( 1 ) WHETHER an accused person has an absolute right to be released on bail under proviso (a) to Sec. 167 (2) of the Code of Criminal Procedure 1973 (New Code for short) even after submission of the Police report/chargesheet (chargesheet for short) if the charge-sheet has been submitted after the period prescribed in the said proviso is the question which we are called upon to answer in this application.

( 2 ) PETITIONERS are alleged to have been involved in an offence punishable under Sec. 302 read with Sec. 114 of the Indian Penal Code (I. P. C. for short) for committing murder of one Shepha Nagji. It is the prosecution case that on 17/11/1988 at about 5-30 P. M. at village Ugalwan the petitioners entered the house of the deceased Shepha Nagji and caused him injuries with Dharia and axe. Chakur Nagji who later on lodged the information at Mota Kuntwada Police Station relating to. the commission of the said offence was also injured by the petitioners with Dharia when he intervened. Shepha Nagji succumbed to the injuries caused to him by the petitioners. Petitioners were arrested by the Police on 19/11/1988 for the offence punishable under Sec. 302 read with Sec. 114 of the I. P. C. and they wore produced within the prescribed time before the learned Judicial Magistrate First Class at Mahuva (Magistrate for short) who ultimately remanded them to judicial custody. On 23/02/1989 that is on 95th day after the arrest of the petitioners the Police submitted the chargesheet to the learned Magistrate. The learned Magistrate committed the accused to stand trial before the Court of Session at Bhavnagar. On 3/03/1989 the petitioners presented an application to the Court of Session for their release on bail.

( 3 ) IT was urged on behalf of the petitioners before the learned Additional Sessions Judge before whom their application for bail came up for hearing that since the Police had failed to submit the chargesheet within 90 days from the date of their arrest they were entitled to be released on bail under proviso (a) to Sec. 167 (2) of the New Code. The learned Additional Sessions Judge however rejected this contention holding that since the police had submitted the chargesheet against the petitioners on 23/02/1989 Sec. 167 (21) had no application. According to the learned Additional Sessions Judge after submission of the chargesheet the question whether to release the petitioners on bail or to remand them to judicial custody had to be decided in the light of the provisions contained in Sec. 309 of the Code having regard to the facts and circumstances of the case. The learned Judge sought to derive support for his view from the decision of this Court in Sairabibi v. State of Gujarat [1987 (2)] 28 (2) GLR 903. The learned Judge then proceeded to consider the question of release of the petitioners on bail on merits and that prima facie the petitioners were guilty of committing murder of Shepha Nagji by causing serious injuries to him on head and chest. The learned Judge therefore did not consider it advisable to release the petitioners on bail. In the result he rejected the bail application of the petitioners.

( 4 ) BEING aggrieved by the rejection of their application petitioners approached this Court by way of this application. When this bail application came up for hearing before the learned single Judge it was urged by the learned Counsel for the petitioners that the observations made by the Division Bench of this Court in Sairabibis case (supra) on which reliance was placed by the learned Additional Sessions Judge were contrary to the decision of the Supreme Court in Natabar Parida v. State of Orissa AIR 1975 SC 1465 and the decision of the Full Bench of this Court in Babubhai Parshottamdas Patel v. State of Gujarat 1981 GLH 348: (1981 GLR 1232) and therefore the matter was referred to the Division Bench to enable him to persuade the Division Bench to refer the matter to a larger Bench. The learned single Judge there