NAGENDRA PRASAD SINGH, J. Criminal Writ Jurisdiction Case No. 284 of 1974-has been filed for issuance of a writ of habeas corpus for the release of the petitioners from detention, on the ground that their detention in jail custody is without any authority in law. 2. The petitioners are accused in a case under sections 302 and 341 of the Indian Penal Code. It has been stated that petitioner no. 1 is in jail custody since the 25th April, 1974 and petitioner No. 2 is in jail custody since the 28th April, 1974, and no final form had been submitted till the date of the filing of the writ application on the 27th August, 1974, and they are being remanded to jail custody from time to time, which, according to the petitioners, after the expire of sixty days from the dates of their apprehension, is illegal and without jurisdiction. 3. The petitioner in Criminal Miscellaneous 3159 of 1974 is an accused in a case under section 395 of the Indian Penal Code, and has filed this application for being released on bail in as much as, after the expiry of sixty days from the date of his arrest, there is no authority in the Court to remand to custody for any further period and the petitioner is entitled to be released on bail after the expiry of the said period of sixty days. 4. Similar is the stand of the petitioner in Criminal Miscellaneous No. 2817 of 1974 and 3175 of 1974 who are accused in cases under section 302, read with other sections, of the Indian Penal Code. 5. As a common question of law has been raised in all these applications, with the consent of the parties, they have been heard together and this judgment will govern all of them. The question raised on behalf of the petitioners is- Whether, in view of the proviso (a) to sub-section (2) of section 167 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the 'new Code'), an accused person has to be released on bail after the expiry of sixty days from the date he is taken into custody, if he is prepared to and does furnish bail ? 6. 6. According to learned counsel appearing for the petitioners in all these cases, this proviso has been introduced in the new Code so that the investigation must be completed within a period of sixty days from the date the accused is taken in custody, and in cases where" for one reason or the other, the investigation is not completed within the - said period of sixty days, the accused has to be released on bail irrespective of the nature of the offence alleged to have been committed by him. According to learned counsel, in the Code of Criminal Procedure, 1898 (hereinafter referred to as the 'old Code') there was no time limit for the police to submit the final form, and in many cases final forms were not. submitted even for years, and, as such, the accused had to be remanded to jail custody from time to time; but now, in view of this Proviso sub section (2) of section 167 of the new Code, indirectly a time limit has been prescribed for submission of the final form, and in cases of failure the accused becomes entitled to be released on bail. 7. Under the new Code, Chapter XII is headed as "Information to the Police and their powers to investigate". This chapter was chapter V in the old Code. This Chapter provides as to how information relating to the commission of a cognizable offence has to be recorded and what power can be exercised by the Police Officers during the course of investigation. Under section 173, after investigation a final form has to be submitted to the Magistrate empowered to take cognizance of the offence on a police-report. This marks the conclusion of the investigation. In this very chapter occurs the relevant section 167. In order to appreciate the change that has been introduced in the new Code, section 167 of the old Code has to be looked into. This marks the conclusion of the investigation. In this very chapter occurs the relevant section 167. In order to appreciate the change that has been introduced in the new Code, section 167 of the old Code has to be looked into. Section 167 of the old Code read as follows : "167(1) Whenever any person is arrested and detained in custody, and it appears that the investigation can not be completed within the period of twenty four hours fixed by section 61, 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 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. 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 no Magistrate of the third class and no Magistrate of the second class not specially empowered in this behalf by the State Government shall authorise detention in the custody of the police. (3) A Magistrate, authorising under this section, detention in the custody of the Police shall record his reasons for so doing. (4) If such order is given by a Magistrate, other than the District Magistrate or Sub Divisional Magistrate, he shall forward a copy of his order, with his reason for making it, to the Magistrate to whom he is immediately subordinate;" 8. (4) If such order is given by a Magistrate, other than the District Magistrate or Sub Divisional Magistrate, he shall forward a copy of his order, with his reason for making it, to the Magistrate to whom he is immediately subordinate;" 8. Under section 167 of the old Code, the police officer had to produce before the nearest Magistrate, within twenty four hours, any accused who had been arrested and detained in custody, if it appeared to such officer that the investigation could not be completed within twenty four hours, and that Magistrate, from time to time, had to authorise the detention of such accused in such custody, his he thought fit for a term not exceeding fifteen days in the whole. Section 167 of the new Code, while substantially incorporating sub-sections (1) and (2) of the old section 167, has added an important proviso to sub section (2). Section 167 of the new Code runs as' follows: "167 (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 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 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 detention of the accused person otherwise than in 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 section for a total period exceeding sixty days, and on the expiry of the said period of sixty days, 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 section shall be deemed to be released under the provisions of Chapter XXXIII for the purposes of that Chapter; (b) no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him; (c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the Police. Explanation-::- If any question arises whether an accused person was produced before the Magistrate as required under paragraph (b), the production of the accused person may be proved by his signature on the order authorising detention. (3) A Magistrate authorising under this section detention in the custody of the Police shall record his reasons for so doing. (4) Any Magistrate other than the Chief Judicial Magistrate making such order shall forward a copy of his order, with his reasons for making it, to the Chief Judicial Magistrate. (3) A Magistrate authorising under this section detention in the custody of the Police shall record his reasons for so doing. (4) Any Magistrate other than the Chief Judicial Magistrate making such order shall forward a copy of his order, with his reasons for making it, to the Chief Judicial Magistrate. (5) If any case triable by a Magistrate as a summons-case, the investigation is not concluded within a period of six months from the date on which the accused was arrested, the Magistrate shall make an order stopping further investigation into the offence unless the Officer making the investigation satisfies the Magistrate that for special reasons' and in the interests of justice the continuation of the investigation beyond the period of six months his necessary. (6) Where any order stopping further investigation into an offence has been made under sub-section (5), the Sessions Judge may, if he is satisfied, on an application made to him or otherwise, that further investigation into the offence ought to be made, vacate the order made under sub-section (5) and direct further investigation to be made into the offence subject to such direction with regard to bail and other matters as he may specify." 9. In view of section 157 and sub-section (1) of section 167 of the "new Code, no police-officer shall detain in custody a person arrested without warrant for a longer period than, in the circumstances of the case, is reasonable, and, in absence of special order of the Magistrate under section 167, it shall not exceed twenty-four hours, exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court and he has to be forwarded to the nearest Judicial Magistrate; and, in view of sub-section (2) of section 167, when such an accused is produced before the Magistrate, he may authorise detention in such custody, as he may think fit, from time to time for a term not exceeding fifteen days in the whole. According to learned counsel appearing for the petitioners, under subsection (2) of section 167, such detention should not exceed fifteen days in the whole, but, in view of the proviso (a) to the said sub section (2), the Magistrate can authorise detention of an accused in custody, other than police custody, for a total period of sixty days; but, on the expiry of the said period of sixty days, the accused has to be released on bail, if he is prepared to and does furnish bail. 10. There was no provision in the old Code parallel to proviso (a) to sub-section (2) of section 167 of the new Code. According to learned counsel for the petitioners, this proviso is imperative in nature and no discretion is left in the Court, and, as such, after the expiry of the period of sixty days, the accused has to be released on bail. It has been contended on behalf of the petitioners that, if, however, charge sheet is submitted within the said period of sixty days, then, the accused is not entitled to benefit of the aforesaid proviso. It must be observed in this connection that the language of the proviso (a) to sub section (2) of section 167, at the first sight, lends support to the contention raised on behalf of the petitioners. But, it is well known that the role of a proviso is different from the substantive provision of law. A proviso to a Section is not independent of the section calling for independent consideration, or construction detached from the, construction to be placed on the main section, as it is merely subsidiary to the main section and has to be construed in the light of the section itself. The object of the proviso is to carve out from the main section a class or category to which the main section does not apply and such proviso cannot possibly deal with an entirely different topic or subject. Reference in this connection can be made to the cases of Ram Narain Sons Ltd. v. Assistant Commissioner of Sales Tax and others. 11. Reference in this connection can be made to the cases of Ram Narain Sons Ltd. v. Assistant Commissioner of Sales Tax and others. 11. In Maxwell on The Interpretation of Statutes, Twelfth edition, at page 189, in respect of difficulties sometimes arising in construing provisos, it is stated : "It will, however, generally be found that inconsistencies can be avoided by applying the general rule that the words of a proviso are not to be taken 'absolutely in their strict literal sense' but that a proviso is 'of necessity..., limited in its operation to the ambit of the section which it qualifies'. And, so far as that section itself is concerned, the proviso again receives a restricted construction where the section confers powers, 'it would be contrary to the ordinary operation of a proviso to give it an effect which would cut down those powers beyond what compliance with the proviso renders necessary. Therefore, it has to be seen as to whether Parliament has expressed its intention in unmistakable terms that an accused has to be enlarged on bail irrespective of the nature of the offence he is alleged to have committed, after the expiry of sixty days from the date he is taken in custody; and if so, why such an important provision was not made in the substantive section, but was introduced by way of a proviso. In that connection it has also to be examined as to whether the said proviso is in conflict with any other substantive provision of the Code, and, if there is any conflict, whether both or which of them will prevail. 12. Learned counsel for the petitioners have not and could not challenge that section 167 of the new Code occurs in the chapter relating to investigation, and any provision regarding bail etc. is only incidental. The power regarding bail has been separately dealt with under Chapter XXXIII of the new Code. But, according to them, this proviso to Sub-section (2) of section 167 will prevail even over the powers of the Court relating to grant of bail in Chapter XXXIII and those provisions will be subject to the provision under proviso (a) to sub-section (2) of section 167. 13. Under Chapter XXXIII of the new Code section 436 is substantially a reproduction of section 496 of the old Code, that is, provisions for bail of persons accused of bailable offences. 13. Under Chapter XXXIII of the new Code section 436 is substantially a reproduction of section 496 of the old Code, that is, provisions for bail of persons accused of bailable offences. Section 437, with certain additions and amendments, has replaced section 497 of the old Code. Sub-section (1) of section 437, which is relevant for the present purpose, is substantially the same as it was sub-section (1) of section 497 of the old Code. Section 437(1) reads thus : "437(1) When any person accused of or suspected of the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail, but he shall not be so released if there appear reasonable grounds .for believing that he has been guilty of an offence punishable with death or imprisonment for life: Provided that the Court may direct that any person under the age of sixteen years or any woman or any sick or infirm person accused of such an offence be released on bail : Provided further that, the mere fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by the Court." A bare reference to sub-section (1) of section 437 of the new Code will show that it relates to the power of Courts other than the High Court or the Court of Session, to release an accused person on bail who is suspected of commission of any non-bailable offence. It says in unmistakable terms, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or, imprisonment for life". There is no such restriction on the power of the High Court or the Court of Session for which a specific provisions has been made under section 439 of the new Code. There is no such restriction on the power of the High Court or the Court of Session for which a specific provisions has been made under section 439 of the new Code. From a reading of a sub-section (1) of section 437 and sub-section (1) of section 439, it is obvious that the mandate of Parliament is that the Courts other than the High Court or the Court of Session, shall not enlarge an accused person on bail who is suspected of commission of any non-bailable offence, which is punishable with death or imprisonment for life, except where the accused is under the age of 16 years or is a woman or a sick or infirm person. 14. There is an apparent conflict between proviso (a) to sub-section (2) of section 167 and sub-section (1) of section 437 of the new Code. It is well settled that, when there is a conflict or repugnancy between a proviso to a section and another section, the provision of the section should prevail, but, on well known rules of interpretation, first efforts should be made to harmonise the two. In Maxwell on the Interpretation of Statutes, twelfth edition, at page 187, it is said as follows: "If two section of the same statute are repugnant, the known rule is that the last must prevail. But, on the general principle that an author must be supposed not to have intended to contradict himself, the court will endeavour to construe the language of the legislature in such a way as to avoid having to apply the rule leges posteriores priors contrarias abrogant." It has also to be borne in mind that, while construing a statute, an interpretation should be avoided which may lead to friction with other well-established law or may cause absurd or outrageous consequences. In that connection a reference may be made to the case of Yates v. The Queen (1885) XIV QB. In that connection a reference may be made to the case of Yates v. The Queen (1885) XIV QB. Dn 648 at 665 where it was observed by Lindley, J. "To my mind, this Court ought not construe any statute in such a way as to bring about such an absurdity unless driven to it by words which will admit of no other construction.…….” In Madaripur Commercial Bank Ltd. v. Lal Mohan Saha and others AIR 1947 Cal 127 ab 128, it was observed : “(4) It is certainly true that where the language of an Act, is plain, it must be construed according to that language, whatever the inconvenience or apparent hardship caused. But it is also true that the plain meaning of certain language is not necessarily its literal meaning and a secondary meaning may be equally plain. So it may be found that a statute, although it comprehends all things in the letter, has yet to be expounded as but limited to certain things, if effect is to be given to all its parts or if the system of rights and remedies it purports to regulate is to work smoothly, without confusion or without friction with other well-established law or without causing outrageous consequences. These are cases where the legislature may legitimately be held to have intended a particular meaning, although it used words of a general import or to have contemplated a specific object, although it appeared to provide for all things in general". In Bhagwat Parshad v. Inspector General of Police, Punjab and others A.I.R. 1970 P & H 81 at 84, it was observed : "The general words should receive a general construction and their meaning may in an appropriate case be expanded or restricted with a view to see that construction does not lead to injustice, oppression or to an absurd consequence". 15. In the light of the above well established principles of interpretation of statutes, it has to be examined as to how the provisions of proviso (a) to sub-section (2) of section 167 should be interpreted, specially in face of sub- section (1) of section 437 of the new Code. 15. In the light of the above well established principles of interpretation of statutes, it has to be examined as to how the provisions of proviso (a) to sub-section (2) of section 167 should be interpreted, specially in face of sub- section (1) of section 437 of the new Code. If Proviso (a) to sub-section (2) of section 167 is interpreted to mean that, irrespective of the nature of the offence alleged to have been committed by an accused, he is to be enlarged on bail, merely on the ground that the statutory period of sixty days of his detention has expired, in my opinion, it will create an anomalous and absurd position. The said interpretation will not only be in conflict with the mandate of Parliament as contained in subsection (1) of section 437 of the new Code, but will also leave no scope for the application of judicial mind for deciding as to whether the said accused deserved to be released on bail or not. It will be, more or less, a mechanical affair. There will be no occasion for the Court of Session or the High Court to exercise its power under section 439 of the new Code directing that an accused person should be enlarged on bail, except when an application for bail is moved within the said period of sixty days. The Magistrate will have to enlarge the accused on bail as a matter of course, although he may be satisfied that the delay in submission of the final form was due to circumstances beyond the control of the investigating officer and the release of the accused on bail might prove prejudicial to the investigation. In my view, it has to be taken that Parliament never wanted to override the provision of sub-section (1) of section 437 by introducing proviso (a) to sub-section (2) of section 167 vesting in Courts, other than the Sessions Judge and the High Court, power to enlarge an accused person on bail against whom there are reasonable grounds for believing that he had been guilty of an offence punishable with death or imprisonment for life. 16. 16. It has been contended on behalf of the petitioners that proviso (a) to sub-section (2) of section 167 is a specific provision, whereas sub-section (1) of section 437 of the new Code is a general provision and the special provision should prevail over the general provision. In this connection reliance has bee~ placed on the observation of the Supreme Court in J.K. Cotton Spinning & Weaving Mills Ltd. v. State of Uttar Pradesh A.I.R. 1961 S.C. 1170. So far as the principle is concerned there cannot be any dispute; but, in my opinion, section 437 (1) is the specific provision for bail and the provision for bail made in proviso (a) to sub-section (2) of section 167 is only incidental to the general power of the Magistrate during the investigation stage. As already indicated, the role of a proviso is limited in nature and whenever any conflict arises between the provision of a proviso and the provision of a substantive section and they cannot be harmonised, then the proviso must give way to the provision of the substantive section. However, in the cases in hand, if a harmonious construction is adopted to avoid repugnancy in the two provisions of the same Code, it has to be held that, if any Magistrate has authorised detention of an accused for a total period of sixty days, then, after the expiry of the said period, an accused against whom there are no reasonable grounds for believing that he had been guilty of an offence punishable with death or imprisonment for life, shall be released on bail; but, on the other hand, an accused against whom there are 'reasonable grounds for believing that he was guilty of an offence punishable with death or imprisonment for life shall not be released on bail by such Magistrate or Court and to that extent the bar placed upon their powers by section 437 (1) of the new Code shall prevail. 17. 17. It has been contended on behalf of the petitioner that, in view of die language of proviso (a) to sub-section (2) of section 167 of the new Code, after the expiry of sixty days from the date of apprehension of an accused, his detention becomes without any authority in law and he is entitled to be released on bail as a matter of course, and for that purpose even habeas corpus applications are maintainable before this Court. In this connection reliance has been placed on the following words of the said proviso : "But no Magistrate shall authorise the detention of the accused person in custody under this section for a total period exceeding sixty days." In my opinion, there is no substance in this contention on behalf of the petitioners. If the detention itself, in cases where the accused has been in custody for more than sixty days, is to become without any authority in law after the expiry of sixty days, there was no question of providing in the same provision for enlarging an accused person on bail if he is prepared to and does furnish bail. If the accused is not in a position to furnish bail, the proviso does not contemplate of his being released without a bail bond. 18. In the instant cases, against the petitioners in all these cases there were reasonable grounds for believing that they were guilty of offence punishable with death or imprisonment for life and as such their detention in custody on the basis of orders passed by the Magistrate concerned authorising their detention from time to time cannot be held to be without any authority in law. 19. Learned counsel appearing for the petitioners in these cases, except in Criminal Miscellaneous No. 3159 of 1974, have not pressed the applications on merits. In some of them prayer for bail has already been rejected by this Court on earlier occasions. So far as the petitioner in Criminal Miscellaneous No. 3159 of 1974 is concerned, he is an accused under section 395 of the Indian Penal Code. He was identified at the test identification parade as one of the dacoits who participated in the dacoity, armed with a revolver. As such, I am not inclined to enlarge him on bail. 20. There is no merit in these applications and accordingly, they are all dismissed. I agree.