Stay of Bail Order in criminal trial .

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Criminal Procedure Code 1973— Ss. 167(2), 437(1) and (5) – Grant of bail – Released of an accused because challan not filed within 60 days from arrest –Deemed bail – If bail can be canceled as soon as challan is filed.

Subsection (5) to Section 437 is important. It provides that any Court which has released on bail under sub-section (1) or sub-section (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 provisions of Chapter XXXIII, his release should be considered as one under section 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 section 437(1) or (2) and these provisions are applicable to a person who has been released under section 167(2).

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 not sufficient grounds to believe that he had committed a non-bailable offense may be committed to custody by a court that released him on bail if it is satisfied that there are sufficient grounds for so doing after an inquiry is completed. As the provisions of section 437 (1), (2), and (5) are applicable ta 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 Rain Pal Singh and Others vs. the State of U.P., a Single Judge of the Allahabad High Court held that bail under section 167(2), Criminal Procedure Code, has the same incidents as the bail granted under Chapter XXXIII and is accordingly to remain valid till it canceled and the cancellation of bail can only be on the grounds known to law and the receipt of the charge sheet in court can by itself be no ground for cancellation of the bail. The view expressed by the learned Judge is correct in law.

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