Narendra Prasad Singh, J.

1. Whether bail has to be granted, to an accused, under proviso to Sub-section (2) of Sec.167 of the Code of Criminal Procedure (hereinafter referred to as the Code), even after submission of the police report chargesheet (hereinafter referred to as the chargesheet if the chargesheet has been submitted after the period prescribed in the proviso to Sub-section (2) of Sec.167, is the question which has to be answered.

2. The petitioner is an accused for offence under Sec.395 of the Penal Code. The first information report in respect of the occurrence in question was lodged on 8.6.1987. The petitioner was arrested and remanded to jail custody on 21-6-1987. The chargesheet, however, was submitted on 23-9-1987, which was received in the Court of Sub-divisional Judicial Magistrate on 24-9-1987.

3. A prayer to release the petitioner on bail was made after submission of the chargesheet, on the ground that as the chargesheet had not been submitted, within 90 days from the date the petitioner was taken in custody, he was entitled to be released on bail in terms of proviso to Sub-section (2) of Sec.167 of the Code. That prayer was rejected by the learned Magistrate. Even the Sessions Judge has rejected the said prayer saying that as the petitioner was in custody on the basis of an order of remand passed under Sec.309 (2) of the Code, there was no question of releasing him on bail in accordance with Sec.167 (2) proviso.

4. This application was listed before a learned Judge of this Court before whom reliance was placed on a recent judgment of this Court in the case of Md. Sharfaddin Khan @ Safdar Ashraf and Anr. V/s. The State of Bihar 1988 P.L.J.R. 201 holding that right accrued to an accused under Sec.167 (2) proviso, of being released on bail if chargesheet is not submitted within the statutory period of 90 days, cannot be defeated merely on the ground that later a chargesheet has been submitted. It appears that a Full Bench judgment of this Court in the case of Rabindra Rai V/s. The State of Bihar (1984) B.B.C.J. 1 was not brought to the notice of the learned Judge, who decided the case of Md. Sharfuddin @ Safdar Ashraf (supra) as such this case was referred to a Division Bench.

5. Since very inception proviso (a) to Sub-section (2) of Sec.167, which puts a limitation on the power of the Magistrate to remand an accused during investigation has been subject matter of controversy. The scope of that proviso was authoritatively considered in the case of Natbar Parida and Ors. V/s. State of Orissa -- where it was pointed out by the Supreme Court that after the expiry of the statutory period, an accused has got to be released on bail if he is prepared to and does furnish bail. This course of granting bail has to be adopted because Sec.167 (2) proviso prescribes a limitation on the power of the magistrate to remand an accused to custody during investigation after expiry of the period prescribed in the said proviso to Sec.167 (2). If the chargesheet is submitted within the statutory prescribed in proviso to Sub-section (2) of Sec.167, there is no question of granting bail because such an accused thereafter can be remanded to jail custody in exercise of the power under Sec.309 (2) of the Code. Proviso to Sec.167 (2) is not a provision for grant of bail during investigation, but a restriction on the power of the magistrate to remand an accused during investigation beyond the period prescribed. As such with filing of chargesheet if an enquiry commences within the meaning of Sec.2 (g) of the Code the magistrate can remand the accused the custody in term of Sec.309 (2) and there is no question of applicability of Sec.167 (2) proviso in that event, the investigation having concluded.

6. In some cases where chargesheet had been submitted within the statutory period of 90 days, but there being no formal orders saying cognizance had been taken controversy arose as to whether Sec.309 (2) of the Code will be attracted so