N.P.Singh and S.N.Jha JJ.

1. This is an application for bail filed on behalf of the petitioner, who is accused for offences under Sections 419, 420, 466, 467, 468, 471, 472 and 120-B of the Indian Penal Code (hereinafter referred to as the Penal Code). The case, aforesaid, was registered by police on an information lodged by Shri Mahendra Prasad Singh, Judicial Magistrate, 1st Class, Hajipur.

2. According to the allegation made in the first information report, a case under Sec.302 of the Penal Code along with Sections 25-A and 26 of the Arms Act had been registered by Bidupur Police Station against one Suresh Singh and others. The prayer for bail made on behalf of Suresh Singh was rejected even by the High Court. After the rejection of the prayer for bail by the High Court, on 9-2-1985, a certified copy of the order purported to have been passed by the Supreme Court in Cr. Misc. Petition 213 of 1985 was filed on behalf of aforesaid Suresh Singh in the Court of the Judicial Magistrate, Hajipur, directing the release of said Suresh Singh. On the basis of that order, Suresh Singh was released on bail. Later it transpired that the order purported to have been passed by the Supreme Court was a forged order. Thereafter the present case in question was lodged by the Judicial Magistrate for offences mentioned above.

3. During investigation of the aforesaid case, the petitioner was taken in custody on 6-9-1985 and was produced before the Magistrate the same day who remanded him to judicial custody. The police report was submitted to the Chief Judicial Magistrate, Hajipur, on 29-11-1985 against the petitioner and others. After the submission of the charge-sheet, the case has been taken over by the C.B.I. and further investigation is proceeding.

4. According to the petitioner, as the Magistrate did not take cognizance within 90 days from the day the petitioner was taken in custody on the basis of the police report, aforesaid, the petitioner was entitled to be released on bail in accordance with the proviso to Sub-section (2) of Sec.167 of the Code of Criminal Procedure (hereinafter referred to as the Code).

5. According to the petitioner, he had been taken in custody on 2-9-1985 but was produced before the Chief Judicial Magistrate on 6-9-1985. This is being challenged on behalf of the State. It has been asserted on behalf of the State with reference to the records that the petitioner was taken in custody on 6-9.1985 and was produced the same day before the Chief Judicial Magistrate who remanded him to custody. Nothing has been brought on record to show that the petitioner was actually taken in custody on 2-9-1985. From the records it appears that the Chief Judicial Magistrate has made an initial on the police report submitted on 29-11-1985 itself. As such it is an admitted position that police report/charge-sheet was submitted by police within 90 days from the date the petitioner was taken in custody. The submission of police report on 29-11-1985 shall be within 90 days even if the case of the petitioner that he was arrested on 2-9-1985 is accepted. However, the formal order saying that cognizance of the offences was being taken was passed on 19-2-1986.

6. On behalf of the petitioner it was submitted that as the order taking cognizance of the offences was not passed within 90 days from the date the petitioner was taken in custody, the Magistrate had no power to remand the petitioner and he should be released on bail.

7. This case was listed before a learned Judge of this Court who has referred it to a Division Bench for consideration of the aforesaid question. With consent of the parties this application is being disposed of at the stage of admission itself.

8. The scope of proviso (a) to Sub-section (2) of Sec.167 of the Code has been considered by the Supreme Court in the well known case of Natbar Parida V/s. State of Orissa -- where it was pointed out that it was mandatory on the part of the Magistrate to release an accused o