Bindendu Narayan Sinha, J.

1. This application under sections 439 and 440 of the Code of Criminal Procedure, 1973 (hereinafter to be referred as the Code) has been filed for releasing the petitioners on bail under proviso (a) (i) of Sec. 167 (2) of the Code.

2. The facts of the case need not be mentioned in detail. It will suffice for disposal of this application to mention that these two petitioners are accused in Halsi P.S. Case No. 84, 86 under Secs. 302, 307 and some other Sections of the Indian Penal Code and under Sec. 27 of the Arms Act and they surrendered in Court in this case on 19th of November, 1986 and they were remanded to jail custody on that day. On 18th of February, 1987, a petition was filed on behalf of these two accused-petitioners before Shri B.K. Chaudhary, Judicial Magistrate, Lakhisarai at Munger for their release under the proviso of Sec. 167 (2) of the Code on the ground that though they have remained in jail for more than 90 days, no charge-sheet was submitted in the case. But, it appears from the order dated 18-2-1987 passed by the learned Magistrate that, that petition was not moved. On 23-2-1987 charge-sheet was submitted against these accused petitioners in that case. On 24-2-1987 the said petition for release of these two accused-petitioners was moved and it was rejected by the Judicial Magistrate stating that since the charge-sheet had been submitted in this case, these petitioners could not be released under the proviso of Sec. 167(2) of the Code. Thereafter, these two petitioners moved for bail on the same ground before the Sessions Judge, Munger, which too was rejected by Order dated 2-3-1987. Thereafter, the present application was filed before this Court.

3. The learned counsel for the petitioners submitted that the learned Judicial Magistrate ought to have released these two petitioners on bail under proviso (a)(i) of Sec. 167(2) of the Code. Learned Counsel for the State, on the other hand, submits that once the charge-sheet is submitted, the petitioners cannot hike advantage of proviso (a)(i) of Sec. 167(2) of the Code and the prayer for bail can be disposed of on merits after taking into consideration the allegations against these petitioners and these petitioners being named as the assailants of the deceased do not deserve to be enlarged on bail.

4. The relevant part of Sec. 167 of the Code reads as follows:

167. Procedure when investigation cannot be completed in twenty four hours (1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty four hours fixed by Sec. 57, and there are grounds for believing that the accusation or information is well-founded, the Officer-in-charge of the police station or the Police Officer making the investigation if he is not below the rank of Sub-inspector shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.

(2) The Magistrate 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 not 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 - 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 exist 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 punish