JUDGMENT 1. Heard Mr. S. K. Jain, learned counsel for Sardar, petitioner and Mr. G. C. Chatterji, learned Public Prosecutor for the State and perused the F. I. R. and other relevant documents filed on behalf of the petitioner in his previous bail application No 1584, 82, Sardar v. State of Rajasthan, rejected on 30.12.82 . 2. Learned counsel for the petitioner invited my attention to the fact that no challan has been produced in this case against the petitioner in die competent court within 90 day and so according to the submission of learned counsel the detention of the petitioner has become illegal and he is entitled to be released on bail. 3. Learned Public Prosecutor assisted by Mr. S. L. Sharma, learned counsel for the complainant. on the other nand, urged before me that the complete challan against the petitioner could not be filed in the competent court within 90 days because the case diary had been summoned by the Court many a time and it remained in the Office of the Public Prosecutor. However, according to him, the Police filed an incomplete challan in the Court against the petitioner within 90 days stating therein that a complete challan would be filed on receipt of the case diary. Learned Public Prosecutor drew my attention to sub-section (8) of Section 173 Cr. P. C. also and contended on the strength of its provisions that the officer-in-charge of the Police Station can forward to the Magistrate a further report or reports regarding the further evidence collected by him and in such a case the provisions of sub-sections (2) to (6) of Section 173 Cr. P. C. shall, so far as may, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2) of Section 173 Cr. P. C. 4. The above contention cannot be accepted because in the present case a report under sub-section (2) of Section 173 Cr. P. C. has not yet been forwarded soon after the completion of the investigation, to a Magistrate empowered to take cognizance on a police report. Hence the provisions of sub-section (8) of Section 173 Cr. P. C. cannot be attracted to such a case where no report under sub- Section (2) of Section 173 Cr. P. C. has yet been produced. Hence the provisions of sub-section (8) of Section 173 Cr. P. C. cannot be attracted to such a case where no report under sub- Section (2) of Section 173 Cr. P. C. has yet been produced. Sub-section (8) clearly 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) has been forwarded to the Magistrate. 5. Hence, an incomplete challan filed by the police in this case cannot be treated a report under sub-section (2) (i) of Section 173 Cr. P. C. Consequently, in view of my previous decision given in a case State of Rajasthan v. Bhanwaru Khan : reported in 1975 R.L.W. 516 and keeping in view the decision of the Delhi High Court on this point also, reported in 1977 Cr. L. J. (N.O.C.) 262, I have no hesitation in holding that the filing of incomplete challan cannot circumvent the provisions contained in sub-section (2) of Section 173 Cr. P. C. 6. Apart from this, it will not be out of place to mention that this Court directed the Public Prosecutor on 27. 1. 1983 to send back case diary forth-with and I am told that the Public Prosecutor sent the case diary without any loss of time. The case diary was again called for by the Public Prosecutor on 15. 2. 83 in connection with this second bail application of the petitioner. The Investigating-Agency could easily file a complete charge sheet against the petitioner in the court of competent jurisdiction during the period between the date on which it was sent back and the date on which it was again sent to the Public Prosecutor. Hence the excuse for not filing the complete charge-sheet against the petitioner within 90 days on account of non-availability of case diary, was not available to the Investigating Agency. 7. As no charge sheet or report under sub-section (2) of Section 173 Cr. P. C. has been filed by the police in this case against the petitioner within 90 days, the petitioner's detention cannot he said to be legal. I, therefore, accept the bail application filed by Sardar, petitioner and direct that he released on bail, provided he furnishes a personal bond in the amount of Rs. 10,000/- together with 2 sureties of Rs. I, therefore, accept the bail application filed by Sardar, petitioner and direct that he released on bail, provided he furnishes a personal bond in the amount of Rs. 10,000/- together with 2 sureties of Rs. 5000/- to the satisfaction of the learned Additional Sessions Judge, Bharatpur for his appearance in the said court of Additional Sessions Judge, Bharatpur, on each and every date of hearing or whenever he is directed to do so. *******