G.T. Nanavati, J.
1. Is the Full Bench Judgment of this Court in Babubhai Parshottamdas v. State, 22 Guj LR 1232 : 1982 Cri LJ 284 impliedly overruled by the decision of the Supreme Court in State of U.P. v. Lakshmi Brahman : 1983CriLJ839 This question was raised before our learned brother M. B. Shah, J. in Kantibhai v. State, 1985 (1) 26 Guj LR 339. He held that the said Full Bench decision stands impliedly overruled by the decision of the Supreme Court in Lakshmi Brahman's case (supra). N. H. Bhatt, J. in Misc. Criminal Application No. 2199 of 1985 decided on 22-11-1985, did not agree with the view taken by M. B. Shah, J. in Kantilal's case (Kantibhai's case) (supra) and held otherwise. Therefore, when Misc. Criminal Application No. 441 of 1986 came up for hearing before our learned brother D. C. Gheewala, J. he thought it fit to refer the matter to a larger bench in view of the conflicting decisions given by M. B. Shah, J. and N. H. Bhatt, J. For the same reason, our learned brother J. P. Desai, J. thought it fit to refer Misc. Criminal Application No. 1318 of 1986 to a larger bench. That is how both these applications have been placed before us for final disposal. Another question which has been raised before us is 'whether Section 167, Criminal P.C, as amended by Criminal Procedure (Gujarat Amendment) Act, 1976 continues to apply in the State of Gujarat or now Section 167 as amended by Code of Criminal Procedure (Amendment) Act, 1978, being Indian Parliament Act No. 45 of 1978 applies in this State
2. In order to properly appreciate the questions arising in these two applications, it will be necessary to notice how Section 167, Criminal P.C., 1973 (hereafter referred to as 'the Code') has undergone changes from time to time. When enacted in 1973, 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 (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 not furnish bail; and every person released on bail under this sub- section shall be deemed to be so released under the provisions of Chap. 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 Para (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 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 reason for making it, to the Chief Judicial Magistrate.
(5) If 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.
This provision was found causing difficulties in complicated and serious cases where for reasons beyond the control of investigating officers, the investigation took more time. In order to remove this difficulty by enlarging the time limit to 120 days in serious cases and also for another purpose with which we are not concerned in these applications, the President in exercise of the powers conferred by Section 3 of the Gujarat State Legislature (Delegation of Powers) Act, 1976, enacted an Act called the Code of Criminal Procedure (Gujarat Amendment) Act, 1976. Section 2 of that Act reads as under:
2. In the proviso to Sub-section (2) of Section 167, Criminal P.C., 1973, in its application to the State of Gujarat:-
(i) for Para (a), the following para shall be substituted, namely :
(a) the Magistrate may authorise 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 section for a total period exceeding :
(i) One hundred and twenty 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 one hundred and twenty 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 section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;
(ii) in Para (b), for the words 'no Magistrate shall', the words 'no Magistrate shall, except for reasons to be recorded in writing' shall be substituted;
(iii) the Explanation shall be numbered as Explanation II, and before Explanation II as so numbered, the following Explanation shall be inserted, namely:
Explanation I: For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in Para (a), the accused person shall be detained in custody so long as he does not furnish bail.
The result of this amendment was that in the State of Gujarat, Section 167 as amended by Act No. 21 of 1976 applied. Thereafter, in 1978, the Parliament amended Section 167 of the Code by enacting Code of Criminal Procedure (Amendment) Act, 1978, being Indian Parliament Act No. 45 of 1978. By the said Act, the Parliament inter'alia amended Section 167. The amendment in Section 167 was made with the object of removing difficulties which were experienced in relation to the investigation of offences of serious nature. Proviso to Sub-section (2) of Section 167 has been amended by substituting following para for Para (a) of the said proviso :
(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 para for 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 Chap. XXXIII for the purposes of that Chapter;'
By the said amendment, the Explanation to Para (a) has been numbered as Explanation II, and before Explanation II so numbered, following Explanation has been inserted :
Explanation I:- For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in Para (a) the accused shall be detained in custody so long as he does not furnish bail.
After Sub-section (2), Sub-section (2-A) has been inserted, but with that sub-section we are not concerned. What is the effect of the said amendment made by the Parliament is the first question that we are called upon to decide. Does Section 167 as amended by Act No. 21 of 1976 continue to apply in the State of Gujarat or is it S, 167 as amended by Indian Parliament Act No. 45 of 1978 that has become applicable even in this State Key to the answer is Article 254 of the Constitution which reads as under :
254(1). If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List then, subject to the provisions of Clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.
(2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State;Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State.
The criminal procedure including all matters included in the Criminal Procedure Code at the commencement of the Constitution is the matter enumerated in the Concurrent List. Therefore, the Parliament and the Legislatures of the States have the power to make law with respect to it. Code of Criminal Procedure, 1973, is the law made by the Parliament. Gujarat Act No. 21 of 1976 being the law made by the State Legislature would have been void to the extent of the repugnancy but for the fact that it was reserved for the consideration of the President and received his assent. The result was that the law so made by the State Legislature prevailed in the State. In 1978, the Parliament passed Code of Criminal Procedure (Amendment) Act, 1978, being Indian Parliament Act No. 45 of 1978 (hereafter referred to as 'the Central Act No. 45 of 1978'), inter alia amending Section 167. How the said provision of law has affected the law then prevailing in the State is the point in controversy between the parties. It was contended by the learned advocates appearing on behalf of the accused in both these cases that the Parliament having made further Legislation with respect to the same matter, Section 167 as it prevailed in the State has become inoperative to the extent of repugnancy; and now Section 167 as amended by Central Act No. 45 of 1978 applies. It was further contended that it has to be so because the subsequent Central Act occupies the same field as was occupied by Act No. 21 of 1976 and the subsequent law made by the Parliament is more exhaustive on the subject. It was also contended that both the provisions of law cannot stand together as they are directly in conflict with each other. In support of their submissions, the learned advocates for the accused have relied upon the decisions of the Supreme Court in (1) Zaverbhai v. State of Bombay : [1955]1SCR799 (2) Deep Chand v. State of U.P. : AIR1959SC648 T. Barai v. Henry Ah Hoe : 1983CriLJ164 . On the other hand it was contended that if the test laid down in M. Karunanidhi v. Union of India : 1979CriLJ773 is applied then the said provisions cannot be said to be repugnant to each other.
3. In the case of Zaverbhai v. State of Bombay (supra) what had happened was that the State of Bombay considering maximum punishment provided by Section 7, Essential Supplies (Temporary Powers) Act, 1946, to be inadequate enacted Act No. 36 of 1947 providing for higher punishments. The Bombay Act had received assent of the Governor General and for that reason prevailed in Bombay as against Section 7, Essential Supplies (Temporary Powers) Act, 1946. The Central Legislature thereafter made further legislations in 1943,1949 and 1950. By Central Act No. 52 of 1950, old Section 7 was repealed and a new section was enacted. A question arose whether in view of the further Legislations made by the Central Legislature particularly in the year 1950, Bombay Act No. 36 of 1947 became inoperative or stood repealed. Dealing with this situation and interpreting Article 254(2) of the Constitution, the Supreme Court held that under the Constitution Parliament can, acting under the proviso to Article 254(2), repeal a State law. But where it does hot expressly do so, even then, the State law will be void under that provision if it conflicts with a later 'law with respect to the same matter' that may be enacted by Parliament. As the Central Act did not contain any provision expressly repealing Bombay Act in that case, the Supreme Court observed : 'Only question to be decided is whether the amendments made to the Essential Supplies (Temporary Powers) Act by the Central Legislature in 1948, 1949 and 1950 are 'further legislation' falling within Section 107(2) of the Government of India Act or 'law with respect to the same matter' falling within Article 254(2).' The Supreme Court further observed : 'The important thing to consider with reference to the provision is whether the Legislation is 'in respect of the same matter' If the later legislation deals not with the matters which formed the subject of the earlier legislation but with other and distinct matters though of a cognate and allied character, then Article 254(2) will have no application. The principle embodied in Section 107(2) and Article 254(2) is that when there is legislation covering the same ground both by the Centre and by the Province, both of them being competent to enact the same, the law of the Centre should prevail over that of the State.' It has further observed : 'It is true, as already pointed out, that on a question under Article 254(1) whether an Act of Parliament prevails against a law of the State, no question of repeal arises; but the principle on which the rule of implied repeal rests, namely, that if the subject-matter of the later legislation is identical with that of the earlier, so that they cannot both stand together, then the earlier is repealed by the later enactment, will be equally applicable to a question under Article 254(2) where the further legislation by Parliament is in respect of the same matter as that of the State law.' In that case, the Supreme Court found that Section 7 of the Bombay Act as substituted by Central Act No. 52 of 1950 was a comprehensive code covering the entire field of punishment for offences under the Act. Section 2 of Bombay Act No. 36 of 1947 cannot prevail as against Section 7, Essential Supplies (Temporary Powers) Act (24 of 1946) as amended by Act No. 52 of 1950.
4. In Deep Chand's case : AIR1959SC648 the Supreme Court examined law pertaining to rule of repugnancy. After noticing three tests propounded by Nicholas in his Australian Constitution, 2nd Edition, page 303, and referring to its earlier decisions in Zaverbhai v. State of Bombay, (1954 Cri LJ 1822) (supra) and Tika Ramji v. State of Uttar Pradesh : [1956]1SCR393 held that the repugnancy between two statutes may be ascertained on the basis of the following three principles : viz. (1) Whether there is direct conflict between the two provisions; (2) Whether Parliament intended to lay down an exhaustive code in respect of the subject-matter replacing the Act of the State Legislature; and (3) Whether the law made by Parliament and the law made by the State Legislature occupy the same field.
5. In T. Barai v. Henry Ah Hoe : 1983CriLJ164 dealing with similar situation, the Supreme Court observed as under:
Article 254(1) enunciates the normal rule that in the event of a conflict between a Union and a State law in the concurrent field, the former prevails over the latter.... To the general rule laid down in Clause (1), Clause (2) engrafts an exception, viz., that if the President assents to a State law which has been reserved for his consideration, it will prevail notwithstanding its repugnancy to an earlier law of the Union, both laws dealing with a concurrent subject. In such a case, the Central Act will give way to the State Act only to the extent of inconsistency between the two, and no more. In short, the result of obtaining the assent of the President to a State Act which is inconsistent with a previous Union law relating to a concurrent subject would be that the State Act will prevail in that State and override the provisions of the Central Act in their applicability to that State only. The predominance of the State law may, however, be taken away if Parliament legislates under the proviso to Clause (2).... Parliament may repeal or amend the repugnant State. law, either directly, or by itself enacting a law repugnant to the State law with respect to the 'same matter'. Even though the subsequent law made by Parliament does not expressly repeal a State law, even then, the State law will become void as soon as the subsequent law of Parliament creating repugnancy is made. A State law would be repugnant to the Union law when there is direct conflict between the two laws. Such repugnancy may also arise where both laws operate in the same field and the two cannot possibly stand together, e.g., where both prescribe punishment for the same offence but the punishment differs in degree or kind or in the procedure prescribed. In all such cases, the law made by Parliament shall prevail over the State law under Article 254(1).
Applying these principles, the Supreme Court in that case held that Prevention of Food Adulteration (Amendment) Act, 1976 being the law made by the Parliament with respect to the same matter, Prevention of Adulteration of Food, Drugs and Cosmetics (West Bengal Amendment) Act, 1973 stood impliedly repealed.
6. In M. Karunanidhi's case (1979 Cri LJ 773) (supra), the Supreme Court, after pointing out circumstances in which repugnancy between the law made by the State and by the Parliament may result, observed as under:
It is well settled that the presumption is always in favour of the constitutionality of a statute and the onus lies on the person assailing the Act to prove that it is unconstitutional. Prima facie, there does not appear to us to be any inconsistency between the State Act and the Central Acts. Before any repugnancy can arise, the following conditions must be satisfied:
1. That there is a clear and direct inconsistency between the Central Act and the State Act.
2. That such an inconsistency is absolutely irreconcilable.
3. That the inconsistency between the provisions of the two Acts is of such a nature as to bring the two Acts into direct collision with each other and a situation is reached where it is impossible to obey the one without disobeying the other.
After considering the case law on the point, it has laid down the following propositions :
1. That in order to decide the question of repugnancy it must be shown that the two enactments contain inconsistent and irreconcilable provisions, so that they cannot stand together or operate in the same field.
2. That there can be no repeal by implication unless the inconsistency appears on the face of the two statutes.
3. That where the two statutes occupy a particular field, but there is room or possibility of both the statutes operating in the same field without coming into collision with each other, no repugnancy results.
4. That where there is no inconsistency but a statute occupying the same field seeks to create distinct and separate offences, no question of repugnancy arises and both the statutes continue to operate in the same field.
Having carefully considered the observations made by the Supreme Court in the aforesaid cases and also the propositions enunciated by it, we do not think that the Supreme Court in M. Karunanidhi's case (1979 Cri LJ 773) (supra) has taken a view different from the one taken by it in Zaverbhai's case (1954 Cri LJ 1822) and Deep Chand's case : AIR1959SC648 (supra) as contended by the learned Additional Public Prosecutor.
Therefore, the question whether Section 167 as amended by Gujarat Act No. 21 of 1976 is repugnant or inconsistent with Section 167 as amended by Central Act No. 45 of 1978 will have to be answered with the help of the aforesaid tests laid down by the Supreme Court. Although stringent provisions were already there in the old Code requiring investigations to be completed quickly, they did not have the desired effect. There were persistent complaints that investigations were not being completed quickly by the police and that in many cases accused persons were kept in detention on remand, for very long periods causing hardship and misery to such under-trial prisoners and their families. Therefore, while enacting new Code of Criminal Procedure, 1973, the Legislature made a change in Section 167 and added a proviso to Sub-section (2) of that section expressly providing that no Magistrate shall authorise detention of the accused person in custody under that Section for a total period of sixty days, and further providing for the release of the accused person on bail on the expiry of the said period of sixty days. As it was felt by the Gujarat State Legislature that the provision for releasing the accused person on bail on the expiry of the period of 60 days was causing difficulties in complicated and Serious cases, where, for reasons beyond the control of the investigating officer, investigation was taking more time, it amended Section 167 by passing Act No. 21 of 1976 extending the period to 120 days where investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years as stated above. Thereafter, the Parliament by passing Act No. 45 of 1978 amended Section 167 by substituting proviso (a) to Sub-section (2) and numbering Explanation to Para (a) as Explanation II and inserting Explanation I before Explanation II so numbered and also by adding Sub-section (2-A) after Sub-section (2) of that section. Bearing in mind the objects why the above changes were required to be made and examining the scheme of the said provisions, it becomes apparent that the subsequent law made by the Parliament amending Section 167 of the Code is with respect to the same matter. It also becomes apparent that the two enactments contain inconsistent and irreconcilable provision so that they cannot stand together; that they both occupy the same field and it is not possible for both the statutes to operate without coming into conflict with each other. Both the laws prescribe different periods for which detention can .be authorised. It is difficult to imagine how both the provisions can be applied simultaneously. Therefore, Gujarat Act No. 21 of 1976,to the extent it is repugnant to Central Act No. 45 of 1978 must be held to have been impliedly repealed. We, therefore, hold that even in the State of Gujarat, Section 167 as amended by Central Act No. 45 of 1978 applies from the date the said Act came into force.
7. Such a question had also arisen before a learned single Judge of this Court in Criminal Reference No. 1 of 1981. He also took the same view which we have taken in these cases.
8. It was next urged by the learned advocate for the accused in Criminal Misc. Application No. 1318 of 1986 that as soon as the period of 90 days was over, the accused got a right to be released on bail; and, therefore, the learned Magistrate committed an error in not releasing them on bail and granting 15 days' time to the police to file charge-sheet. He also urged that the Sessions Court committed an error in rejecting the bail application made by the accused relying upon the judgment of this Court reported in State v. Alamzebkhan, 1985 (1) 26 Guj LR 492. It was submitted by him that as held by the Full Bench of this Court in Babubhai Parshottamdas v. State, 22 Guj LR 1232 : 1982 Cri LJ 284, the learned Sessions Judge ought to have released the accused on bail. He has placed reliance upon the following observations made by the Full Bench of this Court in that case :
Once the period of ninety days or sixty days is over and an application has been made on behalf of the accused showing his preparedness to furnish bail, the order must be passed without any delay to enlarge the accused on bail on such terms and conditions as the Magistrate deems proper. The power of the Magistrate to remand the accused to jail custody comes to an end with the expiry of ninety days or sixty days from the date when the accused was first produced before the Magistrate after his arrest in accordance with Section 167(1). That basic restriction on the power of the Magistrate to authorise detention of the accused concerned in jail custody must operate once the period of ninety days or sixty days, expires. That is the command of the Legislature and, if that is so, the fact that Section 167(2)(a) occurs in the chapter relating to investigation and trial is totally immaterial. Under Section 309, Sub-section (2), after first taking cognizance of the offence the Court may by a warrant remand the accused if in custody, but that power of remand has to be read in the light of the right entitlement of the accused to be released on bail once the period of ninety days or sixty days mentioned in Section 167(2) comes to an end.
He further submitted that the view taken by M. B. Shah, J. in Kantibhai v. State, 1985(1) 26 Guj LR 339, State v. Alamzebkhan, 1985 (1) 26 Guj LR 492 and Merabhai v. State, 1986 (1) 27 Guj LR 549 is not correct. On the other hand, the learned Additional Public Prosecutor has supported the view taken by our learned brother M. B. Shah, J. Whether the Full Bench decision stood impliedly overruled by the subsequent judgment of the Supreme Court in Lakshmi Brahman's case 1983 Cri LJ 839 (supra) was also considered by our learned brother N. H. Bhatt, J, in Misc. Criminal Application No. 2199 of 1985 decided on 22-11-1985. He was of the view that the Full Bench decision does not stand overruled by the decision of the Supreme Court in Lakshmi Brahman's case (supra).
9. In Lakshmi Brahman's case, (1976 Cri LJ 118) the Investigating Officer had failed to submit charge-sheet within the prescribed period. Thereupon two accused moved the Allahabad High Court with an application for bail under Section 439, Criminal P.C. Allahabad High Court, after examining the scheme of Section 167(1) and (2) held that on expiry of 60 days from the date of arrest of the accused, he would be entitled to an order for being released on bail if he is prepared to and does furnish bail, As the respondents in that case had not applied for time on the expiry of 60 days from the date of their arrest, the High Court further held that continued detention was not illegal. Even though no charge-sheet was submitted by the police till the date High Court was inclined to grant the application of the accused for being released on bail, it proceeded to examine the power of the Magistrate to whom the charge-sheet is submitted in case of an offence exclusively triable by the Court of Session for dealing with an accused after he is produced before him and before an order of committing the accused to the Court of Session as envisaged under Section 209 is made. In that process the High Court considered Sections 207, 209 and 309 of the Code. The High Court also noticed that there is no other section in the Code which provides for taking an accused in custody. It then held that even Section 309 would not enable the Magistrate to remand the accused to custody. Therefore, on this ground also the High Court felt compelling necessity to release the accused on bail. The Supreme Court 1983 Cri LJ 839 approved the view taken by the High Court as regards the right of the accused to be released on bail under Section 167. It, however, disagreed with the other view taken by the Allahabad High Court. The Supreme Court after interpreting Sections 207, 209 and 309 held that proceedings before the Magistrate since submission of the police report under Section 170 and till the order Of commitment is made under Section 209 would be an enquiry; and if it is an enquiry during the period the enquiry is completed, Section 309(2) would enable the Magistrate to remand the accused to custody. The Supreme Court has further observed as under :
The view taken by the High Court introduces a stage of compulsory bail not envisaged by the Code, and, therefore, also the view of the High Court cannot be upheld. According to the High Court after the accused is brought before the Court along with the police report, the Magistrate must forthwith commit the accused to the Court of Session because the Magistrate would have no jurisdiction in the absence of any provision to remand the accused to custody till the order committing the case to Court of Session is made. The view, with respect, is wholly untenable and must be set aside.
Thus, the view which was not approved by the Supreme Court was with respect to the interpretation put by the Allahabad High Court on Sections 207, 209 and 309 of the Code. As pointed out earlier, the view expressed by the Allahabad High Court with respect to the right of the accused under Section 167 of the Code was approved by the Supreme Court. Our learned brother M. B. Shah, J. in the case of Kantibhai v. State 1985 (1) 26 Guj LR 339 (supra) proceeded on the basis that the Full Bench of this Court had also taken the view similar to that of Allahabad High Court in Lakshmi Brahman's case (1976 Cri LJ 118). In our view, our learned brother M. B. Shah, J. was in error in proceeding on that basis. What was held by the Allahabad High Court in Lakshmi Brahman's case was that in cases of that type, there is no power in the Magistrate to remand the accused to custody after the charge-sheet is filed. That was not the view taken by this Court in Babubhai's case 1982 Cri LJ 284 (supra). After noticing right of the accused to be released on bail under Section 167 it further held that the Court after taking cognizance may, by proper order remand the accused if in custody. It further observed that the said power was required to be read in the light of the right of entitlement of the accused to be released on bail. That is how, this Court had reconciled the provisions of Sections 167,209 and 309. The Supreme Court has also taken the same view as has been taken by the Full Bench of this Court in Babubhai's case (supra). As pointed out above, our learned brother M. B. Shah, J. has taken a contrary view as he believed that this Court in Babubhai's case had taken the same view as was taken by the Allahabad High Court. In our opinion, that was an error committed by our learned brother. We are of the opinion that the view expressed by the Full Bench of this Court in Babubhai's case is consistent with the view expressed by the Supreme Court in Lakshmi Brahman's case. In that view of the matter, we further hold that the decision of the Full Bench of this Court in Babubhai's case does not stand overruled by the decision of the Supreme Court in Lakshmi Brahman's case; and the contrary view taken by our learned brother M. B. Shah, J. in the three cases referred to above is, with great respect to him, not correct.
10. The position of law, therefore, is that as soon as the period prescribed by Section 167 is over, 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. 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. If the accused makes an application for bail on the expiry of the prescribed period and no charge-sheet is filed till then, then it would be highly improper to keep his application pending so as to enable the police to file the charge-sheet and thus defeat the right of the accused to be released on bail. If after the accused is released on bail under Section 167 and it becomes necessary to take him in custody or on remand, the procedure as laid down under Section 437(5) will have to be followed.
11. Now, we come to the facts of these two cases. In Criminal Application No. 441 of 1986 the accused were released on bail as no charge-sheet was filed within a period of 90 days. The petitioners have, therefore, filed this application for cancellation of their bail. As the trial in that case is now over and the accused have been acquitted the application has now become infructuous and has to be dismissed. Rule issued in that application is discharged.
12. In Misc. Criminal Application No. 1318 of 1986, the accused had applied for being released on bail on the expiry of 90 days. The police, however, opposed that application and requested the learned Magistrate to grant 15 days' time so as to enable them to file the charge-sheet. That application was granted. The petitioners-accused, therefore, approached the Sessions Court with an application for bail. The learned Sessions Judge also rejected the same following the judgment of this Court in State v. Alamzebkhan 1985 (1) 26 Guj LR 492 (supra). In our opinion the learned Sessions Judge committed an error in rejecting the application on that ground. At the request of Mr. H. L. Patel, this application is treated as an application against the judgment and order of the learned Sessions Judge.
13. For the reasons stated above, this application is allowed. The judgment and order passed by the learned Sessions Judge in Criminal Misc. Application No. 89 of 1986 is set aside; and the matter is remanded to him with a direction to dispose of the same on or before 22-9-1986 in the light of the observations made in this judgment. Rule is made absolute accordingly.