JUDGMENT 1. - A case under sections 302, 148, 323, 149 I.P.C. was registered against the accused-applicants and 5 other persons viz. Ranmal Singh, Vedprakash, Vijendra Singh, Bhagwan Singh and Bhola Ram, on the basis of the report lodged by one Jhabar Singh at police station Raghunathgarh on 30th November, 1980. In connection with the aforesaid case accused-applicants Kishore Singh, Chander Singh and Richpal Singh were arrested on 24th December, 1980. Accused-applicants Sarjiet Singh and Shersing were arrested on 26th December, 1980 and accused-applicant Rohtash was arrested on 27th December, 1980. The other accused persons were arrested subsequently. On 23rd March, 1981 a charge-sheet was filed by the Investigating Officer against the accused-applicants in the court of the Chief Judicial Magistrate, Sikar. In the said charge-sheet it was stated that the offences under sections 302, 307, 325, 324, 147, 148, 323 read with section 149 I.P.C. were made out against the accused-applicant. In the said Charge sheet it was also stated that investigation under Section 173(8) Cr.P.C. was in progress against other accused persons and that report in regard to the said accused persons were to be filed later. On 23rd April, 1981 another charge-sheet was filed in the court of Chief Judicial Magistrate, Sikar against three other accused persons viz. Ranmal Singh, Vijendra Singh and Bhagwan Singh in respect of offence under Section 302, 307, 325, 324, 147, 148, 323 read with section 149 I.P.C. 2. The accused-applicants have moved this bail application under section 419 Cr. P.C. on the ground that they are entitled to be released on bail under proviso (a) to sub-section (2) of Section 167 of the Code of Criminal Procedure, 1973 in as much as the charge-sheet as contemplated by Section 173(2) Cr.P.C. was filed as on 23rd April, 1981 after expiry of ninety days from the date of the arrest of the accused-applicants. 3. I have heard Shri N. L. Tibrewal, the learned counsel for the petitioners and the learned Public prosecutor. 4. The submission of Shri Tibrewal was that in view of the provisions contained in proviso (a) of sub-section (2) of Section 167 Cr. 3. I have heard Shri N. L. Tibrewal, the learned counsel for the petitioners and the learned Public prosecutor. 4. The submission of Shri Tibrewal was that in view of the provisions contained in proviso (a) of sub-section (2) of Section 167 Cr. P.C., in a case where investigation relating to an offence punishable with death, imprisonment for life or imprisonment for a term not less than ten years is not completed within a period of ninety days from the date of his arrest, the accused is entitled to be released on bail. Shri Tibrewal has submitted that in the present case the charge-sheet that was submitted on 23rd March, 1981 cannot be regarded as a report under section 173(2) Cr. P.C. in much as on that date investigation was not complete and that the investigation was completed only when the second charge sheet date 23rd April, 1981 was filed and since no proper report after completing the investigation has been submitted within a period of 90 days of arrest of the accused applicants, they are entitled to be released on bail. The learned Public Prosecutor, on the other hand, has submitted that under section 173(8) Cr. P.C. it is permissible for the Investigating officer to continue further investigation in respect of an offence after a report under sub-section (2) section 173 has been forwarded to the Magistrate and to submit a further report on the basis of the aforesaid investigation. The submission of the learned Public Prosecutor was that Second charge-sheet dated 23rd April, 1981 was submitted under sub-section (8) of section 173 Cr. P.C. and that the filing of a further report under subsection (8) of Section 173 Cr. P.C. does not mean that the first report dated 23rd March, 1981 was not a report submitted in accordance with the provisions of sub-section (2) of section 173 Cr. P.C. The learned Public Prosecutor has submitted that since the report dated 23rd March, 1981 had been submitted before the expiry of period of 90 days from the date of the arrest of the accused-applicants, the accused-applicants cannot be given the benefit of the provisions of proviso (a) of sub-section (2) of Section 167 Cr. P.C. 5. P.C. The learned Public Prosecutor has submitted that since the report dated 23rd March, 1981 had been submitted before the expiry of period of 90 days from the date of the arrest of the accused-applicants, the accused-applicants cannot be given the benefit of the provisions of proviso (a) of sub-section (2) of Section 167 Cr. P.C. 5. Sub-section (2) of Section 167 Cr.P.C., as it stands amended by the Code of Criminal Procedure (Amendment) Act, 1978, reads as under:- "(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,authorises 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 the detention of the accused person otherwise than in the custody of the police, beyond the period of the 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 paragraph for a total period exceeding.- (i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years; (ii) sixty days, where the investigation relates to any other offence; and on the expiry of the said period of ninety days, or sixty days, as the case may be, 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 sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter; (b) no Magistrate shall authorities detention in any custody under this section unless the accused is produced before him; (2) No Magistrate of the Second class not specifically empowered in this behalf by the State Govt., shall authorise detention in the custody of the police. Explanation I; For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail. Explanation II: 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." 6. The relevant provisions of Section 173 Cr.P.C. are as under; - "173(1) Every investigation under this chapter shall be completed without un-necessary delay. (2) (i) As soon as it is completed the officer in charge of the police Station shall forwarded to a Magistrate empowered to take cognisance of the offence on a police report a report in the form prescribed by the State Government, stating- (a) The names of the parties; (b) The nature of the information; (c) the names of the persons who appears to be acquainted with the circumstances of the case; (d) whether any offence appears to have been committed and, if so, by whom; (e) whether the accused has been arrested; (f) whether he has been released on his bond and, if so, whether with or without sureties; (g) whether he has been forwarded in custody under Section 170. (ii) The officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him, to the person, if any, by whom the information relating to the commission of the offence was first given. X X X X (8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under subsection (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed ; and the provisions of sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2)." 7. It may be observed that provisions (a) and (b) to sub section (2) of Section 167 and sub-section (8) of Section 173 were not contained in the hold Code of 1898 and they have been inserted for the first time in the new Code of 1973. Under the Old Code Section 167 provided for the detention of an accused in custody for a term not exceeding 15 days in the whole. It was, however, found that the said provision was honoured more in breach than in observance and the police used to file a preliminary or incomplete charge-sheet and moved the court for remand under section 344 which was not meant for investigation. Taking note of the aforesaid practice, the Law Commission recommended that the investigation should be completed within 60 days. The Joint Select Committee felt that a drastic remedy was called for and it recommended that if the investigation was not completed within sixty days, the accused should be released on bail. The aforesaid period of sixty days has been enlarged to ninety days by the Code of Criminal Procedure (Amendment) Act, 1978 in cases where the investigation relates to an offence punishable with death, imprisonment for life for imprisonment for a term not less than ten years. 8. Sub-section (8) of Section 173 which has also been inserted in the new Code by expressly empowering the Investigation Officer to make further investigation after the submission of the report under sub-section (2) of Section 173 Cr.P.C., makes the provision for the submission of the supplementary charge-sheet. 9. The question which arises for determination in this case is whether it is permissible for the Investigation Officer to file two charge-sheets, one against some of the accused persons and a supplementary charge-sheet against other accused persons. According to Shri Tibrewal, Section 173 (2) contemplates the submission of a report after the completion of the investigation, against all the accused persons and that it is not permissible for the Investigating Officer to put up the challan against some of the accused persons and then file a supplementary report under sub-section (8) of section 173 Cr.P.C. against other accused persons and that in such an extent the sub-sequent report should be treated as the report submitted under sub-section 173 Cr. P.C. In support of his aforesaid submission Mr. P.C. In support of his aforesaid submission Mr. Tibrewal has placed reliance on the decisions of the Andhra Pradesh High Court in Bandi Kotayya v. State and others, AIR 1966 A P. 377. and T.V. Sarma v. Smt. Turgakamala Devi and ors., 1976 Cr. L.J. 1247. 10. I am unable to accept the aforesaid contention of Shri Tribrewal. The contention of Shri Tibrewal, if accepted, would mean that in a case where there are a number of accused persons out of whom some are arrested earlier but some evade arrest and are arrested much later and as a result thereof the investigation as against the accused persons who are arrested subsequently, is delayed, the Investigating Officer would be unable to put up the challan as against the accused persons who were arrested earlier and against whom the investigation has been completed and the accused persons who were arrested earlier would have to be released on bail under the proviso (a) to sub-section (2) of section 167 Cr. P. C. In may opinion the proviso (a) 1 to sub-section (2) of Section 167 Cr. P.C. cannot be construed to lead to such a consequence. While interpreting the proviso (a) to sub-section (2) of Section 167 Cr. P.C. it is necessary to bear in mind the provisions of sub-section (8) of Section 173 Cr. P.C. Sub-section (8) of Section 173 Cr. P.C. expressly lays down that nothing in section 173 shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) of Section 173 has been forwarded to the Magistrate and empowers the Investigating Officer to forward a further report or reports on the basis of such further investigation and makes the provisions of sub-sections (2) and (6) of Section 173 Cr.P.C. applicable to such report or reports. Sub-section (8) of section 173 thus enables two or more reports being submitted by the Investigating Officer and each such report has to be treated as a report under sub-section (2) of Section 173 Cr.C.P. In my view the aforesaid provision contained in sub-section (8) of section 173 Cr.P.C. are wide and comprehensive to deal with a situation when some of the accused persons are arrested later and investigation of the case against them is delayed on that account inasmuch as it would be open to the Investigating Officer to submit the report under sub-section (2) of Section 173 Cr.P.C. as against the accused persons against whom the investigation is completed and to continue the investigation against the accused persons who were arrested later and to submit a second report as against those accused persons after the investigation against them is completed. The first report that is submitted against the accused persons who were arrested earlier and against whom the investigation has been completed would not cease to be a report under sub-section (2) of Section 173 Cr.P.C. namely because the investigation has not been completed as against the other accused persons. 11. The discussions of the Andhra Pradesh High Court on which reliance has been placed by Shri Tibrewal has no application to the present case. 12. In Bandi Kotayyas case (1), the court was dealing with the provisions of the old Code. In that case the Investigating Officer had filed a preliminary charge sheet against 18 accused persons with the remark that the investigation had not yet been completed and a final charge-sheet with complete list of prosecution witnesses would be submitted after completing the investigation. After completing the investigation the Investigating Officer filed a charge-sheet against 15 accused persons and omitted three of the accused persons who had been named in the preliminary charge-sheet. The High Court held that final charge-sheet was in fact and in law a report under section 173 (1) Cr. P.C. (Old) and that the process of investigation could not be said to have been completed till the submission of the final charge-sheet. 13. In T.V. Sharmas case (2) which was decided on the provisions of Section 167(2) of the new Code, a preliminary charge-sheet had been submitted against the four accused persons with the remark that a comprehensive charge-sheet would be submitted against all the accused persons after entire investigation was completed. 13. In T.V. Sharmas case (2) which was decided on the provisions of Section 167(2) of the new Code, a preliminary charge-sheet had been submitted against the four accused persons with the remark that a comprehensive charge-sheet would be submitted against all the accused persons after entire investigation was completed. The Magistrate released the accused persons on bail under the proviso to sub-section (2) of Section 167 of the new Code the view that the preliminary Charge-sheet could not be treated as a report under section 173(2) Cr. P.C, and the said order was upheld by a learned Single Judge of the Andhra Pradesh High Court. In coming to the aforesaid conclusion, the learned Judge placed reliance on the earlier decision of the said High Court in Bundi Kottayyas case (1). 14. A perusal of the first charge-sheet which was filed in the court of Chief Judicial Magistrate as against the accused applicants on 23rd March 1981 shows that the said report had been submitted after the investigation had been completed against the accused-applicants and in so far as the accused-applicants are concerned, the said report was the final report and it should be treated as a report submitted under sub-section (2) of Section 173 Cr.P.C. The report that was filed on 23rd April, 1981 was as against accused Ranmal Singh, Vijendra Singh and Bhagwan Singh and it does not relate to the accused-applicants. The said report was a second report submitted after further investigation under sub-section (8) of section 173 Cr. P.C. The filing of the subsequent report dated 23rd April, 1981 does not mean that the earlier report dated 23rd March, 1981 was not a report under subsection (2) of Section 173 Cr. P.C. Once the report dated 23rd March, 1981 as against the accused persons is treated as a report under sub-section (2) of section 173 Cr. P.C. it cannot be disputed that the accused-applicants are not entitled to be released on bail under proviso (a) of sub-section (2) of Section 167 Cr. P.C. 15. The bail application is, therefore rejected.Bail Rejected. *******