JUDGMENT
R.C. Mankad, J.
1. Whether an accused person has an absolute right to be released on bail under proviso (a) to Section 167(2) of the Code of Criminal Procedure, 1973 (new Code’ for short) even after submission of the police report/chargesheet (‘chargesheet’ for short), if the chargesheet has been submitted after the period prescribed in the said proviso, is the question which we are called upon to answer in this application.
2. Petitioners are alleged to have been involved in an offence punishable under Section 302 read with Section 114 of the Indian Penal Code (‘I.P.C.’ for short) for committing murder of one Shepha Nagji. It is the prosecution case that on November 17, 1988, at about 5-30 p.m. at village Ugalwan, the petitioners entered the house of the deceased Shepha Nagji and caused him injuries with Dharia and axe. Chakur Nagji, who later on lodged the information at Nota Kuntwada police station relating to the commission of the said offence, was also injured by the petitioners with Dharia which he intervened. Shapha Nagji succumbed to the injuries caused to him by the petitioners. Petitioners were arrested by the police on November 19, 1938 for the offence punishable under Section 302 read with Section 114 of the I.P.C. and they were produced within the prescribed time before the learned Judicial Magistrate, First Class, at Mahuva (‘Magistrate’ for short), who ultimately remanded them to judicial custody. On February 23, 1989, that is on 95th day after the arrest of the petitioners, the police submitted the chargesheet to the learned Magistrate. The learned Magistrate committed the accused to stand trial before the Court of Session at Bhavnagar. On March 3, 1989, the petitioners presented an application to the Court of Session for their release on bail.
3. It was urged on behalf of the petitioners before the learned Additional Sessions Judge, before whom, their application for bail came up for hearing that since the police had failed to submit the chargesheet within 90 days from the date of their arrest, they were entitled to be released on bail under proviso (a) to Section 167(2) of the new Code. The learned Additional Sessions Judge, however, rejected this contention, holding that since the police had submitted the chargesheet against the petitioners on February 23, 1989, Section 167(2) had no application. According to the learned Additional Sessions Judge, after submission of the chargesheet, the question whether to release the petitioners on bail or to remand them to judicial custody, had to be decided in the light of the provisions contained in Section 309 of the Code having regard to the facts and circumstances of the case. The teamed Judge sought to derive support for his view from the decision of this Court in Sairabibi v. State of Gujarat, (1987) 28 (2) Guj. LR 903 : (1987 Cri LJ 1732). The learned Judge then proceeded to consider the question of release of the petitioners on bail on merits and held that prima facie the petitioners were guilty of committing murder of Shepha Nagji by causing serious injuries to him on head and chest. The learned Judge, therefore, did not consider it advisable to release the petitioners on bail. In the result, he rejected the bail application of the petitioners.
4. Being aggrieved by the rejection of their application, petitioners approached this Court by way of this application. When this bail application came up for hearing before the learned single Judge, it was urged by the learned counsel for the petitioners that the observations made by the Division Bench of this Court in Sairabibi’s case (supra), on which reliance was placed by the learned Additional Sessions Judge, were contrary to ‘ the decision of the Supreme Court in Natabar Parida v. State of Orissa, AIR 1975 SC 1465 : (1975 Cri LJ 1212) and the decision of the Full Bench of this Court in Babubhai Parshottamdas Patel v. State of Gujarat, 1981 Guj LH 348 : (1982 Cri LJ 284) and, therefore, the matter be referred to the Division Bench “to enable him to persuade the Division Bench to refer the matter to a larger Bench”. The learned single Judge, therefore, directed to place the matter before the Division Bench.
5. The Division Bench, before whom this application came up for hearing, was of the prima facie view that the decision of the Full Bench of this Court is Babubhai’s case (supra) was impliedly overruled by the decision of the Supreme Court in State of U.P. v. Lakshmi Brahman, AIR 1983 SC 439 : (1983 Cri LJ 839). The Division Bench referred to the decision of the another Division Bench of this Court in the case of Umedsinh Vakatmalji v. State of Gujarat, (1975) 16 Guj LR 572: (AIR 1977 Guj 11), wherein it was laid down to the effect that if an application for bail is made under Section 167 of the Code by the accused person, who is detained in custody pending investigation for a period exceeding 60 days, he is entitled to bail; but if pending such an application for bail, chargesheet is filed in the Court, investigation comes to an end and so also the power of the Magistrate of granting bail to the accused under the provisions of Section 167(2) of the Code. It was pointed out that the Court in Umedsinh’s case further held that the power under Section 167(2) of granting bail cannot be exercised by the Magistrate when the investigation is over, or in other words, after he takes cognizance of the case either under the provisions of Section 170 or 173 of the Code. The Division Bench did not consider it necessary to deal with in detail “the Full Bench decision of the Patna High Court in the case of Rabindra Rai v. State of Bihar, 1984 Cri LJ 1412 and the Division Bench judgment in the case of Naval Sahni v. State of Bihar, 1989 Cri LJ 733, which follows the decision in the case of Lakshmi Brahman (1983 Cri LJ 839) which lays down that if a chargesheet is submitted prior to the accused being released on bail, then the Court is required to pass an appropriate order under Section 209 or 309(2) of the Criminal Procedure Code remanding the accused to judicial custody.” The Division Bench felt that it was important to settle the controversy in regard to the right of accused person to be released on bail under proviso (a) to Section 167(2) of the Code as such controversy arises in number of cases. The Division Bench, therefore, referred the matter to a larger Bench and directed that the application be placed before the learned Chief Justice for passing appropriate orders. That is how the bail application has come up before us for hearing.
6. The new Code contains three provisions in respect of detention of accused when he has not been released on bail one is under Section 167(2), which is applicable during investigation of the offence; the second being Section 309(2) which can be invoked during the inquiry or trial other than sessions trial; and the third being Section 209(b), which is attracted during pendency of sessions trial. The said three provisions confer power on the Magistrate to order detention of accused from time to time since the beginning of the investigation till the conclusion of the trial.
7. In order to appreciate the question, which arises for our consideration, it is necessary to read Sections 167, 170, 190, 209 and 309 of the new Code. Sections 167, and 170 find their place in Chapter XII of the new Code, which relates to “Information to the police and their powers of investigation”. Section 190 is in Chapter XIV, which deals with the conditions requisite for initiation of proceedings. Section 209 is in Chapter XVI, which deals with commencement of the proceedings before Magistrate; and Section 309 is in Chapter XXIV dealing with general provisions as to inquiries and trials. The above provisions as they stand to day read as under:–
“Procedure when investigation cannot be completed in twenty-four hours.
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 exceedings,–
(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term 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 furnish bail, and every person released on bail under this subsection shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;
(b) no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him;
(c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police.
Explanation I : 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.
Explanation II :. If any question arises whether an accused person was produced before the Magistrate as required under paragraph (b), the production of the accused person may be proved by his signature on the order authorising detention.
(2A) Notwithstanding anything contained in Sub-section (1) or Sub-section (2), the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of a sub-inspector, may, where a Judicial Magistrate is not available, transmit to the nearest Executive Magistrate, on whom the powers of a Judicial Magistrate or Metropolitan Magistrate have been conferred, a copy of the entry in the diary hereinafter prescribed. relating to the case, and shall, at the same time, forward the accused to such Executive Magistrate, and thereupon such Executive Magistrate, may, for reasons to be recorded in writing, authorise the detention of the accused person in such custody as he may think fit for a term not exceeding seven days in the aggregate; and, on the expiry of the period of detention so authorised, the accused person shall be released on bail except where an order for further detention of the accused person has been made by a Magistrate competent to make such order; and where an order for such further detention is made, the period during which the accused person was detained in custody under the orders made by an Executive Magistrate under this sub-section, shall be taken into account in computing the period specified in paragraph (a) of the proviso to Sub-section (2):
Provided that before the expiry of the period aforesaid, the Executive Magistrate shall transmit to the nearest Judicial Magistrate the records of the case together with a copy of the entries in the diary relating to the case which was transmitted to him by the officer in charge of the police station or the police officer making the investigation, as the case may be.
(3) A Magistrate authorising under this section detention in the custody of the police shall record his reasons for so doing.
(4) Any Magistrate other than the Chief Judicial Magistrate making such order shall forward a copy of his order, with his reasons for making it, to the Chief Judicial Magistrate.
(5) If in any case triable by a Magistrate as a summons case, the investigation is not concluded within a period of six months from the date on which the accused was arrested, the Magistrate shall make an order stopping further investigation into the offence unless the officer making the investigation satisfies the Magistrate that for special reasons and in the interests of justice in the continuation of the investigation beyond the period of six months is necessary.
(6) Where any order stopping further investigation into an offence has been made under Sub-section (5), the Sessions Judge may, if he is satisfied, on an application made to him or otherwise, that further investigation into the offence ought to be made, vacate the order made under Sub-section (5) and direct further investigation to be made into the offence subject to such directions with regard to bail and other matters as he may specify.”
“Cases to be sent to Magistrate when evidence is sufficient.
170.(1) If, upon an investigation under this Chapter, it appears to the officer in charge of , the police station that there is sufficient evidence or reasonable ground as aforesaid, such officer shall forward the accused under custody to a Magistrate empowered to take cognizance of the offence upon a police report and to try the accused or commit him for trial or, if the offence is bailable and the accused is able to give security, shall take security from him for his appearance before such Magistrate on a day fixed and for his attendance from day to day before such Magistrate until otherwise directed.
(2) When the officer in charge of a police station forwards an accused person to a Magistrate or takes security for his appearance before such Magistrate under this section, he shall send to such Magistrate any weapon or other article which it may be necessary to produce before him, and shall require the complaint (if any) and so many of the persons who appear to such officer to be acquainted with the facts and circumstances of the case as he may think necessary, to execute a bond to appear before the Magistrate as thereby directed and prosecute or give evidence (as the case may be) in the matter of the charge against the accused.
(3) If the Court of the Chief Judicial Magistrate is mentioned in the bond, such Court shall be held to include any Court to which such Magistrate may refer the case for inquiry or trial, provided reasonable notice of such reference is given to such complainant or person.
(4) The officer in whose presence the bond is executed shall deliver a copy thereof to one of the persons who executed it, and shall then send to the Magistrate the original with his report.”
“Cognizance of offences by Magistrates.
190(1). Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under Sub-section (2), may take cognizance of any offence —
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer, or upon his own knowledge that such offence has been committed.
(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under Sub-section (1) of such offences as are within his competence to inquire into or try.”
“Commitment of case to Court of Session when offence is triable exclusively by it.
209. When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall —
(a) commit, after complying with the provisions of Section 207 or Section 208, as the case may be, the case to the Court of Session, and subject to the provisions of this Code relating to bail, remand the accused to custody until such commitment has been made;
(b) subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion of, the trial;
(c) send to that Court the record of the case and the documents and articles, if any, which are to be produced in evidence;
(d) notify the Public Prosecutor of the Commitment of the case to the Court of Session.”
“Power to postpone or adjurn proceedings
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, of 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:
Provided further that when witnesses are in attendance, no adjournment or postponement shall be granted, without examining them, except for special reasons to be recorded in writing:
Provided also that no adjournment shall be granted for the purpose only of enabling the accused person to show cause against the sentence proposed to be imposed on him.
Explanation I : If sufficient evidence has been obtained to raise a suspicion that the accused may have committed an offence, and it appears likely that further evidence may be obtained by a remand, this is a reasonable cause for a remand.
Explanation 2 : The terms on which an adjournment or postponement may be granted include, in appropriate cases, the payment of costs by the prosecution or the accused.”
8. It is also interesting to note that Section 167 of the new Code has undergone changes from time to time. When the new Code came into force, Section 167 read as under :
“167. Procedure when investigation cannot 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 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 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 provisions of Chapter XXXIII for the purposes of that Chapter.
(b) no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him.
(c) no Magistrate of the second Class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police.
Explanation : If any question arises whether an accused person was produced before the Magistrate as required under paragraph (b), the production of the accused person may be proved by his signature on the order authorising detention.
(3) A Magistrate authorising under this section detention in the custody of the police shall record his reason: for so doing.
(4) Any Magistrate other than the Chief Judicial Magistrate making such order shall forward a copy of his order, with his reason for making it, to the Chief Judicial Magistrate.
(5) If in any case triable by a Magistrate as a summons-case, the investigation is not concluded within a period of six months from the date on which the accused was arrested, the Magistrate shall make an order stopping further investigation into the offence unless the officer making the investigation satisfies the Magistrate that for special reasons and in the interests of justice the continuation of the investigation beyond the period of six months is necessary.
(6) Where any order stopping further investigation into an offence has been made under Sub-section (5), the Sessions Judge may, if he is satisfied on an application made to him or otherwise, that further investigation into the offence ought to be made, vacate the order made under Sub-section (5) and direct further investigation to be made into the offence subject to such directions with regard to bail and other matters as he may specify.”
Proviso to Sub-section (2) of Section 167 of the new Act in its application to the State of Gujarat was amended by an Act called Code of Criminal Procedure (Gujarat Amendment) Act, 1976. This amendment is not relevant for our purpose. Thereafter in 1978, the Parliament amended Section 167 of the new Code by the Code of Criminal Procedure (Amendment) Act, 1978, being Indian Parliament Act No. 45 of 1978, with the object of removing difficulties which were experienced in relation to the investigation of offences of serious nature. We have already reproduced Section 167 hereinabove, as amended by the said Act. In view of this amendment of Section 167 made by the Parliament, the amendment made by the Code of Criminal Procedure (Gujarat Amendment) Act, 1976, would not be applicable (vide decision in the case of Sairabibi v. State of Gujarat, (1987 Cri LJ 1732) (supra). In other words, Section 167 as amended by the Parliament is applicable to the State of Gujarat.
9. Chapter XXIII of the new Code consists of Sections 436 to 450 and heading of the Chapter is “Provisions as to Bail and Bonds”. Section 437 as amended by Central Act 63 of 1980 provides thus:
“When any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail, but–
(i) such person shall not be so released if there appear reasoanble grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life;
(ii) such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a non-bailable and cognizable offence:
Provided that the Court may direct that a person referred to in Clause (i) or Clause (ii) be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm:
Provided further that the Court may also direct that a person referred to in Clause (ii) be released on bail if it is satisfied that it is just and proper so to do for any other special reason:
Provided also that the mere fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by the Court.”
Under Sub-section (2) of Section 437 :
“If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are not reasonable grounds for believing that the accused has committed a non-bailable offence but that there are sufficient grounds for further inquiry into his guilt, the accused shall, subject to the provisions of Section 446A and pending such inquiry, be released on bail, or, at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided.”
Sub-section (5) of Section 437 provides:
“Any Court which has released a person on bail under Sub-section (1) or Sub-section (2) may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody.”
10. The new Code came into force on and from April 1, 1974. Section 484(1) repealed the Code of Criminal Procedure, 1898 (‘old Code’ for short), but there were certain saving clauses engrafted in Sub-section (2). In the course of the arguments, the learned Counsel for the petitioner had placed strong reliance on the decision of the Supreme Court in the case of Natabar Parida, (1975 Cri LJ 1212) (supra). The Full Bench of this Court, while rendering its decision in the case of Babubhai, (1982 Cri LJ 284), had also placed reliance on this decision of the Supreme Court. The decision of the Supreme Court mainly turned on the provisions of Sections 167 and 344 of the old Code. It is, therefore, necessary to examine the position of law in relation to the power of remand by a Magistrate during the course of investigation of a case by the police under the old Code. Under the old Code, a person arrested without warrant could not be detained by a police officer for a period exceeding 24 hours as provided in Section 61 of the old Code. Section 167(1) required the police officer to forward the accused to the nearest Magistrate, if the investigation could not be completed within the period of 24 hours fixed by Section 61 and if there were grounds for believing that the accusation or information was well-founded. Sub-section (2) provided as under:–
“(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. If he has not 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.”
The Magistrate to whom the accused was forwarded, could remand him to police custody or jail custody for a term not exceeding 15 days in the whole under Section 167(2). Even the Magistrate, who had the jurisdiction to try the case could not remand the accused to any custody beyond the period of 15 days under Section 167(2) of the old Code. There was no other section which in clear or express language conferred this power of remand on the Magistrate beyond the period of 15 days during the pendency of the investigation and before the taking of cognizance on the submission of the chargesheet. Section 344 however, enabled the Magistrate to postpone the commencement of any enquiry or trial for any reasonable cause. Explanation to Section 344 of the old Code read as follows:–
“If sufficient evidence has been obtained to raise a suspicion that the accused may have committed an offence, and it appears likely that further evidence may be obtained by a remand, this is a reasonable cause for a remand.”
11. In Umedsinh’s case, (AIR 1977 Guj 11) (supra), Division Bench consisting of J. B. Mehta and A.D. Desai, JJ., held that the provisions of Section 167(2) and the provisions of Section 437 of the new Code operate in different fields. The Magistrate has to exercise his power of releasing the accused on bail under Section 167(2) (as it then stood), if the total period of detention of the accused exceeds 60 days. But this power is to be exercised during the pendency of investigation only. The power under Section 167(2) of granting bail cannot be exercised by the Magistrate when the investigation is over or to put it in other words, when he takes cognizance of the case either under the provisions of Section 170 or Section 173 of the new Code. If the Magistrate takes cognizance of the offence under either of the aforesaid sections, the Magistrate can exercise power only under Section 437 of the new Code. Therefore, if an application is made under Section 167 for bail by an accused person who is detained in custody pending investigation for a period exceeding 60 days, he is entitled to bail; but if pending such application for bail a charge-sheet is filed in the Court, the investigation comes to an end so also the power of the Magistrate of granting bail to the accused under the provisions of Section 167(2). The Magistrate then can exercise power of granting bail only under Section 437. The Magistrate, to whom an application for bail under Section 167(2) is made, has to take the subsequent event into consideration — the subsequent event being the filing of the chargesheet. It was also held by the Division bench that under the deeming provisions provided in proviso to Section 167 of the new Code, every person released on bail under the provisions of Section 167(2) shall be deemed to be released under the provisions of Chapter XXXIII for the purpose of that Chapter. The effect of these deeming provisions, according to the Division Bench, is that if an accused person is released on bail as per the provisions of Section 167(2)(a), the bail order continues even after the chargesheet is filed; but in view of the provisions of deeming fiction, it is open to the prosecution to make an application for cancellation of bail under the provisions of Sub-section (5) of Section 437 of the Code.
12. The above decision of the Division Bench in Umedsinh’s case, (AIR 1977 Guj 11) (supra) came up for consideration before another Division Bench in Babubhai’s case (1982 Cri LJ 284) (supra). It appears that this case at first came up before the learned single Judge of this Court by way of Criminal Revision Application. The learned single Judge permitted conversion of this Criminal Revision Application into writ petition under Arts. 226 and 227 of the Constitution and, thereafter, the matter was placed before the Division Bench, The question which came up for consideration before the Division Bench was the same which had come up for consideration in Umedsinh’s case (supra), namely, whether the accused was entitled to be released on bail under proviso (a) to Section 167(2) of the new Code in view of the fact that the chargesheet was filed more than 90 days after the arrest of the accused. The decision of the Division Bench in Umedsinh’s case was cited before the Division Bench in the course of hearing of the writ petition. The Division Bench felt that the decision in Babubhai’s case required reconsideration and it, therefore, directed the writ petition to be placed for hearing before a larger Bench. That is how Babubhai’s case came to be referred to Full Bench. Before we consider the decision of the Full Bench in Babubhai’s case (1982 Cri LJ 284) in detail we would refer to the decisions of the Supreme Court in Natabar Parida’s case (1975 Cri LJ 1212) (supra) and in the case of Bashir v. State of Haryana, AIR 1978 SC 55 : (1978 Cri LJ 173), on which reliance has been placed by the Full Bench.
13. The decision of the Supreme Court in Natabar’ Parida’s case (supra) was rendered within few months after the decision of the Division Bench in Umedsinh’s case (supra). The facts of the case before the Supreme Court were that an occurrence took place on March 8, 1974 at the place situated in the District of Cuttack, Orissa. The First Information Report was lodged on March 9, 1974 and a police investigation started in connection with the offences alleged to have been committed under Sections 147, 148, 307 and 302 simpliciter as also with the aid of Section 149 of the Indian Penal Code. The four appellants before the Supreme Court were arrested by the police in the course of investigation on March 10 and four others, who had been enlarged on bail by the Sessions Judge were arrested on March 14. They were produced before the Magistrate, who remanded them to jail custody from time to time. The learned Sessions Judge released on bail four of the accused but refused to grant bail to the appellants before the Supreme Court. An argument based upon proviso (a) to sub-Section (2) of Section 167 of the new Code was rejected by the learned Sessions Judge relying on the saving Clause (a) of Sub-section (2) of Section 484. Orissa High Court repelled the arguments put forward on behalf of the appellants in support of their demand for bail and, thereafter, the matter was taken before the Supreme Court by special leave. The Supreme Court observed that it was not expected to examine afresh the question of releasing the appellants on bail on merits. But the question for consideration was whether the appellants were entitled to be released on bail under proviso (a) to Section 167(2) of the new Code. It was noted that the new Code came into force on and from April 1, 1974. Section 484(1) of the new Code repealed the old Code. But there were certain saving clauses engrafted in Sub-section (2). The Supreme Court compared the provisions of the old Code and the new Code. The Supreme Court referred to Sections 167 and 344 of the old Code and sections 167 and 309 of the new Code. We have already reproduced above these provisions.
14. The Supreme Court observed that under Section 167(2) of the old Code the Magistrate to whom the accused was forwarded could remand him to police custody or jail custody for a term not exceeding 15 days in the whole. Even the Magistrate, who had jurisdiction to try the case could not remand the accused to any custody beyond the period of 15 days under Section 167(2) of the old Code. There was no other section which in clear or express language conferred this power of remand on the Magistrate beyond the period of 15 days during the pendency of the investigation and before the taking of cognizance on the submission of chargesheet. Section 344 of the old Code, however, enabled the Magistrate to postpone the commencement of any inquiry or trial for any reasonable cause. The Supreme Court then referred to various decisions of the High Courts and the decision of the Supreme Court in Gauri Shankar Jha v. State of Bihar, AIR 1972 SC 711 : (1972 Cri LJ 505) wherein the question whether a Magistrate having jurisdiction to try a case could remand an accused to jail custody from time to time during the pendency of the investigation in exercise of the power under Section 344 was considered. The Supreme Court concluded “It would thus be seen that under the old Code the Magistrate was given the power under Section 344 to remand an accused to jail custody as the section was also applicable to cases in which process of investigation and collection of evidence was going on. In other words, the power of remand by the Magistrate during process of investigation and collection of evidence was an integral part of the process. The power was meant to be exercised whenever necessary, to aid the investigation and collection of further evidence.”
15. The Supreme Court then proceeded to consider the provisions of Sections 167 and 309 of the new Code. The Supreme Court reproduced proviso (a) to Section 167(2) of the new Code as it stood prior to the amendment of 1978 and observed that expression “the Magistrate” in the proviso would mean the Magistrate having jurisdiction to try the case. After reproducing Section 309(2) of the new Code the Supreme Court observed “Although the expression ‘reasonable cause’ occurring in Sub-section (1A) of Section 344 is nowhere to be found in Section 309 of the New Code, the explanation to Section 344 of the old Code has been retained as Explanation 1 to Section 309 in the identical language. 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 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 can not 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 interstate 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 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 subsection (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.”
16. In Natabar Parida’s case (1975 Cri LJ 1212) (SC) (supra) investigation had started before coming into force of the new Code. In other words, when the new Code came into force the investigation was pending. Therefore, the question which arose before the Supreme Court was whether the appellants could press into service proviso (a) to Section 167(2) of the new Code and claim to be released on bail as a matter of right when they are prepared to furnish bail. The Supreme Court observed that the answer to this question depended on the interpretation of Sections 167 and 484 of the new Code. The Supreme Court held that saving Clause (a) of Sub-section (2) of Section 484 of the new Code did apply to the facts of the case. Immediately before the 1st day of April, 1974 the investigation in that case was pending. The Supreme Court observed; “Saving Clause (a) therefore enjoins that the said investigation shall be continued or made in accordance with the provisions of the old Code. The Police Officer, therefore, making the investigation has to continue and complete it in accordance with Chapter XIV of the old Code. Section 167 of that Code could not enable the Magistrate to remand the appellants to jail custody during the pendency of the investigation. The police could seek the help of the Court for exercise of its power of remand under Section 344, bringing it to the notice of the Court that sufficient evidence had been obtained to raise a suspicion that the appellants may have committed an offence and there will be hindrance to the obtaining of further evidence unless an order of remand was made. As we have said above, invoking the power of the Court under Section 344 of the old Code by the investigating officer would be a part of the process of investigation which is to be continued and made in accordance with the old Code. That being so, we hold that the appellants in this case cannot claim to be released under proviso (a) to Section 167(2) of the new Code.”
17. The position of law as it emerges from the decision of the Supreme Court in Natabar Parida’s case, (1975 Cri LJ 1212) (supra) is as follows:–
(1) Under Section 167(2) of the old Code, the Magistrate to whom the accused was forwarded could remand him to police custody or jail custody for a term not exceeding 15 days in the whole. Even the Magistrate who had jurisdiction to try the case could not remand the accused to any custody beyond the period of 15 days under that provision.
(2) The Magistrate having jurisdiction to try a case could remand an accused to jail custody from time to time during the pendency of investigation in exercise of the power under Section 344 of the old Code.
(3) It would thus appear that though the Magistrate could remand an accused to police custody or jail custody for a term not exceeding 15 days in the whole under Section 167(2) of the old Code, he could remand an accused to jail custody from time to time during the pendency of investigation under Section 344 of the old Code. Section 167(2) and Section 344 of the old Code had to be read together so far as Magistrate’s power to remand the accused was concerned.
(4) Proviso (a) to Section 167(2) of the new Code confers power of remand to jail custody during the pendency of investigation only.
(5) Section 309(2) of the new Code is attracted only after the cognizance of an offence has been taken or commencement of the trial has proceeded.
(6) The command of the Legislature in proviso (a) to Section 167(2) of the new Code 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 is still proceeding.
(7) Section 344 of the old Code is applicable to investigations pending immediately before the coming into force of the new Code and in such case the accused can not claim to be released under proviso (a) to Section 167(2) of the new Code.
(8) The Supreme Court has not said that the command of the Legislature in proviso (a) to Section 167(2) travels beyond the stage of investigation.
18. In Bashir’s case (1978 Cri LJ 173) (supra) bail applications of the accused were dismissed on merits by the Sessions Court and the High Court during the pendency of the investigation and before the completion of the period prescribed by proviso (a) to Section 167(2) of the new Code. Investigation was not completed and charge-sheet was not filed within the prescribed period. The accused were, therefore, released on bail under proviso (a) to Section 167(2) of the new Code. Subsequently charge-sheet was filed by the police. After the filing of the charge-sheet, prosecution applied for cancellation of the bail under Section 437(5) of the new Code. The Supreme Court pointed out that the power of the court to cancel bail if it considers it necessary is preserved in cases where a person has been released on bail under Section 437(1) or (2) and these provisions are applicable to a person, who has been released under Section 167(2). The Supreme Court however, observed; “The fact that before an order was passed under Section 167(2) the bail petitions of the accused were dismissed on merits is not relevant for the purpose of taking action under Section 437(5). Neither is it a valid ground that subsequent to release of the appellants 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). This may be done by the court coming to the conclusion that after the challan had been filed there are sufficient grounds that the accused had committed a non-bailable offence and that it is necessary that he should be arrested and committed to custody.”
19. In Bashir’s case (supra) the Supreme Court had no occasion to consider the question whether the accused has a right to be released on bail if charge-sheet is filed after the expiry of the period prescribed by proviso (a) to Section 167(2). In other words, the Supreme Court did not consider the question that even if chargesheet is filed, the accused who had not applied for or furnished bail after the expiry of the period prescribed by the aforesaid provision and before the submission of the charge-sheet, the accused had right to be released on bail solely on the ground that investigation was not completed within the prescribed time. The question which had come up for consideration before the Supreme Court was in regard to the cancellation of the bail of the accused, who had been released on bail under proviso (a) to Section 167(2) on the grounds that their applications for bail were rejected on merits as stated above and that the charge-sheet was submitted. It was in the context of this question that the Supreme Court held that rejection of the bail application of the accused on merits as stated above and the fact that the charge-sheet was submitted were not relevant grounds for the cancellation of the bail.
20. The Full Bench of this Court in Babubhai’s case (1982 Cri LJ 284) (supra) relying on the decision of the Supreme Court in Natabar Parida’s case (1975 Cri LJ 1212) (supra) observed as follows in paragraph 17 of the judgment;
“Thus, it is clear that if it is not possible to complete the investigation within a period of ninety days, even in serious and ghastly types of crimes, the accused will be entitled to be released on bail. Any reference to the provision relating to bail occurring in Section 167(2) proviso is merely with a view to enable the prosecution if necessary to apply that the person released on bail under Section 167(2) proviso (a) be taken back in custody. It is necessary to emphasize that the only custody which is spoken of in Section 309 of the new Code is jail custody but if it is not possible to complete the investigation within a period of sixty days or ninety days the accused will be entitled to be released on bail provided of course that he is prepared to and does furnish bail and cannot be kept in detention beyond the period of ninety days, under Clause (i) of paragraph (a) of the proviso to Section 167(2).”
The Full Bench, thereafter, considered the decision of the Supreme Court in Bashir’s case (supra) and observed as follows: (para 14)
“It is clear that the two decisions of the Supreme Court in Natabar Parida’s case (1975 Cri LJ 1212) (supra) and in Bashir’s case (1978 Cri LJ 173) (supra) proceed on the footing that the provisions of Section 167(2) are provisions relating to bail and to quote from the decision of Dua J. in A. Lakshamanrao’s case (1971 Cri LJ 253) (SC) (supra) the fact that Section 167(2) occurs in Chapter XII which deals with information to police and their powers to investigate, does not justify a strained construction to be placed on the provisions of Section 167(2), once it is found that the language of Section 167(2) is unambiguous and clear.”
The Full Bench after making the above observations held that so far as Section 209 of the new Code is concerned, the powers of remanding the accused to custody when the Magistrate takes cognizance or when the case is exclusively triable by the Court of Sessions, the power of committing the accused to custody, are all subjects to the provisions of the new Code relating to bail. It was observed “It is true that Chapter XXXIII of the Code is headed “Provisions as to bail and bonds” but if the Legislature wanted that the provisions of the Code relating to bail referred to in Section 209 should only be the provisions of Chapter XXXIII, the Legislature would have mentioned the provisions of Chapter XXXIII instead of referring to the generic phase “provisions of the Code relating to bail”. The Full Bench observed that it cannot be gainsaid that Section 167 of the new Code and particularly proviso (a) thereof provides for bail and is one of the provisions relating to bail. It was observed that so far as Explanation 1 to Section 167(2) proviso is concerned; it is clear that the accused shall be detained in custody so long as he does not furnish bial but the right of the accused or the entitlement of the accused to be released on bail is clear once the period of 90 days from the accused being first presented before the Court is over. The accused has to show his preparedness to furnish bail and has to furnish bail.
21. In the case before the Full Bench the accused was presented before the Magistrate for the first time after his arrest on October 22, 1980. Therefore, the period of 90 days expired on January 20, 1981. Full Bench observed that the Magistrate could not have authorised detention of the accused in jail custody beyond the period of 90 days, that is, beyond January 20, 1981. It was observed that under Section 167 the investigating officer is required to complete the investigation within 24 hours from the accused person being arrested and detained in custody. If the investigation cannot be completed, he is to be produced before the nearest Magistrate after 24 hours and the Magistrate can remand the accused in custody or in police custody, if the facts of the case require, for a period of 15 days. From time to time, the Magistrate concerned may remand the accused to police custody or jail custody, as the case may be, but the period of jail custody will be after the first initial period of 15 days. The Full Bench observed, “but on the expiry of the period of 90 days the accused person has to 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 released under Chapter XXXIII for the purposes of that Chapter.” The Supreme Court in the two cases, which we have mentioned above, in the course of the judgments clearly indicated that the deeming fiction is for the purpose of enabling the prosecution to apply to the Court and empowering the court to cancel the bail and to take the concerned accused in custody, if the requirements of Section 437(5) are met.
22. The Full Bench repelled the arguments advanced on behalf of the State that in view of Explanation 1 to Section 167(2) proviso and in view of Section 209, once the charge-sheet is filed and the investigation comes to an end, the Court can grant bail only under Section 437 of the Cr. P. C. observing as follows:
“This contention of Mr. Shah cannot be accepted because the reference to the provisions of the Code relating to bail in Section 209(a) contains reference also to Section 167(2)(a) and once the period of ninety days is over, as Untwalia J. pointed out, by virtue of the command of the Legislature the accused concerned has got to be released on bail, if he is prepared to and does furnish bail.”
The Full Bench held that the conclusion of the Division Bench in Umedsinh’s case (AIR 1977 Guj 11) (supra) is no longer good law observing as follows in paragraph 27 :
“Under these circumstances, the conclusion of the Division Bench in Umedsinh’s case (supra) that once the charge-sheet is filed, investigation being over, the power of enlarging the accused on bail under Section 167(2)(a) comes to an end, is no longer good law in view of the decisions of the Supreme Court in Natabar Parida’s case, (1975 Cri LJ 1212) and Bashir’s case (1978 Cri LJ 173) (supra).
23. The question which we are now called upon to consider is whether the decision of the Full Bench in Babubhai’s case (1982 Cri LJ 284) could be said to have been overruled by the decision of the Supreme Court in Lakshmi Brahman’s case (1983 Cri LJ 839) (Supra).
24. In Lakshmi Brahman’s case (1983 Cri LJ 839) (Supra) the facts were as follows (para 1):
Respondents Lakshmi Brahman and Naval Garg were suspected of having committed an offence punishable with death or imprisonment for life under Section 302 of the I.P.C. Both of them surrendered before the Magistrate on November 2, 1974 and were taken into custody. The investigation was then in progress. The Investigating Officer failed to submit the charge-sheet against them within a period of 60 days as contemplated by subsection (2) of Section 167 of the new Code prior to its amendment by Criminal Procedure Code (Amendment) Act, 1978 which enlarges the period from 60 to 90 days where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years. The charge-sheet, it appears, was filed on February 5, 1965. The two respondents moved an application under Section 439 of the new Code invoking the power of the High Court to grant bail to any person accused of an offence, even where the offence is punishable with death or imprisonment for life.
25. The Division Bench of the Allahabad High Court, which dealt with the application, was of the opinion that after the charge-sheet has been submitted under Section 170 of the new Code, the Magistrate has no jurisdiction to authorise the detention of an accused in custody under Section 167 of the new Code and, therefore, the authority to remand the accused to custody after the charge-sheet has been submitted, has to be gathered from other provisions of the Code. The High Court then posed itself the question whether in a case instituted upon a police report exclusively triable by the Court of Session, the Magistrate while committing the accused to the Court of Session under Section 209 of the new Code has, after the accused is brought before him and before the order committing the accused to the Court of Session is made, jurisdiction to remand the accused to custody other than the police custody? The High Court was of the opinion that since after the enactment of the new Code, the proceedings before the Magistrate under Chapter XVI of the new Code would not be an enquiry within the meaning of the expression in Section 2(g) and, therefore, Section 209 would not confer power on the Magistrate to commit the accused to custody. The High Court further held that in view of the provision contained in Section 207 read with Section 209 of the new Code, the Magistrate has to commit the accused forthwith to the Court of Session and only after the order of commitment is made, the Magistrate will have power to remand accused to the custody during and until the conclusion of the trial. The High Court accordingly held that the Magistrate has no jurisdiction, power or authority to remand the accused to custody after the charge-sheet is submitted and before the commitment order is made, and, therefore, the accused were entitled to be released on bail. The High Court, therefore, directed that the respondents before the Supreme Court be released on bail pending the trial by the Court of Session. The State of U.P. preferred appeal by Special Leave before the Supreme Court.
26. The High Court after examining the scheme of Section 167(1) and (2) with proviso 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. The Supreme Court affirmed this conclusion of the High Court and upheld the view of the High Court that as the respondents did not apply for bail on the expiry of sixty days from the date of their arrest, their continued detention would not be illegal or without the authority of law,
27. The Supreme Court also approved the view of the High Court to the effect that jurisdiction to grant bail in case investigation is not completed within the prescribed time limit as incorporated in proviso (a) to Section 167(2) as it then stood, vests in the Magistrate if the accused applies and is prepared to furnish bail. The Supreme Court observed that 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.
28. The Supreme Court then proceeded to consider the question as to how the Magistrate is to deal with the accused forwarded to him with the police report under Section 170 and the police report discloses an offence exclusively triable by the court of Section. After considering the provisions of Sections 170, 190, 204, 207 and 209 of the new Code, the Supreme Court held that the dichotomy read by the High Court in Sections 207 and 209 is certainly not borne out by the provisions of the new Code. The Supreme Court observed Section 207, as it then stood, made it obligatory for the Magistrate to supply free of costs, copies of the documents set out in the section. They duty cast on the Magistrate by Section 207 had to be performed in a judicial manner. To comply with Section 207, which is cast in a mandatory language, when the accused is produced before the Magistrate, he has to enquire from the accused by recording his statement whether the copies of the various documents set out in Section 207 have been supplied to him or not. No order committing the accused to the court of Session can be made under Section 209 unless the Magistrate fully complies with the provisions of Section 207. And if it is shown that the copies of relevant documents or some of them are not supplied, the matter will have to be adjourned to get the copies prepared and supplied to the accused. This is implicit in Section 207 and Section 209 provides that on being satisfied that the requisite copies have been supplied to the accused, the Magistrate may proceed to commit the accused to the Court of Session to stand his trial.” The Supreme Court observed the statutory obligation imposed by Section 207 read with Section 209 on the Magistrate to furnish copies of documents is a judicial obligation. It is not an administrative function. It is a judicial function which is to be discharged in a judicial manner. It is distinctly possible that the copies may not be ready. That makes it necessary to adjourn the matter for some time which may be spent in preparing the copies and supplying the same to the accused. The Magistrate can proceed to commit the accused for trial to the Court of Session only after he judicially discharges the function imposed upon him by Section 207″. The Supreme Court concluded that “if under Section 207 the Magistrate is performing a judicial function of ascertaining whether copies have been supplied or not, it would undoubtedly be an inquiry for the purpose of satisfying himself that Section 207 has been complied with in letter and spirit. That satisfaction has to be judicial satisfaction. It is not a trial but something other than a trial and being judicial function it would necessarily be an inquiry”. The Supreme Court concluded; “thus 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 inquiry as contemplated by Section 2(g) of the Code.” The Supreme Court then went on to observe that if the Magistrate is to hold an 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. The Supreme Court, therefore, held that the High Court committed an error in holding that “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 Govt. 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.” According to the Supreme Court the view taken by the High Court introduces a stage of compulsory bail not envisaged by the new Code and, therefore, the above View of the High Court could not be upheld. In the result the Supreme Court allowed the appeal of the State of U.P. and set aside the order of the High court granting bail to the respondents.
29. The position of law as it emerges from the judgment of the Supreme Court in Lakshmi Brahman’s case (1983 Cri LJ 839) (Supra) may be summarised as follows:
(1) Section 167 of the new Code envisages a stage when a suspect is arrested and the investigation is not completed within, the prescribed period.
(2) The investigation would come to an end the moment charge-sheet is submitted as required by Section 170 unless the Magistrate directs further investigation.
(3) Jurisdiction to grant bail in case investigation is not completed within the prescribed time as incorporated in proviso (a) to Section 167(2), vests in the Magistrate, if the accused applies and is prepared to furnish bail.
(4) On submission of charge-sheet the Magistrate takes cognizance of the offence.
(5) Inquiry within the meaning of Section 2(g) of the new Code commences on the submission of the charge-sheet and taking of cognizance by the Magistrate.
(6) Section 309 of the new Code enables the Magistrate to remand the accused to the custody till inquiry to be made is completed.
(7) The new Code does not envisage a stage of compulsory bail.
(8) The accused cannot claim to be released on bail on account of default committed in submitting charge-sheet within prescribed time after submission of the charge-sheet and commencement of the inquiry.
30. It would thus appear that Section 167 has application only at the stage when the investigation is not completed within the prescribed period. In other words that Section comes into play only when investigation is pending. Proviso (a) to Sub-section (2) of Section 167 of the new Code imposes restrictions on the power of the Magistrate to authorise detention of the accused person for a period exceeding 90 days or 60 days as the case may be. However, on the expiry of 90 days or 60 days, as the case may be, 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 said period, 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. If, however, the accused does not apply for bail on the expiry of 90 days or 60 days, as the case may be, from the date of his arrest his continued detention would not be illegal or without authority of law. The stage of investigation during which the Section 167 applies comes to an end on submission of the charge-sheet by the police and the Court taking cognizance of the offences under Section 190 of the new Code. Once the investigation is complete by submission of charge-sheet, there is commencement of inquiry. If the Magistrate is holding the inquiry Section 309 would enable the Magistrate to remand the accused to the custody till inquiry to be made is complete. It is pertinent to note that the Supreme Court did not uphold the order of the High Court releasing the appellants on bail on the ground that they had an absolute right to be released on bail on account of failure on the part of the police to submit the charge-sheet within the prescribed time limit. Facts disclosed in the case clearly show that the police had not submitted charge-sheet within time limit prescribed by proviso (a) to Section 167(2) of the new Code. Therefore, if the accused had an absolute right to be released on bail at any stage on account of such failure, the order passed by the High Court could have been sustained on that ground. However, the Supreme Court did not think that the appellants before it had such right for otherwise even if it did not agree with the view of the High Court it would have sustained its order on the basis of such right.
31. The view which the Full Bench has taken in Babubhai’s case (1982 Cri LJ 284) (Supra) is contrary to the ratio of the decision of the Supreme Court in Lakshmi Brahman’s case 91983 Cri LJ 839) (Supra). The Supreme Court has clearly laid down that Section 167 of the Code applies only at the stage of investigation. As observed above, proviso (a) to Section 167(2) imposes restriction on the power of the Magistrate to remand the accused beyond the prescribed time limit and it is in that context that the right had been conferred on the accused to be released on bail provided he is prepared to and does furnish bail. Section 167(2) is not a provision relating to bail as understood by the Full Bench. If in the light of the decision of the Supreme Court in Natabar Parida’s case (1975 Cri LJ 1212) (supra) and Bashir’s case (1978 Cri LJ 173) (Supra), this provision was read as a provision for bail, the Supreme Court would have sustained the order of the High Court of Allahabad releasing the accused on bail, though not on the grounds given by the High Court but on the ground that the appellants had an absolute right to be released on bail. Even if the accused had absolute right to be released on bail, it was not absolute in the sense that it could be availed of at any stage meaning thereby at the stage of investigation or inquiry or trial. The right is absolute in the sense that at the stage of investigation the accused would be entitled to be released on bail, if the investigation is not completed within the prescribed time limit and if he is prepared to and does furnish bail. In other words, the accused has a right to be released on bail by merely showing that the investigation has not been completed within the prescribed time limit, the accused has not to show that he is entitled to be released on bail on merits. The right which is conferred on the accused is notwithstanding anything contained to the contrary in Section 437(1). It is in that sense that the right to be released on bail is absolute. On submission of the charge-sheet, the Magistrate takes cognizance of the offence and the inquiry within the meaning of Section 2(g) of the new Code commences. Once the inquiry commences Section 309 comes into place and the Magistrate has the power to remand the accused to the jail custody. The Supreme Court, as pointed out above, clearly held that the Magistrate taking cognizance of the offences on police report or charge-sheet has the power to remand the accused under Section 309(2). The Full Bench, however, emphasised that the only custody which is spoken of in Section 309 of the new Code is jail custody, but if it is not possible to complete the investigation within a period of 60 days or 90 days, the accused will be entitled to be released on bail provided he is prepared to and does furnish bail and cannot be kept in detention beyond the period of 90 days under Clause (i) of paragraph (a) of proviso to Section 167(2). The Full Bench further held that the power of the Magistrate to remand the accused to jail custody comes to an end with the expiry of 90 days or 60 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 90 days or 60 days expires. That is a command of the Legislature and, if that is so, the fact that Section 167(2)(a) occurs in the Chapter relating to the investigation and trial is totally immaterial. The Full Bench further held that under Sub-section (2) of Section 309, the Court may by a warrant remand the accused if he is 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 90 days or 60 days mentioned in Section 167(2)(a) comes to an end. According to the Full Bench that is the only way in which the provisions of Sections 167, 209 and 309 can be reconciled. This view of the Full Bench is directly in conflict with the view of the Supreme Court in Lakshmi Brahman’s case (1983 Cri LJ 839) (Supra) that the accused could be remanded to jail custody under Section 309(2) of the new Code. At the cost of repetition it may be stated that the Supreme Court did not sustain the order of the Allahabad High Court to release the appellant before it on bail on the ground on which according to the Full Bench the accused is entitled to be released on bail. It must also be remembered that Clauses (a) and (b) of Section 209 to which reference made in the Full Bench decision comes into place only after the Magistrate commits the accused to stand trial before the Court of Session. According to the Full Bench generic phase “provisions of the code relating to bail” used in the said two clauses has been deliberately used to cover not only the provisions of Chapter XXXIII but also the proviso (a) to Section 167(2), which according to the Full Bench is one of the provisions relating to bail. This approach of the Full Bench also cannot be said to be in consonance with decision of the Supreme Court in Lakshmi Brahman’s case (Supra). The above provision can only mean that if the accused is on bail whether under proviso (a) to Section 167(2) or under Chapter XXXIII of the new Code, the order of remand would be subject to that. Further it would also be open to the accused to apply for bail if he is so entitled under the provisions in Chapter XXXIII. The Supreme Court has in the case of Lakshmi Brahman’s (Supra) clearly held that new Code does not envisage a stage of compulsory bail. If the view taken by the Full Bench is correct, it would introduce a stage of compulsory bail. According to the Full Bench so far as Section 209 is concerned, the powers of remanding the accused to custody when the Magistrate takes cognizance or when the case is exclusively triable by the Court of Sessions, the power of committing the accused to custody, are all subject to the provisions of the Code relating to bail Now, as pointed out by the Supreme Court, on commencement of inquiry it is not Section 209 but it is Section 309 which is attracted. Power to remand the accused on adjournment or postponement of the inquiry is conferred on the Magistrate under Section 309. According to the Supreme Court one commencement of the inquiry by submission of charge-sheet, the Magistrate has the power to remand the accused to jail custody under Section 309. It would thus appear that the view of the Full Bench is not consistent view with the view of the Supreme Court. The Full Bench, as pointed out above, did not accept the argument advanced on behalf of the State that once the charge-sheet is filed the investigation comes to an end and the court can grant bail under Section 437 of the new Code. The Supreme Court has in Lakshmi Brahman’s case (Supra) clearly held that on submission of the charge-sheet, the investigation comes to an end and the inquiry commences. Therefore, the above view of the Full Bench is also contrary to the view of the Supreme Court. The Supreme Court has not taken the view to the effect that the accused is entitled to be released on bail at any stage, if he is prepared to and does furnish bail, as held by the Full Bench. As already observed above, had this been the view of the Supreme Court, it would have sustained the order of the Allahabad High Court releasing the appellants before the Supreme Court on bail. The Supreme Court must be assumed to have taken all the aspects including those which commended to the Full Bench into consideration before setting aside the order of the Allahabad High Court releasing the appellants on bail. The decision of the Full Bench in Babubhai’s case (1982 Cri LJ 284) (Supra) must, therefore, be held to have been overruled by the Supreme Court’s decision in Lakshmi Brahman’s case (1983 Cri LJ 839) (Supra).
32. The view which we are inclined to take derives support from the decision of the Supreme Court in Dadasahab Krishnarao Patel v. Sarupa Jivaba Charapals reported in 1979 Cri LR (SC) 80. In this decision the Supreme Court observed; “The Sessions Judge shall also not be deterred by the provisions of Proviso to Sub-section (2) of Section 167 of the Code of Criminal Procedure which is not applicable to the accused after they are committed to the Court of Sessions.” This decision also clearly indicates that Section 167 applies only at the stage of investigation as held by the Supreme Court in Lakshmi Brahman’s case (1983 Cri LJ 839) (Supra). In this connection we may also recall that in Natabar Parida’s case (1975 Cri LJ 1212) (Supra) the Supreme Court has held that the expression “the Magistrate” in proviso (a) to Section 167(2) would mean the Magistrate having jurisdiction to try the case. It would, therefore, be clear that power under proviso (a) to Section 167(2) is conferred only on the Magistrate having jurisdiction to try the case and that too pending investigation. This power, no doubt, would be subject to any provision regarding Revision contained in the new Code.
33. The view similar to the view which we have taken was taken by the learned single Judge (one of us M.B. Shah, J.) in Kantibhai Jivabhai Chauhan v. State of Gujarat, (1985) 26 (1) Guj LR 339 and in State v: Alamzebkhan Jangerzkhan Ali reported in the same Volume of the Guj LR at page 492. In both these decisions the learned single Judge had elaborately discussed the full Bench decision in Babubhai’s case (1982 Cri LJ 284) (Supra) in the context of the decision of the Supreme Court in Lakshmi Brahman’s case (1983 Cri LJ 839) (Supra). The learned single Judge has demonstrated by quoting paragraphs from both the decisions that the view taken by the Full Bench in Babubhai’s case (Supra) was not consistent with the view taken by the Supreme Court in Lakshmi Brahman’s case (Supra). The learned single Judge held that in view of the legal position as enunciated in the case of Lakshmi Brahman (Supra) the view taken by the Full Bench of this Court in the case of Babubhai is no longer good law. The aforesaid two decisions in Kantibhai’s case and Alamzebkhan’s case (Supra) were followed by the learned single Judge in Merabbai v. State, (1936) 27 (1) Guj LR 549. We fully agree with the reasons recorded and the conclusions reached by the learned single Judge. The Division Bench of this Court, however, by its decision rendered in the case of Sairabibi (1987 Cri LJ 1732) (Supra) disagreed with the aforesaid view of the learned single Judge in Kantibhai’s case (Supra) and Alamzebkhan’s case (Supra) and held that the decision of the Full Bench in Babubhai’s case (Supra) does not stand overruled by the decision of the Supreme Court in Lakshmi Brahman’s case. With utmost respect we do not agree with this conclusion reached by the Division Bench.
34. In Sairabibi’s case (1987 Cri LJ 1732) (Supra) the Division Bench held that since period prescribed by Section 167 is even, the accused gets a right to be released on bail if no charge-sheet is filed within that period. If the accused applies for being released on bail on the expiry of the said period, then the learned Magistrate is under a legal obligation to release him on bail. The observation of the Division Bench, which follows, is important. This observation is “If the application for bail and the charge-sheet are received almost simultaneously, then the Magistrate will have to consider whether in spite of the right of the accused to be released on bail an order of remand under Section 309 of the Code is required to be passed or not.” This observation runs counter to the view that the accused has an absolute right to be released on bail on default committed by the police in submitting charge-sheet within the time prescribed by proviso (a) to Section 167(2) and such right can be exercised at any stage, that is investigation, inquiry or trial. The above view taken by the Division Bench was strongly objected to on behalf of the petitioners and it was urged that this view expressed by the Division Bench was directly in conflict with the decision of the Full Bench in Babubhai’s case (1982 Cri LJ 284) (Supra). In the view, which we are taking, we are not inclined to accept this submission. The above observation of the Division Bench on the contrary supports the view which we are inclined to take and the view which was taken by the learned single Judge in the cases of Kantibhai (1985-26(1) Guj LR 339) (Supra) and Alamzebkhan (1985-26(1) Guj LR 492) (Supra). The Division Bench also felt that if the charge-sheet was submitted by the police, the accused cannot claim that they should be released on bail solely on the ground that the police had failed to submit the charge-sheet within time prescribed by proviso (a) to Section 167(2). The Division Bench with respect to the extent of the above observation made by it supports the view which we are inclined to take.
35. The decision of the Full Bench of the Patna High Court in Rabindra Rai’s case (1984 Cri LJ 1412) (Supra) lends strength to the view which we are inclined to take. In that case the petitioner before the Court was accused of an offence under Section 302 and some other Sections of the I.P.C. He surrendered before the Sub-divisional Judicial Magistrate, Danapur on October 19, 1982. He was remanded to jail custody from time to time. One of the such orders of remand was passed on January 12, 1983 remanding the petitioner to jail custody up to January 24, 1983. On January 14, 1983, police report, generally known as charge-sheet, was submitted saying that on investigation a case under Section 302 of the I.P.C. had been established against the petitioner. An order was passed on January 17, 1983 saying that cognizance was being taken. It was an admitted position that as the charge-sheet was submitted within the statutory period of 90 days, the petitioner was not entitled to the benefit of proviso (a) to Sub-section (2) of Section 167 of the new Code. It was, however, urged before the Full Bench of the Patna High Court that as the charge-sheet was submitted on January 14, 1983 and the cognizance was taken on January 17, 1983, the petitioner could not have been remanded to jail custody between the period January 14, and January 17, 1983 and as such he is entitled to be released on bail. It was urged that after submission of the charge-sheet and before taking of cognizance, a Magistrate cannot pass an order of remand either under Section 167(2) or under Section 309(2) of the new Code. The Full Bench relied on the decision of the Supreme Court in Lakshmi Brahman’s case (1983 Cri LJ 839) (Supra) wherein it is held to the effect that 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 inquiry as contemplated by Section 2(g) of the new Code. The Full Bench further pointed out that as held by the Supreme Court Section 309(2) enables the Magistrate to remand the accused to the custody pending inquiry. The Full Bench then went to observe : “in view of the clear enunciation of the position that an inquiry within the meaning of Section 2(g) of the Code shall deem to have commenced since the submission of the police report, and shall continue till an order of commitment is made under Section 209, it is difficult for this Court to hold that such inquiry shall commence only after a formal order is passed by the Magistrate saying that cognizance has been taken. Once it is held that inquiry commences since the submission of the police report-charge/ sheet there should not be any difficulty in holding that the Magistrate has during that period power to remand the accused in terms of Sub-section (2) of Section 309 of the Code.”
36. It is also interesting to refer to the following observations made by the Full Bench of the Patna High Court in Rabindra Rai’s case 1984 Cri LJ 1412 at pp. 1416-17) (supra):
“There is an impression in some section that if an accused was entitled to bail under proviso (a) to Sub-section (2) of Section 167 of the Code at one stage, or if for some time his detention was not under a valid order of remand, then he can enforce his right to be relesed on bail even at a later stage of the proceeding. In my view, this is a misconceived stand. When proviso (a) to Sub-section (2) of Section 167 says that after expiry of the period of ninety days or sixty days, as the case may be, an accused, who is in custody, shall be released on bail, it does not mean to say that, thereafter, his detention in custody is illegal or without an authority of law. If detention of an accused after the statutory period is held to be illegal or without authority of law, then there is no question of his releasing on bail on furnishing security to the satisfaction of the Court concerned. He has to be released outright. Does proviso (a) to Sub-section (2) of Section 167 contemplate release of an accused after the statutory period of detention where the accused concerned fails to furnish security to the satisfaction of the court? The answer is in negative. This aspect has also been examined by the Supreme Court in the aforesaid case of State of U.P. 1983 Cri LJ 839 (supra) and it has been observed (Para 5):–
“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”.
11. It is well known that even in an application for writ of Habeas Corpus where challenge on behalf of the petitioner is that his detention in custody is without any authority of law, that question has to be examined with reference to the date fixed for return of rule. Reference in this connection may be made to one of the decisions of the Supreme Court in the case of Talib Hussain v. State of Jammu and Kashmir AIR 1971 SC 62 where it has been pointed out (para 6) :–
“In regard to the submission that the petitioner was arrested and deprived of his personal liberty long before the order of his arrest and this invalidated his detention, it is sufficient to point out that in habeas corpus proceedings the Court has to consider the legality of the detention on the date of hearing. If on the date of hearing it cannot be said that the aggrieved party has been wrongfully deprived of his personal liberty and his detention is contrary to law, a writ of habeas corpus cannot issue.”
Same thing has been pointed out in the Full Bench decision of this Court in the case of Babu Nandan Mallah v. The State 1971 Pat LJR 605 : 1972 Cri LJ 423. The detention of any such person may be illegal at the initial stage, but if this Court finds on the date fixed for the return of the rule, that such detention is legal and in accordance with law, then such application for writ of Habeas Corpus has to be dismissed. If an accused having shown to this Court that at one stage he was under illegal detention is not entitled to be released, because later a valid order of remand has been passed, then I fail to understand how the right to be released or to be released on bail which might have accrued to an accused person during investigation or before commencement of inquiry/trial can be enforced at a later stage when he is under custody on basis of a proper order of remand. In my view, to entertain an application for bail on the plea that a valuable right of an accused to be released on bail had been denied to him at an earlier stage will amount to stretching the scope of Sub-section (2) of Section 167 too far and without any purpose. On a plain reading, proviso (a) to Sub-section (2) of Section 167 is a check on the investigation so that it should be concluded as early as possible. It never purported to introduce “a stage of a compulsory bail not envisaged by the Code” as observed by the Supreme Court in the aforesaid case of State of U.P. 1983 Cri LJ 839 (supra).”
The above observations clearly support the view which we are inclined to take. As rightly held by the Full Bench of the Patna High Court, Section 167 is a check on investigation so that it should be concluded as early as possible. It is, therefore, that restriction has been put on the power of the Magistrate to remand the accused to police custody or jail custody and the right had been conferred on the accused to be released on bail pending investigation. The decision of the Full Bench of the Patna High Court also clearly shows that the view taken by the Full Bench of this Court in Babubhai’s case (1982 Cri LJ 284) (Supra) is not consistant with or is contrary to the view taken by the Supreme Court in Lakshmi Brahman’s case (1983 Cri LJ 839) (supra).
37. In Nawal Sahni’s case (1989 Cri LJ 733) (Patna) (supra) identical question, namely, whether bail has to be granted to an accused under proviso (a) to Section 167(2) of the new Code, even after submission of the police report/charge-sheet if the charge-sheet has been submitted after the period prescribed in the proviso had arisen for consideration before the Division Bench of the Patna High Court. The Division Bench observed that the scope of proviso (a) to Section 167(2) was authoritatively considered in the case of Natabar Parida (1975 Cri LJ 1212) (supra) wherein it was pointed out by the Supreme Court that after the expiry of the statutory period, an accused has got to be released on bail if he is prepared to and does furnish bail. It was observed that this course of granting bail has to be adopted because said proviso prescribes a limitation on the power of the Magistrate to remand an accused to custody during investigation after expiry of the period prescribed therein. The Division Bench then observed (at p. 735):
“If charge-sheet is submitted within the statutory period prescribed by proviso to sub-Section (2) of Section 167, there is no question of granting bail because such an accused thereafter can be remanded to jail custody in exercise of the power under Section 309(2) of the Code. The Proviso to Section 167(2) is not a provision for grant of bail during investigation, but a restriction on the power of the magistrate to remand an accused during investigation beyond the period prescribed. As such with filing of charge-sheet if an enquiry commences within the meaning of Section 2(g) of the Code the Magistrate can remand the accused to custody in term of Section 309(2) and there is no question of applicability of Section 167(2) proviso in that event, the investigation having concluded.”
The Division Bench then referred to the decision of the Supreme Court in Lakshmi Brahman’s case (1983 Cri LJ 839) (Supra) and the decision of the Full Bench of the Patna High Court in Rabindra Rai’s case (1984 Cri LJ 1412) (Supra) and observed as under (at p. 736):-
“In view of the aforesaid Supreme Court judgment in the case of State of U.P. v. Lakshmi Brahrnan (supra) and the Full Bench judgment of this Court even in a case where charge-sheet has been submitted within the statutory period but no formal order has been passed saying that, cognizance has been taken and enquiry as contemplated by Section 2(g) of the Code shall deem to have commenced with the filing of the chargesheet vesting power in the Magistrate to remand accused under Section 309(2) of the Code and there is no question of releasing an accused under Section 167(2) proviso.”
Thereafter, the Division Bench of the Patna High Court in Nawal Sahpi’s case (1989 Cri LJ 733) (Supra) proceeded to consider the question whether it would make any difference if charge-sheet itself has been submitted after the statutory period of 90 days, but prayer for bail is being made after the submission of such a charge-sheet, on the ground that as the charge-sheet had not been submitted within the time prescribed, the accused is entitled to be released on bail. The question whether the right which has accrued to such an accused of being released on bail due to non-submission of the charge-sheet within the period fixed by the proviso to Section 167(2) of the new Code can be exercised even when the prayer for grant of bail is to be considered after submission of the charge-sheet was also considered by the Full Bench. After quoting Section 167(2) the Division Bench again pointed out that Section 167(2) is not a provision for bail, but puts a limitation on the power of the Magistrate to authorise detention of an accused person in custody during investigation beyond the period prescribed. If the investigation continues beyond that period, then a Magistrate has no option but to release the accused on bail, if he is prepared and furnishes bail to the satisfaction of the Magistrate. The Division Bench observed that as pointed in the Full Bench judgment of the Patna High Court in Rabindra Rai’s case (1984 Cri LJ 1412) (Supra) although the aforesaid proviso is mandatory in nature leaving no discretion in the Magistrate while considering the question of grant of bail, if investigation is not concluded within the period fixed, but the said proviso does not conceive an outright release of an accused person, his custody itself having become illegal after the expiry of the period. That is why, it was obsrved that, the said proviso does not conceive release of an accused even if such an accused does not furnish bail. The Division Bench then went on to observe that even in a case where charge-sheet has been submitted beyond the statutory period, but if the prayer for grant of bail is being considered after submission of such charge-sheet then the stage of applicability of Section 167(2) proviso is over. It was further observed that with the submission of charge-sheet an inquiry shall be deemed to have commenced as such, there is no question of lack of power in the Magistrate to remand such an accused; he can remand the accused in exercise of power under Section 309(2). However, if the prayer for bail is being considered after the expiry of the statutory period and before the submission of the charge-sheet there is no option with the Magistrate except to release the accused on bail, if he furnishes bail bond. The Division Bench, therefore, held that while considering the prayer for bail of the petitioner after the submission of the charge-sheet, the Magistrate had not to examine the prayer in the background of Section 167(2) proviso but in the light of the Section 309(2) of the Code. It was held that with the filing of the charge-sheet an inquiry shall be deemed to have commenced, the Magistrate had power to remand such an accused and there is no question of enforcing on that day any right, which had accrued to such an accused on expiry of the statutory period before the filing of the charge-sheet.
38. It was pointed out to the Division Bench of the Patna High Court in Nawal Sahni’s case (1989 Cri LJ 733) (Supra) that a learned single Judge of the Patna High Court had in the case of Mohamad Sharfuddin Khan’s case 1988 Pat LJR (HC) 201 held to the effect that the right, which has accrued to the accused could not be denied to him and the command of the Legislature could not be frustrated merely on the ground that charge-sheet stood submitted on the date on which the petition on behalf of the accused-petitioners was being considered by the Judicial Magistrate. The learned single Judge had observed that the accused-petitioners had been in jail beyond the period of 90 days on February 18, 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 could not be denied to him simply because subsequent thereto charge-sheet was submitted in the case. The Division Bench observed as under:
“Unfortunately, the attention of the learned Judge was not drawn to the Supreme Court judgment in the case of State of U.P. v. Lakshmi Brahman, 1983 Cri LJ 839 (supra) and to the Full Bench decision of this Court in the case of Rabindra Rai, 1984 Cri LJ 1412 (supra), where it has been held that after the charge-sheet is submitted an enquiry commences and Magistrate gets power to remand an accused to custody under Section 309(2) of the Code and at that stage there is no question of applicability of Section 167(2) proviso. I respectfully differ with the view expressed by the learned Judge and the said judgment is overruled.”
The above decision of the Division Bench of the Patna High Court in Nawal Sahni’s case (1989 Cri LJ 733) (Supra) puts the matter beyond the pale of any doubt. The view similar to one taken by the Full Bench of this Court in Babubhai’s case (1982 Cri lJ 284) (Supra) was taken by the learned single Judge of the Patna High Court in Mohamad Sharifuddin Khan’s case (Supra) and it was held by the Division Bench of the Patna High Court that in view of the decision of the Supreme Court in Lakshmi Brahman’s case (Supra) the view taken by the learned single Judge was not correct and his decision was overruled. We are in respectful agreement with the view of the Division Bench of the Patna High Court and it must, therefore, be held that the decision of the Full Bench of this Court in Babubhai’s case (Supra) is no longer good law.
39. It may incidentally be pointed out that the learned single Judge of the Madras High Court in Pandi v. State, 1979 Cri LJ 1503 following the decision of the Division Bench of this Court in Umedsinh’s case (AIR 1977 Guj 11) (Supra) had taken the view similar to the one taken by the Division Bench of the Patna High Court in Nawal Sahni’s case (1989 Cri lJ 733) (Supra). For the reasons which we have discussed above, with respect we do not agree with the view of the Division Bench of the Delhi High Court in P.N. Ogechi v. State (Delhi Admn.) 1986 Cri LJ 2081, which was cited on behalf of the petitioners.
40. In Raghubir Singh v. State of Bihar, AIR 1987 SC 149 : (1987 Cri LJ 157) the Supreme Court summed up the position of law as follows (para 22):–
“An order for release on bail made under the proviso to Section 167(2) is not defeated by lapse of time, the filing of the charge-sheet or by remand to custody under Section 309(2). The order for release on bail may however be cancelled under Section 437(5) or Section 439(2). Generally the grounds for cancellation of bail, broadly are interference or attempt to interfere with the due course of administration of justice, or evasion or attempt to evade the course of justice, or abuse of the liberty granted to him. The due administration of justice may be interfered with by intimidating or suborning witnesses, by interfering with investigation, by creating or causing disappearance of evidence etc. The course of justice may be evaded or attempted to be evaded by leaving the country or going underground or otherwise placing himself beyond the reach of the sureties. He may abuse the liberty granted to him by indulging in similar or other unlawful acts. Where bail has been granted under the proviso to Section 167(2) for the default of the prosecution in not completing the investigation in sixty days, after the defect is cured by the filing of a charge-sheet, the prosecution may seek to have the bail cancelled on the ground that there are reasonable grounds to believe that the accused has committed a non-bailable offence and that it is necessary to arrest him and commit him to custody. In the last mentioned case, one would expect very strong grounds indeed.”
After summing up the position of law, as stated above, the Supreme Court proceeded to consider the facts of the case before it. In that case the Court had passed an order to release the accused on bail as the Police failed to file the charge-sheet within the prescribed time limit. The Supreme Court observed; “The order for release on bail was not an order on merits but was what one may call an order-on-default, an order that could be rectified for special reasons after the defect was cured. The order was made long ago but for one reason or the other, the accused failed to take advantage of the order for several months.”
The Supreme Court observed : “Probably for that reason, the prosecuting agency did not move in the matter and seems to have proceeded on the assumption that the order lapsed with the filing of the charge-sheet.” The High Court and following the High Court, the Special Judge, held that the order for release on bail came to an end with the passage of time on the filing of the charge-sheet. The Supreme Court observed that that was not a correct view. The Supreme Court then proceeded to consider the question as to what was the proper order to make. The question was whether the Supreme Court should send the matter down to the High Court to give an opportunity to the prosecution to move the Court for cancellation of bail. The Supreme Court observed : “Having regard to the entirety of the circumstances, the long lapse of time since the original order for bail was made, the consequent change in circumstances and situation, and the directions that we have now given for the expeditious disposal of the case, we do not think that we will be justified in exercising our discretion to interfere under Article 136 of the Constitution in these matters at this stage. The special leave petitions are, therefore, dismissed.”
41. In Rajnikant Jivanlal Patel v. Intelligence Officer, NCR, (1989) 3 JT 67 : (1990 Cri LJ 62) the Supreme Court observed as follows (at p. 64 of Cri LJ):
“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.
The accused cannot, therefore, claim any special right to remain on bail. If the investigation reveals that the accused has committed a serious offence and charge-sheet is filed, the bail granted under proviso (a) to Section 167(2) could be cancelled.”
42. It is clear from the aforesaid decision of the Supreme Court that an order for release on bail under proviso (a) to Section 167(2) is an order on default. The accused is entitled to be released on bail on account of default on the part of the prosecution to file charge-sheet within the prescribed period, if he is prepared to and does furnish bail. It is a legislative command and not Court’s discretion. In other words, 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. The Magistrate has no power to remand the accused beyond the stipulated period of 90/60 days, and he should be released on bail, if he is prepared to and furnishes bail. It has, however, been emphasised by the Supreme Court that the accused cannot claim any special right to remain on bail. In other words, the accused cannot claim that his right to remain on bail can, under no circumstances, be defeated. It has been further emphasised that if the investigation reveals that (i) the accused has committed a serious offence; and (ii) charge-sheet is filed, the bail granted under proviso (a) to Section 167(2) could be cancelled. However, if the accused has not made application for his release on bail, after expiry of the period prescribed by the aforesaid proviso and before filing of the charge-sheet, has he a right to claim his release on bail, after filing Of the charge-sheet, solely on the ground that the charge-sheet was not submitted within the prescribed period is the question, which is required to be answered. As already discussed above, answer to this question has to be in the negative. If the view of the Full Bench of this Court in Babubhai’s case (1982 Cri LJ 284) (supra) is correct, the accused has an absolute right to be released on bail on account of failure on the part of the police to submit charge-sheet within the prescribed period, and such right can be exercised at any stage, that is, at the stage of investigation of inquiry or trial. To give an illustration, the accused who was not released on bail pending investigation as provided in proviso (a) to Section 167(2), would be entitled, to be released on bail under the said proviso, even at the fag end of the trial, say at the stage, the prosecution evidence is over or for that matter, the arguments of the prosecution and defence have concluded. Such accused may, if he finds that the prosecution has been able to make out a strong case against him, seek his release on bail with the intention of jumping bail and on being released on bail, jump the bail. In case the bail is granted at any stage as aforesaid, the only remedy which is available to the prosecution after filing of the charge-sheet is to make application for cancellation of the bail under Section 437(5) or Section 439(2). Therefore, if the decision of the Full Bench of this Court in Babubhai’s case (1982 Cri LJ 284) (Supra) is to be followed in the instant case, though the accused is committed to the court of session, and the trial before the Sessions Court is to commence, the petitioners will have to be released on bail and the only remedy available to the prosecution is to apply for cancellation of the bail, as stated above. Since the petitioners are riot yet released on bail, the question of cancellation of bail does not arise. Therefore, has the prosecution to wait till the release of the petitioners on bail for making an application for the cancellation of the bail? In Sairabibi’s case (1987 Cri LJ 1732) (Guj) (Supra), the Division Bench observed that if an application for bail and charge-sheet are received almost simultaneously, then the Magistrate will have to consider, whether in spite of the right of the accused to be released on bail, an order of remand under Section 309 of the Code is required to be passed or not. This observation, as pointed out by us, is not in consonance with the view of the Full Bench of this Court in Babubhai’s case (supra). However, the Division Bench, it appears, sought to find a practical way out in case the bail application and charge-sheet are received simultaneously. Same would be the position if the bail application is received after the filing of the charge-sheet. But if the decision of the Full Bench of this Court in Babubhai’s case (supra) is strictly followed the accused will have to be released on bail it is only thereafter, that the prosecution can make an application for cancellation of the bail under Section 437(5) or Section 439(2) of the new Code. In the instant case the bail application made by the petitioners has been opposed by the prosecution. It must, therefore, be assumed that in case the petitioners are ordered to be released on bail, the prosecution will apply for cancellation of bail. Therefore, the exercise of enlarging the petitioners on bail would be a futile exercise. However, since in our opinion, the decision of the Full Bench of this Court in Babubhai’s case (Supra) stands overruled by the decision of the Supreme Court in Lakshmi Brahman’s case (1983 Cri LJ 839) (Supra), this question would not arise.
43. It was urged on behalf of the petitioners that it could not be correct for this Bench to take the view to the effect that the decision of the Full Bench of this Court in Babubhai’s case (Supra) stands overruled by the decision of the Supreme Court in Lakshmi Brahman’s case (Supra). It was urged that if this Bench was inclined to take the above view, the proper course to adopt is to refer the matter to a Larger Bench. In support of this contention reliance was sought to be placed on the decision of the Supreme Court in Somabhai Mathurbhai v. New Shorrock Mills, 1983 Guj LH 273 and other decisions of the Supreme Court to which we will presently refer.
44. In Somabhai Mathurbhai’s case (Supra), it was observed by the Supreme Court that it is not open to a single Judge to reject the ratio of the decision of another single Judge of the same High Court by merely saying that attention of that single Judge was not invited to the decision of the Supreme Court, which may have an impact on the point under consideration. It was observed that judicial comity demands that in that event the matter should be referred to a larger Bench. We are bound by this decision of the Supreme Court, but, in our opinion, it has no application to the facts of the instant case. In the case before the Supreme Court the attention of single Judge of the High Court, who rendered earlier decision, was not invited to the decision of the Supreme Court, which might have an impact on the point under consideration. Such is not the position here. In the instant case the question which we are called upon to consider is whether the decision of the Full Bench of this Court in Babubhai’s case (Supra) stands overruled by subsequent decision of the Supreme Court in Lakshmi Brahman’s case. It is not disputed and indeed it cannot be that law declared by the Supreme Court is binding on all the Courts in India. Therefore, if under the law declared by the Supreme Court earlier decision of a High Court, be it by a single Judge or a Division Bench or a Full Bench, stands overruled, the question of referring the matter to a Larger Bench would not arise. In such case the single Judge, the Division Bench or the Full Bench, as the case may be, can without referring the matter to a Larger Bench say that in view of the decision of the Supreme Court, the earlier decision of the High Court whether it is rendered by single Judge, Division Bench or Full Bench is no longer good law. Once the law is declared by the Supreme Court even the lower courts can not take a different view releying on earlier decision of the High Court, to which it is subordinate.
45. In Atma Ram v. State of Punjab, AIR 1959 SC 519, the Supreme Court observed to the effect that when it was found that a Full Bench of three Judges was inclined to take a view contrary to that of another Full Bench of equal strength, better course would have been to constitute a Larger Bench. It was observed that such a course becomes necessary in view of the fact that otherwise the subordinate courts are placed under the embarassment of preferring one view to another, both equally binding upon them. It was on this observation that the petitioners sought to rely in support of their contention that this application should be referred to a Larger Bench. For the reasons which we have already stated above, since in our opinion the question which arises for consideration is concluded by the decision of the Supreme Court, the question of referring the application to a Larger Bench does not arise:
46. In Jai Kaur v. Sher Singh, AIR 1960 SC 1118, the Division Bench of the Punjab High Court chose to consider the matter afresh, which was concluded by earlier decision of the Full Bench of the High Court. Petitioners sought to rely on the following observations made by the Supreme Court in that case (at pp. 1122-23) :–
“We had recently occasion to disapprove of the action of a Division Bench in another High Court in taking it upon themselves to hold that a contrary decision of another Division Bench on a question of law was erroneous and stressed the importance of the well-recognised judicial practice that when a Division Bench differs from a previous decision of another Division Bench, the matter should be referred to a larger Bench. If, as we pointed out there, considerations of judicial decorum and legal propriety require that Division Benches should not themselves pronouce decisions of other Division Benches to be wrong, such consideration should stand even more firmly in the way of Division Benches disagreeing with a previous decision of the Full Bench of the same court.”
In Jaisri v. Rajdewan, AIR 1962 SC 83, the Supreme Court observed to the effect that when there are two conflicting decisions of two Benches of a High Court, which are placed before a latter Bench, the correct procedure to follow in such case would be for the Bench hearing the case to refer the matter to a Full Bench in view of the conflicting authorities without taking upon itself to decide whether it should follow the one Bench decision or the other. In Kamalammal v. Venkatalakshmi, AIR 1965 SC 1349 the learned single Judge of the High Court had thought it proper to refuse to be bound by the decision of the Full Bench of that Court and proceeded on his own line of reasoning relying merely on the statement of the. Editor of Mayne’s Hindu Law that the decision required reconsideration. In that context the Supreme Court observed: “We cannot but deprecate this practice as it destroys the certainty of the law which the theory of judicial precedent seeks to establish. Not merely convention but rules framed by several High Courts require that where a learned single Judge or a Division Bench does not agree with a Full Bench decision he or they either make a reference to the Full Bench or places the papers before the Chief Justice for such a reference being made.” In Budhan Singh v. Babi Bux, AIR 1970 SC 1880 and in V.R.G. & G.O.M.C.C. v. State of A.P., AIR 1972 SC 51 it was observed to the effect that if a Bench of the High Court is unable to agree with the decision already rendered by another co-ordinate Bench of the same High Court, the question should be referred to a larger Bench. We are bound by the decisions of the Supreme Court. It cannot be disputed that the law stated in these decisions is a settled law. However, in our opinion the above decisions have no application to the facts of the instant case. As already pointed out above, we are not disagreeing with the view of the Full Bench of this Court in Babubhai’s case (1982 Cri LJ 284) (Supra) on merits. The question which we are considering is whether this Full Bench decision stands overruled by subsequent decision of the Supreme Court in Lakshmi Brahman’s case (1983 Cri LJ 839) (Supra), the law declared by the Supreme Court being binding on all the Courts in India. For this reason and the reasons which are discussed above, we do not agree that this application should be referred to a Larger Bench as urged on behalf of the petitioners.
47. In the light of the above discussion we may summarise the position of law as follows:
(1) Proviso (a) to Sub-section (2) of Section 167, which is in Chapter XII of the new Code which deals with “information to the police and their powers to investigate” can be invoked only at the stage of investigation.
(2) Jurisdiction to grant bail in case investigation is not completed within the prescribed time limit as provided in proviso (a) to Section 167(1), vests in the Magistrate if the accused applies and he is prepared to furnish bail. Section 167 envisages a stage when suspect is arrested and the investigation is not completed within the prescribed period.
(3) The expression “Magistrate” in the aforesaid proviso (a) would mean the Magistrate having jurisdiction to try the case.
(4) The investigation would come to an end the moment charge-sheet is submitted as required by Section 178 unless the Magistrate directs further investigation.
(5) In case of offence triable by the Sessions Court inquiry within the meaning of Section 2(g) of the new Code would commence on submission of the charge-sheet.
(6) Once the inquiry commences, proviso (a) to Section 167(2) has no application.
(7) After commencement of the inquiry the Magistrate has power to remand the accused to jail custody under Section 309(2) of the new Code.
(8) An order for release on bail made under the proviso (a) to Section 167(2) is not defeated by lapse of time, the filing of charge-sheet or by remand to custody under Section 309(2). The order for release on bail may, however, be cancelled under Sections 437(5) or 439(2).
(9) When the bail has been granted under the proviso (a) to Section 167(2) for default of the prosecution in not completing the investigation within the prescribed time limit, after the defect is cured by filing of a charge-sheet, the prosecution may seek to have the bail cancelled on the ground that there are reasonable grounds to believe that the accused has committed a non-bailable offence and that it is necessary to arrest him and commit to custody.
(10) The accused has absolute right to be released on bail under the proviso (a) to Section 167(2) of the new Code for the default of the prosecution in not completing the investigation within time limit prescribed thereunder in the sense that he is entitled to be released on bail by showing that the investigation has not been completed or the charge-sheet has not been filed within the prescribed time limit, without anything more. In other words, the accused has not to show that he is entitled to be released on bail on merits.
(11) The accused does not have right to be released on bail under proviso (a) to Section 167(2) once the investigation comes to an end by filing charge-sheet.
(12) The new Code does not envisage a stage of compulsory bail.
(13) Right of being released on bail which the accused has under proviso (a) to Section 167(2) of the new Code is not an absolute right in the sense that it could be exercised at any stage. The absolute right of the accused to be released on bail, as understood by the Full Bench of this Court in Babubhai’s case (1982 Cri LJ 284) would amount to compulsory bail which is not envisaged by the new Code.
(14) The judgment of the Full Bench of this Court in Babubhai’s case (1982 Cri LJ 284) (Supra) stands overruled by the decision of the Supreme Court in Lakshmi Brahman’s case (1983 Cri LJ 839) (Supra).
48. We may recall the facts in the instant case. The incident involving the petitioners in the offence of murder punishable under Section 302 occurred on November 17, 1988. The petitioners were arrested for the offence punishable under Section 302 read with Section 114 on November 19, 1988. The charge-sheet against the petitioners was submitted 95 days adter the petitioners were arrested on February 23, 1989. The petitioners have not made application for their release on bail prior to submission of the charge-sheet. With the submission of the charge-sheet, the investigation having come to an end and the inquiry having commenced, the petitioners were not entitled to be released on bail under proviso (a) to Section 167(2) of the new Code, The learned Magistrate committed the accused to stand trial before the Court of Session and it was after the committal order that on March 3, 1989 the petitioners made application for bail before the Sessions Court. It would thus appear that the petitioners have made application for bail not only after completion of the investigation but after completion of the inquiry and at the stage when the matter was ripe for trial. For the reasons discussed above and the decision of the Supreme Court in the case of Dadasahab Krishnarao Palil (1979 Cri LR (SC) 80) (Supra) proviso (a) to Section 167(2) of the new Code has no application after the accused are committed to the Court of Session. Petitioners claimed to be released on bail under the proviso (a) to Section 167(2) solely on the ground that the prosecution has committed default in submitting the charge-sheet within the prescribed time limit. Such an application was not tenable before the Sessions Court. We, therefore, hold that the learned Additional Sessions Judge was right in rejecting the petitioners’ application for bail.
49. In the result this application fails and is rejected. Rule discharged.
50. After we pronounced the judgment, Mr. A.H. Mehta learned counsel for the applicants prays for certificate under Article 134(1)(c) read with Article 134A of the Constitution. In our opinion, since the controversy involved in this application is covered by decision of the Supreme Court this is not a fit case for appeal to the Supreme Court. We, therefore, rejected Mr. Mehta’s prayer for Certificate as prayed for.