The question involved in these Bail Applications is whether the period of 90 days or 60 days will apply for default bail under the proviso (a) to sub-section (2) of Section 167 of the Code of Criminal Procedure in respect of an offence under Section 457 of the Indian Penal Code.

2. The Bail Applications are filed by accused Nos.1, 2 and 5 in Crime No.638 of 2011 of Panthalam Police Station. The offences alleged against the accused are under Sections 457, 461, 380, 201 and 465 read with Section 34 of the Indian Penal Code.

3. The prosecution case is the following: The accused, after making all preparations for breaking open Mazhuveli Service Co-operative Bank Ltd. for the purpose of committing theft, broke open the bank at about 11 P.M. on 20.8.2011. They broke open the storing room of the bank and committed theft of Rs.3,79,204/-. They could not break open during that night the chest drawer where gold was kept, since time ran out. They left the place at about 5 A.M. At about 11 P.M. on 21.8.2011, which was a Sunday, the accused again stealthily entered into the bank through the way which they had cut open and committed theft of 4223.7 grams (527.96 sovereigns) of gold kept in the chest drawer. For committing the offence, the accused used gas cylinder, gas cutter and other equipments and implements. They had also arranged a van with a fake registration number for the purpose of committing the offence.

4. Accused Nos.1, 2 and 5 were arrested and they were remanded to judicial custody. Final report was not filed by the investigating officer within 60 days. According to the learned counsel for the petitioners, the offences alleged against the accused would attract proviso a(ii) to sub-section (2) of Section 167 of the Code of Criminal Procedure. Hence they are entitled to default bail since the charge sheet was not filed within 60 days.

5. The learned Public Prosecutor submitted that for the offence under Section 457 of the Indian Penal Code, the imprisonment provided for is 14 years and hence proviso a(i) to sub-section (2) of Section 167 of the Code of Criminal Procedure would apply. It is submitted that the accused would be entitled to default bail only if the final report is not filed within 90 days from the date of remand.

6. Clause (a) of the proviso to sub-section (2) of Section 167 of the Code of Criminal Procedure reads as follows:

“Provided that –

(a) the Magistrate may authorize the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorize the detention of the accused person in custody under this paragraph for a total period exceeding --

(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;

(ii) sixty days, where the investigation relates to any other offence,

And, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be released under the provisions of Chapter XXXIII for the purposes of that Chapter;”

(emphasis supplied)

7. It is apposite to extract Section 457 of the Indian Penal Code.

“457. Lurking house-trespass or house-breaking by night in order to commit offence punishable with imprisonment:-- Whoever commits lurking house trespass by night, or house-breaking by night, in order to the committing of any offence punishable with imprisonment, shall be punished with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine; and, if the offence intended to be committed is theft, the term of the imprisonment may be extended to fourteen years.”

8. In Rajeev Chaudhary v. State (N.C.T.) of Delhi (AIR 2001 S