect of the other parties to the agreement and they can make no grievance or complaint against the agreement on the ground that it has not complied with O. 32, R. 7(1). The non-observance of the condition laid down by R. 1 does not make the agreement or decree void for it does not affect the jurisdiction of the Court at all. The non-observance of the said condition makes the agreement or decree only voidable at the instance of the minor. That, in our opinion, is the effect of the provision of O. 32, R. 7(1) and (2)." I hold that neither the terms of the said agreement are adverse to interest of the petitioners/plaintiffs nor the said Mahesh Chand executed the same in disregard of the interest of petitioners/plaintiffs. The said agreement is void neither qua the petitioners/plaintiffs nor qua any of the respondents/defendants. In my view, the said agreement is valid, legal and binding on the petitioners/plaintiffs as also on the respondents/defendants. Even otherwise also, the arbitration clause contained in the said agreement dated 3rd January 1989 is severable and is legal, valid and binding. 29. The issues framed in the suit are accordingly answered as under : Issue Nos : 1. In affirmative. Even otherwise also, the arbitration clause contained in the said agreement dated 3rd January 1989 is severable and is legal, valid and binding. 29. The issues framed in the suit are accordingly answered as under : Issue Nos : 1. In affirmative. 2 3 In view of my findings to the effect that the said agreement is legal, valid and binding on the plaintiffs, it is not necessary to answer these issues. 4. Yes, the plaintiffs have no cause of action and the suit is not maintainable. 5. In affirmative. 6. In negative. 7. In negative. 8. In negative. 9. Plaintiffs were properly represented through their father and guardian at the time of execution of the said agreement and were validly made parties thereto. 10. In affirmative. 11. Plaintiffs will not be adversely affected by the said agreement, order or arbitration proceedings and therefore not entitled to maintain the suit. 12. In negative. 13. In negative. 14. No. 15. No. 16. No. 17. Plaintiffs are not entitled to any relief in the suit. 18. No relief. In the result --- i) the Arbitration Petition No. 53 of 1991 is dismissed; ii) the Interim Petition No. 184 of 1991 is dismissed; and iii) the Suit No. 3207 of 1992 is dismissed. In the circumstances there shall, however, be no order as to costs in any of the above proceedings. Issuance of certified copy of the minutes expedited. Order accordingly. *****