( 1 ) BEING aggrieved and dissatisfied by the judgment and order dated 5-10-85 passed by the Judicial Magistrate First Class Bhavnagar in Miscellaneous Criminal Application No. 440 of 1985 rejecting the application for releasing the petitioner on bail as the charge-sheet was not filed within the prescribed period of 90 days the petitioner has filed this miscellaneous application under secs. 167 and 439 of the Criminal Procedure Code.

( 2 ) THE learned Magistrate has rejected the said application by holding that the accused is involved in an offence punishable under sec. 302 of the Indian Penal Code for which the sentence of death or imprisonment for life can be imposed and according to his opinion this was not a fit case for releasing the accused on bail in view of the seriousness of the offence. He further held that because the charge-sheet is not submitted within 90 days the accused does not get any right to be released on bail.

( 3 ) IN pursuance of notice P. S. I. Bhavnagar A Division has filed an affidavit stating that on 4-10-85 charge-sheet with requisite papers was forwarded for submission to the Honourable Court with a letter bearing outward No. 4515 of 1985 dated 4-10-85. The said papers were handed over to Court Duty Constable Abdullabhai Dadahbhai at 4-00 P. M. The said Abdullabhai submitted the charge-sheet to the Judicial Magistrate First Class Bhavnagar on 9-10-85. This clearly reveals a sordid affair wherein the investigating officer has not taken any care to submit charge-sheet within 90 days for the reasons best known either to the P. S. I. or to the Constable and even though the charge-sheet was prepared and forwarded on 4-10-85 it was not submitted before the Court upto 9-10-85. In any case it is a proved fact that within 90 days charge-sheet was not submitted and on 5 when the learned Magistrate passed the impugned order charge-sheet was not before the Court. Hence the order passed by the learned Magistrate is on the face of it illegal in view of sec. 167 (2) of the Criminal Procedure Code.

( 4 ) THE learned advocate for the petitioner vehemently submitted that in view of sec. 167 (2) (a) the accused has a right to be released on bail if the charge-sheet is not filed within 60 or 90 days as the case may be. For this proposition there cannot be any doubt. Section 167 provides that no Magistrate shall authorize the detention of the accused person in custody under sub-sec. (2) for a period exceeding 90 days where the investigation relates to an offence punishable with death imprisonment for life or imprisonment for a term of not less than 10 years and on the expiry of the said period of 90 days the accused person shall be released on bail if he is prepared to and does furnish bail. In this view of the matter the order passed by the learned Magistrate is on the face of it illegal.

( 5 ) STILL however the question is whether at present I should pass an order releasing the accused on bail. It is an admitted fact that the charge-sheet is now submitted before the Court on 9-10-85. The learned advocate for the pi petitioner vehemently submitted that even though on the date when the bail application is decided charge-sheet is on record yet under sec. 167 (2) (a) the accused has a right to be released Old bail as the charge-sheet was not filed within 90 days. In my view this submission of the learned advocate for the petitioner cannot be accepted. In the case of State of U. P. v. Lakshmi Brahman A. I. R. 1983 Supreme Court 439 the Supreme Court has held that sec. 167 envisages a stage when a suspect is arrested and the investigation is not completed with in the prescribed period. The investigation would come to an end the moment charge-sheet is submitted as required under sec. 170 unless the Magistrate directs further investigation. Once the charge-sheet is submitted then the question would be how the accused forwarded to him with police report under sec. 170 is to be dealt with by the Magistrate. The C