The Magistrate's power to remand an accused to custody under Section 309 CrPC is only available after the Magistrate has taken cognizance of the offence, which requires a police report under Section 173(2) CrPC.

A. GANGADHARA RAO, J.

( 1 ) IN these two petitions, an important question of law is raised with regard to remand and bail during the course of Police investigation. One petition is filed by the State and another by the father of the deceased to cancel the bail granted to A. I. to A. 4 on 3-5-1975 by the Judical Second Class magistrate, Chirala.

( 2 ) THE brief facts leading up to the filing of these two petitions may be stated:- A. I. is the wife of the deceased. A, 2 is the father of A. I. and A. 3 and A. 4 are the sons of A 2. A preliminary charge sheet under section 302 read with section 34 I. P. C. and 201 read with sec. 34 i. P. C. was filed by the Inspector of police, Crime Branch, C. I. D. Hyderabad. on 3-5-1975 in the court of the Judicial magistrate of Second Class Chirala. In that charge sheet. It is stated that all the four accused caused the death of the deceased on the night of 5-1-1975 and in order to cause disappearance of the evidence, hese four accused with the assistance of some other persons removed the dead body in a cart and threw it m a canal. The dead body was discovered at about 9 or 10 a m. on the next day. In order to cover up her guilt, A. I. invented a story that the deceaed went out for answering calls of nature at about 5 a. m. on 6-M975 and thus ail the accused put the relations of the deceased on a wrong scenr. The then Inspector of Police, Chirala and the then sub Insbector of Police, Inkollu Poiice station, became parties to the offence of causing disappearance of evidence of murder by manipulating a false inquest report and registering a case on an incorrect report and they even tried to avoid posr mortem examination. In view of the involvement of the local Police the investigation has become difficult and complicated and it could not be completed therefore, it was prayed that the accused may be further remanded under section 309 Crl. P. C. pending completion of investigation and submission of the final charge sheet. It was further stated that a comprehensive charge sheet would be submitted against all the persons involved In the offences inquestion after the entire investigation was completed.

( 3 ) ON the saame day the learned magistrate passed an order releasing A. I to A. 4 on bail: The Inspector, C. B. C. I. D. was directed to complete investigation expeditiously and file a charge sheet. 4, In his order the learned Magistrate has stated that the preliminary charge sheet filed on that date was only a simple remand report to secure further remand against A. 1 to A,4 under section 309 Cr. P. C. that A. 1 to A. 4 were in custody under section 167 (2) Cr. P. C. since 5-3-1975 till that date I. e. 3-5-1975 i. e. for a total period of 60 days, that under the proviso to sec. 167 clause (2) Crl. P. C. it is mandatory that the accused should be released after completion of 60 days of detention if they are ready to furnish ball and that the accused were ready to furnish bail. He further held that section 309 crp. C. has no application for, that applies only to enquiry or trial but not to inyestigation. He also commented that the investigation was being done leis. urelyand according fo the convenience of the investigating officers. Consequently he directed the release of A. I to A. 4 on bail i am informed that on the same date, the accused furnished securities and were released on bail.

( 4 ) THE learned Public Prosecutor has cantended that the order of the learned magistrate is palpably wrong and he should no: have raleased the accused on bail. According to him, un-fer section 173 sub section (8) Cr. P. C. more than one charge sheet could be filed and so under Section 309 read with Explanation (I) Cr. P. C. the Magistrate is competent to remand the accused even though they were in custody for more than 60 days under section 167 Cr P. C.

( 5 ) THE petitioner who is the father of the deceased has contended that it is immaterial whether the investigation was completed and a final charge sheet was file

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