The right to bail under the proviso to Section 167(2) of the Code of Criminal Procedure is absolute if the charge-sheet is not filed within 90 days.

1. - Heard Mr Biri Singh. The petitioner in connection with FIR No. 23/91 registered at Poclice Station Nadbai in respect of offence Under Sections 22 & 27 of the Narcotic Drugs and Psychotropic Substances Act, 1985 by the Station House Officer of the said police station on 21st Jan ,91. He was produced before the Judicial Magistrate on 2nd Jan , 91. The Judicial Magistrate from time to time passed remand order. The officer incharge of the police station, after completing the investigation, filed challan on 24th Apr., 91 after 92 days.

2. It may be stated that proviso (a) (i) of S. 167 (2) of the Code of Criminal Procedure, 1973 clearly provides that the Magistrate may authorise the detention of the accused person, otherwise then in the custody of the police, beyond the period of 15 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 90 days, where the investigation relates to an offence punishable with that, imprisonment for life, or imprisonment for a term of not less than 10 years. It is true that by now the challan has been filed. It has been held by this Court in Heera Ram and another v. State that by filing the challan after the expiry of 90 days, the right of the accused to the grant of bail under the above provision curtailed cannot be sustained. Reference was made in this connection to the decision of their Lordships of the Supreme Court in Raghuveer Singh & others v. State of Bihar , wherein it was said that an order for release on bail made under the proviso to S. 167 (2) is not defeated by lapse of time, the filing of the charge-sheet or by remand to custody Under section 309 (2) of the Code of Criminal Procedure. In Rajni Jeewan Lal v. Intelligence Officer, Narchotic Control Bureau, New Delhi reported in 1990(1) EFAR 221 , it was held that the right to bail Under section 167 (2) proviso (a) thereto is absolute. It is a legislative command and not courts discretion. If the investigating agency raised to file charger-sheet before the expiry of 90 days, the accused in custody should be released on bail.

3. It may be made clear that even after release on bail of an accused under proviso (a) to S. 167 (2) Cr. P. C. any court which has released him on bail may, if it considers it necessary so to do, direct that such person be arrested and committed to custody. This is borne out from S. 37 (3) of the Code of Criminal Procedure. It implies that the court if it considers it necessary direct that the person on bail be arrested and committed to custody. That can be done if the court comes to the conclusion that there are sufficient grounds that the accused has committed a non-bailable offence and that it is necessary that he should be ai rested and committed to custody. This is, however, a different matter and it is for the court concerned to determine whether it would like to proceed for cancellation of bail after its grant.

4. An order for release on bail under proviso (a) to S. 167 (2) has been termed to be as an order on default. It is a release on bail on the default of the prosecution in filing charge-sheet within the prescribed period. As already stated, the right to bail under this proviso is absolute.

5. Since the charge-sheet in the present case was admittedly filed after 90 days, the petitioner acquired a right to be released on bail Under section 167 (2), proviso (a) (i).I, therefore, allow this application and direct the Chief Judicial Magistrate, Bharatpur to release the petitioner on bail Under section 167 (2), proviso (a) of the Code of Criminal Procedure if the petitioner is prepared to and does furnish bail as may be directed by the Chief Judicial Magistrate. The petition is accordingly allowed.

6. A copy of this order be sent to the Chief Judicial Magistrate, Bharatpur.Petition allowed.

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