( 1 ) WHETHER an accused person has an absolute right to be released on bail under proviso (a) to Section 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 chargesheet 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 Section 302 read with Section 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 November 17,1988, 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 Nota Kuntwada police station relating to the commission of the said offence, was also injured by the petitioners with Dharia which he intervened. Shapha Nagji succumbed to the injuries caused to him by the petitioners. Petitioners were arrested by the police on November 19, 1938 for the offence punishable under Section 302 read with Section 114 of the I. P. C. and they were 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 February 23, 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 March 3, 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 Section 167 (2) of the new Code. The learned Additional Sessions Judge, however, rejected this contention, holding that since the police had submitted the charge-sheet against the petitioners on February 23, 1989, Section 167 (2) had no application. According to the learned Additional Sessions Judge, after submission of the charge-sheet, 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 Section 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) 28 (2) Guj. LR 903. The learned Judge then proceeded to consider the question of release of the petitioners on bail on merits and held 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 Guj LH 348, and, therefore, the matter be referred to the Division Bench "to enable him to persuade the Divi