The nature of incarceration changes on the 61st or 91st day if the investigation is not concluded, fortifying the presumption of innocence. A Habeas Corpus writ is not a surrogate for a bail application under Section 167, and the remedy for dissatisfaction with an Order under Section 167 is by way of an appeal.

VIKRAMAJIT SEN, J.:

1. The Petitioner prays for the issuance of a writ of habeas corpus for his release on such terms and conditions as the Court may deem fit and proper.

.2. Earlier, the Petitioner had filed a bail application under Section 439 of the Code of Criminal Procedure, 1973 (Cr.PC) which came to be decided by a learned Single Judge of this Court in terms of the Orders dated 4.12.2007. It was decided that the Petitioner be admitted to bail on his depositing a sum of Rs.1,00,00,000/-in two installments, initially Rs.50,00,000/-to be deposited after one month from the date of his release, and the remainder Rs.50,00,000/-after three months of the first deposit. On these conditions the Petitioner was admitted to bail on his furnishing a Personal Bond in the sum of Rs.50,000/-with one surety in the like amount to the satisfaction of the Trial Judge. In the event, this Bail Order has not been availed of by the Petitioner. Instead, he had assailed the Order dated 4.12.2007 by way of a Special Leave Petition (SLP), which has been withdrawn on 7.1.2008. The contention of Mr.S.S. Gandhi, learned Senior Counsel for the Petitioner before us, is that the Apex Court had clearly enunciated that conditions in the nature of a deposit could not be passed while enlarging an accused on bail. We are not concerned with the legal propriety of the Order dated 4.12.2007 of the learned Single Judge.

3. A Bail Application under Section 167(2) of the Cr.PC was filed in the Court of ACMM on 24.12.2007. The learned ACMM issued notice on the application, returnable for 4.1.2008. In the interregnum, on 26.12.2007, the present Writ Petition was filed in this Court. We have heard detailed arguments.

4. Mr. Aggarwala, learned counsel for the Respondents, has attacked the very maintainability of the present Petition on the ground that the Petitioner had already been ordered to be enlarged on bail. If any orders favourable to the Petitioner are passed in these proceedings it would tantamount to a second bail order, which, according to counsel, is beyond the contemplation of law. It is contended that if the Petitioner was aggrieved by the imposition of any condition for the grant of bail under Section 439 of the Cr.PC (Order dated 4.12.2007) the Petitioners only recourse was to challenge it by way of an Appeal. Mr. Aggarwala contends that this avenue has, in fact, been traversed by the Petitioner inasmuch as he had filed an SLP in the Supreme Court which now stands withdrawn. If the Petitioner was unable to comply with the conditions imposed by the learned Single Judge in the Order dated 4.12.2007 he could have approached that Bench with a prayer for modification, pleading that the terms were either too onerous or could not be complied with for any reason thereby perpetuating the continued incarceration of the accused/petitioner.

.5. In the criminal jurisprudence prevailing in all common law countries, every person is presumed to be innocent until proved to the contrary. The consequence that logically follows is that an accused ought not to be detained or imprisoned, that the personal liberty even of an accused should not be interfered with, until he is convicted by due process of law. Several offences are notified as being bailable and even in the remainder, that is non-bailable offences, the accused can be enlarged on bail by orders of the Court. Bail is the rule; Jail is the exception. This is what Sections 437/439 of the Cr. PC in terms postulate, viz. that when any person accused of or suspected of the commission of any non-bailable offence is arrested or detained he may be released on bail. However, an exception has simultaneously been prescribed, namely, that such a person shall not be so released unless it appears to the Court, on reasonable grounds, that he has been guilty of an offence punishable with death or imprisonment for life.

6. The presumption of the innocence of an accused can easily be defeated if the investigation is not const