ORDER
S.C. Agrawal, J.
1. Both these bail applications filed under Section 439, Cr. P.C. raise common questions for determination, and, therefore, they are disposed of by a common order,
2. In Bail Application No. 721 of 1981 the applicants are Beni Madhava, Brijlal, Sobedar and Shivram. On the basis of a report given by one Motilal Of village Beri to Shri Nensingh, Assistant Sub-Inspector, police Station, Weir on July 4, 1981, a case under Sections 438 and 307, I.P.C. was registered. In connection with the aforesaid case the accused-applicants, Beni Madhava. Brijlal and Subedar were arrested on Jan. 19, 1981. Accused-applicant Shivram was arrested on Feb. 20, 1981. They were remanded to judicial custody from time to time by the Munsiff and Judicial Magistrate, Weir, By order, dated April 13, 1981 the Judicial Magistrate remanded the accused-applicants to judicial custody till April 27, 1981. In the meanwhile, on April 18, 1981 the S.H.O.P.S. Weir filed the challan against the accused-applicants and other accused persons in the Court of Judicial Magistrate, Weir under Sections 395, 397. 398 and 307, I.P.C. Before that the accused applicants Beni Madhava, Brijlal and Subedar moved a bail petition which was rejected by the Sessions Judge, Bharatpur by his order, dated March 10, 1981. The bail petition filed by the accused petitioner Shivram. was rejected by the Addl. Sessions Judge, .Bharatpur dated June 8, 1981. Thereafter the petitioners moved this bail petition.
3. In Bail Application No. 802 of 198l the applicants are Shriram and Bangali. On the basis of a report lodged by one Johari at P.S. Rajakhera on March 15, 1981 a case under Sections 395, 397 and 398, I.P.C. was registered and in connection with the aforesaid case the accused-applicants were arrested on April 7. 1981. They were remanded to the Judicial Magistrate No. 1, Dholpur from time to time, by order, dt. July 1, 1981, they were remanded to judicial custody by the Additional Munsiff and Judicial Magistrate till July 15, 1981. In the meanwhile on July 3, 1981, the challan was filed in the Court of Additional Munsiff and Judicial Magistrate No, 1, Dholpur. The accused-petitioners filed a bail petition which was rejected by Additional Sessions Judge No. 1, Dholpur by his order, dated June 10, 1981. Thereafter the accused-petitioners have moved this bail application.
4. Shri N. L. Tibrewal, the learned Counsel for the accused-petitioners, in Bail Application No. 721/81 and Shri R.P. Goel, the learned Counsel for the accused-petitioners. in Bail Application No, 802/81, have both submitted that in view of the provisions contained in the proviso to Sub-section (2) of Section 167 of the Cr. P.C. 1973 (hereinafter referred to as 'the new Code'), the detention of the accused-petitioners after the expiry of 90 days from the date of their arrest was without authority of law and since n0 order of remand under Section 30 of the new Code was passed before the expiry of aforesaid period of 90 days from the date of their arrest, the accused-petitioners are entitled to be released on bail under the provisions of proviso to Sub-section (2) of Section 167 of the new Code. In this regard the learned Counsel have pointed out that in Bail Application No. 721/81 accused-petitioners, Beni Madhava, Brijlai and Subedar, are entitled to be released on bail under the aforesaid provisions of the proviso to Sub-section (2) of Section 167 of the new Code and inasmuch as they were arrested on Jan. 10, 19&1 and the period of 90 days expired on April 18, 1981 and their detention after April 18, 1981 was unauthorised. Similarly in Bail Application No. 802/81 it is submitted that the accused-petitioners had been arrested on April 7, 1981 and the period of 90 days expired on. July 6, 1981 and their detention after July 6, 1981 is unauthorised. In this context the submission of the learned Counsel for the accused-petitioners was that the power of remand under Section 309 of the new Code can be invoked only after the competent Magistrate has taken cognizance of the offences under Section 190 of the new Code and that on the basis of the order, dated April 18, 1981, passed by the Judicial Magistrate, Weir in Bail Application No. 721/81 and order, dated .July 3, 1981, passed by the Judicial Magistrate, Dholpur in Bail Application No. 802/81 it cannot be said that the Magistrates concerned had taken cognizance of the offences disclosed against the accused-petitioners before the expiry of 90 days from the date of the arrest of the accused-petitioners. In support of the aforesaid submission' the learned Counsel for, the petitioners have placed reliance on the decision of the Supreme Court in Natabar Parjda v. State of Orissa : AIR1975SC1465 and the decisions of this Court in Khinydan v. State of Raiasthan 1975 WLN 132 : 1975 Cri LJ 1984 and Prem Raj v. State of Rajasthan 1976 Raj LW 8 : 1976 Cri LJ 455.
5. At this stage it may be noted that Shri Tibrewal .has conceded that a accused-petitioner. Shiv Ram, in Bail Application No. 721/81 is not entitled to invoke the provisions of the proviso to Sub-section (2) of Section 167 because he was arrested on Feb. 20, 1981 and the Judicial Magistrate had taken cognizance and passed the order of remand under Sub-section (2) of Section 309 before the expiry of 90 days from the date of his arrest.
6. The learned Public Prosecutor, on the other hand, has submitted that the accused-petitioners are not entitled to be released on bail under the proviso to Sub-section (2) of Section 167 of the new Code because before the expiry of period of 90 days from the date of their arrest the investigation had been completed and the charge-sheets had been filed in the Court of the concerned Magistrate. According to learned Public Prosecutor the provisions of the proviso to Sub-section (2) of Section 167 of the new Code can be invoked only in those cases where the investigation is not completed within the period prescribed in the said provisions. The learned Public Prosecutor has also submitted that in both the cases the accused persons have been committed for trial to the Court of Session and the provisions of the proviso to Sub-section (2) of Section 167 of the new Code are not applicable to the accused after they are committed to the Court of Session. In support of the aforesaid submissions the learned Public Prosecutor has placed reliance on the observations of the Supreme Court in Dadasaheb Krishnarao Patil v. Sarupa Jivaba Charapals 1979 Cri LR (SC) 80. The learned Public Prosecutor has also submitted that even if the detention of the accused-petitioners after the expiry of the period of 90 days from the date of the arrest of the accused-petitioner is held to be illegal in view of the proviso to Sub-section (2) of Section 167 of the new Code, the legality of the detention has to be examined with reference to the date when the Court examines the matter and if the subsequent detention is not illegal, the earlier illegality in the detention would not entitle the accused to be released on bail. In that regard the learned Public Prosecutor has placed reliance on the decision of this Court in Kana v. State 1979 Raj LW 538 : 1980 Cri LJ 344. The learned Public Prosecutor has also submitted that in the present cases the orders that were passed by the Magistrate concerned after the filing of the charge-sheets against the accused-petitioners, show that cognizance had been taken by the Magistrate concerned before the expiry of the period of 90 days from the date of the arrest of the accused-petitioners and, therefore, the provisions of proviso to Sub-section (2) of Section 167 of the new Code cannot be invoked by the accused-petitioners.
7. Since the aforesaid contentions involve the question as to the legality of the detention of the accused-petitioner, it would be necessary to take note of the various provisions contained in the new Code which empower the detention of an accused person in custody prior to his conviction. A perusal of the provisions contained in the new Code will show that provision is made for detention of an accused person in custody before conviction in Sections 57, 167, 209 and 309. Section 57 lays down that no police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under Section 167, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court. Section 167 lays down the procedure to be followed when investigation cannot be completed in twenty-four hours and Sub-section (1) of Section 167 provides that 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 relating to the case, and shall at the same time forward the accused to such Magistrate, Under Sub-section (2) of Section 167 the Magistrate to whom an accused person is forwarded 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 hag 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. Clause (a) of the proviso to Sub-section (2) of Section 167 (as substituted by Act No. 45 of 1978) provides that a Magistrate may authorise the detention of an 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 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 and for a total period exceeding sixty days, where the investigation relates to any other offence. The said proviso further provides that 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 Sub-section (2) shall be deemed to be so released under the provisions of Chap. XXXIII for the purposes of that Chapter. The other provisions contained in Section 167 are not relevant for the purpose of the present case. Sub-section (a) of Section 209 (as substituted by Act No. 45 of 1978) which deals with commitment of the case to a Court of Session when offence is triable exclusively by it, lays down that 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 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 t0 the provisions of the new Code relating to bail, remand the accused to custody until such commitment has been made. Sub-section (2) of Section 209 provides that subject to the provisions of the new Code relating to bail, the Magistrate shall remand the accused to custody during and until the conclusion of the trial. Section 309 deals with the power to postpone or adjourn proceedings in every inquiry or trial. 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 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. The first proviso to Sub-section (2) of Section 309 provides that n0 Magistrate shall remand an accused person to custody under the said section for a term exceeding fifeen days at a time.
8. The aforesaid provisions contained in the new Code show that the power of a police to detain an accused person in custody under Section 57 is confined to twenty-four hours and detention for a period exceeding twenty-four hours is permissible only if authorised by a Magistrate. The Magistrate can authorise detention during the pendency of the investigation under Section 167 and detention during the pendency of the trial after cognizance has been taken by the Magistrate is provided for in Sub-section (2) of Section 309. In respect of cases which are triable exclusively by a Court of Session provision for detention of an accused person during the pendency of the commitment proceedings before the Magistrate is provided for in Section 209. In Natbar Parida v. State of Orissa 1975 Cri LJ 1212 (supra) the Supreme Court has considered the provisions contained in Sections 167 and 309 of the new Code and has observed that while Section 167 enables a Magistrate to remand a person in judicial custody during the pendency of the investigation only, Sub-section (2) of Section 309 of the new Code is attracted only after cognizance of an offence had been taken or commencement of trial has proceeded.
9. During the course of arguments a question arose as to whether in respect of offences which are exclusively triable by the Court of Session the provisions of Section 190 are applicable and a Magistrate is competent to take cognizance of such offence or whether the Court Of Session alone is competent to take cognizance of such offences in view of the provisions contained in Section 193 of the new Code, Sub-section (1) of Section 190 empowers a Magistrate of the first class and a Magistrate of the second class specially empowered in this behalf under Sub-section (2) to take cognizance of any offence either upon receiving a complaint of facts which constitute such offence or upon a police report of such facts or upon his own knowledge that such offence has been committed, Sub-section (2) of Section 190 makes provision for a Magistrate Of the second class being empowered by the Chief Judicial Magistrate to take cognizance of such offences as are within his competence to enquire into or try. This shows that while a Magistrate of the second class, if so empowered, can only take cognizance of such offences as are within his competence to inquire or try, there is no such limitation with regard to the powers of a Magistrate of the first class. The reason being that a Magistrate of the first class is competent to inquire into every offence irrespective Of the fact whether he is competent to try the same. Even in respect of offences triable exclusively by the Court of Session it is competent for a Magistrate of the first class t0 inquire into and conduct the proceedings for commitment of the accused for trial to the Court of Session. Such an inquiry is possible only after the Magistrate has taken cognizance of the offence under Section 190. Section 193 which lays down that except as otherwise expressly provided by the new Code or any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the accused had been committed to it by a Magistrate under the new Code, enables the Court of Session to take cognizance of the offence without commitment by a Magistrate in certain circumstances. One such circumstance is envisaged in Section 319 of the new Code which empowers the Court of Session to proceed against a person who has not been committed for trial to the Court of Session if it appears for the Magistrate that such person has committed any offence for which he could be tried together with the accused. The provisions of Section 193 do not, however, restrict the power conferred on the Magistrate under Section 190 to take cognizance of an offence which is triable exclusively by the Court of Session. In other words in every case whether triable by him or triable by Court of Session, a Magistrate of the first class is competent to take cognizance of the offence under the provisions of Section 190.
10. With regard to offences triable exclusively by Court of Session there has been difference of opinion amongst the High Courts on the question whether the commitment proceedings held by the Magistrate under Section 209 of the new Code can be regarded as 'inquiry' for the purpose of Sub-section (2) of Section 309 of the new Code so as to enable the Magistrate conducting the commitment proceedings to pass an order of remand during the pendency of the said proceedings. The Allahabad High Court in Lakshmi Brahma v. State 1976 Cri LJ 118 has expressed the view that commitment proceedings under Section 209 cannot be regarded as inquiry as contemplated by Sub-section (2) of Section 309. Whereas this Court in Ramjidas v. State of Rajasthan 1977 Cri LJ 591 and the Andhra Pradesh High Court in Chapalamedugu Bollayya v. State of A.P. 1978 Cri LJ 1347 have taken a contrary view and have held that commitment proceedings under Section 209 would be inquiry for the purpose of Sub-section (2) of Section 309 and it would be competent for the Magistrate to pass an order of remand during the pendency of the said proceedings. In Ramjidas v. State of Rajasthan (supra) this Court has observed that in case the commitment proceedings are not considered to be inquiry and the postponement necessitated because of non-availability of requisite copies as adjournment of inquiry, there would invariably be a hiatus and the Magistrate will not be able to detain a person who is accused of a serious offence and that the court should not interprete the word 'inquiry' in such a manner as to create this anomalous situation. In order t0 remove any doubt in that regard Parliament has amended the provisions of Section 209 by Act No. 45 of 1978 by substituting Sub-section (a) of Section 209. Under the amended provisions of Sub-section (a) of Section 209 it has been specifically provided that the Magistrate may remand the accused to custody until such committment has been made.
11. It must, therefore, be held that the power to make an order of remand under Section 167 is available only during the pendency of the investigation. Whereas the power to remand an accused to custody under Section 309(2) can be invoked only after cognizance has been taken and in respect of offences triable exclusively by the Court of Session also the power t0 remand an accused to custody can be exercised by the Magistrate after taking cognizance under Section 190 during the pendency of commitment proceedings under Section 209.
12. We may now come to the proviso to Sub-section (2) of Section 167 which has been inserted for the first time in the new Code. As observed by this Court In State of Rajasthan v. Bhanwaru Khan 1975 WLN 179 : 1975 Cri LJ 1981, the intention of the Legislature in enacting the said proviso appears to be to ensure that every investigation under Chap. XII must be completed without unnecessary delay and for that purpose a time limit is set to the total period of a series of orders of remand under Section 167. In the aforesaid case this Court while dealing with provisions contained in the proviso, as originally enacted has pointed out that before commencement of the new Code there had been a practice of filing incomplete charge-sheet by the police in many cases and on moving the Court for remand under Section 344 of the old Code, i.e. Code of Criminal Procedure, 1898, before the complete challan was forwarded to the Magistrate for taking cognizance of an offence and the said practice of doubtful legality had resulted in causing hardship and misery to the accused in undergoing detention on remand for a considerable long period and a satisfactory solution of this problem was considered and the Legislature, in its wisdom, empowered the Magistrate to extend the period of detention otherwise than in police custody, beyond 15 days subject, of course, to a maximum time limit of 60 days, if he is satisfied that sufficient grounds exist for granting such extension and that the aforesaid provision is intended as a check against prolonged investigation. Similarly in Gurcharan Singh v. State (Delhi Administration) AIR 1978 SC 179 : 1978 Cri LJ 129, the Supreme Court, has observed that 'this proviso is an innovation in the new Code and is intended to speed up investigation by the police so that a person does not have to languish unnecessarily in prison. The aforesaid period of 60 days that was. prescribed in the proviso, as originally enacted, was, however, felt to be insufficient in cases relating to offences punishable with death, imprisonment for life or imprisonment for a term not less than ten years and by the amendment introduced in the said proviso by Act No. 45 of 1978 a period of 90 days had been prescribed in the respect of investigations relating to an offence punishable with death, imprisonment for life or imprisonment for a term not less than ten years. The provisions contained in the proviso to Sub-section (2) of Section 167 have been held to be mandatory by this Court in Khinvdan v. State of Rajasthan 1975 Cri LJ 1984 (supra) and Prem Raj v. State of Rajasthan (supra),
13. In Khinvdan v. State of Rajasthan (supra) this Court has laid down that if the investigation is not completed within the period prescribed in the proviso and if no order of remand had been passed in accordance with Section 309 the detention of an accused person after the expiry of the period prescribed in the proviso becomes illegal and unauthorised and that the said illegal and unauthorised detention cannot be validated by an order of remand passed after the detention had become illegal and unauthorised and an accused person is entitled to invoke his right to be released on bail under the proviso.
14. In Kana v. State 1980 Cri LJ 344 (supra) this Court was dealing with the question as to whether an accused person whose detention was illegal and unauthorised due to the fact that no valid order of remand had been passed! under Sub-section (2) of Section 309, was entitled to be released on bail. This Court has applied the principle laid down by the Supreme Court in Ram Narain Singh v. State of Delhi : 1953CriLJ113 that in habeas corpus proceedings the Court is to have regard to the legality or otherwise of the detention at the time of the return and not with reference to the institution of the proceedings. This Court has laid down that the crucial date when the legality of the remand is to be looked into is the date when the petition comes up for hearing and that an accused person would not be entitled to be released on bail if the detention is legal at the time when the bail petition is filed/or it comes for consideration and that if the detention of the accused is legal at the time when the bail application is preferred his previous illegal detention should not be considered. In the aforesaid case, however, a distinction has been drawn between detention which becomes illegal on account of illegality in the order of remand under Sub-section (2) of Section 309 and illegality in the detention arising on account of the proviso to Sub-section (2) of Section 167 and in view of the decision in Khinvdan v. State of Rajasthan 1975 Cri LJ 1884 (supra) it has been held that in cases where Section 167 applies and where the detention of the accused cannot, be authorised exceeding period of 90 days and on this account the accused becomes entitled to be released on bail if he is prepared to and does furnish bail, would not be covered by the rule that the legality of the detention has to be considered with reference to the time when the bail petition is filed or it comes for consideration and his previous illegal detention cannot be considered.
15. In Dadasaheb Krishnarao patil v. Sarupa Jivaba Charapals 1979 Cri LR (SC) 80 (supra) the Supreme Court was dealing with an appeal against an order releasing the accused persons on bail under the proviso to Sub-section (2) of Section 167. The Supreme Court, while dismissing the said appeal, has observed that the order of the Supreme Court would not affect the application for cancellation of the bail which was pending before the Sessions Judge or affect the right of the complainant or State to make further application for cancellation of the bail of the accused persons and that the Sessions Judge shall dispose of the said application uninhibited by any order which may have been passed by the Supreme Court at the interim stage. In the said case, the Supreme Court has further observed that 'the Sessions Judge shall also not be deterred by the provisions of proviso to Sub-section (2) of Section 167 which is not applicable to the accused after they are committed to the Court of Session'. The report of the aforesaid decision is very brief and it is not possible to fully appreciate the background in which the aforesaid observations have been made. In my view the said observations can only be read to mean that provisions of proviso to Sub-section (2) of Section 167 are confined in their application to the stage of investigation and that by the time the accused had been committed to the Court of Session the stage of investigation is over and, therefore, the provisions of Section 167 including the provisions of the proviso to Sub-section (2) of Section 167 would not apply after the accused had been committed to the Court of Session. The aforesaid observations of the Supreme Court cannot be construed to mean that non-compliance with the provisions of second proviso to Sub-section (2) of Section 167 prior t0 the accused being committed to the Court of Session which rendered detention of the accused illegal, should be ignored. The very fact that the Supreme Court dismissed the appeal of the complainant and directed that the application for cancellation of the bail should be heard and disposed of by the Sessions Judge, indicates that the Supreme Court did not consider it a fit case to interfere with the order releasing the accused persons on bail on the view that the bail should not have been granted under the provisions of the proviso to Sub-section (2) of Section 167.
16. From the provisions contained in Sections 167, 209 and 309 of the new Code, when considered in the light of the decisions referred to above, the following principles can be deduced:
(i) The provisions of Section 167, including the provisions of the proviso to Sub-section (2) of the said section, govern the detention of an accused person in custody till the completion of the investigation;
(ii) Sub-section (2) of Section 309 authorises the detention of an accused person during the course of inquiry or trial after the Court has taken cognizance of the offence. In respect of the offences which are triable exclusively by the Court of Session the committing Magistrate can authorise the detention of the accused in custody during the pendency of the commitment proceedings;
(iii) An illegality in the detention of an accused person on account of absence of or any illegality in the order of remand under Sub-section (2) of Section 309 would not enable an accused person to be released on bail if there is valid order of remand at the time when the bail application has been filed or it comes for consideration;
(iv) An illegality in the detention of an accused person arising on account of non-compliance with the provisions of the proviso to Sub-section (2) of Section 167 cannot be cured by a subsequent order of remand under Sub-section (2) of Section 309 and the accused person would be entitled to be released on bail in spite of the fact that there is an order of remand under Section 309.
17. The question which requires consideration is as to when the investigation can be said to have been completed. According to the learned Public Prosecutor the investigation is completed when the investigating officer submits the report in accordance with the provisions of Section 173. In other words according to the learned Public Prosecutor the investigation is completed as soon as the charge-sheet is filed by the police before the Magistrate and that if the chargesheet is filed before the expiry of 90 days or 60 days from the date of the arrest of the accused person the provisions of the proviso to Sub-section (2) of Section 167 cannot be invoked. The learned Counsel for the petitioners have, on the other hand, submitted that investigation cannot be said to have been completed till the Magistrate examines the report filed by the investigation officer under Section 173 and after examining the said report takes cognizance of the offence or offences disclosed in the said report under Section 190. The submission of the learned Counsel is that mere filing of the charge-sheet would not be sufficient to exclude the operation of Section 167 and even if a charge-sheet has been filed within the periods prescribed in the proviso to Sub-section (2) of Section 167, but if the Magistrate has not taken cognizance of the offence under Section 190 the provisions of the proviso to Sub-section (2) of Section 167 would be attracted and the accused persons would be entitled to be released on bail.
18. The scheme of the provisions contained in Sections 167. 209 and 309 of the new Code is that while Section 167 provides for detention of an accused person during the pendency of investigation, Section 209 provides for detention during the pendency of the commitment proceedings and Section 309(2) provides for detention of an accused person during the pendency of the trial or inquiry. The Legislature could not have contemplated that there would be hiatus between detention under Section 167 and detention under Section 309 or 209. The intention of the Legislature was that the authority to detain an accused person under Section 167 should extend till the said detention can be authorised under Section 309 or 209. The acceptance of the argument of the learned Public Prosecutor would mean that in cases where the Magistrate, due to some reason, is not able to consider the challan that is filed by the police before him and does not take cognizance of the offences disclosed in the challan under Section 190 on the day it is filed there would be no valid authority for the detention of the accused person during the period subsequent to the date of the filing of the challan by the police till the date the Magistrate examines the said challan and takes cognizance of the offence under Section 190. Such an anomalous situation would be avoided if it is held that the process of investigation is not completed and the detention of an accused person can be authorised under Section 167 till the Magistrate examines the police report and takes cognizance of an offence under Section 190.
19. In my opinion the contention of the learned Public Prosecutor that the investigation is completed when the report under Section 173 is filed by the police, cannot be accepted also for the reason that even after submission of the report under Section 173 it is open to the Magistrate to direct further investigation under Sub-section (3) of Section 156 (Abhinandan Jha v. Dinesh Mishra : 1968CriLJ97 . It cannot, therefore, be said that the process of investigation is completed as soon as a report under Section 173 has been submitted by the investigating officer before the Magistrate. The process of investigation can be said to have been completed only when the report submitted by the police under Section 173 has been examined by the Magistrate and he has passed an appropriate order on the said report. This would mean that the power to authorise the detention of an accused person under Section 167 is available not only till the filing of the report by the police but till the time the Magistrate examines the said report and has passed appropriate order on the same under Section 190 and the proviso to Sub-section (2) of Section 167 would be attracted and the accused would be entitled to be released on bail if the Magistrate has failed to take cognizance of the offence under Section 190 within the period prescribed in the said proviso irrespective of the fact that the police had filed the challan in the Court before the expiry of the aforesaid period prescribed in the proviso. If the Magistrate has taken cognizance of the offence under Section 190 within the period prescribed in the proviso, the provisions of Section 167, including the proviso to Sub-section (2) would cease to be applicable and any illegality in the detention of the accused person arising thereafter due to failure On the part of the Magistrate to pass an order of remand under Sub-section (2) of Section 309 or any illegality in such an order of remand, would not entitle the accused serson to be released on bail if there is a valid order of remand for the detention of the accused person on the date when the bail application is filed or it comes up for consideration.
20. Coming to the facts of the present cases it may be observed that there is no dispute that the charge-sheet had been filed before the expiry of period of 90 days from the date of the arrest of the accused person in both the bail applications. The only question which requires determination is whether the concerned Magistrate had applied his mind to the report and had taken cognizance of the offences disclosed in the report under Section 190.
21. In Bail Application No. 721/81 I have perused the order dated April 18, 1981 passed by the Judicial Magistrate, Weir and I find that in the said order the Magistrate has recorded the fact that the S.H.O. Weir had filed a challan under Sections 395, 397, 398 and 307, I.P.C. against the accused-petitioners, Beni Madhava, Brij Lai, Subedar, Lala-ram and Shivram and accused Sikander, Patiram, Nahar Singh, parpaie, Sachlanand and Heera who were absconding. In the said order the Magistrate has directed that a case under the aforesaid offences be registered against the accused persons. The Magistrate has further recorded that the case is already fixed for appearance of the accused on April 27, 1981 and that the matter be listed on April 27. 1981 for the purpose of handing over the copies of the papers. As regards the accused persons who were absconding the Magistrate directed that warrants for their arrest may be issued and the same may be delivered to the S.H.O., Weir for execution. In my view the aforesaid order passed by the Judicial Magistrate, Weir on April 18, 1981 indicates that the Magistrate had applied his mind to the report that was submitted by the S.H.O. and after taking into consideration the said report he took cognizance of the offence under Sections 395, 397, 398 and 307, I.P.C. that were disclosed in the said report as against the accused persons mentioned in the said report. In other words the Magistrate had taken cognizance of the offences on April 18, 1981, i.e. before the expiry of period of 90 days from the date of the arrest of the accused petitioners Beni Madhava, Brij Lal and Subedar. It cannot, therefore, be said that there has been non-compliance with the provisions, of the proviso to Sub-section (2) of Section 167. All that can be said is that after taking cognizance on April 18, 1981 the Magistrate should have passed an order of remand under Sub-section (2) of Section 309 and that after April 18, 1981 there was no valid order for the detention of accused petitioners Beni Madhava Brij Lal and Subedar under Sub-section (2) of Section 309. But this would not enable the said accused persons being released on bail because it is not disputed that orders of remand under Sub-section (2) of Section 309 have been passed on April 27, 1981 and thereafter. Since there has been no non-compliance with the provisions of the proviso to Sub-section (2) of Section 167 the accused petitioners, Beni Madhava, Brij Lai and Subedar, cannot be released on bail under the said proviso. AS regards merits, taking into consideration the facts and circumstances of the case I do not consider it a fit case in which the accused persons can be enlarged on bail. The bail application must, therefore, be rejected,
22. Similarly in Bail Application No. 802/81 I find that the charge-sheet was filed in the Court of Judicial Magistrate, Dholpur on July 3, 1981 and on that day the Magistrate passed an order wherein he has recorded that the challan has been presented by the A.P.P. In the said order it has been further recorded that the challan had been perused and it was directed that the case be registered. It has also been recorded in the said order that a copy of the challan be given to Shri Prem Bahadur, counsel for the accused, and it was directed that the papers be placed on the date already fixed. The aforesaid order, dated July 3, 1981, shows that after filing of the charge-sheet the Judicial Magistrate had, on July 3, 1981, after examining the papers, taken cognizance of the offences disclosed in the charge-sheet and since the aforesaid order, dated July 3, 1981 was passed before the expiry of period of 90 days from the date of the arrest of the accused-petitioners, Shriram and Bangali, it cannot be said that there is non-compliance with the provisions of the proviso to Sub-section (2) of Section 167 and the said accused persons cannot, therefore, ask for bail on the basis of non-compliance of the provisions of the said proviso. All that can be said is that on July 3, 1981. the Magistrate did not pass an order for remand under Sub-section (2) of Section 309 and there was no valid authority for the detention of the accused-petitioners after July 3, 1981. There is however, no dispute that on July 5, 1981, order of remand was passed under Sub-section (2) of Section 309 and, therefore, the fact that the detention of the accused-petitioners from July 3, 1981 up to July 5, 1981 was not authorised under any remand order passed under Sub-section (2) of Section 309. would not entitle the accused-petitioners to be released on bail. The bail application of the accused-petitioners, Shriram and Bangali. cannot, therefore, foe accepted.
23. Shri R.P. Goel, the learned Counsel for the petitioners, has, however, submitted that after the passing of the order dated June 10, 1981 by Additional Sessions Judge No. 1, Dholpur, dismissing the bail application of the accused-petitioners, certain further developments have taken place and that the accused-petitioners may be permitted to move a fresh bail application before the Sessions Judge in the light of the said developments. It is made clear that this order rejecting this bail application will not stand in the way of the accused-petitioners moving a fresh bail application before the Sessions Judge in the light of the developments which have taken place after the passing of the order, dated June 10, 1981 by the Additional Sessions Judge. ' 24, In the result, both the bail applications are dismissed.