Order.- Sri Bheema Raju, the learned Counsel for the petitioner, contends that when the Magistrate committed illegality in detaining the petitioner in custody beyond sixty days in violation of proviso (a) to sub-section (2) of section 167, Criminal Procedure Code, the accused, on account of such illegal detention can claim, as of right, the grant of bail even after the charge-sheet is filed against the petitioner accused for an offence under section 302, Indian Penal Code. 2. As against this contention, the learned Public Prosecutor contends that when once the charge-sheet is filed, the Court has to consider whether the circumstances of the case warrant the grant of bail to him and, this question should be considered with reference to the provisions of section 437, Criminal Procedure Code, but not with reference to the violation of the proviso (a) to sub-section (2) of section 167, Criminal Procedure Code. 3. It is now well-settled that the detention of an accused beyond the period of sixty days is unlawful inasmuch it violates the mandatory provisions of proviso (a) to sub-section (2) of section 167, Criminal Procedure Code. This legal position does not stand altered even if the investigation in respect of serious and ghastly types of crimes like criminal conspiracy, murders, decoities and robberies cannot be completed within the period of sixty days. Such a detention is illegal because the Magistrate is not given the power to extend the remand beyond the period of 60 days. 4. In Natabar Parida v. State of Orissa1, the Supreme Court held that the law as engrafted in proviso (a) to section 167(2) ........... confers the power of remand to judicial custody and the command of the Legislature in proviso (a) is that the accused has got to be released on bail if he is prepared and does not furnish bail and cannot be kept in detention beyond the period of sixty days even if the investigation is still pending. In serious offences such as criminal conspiracy murders, decoities and robberies by interested gangs or the like, it may not be possible for the police in the circumstances as they do exist, in various parts of our country to complete the investigation within the period of sixty days. In serious offences such as criminal conspiracy murders, decoities and robberies by interested gangs or the like, it may not be possible for the police in the circumstances as they do exist, in various parts of our country to complete the investigation within the period of sixty days. Yet the intention of the Legislature seems to be to grant under discretion to the Court and to make it obligatory for it to release the accused on bail. Of course, it has been provided in proviso (a) that the accused released on bail under section 167 will be deemed to be so released under the provisions of Chapter XXXIII and for the purpose of that chapter, that may empower the Court releasing him on bail if it considers necessary so to do and to direct that such person be arrested and committed to custody as provided in sub-section (5) of section 437 occurring in Chapter XXXIII. If it is not possible to complete the investigation within the period of sixty days, then even in serious and ghastly types of crimes, the accused will be entitled to be released on bail. Such a law may be paradise for the criminals but surely it would not be so, as some times it is supposed to be cause of the Courts. It would be so under the command of the Legislature. 5. In this case, the charge-sheet is filed against the petitioners. Prior to the filing of the charge-sheet, the accused was under the remand and the remand was extended from time to time even beyond the period of 60 days. 6. It is, therefore, clear that the detention of the accused beyond the period of 60 days is illegal inasmuch as it has violated the mandatory provisions of the proviso (a) to sub-section (2) of section 167. 7. The question is whether the illegal detention continues even after the charge-sheet is filed and whether the accused is entitled to be released on the sole ground that the detention of the accused prior to the charge-sheet is illegal without recourse to the provisions of section 437, Criminal Procedure Code. 8. Section 56, Criminal Procedure Code, requires the police officer making an arrest without warrant shall, without unnecessary delay and subject to the provisions contained as to bail, take or send the person arrested before the Magistrate having jurisdiction in the case. 8. Section 56, Criminal Procedure Code, requires the police officer making an arrest without warrant shall, without unnecessary delay and subject to the provisions contained as to bail, take or send the person arrested before the Magistrate having jurisdiction in the case. Section 57 commands that no police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances is reasonable and such period shall not, in the absence of a special order of a Magistrate under section 167, exceed 24 hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s Court. Section 167, Criminal Procedure Code, provides that whenever any person is arrested and detained in custody and it appears that the investigation cannot be completed within the! period of 24 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 the 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. Sub-section (2) of the said section provides further that 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. 9. 9. In view of these mandatory provisions, the intention of the Legislature is manifest to the effect that the investigation should be completed ordinarily within the period of 24 hours and if, for any reason, it could not be completed, then the accused should be produced before the Magistrate for the judicial custody and if the investigation officer requires the custody of the accused to be extended beyond the period of 24 hours, to facilitate and complete the investigation, the Magistrate is given the power to detain the accused in custody for a period, not exceeding 15 days in the whole and if the investigation is not completed within these 15 days, the investigating officer can approach the Court for the extension of the remand and the Magistrate is given power to extend the remand for a further period, but not under any circumstances, for a period beyond 60 days, however, grave the offence in which the accused is involved may be. 10. The provisions are salutary and provided in the statute both to facilitate the completion of the investigation at the earliest possible time and also to protect the liberty and safety of the accused from the harassment of prolonged detention in the name of investigation. Duty is, therefore cast on the Magistrate to be vigilant and is required to follow scrupulously these mandatory provisions. Even if the accused does not file a petition for the grant of bail on the ground of illegal detention beyond the period of 60 days, the Magistrate is under legal obligation to enlarge the accused on bail from such illegal detention. He cannot take shelter under the plea that the period was extended because no application for bail was filed by the accused. It is the vigilant eye of the Magistrate that is material in the observation of the proviso (a) to sub-section (2) of section 167 and it is not necessary for the accused to remind the Magistrate about his duty for the compliance of these mandatory provisions. 11. If the period of 60 days expired, it is the duty of the Magistrate to release the accused from the custody, when the learned Magistrate, without exercising his vigilance, keeps the accused in detention beyond the period of 60 days, the detention should be treated as unlawful. 12. 11. If the period of 60 days expired, it is the duty of the Magistrate to release the accused from the custody, when the learned Magistrate, without exercising his vigilance, keeps the accused in detention beyond the period of 60 days, the detention should be treated as unlawful. 12. Now the question before me is whether on account of such an illegal detention the accused as of right can claim the grant of bail even after the charge-sheet is filed. 13. The provisions of section 167, Criminal Procedure Code, relate to duties cast on the investigating officer and the procedure as to what the investigation officer has to follow if the investigation cannot be completed within 24 hours and also relate to the duties cast on the Magistrate to grant remand and also the limitations within which he has to exercise the power to grant remand. 14. The procedure engrated in section 167, Criminal Procedure Code, has to be followed only during the stage of investigation. When once the investigation is completed and charge-sheet is riled before the Magistrate, then the Magistrate takes cognizance of the matter and takes steps for the compliance of provisions of sections 208 and 209, Criminal Procedure Code. 15. It is, therefore, clear that the position that was prevailing prior to the conclusion of investigation would cease to operate after the charge-sheet is filed before the Magistrate. Even if it is found that the detention is unlawful in view of the contravention of mandatory provisions of section 167(2) (a), Criminal Procedure Code, by the Magistrate, the order of remand which will be in force during the pendency of investigation comes to an end with the filing of the charge-sheet. After the charge-sheet is filed, totally a new situation comes into effect. In other words, fresh legal position comes into play as the remand comes to an end and consequently the provisions of section 167 (2)(a), Criminal Procedure Code, would cease to operate. In such a case, the Sessions Judge or the High Court, as the case may be, will have to consider the tests laid down in section 437, Criminal Procedure Code, for grant of bail or for refusing the bail. That being the legal position. In such a case, the Sessions Judge or the High Court, as the case may be, will have to consider the tests laid down in section 437, Criminal Procedure Code, for grant of bail or for refusing the bail. That being the legal position. I have to hold that the accused is not entitled to claim as of right that he is entitled to be released on bail because of his illegal detention caused by the non-compliance of the provisions of section 167(2)(a), Criminal Procedure Code. 16. The single Judge Malik, J., in Heeraman v. State of Uttar Pradesh1, also took the view that the period of remand pending investigation came to an end and provisions of section 167(2)(a), Criminal Procedure Code, would cease to apply to such a case and in such a case bail can be granted only on merits, under the provisions of Chapter XXXIII of Criminal Procedure Code. 17. Another single Judge Varma, J., in Izhar Ahmed v. State2, posed the question whether the illegal detention of the applicant would entitled him to be released on bail. The learned Judge answered in the negative and held that if the detention at the stage of section 167, Criminal Procedure Code, is illegal that will stand cured if proper orders of remand were passed by the learned Magistrate under section 209, Criminal Procedure Code, after the charge-sheet had been submitted. 18. Sri Bheemaraju, the learned Counsel for the petitioner, relied upon a decision of the Full Bench in Surinder Kumar v. State of Punjab3, in support of his contention that the accused is entitled to be released on bail as of right when his detention was found to be illegal inasmuch as the remand was beyond the period of 60 days. I do not think that this decision lays down such a position of law though the learned Judges held that the provisions of proviso (a) to section 167(2), Criminal Procedure Code, come into operation the detention cannot be allowed to continue even after the period of 60 days. He has also relied upon a Division Bench decision of Allahabad High Court in Lakshmi Brahman v. State4. Even this decision does not lend any support to the contention raised by the learned Counsel for the petitioner. He has also relied upon a Division Bench decision of Allahabad High Court in Lakshmi Brahman v. State4. Even this decision does not lend any support to the contention raised by the learned Counsel for the petitioner. In that case a contention was raised that if a charge-sheet was submitted against the applicant he is not entitled to the benefits of section 167, Criminal Procedure Code. The learned Judge did not find force in that contention and held that if such a contention is accepted the object behind section 167, Criminal Procedure Code, would always be frustrated. The learned Judge directed the applicant be released on bail. 19. Sri Bheemaraju also relied upon the decision of the Division Bench of this Court in Bollayya v. State of Andhra Pradesh5. In that case the remand was extended till 15th December, 1977 and again it was extended to 28th December, 1977. Meanwhile a charge-sheet was filed on 17th December, 1977. The second respondent in that case took the case on file and posted the case to 28th December, 1977 to which date the accused had been remanded to judicial custody. On 28th December, 1977 all the accused were present and remanded and the matter was posted on 4th January, 1978. Again on 4th January, 1978 the accused were present but observing that ‘C’ report was not received (referring, obviously to a report of the chemical examiner to whom certain material objections were sent for examination) the second respondent posted the case to 7th January, 1978. Again for the same reason the case was adjourned from 7th January, 1978 to 12th January, 1978. Thereafter the case underwent the following adjournments from 12th January, 1978 to 21st January, 1978, from 21st January, 1978 to 28th January, 1978, from 28th January, 1978 to 3rd February, 1978, from 3rd February, 1978 to 10th February, 1978, from 10th February, 1978 to 17th February, 1978 and from 17th February, 1978 to 27th February, 1978. Meanwhile all the accused filed a bail application. By an order dated 23rd January, 1978 this Court directed accused 2, 3 and 5 to be released on bail on certain conditions. It however dismissed the application in so far as accused 1 and 4 were concerned. The petitioners filed the writ petition praying for the issue of writ of habeas corpus directing the production of the petitioners therein. By an order dated 23rd January, 1978 this Court directed accused 2, 3 and 5 to be released on bail on certain conditions. It however dismissed the application in so far as accused 1 and 4 were concerned. The petitioners filed the writ petition praying for the issue of writ of habeas corpus directing the production of the petitioners therein. They also applied in W.P.M.P. No. 983 of 1978 that this Court may grant bail to the petitioners on suitable terms pending disposal of the writ petition. The main contention urged on behalf of the petitioners was that the Criminal Procedure Code provides for remand under section 167, Criminal Procedure Code, but the moment the report is filed under section 173(1) and (2), Criminal Procedure Code the Magistrate is divested of his jurisdiction to remand under section 167, Criminal Procedure Code. Once cognisance of offence is taken there is no power to adjourn or remand by Magistrate under section 209, Criminal Procedure Code. The only course for the Magistrate under section 209, Criminal Procedure Code is to commit the accused to Sessions. The Magistrate instead of committing them on the day when he took cognisance of the offence adjourned the case from time to time without any sanction of law and continued to remand the accused to custody. Thus the Magistrate in violation of the procedure established by law exercised jurisdiction not vested in him and deprived the individual liberty of the petitioner from 21st December, 1977 onwards when he took cognisance of the case. He therefore contends that the petitioners are entitled to the issue of a writ of habeas corpus. 20. The learned Judges in that case observed that the Magistrate took cognizance and adjourned the case to 28th December, 1977 to which date the accused was remanded. It appears from the proceedings that a mud pot containing bloodstained earth seized from the place where the deceased was found dead, together with blood-stained clothes were sent for the report of the chemical examiner and the report had not been received. It is for that reason that the matter was being adjourned from time to time. Though in the order dated 28th December, 1977 no specific mention is made about this reason in the order dated 4th January, 1978 and 7th January, 1978 it is clear stated that the report was not received. It is for that reason that the matter was being adjourned from time to time. Though in the order dated 28th December, 1977 no specific mention is made about this reason in the order dated 4th January, 1978 and 7th January, 1978 it is clear stated that the report was not received. Again the reason was not stated in the subsequent orders of adjournment. But it is proper to infer that the adjournment was for the same reason. The learned Judges could not therefor say that the Magistrate had no adequate reason for adjournment of the matter from time to time or that reasons were not recorded as required by section 309, Criminal Procedure Code, and in the result the learned Judges see no reason to hold that the remand of the accused to custody was illegal and for that reason he is entitled to a writ of habeas corpus and the petition was therefore dismissed. 21. Hence the above cited decision of the Division Bench of this Court does not support the contention of the learned Counsel for the petitioner. 22. Having regard to my above discussion I am not inclined to agree with the contention raised by the learned Counsel for the petitioner. 23. Sri Bheemaraju the learned Counsel for the petitioner contends that the third accused should be enlarged on bail as his case stands on the same footing with those accused who were enlarged on bail. After hearing the contention of the learned Public Prosecutor it is clear that there is material in pointing out the commission of offence by this accused along with A-1 and A-2 and the offence is of a grave nature. Hence A-3 cannot be treated as standing on the same footing with those who were enlarged on bail. As there is ample material against A-1 to A-3 with regard to the commission of offence which is of grave nature, they cannot be enlarged on bail. The petition is, therefore, dismissed.