Nesargi, J.:— This petition is directed against the order dated 10th September 1976 passed by the Principal Munsiff and J.M.F.C, Athani, and In-charge Additional Munsiff and J.M.F.C, Athani, in C.C No. 650 of 1976 so far as it relates to rejection of the request of the petitioners, who were the accused in the said Criminal case, that they be enlarged on bail.

2. On 19th June 1976, one Balappa Madappa Chavan and Malkappa Rachappa Rotti, both of Telsang, were murdered and the murder was reported to Aigali Police Station. Crime No. 42 of 1976 was registered in the said Police Station. Investigation commenced, and on 22nd June 1976 petitioners Nos. 1, 2, 4, 5, 7, 10, 13 and 14 were arrested. They were produced before the Magistrate on 23rd June 1976. Petitioners Nos. 9 and 12 were arrested on 24th June 1976 and produced before the Magistrate on 25th June 1976. Petitioners Nos. 3, 6 and 11 were arrested on 4th July 1976 and produced before the Magistrate on 5th July 1976. Petitioners Nos. 8 and 15 were arrested on 8th July 1976 and produced before the Magistrate on 9th July 1976. As and when the petitioners were produced before the Magistrate, the Magistrate passed orders of remand in exercise of his powers under Section 167 of the Code of Criminal Procedure. The last such order is dated 3rd September 1976. By that order, the Magistrate remanded all the petitioners to judicial custody till 10th September 1976. On 8th September 1976, an application requesting that the petitioners be enlarged on bail-mainly on the basis of proviso (a) to 167(2) of the Code of Criminal Procedure-was filed. The Magistrate posted that application to 10th September 1976 and passed a composite order rejecting the request of the petitioners that they be enlarged on bail and committing the case for trial to the Court of Session under Section 209 of the Code of Criminal Procedure. In the course of the said order the Magistrate has stated that the charge-sheet in this case was filed by the Police on 6th September 1976 and he took cognizance of the offences on 6th September 1976 itself.

3. Shri B.G Naik, the learned Advocate appearing on behalf of the petitioners, attempted to contend on the basis of the different orders passed by the Magistrate in the order-sheet, that in fact the charge-sheet had not been presented on 6th September 1976. This contention has to fail because of what is narrated by the Magistrate in the course of the order in question. As already pointed out, he has narrated that the charge-sheet was presented before him on 6th September 1976, that he initialled on it and that he took cognizance of the offences in question on 6th September 1976, itself. There is no reason to disbelieve what the Magistrate has stated in this behalf.

4. Shri B.G Naik nextly submitted that under Section 167 of the Code of Criminal Procedure the Magistrate has powers to authorise detention in custody, during the pendency of the investigation for a period not beyond sixty days. The period of sixty days expired on 21st August 1976 in regard to petitioners Nos. 1, 2, 4, 5, 7, 10, 13 and 14; on 23rd August 1976 in regard to petitioners Nos. 9 and 12; on 2nd September 1976 so far as petitioners Nos. 3, 6 and 11 are concerned and on 6th September 1976 in regard to petitioners Nos. 8 and 15. On this basis, he urged that so far as petitioners Nos. 1 to 7 and 9 to 14 are concerned, they were entitled to be enlarged on bail before 6th September 1976 and as such they had a right to claim to be enlarged on bail and therefore the Magistrate was wrong in rejecting their request. He relied on proviso (a) to Section 167(2) of the Code of Criminal Procedure. On behalf of petitioners Nos. 8 and 15 he contended that even though the Magistrate had taken cognizance of the offences on 6th September 1976, the detention of these petitioners as well as the other petitioners, was illegal for the period between 6th September 1976 and 10th September 1976 and hence they are entitled to be enlarged on bail. He placed reliance on the decisions in Prem Raj v. The State of Rajasthan(1), Khinvdan v. State of Rajasthan(2) and Natabar Parida v. State of Orissa(3).

5. The learned State Public Prosecutor contended that on the filing of the charge-sheet on 6th September 1976, the period of remand pending investigation came to an end and hence the provisions of Section 1671(2) proviso (a) of the Code of Criminal Procedure would cease to apply, particularly because the petitioners have filed an application for bail on 8th September 1976. He placed reliance on the decision in Heeraman…Applicant; v. State Of U.P…Opp. Party.(4). In regard to the last contention of Shri B.G Naik that during the period between 6th September 1976 and 10th September 1976 the detention of the petitioners was illegal, the learned State Public Prosecutor urged that the Magistrate had, after taking cognizance of the offences, power to remand the petitioners to custody as provided in Section 309 of the Code of Criminal Procedure and as such the detention during this period cannot be considered as illegal.

6. Section 167(2) of the Code of Criminal Procedure, to the extent material for the purposes of this case, reads as follows:—

“167…………

(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 detention of the accused person, otherwise than in 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 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 deemed to be so released under the provision of Chapter XXXIII for the purposes of that Chapter…….”

Section 437 and onwards dealing with the provisions of bail are in Chapter XXXIII of the Code of Criminal Procedure.

7. Apart from the different dates on which expiry of the period of sixty days occurred in regard to the different petitioners, the facts to be borne in mind are that the charge-sheet was filed on 6th September 1976 and the Magistrate took cognizance of the offences on 6th September 1976 itself and that the petitioners filed an application for bail on 8th September 1976. One more fact to be borne in mind is that on 3rd September 1976 the Magistrate authorised detention of these petitioners till 10th September 1976 in exercise of his powers under Section 167 of the Code of Criminal Procedure.

8. In view of what is narrated in the preceding paragraphs, it is necessary to consider the scope and ambit of the proviso (a) to sub-section (2) of Section 167 of the Code of Criminal Procedure. When the proviso is split up, the ingredients that emerge are as follows:

(1) The Magistrate has power to authorise detention of the accused person beyond the period of 15 days if he is satisfied that adequate grounds exist for doing so;

(2) but the Magistrate has no power to authorise detention of the accused person in custody for a total period exceeding sixty days;

(3) on the expiry of the period of sixty days, the accused person shall be released on bail if the accused person is prepared to and does furnish bail; and

(4) when the accused person is so released on bail, it should be deemed that he has been released on bail under the provisions of Chapter XXXIII of the Code of Criminal Procedure.

The aforementioned ingredients of the said proviso make it manifest that when the investigation is continuing, if the period of sixty days from the date of arrest of the concerned accused person expires, the concerned accused secures a right to claim that he should be enlarged on bail and he can exercise that right. If such an accused does claim accordingly and furnishes bail as ordered by the Magistrate, he should be enlarged on bail. Therefore, it cannot at all be said that on the expiry of such period of sixty days, the accused secures the right to be enlarged on bail and as such he can just walk out of custody. He has got to exercise that right by expressing to the Magistrate that he is prepared to be enlarged on bail and to furnish bail, and then only the Magistrate has got to enlarge him on bail. It follows that if the concerned accused does not exercise the right, the power of the Magistrate to authorise detention of the concerned accusd even beyond the period of sixty days, can be exercised, provided that the Magistrate is satisfied that adequate grounds exist for doing so, and the Magistrate would be right in remanding the concerned accused to judicial custody. This is one of the views expressed in Heeraman's case, and I respectfully agree with this view. Therefore, the contention of Shri B.G Naik that even though the application for bail was filed on 8th September 1976, i.e after the filing of the charge-sheet on 6th September 1976, the petitioners are, under the provisions in proviso (a) to sub-section (2) of Section 167 of the Code of Criminal Procedure, entitled to be enlarged on bail and the Magistrate was wrong in rejecting the application for bail, cannot be accepted.

9. It is already seen as to what are the powers of a Magistrate to authorise detention of an accused in custody as per the provisions of Section 167 of the Code of Criminal Procedure. Filing of a charge-sheet by itself does not at all come in the way of the right that an accused has under proviso (a) to Section 167(2) of the Code because that is not so provided in that provision or in any other provision of the Code of Criminal Procedure. As per the provisions of Section 190 of the Code of Criminal Procedure, the Magistrate is empowered to take cognizance of the offence or offences reported by the police in their final report under Section 173 of the Code after due investigation. Therefore, on the filing of the charge-sheet, the concerned Magistrate has to apply his mind to the facts narrated in the report and the material found in the documents accompanying the report, to find out whether the material before him would be prima facie sufficient to enable him to take cognizance, and then proceed to take cognizance. The powers of the Magistrate to authorise detention of an accused in custody after he takes cognizance of the offence or offences reported in the final report submitted by the police, are governed by Section 309 of the Code of Criminal Procedure. It reads as follows:—

“309. Power to postpone or adjourn proceedings—

(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 tame, 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: ………*

It is seen from the above that under Section 309(2) of the Code of Criminal Procedure, the Magistrate who has taken cognioance of an offence or offences, has power to authorise detention of an accused person or to remand an accused to custody if he is in custody, if the Magistrate finds it necessary or advisable to postpone the commencement of the inquiry or trial. The Supreme Court has, in Natabar Parida's case, dealt with Sections 309 and 167(2) proviso (a) of the Code of the Criminal Procedure. After considering the said provisions, the Supreme Court has held as follows:—

“…The law as engrafted in proviso (a) to Section 167(2) and Section 309 of the New Code confers the powers of remand to jail custody during the pendency of the investigation only for the former and not under the latter. Section 309(2) is attracted only after cognizance of an offence has been taken or commencement of trial has proceeded. In such a situation what is the purpose of Explanation-I in Section 309 is not quite clear. But then the command of the Legislature in proviso (a) is that the accused person has got to be released on bail if he is prepared to and does furnish bail and cannot be kept in detention beyond the period of 60 days even if the investigation may still be proceeding. In serious offences of criminal conspiracy—murders, dacoities, robberies by inter-state gangs or the like, it may not be possible for the police, in the circumstances as they do exist in the various parts of our country, to complete the investigation within the period of 60 days. Yet the intention of the Legislature seems to be to grant no discretion to the court and to make it obligatory for it to release the accused on bail. Of course, it has been provided in proviso (a) that the accused released on bail under Section 167 will be deemed to be so released under the provisions of Chapter XXXIII and for the purposes of that Chapter. That may empower the court releasing him on bail, if it considers necessary so to do, to direct that such person be arrested and committed to custody as provided in sub-section (5) of Section 437 occurring in Chapter XXXIII. It is also clear that after the taking of the cognizance the power of remand is to be exercised under Section 309 of the New Code. But if it is not possible to complete the investigation within a period of 60 days then even in serious and ghastly types of crimes the accused will be entitled to be released on bail. Such a law may be a ‘paradise for the criminals’, but surely it would not be so, as sometimes it is supposed to be because of the courts. It would be so under the command of the Legislature.”

It is therefore, clear to my mind that after a Magistrate takes cognizance of an offence or offences on the filing of the final report by the police under Section 173 of the Code of Criminal Procedure, his powers of remanding the accused who is in custody to custody, flow from the provisions of Section 309(2) and not from the provisions of Section 167 of the Code. In Heeraman's case a further view has been expressed to the effect that as soon as the charge-sheet is submitted, the period of remand pending investigation comes to an end and the provisons of Section 167(2)(a), would cease to apply to such a case. I respectfully agree with this view also. It is nextly expressed that in such a case, bail can be granted only on merits. I am unable to see any warrant in support of this view. The period of remand granted by a Magistrate in exercise of his powers under Section 167 comes to an end on the filing of the charge-sheet and that means that if at all further remand to custody is found to be necessary in regard to an accused who is already in custody, the Magistrate has to draw on the powers vested in him by Section 309 of the Code of Criminal Procedure and he has no other power of remand. If, on the filing of the charge-sheet, a Magistrate does not, for a number of days proceed to apply his mind and take cognizance of the offence or offences made out, he cannot—for those number of days—exercise powers of remand to judicial custody either under Section 167 or under Section 309(2) of the Code of Criminal Procedure. This situation can be solved by a Magistrate applying his mind to the facts and material available in the final report and the documents produced along with it in no time after the filing of the final report and deciding whether cognizance of the offence or offences made out should be taken or not; if he decides to take cognizance of the offence or offences, then he can, under Section 309(2) of the Code of Criminal Procedure, proceed to exercise his power of remand.

10. In the case on hand, the charge-sheet was filed on 6th September 1976 and the Magistrate took cognizance of the offences on 6th September 1976 itself. He did not exercise his powers of remand under Section 309(2) of the Code of Criminal Procedure on or after 6th September 1976. He had remanded the petitioner to Judicial Custody by his order passed on 3rd September 1976. The period of remand was upto 10th September 1976. The said order passed on 3rd September 1976 was in exercise of the powers of the Magistrate under Section 167 of the Code of Criminal Procedure. But the period of remand fixed by the order dated 3rd September 1976 came to an end on 6th September 1976 when the charge-sheet was filed. The Magistrate having not passed any order of remand on 6th September 1976 in exercise of his powers under Section 309(2) of the Code of Criminal Procedure, the period of detention of the petitioners from 6th September 1976 till 10th September 1976, which is the date of the order in question, cannot be considered as the period of remand fixed by the Magistrate in exercise of his powers either under Section 167 or under Section 309(2) of the Code of Criminal Procedure. In this view of the matter, it will have to be held that the petitioners were detained in custody during this period, viz., between 6th September 1976 and 10th September 1976 without any valid and legal orders of detention in custody passed by a Magistrate.

11. When the matters stand as aforesaid, I hold that the petitioners are entitled to be enlarged on bail.

12. In Prem Raj v. The State of Rajasthani , the accused were arrested on 30th September 1975 on charges under Sections 302, 307 etc. I.P.C but actually the charge-sheet was filed on 1st December 1975. In the meanwhile, the accused filed an application for bail under Section 439 of the Code of Criminal Procedure before the Sessions Judge prior to 10th November 1975, and the Sessions Judge rejected the application on 10th November 1975. The accused filed an application in the High Court on 17th November 1975, presumably under Section 439 of the Code of Criminal Procedure. It was when the said application was pending before the High Court, that the charge-sheet was filed on 1st December 1975. The learned Judge placed reliance on the decision in Natabar Parida's case and held that the accused-applicants having been detained beyond the period of sixty days provided in Section 167(2) Proviso (a) of the Code of Criminal Procedure, they were entitled to be enlarged on bail, and directed that they be enlarged on bail. What is to be particularly noticed in the said decision is that the order directing the accused-applicants to be enlarged on bail on the said ground, was passed apparently after the charge-sheet was filed on 1st December 1975 because the High Court of Rajasthan decided he application on 11th December 1975. In Khinvdan's case it was found by the Rajasthan High Court that the Magistrate had taken cognizance beyond the period of sixty days provided in proviso (a) to Section 167(2) of the Code of Criminal Procedure on an incomplete police investigation and passed an order of remand to judicial custody in exercise of his powers under Section 309(2) of the Code of Criminal Procedure. On finding these facts, the learned Judge held that after the expiry of the period of sixty days, the detention of the concerned accused in judicial custody was illegal because they had, immediately after the expiry of the period of sixty days, filed an application requesting that they be enlarged on bail and as such those accused were not in legal custody on the date when the Magistrate took cognizance of the offences and passed an order of remand under Section 309(2) of the Code of Criminal Procedure. The words “if in custody” occuring at the end of sub-section (2) of Section 309 of the Code of Criminal Procedure were interpreted to mean “in legal custody”. I respectfully agree with the views expressed in the aforementioned two decisions of the Rajasthan High Court.

13. In the result, this petition is allowed. It is directed that the petitioners be enlarged on bail on each one of them furnishing two sureties each for a sum of Rs. 5,000 and executing personal bonds for like sum to the satisfaction of the Sessions Judge, Belgaum. It is further directed that the accused-petitioner should, during the pendency of the Sessions case, stay in the village Telsang and report on alternate days to the Police Station at Aigali.