The main legal point established in the judgment is that the accused was not entitled to bail under Section 167(2) of the Code of Criminal Procedure as the charge sheet had been filed within the prescribed period, and the subsequent valid orders of remand cured any earlier illegality, thus the accused was not entitled to be released on bail.

1. - Briefly stated, the facts of the case are that on the basis of a written report submitted by Brijlal S/o Bhonra Ram, by caste-Meena, R/o Maharajsar at RS. Sewar, District Bharatpur on April 20, 2002, a case under Sections 304B and 498A IPC was registered. In the course of investigation accused-petitioner Kamlesh was arrested on April 28, 2002. He was remanded to police custody and thereafter to judicial custody from time to time by learned Additional Chief Judicial Magistrate No. 3. Bharatpur. By order dated 24th July, 2002, the Additional Chief Judicial Magistrate remanded the accused-petitioner to judicial custody till August 7, 2002. In the meanwhile, on July 26, 2002, the SHO, R.S. Sewar filed challan against the accused-petitioner under Sections 498A, 304B and 120B IPC in the Court of Additional Chief Judicial Magistrate No. 3. Bharatpur. On that day the Court of Additional Chief Judicial Magistrate No. 3, Bharatpur was lying vacant as the Presiding Officer had already been transferred and, therefore, the Link Magistrate did not take cognizance on the police report and the case was adjourned for July 30, 2002. On July 29, 2002, accused-petitioner Kamlesh moved an bail application in the Court concerned stating therein that as the charge-sheet has not been filed within 90 days from the date of his arrest, he is entitled to be released on bail under Section 167(2) Cr.RC. This application was rejected by learned Additional Chief Judicial Magistrate No. 3, Bharatpur on July 31, 2002. Thereafter accused-petitioner moved the application for bail under Section 439 Cr.RC. in the Court of learned Sessions Judge, Bharatpur which was transferred to the Court of learned Additional Sessions Judge No. 2, Bharatpur who, after hearing both the parties, dismissed it vide his order dated 16th August, 2002. Thereafter the accused-petitioner Kamlesh has moved this bail application before this Court on August 27, 2002. Learned Additional Chief Judicial Magistrate took cognizance against the accused-petitioner on August 7, 2002 and on the same day he committed the case to the Court of learned Sessions Judge, Bharatpur. At present the case is pending in the Court of learned Additional Sessions Judge (Fast Tract) No. 3, Bharatpur.

2. Mr. S.K. Gupta learned counsel for the accused - petitioner has submitted that in view of the provisions contained in the proviso to Sub-section (2) of Section 167 of the Code of Criminal Procedure, 1973 (here-in-after referred to as "the Code"), the detention of the accused-petitioner after the expiry of 90 days from the date of his arrest was without authority of law and since no order of remand u/s. 209 or u/s. 309 of the Code was passed before the expiry of aforesaid period of 90 days from the date of his arrest, the accused-petitioner is entitled to be released on bail under the provisions of proviso to Sub-section (2) of Section 167 of the Code. In this regard learned counsel has pointed out that the accused-petitioner was arrested on April 28, 2002, the period of 90 days expired on July 26, 2002 and, therefore, his detention after July 26, 2002 was unauthorized. It has been contended by learned counsel that on July 24, 2002, learned Magistrate could not remand the accused-petitioner beyond the period of 90 days from the date of arrest of the accused-petitioner which was to expire on July 26, 2002 in view of the provisions contained in Sub-section (2) of Section 167 of the Code and, therefore, the order of remand passed by learned Additional Chief Judicial Magistrate was illegal. Learned counsel has also contended that the power of remand under Sections 209 and 309 of the Code can be invoked only after the competent Magistrate has taken cognizance of the offence u/s. 190 of the Code. In the instant case, cognizance has been taken on August 7, 2002, after the expiry of the period 90 days from the date of arrest of the accused-petitioner. Therefore, the accused-petitioner is entitled to be released