Sankar alias Gowri Sankar and others vs State of Tamil Nadu

The Inspector of Police, C.B., C.I.D., Madras, on the lodging of a report, registered a case against the petitioners herein for alleged offences u/s

120B read with Sections 147, 148, 364, 302 and 201, I.P.C. and took up investigation. The investigation revealed that six murders were

committed on different dates by the petitioners and consequently they were arrested and later remanded to custody by the Magistrate, as detailed

below :

S. No. Name of Petitioner Date of arrest Date of remand

1 Sankar alias Gowri Sankar 6-7-1988 7-7-1988

2 Mohan 15-7-1988 15-7-1988

3 Eldin alias Albert 15-8-1988 16-8-1988

4 Shivaji 29-8-1988 29-8-1988

Jayavelu 6-7-1988 7-7-1988

Ravi 9-8-1988 10-8-1988

Selvam alias Selvan alias Selvaraj 9-8-1988 10-8-1988

Raman alias Rajaraman 10-8-1988 11-8-1988

Palani 8-8-1988 9-8-1988

Paramasivam 8-8-1988 9-8-1988

The remand periods were extended on various dates by the Magistrate time and again. The petitioners were placed under detention under the

provisions of the National Security Act. The investigating agency was stated to be having obstacles in the course of investigation relating to the

identity of the deceased, since skeletons of five of the murder victims alone were recovered during investigation. The modern techniques of

investigation as respects the identity of the deceased were stated to be adopted, thereby delaying the process of completion of investigation within

the statutory period contemplated u/s 167, Cr.P.C. Despite all such insurmountable difficulties, investigation was however completed and a

charge-sheet/final report was laid u/s 173(2), Cr.P.C. before the competent Court on 26-12-1988, and it was taken on file as P.R.C. No. 55 of

1988 on 28-12-1988. The detention of the petitioners under the National Security Act was however set aside by this Court. In these

circumstances, the petitioners have filed Crl.M.P. No. 10755 of 1990 for their release on bail, invoking the benevolent provision of Section

167(2), Cr.P.C., since the final report had not been filed within the statutory period of 90 days from the date of their first production before Court,

contending that in such a situation, it should be construed that they should have been deemed to have been released on bail on and from the 91st

day of their first production. before Court, thereby making further detention illegal and that such order of release can only be annulled by

cancellation of bail, if circumstances so warrant, by resorting to the provisions of Sections 437(5) and 439(2), Cr.P.C. The State represented by

the Inspector of Police, on the other hand, filed Cr. S.R. No. 61754 of 1990 for cancellation of the deemed order of bail enuring to the benefit of

the petitioners/accused, as contended by them.

Mr. A. Natarajan, learned counsel appearing for the petitioners/accused, in support of the contention of the, petitioners, placed implicit reliance

on the decision of Arunachalam, J. in Judu alias Daswaran v. State of Tamil Nadu, 1990 LW Crl 53, wherein it was held as follows :

The power of the Magistrate to remand the accused to jail custody came to an end with the expiry of 90/60 days from the date when the accused

was first produced before the Magistrate after his arrest. Once the period of 90/60 days expired, on the command of the legislature, if a charge-

sheet were not to be filed, the accused is entitled to be released on bail. The power of remand under S. 309(2), Cr.P.C., after first taking

cognizance of the offence will have to be read in the light of the right of entitlement of the accused to be released on bail under S. 167(2)(a),

Cr.P.C.

The accused is entitled to bail which must be deemed to have been made on the expiry of 90 days. This can only be annulled by a cancellation of

bail, if circumstances so warrant.

Learned counsel for the petitioners also drew my attention to the various decisions referred to in the aforesaid judgment, and submitted that the

petitioners are entitled to bail which must be deemed to have been made on the expiry of 90 days of their first production before the Magistrate.

Mr. R. Shanmughasundaram, Additional Public Prosecutor, would vehemently contend that the power to order release of a person accused of a

non-bailable offence on bail, was not at all inhering in the Magistrate u/s 167, Cr.P.C. prior to its amendment, that such power vested only with the

Court of Session and the High Court, that for the first time u/s 167(2) of the amended Code, the Magistrate was empowered to release a person

accused of a non-bailable offence on bail under a peculiar circumstance, if the investigation in such a case was not completed and a final report

was not filed thereon within the statutory period of 90/60 days, provided the person accused of such offence is prepared to and does furnish bail,

that every such person released on bail under the sub- section shall be deemed to have been so released under the provision of Chapter 33 for the

purpose of that Chapter, that the deemed order releasing a person on bail on the expiry of the period of limitation, making the period of detention

beyond the statutory period as illegal. as laid down in the decision cited by the learned counsel for the petitioners is neither contemplated under the

provisions of this Code nor by any decision of the apex Court or any other High Court of the country, that the attention of Arunachalam, J. was not

drawn to the decision of the Supreme Court in State of Uttar Pradesh Vs. Lakshmi Brahman and Another, , wherein their Lordships laid down that

the accused cannot claim to be released on bail on account of default committed in submitting charge-sheet within the prescribed time, after

submission of the charge-sheet and commencement of the inquiry, which perhaps was the reason for Arunachalam, J. coming to the said

conclusion and that the said decision of Arunachalam, J. will have no binding effect or force in view of the aforesaid decision of the Supreme Court

laying down the law under Article 141 to be followed by all Courts in the country. He would also incidentally submit that Arunachalam, J. did not

at all construe in the proper perspective the decision of the Supreme Court in Raghubir Singh and Others Vs. State of Bihar, and the decision of

Maheswaran, J. in Kumarakuppan, In Re : 1981 LW Crl 3 and that this aspect of the matter had been rightly determined by a Full Bench of the

Gujarat High Court in Shardulbhai Lakhmanbhai Pancholi and Another Vs. State of Gujarat, which considered the decision in State of Uttar

Pradesh Vs. Lakshmi Brahman and Another, . He would alternatively contend unhesitatingly that, even assuming for argument sake, the dictum laid

down by Arunachalam, J. in Judu alias Daswaran''s case, (1990 LW Crl 53) reflects the correct legal position, the prosecution would not at all be

placed in a disadvantageous position, since Crl.M.P.S.R. No. 61754 of 1990 which had been filed for cancellation of bail has to be numbered,

taken on file and disposed of on merits, in which case there is no possibility for the petitioners to be enlarged on bail inasmuch as there are plethora

of prima facie materials pointing out that there are reasonable grounds for believing that the petitioners are guilty of ghastly crimes of commission of

a series of murders.

I have anxiously considered the rival contentions put forth by the respective counsel. The fallacy taking shelter under the dictum laid down by

Arunachalam, J. in Judu alias Daswaran''s case, would get exposed by a cursory examination of the salient features adumbrated u/s 167(2),

Cr.P.C. and the various decisions of the apex Court and other High Courts relied upon by the learned Judge, and also another decision to which

his attention had not been drawn.

Section 167 deals with the procedure when investigation cannot be completed in twenty-four hours and sub-clause (2) thereof reads as under :

The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time

to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and

if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be

forwarded to a Magistrate having such jurisdiction :

Provided that -

(a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen

days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody

under this paragraph for a total period exceeding, -

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

ten years;

(ii) sixty days, where the investigation relates to any other offence, and on the expiry of the said period of ninety days, or sixty days, as the case

may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-

section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter,

(b) ..........

What is contemplated under the proviso to Section 167(2), Cr.P.C. is that the Magistrate who is not otherwise having the power to release a

person accused of a non-bailable offence, acquires such a power on the contingency of the Investigating Agency not filing the charge-sheet/final

report within the statutory period prescribed thereunder and such release of the person on bail, if he is prepared to and does furnish bail, shall be

deemed to be a release under Chapter XXXIII of the Code of Criminal Procedure and there is no warrant for the inference or deduction that the

accused shall be deemed to have been released on bail on the expiry of 90/60 days, thereby making his further detention illegal.

Worthwhile it is to note at this juncture the observation of the Supreme Court in State of Uttar Pradesh Vs. Lakshmi Brahman and Another, that

on submission of the charge-sheet, the investigation comes to an end and the inquiry commences and, therefore, the accused cannot claim to be

released on bail on account of the default committed in filing the final report within the prescribed time.

The Full Bench of the Gujarat High Court in Shardulbhai Lakhmanbhai Pancholi and Another Vs. State of Gujarat, had the occasion to consider

the effect of Lakshmi Brahman''s case as decided by the Supreme Court in all its splendour. The submission of facts, the points raised and decided

by the High Court, and the position of law as it emerges from the judgment of the Supreme Court, had been scintillatingly considered and summed

up by the Full Bench in Paragraphs 24 to 29 (pages 1291 to 1293), which if penned down here, would be of immense use in solving the tangle

posed in the case on hand. They are as under :

In State of Uttar Pradesh Vs. Lakshmi Brahman and Another, the facts were as follows 840 Cri LJ 1983 :

Respondents Lakshmi Brahman and Naval Garg were suspected of having committed an offence punishable with death or imprisonment for life u/s

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 sub-section (2)

of Section 167 of the new Code prior to its amendment by Criminal Procedure Code (Amendment) Act, 1973 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 S. 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.

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 u/s 170 of the new Code, the Magistrate has no jurisdiction to authorise the detention of an accused in custody u/s 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 u/s 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.

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 to the contrary in S. 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.

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 u/s 170 unless

the Magistrate directs further investigation.

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 S. 170 and the police report discloses an offence exclusively triable by the Court of Session. 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 S. 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. The duty cast on the Magistrate by S. 207 had to he

performed in a judicial manner. To comply with S. 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 S. 207 have

been supplied to him or not. No order committing the accused to the Court of Session can be made under S. 209 unless the Magistrate fully

complies with the provisions of S. 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 S. 207 and S. 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 S. 207 read with S. 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 S. 207. The Supreme Court concluded that ""If under S. 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 S. 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 the Magistrate with the police report under S. 170 and the Magistrate proceeds to enquire whether S. 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 S. 2(g) of the Code"". The Supreme Court then went on to observe that if the Magistrate is to hold an inquiry obviously S. 309

would enable the Magistrate to remand the accused to the custody till the inquiry to be made is complete. Sub-sec.(2) of S. 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, if any, 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 Government Advocate, we feel that it would be proper 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.

The position of law as it emerges from the judgment of the Supreme Court in Lakshmi Brahman''s case (1983 Cri LJ 839) 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 S. 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 S. 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 S. 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.

The position of law as it emerges from the decision of the Supreme Court in Matabar Parida, Bisnu Charan Parida, Batakrushna Parida and

Babaji Parida Vs. The State of Orissa, is summarised in paragraph 17 at page 1288 by the Gujarat High Court and it reads as follows :

(1) Under S. 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 nor 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 S. 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 S. 167(2) of the old Code, he could remand an accused to jail custody from time to time during the pendency of investigation

under S. 344 of the old Code. S. 167(2) and S. 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 S. 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 S. 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 cannot claim to be released under proviso (a) to S. 167(2) of the new Code.

(8) The Supreme Court has not said that the command of the Legislature in proviso (a) to S. 167(2) travels beyond the stage of investigation.

Similarly, in paragraph 40 at page 1300, the Gujarat High Court dealt with the decision in Raghubir Singh and Others Vs. State of Bihar, and

observed that the Supreme Court summed up the position of law as follows (at pages 169 and 170 of Cri LJ 1987) :

An order for release on bail made under the proviso to S. 167(2) is not defeated by lapse of time, the filing of the charge-sheet or by remand to

custody under S. 309(2). The order for release on bail may however be cancelled under S. 437(5) or S. 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 S. 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-bailance offence and

that it is necessary to arrest him and commit him to custody. In the last mentioned case, one would except very strong grounds indeed.

The Full Bench of the Gujarat High Court proceeded to state as follows in the same paragraph (para 40) :

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 that 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 some 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.

In Full Bench of the Gujarat High Court then quoted in paragraph 41 at p. 1301 the observations of the Supreme Court in Rajnikant Jivanlal

and Another Vs. Intelligence Officer, Narcotic Control Bureau, New Delhi, which read as under :

An order for release on bail under proviso (a) to S. 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 S. 167(2), proviso (a) thereto is absolute. It

is a legislative command and not Court''s discretion. If the investigating agency fails to file the 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 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 S. 167(2) could be cancelled.

Maheswaran. J. in Kumarakuppan, in Re (1981 LW Crl 3) following decision of the Gujarat High Court in Umedsinh Vakmatji Jadeja and

Others Vs. The State of Gujarat, and of the Andhra Pradesh High Court in Nethala Vinod Praphu v. State of Andhra Pradesh 1979 MPLJ Crl

509 held that after the charge-sheet was filed pending an application under S. 167, Cr.P.C., the investigation had come to an end and so also the

power of the Magistrate to grant bail under the provisions of S. 167(2). Maheswaran, J. did not agree with the contrary view of the Delhi High

Court in Noor Mohamed v. State ILR 1978 II Delhi 442. The view of Arunachalam, J. in Judu alias Daswaran''s case 1990 LW Crl 53 the

decision of Maheswaran, J. is no longer applicable, in the changed context of the law available on the subject as on date ............ does not at all

reflect the real legal position on the face of the law laid down by the Supreme Court in State of Uttar Pradesh Vs. Lakshmi Brahman and Another,

.

Pertinent it is to note here that the Full Bench decision of the Gujarat High Court in Babubhai Parshottamdas Patel Vs. State of Gujarat,

overruled the decision of the Division Bench in Umedsinh Vakmatji Jadeja and Others Vs. The State of Gujarat, which was relied on by

Maheswaran J. in Kumarakuppan, In Re 1981 LW Crl 3 and the said Full Bench decision fell for reconsideration before another Full Bench of the

Gujarat High Court itself in Shardulbhai Lakhmanbhai Pancholi and Another Vs. State of Gujarat, and in this decision, the Full Bench following the

decision of the Supreme Court in State of Uttar Pradesh Vs. Lakshmi Brahman and Another, held that the earlier Full Bench decision was

overruled by the Supreme Court decision and that consequently the matter need not be referred to a larger Bench, as the law declared by the

Supreme Court is binding on all the Courts in india. The Full Bench, after an elaborate discussion of various decisions, reference to some of which

have been made in this order, summarised the position of law in Paragraph 47 at p. 1304 as follows :

(1) Proviso (a) to sub-section (2) of S. 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 hail in case investigation is not completed within the prescribed time limit as provided in proviso (a) to S. 167(1) vests in

the Magistrate if the accused applies and he is prepared to furnish bail S. 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 S. 178 unless the Magistrate directs further

investigation.

(5) In case of offence triable by the Sessions Court inquiry within the meaning of S. 2(g) of the new Code would commence on submission of the

charge-sheet.

(6) Once the inquiry commences, proviso (a) to S. 167(2)has no application.

(7) After commencement of the inquiry the Magistrate has power to remand the accused to jail custody under S. 309(2) of the new Code.

(8) An order for release on bail made under the proviso (a) to S. 167(2) is not defeated by lapse of time, the filing of charge-sheet or by remand to

custody under S. 309(2). The order for release on bail may, however, be cancelled under S. 437(5) or 439(2).

(9) When the bail has been granted under the proviso (a) to S. 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 the sense that he is entitled to be released an 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 S. 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 S. 167(2) of the new Code is not 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) stands overruled by the decision of the Supreme Court in

Lakshmi Brahman''s case (1983 Cri LJ 839).

In the light of the discussion as made above, the legal position obtaining as on date regarding the right of the person accused of a non-bailable

offence to'' be enlarged on bail, under the benevolent provision of S. 167(2), Cr.P.C. may succinctly be summarised as follows :

An order for release on bail under proviso (a) to S. 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,

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. 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 S. 167(2) could be cancelled. If the accused has not made application for his release on bail, after expiry of the

period prescribed by the proviso (a) to S. 167(c) and before filing of the charge-sheet had no right to claim has release on bail after filing of the

charge-sheet/final report, solely on the ground that the charge-sheet/final report was not submitted within the prescribed period.

The Magistrate who is not otherwise having the power to release a person accused of a non-bailable offence acquires such a power in the

contingency of the investigating agency not filing the final report within the prescribed statutory period, and such release on bail, if the person is

prepared to and does furnish bail, shall be deemed to be a release under Chapter XXXIII of the Code of Criminal Procedure and there is no

warrant for the inference or deduction that the accused shall be deemed to have been released on bail on the expiry of 90/60 days, thereby making

the further detention illegal.

The facts on hand may now be recalled for giving legal fitment in the light of the law as enunciated above. There is no dispute that the

petitioners, who are charged with the offences of ghastly crimes of a series of murders and what not were arrested and produced before Court in

the months of July and August, 1988 that the charge-sheet has been filed on 26-12-1988 and that the case has been taken on file as P.R.C. No.

55 of 1988 on 28-12-1988 long after the expiry of 90 days from the date of their first production before Court. There is pale of controversy that,

on the default committed by the prosecution in filing the final report within the statutory period, neither the Magistrate passed an order releasing the

petitioners on bail and communicated the same requiring them to produce sureties, nor was it the case of the petitioners that they were prepared to

and did furnish sureties. The sordid fact is that they are incarcerated in prison on and from the date of their arrest till up to now. The other signal

factor is that the case is now admittedly pending before the Court of Session, Chengalpattu and is quite ripe for trial. In such circumstances, on the

face of the law enunciated as above, it goes without saying that the petitioners have no right to claim that in view of the decision of Arunachalam, J.

in Judu alias Daswaran''s case 1990 LW Crl 53 they should be deemed to have been released on bail, especially when the said decision will have

no binding effect or force in view of the decision of the Supreme Court in Lakshmi Brahman''s case 1983 Cri LJ 8391 which has been followed by

the Full Bench of the Gujarat High Court in Shardulbhai Lakhmanbhai Pancholi and Another Vs. State of Gujarat, In the light of the discussion

made above, Crl.M.P. No. 10755 of 1990 deserves to be dismissed and Crl.M.P. SR No. 61754 of 1990 deserves to be rejected as not

maintainable and they are disposed of accordingly.

Before parting with the case, it behoves me to pen down here my sincere appreciation and commendation of the valuable assistance rendered

by Mr. R. Shanmugasundaram, learned Additional Public Prosecutor, in the formulation and presentation of the legal proposition in a Scintillating

fashion, which enabled me to decide the case with ease and grace and without any difficulty whatever.

Order accordingly