P.S. SAHAY, J.

1. This application on behalf of the informant for cancellation of bail is directed against an order of Sessions Judge, dated the 24th of May, 1976, granting bail to opposite party no. 2 and 3 in Barhiya P.S. Case No. 19 (11) 75 under section 302 of the Indian Penal Code. It may be mentioned here that bail has been granted by the Sessions Judge, Monghyr, under the provisions of section 167 (2) of the Code of Criminal Procedure 1973.

2. Short facts are that the petitioner lodged a first information report stating that, on the 26th of November, 1975 opposite party nos. 2 and 3 along with six others who were named in the first information report, mercilessly assaulted the deceased Bilayat Singh on account of previous enmity. A case was registered and investigation was taken up by the police and opposite party nos. 2 and 3 were apprehended in the case. It seems that, after the case was investigated by the police, an interim chargesheet was submitted on the 24th January 1976. The operative portion of the chargesheet reads as follows:–

"In course of investigation and supervision, this case under sections 148/149/302/342 I.P.C. has been found to be true. Two of the accused persons mentioned in column no. 3 have already been arrested and the remaining accused persons are absconding. According to column no. 2, the S.P. has given instruction to submit interim charge sheet against the two accused mentioned in column no. 3. As a result thereof this chargesheet is submitted against the two accused mentioned in column no. 3. For trial under sections 147/148/149/ 302 I.P.C."

On the 20th of May, 1975, an application was filed on behalf of the prosecution that the chargesheet had already been submitted against opposite party Nos. 2 and 3 and therefore cognizance should be taken against them. A rejoinder was also filed on behalf of opposite party nos. 2 and 3 and the learned Sub-divisional Magistrate, Lakhisarai, by his order dated 25.5.1976, held that the records of the case had been called for by the High Court and, therefore, it would not be proper to pass any order without looking into all the necessary papers and, thus, rejected the prosecution.

3. Opposite party nos. 2 and 3 filed an application for bail before the Sub-divisional Magistrate that no chargesheet had been submitted in this case and they were in custody for more than sixty days and therefore, they were entitled to bail under the provisions of section 167 (2) of the Code of Criminal Procedure, 1973. It was submitted before the learned Magistrate that investigation had not been completed and there was no provision for interim chargesheet in the Criminal Procedure Code and therefore, they were entitled to bail. The learned Magistrate, however, held that the charge sheet had been submitted, though it had been wrongly termed as interim chargesheet and that it was a chargesheet for all practical purposes and therefore, opposite party nos. 2 and 3 were not entitled to bail though they were in custody for more than sixty days.

4. Against the order aforesaid, opposite party nos. 2 and 3 moved the Sessions Judge, Monghyr, in which a prayer was reiterated by them that interim chargesheet was not warranted by law and therefore, they were entitled to bail as they have been in custody for more then 60 days and investigation had not been completed. In support of their contention, they relied on decision of this Court in Cr. Misc. No. 2139 of 1976 (Shiv Shankar Prasad Sao vs. State of Bihar, 1. 1976 BBCJ – N–11, disposed of on the 11th May, 1976). It was held by C.P. Sinha, J., that interim chargesheet is unwarranted by law and cannot defeat the provisions of section 167 (2) proviso (a) of the new Code of Criminal Procedure. This was opposed by the Public Prosecutor on the ground that interim chargesheet was a chargesheet for all practical purpose and, therefore, no bail should be granted to opposite party nos. 2 and 3. But the learned Sessions Judge, relying on the decisi