J. N. PATEL, J. :- The learned single Judge of this court while dealing with the application filed by the accused seeking their release on bail on the ground that the prosecution has failed to submit charge-sheet under section 167 (2) of the Criminal Procedure Code within the stipulated period i.e within 60 days from the date of their arrest, was required to make a reference to the larger bench and this is how matter has been assigned to us.

2. The question which is referred to the Division Bench can be culled out from para 7 of the order which reads as under:

"7. There is, therefore, a clear conflict on the issue whether the provisions of section 167(2) (a) (i) is attracted or the provision of section 167(2)(a)(ii) are attracted in respect of the decisions of two learned single Judges of this court on the one hand and the one learned single Judge of this court on the other hand. Therefore, in my view, it would be appropriate if the matter is referred to the Division Bench. Neither the learned counsel for the applicants nor the learned APP for the state has invited my attention to any other judgment of the Supreme Court on this point besides the judgment in the case of Rajeev Chaudhary (supra). Therefore, I have no other alternative but to request the Hon'ble Chief Justice to refer this matter to the Division Bench or a larger Bench as the Hon'ble Chief Justice deems fit and proper."

3. The facts which gave rise to the filing of the application and which are not much disputed are that the original applicants came to be arrested on 7-1-2006 on the complaint of Smt. Rajiya Begum Mohammad Siraj Dhobi for having committed the offence under section 366 r/w sec. 34 of the Indian Penal Code came to be registered vide C.R.No.14/06 of Sahar Police Station.

4. It appears that the Investigating officer failed to file the charge-sheet against the applicants before the Magistrate for a period of more than 60 days and by an order of remand passed under section 167(2), the applicants are held in judicial custody in Mumbai Central prison and Byculla Prison respectively and therefore the applicants moved the applicants for seeking bail under section 167(2) of the Cr.P.C. for the failure on the part of the prosecution to file charge-sheet within the stipulated period i.e. 60 days from the date of their arrest. The said application moved before the learned Metropolitan Magistrate, 22nd court at Andheri which came to be rejected by an order dt.10-3-2006 on the premise that the offence for which the applicants are arrested, the investigating agency are entitled to file charge-sheet by completing the investigation within 90 days and not 60 days. The learned Metropolitan Magistrate held that in the case of the applicant, 90 days are not completed from date of arrest of accused nos. 1 and 2 and therefore relying on the decision of this court in the case of Mohd. Arif Din Mohd. Sk. Vs. State of Maharashtra reported in 1999 Cri. Law Journal 2645, rejected the application. The applicants then approached the Court of Sessions, Greater Bombay by filing Bail Application No.500 of 2006 for seeking bail on the ground that the applicants are arrested for the offence punishable under section 366 r/w sec.34 of the Indian Penal Code, police should have completed investigation and filed charge-sheet within 60 days from the arrest of the applicant/accused persons. It is not so filed within 60 days and therefore, the applicants are entitled for bail under the provisions of S.167(2)(a)(ii) of Cr.P.C. which in addition to justifying the view taken by the learned Metropolitan Magistrate was also contested on the ground that such powers to release the accused can only be invoked before the learned Magistrate and not before the Sessions Court.

5. On going through the order passed by the learned Addl.Sessions Judge we find that the learned Sessions Judge while rejecting the application in addition to considering the issue raised before it by the applicants seeking bail f

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