The right to bail under Section 167 (2) of the Criminal Procedure Code is absolute and cannot be defeated by the lapse of time or filing of the charge sheet.

( 1 ) THIS Petition is filed by the petitioner under sections 439 and 167 (2) of Crl. P. C. praying for grant of bail to him in Crime No. 114 of 1989 of Nazarbad Police Station, Mysore City. Originally the petition was filed under Section 439, Crl. P. C. Subsequently, by an amendment, section 167 (2) of Crl. P. C. is also added, in addition to Section 439 of Crl. P. C. But, at the time of hearing of this petition, learned counsel for the petitioner submitted that this petition may be considered only under Section 167 (2), Crl. P. C.

( 2 ) I have heard the learned counsel for the petitioner and the learned Government Pleader fully and perused the records of the case.

( 3 ) THE case of the prosecution is as follows:-Deceased Savitha was the daughter of C. K. Ramu. The petitioner is an Instructor in the department of Tele Communications in Mysore. He was a tenant of C. K. Ramu. There was illicit intimacy between the petitioner and deceased savitha. He intended to marry her and when the parents of deceased Savitha resisted the proposal, there was some altercation between the petitioner and the family of deceased Savitha. On 30-9-1989 at about 9-30 a. m. in Siddartha layout near Karanji Tank Road, the Petitioner met Savitha and stabbed her with a knife and also attempted to commit suicide by stabbing himself on his stomach. Subsequently Savitha died in the hospital. The police registered a case on the complaint of one Manjunatha of Siddartha layout, a colleague of the petitioner, at Crime no. 114 of 1989 for the offences punishable under section 302 read with Section 307 and Section 309, I. P. C.

( 4 ) THE doctor who conducted the post-mortem examination over the dead body of the deceased has opined that the death of the deceased was due to bleeding and shock as a result of stab injury to heart and lever by single edged weapon and he noticed 10 injuries on the dead body of Savitha. In respect of the petitioner, the doctor noticed two incised wounds and the doctor has opined that the injuries were grievous in nature. In view of the post-mortem report on the dead body of deceased Savitha, it will have to be held that this is a case of homicidal death and also in view of the medical report in respect of the petitioner there appears to be aprima facie case for attempt on his part to commit suicide. The offence took place at 9-00 a. m. and there are statements of c. K. Ramu - father of the deceased Savitha, shanthi - mother of the deceased, Satishkumar - brother of the deceased and they have a spoken about the illicit intimacy between the petitioner and the deceased and resistance of the proposal of their marriage and the altercation between the petitioner and the family of the deceased. The police have recorded the statements of Syed dliyas Pasha and Shivanna who have stated before the police that the petitioner stabbed savitha with a knife and he attempted to commit suicide by stabbing himself on the stomach. In view of the statements of the eye witnesses, there is a strong prima facie case against the petitioner for an offence punishable with death or imprisonment for life.

( 5 ) BUT the petitioner is seeking bail notunder Section 439, Crl. P. C. but under the provisions of Section 167 (2), Crl. P. C. on the ground that the police have filed charge sheet more than 90 days after his arrest. The offence is alleged to have taken place on 30-9-1990 at 9-30 a. m. The petitioner was admitted into the hospital on that day and the petitioner got himself discharged on 12-11-1989 and he was taken into the custody of the police on 12-11-1989 and the charge sheet is filed on 13-2-1990. According to the contention of the learned counsel for the petitioner, the period of the petitioner's stay in the hospital also amounts to custody and, therefore, taking into consideration that period, the charge sheet is filed more than 137 days after the arrest of the petitioner. On the other hand, the learned Government Pleader contends that th