JUDGMENT - A.V. SAVANT, J.:---Heard Shri Marwadi, for the petitioners and Smt. Pingulkar, Assistant Public Prosecutor, for the State.

2. This is an application for bail. The charge is under section 302 of the Indian Penal Code. The petitioners had earlier applied to the Sessions Court for bail on 26th October 1992 on the ground that though they were arrested on the 10th July 1992, the remand was obtained on the 11th day of July 1992 and the charge-sheet was filed on the 91st day i.e. to say on the 9th October 1992. In view of the decision of the Supreme Court in the case of (Cheganti Satyanarayana and others v. The State of Andhra Pradesh)1, reported in A.I.R. 1986 Supreme Court p. 2130, it is clear that the period of 90 days begins to run from the date of the order of remand and not from any earlier date when the accused was arrested. It does appear that the charge-sheet was despatched on the 8th October 1992, which was the 90th day, taking 11th July 1992 as the first day. However, the learned Sessions Judge took the view that after the charge-sheet was already submitted, the right if any, for being enlarged on bail under Proviso (a) to section 167(2) of the Code of Criminal Procedure was defeated and/or obliterated by the filing of the charge-sheet. In this view of the matter, the learned Sessions Judge rejected the prayer on that ground. On merits, it was held that there was an eye-witness and another witness whose evidence was sufficient to implicate the petitioner and there were reasonable grounds for believing that the petitioners were guilty of the offence punishable under section 302 I.P.C. It was also held that there was a possibility of the petitioners tempering with the prosecution evidence. It was on these grounds that the first application for bail was rejected on 29th October, 1992.

3. The petitioners then applied for bail again to the Sessions Court, which application was rejected on merits on 2nd April 1993. The petitioners thereafter submitted a third application which has been rejected on 14th May, 1993. It was held that the evidence on record, prima facie, shows that the petitioners were involved in the crime and since there was no change of circumstances, the application for bail was rejected.

4. Shri Marwadi for the petitioners has contended that though the first application for bail was filed on the 26th October, 1992, inasmuch as no charge-sheet was submitted within the statutory period of 90 days, the petitioners were entitled to be enlarged on bail under Proviso (a) to sub-section (2) of section 167 of the Code of Criminal Procedure. His contention is that such a right was absolute and indefeasible. On the other hand, Smt. Pingulkar for the State contends that the right, if any, of the accused to be enlarged on bail under Proviso (a) to sub-section (2) of section 167 was defeated by the filing of the charge-sheet before the accused could be ordered to be released on bail. On the filing of the charge-sheet, there was no such right which could be enforced, contends Smt. Pingulkar.

5. There are two Division Bench decisions of this Court which have considered the question as to whether the right of an accused to be released on bail on the expiry of the period of 90 days was so absolute and indefeasible that even if a charge-sheet was filed subsequently, before the application for bail was made, the accused was still entitled to bail under Proviso (a) to section 167(2). In (Shrawan Hanaji Undirwade and another v. State of Maharashtra)2, reported in 1976 Maharashtra Law Journal 654, a Division Bench of this Court, on a review of the relevant decisions, including the decision of the Supreme Court in A.I.R. 1979 Supreme Court 1465, (Natubar Parida and others v. State of Orissa)3, held that the detention of the accused beyond the period of 90/60 days was not ipso facto illegal. In a given case, despite the order of bail, the accused may not be able to avail of the order of bail and even Explanation 1 to the Proviso

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