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

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