JUDGMENT 1. - This is an application for bail under section 439 Cr. P.C. 2. An application for bail was also moved before the learned Sessions Judge, Bharatpur, who rejected the same by his orders dated January 20, 1982. 3. An application for bail by the above mentioned six accused-persons under section 439 Cr. P.C, was rejected by the Judicial Magistrate Bharatpur on January 7,1982, in Criminal Case No. 480 of 1981, State v. Kasim and others , under sections 395, 396 and 397, IPC. 4. It has been contended on behalf of the accused-petitioners that they were arrested on July 30,1981. They were subsequently remanded to Judicial custody. On October 19, 1981, a further remand was given to detain the accused persons in judicial custody till November 2, 1981 On October 26,1981, a charge-sheet was filed against the accused-petitioners before the concerned Magistrate. The concerned Magistrate was on leave on that day, hence, the papers were put up before another Magistrate who was looking after the work of the concerned Magistrate on that date. This Magistrate passed an order that the papers be put up before the concerned Magistrate on November 2, 1981, when the period of remand to judicial custody of the accused-petitioners also expires. On November 2, 1981, the concerned Magistrate took cognizance of the offences against the accused-petitioners. On January 5,1982, the accused-petitioners moved an application before the concerned Magistrate for bail on the ground that 90 days, period under proviso (A) to Section 167(2) of the Code of Criminal Procedure, 1973 expired on October 28, 1981 and as the investigations were not completed by that date, the accused-petitioners were entitled to bail as a matter of right under the said proviso. The contention on behalf of the accused-petitioners was that their detention from October 29,1981 to November 2,1981 was illegal and, in view of the proviso (A) to Section 167(2), they were entitled to bail as a matter of right. 5. Learned counsel for the accused-petitioners has placed reliance on two decisions of this Court, namely, Beni Madhav and others v. The State, S.B. Criminal Miscellaneous Bail Application No. 721 of 98, decided on September 22, 1981 and Harlal Ram and others v. The State, S B. Criminal Bail Application No. 921 of 1981, decided on September 24, 1981 . 5. Learned counsel for the accused-petitioners has placed reliance on two decisions of this Court, namely, Beni Madhav and others v. The State, S.B. Criminal Miscellaneous Bail Application No. 721 of 98, decided on September 22, 1981 and Harlal Ram and others v. The State, S B. Criminal Bail Application No. 921 of 1981, decided on September 24, 1981 . It has been contended on behalf of the accused-petitioners that the following ratio decidendi was laid down in the bail application of Beni Madhav and others v. The State of Rajasthan : "(i) The provisions of Section 167, including the provisions of the proviso to Sub-Section (2) of the said section, govern the detention of an accused person in custody till the completion of the investigation; (ii) Sub-Section (2) of Section 309 authorises the detention of an accused person during the course of inquiry or trial after the Court has taken cognizance of the offence. In respect of the offences which are triable exclusively by the Court of Sessions the committing Magistrate can authorise the detention of the accused in custody during the pendency of the commitment proceedings; (iii) An illegality in the detention of an accused person on account of absence of or any illegality in the order of remand under Sub-Section (2) of Section 309 would not enable an accused person to be released on bail if there is valid order of remand at the time when the bail application has been filed/or it comes for consideration; (iv) An illegality in the detention of an accused person arising on account of non-compliance with the provisions of the proviso to sub-Section (2) of Section 167 cannot be cured by a subsequent order of remand under sub-Section (2) of Section 309 and the accused person would be entitled to be released on bail inspite of the fact that there is an order of remand under Section 309." 6. On the basis of these authorities it has been contended by the learned counsel for the accused petitioners that the accused-petitioners are entitled to bail as a matter of right by operation of law, and as such, they may be enlarged on bail. 7. Learned Public Prosecutor appearing on behalf of the State has opposed the grant of bail to the accused-petitioner. 7. Learned Public Prosecutor appearing on behalf of the State has opposed the grant of bail to the accused-petitioner. His contention is that no application for bail was moved between the period commencing from October 29, 1981 to November 2, 1981. His contention is that if the investigations are not completed within 90 days, the accused-petitioners would be entitled to bail only if they apply for bail and offer solvent surety to that effect. In the instant case, it is contended that no solvent surety was presented during the period 29-10-81 to 2-11-81, and that no application for bail was moved during this period. It has been further contended that after November 2,1981, the remand for keeping the accused-petitioners under custody was given in pursuance of the provisions of Section 309(2) Cr. P.C., and that under such circumstances, the accused-petitioners have no right to be enlarged on bail. 8. The respective contentions of the learned counsel for the accused-petitioner and the learned Public Prosecutor have been considered and the record of the case carefully perused. The provisions of law contained in proviso (A) to Section 167(2) Cr. P.C. of 1973 are mandatory. The detention of the accused-petitioners became illegal from October 29,1981 to November 2,1981. Once the detention becomes illegal, the accused-petitioners are entitled to be enlarged on bail as a matter of right. The subsequent order of remand under section 309(2) Cr. P.C. passed on November 2, 1981 does not cure the illegal detention during the period October 29,1981 to November 2,1981. The accused-petitioners did move an application on January 5,1982, which entitled them to be released on bail as a matter of right. This application was rejected initially by the learned Magistrate and then by the learned Sessions Judge. There is no provision of law which entitles a liability on the accused-petitioners to move an application before the period of remand is authorised under section 309(2) Cr. P.C. and after their detention becomes illegal by virtue of proviso (A) to Section 167(2), Cr. P.C. 1973. 9. The accused-petitioners belong to villages which are within the district of Agra (U.P.) They are being tried for offences under sections 395, 396 and 397, IPC. Under such circumstances, the facts justify a heavy bail bonds from them. 10. P.C. and after their detention becomes illegal by virtue of proviso (A) to Section 167(2), Cr. P.C. 1973. 9. The accused-petitioners belong to villages which are within the district of Agra (U.P.) They are being tried for offences under sections 395, 396 and 397, IPC. Under such circumstances, the facts justify a heavy bail bonds from them. 10. For the reasons stated above, the accused-petitioners, namely, Shahbag, Noora, Sona, Khairati, Bhcla and Balu are directed to be released on bail, provided each one of them furnishes a personal bond of Rs. 20,000/- with two sureties of Rs. 10,000/- each to the satisfaction of the learned Sessions Judge, Bharatpur, with an undertaking to appear before the learned Sessions Judge or any other court whenever called upon to do so.Bail Allowed. *******