A. D. DESAI, J. B. MEHTA, J.

( 1 ) THIS matter has been referred to us because of the difference of opinion in respect of the construction of sec. 167 of the Criminal Procedure Code 1973 (hereinafter referred to as the Code ). Justice Surti in Criminal Revision Application No. 509 of 1974 decided on November 18 1974 took the view that under the provisions of sec. 167 of the Code the accused must be automatically released on bail and the circumstance that the police subsequently submitted a charge-sheet to the Court need not come in way of the accused being so released. Justice Trivedi in Criminal Revision Application No. 516 of 1974 decided on December 3 1974 took the view that if the charge-sheet was filed pending an application of bail under sec. 167 of the Code the accused cannot be said to be in detention under the provisions of sec. 167 of the Code and that no order could be passed to release him on bail under proviso (a) to sub-sec. (2) of sec. 167 of the Code and the Court has to exercise discretion under the provisions of sec. 437 of the Code.

( 2 ) SHORTLY stated the facts of this case are that the five petitioners original accused Nos. 1 to 5 respectively armed with deadly weapons like Dharia axes stick etc. are alleged to have assaulted one Jitubha on September 20 1974 and that petitioner No. 3 original accused No. 3 had caused injuries on the head of Jitubha by means of a Dharia blow. Jitubha the injured was then removed to Irvin Hospital Jamnagar on the same day and he died on September 26 1974 The offence that was initially registered was under sec. 307 of the Indian Penal Code but subsequently the accused were alleged to have committed offences punishable under secs. 147 148 149 and 302 of the Indian Penal Code. Petitioners Nos. 1 to 4 were arrested on September 21 1974 and petitioner No. 5 was arrested on September 23 1974 An application for bail was filed before the learned Magistrate on October 3 1974 An application for bail was also filed by the petitioners before the learned Sessions Judge but the same was rejected on October 11 1974 Thereafter a revision application was filed in this Court against the order of the learned Sessions Judge refusing bail to the petitioners but the same was subsequently withdrawn on October 19 1974 The petitioners then filed the present miscellaneous application for bail on November 29 1974 In the meanwhile the police filed a charge-sheet on November 22 1974 in the Court of the learned Magistrate having jurisdiction. The criminal miscellaneous application came up for hearing before Justice Rane who in view of the aforesaid conflict in decisions referred the matter to a Division Bench.

( 3 ) NOW sub-sec. (1) of sec. 167 of the Code provides that where any person is arrested and detained in custody and it appears that the investigation cannot be over by 24 hours fixed by sec. 57 and there is no ground for believing that the accusation or information is wellfounded the officer in charge of the police station shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary and shall at the same time forward the accused to such Magistrate. The relevant part of sub-sec. (2) of sec 167 which requires interpretation is as follows: (2) The Magistrate to whom an accused person is forwarded under this secti may whether he has or has not jurisdiction to try the case from time to time authorise the detention of the accused in such custody as such Magistrate thinks fit for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial and considers further detention unnecessary he may order the accused to be forwarded to a Magistrate having such jurisdiction:provided that- (A) The Magistrate may authorise detention of the accused person otherwise than in custody of police beyond the period of fifteen days if he is satisfied that adequate grounds exist for doing so but no Magistrate shall authorise the detentio

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