R.C.Mishra,J.

( 1. ) Arguments heard. This is an application under proviso to sub-Section (2) of Section 167 (for short the proviso) read with S.439 of the Code of Criminal Procedure (for brevity the Code).

( 2. ) The applicant was arrested on 28.08.2009 in connection with Crime No.25/2009 registered at P.S. Mohangarh,Distt. Tikamgarh,initially, in respect of the offence punishable under Section 392 of the IPC.

( 3. ) Allegations against the applicant, in short, are that on 28.08.2009 at 9 a.m., he and his brother Sunder were conjointly involved in a robbery, in the course of which, after putting complainant Rambihari under a fear of death by placing a katta on his chest, they had relieved him of a cash amount of Rs.7,000/- and a gold chain.

( 4. ) After expiry of 60 days, the applicant claimed compulsive release on bail under the proviso by filing an application on 29.10.2009. However, the application was rejected by Judicial Magistrate First Class vide order-dated 30.10.2009 on the ground that charge-sheet reflecting commission of the offences under Sections 392 and 397 read with S.34 of the IPC, could be filed within the prescribed period of 90 days as S. 397 has to be read with S.394 that carries life imprisonment. His application moved an application under Section 439 of the Code for grant of bail was rejected by learned Sessions Judge on 05.11.2009 for the reason that the applicant has a consistent criminal record to his credit. However, while doing so, he also approved the view taken by learned JMFC that the applicant was not entitled to release on bail under the proviso.

( 5. ) In the light of pronouncement of the Supreme Court in Uday Mohanlal Acharya v. State of Maharashtra (2001) 5 SCC 453, the scope and effect of the proviso has already been discussed by this Court in Mahesh v. State of M.P. 2008 (3)MPHT 47.

( 6. ) The short question that arises for consideration is as to whether the case of the applicant was covered by the proviso.

( 7. ) For a ready reference, provision of sub-Section (2) of Section 167 of the Code may be reproduced as under - 167. Procedure when investigation cannot be completed in twenty-four hours.

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

Provided that-

[(a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen 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,- (i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years; (ii) Sixty days, where the investigation relates to any other offence, And, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be to released under the provisions of Chapter XXXIII for the purposes of that Chapter; (b) .........; 8. At the outset, it may be observed that since no injury was caused to the complainant, Section 394 of the IPC had no application to the facts of the case. Admittedly, the charge-sheet for the offences under Sections 392 and 397 read with 34 of the IPC was submitted on 30.10.2009 i.e. after expiry of period of 60 days from the date of the order of remand of th