Default bail under Section 167(2) and pre-release cancellation principles: actual release is required before cancellation can be sought.
Cancellation of bail under Sections 437(5) and 439(2) of the Code of Criminal Procedure presupposes that the accused has actually been released on bail; a pre-release cancellation request is premature and cannot be pursued under Section 482 where the statute provides specific cancellation remedies. The proviso to Section 167(2) confers a default-bail right when the charge-sheet is not filed within the prescribed period, and the Court recognised interim release on that basis while the broader question of Section 167(2) in NDPS matters remained pending before the Division Bench.
Issues: (i) Whether an application for cancellation of bail can be entertained before the accused has actually been released on bail under Section 167(2) of the Code of Criminal Procedure, 1973. (ii) Whether the accused was entitled to interim bail under Section 167(2) of the Code of Criminal Procedure, 1973 pending decision of the reference on its applicability to offences under the Narcotic Drugs and Psychotropic Substances Act, 1985.
Issue (i): Whether an application for cancellation of bail can be entertained before the accused has actually been released on bail under Section 167(2) of the Code of Criminal Procedure, 1973.
Analysis: The proviso to Section 167(2) creates a right to release on bail on default where the charge-sheet is not filed within the prescribed period. Once release is on that footing, Chapter XXXIII applies and cancellation may be sought under Section 437(5) or Section 439(2). The language of Section 439(2), referring to a person who has been released on bail, indicates that actual release is a prerequisite. Resort to Section 482 is unavailable where express statutory provisions govern cancellation. An application to cancel bail before release is therefore premature.
Conclusion: The application for cancellation of bail was premature and was liable to be rejected.
Issue (ii): Whether the accused was entitled to interim bail under Section 167(2) of the Code of Criminal Procedure, 1973 pending decision of the reference on its applicability to offences under the Narcotic Drugs and Psychotropic Substances Act, 1985.
Analysis: The charge-sheet had not been filed within the prescribed period, and the Court proceeded on the settled position that the proviso to Section 167(2) confers an absolute right to bail on default. The Court also noted that the matter on the wider applicability of Section 167(2) to NDPS offences was pending before the Division Bench, and that prolonged custody justified granting interim relief in the meantime.
Conclusion: The accused was entitled to interim bail under Section 167(2).
Final Conclusion: The cancellation request failed as premature, while the accused obtained interim release on default bail pending the Division Bench's decision on the larger question.
Ratio Decidendi: Cancellation of bail under Sections 437(5) and 439(2) of the Code of Criminal Procedure, 1973 presupposes actual release on bail, and a pre-release cancellation application is premature where the statutory default-bail right under Section 167(2) has arisen.
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