K.K. DUBE, J.

1. The applicants seek to challenge the order canceling their bail by the Magistrate.

2. The facts briefly stated leading to this application are these:–

The applicants were arrested by the police pending investigation of offences punishable under section 394, 397 and 363 of the Indian Penal Code. The challan could not be filed within a period of sixty days of their arrest and the Sessions Judge granted bail under the proviso to section 167(2) of the Code of Criminal Procedure. Later, the charge-sheets were filed alleging commission of offences under sections 394, 397 and 363 of the Indian Penal Code. The learned Magistrate committed the case for trial to the Court of Session as, in his opinion, the evidence taken by the investigating agency disclosed prima facie that the applicants have committed offences which were punishable by life imprisonment and were exclusively triable by the Court of Session. He also cancelled the bail granted earlier. The applicants then moved the Court or Sessions, Rewa but without any success. Hence this application.

3. It is contended that when under section 167(2) bails was granted, it would be deemed to be under Chapter XXXIII of the Code of Criminal Procedure and all provisions relating to bail would be applicable. Therefore, when the learned Magistrate cancelled the bail it could be only under sub-section (5) of section 437. The order then was attacked on two grounds. First, the cancellation was not on any ground of misuse of the liberty granted and secondly, since the bail was granted by the Sessions Judge, it could not be cancelled by the Magistrate. It was contended that bail under section 167(2) was not such as enured only till the date of filing of the challan and therefore, it was not competent for the Magistrate to have cancelled the order except as otherwise provided by sub-section (5) of section 437. The learned counsel relied on the observations in Nataber Perdia & others vs. State of Orissa, AIR 1975 SC 1465, Ram Murti & another vs. State, 1976 Cri. L.J. 211, Premrai & another vs. State of Rajasthan, 1976 Cri. L.J. 455 and Seoti & others vs. Rex, AIR 1948 All 366.

4. The effect of proviso to sub-section (2) of section 167 Code of Criminal Procedure would be that the Magistrate would be required to release an accused on bail if he in prepased to and does furnish bail when sixty days have eapsed after the arrest of the accused and the challan could not be filed. Every person released on bail under this section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter. It would undoubtedly appear from the language of the section that all provisions of bail contained in Chapter XXXIII have then to be fully applied.

5. Their Lordships of the Supreme Court in Nataber Perdia's case (supra) dealing with the powers of the Magistrate to remand under the Code of Criminal procedure observed that the intention of the legislature was to grant no discretion to the Court and to make it obligatory for it to release the accused on bail if after a period of sixty days after his arrest, no challan was filed, even though the investigation had not completed. It was observed as under:–

"Of course, it has been provided in proviso (a) that the accused released on bail under section 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."

6. Though a doubt may exist that the bail granted under proviso to section 167(2) was for a period till the challan was filed, it is clear that such impressions were un-warranted as there is nothing in the language of section 167 that restricted the bail to last upto the time the challan was filed, The observations of the Supreme Court make