( 1 ) THIS is an application under Section 439, Criminal P. C. by Lakshmi Brahman and Nawal Garg. The applicants pray that they may be directed to be released on bail. Since the case involved the interpretation of Section 167 (2) of the Code of Criminal Procedure, 1973, and the learned single Judge thought that there was a conflict of judicial opinion in that regard, be referred the case to a Division Bench. This is bow the case has come up before us. ( 2 ) THE two applicants Lakshmi Brahman and Nawal Garg were accused in a case under Section 302, I. P. C. They surrendered themselves before a Magistrate on 2nd November, 1974 and were taken into custody on the same day. However, the police failed to submit a charge-sheet against them, within 60 days of their arrest (the charge-sheet had not been submitted even upto 5th February, 1975 ). The applicants, therefore, moved the present application and claimed that once the police failed to submit a charge-sheet within a period of 60 days of the arrest, their detention thereafter became illegal and they were entitled to be released on bail as provided in Section 167 (2) of the Code of Criminal Procedure, 1973. In their application, the applicants further alleged that their request for being released on. bail had already been rejected by the Sessions Judge, but they did not make it clear whether their request was made and rejected before or after the expiry of 60 days of their arrest

( 3 ) WHEN the case came up for hearing before us, learned Counsel appearing for the State admitted that in this case the police did not submit the charge-sheet against the applicants within 60 days of 2-111974 (the date on which the two applicants were taken into custody ). He also informed us that subsequently the charge-sheet has been submitted and the Magistrate has already taken cognizance of the offence. However, by the time this application came up for hearing before us, the learned Magistrate, could not, due to certain unavoidable reasons, make an Older committing the applicants to the Court of Session. He contended that once the charge-sheet has been submitted and cognizance of the offence taken, Section 167 (2) of the Code ceased to apply and in such circumstances an accused could not claim to be released on bail as of right His prayer for bail had to be considered in accordance with the provisions of Section 437 of the Code of Criminal Procedure.

( 4 ) RELEVANT portion of Section 167, which falls in Chapter XII of the Code dealing with the information of police and their powers to investigate, reads thus:

(1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by Section 57, and there are grounds for believing that the accusation or information is well founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.

(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 be has no jurisdiction to try the case or commit it for trial, and consider further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:

Provided that(a) the Magistrate may authorise detention of the accused person, otherwise than in custody of the police, beyond the period of fifteen days if he is satisfied that adequate groundsexist for doing so, but no Magistrate shall authorise the detention of the accused person in custody unde