The main legal point established is that the right to bail under Section 167(2) of the Cr. P. C. does not persist after the filing of the challan, as per the interpretations of relevant legal provisions and precedents.

( 1 ) THE instant application under Section 439 (2) of the Code of Criminal procedure, 1973 (for short cr. P. C. ) which has been filed by complainant-applicant matlub seeks cancellation of bail granted under Section 167 (2), Cr. P. C. to non-petitioners No. 2 and 3 by the learned Sessions judge, Sawai Madhopur vide his order dated 1-9-2005 in Bail Application No. 380/ 2005 arising out of FIR No. 154/2005 PS mantown, Sawaimadhopur for offences under Sections 143, 148, 323, 447, 307 and 302, IPC.

( 2 ) THE undisputed facts are that the non-petitioner Nos. 2 and 3 were arrested on 17-5-2005. They were produced before the learned Magistrate on 18-5-2005 who remanded them to police custody upto 23-5-2005 on which date they were remanded to judicial custody. After investigation the challan was filed against them along with others on 16-8-2005. No application for bail on their behalf was pending before the Court on that date. The bail application was moved on 23-8-2005 which was ultimately allowed on 1-9-2005.

( 3 ) LEARNED counsel for the petitioner-complainant has contended that the non-petitioner Nos. 2 and 3 have been granted bail illegally in utter disregard of the settled legal position governing grant of bail under the provisions of Section 167 (2), Cr. P. C. He has also submitted that the challan had been filed on the 90th day from the date of remand of the non-petitioners to the judicial custody. Besides this, 13th, 14th and 15th august, 2005 were holidays.

( 4 ) HIS second contention is that even if it be treated for the sake of argument, that the charge-sheet had been filed after the expiry of the period of 90 days, the bail application having been filed after filing of the challan, the non-petitioners were not entitled to be released on bail after the filing of the charge-sheet against him. In this regard he has referred to the cases of Asa Singh v. State of Punjab, 2002 (2) Crimes 84 (Pandh), sanjay Dutt v. State through CBI, 1995 Cri lj 477 (SC), Bhinya Ram v. State of rajasthan, 1995 Cr LR (Raj) 2 and Atma ram v. State of Rajasthan, 1995 (2) RLR 47.

( 5 ) WHILE strenuously opposing the application, learned counsel for non-petitioner nos. 2 and 3 has submitted that the detention of the non-petitioners was illegal after the expiry of the statutory period prescribed for filing charge-sheet against them.

( 6 ) I have carefully considered the rival submissions and have perused the relevant provisions as also the authorities cited at the bar.

( 7 ) SECTION 167 (2), Cr. P. C. reads as under :-"167 (2 ).- The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case of commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction :provided that- (a) the Magistrate may authorise 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 authorise 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 subsection shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter, (b) no Magi