G.P. Singh, C.J.
1. This revision is directed against the order dated 19th December, 1981 of the Judicial Magistrate First Class. Jabalpur, by which he dismissed the applicants' application for bail.
2. This revision first came up for hearing before a learned single Judge (Seth, J.) who by his order dated 11th February, 1982, referred it to a Division Bench.
3. The facts briefly stated are that the applicants Umashanker, Ramchandra and Raju alias Rajendra were arrested by the police of Lordganj Police Station, Jabalpur, on 18th September, 1981, for offences Under Sections 364, 365 and 302 of the Penal Code which were registered against them in the said Police station. They were produced from time to time before the Judicial Magistrate, First Class, Jabalpur, and were remanded to judicial custody. The last remand was granted on 8th December. 1981, which was to expire on 22nd December, 1981. An application for bail under Proviso (a) to Section 167(2) of the Criminal P.C. 1973, was made on behalf of the applicants by their counsel on 19th December, 1981 at 11.00 am. It was stated in the application that the applicants were in continuous custody for more than 90-days. It was also stated that no charge-sheet till then had been filed and that the applicants were prepared to furnish bail to the satisfaction of the Court for release on bail. It appears that no order was passed on this application. A chalilan against the applicants was filed by Lordganj Police in the Court on the same date L e., on 19th December, 1981, at 1.45 p.m. The Magistrate on receipt of the challan directed that the case be registered. He further directed the prosecution to produce the seized property In the case within 3 days. He also noted that the accused persons were already on remand till 22nd December, 1981, and ordered that the case be put up on that date. The bail application was taken up after this order was passed and it was dismissed on the ground that the remand Under Section 167(2) stood altered to one Under Section 309 and, therefore, the proviso to Section 167(2) was not applicable and the applicants could not be released on bail. It is this order which is challenged by the applicants in this revision.
3A. The provisio to Section 167(2) was enacted as a drastic remedy for requiring investigations to be completed. The Joint Committee in this connection observed : 'There is a persistent complaint that investigations are not being completed quickly by the Police and that in many cases accused persons are kept the detention for a very long period causing hardship and misery to such undertrial prisoners and their families. Although some provisions are already there in the existing Code requiring investigations to be completed quickly, they have not had the desired effect. The Committee feels that a drastic remedy is called for in this behalf. The Proviso as originally enacted with this purpose authorised the detention of the accused person in custody Under Section 167 for a maximum period of 60 days and it clearly said that 'on the expiry of the said period of 60 days, the accused person shall be released on bail if he is prepared to and does furnish bail and every person released on bail under this section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter'. This proviso first, came up for construction before the Supreme Court in Natabar Parida v. State of Orissa : AIR1975SC1465 . It was held in that case that if the investigation was not completed within 60 days, even in serious offences, there was no discretion left with the Court and it was obligatory to release the accused on bail. It was also held that this release was deemed to be one under Chapter XXXIII, and the accused could be arrested and committed to custody only Under Section 437(5) of the Criminal P. C. It was also observed that it was clear that after the taking of the cognizance the power of remand was to be exercised Under Section 309 of the Code which did not prescribe any maximum period for that purpose. The Court was somewhat critical of the right conferred on the accused by the proviso to Section 167(2) to be released on bail if the investigation was not completed within 60 days even in serious and ghastly types of crimes and called H 'a paradise for the criminals'' under the command of the legislature. The proviso was amended after this ruling by the Amendment Act of 1978 to empower the Magistrate to authorise detention pending investigation for an aggregate period of 90 days in cases where the investigation relates to offences punishable with death, imprisonment for life or imprisonment for a term of not less than ten years or more; and up to 60 days in other cases. The right of the accused to be released on bail, if the investigation is not completed within this period, is still retained. In the words of the proviso, 'on the expiry of the said period of 90 days or 60 days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail and every person released on bail under this subsection shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter', An explanation has also been added by the Amending Act which declares that, notwithstanding the expiry of 90 days or 60 days, the accused shall be detained in custody so long as he does not furnish bail. It is noteworthy that in spite of the criticism by the Supreme Court that the proviso was a paradise for the criminals under the command of the legislature, the amendment made in 1978 did not take away the right of the accused to be released on bail and the only substantial change made was to authorise the detention in custody of the accused pending investigation in serious offences up to maximum period of 90 days instead of 60 days. The proviso again came up for interpretation before the Supreme Court in Hussainara Khatoon v. State of Bihar : 1979CriLJ1052 . It is laid down in this case that when an under-trial prisoner is produced before a Magistrates and he has been in detention for 90 days or 60 days, as the case may be, the Magistrate must before making an order of further remand to judicial custody point out to the undertrial prisoner that he is entitled to be re-aleased on bail. It. was also observed that the State Government must also provide at its own cost a lawyer to the undertrial prisoner with a view to enable him to apply for bail in exercise of his right under proviso (a) to Section 167(2).
4. A plain reading of proviso (a) makes it clear that an accused is entitled to be released on bail on the expiry of 90 days or 60 days, as the case may be, 'if he is prepared to and does funteh bail' The right to release arises on the exniry of the aforesaid period when the accused intimates the Court that he ; prepared to furnish bail although the release naturally has to follow as stated in the explanation when bail is furnished. The proviso does not in terms say that the accused has to make a formal written aoplication for exercising the that of being released on bail. All that has to do is to intimate that his nrenared to furnish bail that may be ordered by the Court. If he does so intimate the Court whether orally or in voting, the Court cannot refuse to pass an order directing his release on bail for want of a written application. Indeed as held by the Supreme Court in Hussainara Khatoon's case 1979 Cri LJ 1052) it is the duty of the Magistrate to Inform the accused that he has a right to be released on bail under the proviso and if the accused is prepared to furnish bail as ordered and does furnish bail, he has to be released. If a challan Is filed before the expiry of the maximum period for which an accused can be detained in custody Under Section 167 further remand to custody can be ordered Under Section 309. No maximum Deriod of remand is provided for Under Section 309. The Magistrate, however, cannot postpone the releaw of an accused under proviso (a) to Section 167(2) after the expiry of 90 days or 60 days, as the case may be, just to enable the police to file the challan and to alter the detention Under Section 167 to one Under Section 309. If the accused of his own or on being told of his right by the Magistrate, is prepared to furnish bail, the Magistrate must order the accused to be released on hail, without waiting for the challan and must release him when bail is furnished. In the instant case, the last remand Under Section 167 was granted on 8th December, 1981 up to 22nd December. 1981. The applicants were arrested on 18th September 1981 and were first produced before that Magistrate on 19th September 1981. The period of 90 days in any case expired on 17th December 1981 The Magistrate was clearly wrong in ordering remand up to 22nd December. 1981. He should have allowed remand only up to 17th December, 1981 directing nroduction of the applicants on 18th December 1981. It was his duty to tell the accused on that date that they were entitled to be released on bail in case they were prepared to furnish bail. The Magistrate was also in error in postponing the consideration of the application for bail when it was made at 11.00 a.m. on 19th December. 1981. before the challan was filed and cognizance was taken. The applicants could not be deprived of their right to be released on ball under proviso (a) to Section 167(2) by the Magistrate's inaction which enabled the flline of the challan before disposal of the bail application and the Magistrate ought to have allowed that anolication. The view that we have taken is supported by three Single Bench decisions of the (Mohanlal v. State of M. P., 1979 MPWN Note No. 143 Wurab J) Heerasingh v. State of M. P. Misc. Cri Case. No. 52 of 1980, D/- 2-2-19R2(Oza J.) and Prabhusinfgh v. State of M. P., Misc Cri. Case No. 1783 of 1981, D/-7-1-1982(Oza J.> V This conclusion is also in line with the view taken by the Delhi Wth. Court in Noor Mohd. v. State' ILB (1978) 2 D1W 442:1980 Cri L.T NOC 27) and the Rajasthan High Court In Premraj v. State of Rafasthan, 1976 Cri L.T 455. We also find suonort from the Full Bench decision of the Punjab High Court In Brave Singh v. State of Pun-lab. 1975 Cri LJ 1662, where it was held that there heed be no application for bail by the accused at all and the accused must be released on bail if he is prepared to furnish the same in case ha is already in custody for 90 days or 60 days as the case may be.
5. The learned Deputy Government Advocate, who appeared for the State, has relied upon a Davison Bench ruling of the Gujarat High Court in Umedsinh v. State : AIR1977Guj11 which was followed by single Bench of the Madras High Court in Pandi v. State, 1979 Cri LJ 1503. The view in these cases is that if pending an application for bail under proviso (a) to Section 167(2) a challan is filed, the right of the accused to get bail under the proviso ceases. With great respect we are unable to agree with this view. If an accused is not released on bail under proviso (a) to Section 167(2) after expiry of the maximum period of detention allowed under that provision due to inaction of the Magistrate although he is prepared to furnish bail, his right cannot be defeated by filing of the challan.
6. The revision is allowed. The order dated 19th December, 1981, passed by the Judicial Magistrate First Class, Jabalpur, dismissing the application for bail is set aside. The application for bail is allowed. The applicants shall be released on furnishing bail of Rupees 10,000/- each with one surety in the like amount to the satisfaction of the Judicial Magistrate First Class, Jabalpur.