JUDGMENT M. Murtaza Husain, J. - While sitting single one of us (Hon'ble Mahavir Singh J.) has referred the following three questions for determination by a larger Bench:- 1. Whether an application for bail is necessary by an accused after the expiry of the period of sixty days and before the submission of the charge-sheet in order to enable him to be entitled to the benefit of the proviso to sub-section (2) of Section 167 Cr.P.C.? 2. Whether such an application is to be made to the Magistrate or whether such a plea can be taken even in the Sessions Court or the High Court for the first time? 3. Whether an application for bail pending before the expiry of 60 days and after the submission of the charge-sheet can be taken to be such an application even though no such plea was argued at the time of hearing of that application. 2. The aforesaid questions arose while the learned single Judge was hearing two bail applications i.e., Cr. Misc. Case No. 514 of 1978 and Cr. Misc. Case No. 845 of 1978. In the former case Vijay Bahadur Singh applicant was arrested on 2-11-77 in connection with an offence exclusively triable by the Sessions Court and was produced before the Chief Judicial Magistrate on 3-11-77 who remanded him to custody. On 9-11-77 Vijay Bahadur Singh applied for bail on merits. His prayer for bail was rejected by the Chief Judicial Magistrate and subsequent bail applications filed in the Sessions Court and in this Court were also rejected. His bail application was rejected by this Court on 10-3-78. Twenty days thereafter i.e., on 30-3-78 Vijay Bahadur Singh moved the present application in the High Court on the ground that charge-sheet was not submitted by the investigating agency within sixty days whereby he was entitled to bail under Section 167 (2) Cr.P.C. 3. In the other case the applicant was arrested on 19-10-77 and charge-sheet was submitted on 2-1-78. In his application dated 9-5-78 he claimed bail on the ground that charge-sheet was not submitted within the prescribed period of sixty days. 4. Similar questions arose before another learned single Judge, K.N. Goyal J., in Cr. Misc. Case No. 882 of 78 wherein Rajendra Kumar Shukla was arrested under Section 302 I.P.C. on 10-1-78 and charge-sheet was not submitted till he applied for bail in the High Court. 4. Similar questions arose before another learned single Judge, K.N. Goyal J., in Cr. Misc. Case No. 882 of 78 wherein Rajendra Kumar Shukla was arrested under Section 302 I.P.C. on 10-1-78 and charge-sheet was not submitted till he applied for bail in the High Court. That Hon'ble Judge also referred the above questions to a larger Bench. 5. The necessity of these references arose on account of an apparent conflict in two Division Bench decisions of this Court, namely Maharaj Narain Singh v. State of U.P. (1975 Lucknow LJ 203) and Lakshmi Brahman v. State (1976 Cri LJ 118): (1976 All LJ 65). 6. In the aforesaid first decision Onkar Singh and S.K. Kaul JJ., laid down that the provisions of Section 167 (2) Cr.P.C. were mandatory and if a charge-sheet was not submitted within 60 days (which period has been extended to 90 days for some offences through an amendment to the section) the accused had to be released on bail. In that case a habeas corpus petition was moved in the High Court but the Bench directed the accused to be released on bail. In Lakshmi Brahmans case (supra) H.N. Seth and G.D. Srivastava JJ., relying upon an earlier single Judge decision of this Court in Heeraman v. State (1975 Cri LJ 1508) laid down that:- "An accused is not to be allowed to just walk out of the place of detention or of the jail after the expiry of sixty days automatically if no charge-sheet has been submitted within that period. If no charge-sheet has been submitted within sixty days, Section 167 Cr.P.C. only empowers an accused to claim bail as of right but the detention of the accused will continue to be legal till he actually applies for bail, or in other words, he is prepared to and does furnish bail. The Magistrate shall not authorise detention for more than sixty days provided the accused person applies for bail on the expiry of the said period and does furnish bail." 7. Thus, according to the decision in Maharaj Narain's case (1975 Lucknow LJ 203) an accused has to be automatically released on bail if no charge-sheet is submitted within the prescribed period irrespective of the fact whether or not he applied for bail or expressed willingness to furnish bail. Thus, according to the decision in Maharaj Narain's case (1975 Lucknow LJ 203) an accused has to be automatically released on bail if no charge-sheet is submitted within the prescribed period irrespective of the fact whether or not he applied for bail or expressed willingness to furnish bail. The verdict in Lakshmi Brahman's case, (1976 All LJ 65) on the other hand, is that the accused cannot just walk out of the place of detention, or of the jail after the expiry of sixty days automatically and the Magistrate will not authorise his detention for more than sixty or 90 days provided the accused person applied for bail on the expiry of the said period and was prepared to furnish bail. 8. To appreciate the above views it is to be noted that Section 167 Cr.P.C. finds place in Chapter XII of the Code of Criminal Procedure bearing the heading 'Information to the police and their powers to investigate'. This Chapter begins with Section 154 and ends by Section 176. All those provisions relate to pre-cognizance stage of a case i.e., the stage when investigation of a crime is pending with the police and neither charge-sheet nor final report has been submitted before the Magistrate. Section 154 requires that information regarding the commission of a cognizable offence shall be reduced in writing. It also prescribes the procedure for recording the same. Section 156 lays down in clear terms that the officer-in-charge of a police station may, without the order of a Magistrate, investigate forthwith into such a cognizable crime. The succeeding Section 157, while laying down the procedure for investigation, also empowers the police to take measures for discoveries and arrest of the offender. Thus the Code confers a statutory right upon the police to investigate cognizable crimes without the sanction of any judicial authority. It further authorise the police in such cases to arrest and detain the offender in their custody. Under Section 154 of the Code that detention is valid for the first 24 hours without the interposition of the Magistracy. Under S. 167 (2) of the Code police custody of an offender up to a period of 15 days can be valid with the authority of Magistrate. Since investigation in heinous crimes is not likely to be completed in 15 days. Under S. 167 (2) of the Code police custody of an offender up to a period of 15 days can be valid with the authority of Magistrate. Since investigation in heinous crimes is not likely to be completed in 15 days. Proviso (a) attached to Section 167 (2) lays down as follows:- "(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, (now 90 days for some offences) 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 so released under the provisions of Chapter XXXIII for the purposes of that Chapter;" 9. The above proviso was considered by the Supreme Court in Natabar Parida v. State of Orissa (1975 Cri LJ 1212) : ( AIR 1975 SC 1465 ) and it was observed that:- "The law as engrafted in proviso (a) to Section 167 (2) and Section 309 of the new Code confers the powers of remand to jail custody during the pendency of investigation only for the former and not under the latter. Section 309 (2) is attracted only after cognizance of an offence has been taken or commencement of trial has proceeded. In such a situation what is the purpose of Explanation I in Section 309 is not quite clear but then the command of the Legislature in proviso (a) is that the accused person has got to be released on bail if he is prepared to and does furnish bail and cannot be kept in detention beyond the period of sixty days even if the investigation may still be proceeding." It is clear from the above observations that an accused person has got to be released on bail if charge-sheet has not been submitted within the prescribed period, provided that he is prepared to and does furnish bail. If he is neither prepared for it, nor furnishes bail, he has to be remanded to judicial custody under Section 167 (2) of the Code till the submission of charge-sheet or final report by the investigating agency, unless he is bailed out in due course by the competent court. 10. In Hussainara Khatoon v. Home Secretary State of Bihar, Patna (1979 Cri LJ 1052): ( AIR 1979 SC 1377 ) their Lordships of the Supreme Court have referred to the duty of a Magistrate under the proviso of Section 167 (2) Cr.P.C. and have observed that:- "When an under trial prisoner is produced before a Magistrate and he has been in detention for 90 days or 60 days, as the case may be, the Magistrate must, before making an order of further remand to judicial custody, point out to the under trial prisoner that he is entitled to be released on bail. The Magistrate must take care to see that the right of the under trial prisoner to the assistance of a lawyer provided at State costs is secured to him." It follows from the above observations that after the expiry of the prescribed 60 or 90 days period the accused is not to be allowed to just walk out of the place of detention or jail. The Magistrate has simply to see in such cases that before making any order for further remand to judicial custody the attention of the under trial prisoner is drawn to the fact that he was entitled to be released on bail as investigation of the case, wherein he was wanted, had not concluded within the prescribed period of time. If he is prepared to and does furnish bail, he has to be bailed out otherwise he has to be remanded again to judicial custody and such a remand shall be lawful for all practical purposes. That is exactly what Seth and Srivastava JJ., have laid down in Lakshmi Brahmans case (1976 Cri LJ 118: (1976 All LJ 65)). In the face of the decisions of the Supreme Court referred to above the contrary view expressed by Onkar Singh and Kaul JJ., in Maharaj Narain Singh's case (1975 Lucknow LJ 203) cannot be said to be good law. 11. In the face of the decisions of the Supreme Court referred to above the contrary view expressed by Onkar Singh and Kaul JJ., in Maharaj Narain Singh's case (1975 Lucknow LJ 203) cannot be said to be good law. 11. It is, however, to be borne in mind that because S. 167 of the Code relates to pre-cognizance stage of a case when investigation is being held by the police, the power of releasing the offender on bail under the proviso of S. 167 can be exercised by the Magistrate only when investigation is pending. That power comes to an end as soon as charge-sheet is submitted either within or beyond the prescribed period of 60 or 90 days. After the submission of charge-sheet bail can be granted to the accused either by the Magistrate or by the Sessions Judge or the High Court under Section 437, Cr.P.C.-on considerations contemplated by law. 12. A Division Bench of Gujarat High Court has laid down in Umed Singh v. State ( AIR 1977 Guj 11 ) that:- "Therefore, if an application is made under Section 167 for bail by an accused person who is detained in custody pending investigation for a period exceeding 60 days, he is entitled to bail. But if pending such an application for bail a charge-sheet is filed in the Court, the investigation comes to an end so also the power of the Magistrate of granting bail to the accused under the provisions of Section 167 (2). The Magistrate can then exercise power of granting bail only under Section 437. The Magistrate to whom an application for bail under Section 167 (2) is made has to take the subsequent event into consideration the subsequent event being the filing of the charge-sheet." The same view has been expressed by Madras High Court in Pandi v. State (1979 Cri LJ 1503) by Andhra Pradesh High Court in Nethala Vinod Prabhu v. State, (1979 Cri LJ NOC 90) and by Rajasthan High Court in Kana v. State (1980 Cri LJ 344). We fully agree with these decisions. 13. Let us now examine the three questions which have been referred to us. We fully agree with these decisions. 13. Let us now examine the three questions which have been referred to us. The first question contains a query to the effect whether or not an accused person, after expiry of the period of 60 days for the submission of the charge-sheet, has to move an application for bail in order to enable him to be entitled to the benefit of the proviso to sub-section (2) of Section 167, Cr.P.C. In Hussainara Khatoon's case ( AIR 1979 SC 1377 ) (supra) it has been pointed out by the Supreme Court that it is the duty of the Magistrate concerned, before making an order for further remand of accused to judicial custody, if he is in detention for more than 60 or 90 days, to draw the attention of the accused to the fact that he was entitled to be released on bail. If he expresses his willingness for being bailed out and was prepared to furnish the required security he is to be bailed out. In the face of this pronouncement of the Supreme Court we are of the opinion that it is not necessary for an accused, after the expiry of the period prescribed for submission of charge-sheet, if the same has not been submitted, to apply for bail and it is the duty of the Magistrate to extend the benefit of the proviso to subsection (2) of Section 167, Cr.P.C. to him, if he is prepared to furnish bail and expresses his willingness to that effect. 14. Question No. 2 relates to the fact that the plea of proviso to sub-section (2) of Section 167, Cr.P.C. can be raised by the accused concerned only in the Magistrate's court or in higher courts also. Where charge-sheet has not been submitted within the prescribed period, and the accused has been remanded to further judicial custody by the Magistrate it is open to the accused concerned to claim bail from the Magistrate, and if he does not bail him out under the proviso to sub-section (2) of Section 167, Cr.P.C. it is certainly open to the accused to press that plea in the Court of Session or in the High Court, provided that pre-cognizance stage of the case continues. We reply this question accordingly. 15. We reply this question accordingly. 15. The third question referred to us poses a query whether or not after the submission of charge-sheet bail under the provision to sub-section (2) of Section 167, Cr.P.C. can be claimed on the basis of an application pending since before the submission of the charge-sheet. We have already referred to the case law on the subject which lays down that the proviso to sub-section (2) of Section 167, Cr.P.C. relates only to pre-cognizance stage of a case. As soon as charge-sheet is submitted, that stage comes to an end. After the submission of charge-sheet the power of the Magistrate, Court of Session and the High Court for enlarging the accused on bail can be exercised only under Sec. 437, Cr.P.C. and not under the proviso of Section 167 (2), Cr.P.C. prior to the submission of charge-sheet, however, it is open to the Sessions Judge or High Court to take into consideration the circumstances of non-submission of charge-sheet within the prescribed period while considering the accused's prayer for bail. We reply question No. 3 accordingly. 16. Let our replies to the three questions be laid before the Hon'ble single Judges concerned for the disposal of cases wherein those questions were referred.