Judgment

DESAI, J.:- Respondents Lakshmi Brahman and Naval Garg were suspected of having committed an offence punishable with death or imprisonment for life under Section 302 IPC. Both of them surrendered before the Magistrate on November 2, 1974 and were taken into custody. The investigation was then in progress. The Investigating Officer failed to submit the charge-sheet against them within a period of 60 days as contemplated by sub-section (2) of S. 167 of 1973 Code prior to its amendment by the Criminal Procedure Code (Amendment) Act, 1978 which enlarges the period from 60 to 90 days where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years. In this case we are concerned with the proviso to Sec. 167 (2) of the Cr. P. C. 1973 prior to its amendment in 1978. It appears that the Investigating Officer failed to submit the charge-sheet within the prescribed period and according to the High Court till as late as Feb. 5, 1965. Thereupon the two respondents moved an application under Section 439 of the Cr P. C. invoking the power of the High Court to grant bail to any person accused of an offence, even where the offence is punishable with death or imprisonment for life.

2. A Division Bench of the Allahabad High Court which heard the application was of the opinion that after the charge-sheet has been submitted under S. 170 Cr. P. C., the Magistrate has no jurisdiction to authorise the detention of an accused in custody under Section 167 Cr. P. C., and, therefore, the authority to remand the accused to custody after the charge-sheet has been submitted, has to be gathered from other provisions of the Code. The High Court then posed to itself the question whether in a case instituted upon a police report exclusively triable by the Court of Session, the Magistrate while committing the accused to the Court of Session under Section 209 Cr. P. C. has, after the accused is brought before him and before the order committing the accused to the Court of Session is made, jurisdiction to remand the accused to custody other than the police custody? The High Court was of the opinion that since after the enactment of Code of Criminal Procedure, 1973, the proceeding before the Magistrate under Chapter XVI of the Code would not be an enquiry within the meaning of the expression in Section 2 (g) and, therefore, Section 209 would not confer power on the Magistrate to commit the accused to custody. Proceeding along the line, the High Court held that in view of the provision contained in Section 207 read with Section 209 of the Cr. P. C. the Magistrate has to commit the accused forthwith to the Court of Session and only after the order of commitment is made. the Magistrate will have power to remand accused to the custody during and until the conclusion of the trial. The High Court accordingly held that the Magistrate has no jurisdiction, power or authority to remand the accused to custody after the charge-sheet is submitted and before the commitment order is made, and therefore the accused were entitled to be released on bail. So saying, the High Court directed that the respondents be released on bail pending the trial by the Court of Session. State of U. P. has preferred this appeal by special leave.

3. Respondents have not appeared even though served and the notice of lodgment of appeal has also been served upon them. As the respondents had not entered appearance, a fresh notice of the date of hearing the appeal was also issued, but the respondents have not chosen to appear at the hearing of the appeal. Mr. Prithviraj, learned counsel appeared for the appellant, State of U. P. At the commencement of the hearing of the appeal, we enquired from him as to what has happened to the case against the respondents, whether the trial had taken place, whether they were acquitted or convicted and whether any useful purpose would be served by hearing of the appeal which appears to u