Prasun Kumar Deb J.

This is application under Articles 226 and 227 of the Constitution of India by the above named accused applicants in connection with Jorapokhar P.S. Case No. 537 of 1993 now pending in the Court of the Chief Judicial Magistrate, Dhanbad, for a appropriate writ for the purpose of quashing the order dated 9.3.1994 whereby the learned Chief Judicial Magistrate, Dhanbad had dismissed the application of the above named petitioners for their release under Section 167 (2) of the Code of Criminal Procedure (hereinafter referred to as the Code and also forbearing from giving effect to the so called charge sheet (?) dated 26.2.1994 and that the detention in the judicial custody of petitioners on illegal remand order passed by the Chief Judicial Magistrate, Dhanbad (respondent no. 3) is without jurisdiction

2. The prosecution was launched against the above named two petitioners along with one Mahendra Yadav for causing murder and, as such, Jorapokhar P.S. Case No. 537 of 1993 was registered on 27.11.1993. During course of investigation, Mahendra Yadav was arrested and the above named accused petitioner surrendered before the Court below on 1.12.1993. They filed petition for their ball which was rejected and then on 1.3.1994 they filed a petition for their release under Section 167 (2) of the Code as no charge sheet was filed against them. That petition was considered by the learned Chief Judicial Magistrate on 9.3.1994 and rejected the same holding that Charge sheet against these two petitioners had already been filed on 26.2.1994.

3. According to Mr. Majumdar, appearing on behalf of the petitioners, the so-called charge sheet in compliance of Section 173(2) of the Code. At best, according to him, the same may be considered as an interim charge Sheet Such submission has been made on the ground that in paragraph 7 of the said charge sheet (Annexure 1) the Investigating Officer mentioned in the following manner: -

which means that charge short was submitted against the petitioners before the investigation was complete only to devoid the petitioners from getting the benefit of Section 167(2) of the Code. No interim charge sheet can be submitted under Section 173 of the Code as the same is unknown in the criminal jurisprudence. Refering to Section 167 of the Code, it is submitted that if charge sheet is not submitted within 60/90 days, as the case may be, from the date of detention of the accused persons, then they are to get benefit of release on furnishing proper bail bonds. After the period specified, there is bar for the Magistrate to remand the accused persons during the continuance of the investigation unless cognizance is taken on the police report. The power of further remand only comes after cognizance is taken during the course of inquiry and trial as contemplated under Section 309 of the code.

4. Mr. Majumdar's submission is that the charge sheet dated 76.2.1994 being not a charge sheet under Section 173(2) of the Code and when the petitioners had completed 90 days after their surrender in the judicial custody, their release sought to have been assented to by the learned Chief Judicial Magistrate by invoking the provisions of Section 167(2) of the Code, hence the order dated 9.3.1994 is without jurisdiction remanding the accused petitioners to the custody again. His further submission is that final form of the investigation was still wanting as could be revealed from the subsequent orders as the Court passed orders awaiting the final form, then the detention of the petitioners in the custody being illegal are entitled to be released without furnishing bail bonds. For appreciating the submissions made by Mr. Majumdar, we are to go in deep of Sections 167 and 309 of the Code. Before elaborating our discussions on the points raised, some factual matters should also be mentioned here.

5. By order dated 9.3.1994, the learned Chief Judicial magistrate has mentioned that he had gone through the police diary which revea