BADAR DURREZ AHMED, J.

( 1 ) THE petitioner seeks release on bail under section 167 (2) read with Section 439 of the code of Criminal Procedure, 1973 (hereinafter referred to as the 'code" ). The petitioner's case is that the investigation was not completed within the prescribed period of 90 days and, as such, he became entitled to bail-on-default which has been denied to him by the Courts below. It is also the petitioner's case that cognizance was not taken within the said period of 90 days and, therefore, his detention in custody was illegal and that the taking of cognizance on a subsequent date beyond the period of 90 days, would not cure this illegality. The submissions made by the learned counsel for the State were: 1)that investigation had, in fact, been completed and the police report had been filed within the period of 90 days and, therefore, the proviso to Section 167 (2) would not come into play and the petitioner would not be entitled to bail-on-default; 2) that cognizance was subsequently taken and, thereafter, the petitioner has been remanded to custody from time to time under Section 309 of the code and, as such, the petitioner is not in illegal custody and is not entitled to bail on these grounds. This, in brief, is the field within which this case requires determination.

( 2 ) SINCE this case involves the question of bail-on-default, dates would be relevant. They are:-23. 6. 2005: The petitioner was arrested. The case for the prosecution is that on this day at about 12. 10 p. m. the accused persons (including the present petitioner) entered House No. E-174, ashok Vihar New Delhi for committing dacoity and shot at one Giriraj Kishore who died on the spot. It is further alleged that the accused, while they were running away, were chased by the police party but, they opened fire at the police party and as a result of which one ASI was seriously injured. However, other police personnel arrived at the spot and surrounded the assailants. Finding themselves to be trapped, the assailants opened fire indiscriminately upon the police party and as a result of which the Additional sho, Constable Dharampal and constable Devinder were seriously injured. The accused (including the present petitioner) were apprehended on the spot. An FIR was registered, being FIR No. 419 dated 23. 6. 2005 at police Station Ashok Vihar, against the accused under Sections 302/307/393/ 353/186/332/34 IPC and Sections 25/ 27 of the Arms Act, 1959. 20. 9. 2005: This was the 89th day after the arrest of the petitioner. On this day, it is alleged that a challan (police report) was filed. However, it is the case of the petitioner that this was not a "police report" in terms of Section 173 (2) of the Code inasmuch as it was incomplete because - (1) the statement of one injured had not been recorded; (2) the Central Forensic Science laboratory Report had not been obtained/not filed; (3) sanction under section 39 of the Arms Act, 1959 had not been obtained/not filed. Submissions were made at length with regard to whether the challan was complete or incomplete and the same will be dealt with in detail below. The order passed by the Metropolitan magistrate on this date reads as under:-"accused are present from J/c. Fresh challan filed today. It be checked and registered. Case be fixed for consideration for 04/10/05. "4. 10. 2005: The petitioner moved an application for bail before the learned metropolitan Magistrate under Section 167 (2) of the Code on the ground that the challan purportedly filed on 20. 9. 2005 was incomplete, and, therefore, could not be treated as a report under Section 173 (2) of the code. It was contended therein that the petitioner was entitled to bail on default under Section 167 (2) of the code. On the filing of this application for bail under Section 167 (2), the metropolitan Magistrate simply noted on the application itself that the same be put up on 7. 10. 2005. By a separate order the learned Metropolitan magistrate noted the