G.D.Srivastava, J. - (1.) THIS is an application under section 439, Cr. P. C. by Lakshmi Brahman and Nawal Garg. The applicants pray that they may be directed to be released on bail since the case involved the interpretation of section 167 (2) of the Code of Criminal procedure, 1973, and the learned Single Judge thought that there was a conflict of judicial opinion in that regard, he referred the case to a Division Bench. This is how the case has come up before us. The two applicants Lakshmi Brahman and Nawal Garg were accused in a case under section 302, I. P. C. They surrendered themselves before Magistrate on 2nd November, 1974 and were taken into custody on the same day. However, the police failed to submit a charge-sheet against them, within 60 days of their arrest (the charge-sheet had not been submitted even upto 5th February, 1975). The applicants, there-fore moved the present application and claimed that once the police failed to submit a charge-sheet within a period of 60 days of the arrest, their detention thereafter became Legal and they were entitled to be released on bail as pro-vided in section 167 (2) of the Code of Criminal procedure, 1973. In their application, the applicants further alleged that their request for being released on bail had already been rejected by the Sessions judge, but they did not make it clear whether their request was made and rejected before or after the expiry of 60 days of their arrest.
(2.) WHEN the case came jump for hearing before us, learned counsel appearing for the State admitted that in this case the police did not submit the charge-sheet again the applicants within 60 days of November 2, 1974 (the date on which the two applicants were taken into custody) he also informed us that subsequently the charge-sheet has been submitted and the Magistrate has already taken cognizance of the offence. However, by the time this application came up for hearing before us, the learned Magistrate, could not, due to certain unavoidable reasons, make an order committing the applicants to the court of Sessions he contended that once the charge-sheet has ocean submitted and cognizance of the offence taken, section 167 (2) of the Code ceased to apply and in such circumstances an accused could not claim to be released on bail as of right. His prayer for bail had to be considered in accordance with the provisions of section 437 of the Code of Criminal procedure Relevant portion of section 167, which falls in Chapter XII of the Code dealing with the information of police and their powers to investigate, reads thus:- "(1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot of be completed within the period of twenty-four hours fixed be section 57, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police stardom or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in he diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate. (2) The Magistrate to whom, an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as sub Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if be has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction: Provided that- (a) the Magistrate may authorise detention of the accused person, other wise than in custody of the police, beyond the period of fifteen days if he is satisfied that adequate grounds exactor doing so, but no Magistrate shall authorise the detention of the accused person in custody under this section for a total period exceeding sixty days, and on the expiry of the said period of sixty days the accused person shall be released on bail if he is prepared to and does furnish bail and every person released on bail under this section shall be deeded to be so released under the provisions of chapter XXXIII for the purposes of that Chapter. (b)......................................." Learned counsel for the applicants submitted that proviso (a) to section 167 (2, in so many words laid down that the Magistrate shall not authorise the detention of an accused person in custody for a total period exceeding 60 days. Accordingly, once that period has expired, the Magistrate loses jurisdiction in to keep the accused in custody and any subsequent detention of the accused under the provisions of that section would be illegal. We are unable to accept this submission. According to section 167, whenever any person is arrested and is detained in custody and it appears that the investigation cannot of be completed within a period of 24 hours next by section 57 and there are grounds for believing that the accusation or information are well-founded the officer in charge of the police station is required to forthwith transmit to the nearest judicial Magistrate a copy of case diary entries and also to forward the accused to such Magistrate. The Magistrate, to whom an accused person is forwarded can either enlarge the accused on bail in accordance with the provisions of section 436 of the Code or he can dire of that the accused be placed in such custody as he thinks fit, for a term not exceeding 15 days. In case the Magistrate to whom the accused is forwarded happens to be a Magistrate competent to try the accused or to commit him for trial, he can further authorise the detention of such an accused other wise than in police custody, even for a period beyond 15 days subject, however to the condition that the total period of detention is not to exceed 60 days, whereof,the accused, if he is prepared to furnish bail, becomes entitled to be released from custody, is evident that an order under section 167 of the Code, remanding the accused to custody, is made in order to facilitate the investigation and that sub power to remand an accused to jail custody or to release him on bails to be exercised during the investigation of an offence by the police. The section contemplates that in case the investigation is not completed within 60 days and the accused person is prepared to offer bail he shall be released on bail and it will be considered that he has been so released in accordance with the provisions contained Chapter XXXIII of the Code. In the context, what the expression," but no Magistrate shall authorise the detention of the accused person in custody under this section for a total period exceeding 60 days the accused person shall be released on bail it he is prepared to and does furnish bail "in section 167 (2) (a) means is that a Magistrate cannot during investigation, remand an accused to custody beyond a period of 60 days if the accused is prepared to and does furnish bail. This necessarily implies that even after expiry of 60 days if the accused does not offer and turnish bail, the Magistrate will have to make the order remanding him to custody. Accord only, it cannot of be said that under section 167 (2) of the Code, the Magistrate can, in no case, authorise the detention of an accused person beyond a period of 60 days. since in this case it has not been shown by the applicants that they made any application to the learned Magistrate for being released on after the period of 60 days was over, it cannot be said that the remand orders made during the investigation, but after the expiry of 60 days, were illegal as such, or that the Magistrate was bound to enlarge them on bail even though they did not apply for it.
(3.) LEARNED counsel for the applicant then argued that even if it be assumed that the applicants did not during the investigation and after the expiry of 60 days of their arrest, move the Magistrate concerned under section 167 (2) (1) for being released on bail, the learned Magistrate could not, in the exercise of his power under section 167 (2) (a) of the Code, authorize the detent of the applicant in jail custody after the investigation was over and the police had submitted the charge-sheet against then, and pointed out that even according to the Government counsel the provisions of section 167 ceased to apply after the charge sheet had been submitted and cognizance of the offence taken by the Magistrate, After cognizance of the offence had been taken, the power to remand the accused to custody, in a case exclusively triable by court of Session, could be exercised only either under section 209 or under section 309 of the Code which provisions too are not attracted in the case. There being no other provision in the Code justifying applicant's detention at the present stage this is a fit case in which they should be admitted to bail.;