K.T. Sankaran, J.

The questions of law involved in this Bail Application are (1) whether the accused would be entitled to `default bail' under the proviso (a) to sub section (2) of Section 167 of the Code of Criminal Procedure in a case where the charge sheet filed within time was returned by the learned Magistrate to the investigating officer with certain directions regarding investigation, and when the charge sheet was not re-submitted within ninety days from the date of arrest of the accused. (2) When the charge sheet was filed within time and cognizance was not taken, whether the Magistrate has jurisdiction to remand an accused to judicial custody. If so, would Section 319 Code of Criminal Procedure apply to the situation?

2. Bail Application No. 6816 of 2009 is filed by Sunil alias Suni (accused No. 7), Aneesh Kumar (accused No. 9), Binoy Markose alias Binoy (accused No. 10) and Jain Jose alias Jain (accused No. 11) in Crime No. 197 of 2009 of Nedumudy Police Station. Bail Application No. 6890 of 2009 is filed by Shino Paul (Accused No. 4) and Akash Sasidharan alias Rajesh (accused No. 5) in the aforesaid Crime. The Bail Applications are filed under Section 439 of the Code of Criminal Procedure. Apart from contending that the petitioners are entitled to get `default bail', the petitioners have also raised a contention that even if they are not entitled to relief on that count, they are otherwise entitled to be released on bail.

3. The offences alleged against the accused persons, 25 in number, are under Sections 143, 147, 148, 324, 302, 120-B, 201 and 212 of the Indian Penal Code and Section 5 of the Explosive Substances Act.

4. The prosecution case is that Paul M. George, who is also known as Paul Muthoot, a young businessman aged 32 years was brutally murdered at about 0.15 hours on 22-8-2009 at a place two Kilometres east of Pallathuruthy bridge in Alapuzha -Changanassery road. Paul M. George was brought dead at about 00.50 hours on 22-8-2009 at the Medical College Hospital, Alapuzha by his driver Shibu Thomas.

5. According to the prosecution, Accused Nos. 1 to 11 were arrested on 24-8-2009 from a hotel at Changanassery.

6. Bail Application Nos. 5832 and 6088 of 2009 filed by the petitioners before the High Court were dismissed as per the order dated 27th October 2009.

7. It is stated that after completing the investigation, final report was filed before the Court of the Judicial Magistrate of the First Class, Ramankari on 19-11-2009. The learned Magistrate passed a detailed order dated 8th December 2009 pointing out certain "irregularities" mentioned as items 1 to 15 in the order. The last two paragraphs of the said order read thus:

"On independently applying my mind to the facts emerging from investigation I find that police has not done its duty of investigating the case satisfactorily. Investigation was not carried in respect of certain aspects. I find some very relevant materials, on which, investigators must pay their attention. There are missing links and areas to be unearthed and investigated. Some facts which are relevant for arriving truth had not been gone into. Investigation on these areas are necessary for the free and fair trial and just disposal of the case. Hence it is my duty to indicate those materials to investigation team who shall make an in depth study of those materials before filing a final report.

For the reasons stated above, the present report filed by the police cannot be said to be complete. The investigation is not satisfactory. Hence it is returned for conducting investigation on all aspects and to file a correct and complete report. Investigation officer is directed to retain an attested copy of the report in this court."

8. The State filed W.P. (C) No. 37407 of 2009 challenging the order dated 8-12-2009 passed by the learned Magistrate. A Division Bench of this Court passed an interim order of stay of the order passed by the learned Magistrate, for a period of three weeks. It