Gurnam Singh, J. - (1.) CHANDER son of Chhidi and Ganga Ram son of Tulli, residents of village Bhclra, Police Station Chhainsa, accused in case First Information Report No. 30, dated 27.3.1975 under section 302 read with S.34, Indian Penal Code, applied for bail, on the ground that their chalan was not put in the Court of Judicial Magistrate 1st Class, Ballabgarh within 60 days of their arrest in pursuance of the provisions of section 167 (2) (a) proviso, Criminal Procedure Code of 1973.
(2.) THE Petitioner were arrested on 3.4.1975 and the challan was presented in the Court of Judicial Magistrate 1st. Class, Ballabgarh on 3.6.1975. The Learned Counsel for the Petitioners vehemently contended that the petitioners were entitled to under section 167 (2) (a) proviso, Criminal Procedure Code, without making any application. He placed reliance on baldev Singh v. State of Punjab, (1975)2 Cri. L.T. 276 (Full Bench), wherein it has been observed that "there need be no application for bail by the accused at all and that the accused person must be released on bail if he is prepared to furnish the same in case he has already been in custody for a period of sixty days." It was further observed that "the Magistrate is himself duty bound and the accused is entitled as of right to be so released on furnishing bail provided the requisite condition of detention beyond sixty days is satisfied." It is further observed therein that "therefore, that to contend that the date of the bail application would govern the attraction of applicability of section 167 of the New Code appears to me as patently fallicious." In case Ved Kumar Seth and another v. The State of Assam : 1975 Cri. L.J.647 , it has been held that: - - In the instant case, as pointed out earlier, all the accused -petitioners have been kept in custody for more than sixty days. We have found that an accused person is kept in custody for sixty days in all, the Magistrate must release him on bail if he is prepared to and does furnish bail and there is no jurisdiction of the Magistrate under section 167, Criminal P.C. to pass remand orders for detention of the accused persons after he has already been in custody for sixty days. In case Phuman Singh Y. The State of Punjab, 1974 P.L.J. 438, S.S. Sidhu, J., observed that: - - According to the Provision to sub -section (2) of Section 167, Criminal Procedure Code, 1973, the Court is bound to release the accused on bail if the challan against him is not put in Court within a period of 60 days after his arrest. It was further observed in Phuman Singh v. The State of Punjab. (Supra) that where the accused was arrested on August (sic) 1974, and chalan was put in Court on October 11, 1974, while bail application filed on October 10, 1974, the period of sixty days after the arrest of the accused having expired on October 9, 1974 the accused has got a statutory right to be enlarged on bail when he is prepared to furnish the required bail bonds.
(3.) CONSIDERING the language of the proviso (a) appended to section 167 (2) of the Criminal Procedure Code, which is a mandatory provision, the petitioners on the expiry of the period of sixty days in custody are entitled to be released on bail and the Magistrate is, therefore, directed to release them on bail if they are prepared to furnish the required bail bonds. 2. It may, however, be pointed out that under proviso (a) to section 167 (2) of the Criminal Procedure Code of 1973 "a person released on bail shall be deemed to be so released on under the provisions of Chapter XXXIII for the purposes of that Chapter." It means that if a person is released on bail under Section 167 Criminal P.C., the other relevant provisions regarding the bail and bail bonds as laid down in Chapter XXXIII will also be applicable. That is to say, if an order for bail is passed under the mandatory provisions of proviso (a) of Section 167 (2), then the other relevant provisions regarding bail and bail bonds in Chapter XXXIII will be attracted, and under section 439 (2), Criminal Procedure Code, which is included in Chapter XKXIII, the High Court or the Court of Session can direct, that any person who has been so released on bail, be arrested and committed to custody This order will, there ore, not in any way affect the power of the Court of Session under section 439 (2), Criminal Procedure Code, if the circumstances of the case, permit such action to be taken.;