G.K. Misra, C.J.
1. Facts may be stated in brief. The alleged occurrence took place on 8th of March, 1974 at about 8 P. M, on a Dola Purnima day. Petitioners with others went to the temple of deity Sarana Mahadeb for performing Naudi dance. From there they proceeded towards the house of Babana Parida. father of petitioner No. 1. On the wav thev had to Dass through the Sahi (lane) of Damei parida (informant). The people of that Sahi were performing Naudi dance in front of the house of the informant. On the request of the -petitioners a passage was left for them. While the petitioners' party were going ahead, petitioner No. 1 is alleged to have given a push to one Alokha Parida. This led to a fracas between the two parties. Batakrushna Parida (petitioner No. 3) stabbed one Dinabandhu Parida on the chest with a knife. There was mutual assault and a person from amongst the Dartv of the informant died. The F. I, R. was lodged 'on 9-3-1974 at Jagatsingpur Police Station. Investigation was taken uo under Sections 147, 148, 307 and 302/149. I.P.C. against the petitioners and fdur others who were arrested on 14-3-l974. Charge sheet has .not been submitted. Four of them were released on bail by the learned Sessions Judge'on 22-6-1974. Petitioners' prayer for bail was. however rejected as there was prima facie evidence against them of having been involved under Section 302/149, I.P.C. This application has been filed bv the petitioners for being enlarged on bail while investigation is still pending and charge sheet has not been filed. At the instance of the petitioners one F. I. R. was lodged as some of the members of their party received iniuries. We are. however, not concerned with that F. I. R, in this case. .
2. Mr. Mohantv raised two contentions :
(i) The materials collected in course of investigation do n6t make.out a prima facie case of the involvement of petitioners in an offence under Section 302, I.P.C. and do not justify refusal of the prayer for bail.
(ii) The petitioners having been arrested for more than sixty davs thev are entitled to bail as of right under proviso (a) to Section 167 of the Code of Criminal Procedure. 1973 (hereinafter to be referred to as the new Code).
3. On a careful hearing of the arguments advanced bv Mr, Mohantv and the learned Standing Counsel we are satisfied that there are enoush materials implicating the petitioners in an offence under Section 302/149, I.P.C. It is not necessary to refer to the materials in detail ii* an application for bail. There is no justification for interference with the order of the learned Sessions Judge refusing bail on facts.
4. The legal contention advanced by Mr. Mohanty. however, reauires closer examination. Section 167 of the new Code, so far as relevant, mav be extracted.
167. Procedure when investigation cannot be completed in twenty four hours.
(1) Whenever anv person is arrested and detained in custody, and it anpears' that the investigation cannot be completed within the period of twentvfour hours fixed bv 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-InsDector. shall forthwith transmit to the nearest Judicial Magistrate a coov 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 mav. whether he has or has not iurisdiction 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 iurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he mav order the accused to be forwarded to Magistrate having such iurisdiction:
(a) the Magistrate mav 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 ex-ceeding sixty days, and. on _the expirv_pf the said period of sixty davs. 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 punposes of that Chanter.
xx xx xxEmphasising upon the underlined expression Mr. Mohantv contends that as the petitioners were arrested on 14-3-1974 and no charge sheet has vet been filed, they are entitled to be released on bail as a matter of right.
5. There cannot be any doubt that the provision enshrined in the underlined J.) expression is mandatory in character. It as full application to anv investigation initiated on or after 1-4-1974 when the tiew Code came into force, The only question for consideration is whether the proviso has any application. to an investigation pending under the Code of Criminal Procedure, 1898 Thereinafter to be referred to as the old Code).
6. It would be profitable at this stage to notice that Section 167 occurs in Chapter XII of the new Code. The Chapter is intituled as 'INFORMATION TO THE POLICE AND THEIR POWERS TO INVESTIGATE'. Sections 154 to 176 occur in this Chapter. All these sections pertain to collection qf evidence during investigation. 'Investigation' has been defined in Section 2(h) of the new Code corresponding to Section 4(1')(b) of the old Code.
7. In Section 2(h) of the new Code ''investigation' has been denned thus:
'investigation' includes all the 'proceedings under this Code for the collection of evidence conducted bv a police officer or bv anv person (other than a 'Magistrate1! who is authorised by a Magistrate in this behalf.
In : 1955CriLJ526 , (H. N. Risbud v. State of Delhi) the concept of 'investigation' was fullv analysed. It is an inclusive definition and is not exhaustive. Their Lordships summed up their conclusion in the following passage:
Thus, under the Code investigation 'Consists generally of the following steps: '(1) Proceeding to the spot, (2) Ascertain--ment of the facts and circumstances of the case. (3) Discovery and arrest of the suspected offender. (.4) Collection of evidence relating to the commission of the offence which may consist of (a) the exa-wiination of various persons (including the accused) and the reduction of their statements into writing, if the officer thinks fit. fb) the search of places or seizure of things considered necessary for the investigation and to be produced at the trial, and (5) Formation of the opinion as to whether on the material collected there is a case to place the accused before a Magistrate for trial and' if so taking the necessary step for the same by the filing of a charge sheet under Sec-ition 173.
This decision was followed in : 1959CriLJ920 . (The State of Madhva Pradesh v. Mubarak AID.
Sections 154 to 176 of the new Code deal with arrest of the suspected offenders and collection of materials as envisaged in the aforesaid passage. The very tieading of Section 167 shows the procedure to be followed when investigation cannot be completed in twenty four hours.
8. The various sections under Chapter XII relate to matters of procedure in investigation. New procedural law is ordinarily retrospective in operation but Section 484 of the new Code which deals with repeal and savings enacts otherwise showing the contrarv intention. Section 484(2)(a) runs thus:
(a) if, immediately before the date on which this Code comes into force, there is any appeal, application, trial, inquiry or investigation pending, then, such appeal, application, trial, inauirv or investigation shall be disposed of, continued, held or made, as the case mav be, in accordance with the provisions of the Code of Criminal Procedure. 1898 (5 of 1898), as in force immediately before such commencement, (hereinafter referred to as the old Code), as if this Code had not come into force:
XX XX XXSection 484(2)(a) is clear that investigation initiated prior to 1-4-1974 shall be disposed of in accordance with the provisions of the old Code.
9. It is, however, contended by Mr. Mohanty that the underlined expression in .proviso (a) to Section 167(2) does not relate to investigation and is a part of the power of the Magistrate to grant bail under Chapter XXXIII of the new Code and asv such it has application to investigation proceedings pending bv 1-4-1974 if sixty davs had alreadv elapsed from the date of the investigation.
10. The contention is not sound. As has alreadv been discussed, the provision for arrest, detention and remand during investigation is incorporated in Section 167 under Chapter XII of the new Code dealing with investigation. Proviso (a) to Section 167(2) is not a general provision relating to granting of bail as envisaged in Chapter XXXIII of the new Code but is integrally connected with the scheme relating to investigation regarding arrest and remand. The power to remand is exercised bv the Magistrate to .facilitate investigation. Under the old Code there was no provision for granting bail in Section 167 after the exoirv of sixty days from the date of initiation of the investigation. If investigation under the old Code has been saved bv Section 484(2)(a) of the new Code, then the power to remand without any restriction even after the expirv of sixty davs is saved and the question of granting bail as a matter of course under proviso (a) to Section 167(2) of the new Code after the expiry of sixty days does not arise. It is on this line of reasoning that the power to prant bail ibv the Magistrate under proviso (a) to Section 167(2) of the new Code cannot be exercised in respect of investigation proceeding pending bv 1-4-1974. The detention of the accused during investigation for any period without limitation Wag a part of the investigation under the old Code and that is fully preserved bv Section 484(2)(a) of the new Code. If investigation, under the old Code is saved, then Section 167 under the old Code would operate. If investigation }s to be continued under the old Code in respect of proceedings pending bv 1-4-1974, necessarily Section 167. as it stood under the old Code would applv.
11. On the aforesaid analysis, we do not find anv substance in the legal contention also. The application fails and is dismissed.
B.K. Ray, J.
12. I agree.