The proviso (a) to Section 167(2) of the CrPC is mandatory and requires the release of an accused person on bail after 60 days of judicial custody, if the accused is prepared to and does furnish bail.

S. MADHUSUDAN RAO, J.

( 1 ) THE two petitioners are the first and the second accused in P. R. C. No, 4 of 1975 on the file of the II Additional judicial First Class Mrgistrate s Court, amalapuram. They were remanded to judicial custody along with five others on 30-5-1975 on the ground that they were concerned in Cr. No. 140/75 of the munmidivaram Police Station which is a case registered under Secs. 364, 342, 302, and 201 r. w. Sec 34 I. P. C. While the investigation was proceeding they were being remanded to judicial custody from time to time. As no charge-sheet was filed even by 4th August, 75, they submitted an application under Crl. M. P. No. 296/75 before the Magistrate requesting that they may be released on bail in so far as their custody pending investigation exceeded 60 days by then. They stated in the application that they were ready to furnish ball and that they were prepared tj abide by any conditions that might be imposed by the Court. The learned Magistrates adjourred the petitlo for leading on 7-8-75. While so, the police filed a charge sheet against the petitioners and others on 6-8-75 and the learned Magistrate took cognizance of offences u/s. 364, 342, 302 and 201 I. P. C. against the petitioners and others. After receiving the charge-sheet he passed an order remanding the petitioners to judicial custody under Sec. 309 (2) Cr P. C. Having passed the order of remand on 6-G-75 after taking cognizance of the offences, the learned Magistrate rejected the petitioner s application for bail in cri. M. P. No. 296/75 on 7-8-1978. This petition is directed against the said order of rejection dated 7-8 75.

( 2 ) SRI P. Shiv Shanker, the learned counsel for the petitioners contends that the proviso (a) to Sub-section (2) of section 167 of the new Code of Criminal procedure is mandatory and that after the expiry of the period of 60 days of detention in judicial custody, an accused person shall have to be released on bail, if he is prepared to and does furnish bail. It is argued that the 60 days detention of the petitioners expired by 30th July 1975 and when the petitioners filed an application in Crl. No. 296 of 75 on 4-8-75 stating that they were prepared to furnish ball, the learned Magistrate was not justified in postponing the disposal of the application till the 7th of August, 75. It is further contended that the order of remand passed by the learned Magistrate under Sec. 309 (2) of the new Code on the 6th of August, on receipt of the charge-sheet, Is illegal and invalid, In so far as the petitioners were by then not under proper legal custody and the order seeks to render otiose the time limit prescribed in the proviso (a) to sec-167 (2) of the Code.

( 3 ) SRI P. Ramchandra Reddy, the learned Advocate-General appearing for the State, in his usual candour, states that the act on of the learned Magistrate in continuing the detention of the petitioners beyond 60 days despite the petitioners readiness to furnish bail, cannot be justified

( 4 ) PROVISO (a) to Sub-section (2) of section 167 of the new Criminal Procedure Code reads as follows :" (A ). The Magistrate may 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 grinds exist for doing so, but no Magistrate shall authorize the detention of the accused person in custody under this section for a total period exceeding sixty days, and on the expiry of the said period of sixty days, the accused person shall be released on bail if he is prepared to and does furnish bail; and every person released on ball under this section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that chapter.

( 5 ) SECTION 309 (2) of the new Code to the extent relevant reads as follows: "if the Court, after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or

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