B.N Sinha, J.:—This application under sections 439 & 440 of the Code of Criminal Procedure, 1973 (hereinafter to be referred as ‘the Code’) has been filed for releasing the petitioners on bail under proviso (a)(i) of Section 167(2) of the Code.

2. The facts of the case need not be mentioned in detail. It will suffice for disposal of this application to mention that, these two petitioners are accused in Halsi P.S Case No. 84/86 Under sections 302, 307 and some other sections of the Indian Penal Code and under section 37 of the Arms Act and they surrendered in Court in this case on 19th of November, 1986 and they were remanded to jail custody on that day. On 18th of February, 1987, a petition was filed on behalf of these two accused-petitioners before Shri S.K Choudhary, Judicial Magistrate, Lakhisarai at Munger for their release under the proviso of Section 167(2) of the Code on the ground that though they have remained in jail for more than 0 days, no charge sheet was submitted in the case. But, it appears from the order dated 18.2.1987 passed by learned Magistrate that petition was not moved. On 23.2.1987 charge sheet was submitted against these accused-petitioners in that case. On 24.2.1987 the said petition for release of these two accused-petitioners was moved and it was rejected by the Judicial Magistrate stating that since the charge sheet had been submitted in this case, these petitioners could not be released under the proviso of Section 167(2) of the Code. Thereafter, these two petitioners moved for bail on the same ground before the Sessions Judge, Monger, which too was rejected by Order dated 2.3.1987, Thereafter, the present application was filed before this Court.

3. The learned counsel for the petitioners Submitted that the learned Judicial Magistrate ought to have released these two petitioners on bail under proviso (a)(i) of Section 167(2) of the Code. Learned counsel for the State on the other hand, submits that once the charge sheet is submitted, the petitioners cannot take advantage of proviso (a)(i) of Section 167(2) of the Code and the prayer for bail can be disposed of on merits after taking into consideration the allegations against these petitioners and these petitioners being named as the assailants of the deceased do not deserve to be enlarged on bail.

4. The relevant part of Section 167 of the Code reads as follows:

“167. Procedure when investigation can not be completed in twenty four hours—

(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 Judical 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 nicety days, or sixty days, as the Case may be, 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 sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter.

5. This new provisions contained in section 167 of the Code was made on the basis of the recommendation of the Law Commission in its 41st report and the relevant portion of that report reads as follows:—

“It is, therefore, desirable as was observed in the Fourteenth Report that some time limit should be placed on the power of the police to obtain remand, while investigation is still going on; and if the present time limit of 15 days is too short, it would be better to fix a longer period rather than countenance a practice which violates the spirit of the legal safeguard. Like the earlier Law Commission, we feel that 15 days is perhaps too short, and we propose therefore to follow the recommendation in the Fourteenth Report that the maximum period under section 167 should be fixed at 60 days”.

6. When this matter went to the Select Committee, the Committee reported as follows:—

There is a persistent complaint that investigations are not being completed quickly by the police and that in many cases the accused persons are kept in detention on remand, for a very long period causing hardship and misery to such under trial prisoners and their families. Although stringent provisions are already there in the existing Code requiring investigations to be completed quickly, they have not had the desired effect…….A drastic remedy therefore, is called for in this behalf.”

7. In this back drop the question in issue has to be decided. It has been provided under proviso (a)(i) of Section 167(2) of the Code that on expiry of the said period of 90 days or 60 days, as the case may be, the accused shall be released on bail, if he is prepared to and does furnish bail in case no charge sheet has been submitted. The Hon'ble Supreme Court in Natabar Parida v. State of Orissa (A.I.R 1975 Supreme Court, 1465) have held as follows, while examining the provisions of law as engrafted in proviso (a) to Section 167(2) of the Code;

“………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………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.”

8. Hence, under proviso (a) to Section 167(2) of the Code the accused has to be released on bail in such cases, if he is prepared to and does furnish bail. In the instant case a petition for bail on the ground of non-submission of charge sheet was filed before the learned Judicial Magistrate on 18.2.1987, i.e, after expiry of 90 days from 19.11.1986, i.e, the date on which the accused petitioners had been remanded to custody. Of course, it appears from the order that petition was not moved. It is better to quote the exact words of that order dated 18.2.1987 which runs as follows:—

9. It has been submitted by the learned counsel for the State that as the petition was not moved on that date it means that the accused-petitioners were not prepared to furnish bail. “With due respect for the learned counsel for the State, I see no logic in this submission of the learned counsel for the State. The very fact that a petition for bail had been filed on behalf of the accused-petitioners was sufficient to indicate that these accused-petitioners were prepared to furnish bail. Moreover, by filing this petition on that day it was brought to the knowledge of the learned Judicial Magistrate that though these accused petitioners were in jail for more than 90 days, the charge sheet was not submitted, and in that situation as proviso (a) to Section 167(2) commands, the Judicial Magistrate was bound to order for the release of the accused petitioners on such terms and conditions as the learned Judicial Magistrate may deem fit. Even after such order by the learned Judicial Magistrate for the release on bail, the accused-petitioners would have been detained in custody so long as he did not furnish bail as provided by explanation I of Sub-section (2) of Section 167 of the Code which reads as follows:—

“For the avoidence 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”.

10. As has been held by a Full Bench of Gujrat High Court in Babubhai Parshottamdas Patel v. State of Gujrat (1982 Criminal Law Journal, 284) while examining the provisions of Section 167(2) of the Code, the right or the entitlement conferred on the accused to be released on bail after 90 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) of the Code are satisfied.

11. In my view that right if accrued cannot be denied to the accused and the command of the Legislature cannot be frustrated merely on the ground that charge sheet stood submitted on the date on which the petition on behalf of the accused-petitioners on such ground was being considered by the Judicial Magistrate. The Code does not empower the Magistrate to detain the accused in custody beyond the period of 60 or 90 days, as the case may be, if charge sheet has not been submitted in the case. In the instant case, the petition for bail was filed on behalf of the accused petitioners on 18.2.1986, the charge sheet was submitted in the case on 23rd of February, 198? and the petition for bail was considered on 24.2.1987, which was rejected. The accused petitioners had been in jail beyond the period of 90 days on 18.2.1986 without any charge sheet being submitted in the case, and hence the accused petitioners were entitled to be released on bail on that day and that right cannot be denied to him simply because subsequent thereto charge sheet was submitted in the case. Thus, I find that the objection being raised on behalf of learned State Counsel cannot be sustained.

12. For these reasons, I do not think it proper to deprive the petitioners of their liberty and they are being directed to be set at liberty on their furnishing bail bond of Rs. 5,000/- (Five thousand) each with two sureties of the like amount each to the satisfaction of Shri B.K Choudhary, Judicial Magistrate, First Class, Lakhisarai at Munger in Halsi P.S Case No. 84/86. This application is accordingly allowed.