JUDGMENT - MOHITE R.S., J.:---Rule. By consent rule is made returnable forthwith. Heard the parties.

2. This is an application filed by the State of Maharashtra through the Dy. Superintendent of Police C.I.D. (Crime), Nagpur seeking to quash an order dated 22nd August, 2002 passed below Exhibit 12 and Exhibit 16, granting bail in default to the non-applicants. The present application is filed by the State under section 482 of the Criminal Procedure Code, 1973.

3. The non-applicant No. 1 came to be arrested in connection with Crime No. 101/02 registered by Police Station, Ganeshpeth, Nagpur on 13-6-2002. The non-applicant No. 2 was arrested in the same crime on 14-6-2002. Crime No. 101/2002 has been registered by Police Station, Ganeshpeth on 29-4-2002 for the offence punishable under sections 406, 409, 468 read with section 34 of the Indian Penal Code.

4. On 19-8-2002 the non-applicant No. 1 moved a bail application under section 437 r/w section 167(2) of the Cri.P.C. on the ground that the police had not filed a police report within the prescribed period of 60 days. Similar application came to be moved on behalf of the non-applicant No. 2 on 21-8-2002.

5. By the common impugned order dated 22-8-2002, the Judicial Magistrate, First Class, Court No. 1, Nagpur came to the conclusion that as charge-sheet has not been filed inspite of expiry of 60 days, a right had accrued in favour of the non-applicants to be released on bail, in view of the provisions of section 167(2)(a)(ii) of the Criminal Procedure Code.

6. I have perused the impugned order. In the present case one of the offence alleged to have been committed is under section 409 of the Penal Code. The offence punishable under section 409 I.P.C. is punishable with imprisonment for life, or with imprisonment of either description for a term which may extend to 10 years and also with fine. For the sake of convenience, section 409 is reproduced herein below:

409. Criminal breach of trust by public servant, or by banker, merchant or agent

"Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extent to ten years, and shall also be liable to fine."

7. Section 167(2) provides as under:

"(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try 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."

8. On plain reading of section 167(2)(a) Cri.P.C., it is clear that the Magistrate can authorise the detention of the accused person otherwise than in the custody of the police beyond a period of 15 days if he is satisfied that grounds exist for doing so but he cannot authorise detention of the accused person in custody for a total period exceeding 90 days where the investigation relates to an offence punishable with death or imprisonment for life or imprisonment for a term not less than 10 years.

9. In the present case section 409 I.P.C. being punishable with imprisonment for life, would be an offence as contemplated under section 167(2)(a)(i) of Cri.P.C.

10. It is argued on behalf of the non-applicants that what should be taken into account by the Court in deciding whether an offence falls under section 167(2)(a)(i) is; whether a Magistrate can be said to have the power to punish with a sentence of imprisonment which could be less than 10 years. The argument is that for an offence under secti

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