ORDER : Abhay Mahadeo Thipsay, J. Heard the learned counsel for the petitioner and the learned counsel for the Union of India, opposite party. 2. By consent of the learned counsel, heard finally, forthwith. 3. Learned counsel for the opposite party waives service of notice. 4. The petitioner is aggrieved by an order dated 07.09.2016 passed by the Special Chief Judicial Magistrate (Customs), Lucknow whereby the Magistrate observed that the bail order passed by him earlier on 28.06.2016 was ineffective and refused to release the petitioner on bail. He has, therefore, approached this Court by invoking the inherent powers of this Court praying that the said order be set aside, and that the petitioner be released in accordance with the original bail order passed by the said Magistrate. 5. The order dated 07.09.2016 which has been impugned by filing the present petition came to be passed under the following circumstances. 6. The petitioner was arrested on 26.04.2016 by the officials of the Directorate of Revenue Intelligence on the allegations of the petitioner having committed an offence punishable under Section 135 of the Customs Act. The petitioner was remanded into custody from time to time. His prayer for bail was rejected. However, on 28.06.2016 the petitioner filed an application for bail under the First proviso to Section 167(2) of the Code of Criminal Procedure (the 'Code') contending that he had been in custody for a period of more than 60 days; and that investigation still being incomplete, the petitioner was entitled to be released on bail. The Magistrate granted bail in the sum of Rs. 25,00,000/- to the petitioner with 2 sureties in the like amount. While the process of furnishing the sureties and the verification of their solvency was going on, a complaint came to be filed before the Magistrate on 11.07.2016. On 13.07.2016 when the sureties were offered, the Magistrate observed that since the complaint had been filed by that time, there was no occasion to furnish the sureties. The Magistrate was of the view that the bail granted by him to the petitioner earlier under the First proviso to Section 167(2) of the Code was 'no longer effective' as a complaint had been filed before the petitioner was actually released from custody. Holding so, he refused to release the petitioner on bail and treated the earlier bail order as 'inconsequential' and 'ineffective'. 7. Holding so, he refused to release the petitioner on bail and treated the earlier bail order as 'inconsequential' and 'ineffective'. 7. In my opinion, the Magistrate was clearly in error in understanding the relevant provisions of law. 8. Since the legal position is well settled, it is not necessary to refer to any specific decision of the Apex Court. All that needs to be observed is that a bail granted under the proviso to Section 167(2) of Code is, though termed as 'bail on default' is as effective as bail granted on merits, and does not get cancelled automatically on completion of investigation or charge-sheet being filed. 9. The question of interpretation of the first proviso to sub-section (2) of Section 167 of the Code keeps on coming before the Courts quite often. The provisions of the said proviso have been interpreted by the Superior Courts and the Apex Court from different angles for determining different questions arising in different situations. 10. The question that arises in the present case is as follows: Whether the bail order passed in favour of an accused under the first proviso to sub-section (2) of Section 167(2) of the Code stands extinguished and/or cancelled automatically on the mere filing of the charge-sheet/complaint, if the accused, by that time has not actually been released from custody? 11. There can be no doubt, that the answer has to be in the negative. 12. I have carefully gone through the impugned order passed by the Special Chief Judicial Magistrate. 13. It was argued before the Magistrate that the bail order would not get cancelled automatically and that even sureties were being offered by the petitioner which should be accepted and the petitioner should be released on bail. It was argued on behalf of the prosecution that the right to be released on bail accrued to an accused under the said proviso to Section 167 (2) of the Code, if not already availed of, gets extinguished on the filing of the charge-sheet/complaint and cannot thereafter be enforced. 14. In this regard, the Special Chief Judicial Magistrate observed that an accused is entitled to be released on bail on the failure of the investigation agency to complete the investigation within the period stipulated by Section 167(2) of the Code, but the process of his furnishing the sureties, bail bonds, etc. 14. In this regard, the Special Chief Judicial Magistrate observed that an accused is entitled to be released on bail on the failure of the investigation agency to complete the investigation within the period stipulated by Section 167(2) of the Code, but the process of his furnishing the sureties, bail bonds, etc. should be over before a charge-sheet/complaint is filed; and if on the date of filing of the charge-sheet/complaint, the accused actually happens to be in custody, his right to get himself released on bail stands extinguished. 15. This is patently incorrect. 16. The attention of the Special Chief Judicial Magistrate was, inter-alia, drawn to a decision of the Supreme Court of India in the case of Udai Mohan Lal Acharya v. State of Maharashtra, reported in 2001 (5) SCC 453 . The Magistrate amongst other things, re-produced certain parts from the reported Judgment, but, the parts re-produced by him were not relevant to the question that arose before him; and if at all there was any relevancy, the said parts did not, at all, support the view of the Magistrate. 17. The disputes that generally arise before the courts in the context of the said proviso to Section 167 (2) of the Code relate to more complex questions, such as, whether the order releasing an accused on bail should be passed even without an application from an accused, how the said period is to be calculated, etc. The case law in that regard is basically in relation to the special statutes, like TADA, POTA, NDPS, where the Court has been empowered to extend the maximum period of detention pending investigation in certain cases. A view has been taken in such cases that if the accused does not avail of the right by making an application for bail, then he cannot seek bail under the said proviso, after a charge-sheet/complaint is filed. That, however, does not mean that just because an accused is not actually released from custody, in-spite of having secured a bail order, till the time a charge-sheet/complaint is filed, the bail order automatically gets cancelled. 18. That, however, does not mean that just because an accused is not actually released from custody, in-spite of having secured a bail order, till the time a charge-sheet/complaint is filed, the bail order automatically gets cancelled. 18. The Special Chief Judicial Magistrate has emphasised that the right of the accused does not survive or does not remain enforceable after filing of the charge-sheet, 'if not already availed of' - a phrase used by Their Lordships of the Supreme Court of India - ignoring that simply making an application for his release on bail, has been held to amount to 'availing of the said right'. 19. The cases can be classified in 2 categories. The first would be those in which the accused makes an application for his release on bail in accordance with the said proviso, but while the application for bail is pending a charge-sheet comes to be filed. The other type of cases would be where the accused has made an application for bail in accordance with the said proviso and the bail order has also been passed; and when the process of furnishing sureties is pending, the charge-sheet is filed. 20. A perusal of the reported cases shows that the controversy as to 'whether the right of the accused to be released on bail in accordance with the said proviso could be enforced on the filing of the charge-sheet' has arisen only in the first type of cases. Nobody has seriously contended in any case that even if the bail order was passed, the subsequent filing of charge-sheet would extinguish the right of an accused to be released on bail. This would amount to automatic cancellation of the bail order on filing of the charge-sheet, which is, clearly not permissible. 21. It may be observed that even in the first type of cases, namely-where an application has been made, but no bail order has been passed, it has been held that the right of the accused that has accrued to him, cannot be defeated by the subsequent filing of the charge-sheet. Thus, making an application for bail, by itself, is sufficient to avail of his right. Thus, making an application for bail, by itself, is sufficient to avail of his right. When such is the position, which ought to have been understood by the Chief Judicial Magistrate, if he had indeed gone through the case law referred to by him in his order, it was patently illegal on his part to have said that the right of the accused was 'not availed of' by him, merely because he was not actually released from custody. 22. Even otherwise, the facts of this case are quite gross. The process of the actual release of the petitioner was unreasonably delayed, without any fault on his part. In the first place, the Magistrate stipulated the bail amount to be Rs. 25,00,000/- (Twenty five lakhs) which was unreasonable. He insisted on not one, but two local sureties in the like amount, and that too from Lucknow only. The petitioner had to move the Sessions Court to get the unreasonable conditions modified and the Sessions Judge also did not reduce the amount of bail, though, he modified the condition regarding furnishing sureties from Lucknow. Then there came the verification of sureties, which also took time. When the solvency of sureties had been verified, and the question of accepting them arose, the Special Chief Judicial Magistrate said that there was no valid bail order, as the bail order had already been extinguished on filing of the charge-sheet. This was in itself unjust, improper and ought to have shocked the judicial conscience of the Special Chief Judicial Magistrate. 23. In the case of Udai Mohan Lal Acharya (supra), Their Lordships of the Supreme Court of India have categorically held as under : "6. The expression 'if not already availed of' used by this Court in Sajay Dutts case, (1994) AIR SCW 3857 (supra) must be understood to mean when the accused filed an application and is prepared to offer bail on being directed. The expression 'if not already availed of' used by this Court in Sajay Dutts case, (1994) AIR SCW 3857 (supra) must be understood to mean when the accused filed an application and is prepared to offer bail on being directed. In other words, on expiry of the period specified in paragraph (a) of proviso to Sub-section (2) of Section 167 if the accused files an application for bail and offers also to furnish the bail, on being directed, then it has to be held that the accused has availed of his indefeasible right even though the Court has not considered the said application and has not indicated the terms and conditions of bail, and the accused has not furnished the same." 24. The Special Chief Judicial Magistrate in-spite of re-producing a certain portion from this, in the impugned order, has acted contrary to what has been laid down therein. When the Supreme Court of India has time and again said that 'mere making of an application for bail would amount to availing of the right accrued to an accused under the said proviso irrespective of whether the Court has actually passed a bail order' or not, there was no question of refusing to release the petitioner on bail when an order for bail had actually been passed. 25. The impugned order is patently illegal, contrary to law, justice and equity. This has resulted in undue hardship to the petitioner. 26. The revision application is allowed. 27. The impugned order is set aside. Consequently, the original bail order dated 28.06.2016 as passed by the Magistrate and as modified by the court of Sessions stands revived. Revision allowed.