N.M.KASLIWAL, J. - (1.)THIS bail application under Section 439 Cr. P.C. has not been pressed on merits but has been argued merely on the basis of legal grounds.
(2.)BRIEF facts leading to this bail application are that an FIR No. 8/1983 was filed on April 4, 1983 at Police Station G.R.P., Sikar on the basis of which an offence under Section 302 IPC was registered against the petitioners. The petitioners surrendered of their own accord in the Court of Judicial Magistrate (Railway), Jaipur City jaipur, on August 19, 1983 and the learned Magistrate directed them to be sent to judicial custody. During this period of judicial custody police remand was also given on August 26, 1983 at the request of the police. On November 18, 1981 the petitioners submitted an application for grant of bail before the learned Magistrate on the ground that as no charge -sheet had been filed in the case within 90 days as such they were entitled to be released on bail. The learned Magistrate by his order, dated November 19, 1983 dismissed the bail application on the ground that the accused persons has surrendered of their own accord on August 19, 1983 and on that date the following order was passed: .........[vernacular ommited text].......... Thereafter on August 26, 1983 after perusing the case diary and the application of S.H.O., G.R.P., Sikar, an order was given to the following effect: .........[vernacular ommited text].......... The learned Magistrate further held that a perusal of the above two orders clearly goes to show that the order dated August 19, 1983 was not given under Section 167 Cr. P.C as till then no record was available with the Court of the case is which the accused persons wanted to surrender. In view of these circumstances the accused persons were kept in judicial custody from August 19,1983 to August 26, 1983 at their own request and as such this period cannot be counted in calculating the period of 90 days under Section 167(2) Cr. P. C. The learned Magistrate further mentioned that the SHO., G.R P. Sikar may be informed to submit police report by November 24,1983 otherwise the accused persons would be entitled to be released on bail under Section 167(2) Cr. P.C. Thereafter the challan in the case was filed on November 25, 1983. The accused persons again submitted an application/for the grant of bail on November 25, 1983. The learned Magistrate dismissed this bail application also taking the view that filing of challan and taking of cognizace is the cese were two different matters. As he had already taken cognizance in the case as such the accused persons were not entitled to the benefit of Section 167(2) Cr. P. C. The learned Magistrate further held that the accused persons had already submitted an application for grant of bail in the Court of Sessions and on this ground also he did not consider it proper to release the accused -petitioners on bail. The application for bail then came up for consideration before the learned Sessions Judge, Jaipur City, Jaipur, who by his order, dt. Dec. 12, 1983 dismissed the application taking the view that the learned Magistrate had himself taken cognizance in the case on August 19, 1983 and thereafter the remands could have been passed under Section 309(2) Cr. P. C. and under that provision there was no restriction of 90 days. Learned Sessions Judge therefore, held that the accused persons were not entitled to get the benefit of Section 167(2) Cr. P. C. and as such dismissed the bail application.
Mr. Dhankar, learned Counsel for the petitioners, contended that for arguments sake if the order, dated August 19, 1983 passed by the learned Magistrate is construed as an order taking cognizance under Section 100 Cr. PC and the order granting judicial custody is deemed to have been passed under Section 309(2) Cr. PC, then the learned Magistrate had no power to grant police remand on August 26, 1933. It is contended that it has been clearly laid down in Ashok v. State of Rajasthan 1981 Cr. LR (Raj.) 491 that once a remand has been passed under Section 309 Cr. PC, no further remand can be granted to police custody. In these circumstances it was argued that the remand to police custody granted by the learned Magistrate on August 26, 1983 being clearly illegal, the petitioners were entitled to be released on bail as held in Manohari v. State of Rajas than 1983 RLR 155. Reliance was also placed on Kedar v. State 1977 Cr. LJ 1230 and Ram Chandra v. State 1977 Cr. LJ 1783.

(3.)IT was also argued by learned Counsel for the petitions that the order, dated August 19, 1983, cannot be construed to be an order taking cognizance under Section 190 Cr. PC. In this regard it is submitted that the order passed by the learned Magistrate on August 19, 1983 was merely remanding the petitioners to judicial custody at the request of the petitioners and no material or papers of the case were available for applying his mind to take cognizance in the case. The learned Magistrate himself on the other hand mentioned that he was not passing any effective order and the same would be passed after calling the case diary on August 26, 1983. It is thus contended that there was no question of taking cognizance by the Magistrate on Ausust 1(sic)3, 1983 and the earliest date for arrest to be taken as August 26, 1983 then the charge sheet having been filed on November 25, 1983 was beyond 90 days and as such the petitioners were entitled to be released on bail. In this regard it was also submitted that the learned Magistrate himself in his mentioned that if the charge -sheet will not be filed in the case by November 24, 1983, the petitioners would be entitled to be released on bail under Section 167(2) Cr. PC. It is thus submitted that the learned Magistrate had passed the order taking cognizance under Section 190 Cr. PC only on November 25, 1983 when the charge sheet was filed in the case. It is contended that in a case investigated by the police, no cognizance could have been taken by the learned Magistrate before filing of the charge sheet under Section 173 Cr. PC, Reliance in this regard is placed on Ved Kumar Seth v. State of Assam 1975 Cr. LJ 647 and Beni Madhav v. State of Rajasthan 1983 Cr. LJ 633.