The Provision is Mandatory.
In Natabar Parida v. State of Orissa, AIR 1975 SC 1465, the Court explained the mandatory character of the requirement of the proviso to S. 167(2) that an accused person is entitled to be released on bail if the investigation is not completed within sixty days. The Court said:
“But then the command of the Legislature in proviso(a) is that the accused person has got to be released on bail if he is prepared to and does furnish bail and cannot be kept in detention beyond the period of 60 days even if the investigation may still be proceeding. In serious offences of criminal conspiracy-murders, dacoities, robberies by inter-State gangs or the like it may not be possible for the police, in the circumstances as they do exist in the various parts of our country, to complete the investigation within the period of 60 days. Yet the intention of the Legislature seems to be to grant no discretion to the Court and to make it obligatory for it to release the accused on bail. Of course, it has been provided in proviso(a) that the accused released on bail under S. 167 will be deemed to be so released under the provisions of Chapter XXXIII and for the purposes of that Chapter. That may empower the Court releasing him on bail, if it considers necessary so to do to direct that such person be arrested and committed to custody as provided in sub-section (5) of S. 437 occurring in Chapter XXXIII. It is also clear that after the taking of the cognizance the power of remand is to be exercised under S. 309 of the new Code. But if it is not possible to complete, the investigation within a period of 60 days then even in serious and ghastly types of crimes the accused will be entitled to be released on bail. Such a law may be a “paradise for the criminals,” but surely it would not be so, as sometimes it is supposed to be because of the Courts. It would be so under the command of the Legislature.”
In Bashir v. State of Harayana, (1977) 4 SCC 410, the question arose whether a person who has been released under the proviso to S. 167(2) could later be committed to custody merely because a challan was subsequently filed. The Court hold that he could not be so committed to custody. But, the bail could be cancelled under S. 437(5) if the Court came to the conclusion that there were sufficient grounds, after the filing of the challan to believe that the accused had committed a non-bailable offence and that it was necessary to arrest him and commit him to custody. The Court said:
“Sub-section (2) of Section 167 and proviso(a) thereto make it clear that no Magistrate shall authorise the retention of the accused person in custody under this section for a total period exceeding sixty days. On the expiry of sixty days the accused person shall be released on bail if he is prepared to and does furnish bail. So far there is no controversy. The question arises as to what is the position of the person so released when a challan is subsequently filed by the police.”
“Sub-section (5) to Section 437 is important. It provides that any Court which has released a person on bail under sub-section (1) or subsection (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody. As under Section 167(2) a person who has been released on the ground that he had been in custody for a period of over sixty days is deemed to be released under the provisions of Chapter XXXIII, his release should be considered as one under S. 437(1) or (2). Section 437(5) empowers the Court to direct that the person so released may be arrested if it considers it necessary to do so. 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 S. 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 not sufficient grounds to believe that he has 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 appetlants 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 grounds that the accused had committed a non-bailable offence and that it is necessary that he should be arrested and committed to custody. It may also order arrest 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).”
In Talab Hazi Hussain v. Mondkar, AIR 1958 SC 376 a case arising under the old Code, the Court considered the grounds on which bail might be cancelled. It was said:
“There can be no more important requirement of the ends of justice than the uninterrupted progress of a fair trial; and it is for the continuance of such a fair trial that the (inherent) powers of the High Courts are sought to be invoked by the prosecution in cases where it is alleged that accused persons, either by suborning or intimidating witnesses, are obstructing the smooth progress of a fair trial. Similarly, if an accused person who is released on bail jumps bail and attempts to run to a foreign country to escape the trial, that again would be a case where the exercise of the (inherent) power would be justified in order to compel the accused to submit to a fair trial and not to escape its consequences by taking advantage of the fact that he has been released on bail and by absconding to another country. In other words, if the conduct of the accused person subsequent to his release on bail puts in jeopardy the progress of a fair trial itself and if there is no other remedy which can be effectively used against the accused person, in such a case the (inherent) power of the High Court can be legitimately invoked. In regard to non-bailable offences there is no need to invoke such power because S. 497(5) specifically deals with such cases.”
The result of our discussion and the case-law in this:An order for release on bail made under the proviso to S. 167(2) is not defeated by lapse of time, the filing of the charge-sheet or by remand to custody under S. 309(2). The order for release on bail may however be cancelled under S. 437(5) or S. 439(2). Generally the grounds for cancellation of bail, broadly, are, interference or attempt to interfere with the due course of administration of justice, or evasion or attempt to evade the course of justice, or abuse of the liberty granted to him. The due administration of justice may be interfered with by intimidating or suborning witnesses, by interfering with investigation, by creating or causing disappearance of evidence etc. The course of justice may be evaded or attempted to be evaded by leaving the country or going underground or otherwise placing himself beyond the reach of the sureties. He may abuse the liberty granted to him by indulging in similar or other unlawful acts. Where bail has been granted under the proviso to S. 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.