Short Note : 1. The applicant was arrested for an offence under section 302 of the Indian Penal Code. On 27-5-78 an application for bail was submitted to the Committing Magistrate for releasing the applicant on bail The ground raised in this application was that the chargesheet was not filed inspite of the detention in custody of the applicant for more than 60 days. The Magistrate, however, rejected the application. On the same day, prosecution filed a charge-sheet also against the applicant. Thereafter, an application for bail was submitted before the Court of Sessions which also came to be rejected by the Sessions Judge. The applicant has now filed this application before this Court. Held: Chapter 33 of the New Code relates to the provisions as to bail and bonds. It includes different sections for release of accused on bail. Proviso (a) to sub-section (2) of section 167 of the New Code puts a restriction on a power of the Magistrate to detain an accused in custody under this section for a total period exceeding sixty days. The use of the words "under this section" in this proviso (a) is significant. Obviously this restriction would not apply in a case where the detention is not under section 167, but is under section 309 of the New Code. The release of the accused on bail under this proviso (a) is further dependent upon his being prepared to and furnishing bail, This power to release on bail is independent of the provisions regarding bail contained in Chapter 33 of the New Code. It is for that reason that by a fiction an accused released on bail under this proviso (a) shall be deemed to be so released under the provisions of Chapter 33 for the purposes of that Chapter. This fiction has thus been made applicable only when an accused has been released on bail under proviso (a) and not before that. 2. In my opinion, the position would be that if on the expiry of sixty days prosecution does not file the charge-sheet and the accused is prepared to and does furnish bail the Magistrate can not under section 167 of the new Code authorise detention. If he does so it shall be contrary to law. 2. In my opinion, the position would be that if on the expiry of sixty days prosecution does not file the charge-sheet and the accused is prepared to and does furnish bail the Magistrate can not under section 167 of the new Code authorise detention. If he does so it shall be contrary to law. However, if the accused is not prepared to furnish bail or fails to furnish bail the Magistrate shall have no option but to order detention in custody. In the present case the Magistrate was clearly wrong in having rejected the application for bail when admittedly sixty days had expired and as was stated by the learned counsel for the petitioner that the prosecution till then had not filed the charge sheet. Even according to his the charge-sheet was filed on the same day but after the order of rejection. 3. If a person is under detention not under section 167 but under section 309 of the new Code, the application for being released on bail has to be dealt with and considered only under Chapter 33 of the new Code. The 'question of releasing an accused on bail as contemplated by section 167(2)(a) of the new Code arises became the law prohibits the Magistrate from detaining an accused under that section beyond sixty days. 4. In the present case it is clear that on the day when the application for being released on bail was filed the prosecution had also filed the charge-sheet, though after the rejection of that application. No doubt the order of the rejection by the Magistrate cannot be approved because admittedly the accused was in detention for more than sixty days. Thus admittedly when he rejected the application for bail the Magistrate could neither remand the accused to custody under section 167 nor under section 309 of the new Code. However, since the charge-sheet was filed later in the day and the Magistrate had taken the cognizance, the further remand would obviously be governed by section 309 of the new Code and at this stage section 167 of the Code would become inapplicable. Thereafter, the question of bail has to be considered under Chapter 33 of the new Code For that reason, in the circumstances, the applicant in my opinion, is not entitled to be released on bail on that ground. 5. Thereafter, the question of bail has to be considered under Chapter 33 of the new Code For that reason, in the circumstances, the applicant in my opinion, is not entitled to be released on bail on that ground. 5. So far as the merits of the case are concerned, the petitioner is being prosecuted for an offence of murder. In the circumstances, I do not find it to be a fit case for releasing the applicant on bail. The application, therefore, deserves to be rejected on merits also. AIR 1975 SC 165, AIR 1978 SC 55 , 1975 Cr.L.J. 1508 and 1975 JLJ 1508, relied on 1975 Cr.LJ 1974 & 1976 Cr. LJ 455, dissented from. Application rejected.