Ashok B. Hinchigeri, J.

The respondent registered Crime No.71/2008 for the offences punishable under Section 302 and 201 IPC.

2. It is not in dispute that the petitioners have been in judicial custody in connection with Crime No.163/2008 for the offences punishable under Section 399 and 402 IPC. The jurisdictional Court issued body warrant order on 17.05.2008. It is also not in dispute that the said order is received by the jail authorities on 19.05.2008. The charge-sheet ought to have been filed within 90 days from the date of the receipt of the body warrant order. But the same has not been done in the instant case. It is filed on the 92nd day, i.e. 19.08.2008. Meanwhile on the 91st day, the application under Section 167(2) Cr.P.C was filed on behalf of the petitioners. But the said application was rejected by the Magistrate by his order, dt. 23.08.2008.

3. Aggrieved by the said order and agitating his entitlement to statutory bail, this petition is presented.

4. Heard Sriyuths Anees Ali Khan, the learned Counsel appearing for the petitioners and Honnappa, the learned High Court Government Pleader for the respondent. The question that arises for my consideration is: whether an application for the grant of bail under Section 167(2) of the Code of Criminal Procedure has to be allowed on account of the default of the prosecution to file the charge sheet within the prescribed period, uninfluenced by the merits or the gravity of the case. To answer this question, it is necessary to peruse the provisions contained in Section 167(2) of the Code of Criminal Procedure.

5. Section 167(2) of Cr.P.C reads as follows:

"167. Procedure when investigation cannot be completed in twenty-four hours.-

.(1) xxx xxx xxx

(2) TheMagistrate 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 person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exists 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 days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;

.(ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-Section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;"

6. Theeffect of the afore-extracted proviso is that if the charge sheet is filed beyond the period of sixty days or ninety days, as the case may be, the accused persons are entitled to be released on bail. The object behind the salutary provision is to prevent incarceration of persons accused of offence for an unduly long period without any outer limit. In this context, it is worthwhile to refer to the Honble Supreme Courts judgment in the case of Rajnikantjivanlal Patel And Another Vs Intelligence Officer, Narcotic Control Bureau, New Delhi AIR 1990 SC 71, wherein it is held that the grant of bail under Section 167(2) proviso of Code of Criminal Procedure is legislative command and not Courts discretion. Paragraph 12 of the said judgment is extracted hereinbelow:

"12. An order for release on bail under proviso (a) t