( 1. ) THIS is an application for grant of bail by one of the accused persons who has been arrested by the police Gaisabad for the offences under sections 302, 307, 297/397, 324, 323 and 338 all read with sections 149, 147, 148 and 506 of the Indian Penal Code.

( 2. ) AT the outset it may be mentioned that the learned counsel for the accused-applicant made it clear that he was not arguing the application on merits regarding the allegation of the offences against the accused applicant and confined his argument only to the legal contention as shall be indicated hereinafter.

( 3. ) THE learned counsel for the applicant submitted that the accused-applicant was arrested by the police on 18-7-1978; on 3-8-1978, an application for bail was filed on behalf of the applicant which was rejected on the ground that investigation was on; on 16-8-1978 an incomplete challan was filed by the police in the Court of the Chief Judicial Magistrate, Damoh; whereafter another application for bail was filed in the Court of Session at damoh which has been rejected by that Court vide its order dated 28-8-1978 in bail application case No. 220 of 1978 on the ground that the challan was incomplete. He further submitted that after 7-9-1978, when this Court ordered for the calling of the record of the Court of the Chief Judicial Magistrate, as was requested by the counsel for parties, for the hearing of the application which was filed on 31-8-1978, the Chief Judicial Magistrate has committed the case to the Court of Session on the basis of the incomplete challan that was filed on 16-8-1978 on an application being made by the prosecution that no further investigation is to be carried by it except that the reports of the Chemical Examiner and Serologist, as already stated in the challan dated 16-8-1978, are to be received.

( 4. ) ON the aforesaid facts, the learned counsel raised the following contentions;

(1) That according to section 173 of the Criminal Procedure Code, 1973 (hereinafter for short referred to as the new Code), a challan in the form prescribed in it has to be filed only after the completion of the investigation and it should be accompanied by (a) all documents or relevant extract thereof on which the prosecution relies; and (b) the statements recorded under section 161 of all the persons to whom the prosecution proposes to examine as its witnesses. In the instant case, as mentioned in the challan itself, the investigation is not completed inasmuch as the prosecution has yet to receive

(i) the reports of the Chemical Exa-miner and the Serologist and (ii) has to verify the defence of alibi raised by the accused-applicant in the course of investigation. Thus, as the investigation is still on and 60 days have expired on 16-9-1978 that is the date of argument, calculated from the date of arrest 18-7-1978, the accused was entitled to be released on bail by virtue of sub-section (2) of section 167 of the Code.

(2) That the order of commitment passed by the Chief Judicial magistrate during the pendency of this application on 8-9-1978 does not deprive the accused-applicant of his right to be released on bail under sub-section (2) of section 167 of the Code as the committing Court could not take cognizance and pass the order of commitment on the incomplete challan.

(3) That even assuming, an incomplete challan could be filed or that the challan was complete, the Magistrate had no authority to remand the accused to custody pending the committal order; the proceedings before the committing Magistrate are not the inquiry proceedings. The committing Court has to make no inquiry under the Code.

(4) That even after the commitment, the position of incomplete challan does not change and therefore, the right of the accused to be released on bail under the proviso to sub-section (2) of section 167 remains unaffected.

( 5. ) THE learned Deputy Advocate General appearing on behalf of the state combating the arguments of the learned counsel for the applicant