The main legal point established in the judgment is the entitlement to bail after 90 days of detention and the limitations on the court's power to remand the accused beyond this period.

( 1 ) THESE petitioners are accused Nos. 13, 12, 8, and 14 respectively in C. C. 64/84 pending on the file of the J. M. F. C. , Shorapur, Gulbarga District, They and others have been charge-sheeted for various offences including the offence of murder.

( 2 ) THEY were arrested in this connection by the Shorapur Police in their Crime No. 51 of 1983 on 8-11-1983 at about 5-30 a m. and were produced before the jurisdictional Magistrate at about 8 p. m. on that very day. The Learned Magistrate exercising his powers under Section 167 of the code remanded them to custody from time to time till 7-2-1984. On 6-2-1984 the accused requested the J. M. F. C. , through an application to release them on bail and offered sureties on their behalf. When this application was pending consideration that very day i e. , 6-2-1984 at 4. 45 p. m. the police placed their final report in the case.

( 3 ) IF the date of arrest of these accused. e. , 8-11-4983 is also taken into consideration or reckoned in counting the period of 90 days, that period of 90 days expires or had expired at the end of 5-24984,. e. , by mid-night of 5-2-1984.

( 4 ) NOW we will assume that after the police filing the final report, the Learned Magistrate had taken cognizance of these offences. Even then, according to the Learned Counsel for the petitioners, his clients' right to get them-selves released on bail in accordance with the proviso to sub-section (2) of Section 167 of the Code of Criminal Procedure (Code) cannot be taken away. Whereas, according to the Learned State Public Prosecutor, the moment the Learned Magistrate takes cognizance of the offence, Section 167 of the Code ceases to apply and Section 309 of the code takes its place in the matter.

( 5 ) IT is true, Section 309 of the Code comes into play if the Magistrate in any enquiry or trial pending before him adjourns the enquiry or trial for some valid reason but wants to detain the accused during the pendency of the enquiry or trial as the case may be. Sub-section (l) of Section 309 says that in such an event he (the Magistrate) "may by a warrant remand the accused if in custody. . . . but he shall not remand for a term exceeding 15 days at a time. " Apart from relying on section 309, the other ground on which the learned Public-Prosecutor opposes the claim of the accused is that the 90 days period had not expired since their date of arrest in a case like this ought to be excluded.

( 6 ) THE question that arises for consideration in this petition is as to whether the accused could have been remanded beyond 6-2-1984 by the Court below either in exercise of its powers U/s. 167 or U/s. 309 of the Code.

( 7 ) SUB-SECTION (2) with its proviso and the two explanations and sub-section (1) of Section 167 which are relevant for our purpose may be noted :

"167 (1) :- Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty four hours fixed by Section 57, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate. (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 consider a 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 de