P.D. Kudal, J.
1. This is the fourth bail application on behalf of the accused-petitioners under Section 439 of the Code of Criminal Procedure, 1973.
2. The brief facts of the case, which are relevant for the disposal of this bail petition are, that Ram Chandra lodged a First Information Report on 1-4-1977, alleging that his brother Bhikam was assaulted by Shiv Charan, Angana, Shiv Lal and Jailal. Bhikam succumbed to the injuries. The police registered a case under Section 302, IPC against the accused-petitioners. Shiv Charan and Angana have already been released on bail. The present bail petition is on behalf of Jailal and Shiv Lal.
3. Jailal was arrested on 3-4-1977 and Shiv Lal was arrested on 5-4-1977. The challan was submitted on 27-5-1977 in the Court. The concerned Magistrate had been transferred and so the Reader of the Court made an endorsement on 28-5-1977 that the challan be put up on 10-6-1977. That day being a holday, the challan was put up on 13-6-'1977, on which date it was directed to be put up for further action on 27-6-1S77.
4. On behalf of the accused-petitioner; it has been contended that there has been a violation of Section 167 of the Code of Criminal Procedure inasmuch as that the challan was not put up within 60 days; and as such, a right has accrued to the accused-petitioners to be enlarged on bail. The learned Counsel for the accused-petitioners has placed reliance on Fatima v. Rang Rao AIR 1954 Hyd 215, wherein it has been held that the inherent powers of the court to do justice cannot be exercised in disregard of the express provisions contained in the Code. Reliance was also placed on Vasu Deo v. State of U.P. : AIR1958All578 , wherein it was held that Sub-section (2) of Section 344, Cr. P. C. (Old) says that every order made under this section by a court other than a High Court shall be in writing signed by the Presiding Judge or the Magistrate,
5. Reliance was placed on Khinvdan v. State of Rajasthan 1975 Raj LW 308, wrerein it has been held that the accused is entitled by right to be released on bail if no challan is filed against him during 60-days after the date of his arrest
6. Reliance was also placed on Natabar Parida v. State of Orissa : AIR1975SC1465 , wherein it has been held that the law as engrafted in proviso (a) to Section 167(2) and Section 309 of the New Code confers the powers of remand to jail custody during the pendency of the investigation only for the former and not under the latter. Section 309(2) is attracted only after cognizance of an offence has been taken or commencement of trial has proceeded.
7. Reliance was placed on Sayeed Ahmad v. State 1978 Cri LJ 541 (All), wherein it has. been held that illegal detention of the accused constitutes ground for grant of bail. .
8. Reliance was also placed on Babu Singh v. State of U.P. : 1978CriLJ651 , wherein it was held that order refusing bail does not bar fresh application on later occasion giving more details, further developments and different considerations.
9. Mr. Mathur, learned Public Prosecutor, appearing on behalf of the State has contended that there is no merit in the bail application. He has drawn the attention of the Court to the order of remand to jail, which was issued by the learned Magistrate on 11-4-1977 for Jailal and for Shiv Lal on 15-4-1977. On the back of these orders of remand to jail, the learned Magistrate has indicated the dates on which the accused was to be produced in court. The various endorsements bear the signatures of the learned Magistrate, It was also contended on behalf of the State that the APP. submitted the challan in the Court on 27-5-1977. It was contended that even if the concerned Magistrate had been transferred then too the provisions of Section 167, Cr. P. C., 1973 had been substantially complied with. It was also contended that the detention of the accused-petitioners in custody cannot be said to be illegal detention' and as such, the accused-petitioners are not entitled to be released on bail.
10. In rejoinder, the learned Counsel for the accused-petitioners has contended that if the learned Magistrate had been transferred, then the prosecuting agency ought to have submitted the challan before the Chief Judicial Magistrate. Reliance is placed on Sections 12, 14(2) and 173 of the Code of Criminal Procedure, 1973. It was contended that mere filing of the challan in the Court, which had no Presiding Officer, is no substantial compliance of Section 167, Cr. P. C., 1973. It was also contended that the order of remand on which the accused petitioners had been sent to jail was under Section 344 of the old Code of Criminal Procedure. The order of remand has not been sent on proper form resulting in illegal detention of the accused person in custody. Reliance has been placed on Ram Narayan Singh v. State of Delhi : 1953CriLJ113 , wherein it has been held that those who feel called upon to deprive other persons of their personal liberty in the discharge of what they conceive to be their duty, must strictly and scrupulously observe the forms and rules of the law.
11. In the instant case, it would be seen that though the police officer is entitled to keep an accused person in custody not exceeding 24 hours under Section 57, Cr. P. C, yet the accused may be retained for a longer period as envisaged in Sub-section (2) of Section 167, Cr. P. C. In case the accused is produced before any Magistrate whether he has or has not jurisdiction to try the case, the Magistrate may authorise the detention of the accused in custody for a term not exceeding 15 days in the whole. The Magistrate having jurisdiction to try the case may authorise the detention upto 60 days, as envisaged in proviso (a) to Sub-section (2) of Section 167. In Section 170, Cr. P. C. the accused has to be forwarded to a Magistrate empowered to take cognizance if upon an investigation it appears to the officer-in-charge of the police station that there is sufficient evidence or reasonable ground for proceeding against the accused. Under Section 173, Cr, P. C., it has been provided that as soon as the investigation is complete, the Officer-in-charge of the Police Station shall forward to a Magistrate concerned to take cognizance of the - offence on a police report. The Magistrate is empowered to take cognizance under Section 190, Cr. P. C. If the case is triable exclusively by the Court of Session, then he has to act under the provisions of Section 209, Cr. P. C.
12. The basic question for consideration in the instant case is, whether by submitting the challan in the Court on 27-5-1977, compliance was made of Section 167, Cr. P. C. Submitting of a challan in a Court where the Presiding Officer has been transferred is totally different from production of the accused before a Magistrate as envisaged under Section 167, Cr. P. C. Under the second proviso to Sub-section (2) of Section 167, Cr. P. C. the Magistrate is not empowered to detain a person beyond 60 days. In the present case, as there was no Presiding Officer from 27-5-1977 to 27-6-1977, the detention of the accused persons was for a period exceeding sixty days. It, thus, appears that there was clear violation of the mandatory provisions of Section 167, Cr. P. C.
13. Having given my most anxious consideration to the respective contentions of the learned Counsel for the parties, I have no hesitation in holding that the detention of the accused persons was in violation of the mandatory provisions of Section 167, Cr. P. C. The accused-petitioners are, therefore, entitled to be enlarged on bail. It is accordingly ordered that the accused persons Jailal and Shivlal shall be relased on bail provided each one of them furnishes a personal bond in the sum of Rs. 10,00O/- with a surety in the like amount to the satisfaction of the learned Addl. Sessions Judge, Dholpur to appear before him on all dates of hearing and whenever called upon to do so.