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Issues: (i) whether an application for cancellation of bail is maintainable before the accused is actually released on bail under the proviso to section 167(2) of the Code of Criminal Procedure, 1973; (ii) whether the accused was entitled to interim bail under the proviso to section 167(2) of the Code of Criminal Procedure, 1973.
Issue (i): whether an application for cancellation of bail is maintainable before the accused is actually released on bail under the proviso to section 167(2) of the Code of Criminal Procedure, 1973
Analysis: The right under section 167(2) is a right to be released on default when the charge-sheet is not filed within the prescribed period. The provisions governing cancellation of bail in sections 437(5) and 439(2) operate only after the accused has been released on bail. An application to cancel bail before actual release cannot be sustained, and recourse to inherent powers under section 482 is not available where the Code provides express provisions for cancellation.
Conclusion: The cancellation application was premature and not maintainable before the accused's release on bail.
Issue (ii): whether the accused was entitled to interim bail under the proviso to section 167(2) of the Code of Criminal Procedure, 1973
Analysis: The charge-sheet was not filed within the statutory period, so the accused acquired the statutory right to default bail. That right is not defeated merely because the charge-sheet was filed later. Since the challenge to cancellation was premature and the accused had remained in custody for a long period, interim release was warranted pending the pending reference on the applicability of section 167(2) to NDPS offences.
Conclusion: The accused was entitled to interim bail under section 167(2).
Final Conclusion: The proceedings resulted in rejection of the premature cancellation request and grant of interim default bail to the accused, subject to conditions.
Ratio Decidendi: Cancellation of bail under the Code cannot be sought before actual release on bail, and the statutory entitlement to default bail under section 167(2) arises on failure to file the charge-sheet within time.
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