M.B. Sharma, J. - (1.) The learned Single Judge under his order dated 22nd April, 1993 requested the Hon'ble Chief Justice to constitute a larger bench for determination of the point of law which, according to him, arises in the present case. The point of law referred by the learned Single Judge reads as under:- "Whether the accused is entitled to bail under proviso to sub-Section (2) of Section 167 Criminal Procedure Code. even in those cases where the investigation is complete and charge-sheet has been filed within the prescribed period, but cognizance could not be taken by the Magistrate for any reason whatsoever." This court in Jailal v. The State of Rajasthan (1979 R.L.W. 205) and Narayan and Co. v. The State of Rajasthan (1982 R.C.C. 315) had taken the view that if cognizance for an offence is not taken by the Magistrate within the period of 90 days of the arrest of the accused, the accused is entitled to bail and his detention becomes illegal which cannot be valid dated by an order of remand by the learned Magistrate. Even in the case of Beni Madhav and others v. The State of Rajasthan (1982 RCC 145) a similar view had been taken. In the case of Dauia Ram and others v. State of Rajasthan (1984 R.L.R. 300) , a learned Single Judge of this Court had taken a different view and held that if the investigation is over within the prescribed period proviso to Section 167(2) Criminal Procedure Code. in respect of grant of bail would not apply.
(2.) In view of the aforesaid conflict in the decisions of this Court, the learned Single Judge has made the reference to us.
(3.) It was contended by the learned counsel for the petitioner in support of the view taken by this Court in the cases, including the case of Beni Madhav (supra) that the process of investigation within the of Section 167 Criminal Procedure Code can be said to have been 4 completed only when not only the report under Section 173 Criminal Procedure Code is submitted by the Investigating Officer but has also been examined by the Magistrate and the Magistrate has passed appropriate order on the said report. The learned Judge said that the power to authorise the detention of an accused person under Section 167 Criminal Procedure Code is available not only till the filing of the report by the police but till the time the Magistrate examines the said report and has passed appropriate order on the same under Section 190 and the proviso to sub-Section (2) of Section 167 Criminal Procedure Code would be attracted and the accused would be entitled to be released on bail if the Magistrate has failed to take cognizance of the offence under Section 190 within the period prescribed in the said proviso irrespective of the fact that the police had filed the challan in the court before the expiry of the period prescribed in the proviso.;