M.S Deshpande, J.:— The learned Single Judge has referred for decision by a Division Bench, the question whether the right accrued to the accused for being enlarged on bail under proviso (a) to section 167(2) of the Code of Criminal Procedure, is such an absolute right that it cannot be divested or obliterated by filing a charge-sheet.

2. Abdul Wahid the applicant was arrested on 8-8-1989 at Morshi in respect of an incident which occurred on 25-4-1989 in which a person was killed. The charge-sheet was filed on the 92nd day from the date of arrest that being also the date on which an application for bail was made to the Sessions Court. The Sessions Court refused bail on 31-1-1991 despite the contention of the applicant that he was entitled to be released on bail under proviso (a) to section 167(2) of the Code of Criminal Procedure, in view of the decision of a Division Bench of this Court in Shrawan Hanaji Undirwade v. State of Maharashtra, 1976 Mah LJ 654. The applicant then preferred the present application under section 439 read with section 167 of the Criminal Procedure Code for bail. When the matter came up before the learned Single Judge (H.D Patel, J.) he found that there was conflict of decisions of Single Judges of this Court. In Baburao Rajaram Wakle…Applicant; v. State Of Maharashtra…Non-Applicant., 1989 Mah LJ 1027, A.A Desai, J. took the view that the application seeking relief under the proviso to sub-section (2) of section 167 cannot be entertained and relief thereunder cannot be granted merely because the charge-sheet came to be filed during the pendency of the application seeking relief under the proviso to sub-section (2) of section 167. In his view after the filing of the charge-sheet the question of granting bail can only be dealt with under section 437 of the Criminal Procedure Code, because completion of investigation divests the authority of the Magistrate to release the accused on bail under the provisions of section 167(2), proviso (a). On the other hand Moharir, J. in Criminal Application No. 619 of 1990, Malkit Singh v. The State of Maharashtra; decided on September 24, 1990 fell that the decision in Shrawan v. State, 1976 Mah LJ 654, cannot be held to be good law in view of the decision of the Supreme Court in Raghubir Singh v. State of Bihar, (1986) 4 SCC 481 : AIR 1987 SC 149 and Rajnikant v. Intelligence Officer, Narcotic Control Bureau, New Delhi, (1989) 3 SCC 532 : AIR 1990 SC 71. H.D Patel, J. after elaborately discussing the conflicting views felt that a doubt has been created by the view taken by Moharir, J. in Malkit Singh's case and the matter should therefore, be decided by a Division Bench and that is how the matter has come before us.

3. Before we consider the authorities on the subject, it would be expedient to notice the relevant provisions of the Code of Criminal Procedure. Section 167 so far as is relevant, reads as follows:—

“167. (1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 57, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police station 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 the 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 such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he 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 the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding,—

(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;

(ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does not furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;

(b) ---------

(c) ---------

Explanation 1: For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a) the accused shall be detained in custody so long as he does not furnish bail.”

4. Section 167 falls in Chapter XII of the Code, captioned ‘Information to the Police and their powers to investigate.’ Chapter XXIV contains general provisions as to inquiries and trials. Section 309 so far as is relevant is as follows:—

“309. (1) In every inquiry or trial, the proceedings shall be held as expeditiously as possible, and in particular, when the examination of witnesses has once begun, the same shall be continued from day to day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded.

(2) If the Court, after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody:

Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time.”

5. Under section 2(g) “inquiry” means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court. Under clause (h) “investigation” includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf. It is, therefore, clear that investigation precedes inquiry and the powers conferred on the authorities and the Court in holding investigation or inquiry have been separately stated in the different chapters of the Code. In State of U.P v. Lakshmi Brahman, (1983) 2 SCC 372 : AIR 1983 SC 439, it was held as follows:—

“Now, the High Court is right in holding that the jurisdiction to grant bail, in case investigation is not completed within the prescribed time limit as incorporated in the provision as it then stood, vests in the Magistrate if the accused applies and is prepared to furnish bail. Section 167 envisages a stage when a suspect is arrested and the investigation is not completed within the prescribed period. The investigation would come to an end the moment charge-sheet is submitted as required under section 170 unless the Magistrate directs further investigation.”

6. It was further observed in para 13:—

“From the time the accused appears or is produced before the Magistrate with the police report under section 170 and the Magistrate proceeds to enquire whether section 207 has been complied with and then proceeds to commit the accused to the Court of Session, the proceeding before the Magistrate would be an enquiry as contemplated by section 2(g) of the Code.

------- If the Magistrate is holding the inquiry obviously section 309 would enable the Magistrate to remand the accused to the custody till the inquiry to be made is complete. Sub-section (2) of section 309 provides that if the Court after taking cognizance of an offence or commencement of trial, finds it necessary or advisable to postpone the commencement or adjourn any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody.”

7. Section 309(2) thus clearly enables the Magistrate to remand the accused to custody in the course of an enquiry.

8. In Hussainara Khatoon v. Home Secretary, State of Bihar, (1980) 1 SCC 108 : AIR 1979 SC 1377, it was observed that when an undertrial prisoner is produced before a Magistrate and he has been in detention for 90 days or 60 days, as the case may be, the Magistrate must, before making an order of further remand to judicial custody, point out to the undertrial prisoner that he is entitled to be released on bail. The State Government must also provide at its own cost a lawyer to the undertrial prisoner with a view to enable him to apply for bail in exercise of his right under proviso (a) to sub-section (2) of section 167 and the Magistrate must take care to see that the right of the undertrial prisoner to the assistance of a lawyer provided at State costs is secured to him. In Lakshmi Brahman's case, (1983) 2 SCC 372 : AIR 1983 SC 439 the admitted position was that the respondents did not apply to the Magistrate for being released on bail on the expiry of 60 days from the date of arrest and so their continued detention would not be illegal or without authority of law. In Raghubir Singh v. State of Bihar, (1986) 4 SCC 481 : AIR 1987 SC 149 after considering the effect of proviso (a) to section 167(2) of the Code, it was stated:—

“A person released on bail under the proviso to section 167(2) for the default of the investigating agency is statutorily deemed to be released under the provisions of Chapter 33 of the Code for the purposes of that chapter. That is provided by the proviso to section 167(2) itself. This means, first, the provisions relating to bonds and sureties are attracted. ---------- Sections 441 and 442, to borrow the language of the Civil Procedure Code, are in the nature of provisions for the execution of orders for the release on bail of accused persons. What is of importance is that there is no limit of time within which the bond may be executed under the order for release on bail is made. ------- The accused persons are not to be deprived of the benefit of the order for release on bail in their favour because of their inability to furnish bail straightway.”

9. While dealing with the argument of the counsel for the State of Bihar 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, it was held that there is no substance in the submission as 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). It is noteworthy that in Raghubir Singh's case the accused was directed to be released on bail by the order passed by the Judicial Magistrate, First Class on 1-3-1984 subject to certain conditions and the charge-sheet was filed on December 4, 1984. The observations of the Supreme Court have, therefore, to be read in this background. The question as to whether remand could be granted to the accused who had not been released on bail during 60/90 days though the period of 60/90 days from the date of arrest was over, after the filing of the charge-sheet did not arise for decision in Raghubir Singh's case. The observations in para 20 in Raghubir Singh's case would not be attracted in a case where the accused is still in custody without there being an order of his release on bail and pending his detention a charge-sheet is filed.

10. Shri Sirpurkar, the learned counsel for the applicant, relied on the following observations in Rajnikant v. Intelligence Officer, Narcotic Control Bureau, (1989) 3 SCC 532 : AIR 1990 SC 71:

“12. An order for release on bail under proviso (a) to section 167(2) may appropriately be termed as an order-on-default. Indeed, it is a release on bail on the default of the prosecution in filing charge-sheet within the prescribed period. The right to bail under section 167(2) proviso (a) thereto is absolute. It is a legislative command and not Court's discretion. If the investigating agency fails to file charge-sheet before the expiry of 90/60 days, as the case may be, the accused in custody should be released on bail. But at that stage, merits of the case are not to be examined. Not at all. In fact, the Magistrate has no power to remand a person beyond the stipulated period of 90/60 days. He must pass an order of bail and communicate the same to the accused to furnish the requisite bail bonds.”

11. Those observations have to be read in the background of the facts of that case. The petitioners there were arrested on 23rd March 1988 at Bombay. On 10th May 1988 they moved the Metropolitan Magistrate for bail and when that petition was pending consideration, the prosecution submitted charge-sheet on 23rd June 1988 for offences under sections 21, 23 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. On July 22, 1988 the petitioners filed an application for bail under section 167(2), Criminal Procedure Code on the ground that the charge-sheet was filed after the expiry of 90 days of their arrest. On 29th July 1988 the learned Magistrate enlarged them on bail on their furnishing “self bonds” and thereafter the prosecution moved for cancelling the bail and did not succeed, but the bail was cancelled by the Delhi High Court when moved under section 439(2) read with section 482 of the Criminal Procedure Code. The question before the Supreme Court was whether the discretion exercised by the High Court was legally sustainable and the Supreme Court took the view that the accused cannot claim any special right to remain on bail if the investigation reveals that they had committed a serious offence and a charge-sheet is filed, the bail granted under proviso (a) to section 167(2) could be cancelled. Rajnikant's case is not, therefore, an authority for the proposition that the powers for granting remand cannot be exercised after filing the charge-sheet even though the accused has not been released on bail, only on the ground that the period of 60/90 days limited by proviso to section 167(2) has expired. In fact Explanation I to that proviso makes it clear that for the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a) the accused shall be detained in custody so long as he does not furnish bail.

12. From the examination of the relevant provisions it appears to us that the right given under proviso to sub-section (2) of section 167, is not an absolute right to be let-off. It gives only absolute right to be granted bail if the charge-sheet is not filed within the prescribed period, but the detention nonetheless continues to be authorised detention in view of Explanation I. Though that detention cannot be characterised as remand as understood in section 309 because in a former case the power flows from section 167 which can be availed of in the course of investigation and in the latter by virtue of the powers under section 309 during the pendency of enquiries and trials, the illegality of the continuous detention, is not impaired merely because the authorisation to detain arises from different provisions of the Code.

13. Shri Sirpurkar contended that the proposition laid down in Shrawan v. State of Maharashtra, 1976 Mah LJ 654, would no longer be good law because of the observations in Raghubir Singh and Rajnikant's cases. We do not see any merit in this criticism. It was observed in Shrawan's case that the detention of the accused beyond the period of 60 days is not ipso facto illegal. Mere preparedness of the accused to furnish bail is also not enough but the further duty is enjoined upon him to furnish bail if he wants to get himself released on bail under proviso (a) to sub-section (2) of section 167 of the Criminal Procedure Code. Even in Raghubir Singh and Rajnikant's cases the right is described as an absolute right to be released on bail, a right arising out of the default on the part of the investigating agency. Those observations would not entitle the accused to a larger concession or entitlement and the concession or entitlement would only be to be released on bail. The further observations in Shrawan's case that a right created under section 167 of the code could be exercised by the accused before the completion of the investigation and filing of the charge-sheet, is also endorsed by Raghubir Singh and Rajnikant's cases. Exception, however, was taken to the proposition in Shrawan's case that once the charge sheet is filed, the Magistrate can exercise power of granting bail only under section 437 of the Criminal Procedure Code and not under section 167(2) of the Criminal Procedure Code. But as we have already indicated, nothing to the contrary has been stated either in Raghubir Singh's case or Rajnikant's case as those cases dealt with the position where the accused remained in custody without having obtained an order for being released on bail after a period of 60/90 days and the accused had been released because of the failure of the investigating agency to file a charge-sheet within the prescribed period of 60/90 days. The ratio of those cases is that if the accused is released because the charge-sheet is not filed within 60/90 days, the application for cancellation of the bail can only be dealt with under section 437 of the Criminal Procedure Code.

14. Shri Sirpurkar urged that the authority of Shrawan's case would be considerably shaken because there support was drawn from the observations in Umedsinh v. The State of Gujarat, AIR 1977 Guj 11 and that Division Bench decision has been overruled by the Full Bench of Gujarat High Court in Babubhai v. State of Gujarat, 1982 Cri LJ 284. In para 21 of Babubhai's case the Full Bench observed that under section 309, sub-section (2), after first taking cognizance of the offence the Court may by a warrant remand the accused if in custody, but that power of remand has to be read in the light of the right of entitlement of the accused to be released on bail once the period of ninety days or sixty days mentioned in section 167(2)(a) comes to an end. The Full Bench felt that this was the only way in which the provisions of sections 167, 209 and 309 can be reconciled, and the mandate or the command of the Legislature, as set out in section 167(2)(a), cannot be overlooked when considering the question of custody. In our view such a conclusion would not necessarily follow from A. Laxmanrao v. Judicial Magistrate, First Class, Parvatipuram, 1971 Cri LJ 253, where the Supreme Court considered the provisions of section 344 of the Code of Criminal Procedure, 1898 (corresponding to section 309 of the present Code) which did not contain a provision similar to the proviso to section 167(2) of the Code of Criminal Procedure, 1973 and observed that the fact that section 344 (of the old Code) occurs in Chapter 24 which contains general provisions as to inquiries and trial, does not justify a construction that it is inapplicable to a case which is at the stage of investigation and collection of evidence only. This is clear from sub-section (1-A) under which the commencement of the inquiry or trial can also be postponed and this clearly seems to refer to the stage prior to the commencement of the inquiry. The explanation makes it clear beyond doubt that reasonable cause as mentioned in sub-section (1-A) includes the likelihood of obtaining further evidence during investigation by securing a remand. In our view, therefore, the above referred proposition in Babubhai's case does not help Shri Sirpurkar, as it must yield to the observations of the Supreme Court in A. Laxmanrao's case.

15. Shri Sirpurkar urged that three Single Benches of this Court have, relying on the above Supreme Court decisions have taken a view contrary to Shrawan's case. In Ramsaran v. State of Maharashtra, 1976 Mah LJ 432, the question as it arises in the present case did not arise for decision and all that Gandhi, J. stated was that if within 60 days from the date of arrest the investigating agency cannot file a charge-sheet before the Court, a right is created in the accused and the Magistrate is bound to release him on bail if applied for irrespective of the gravity of the offence. In the The State Of Maharashtra… v. Sharad B. Sarda…., (1983) 1 Bom CR 578, Kanade, J. pointed out that it is the duty of the Magistrate to inform the accused that he is entitled to be released on bail, and this absolute right of the accused cannot be allowed to be defeated by resorting to the provisions of section 10 of the General Clauses Act. The learned Judge took the view that by mere filing of the charge-sheet by the prosecution, the right of an accused person under section 167(2) does not come to an end, and if at all the prosecution wants the accused in custody it must file an application for cancellation of bail granted by the Magistrate. There the accused was arrested by the Police on June 14, 1982. He was produced before the Magistrate on June 15, 1982. On September 13, 1982 the Police filed charge-sheet against the accused at 3 p.m and the accused filed application for bail on the same day at about 5 p.m The Additional Sessions Judge released the accused on bail holding that 90 days as provided under section 167(2) proviso (a) having already expired, the accused had become entitled as a matter of right to be released on bail. Kanade, J. relied on Bashir v. State of Haryana, (1977) 4 SCC 410 : AIR 1978 SC 55. The facts of Bashir's case, however, were that though initially the application for bail filed by the accused had been rejected, later as no challan was filed by the Police within 60 days from the date of the arrest of the accused, they were released on bail on 23-2-1976 under section 167(2) of the Criminal Procedure Code. Subsequently the Police filed challan and the Magistrate committed all the 11 accused to Sessions Court and released them, including the appellants, on bail. The question before the Supreme Court in that case was whether the bail should be cancelled and it was observed that the fact that before the order was passed under section 167(2) the bail petitions of the accused were dismissed on merits, is not relevant for the purposes of taking action under section 437(5). Neither it is a valid ground that subsequent to the release of the accused a challan was filed by the Police. The Court before directing the arrest of the accused and committing them to custody should consider it necessary to do so under section 437(5). The observations in Bashir's case, therefore, with great respect, would not support the observations of Kanade, J. In Habibulla Saudagar… v. State Of Maharashtra…., 1988 Mah LJ 285 the learned Single Judge held that the right accrued to the accused on the expiry of 90 days cannot be defeated by merely filing the charge-sheet after the expiry of 90 days and the accused was entitled to be released on bail under section 167(2) of the Criminal Procedure Code, relying on State of Maharashtra v. Sharad, (1983) 1 Bom CR 578 and Full Bench decision in Babubhai v. State of Gujarat, 1983 Cri LJ 284. The decision in Shrawan's case, 1976 Mah LJ 654 evidently had not been brought to the notice of the learned Single Judge. We need not repeat here what we have stated about these two cases.

16. The last decision on the point was by Moharir, J. in Milkit Singh v. State of Maharashtra, Cri. Appln. No. 619 of 1990, decided on 24th September 1990. We have already referred to the statutory provisions as well as the decisions of the Supreme Court in Hussainara Khatoon, Raghubir Singh and Rajnikant on which the learned Judge relied and, with respect, we do not think that the authority of Shrawan's case has in any way been diluted. A.A Desai, J. in Baburao v. State of Maharashtra, 1989 Mah LJ 1027, while taking a contrary view relied on State of U.P v. Lakshmi Brahman, Raghubir Singh v. State of Bihar and Shrawan v. State of Maharashtra and pointed out that the moment the charge-sheet is filed under section 173, investigation comes to an end and it extinguishes the right accrued in favour of the accused under section 167 of the Criminal Procedure Code. With respect, we do not think that the Single Bench decision in Milkit Singh's case taking a view contrary to the Division Bench judgment in Shrawan v. State of Maharashtra, 1976 Mah LJ 654 correctly lays down the law. Having considered the Supreme Court decisions rendered after the decision in Shrawan v. State of Maharashtra; we do not think that there is anything in those decisions contrary to the proposition laid down by the Division Bench of this Court in Shrawan's case. In our view the correct position is that the right accrued to the accused who is in custody, under the proviso to sub-section (2) of section 167, Code of Criminal Procedure, can be exercised by him only before the charge-sheet is filed. If, however, he continues to be in custody because no order granting him bail is passed under that proviso, the Magistrate's power of granting bail once the charge-sheet is filed, can be exercised only under section 437 of the code. In the latter case the right to bail cannot be claimed under the proviso to sub-section (2) of section 167 of the Code. The reference is answered accordingly.

17. Shri Sirpurkar very fairly stated before us that since his earlier application for bail had been dismissed on merits, he would not be in a position to reagitate the matter before us on merits. The Criminal Application No. 216 of 1991, is, therefore, rejected.

Criminal application rejected.