JUDGMENT

KAILASAM, J.:— This appeal is by special leave by the three appellants against the judgment of the High Court of Punjab and Haryana in Criminal Miscellaneous No. 4090-M of 1976 dismissing an application under S. 439, Criminal Procedure Code, praying that the appellants be released on bail during the pendency of their trial in a case under S. 304 read with S. 148, I.P.C.

2. The facts of the case are briefly as follows. The three appellants, Bashir, Kundan and Sadiq, along with eight others are being prosecuted for offences under S. 302 read with S. 149, S. 347 read with S. 149 and S. 143 read with S. 147, I.P.C. for causing the death of one Sagru and grievous and simple injuries to three others. While eight others were released on bail, the appellants were refused bail as it was alleged that they caused injuries to Sagru. The First Information Report of the offence was lodged on Dec. 2, 1975 and the three appellants and eight others were arrested on the same day. Though the other eight accused were released on bail, the bail application of the three appellants was rejected by the Sessions court on December 15, 1975. The High Court also declined to release them on bail by an order dated Feb. 5, 1976. But as no challan was filed by the police in the case within sixty days from the date of the arrest of the appellants they were released on bail on Feb. 23, 1976 under S. 167 (2) of the Cr. P.C. Subsequently the police filed a challan and the Magistrate committed all the eleven accused to the Sessions Court and released them including the appellants on bail.

3. The complainant filed an application, out of which this appeal arises before the Sessions court for cancellation of the bail to the three appellants on the ground that their petitions for grant of bail were rejected on merits both by the Sessions Court and the High Court. The Sessions Judge relying on a decision of the Punjab High Court reported in 1975 Pun J (Crl) 143, Ajaib Singh v. State of Punjab, held that the consideration for grant of bail at the stage when no report under S. 173, Cr. P.C., was filed were entirely different because if the report is not produced within two months, the court has no option but to grant bail to the accused howsoever the heinous nature of the offence may be. Holding that when once a report under S. 173, Cr. P.C. is filed by the police the Court has jurisdiction to cancel the bail allowed the application of the complainant and cancelled the bail. (sic)

4. An appeal against the order of the Sessions Judge cancelling the bail was dismissed by the High Court. It was contended before the High Court that when the appellants were released under the proviso to S. 167 (2) of the Cr. P.C. unless there was an allegation of misconduct or misuse of the terms of bail bond by them the bail order could not be withdrawn. It was further contended that the order of bail could be cancelled only under the provisions of S. 437 (5), Cri, P.C. as the order of bail passed under Section 167 (2) is deemed to be a bail order passed under Chap. XXXIII, Cri. P.C. Disagreeing with the contention of the learned counsel for the appellants, the High Court held as follows :

"The order of bail is passed by the Magistrate in such cases only because of the technicalities in law, that is the failure of the investigating agency to discharge its duties in time in presenting the challan against the accused within the period directed by S. 167, Cr. P.C. This bail order is not on merits of the case. As soon as the ground for which the court has no option but to release the accused on bail is fulfilled or complied with by the investigating agency, the Magistrate or the Court of Session or the High Court can on that ground cancel the bail allowed earlier. When such an order of cancellation is passed it is to be presumed that the court while cancelling the bail, has taken into consideration the final report of the police laid against the accused, first information report, statemen