PARTHA SAKHA DATTA, J.

(1) The order dated 23rd January, 2009 passed by the learned Additional Chief Judicial Magistrate, Kandi in the district of Murshidabad in connection with G.R. Case No. 806 of 2008 arising out of Khargram P.S. Case No. 208 of 2008 dated 24.10.1988 under sections 376(g)/458 of the Indian Penal Code refusing prayer for bail on the ground of submission of challan within the period of ninety days is under challenge.

(2) The two applicants were charge sheeted under section 376(g) of the IPC and an application for bail was moved but the learned ACJM by order dated 23rd January 2009 observed that since charge sheet was submitted within a period of 90 days they were not entitled to bail, thus, overruling the contention of the petitioners that cognizance was not taken immediate after submission of the charge-sheet.

(3) The question is whether an accused is entitled to be released on bail even when charge-sheet is submitted within the period of 90 days in an offence punishable with death or imprisonment for life on the ground that along with the submission of the charge-sheet cognizance was not taken.

(4) Mr. Mukherjee, learned advocate appearing for the petitioners submitted that the Criminal Procedure Code does not entitle the Magistrate to order for remand after completion of charge sheet if cognizance is not taken under section 190 Cr PC before making order for remand.

(5) It is not legally inconceivable that in a case punishable with death or imprisonment for life accused can be kept as an under trial prisoner till the conclusion of the trial from the date of arrest provided no default was committed by the investigating agency to submit charge-sheet within the statutory period of 90 days. Now unquestionably the detention from the date of arrest till the completion of investigation which includes submission of charge-sheet is authorised under section 167(2) Cr PC provided charge sheet is laid within a period of ninety days. This is remand during investigation till submission of the charge sheet within the period of 90 days. If charge-sheet is not filed within a period of 90 days from the date of arrest the law commands that accused has to be released on bail. The law is thus unambiguous that in a case punishable with death or imprisonment for life if charge sheet is submitted within the period of 90 days, the accused cannot claim bail as of right and the Magistrate or the Sessions Judge has jurisdiction to refuse bail to the accused till conclusion of trial. Therefore, remand of the accused happens in two phases........the first phase being at the stage of investigation and the second stage being the stage of post submission of charge-sheet. Section 309 of the Cr PC runs as follows:

"309. Power to postpone or adjourn proceedings.-

(1) In every inquiry or trial, the proceedings shall be held as expeditiously as possible, and in particular, when the examination of witnesses has once begun, the same shall be continued from day to day until all the witnesses in attendance have been examined, unless the Court finds adjournment of the same beyond the following day to be necessary for reasons to be recorded.

(2) If the Court, after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable and may be warrant remand the accused if in custody: Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time: Provided further that when witnesses are in attendance, no adjournment or postponement shall be granted without examining them, except for special reasons to be recorded in writing: [Provided also that no adjournment shall be granted for the purpose only of enabling the accused person to show cause against the sentence proposed to be imposed on him]. Explanation 1.-If sufficient evidence has been obtained