Madan Mohan Prasad, J.

This is an application for bail by the petitioner who is accused of an offence under section 395 of the Indian Penal Code.

2. The petitioner has been named as one of the nine accused mentioned in F.I.R. from amongst several dacoits. He is alleged to have been armed with a gun and is said to have been identified by five witnesses. It is also said that there was a scuffle between the dacoits and the prosecution party resulting in injuries to some of the dacoits as a result of which one of them died. One of the injured dacoits is said to have made an extra-judicial confession before the villagers implicating the petitioner and others along with himself.

3. It appears that investigation was taken up and that a charge sheet (stated as preliminary charge sheet) was submitted recommending trial of this petitioner and one Chandrika Ahir for the offence aforesaid. Another charge sheet (without the heading preliminary charge sheet) was submitted in respect of six other co-accused showing three other accused (not mentioned in the (F. I. R.) as absconders.

4. It appears that the petitioner unsuccessfully moved the Judicial Magistrate, Chief Judicial Magistrate and the Sessions Judge for bail.

5. In support of this application counsel for the petitioner has urged that a preliminary charge sheet is no charge sheet in law and it was filed merely with a view to defeat the provisions of section 167 (2) of the Code of Criminal Procedure and in such circumstances the petitioner is entitled to bail. Secondly, that on merits of the case against the petitioner also he deserves to be released on bail.

6. I will first take up the contention regarding submission of preliminary charge sheet. Counsel for the petitioner has placed reliance on a decision of a learned single Judge of this Court in the case of Shiv Shankar Sao Vs. The State of Bihar from the brief order it appears that in that case an ad-interim charge sheet had been submitted and that it was said that the final charge sheet would be submitted after completion of the investigation. In such circumstance D.P. Sinha. J. held that submission of such ad interim charge sheet was not warranted by law and this led the learned Judge to come to the conclusion that the aforesaid device had been resorted to only with the intention of defeating the provision of section 167 (2) of the Code of Criminal Procedure 1973, (hereinafter referred to as 'the new Code'). Firstly the facts of that case were different in as much as it was said there that a final charge sheet would be submitted after completion of the investigation, obviously, thereby indicating that the report submitted had not been done on the completion of the investigation as laid down in section 173 (2) of the new Code. That apart I regret to say that I am unable to concur in the view that there is no provision in the Code for a preliminary charge sheet, if the word 'preliminary' is to be understood as some report submitted before a second report is submitted on the point. The point is one of considerable importance and since the question has been raised in the present case I would like to express my own views thereon.

7. Before coming into force of the present Code section 173 (2) of the Code of Criminal Procedure, 1898, (hereinafter referred to as 'the old Code') required submission of final form on the completion of an investigation. There is no difference between the old Code and the new Code in respect of this provision of law. There is, however, a difference which I will mention hereafter inasmuch as there has been the introduction of the new provision contained in sub-section (8) of section 173 of the new Code. Before I discuss this point, I would like to find out the law that was in existence before the coming into force of the new Code. Even though section 173 (2) of the old Code required submission of a final form after completion of the investigation, the law was well settled at least so far as this Court is c