ORDER

This criminal original petition has been filed praying to set aside the remand order dated 06.04.2022 in PRC.No.14 of 2015 on the file of the learned Judicial Magistrate-IV, Salem and to release the petitioner forthwith.

2. The learned counsel for the petitioner would submit that the petitioner is an accused in crime No.575 of 2002 registered for the offence under Sections 147, 148, 149, 323, 324, 302 of IPC and Section 3 r/w 25(i)(b) and 27(1) of Indian Arms Act on the file of the respondent. In pursuant to the registration of FIR, the petitioner was arrested and remanded to judicial custody. Subsequently, he was released on bail on default ground as contemplated under Section 167(2) of Cr.P.C. After completion of investigation, final report was filed and the same has been pending for committal in PRC.No.14 of 2015 on the file of the learned Judicial Magistrate No-IV, Salem. However, the learned Magistrate, without issuance of summons, straight away issued non bailable warrant and the petitioner was arrested and remanded to judicial custody.

2.1 He further submitted that once the petitioner was granted statutory bail as contemplated under Section 167(2) of Cr.P.C., the bail granted to him is not automatically cancelled. After cancellation of bail granted to the petitioner, he can be remanded to judicial custody. After granting bail to the petitioner under Section 167(2) of Cr.P.C., even after issuance of non bailable warrant against him, he cannot be arrested and remanded to judicial custody without cancelling the statutory bail granted under Section 167(2) of Cr.P.C. However, on execution of NBW issued against the petitioner, he was arrested and remanded to judicial custody on 06.04.2022 in PRC.No.14 of 2015 on the file of the learned Judicial Magistrate-IV, Salem. In support of his contention, he relied upon the judgment of the Hon'ble Division Bench of this Court passed in Crl.A.No.226 of 2022 dated 26.08.2022. The Hon'ble Division Bench of this Court cited the judgment of the Hon'ble Supreme Court of India in the case of Raghubir Singh and Others Vs. State of Bihar reported in (1986) 4 SCC 481, wherein it is held as follows:

“20. ...... The accused person may yet take advantage of the order for release on bail by producing a fresh, acceptable surety. The argument of the learned counsel for the State of Bihar was that the order for release on bail stood extinguished on the remand of the accused to custody under Section 309(2) of the Code of Criminal Procedure. There is no substance whatever in this submission. Section 309(2) merely enables the court to ?remand the accused if in custody?. It does not empower the court to remand the accused if he is on bail. It does not enable the court to ? cancel bail? as it were. That can only be done under Section 437(5) and Section 439(2). When an accused person is granted bail, whether under the proviso to Section 167(2) or under the provisions of Chapter XXXIII the only way the bail may be cancelled is to proceed under Section

437(5) or Section 439(2).

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22. The result of our discussion and the case-law is this : An order for release on bail made under the proviso to Section 167(2) is not defeated by lapse of time, the filing of the charge-sheet or by remand to custody under Section

309(2).”

3. Heard, the learned counsel for the petitioner and the learned Additional Public Prosecutor appearing for the respondent.

4. The Hon'ble Division Bench of this Court, in the above judgment, held that the default bail granted under Section 167(2) of Cr.P.C. cannot be defeated by lapse of time, the filing of charge sheet or by remand to custody under Section 309(2) of Cr.P.C. Whereas the petitioner was arrested and remanded to judicial custody in pursuant to the registration of FIR in crime No.575 of 2002 on the file of the respondent. Subsequently, the petitioner was released on default bail as contemplated under Section 167(2) of Cr.P.C. While he was in bail, he involved in so many