R. N. MISRA, CJ.

( 1 ) THIS application under section 439 of the Code of Criminal Procedure of 1973 (hereinafter referred to as the Code) is for enlargement of the petitioner on bail.

( 2 ) ON the basis or a First Information Report lodged on 6. 6. 1981, by a police constable alleging that one Kunia alias Pradeep Kumar Mohanty had been murdered, a case was registered under section 302, Indian Penal Code and investigation was undertaken by the Capital Police Station, Bhubaneswar. Four persons appeared to have been implicated in the occurrence, namely Babu alias Bijayaketan Mohanty, Jitu alias Binod Behari Mohapatra, Bubu Jayanata Kumar Rath and Bubu alias Suresh Mohapatra. Suresh remained untraced but the other three accused persons were apprehended. Bijayaketan, the present petitioner, made an application to the Sub-Divisional Judicial Magistrate of Bhubaneswar for being enlarge on bail and his application was rejected on 25. 6. 1981. On 23. 9. 81, bail on his behalf was again moved on the ground that the petitioner had remained in custody for ninety days and yet no charge-sheet was submitted. Keeping the proviso to section 167 (2) of the Code in view, the learned Sub-Divisional