M.B Shah, J.:— Being aggrieved and dissatisfied by the judgment and order dated 18-7-84 passed by the Additional Sessions Judge, Nadiad, in Criminal Miscellaneous Application No. 209/84 rejecting their application for bail under Section 167(2)(a) of the Criminal Procedure Code, the petitioners have, preferred this application.

2. The petitioners were arrested on 3rd April, 1984 for causing murder of one Kantibhai Becharbhai. They were produced before the Judicial Magistrate on 4th April, 1984. From 4th April, 1984 they are in judicial custody. The investigating officer submitted charge-sheet on 3rd July 1984, 1st July, 1984 was Sunday and 2nd July 1984 was declared as public holiday by the State Government on account of death of Shri Ravishanker Maharaj. The petitioners filed an application on 12th July, 1984 before the learned Sessions Judge, Kaira at Nadiad, for releasing them on bail on the ground that charge-sheet was not subnutted within 90 days as 90 days were over on 2nd July 1984 and, therefore, in view of the decision of this Court in the case of Babubhai Parshottamdas v. State 22 GLR 1232 (F.B) : (1981 GLH 348), the petitioners are entitled to be released on bail. The learned Additional Sessions Judge rejected the said bail application solely relying upon the overruled decision of this Court in the case of Umedsink Vakmatji v. State, 16 GLR 572, and without taking into consideration the Full Bench decision in the case of Babubhai Parshottamdas (supra). The petitioners have, therefore, preferred this Miscellaneous Application against the said order.

3. Now, in this case it is an admitted fact that the petitioners were arrested on 3-4-1984 and were produced before the learned Magistrate on 4-4-1984 1st July, 1984 being Sunday was a holiday. 2nd July 1984 was declared as a public holiday and the investigating officer filed a charge-sheet on 3rd July, 1984. So the first question would be when the charge-sheet is submitted on 91st day because 90th day was a holiday, whether the petitioner-accused are entitled to be released on bail as a matter of right and the second question which would require consideration is, what is the effect of the Supreme Court decision in the case of State of U.P v. Lakshmi Brahman, (1983) 2 SCC 372 : AIR 1983 Supreme Court 439.

4. In my view, as the charge-sheet in the present case is already filed on 3rd July 1984 and in view of clear pronouncement of Supreme Court in the aforesaid case of Lakshmi Brahman (supra), it would not be necessary in this case to decide the first question.

5. In the aforesaid case of Lakshmi Brahman the accused were suspected of having committed an offence punishable with death or imprisonment for life under Section 302 of the Indian Penal Code. The accused surrendered before the Magistrate on November 2, 1974 and were taken into custody. The investigating officer failed to submit the charge-sheet within a period of 60 days as contemplated by sub-section (2) of Section 167-of the Code (prior to amendment in 1978). Subsequently the charge-sheet was submitted as late as February 5, 1975. Prior to that, the accused had moved an application under Section 439 of the Criminal Procedure Code for bail. The Division Bench of the Allahabad High Court took the view that after the charge-sheet had been submitted under Section 170 of the Criminal Procedure Code, the Magistrate had no jurisdiction to authorise the detention of an accused in custody under Section 167 of the Criminal Procedure Code. It further held that the Magistrate while committing the accused to the Court of Session, under Section 207 read with Section 209 of the Criminal Procedure Code was acting administratively and that the Magistrate had no jurisdiction, power or authority to remand the accused to custody after the charge-sheet was submitted and before the commitment order was made and, therefore, the accused were entitled to be released on bail. Against the said order of Allahabad High Court, the State of U.P preferred the criminal appeal before the Supreme Court. In paragraph 5 of the decision the Supreme Court has held as under:

“In this appeal, we are concerned with Section 167 herein above extracted. The High Court after examining the scheme of Section 167(1) and (2) with the proviso rightly concluded that, on the expiry of 60 days from the date of the arrest of the, accused his further detention does not become ipso facto illegal or void, but if the charge-sheet is not submitted within the period of 60 days, then notwithstanding anything to the contrary in Section 437(1), the accused would be entitled to an order for being released on bail if he is prepared to and does furnish bail.”

(Emphasis added)

6. In paragraph 6 of this decision the Supreme Court has quoted the view of the High Court as follows. I am quoting this because it is necessary as the Full Bench of this High Court has taken exactly identical view.

“The High Court then combed other provisions of the Code, arid, ultimately, concluded that since the 1973 Code does not envisage a preliminary enquiry to be held by the Magistrate under Chapter XVI, the Magistrate is not expected to hold any enquiry before committing the accused to the Court of Session nor is he competent to try the accused and therefore Section 309 would not enable him to remand the accused to custody… The High Court held that as the Magistrate before whom the charge-sheet was submitted remanded the respondents to custody without making the order of commitment, the order remanding the accused to custody, cannot be sustained under Sections 167(2), 209, 309 of the Code and no other provision under which the respondents could be remanded to the custody at that stage having been indicated to the Court, the High Court considered it a compelling necessity to accede to the request of the respondents to direct that they should be released on bail.”

7. The Supreme Court thereafter in terms held that the function of the Magistrate under Sections 207 and 209 of the Criminal Procedure Code is a judicial function and it has to be either an inquiry or a trial-because the Code does not envisage discharge of judicial function by the Magistrate under the Code in any other manner. It held that the finding of the High Court that it cannot be said that the provisions contained in Sections 204, 207 to 209 of the Code contemplate an iniquiry under the Code, is not only not borne out by the relevant provisions of the Code but it overlooks the scheme of the Sections and the purpose underlying the same. Thereafter in paragraph 12 the Court held that in the case of an offence exclusively triable by the Court of Session, the police report on completion of the investigation has to be submitted to the Magistrate having jurisdiction to commit the accused for trial and it is the Magistrate who takes the cognizance of an offence and not the Court of Session. Therefore, when the Magistrate receives the report and the accused is produced before him, it is necessary for him to pass some order for his further detention subject to the provisions contained in Chapter XXXIII as to Bails and Bonds. In paragraph 13 the Court further held that if the Magistrate is holding the inquiry as contemplated under Sections 207 and 209 of the Criminal Procedure Code, then obviously Section 309 would enable the Magistrate to remand the accused to the custody till the inquiry to be made is complete. The Court further held as under:

“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 reasonasible, and may by a warrant remand the accused if in custody. There are three provisos to sub-section (2) which are not material. If therefore, the proceedings before the Magistrate since the submission of the police report under Section 170 and till the order of commitment is made under Section 209 would be an inquiry and if it is an inquiry, during the period, the inquiry is completed, Section 309(2) would enable Che Magistrate to remand the accused to the custody.”

8. The Supreme Court thereafter held that the following view taken by the Allahabad High Court was erroneous:

“The order remanding the respondents to custody, made after cognizance of offence was taken, cannot be justified under Sections 167(2), 209 and 309 of the Code and no other provision under which the respondents can be remanded to custody at this stage, having been indicated by the learned Government Advocate, we feel that it would be proper to accede to the request made by the respondents and to direct that they would be released on bail after furnishing adequate security to the satisfaction of the Chief Judicial Magistrate, Banda.”

9. The Full Bench has also taken the view Similar to that of Allahabad High Court in the case of Babubhai Parshottamdas (supra). In paragraph 23 the Full Bench has held as under:

“The power of the Magistrate to re mand the accused to jail custody comes to an end with the expiry of ninety days, or sixty days from the date when the accused was first produced before the Magistrate after his arrest in accordance with Section 167(1). That basic restriction on the power of the Magistrate to authorise detention of the accused concerned, in jail custody must operate once the period of ninety days or sixty days, expires. That is the command of the Legislature and, if that is so, the fact that Section 167(2)(a) occurs in the Chapter relating to investigation and trial is totally immaterial. 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. This is the only way in which the provisions of Sections 167, 209 and 309 can be reconciled.”

(Emphasis added)

10. The Full Bench has emphasized 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 the 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 Supreme Court in the aforesaid case has in terms taken the contrary view by holding that if the charge-sheet is submitted and pending inquiry till the order, of commitment is made under Section 209, the Magistrate is empowered to remand the accused in custody under Section 309(2) of the Code and the view of the Allahabad High Court that the remand of the accused to custody made after cognizance of the offence was taken cannot be justified under Sections 167(2), 209 and 309 of the Code, was expressly overruled.

11. Further, the Full Bench has relied upon the decision of the Supreme Court in the case of Gauri Shankar v. State of Bihar, (1972) 1 SCC 564 : AIR 1972 Supreme Court 711, in paragraph 13. With regard to this decision, in paragraph 15 the Supreme Court has held that the aforesaid case is of no assistance because it dealt with the situation under the Code of Criminal Procedure, 1898 which did require the Magistrate to be satisfied with prima facie case before an order committing an accused to the Court of Session could be made.

12. The Supreme Court has further set aside the decision of the Allahabad High Court on the additional ground that the view taken by the High Court introduces a stage of compulsory bail not envisaged by the Code. In the case of Babubhai Parshottamdas (supra) the Full Bench also held in paragraph 24 as under:

“If Umedsinh's decision is correct, as contended by the learned Public Prosecutor, it would raise many questions as to whether the Magistrate could not dispose of the application of the accused under Section 167(2) on valid and justifiable grounds before charge-sheet was filed so that the Magistrate's power under Section 167(2) came to an end. What the Legislature intended and directed to be outside limit, namely, ninety days or sixty days, can be converted in such cases to conferring power on the investigating officer to delay the completion of the investigation, when the whole scheme as set out in Section 167 is that the investigation should be completed as early as possible. To prevent, any such abuse of the power to carry on the investigation, the right or the entitlement conferred on the accused to be released on bail after ninety days, must be considered to be an absolute right, subject of course to the cancellation of the bail if the requirements of Section 437(5) are satisfied.”

(Emphasis added)

13. The Supreme Court in terms has stated that there is no such absolute right to be released on bail and it has held that the view of the Allahabad High Court which introduces the stage of compulsory bail was not envisaged by the Code.

14. In view of the legal position as enunciated in the case of Lakshmi Brahman (supra) the view taken by this Court in the case of Babubhai Parshottamdas (supra) is no longer good law. It cannot be said that if charge-sheet is submitted after 90 days or 60 days as the case may be, the accused should be released on bail and that the accused has an absolute right to be released on bail.

15. The learned advocates for the petitioners relied upon the decision of the Supreme Court in the case of Hussainara Khatoon v. State of Bihar, (1980) 1 SCC 108 : AIR 1979 Supreme Court 1377, wherein the Court has held that when an under trial 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 under-trial prisoner that he is entitled to be released on bail. In my view, this decision is beside the point because it nowhere states that as soon as 90 days or 60 days, as the case may be, are over, the Magistrate has no jurisdiction or authority to make an order of further remand to judicial custody even in those cases where the charge-sheet is submitted. In the result, the application filed by the petitioners for releasing them on bail is rejected. Rule discharged.

16. Rule discharged.