Honble BHANDARI, J.—Heard learned counsel for the petitioners as well as the learned Public Prosecutor and perused the record of the case.

(2). It is contended by learned counsel for the petitioners that a case was registered under Sections 399, 402, 307, 353 of the Indian Penal Code (for short `the I.P.C.), Section 3/25 of the Arms Act and Section 11 of the Rajasthan Dacoity Affected Area Act, 1986 (for short `the Act of 1986). The accused petitioners were arrested on 6.4.08, thus in view of the provisions of Section 167 of the Criminal Procedure Code (for short `the Cr.P.C.), the Magistrate was authorized to detain the accused person in custody pending investigation maximum for the period of 60 days, however, in the present matter, the accused petitioners were detained beyond the statutory period, thus in view of the provisions of Section 167(2)(a)(ii) Cr.P.C., the petitioners were to be released on bail.

(3). Learned counsel for the petitioners elaborately argued that under the provisions of Section 307 IPC., punishment is divided in two parts. In the first part, the punishment is with imprisonment of either description for a term which may be extended to ten years, and shall also be liable to fine. In the second part in the same provisions, if hurt is caused to any person by such an act, the offender is liable either to imprisonment of life or punishment which may extend to 10 years imprisonment.

(4). It is submitted that in the present matter since no hurt is caused to any person, thus the maximum punishment can be imposed for imprisonment, which may be extended to ten years. Referring to the record, it is also submitted that the allegations as existed in the FIR and otherwise are that the accused opened the fire but nobody was hurt out of that fire, hence, the petitioners are not liable to be punished with punishment of life imprisonment. So far as the provisions of Sections 399, 304 and 353 IPC and Section 3/25 of the Arms Act are concerned, the punishment is maxium of ten years under Section 399 IPC and otherwise for other provisions, it is even less than ten years, therefore, argument of learned counsel for the petitioners is that detention during the period of investigation could have been made maximum for the period of 60 days as the Magistrate was not authorize for detention beyond the period of 60 days.

(5). Referring to the provisions of Section 167(2) Cr.P.C., it is urged that detention by the Magistrate is authorized even for the period of 90 days, if the offence is punishable with death, imprisonment for life or imprisonment for a term of "not less than ten years". Referring to the judgment of the Honble Apex Court in the case of Rajeev Chaudhary vs. State (NCT) of Delhi reported in (2001) 5 SCC 34, it is contended that the aforesaid aspect in reference to Section 167 Cr.P.C. was considered by the Honble Apex Court and therein, it was held that for authorizing detention for a period of 90 days, the offence should be punishable with ten years or more, thus on the strength of the aforesaid judgment, learned counsel for the petitioners supported his argument to show that in the instant case, the investigation was required to be completed within the period of 60 days and thereby if the charge-sheet is not filed within the period of 60 days, then petitioner is to be given bail.

(6). Referring to the judgment of the trial Court, it is urged by learned counsel for the petitioners that the trial Court had not decided the issue in a specific term as to whether the Magistrate was authorized to order detention of the accused for a period of 60 days or 90 days being the period of investigation rather on hypothetical basis it is observed by the trial Court that even if, the charge-sheet was to be filed within the period of 60 days and thereby the Magistrate was authorized for detention of the accused for a period of 60 days pending investigating, then also the period of 60 days detention of the accused came to an end on 5.6.08

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