JUDGMENT

AHMADI, J. (Majority view) (K. Ramaswamy, J. concurring):- Special leave granted.

2. Can bail granted under the proviso to sub-section (2) of Section 167 of the Code of Criminal Procedure, 1973 (hereafter called, the Code) for failure to complete the investigation within the period prescribed thereunder be cancelled on the mere presentation 3 of the challan (charge-sheet) at any time thereafter? This is the question which we are called upon to answer in the backdrop of the following facts.

3. A complaint was lodged against the appellant and others at Miraj City Police Station, District Sangli alleging commission of offences punishable under Sections 147, 148, 302 and 323 read with Section 149 IPC, in regard to an incident which took place at about 11 p.m. on 8th September, 1990. The appellant was arrested in that connection on the next day i.e. 9th September, 1990. The appellant thereafter made an application before the Sessions Judge, Sangli for being enlarged on bail. That application was rejected. The appellant approached the High Court but later withdrew the application and then once again moved the Sessions Judge, Sangli for bail under the proviso to Section 167 (2) of the Code on the ground that the investigation had not been completed within 90 days. The learned Sessions Judge by his order dated 11th March, 1991 directed the release of the. appellant on bail. After the charge-sheet was submitted and the documents were tendered subsequent thereto, the State of Maharashtra moved an application under Section 439 (2) of the Code in the High Court for cancellation of bail granted by the, Sessions Judge. The High Court by the impugned order dated 31st March, 1992 cancelled the bail. The High Court was of the view that since the learned Sessions Judge had granted bail on a technical ground, namely, failure to file the charge-sheet within the time allowed and since the investigation revealed the commission of a serious offence of murder, on the ratio of this Courts decision in Rajnikant Jeevanlal Patel v. Intelligence Officer NCB, New Delhi, (1989) 3 SCC 532 : (AIR 1990 SC 71) it was open to the High Court to direct cancellation of the bail. On this line of reasoning the High Court cancelled the bail and directed the appellant to surrender to the bail. In obedience to that order the appellant has surrendered to his bail. These, in brief, are the facts which have a bearing on the question under consideration.

4. Sub-section (1) of Section 167 insofar as it is relevant for our purpose. provides that whenever any person is arrested and detained in custody and it appears that the investigation cannot be completed within 24 hours and there are grounds for believing that the accusation or information is well founded, the officer-in-charge of the police station or the investigating officer not below the rank of Sub-Inspector shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary and forward the accused to such Magistrate. Sub-section (2) of Section 167 which has bearing on the question under consideration may be extracted at this stage :

"167 (2) :- The Magistrate to whom an accused person is forwarded under this section 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 has 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.

Provided that -

(a) the Magistrate may authorise the detention of the accused persons, 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,-

(i) ninety