FAROOQ HASAN, J—These two criminal misc. petitions under Section 482, Cr.P.C. raises common controversy or the self-same incident in F.I.R. No. 281/89 P.S. Ashok Nagar (Jaipur). Therefore, these two petitions which seek to quash order dated 30.11.1989 of the Judicial Magistrate No.2, Jaipur City Jaipur & then to release the petitioners on bail giving benefit under Section 167(2), O.P.C., lend themselves support to disposal by this common order. 2. The facts & circumstances giving rise to these petitions which lie in a short compass are– 3. For the incident of committing order of Ram Kishan a written report was lodged by one, Uttam Prakash at Police Station Ashok Nagar on 1.9.1989 at 9 p.m. and a criminal case was registered at the police station. In the written report, it had been alleged that on 1.9.1989 at 9 a.m. the petitioners along with three or four more persons entered the house of the complainant and inflicted injuries on the person of his father thereby, Ramkishan succumbed to his injuries at the spot. Investigation commenced. The petitioners wee arrested on 2.9.1989 and on that very day, they were produced before the concerned Magistrate for remand which was granted and then they remained in judicial custody and on 30.11. 1989, bail were produced before the Judicial Magistrate No.2, Jaipur City, Jaipur by jail authorities and because of the scarcity of the police force, the petitioners were not produced before the Magistrate. The learned Magistrate extended the period of detention of the petitioners upto 19.12.1989, on the request of the prosecution side seeking time to submit the charge-sheet against the petitioners, on the ground that the investigation had not then been completed These facts find place in the order-sheet of 30.11.1989. The order-sheet further gives out that the charge-sheet against the petitioners was filed by the Asstt. Public prosecutor on 30.11 89 at 4 p.m. 4. The order-sheet further gives out that the charge-sheet against the petitioners was filed by the Asstt. Public prosecutor on 30.11 89 at 4 p.m. 4. It was been averred in the petitions that as the charge-sheet was not filed against the petitioners even after the expiry of 90 days so, the Magistrate was not authorised to extend the period of detention upto 14.12.1989 in as much as he was legally bound to enlarge the petitioners on bail under Section 167(2) Cr.P.C. It has been submitted that the petitioners made an oral request on 30.11.89 that they are ready to furnish bail bonds & surety as the Court deems proper but, the Magistrate did not pass any order on the said request for releasing the petitioners on bail and instead, the Magistrate extended the period of detention upto 14.12.1989 thereby the investigating agency was allowed to file the challan upto 14.12.1989. According to the petitioners, the Magistrate had no jurisdiction and competence to pass such an order in view of the provisions contained in Section 167(2), Cr.P.C. in as much as he had no discretion to extend the period of detention after the expiry of 90 days and further to grant more time to the investigating agency for filing the challan because as per Section 167(2) Cr.P.C., total period of detention cannot exceed 90 days and maximum period for filing the challan prescribed is 90 days and in case, the investigating agency fails to file the charge-sheet within 90 days, then in that situation, it is obligatory on the part of the Magistrate to have asked the person under detention for furnishing the bail bonds etc. 5. Taking the aid of the aforesaid facts and circumstances, learned counsel for the petitioners contended that a right has accrued to the petitioners for being released on bail after expiry of 90 days and then there is nothing in Section 167(2), Cr.P.C. that the person under detention should make a written request to the Magistrate for his release on bail; but the matter is left purely discretionary to the concerned Magistrate to examine the period of detention and if he finds that period of 90 days has expired then in that situation, it has been made obligatory for the concerned Magistrate to ask the person under detention for furnishing bail bonds etc. 6. 6. Learned counsel then argued that the remand form of the petitioners was produced before the Magistrate on 30.11.89 before lunch hours without filing the challan and the Magistrate extended the period of detention without filing challan upto 14.12.1889, and this according to the learned counsel, has resulted in abuse of powers and the Magistrate has exceeded his jurisdiction under Section 167(2) Cr.P.C. Shri Biri Singh added that although a request was made on behalf of the petitioners for their release on bail but the Magistrate, without paying heed to such a request, passed an arbitrary order extending the period of detention and allowing the investigating agency to file the charge-sheet after the expiry of 90 days, by over-reaching the provisions of Section 167 (2), Cr.P.C, which empower the Magistrate to release the accused on bail by asking them to furnish the bail bonds. 7. Learned counsel also that the Magistrate extended the time because at the time when he extended the time of detention upto 14.12.1989, no challan was filed before the Magistrate and which was filed at 4 p.m. on 30.11.89, as is clear from the order- sheet dated 30.11.89. Learned counsel therefore, contended that the Magistrate extended the period of remand without computing the total period, of detention and without considering the merits for extending the time and that being so, the petitioners seek relief under Section 167(2), Cr.P.C. also because, the investigation was not completed Within 90 days from the date of the remand further that the provisions are mandatory in nature. A look at Section 167(2), Cr.P.C. shows that it empowers the Magistrate to detain the accused in such custody as he thinks fit for a term initial for 15 days. And, as observed in Mantoo Majumdar Vs. State of Bihar ( AIR 1980 SC 847 ), more importantly, there is a precious interdict protective of personal freedom which state that no Magistrate shall has committed a non-bailable offence and that it is necessary to arrest him and commit him to custody. 8. And, as observed in Mantoo Majumdar Vs. State of Bihar ( AIR 1980 SC 847 ), more importantly, there is a precious interdict protective of personal freedom which state that no Magistrate shall has committed a non-bailable offence and that it is necessary to arrest him and commit him to custody. 8. Having considered the aforesaid submissions made at the bar, I may state that the decision of the present petitions depends upon interpretation of Section 167(2) Cr.P.C. says as under:- 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, authorise 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 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 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 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 authorise detention in any custody under this section unless the accused is produced before him; (c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police." 9. Having benefitted by the enlightenments derived from the authoritative pronoun cements, referred to above, and the provisions contained in section 167(2), Cr.P.C., it cannot be disputed that the investigating agency should complete its investigation within ninety days in the case of an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years and sixty days in case of any other offences; and that, in case, the prosecution agency fails to complete the investigation within such stipulated period then, in that situation, the prosecution cannot be allowed further time for filing charge-sheet or for completing the investigation and no period of detention can be extended by the concerned Magistrate and that in case the prosecution agency the produce the charge- sheet within stipulated period hen the concerned Magistrate is legally bound to ask the person in detention to furnish bail bonds inasmuch as it is not necessary under Section 167(2) Cr.P.C. that a request is required to be made by the person in detention for his release on bail. It is for the concerned Magistrate to ask the person in detention who is produced before him to extend his period of detention, to produce bail bonds etc. or to see whether the investigation has been completed within stipulated period or not and if he finds that the investigating agency has not completed its investigation within stipulated period, then the accused person shall be released on bail the Magistrate. My view expressed above is fortified by the decisions in Mantoo Majumdar Vs. State of Bihar (1), Hiraram & Anr. Vs. State of Rajasthan (2) and in Raghubir Singh Vs. State of Bihar (3). 10. In the instant case, there is no dispute that the petitioners were produced before the Magistrate for remand on 2.9.1990 in the forenoon and this remand was allowed. If the period of ninety days is computed from the date of remand then ninety days time expires in the forenoon of 30.11.89 and this fact could not have been controverted by the Public Prosecutor, who has already sought time to call for the papers at the relevant time, Learned Public Prosecutor though was having all papers i.e. case diary, remand form etc. but, she failed to controvert the that ninety days time expires in the forenoon of 30.11.1989. but, she failed to controvert the that ninety days time expires in the forenoon of 30.11.1989. That being so, I have no option but to accept the submission of the learned counsel for the petitioners on this point and thereby, I hold that ninety days time in the present case expired in the forenoon of 30.11.1989 when undisputedly the challan has not been filed but it had been filed in the afternoon of 30.11.1989 as is evident from the impugned order-sheet which states that the challan was filed at 4 p.m. on 30.11.1989. It is thus clear that the challan had been filed subsequently after the expiry of ninety- days. In these circumstances, the petitioners are entitled to the benefit of Section 167(2), Cr.P.C. for being released on bail. Moreover, the Magistrate exceeded his jurisdiction under section 167(2), Cr.P.C. in extending the period or filing the charge-sheet against the petitioners upto 14.12.89, after expiry ninety days from the date of their remand, and in these circumstances, the Magistrate abused the power conferred under Section 167(2), Cr.P.C. resulting in miscarriage of justice to the petitioners, rather warranting interferance while invoking jurisdiction of this Court under section 482, Cr.P.C. because, according to the mandate contained in Section 167(2) Cr.P.C. 1973, the Magistrate could and should have asked the petitioners to furnish bail bonds and should have released the petitioners on bail if they do furnish the bail bonds, which they were ready to do. 11. My aforesaid view is fortified by the view taken by the Apex Court in Hussainara Khatoon Vs. Home Secretary, State of Bihar, Patna (4) wherein it has been laid down that when an under trial who has been in detention for 90 or 60 days, as the case may be, is produced before the Magistrate, he is bound to inform the accused that he is entitled to bail as provided by proviso (a) to Section 167(2), Cr.P.C. and that apart, the Magistrate must take care to see that the right of the under trial prisoner to the assistance or a lawyer provided at State cost is secured to him and he must deal with the application for bail in accordance with rule of law. 12. These petitions were got listed at the request of Miss Sumitra Goyal who was arguing the case on behalf of the state. 12. These petitions were got listed at the request of Miss Sumitra Goyal who was arguing the case on behalf of the state. However, Today, Mr.K.N. Sharma learned Public Prosector appeared and argued at some length reiterating the submissions made by Miss Goyal. 13. Shri K.N. Sharma, learned Public Prosecutor today added that challan in question has been filed within ninety days. As against this, Shri Biri Singh stressed that ninety days expired at the time when the Magistrate, extended the period of detention for which he was not at all competent under Section 167(2) Cr.P.C. 14. Shri K.N. Sharma, learned Public Prosecutor cited another decision of this Court in Smt. Indra Devi vs. Rajaram (1978 WLN 525). In case cited above, the charge-sheet was not submitted within 60 days of arrest of accused and the Magistrate had enlarged the accused on bail; and it has also been held that custody includes police custody also, inasmuch as period of 15 days is not to be excluded in computing period of sixty days, and in these circumstances, no interference with order of Magistrate was held to be called for. This Court in the case, referred to above, while dealing with an application for cancellation of bail under Section 439(2), Cr.P.C. considered the contention of the learned counsel for the complainant that sixty days at the most be computed from the actual hour of arrest, and then observed as under:- "The accused was arrested on 10.4.1978 at 8.00, p.m. and if reckoned, from this actual hour of arrest the sixtieth day will expired on 9.06.1978, at 8.00 p.m. and the challan was submitted on 9.6.78 during morning hours, so the challan was presented on the sixtieth day. I am unable to agree with this contention of the learned counsel. I am unable to agree with this contention of the learned counsel. In my opinion, fraction of a day will be considered as one day." In my view, the decision cited by Shri Sharma does not help him and with due respect, that decision is not applicable to the facts and circumstances of the present case because, the present case is a glaring example of abuse of powers in addition to non-observance of the rule of law and guidelines laid down by the Apex Court in Hussainara Khatoon case (supra) and because, in the instant case, Jail warrant was produced before the Magistrate who extended the time of detention upto 14.12.89 without following and observing the rule of law under section 167, Cr.P.C. 15. It has then been contended by the learned Public Prosecutor that in view of the law laid down in Shardulbhai Vs. State of Gujarat (FE) (1990 Cr.L.J. 1275- Gujarat High Court) there should have been a request from the accused side for releasing them on bail, and in the present case in the absence of such a request they cannot be said to have been deprived of their right of liberty envisaged under Section 167(2) Cr.P.C. But, I may observe that in view of the law laid down in Hussainara Khatoon case cited above, such a request as is the case of the prosecution side, was not necessary rather (it was obligatory on the part of the magistrate who had passed the remand order, to have informed the accused for their entitlement of releasing on bail under Section 167(2) Cr.P.C. In these circumstances, the full Bench decision of Gujarat High Court cited on the point in question does not help the Public Prosecutor. Moreso, in the present case, a look at the impugned order dated 30.11.89 shows that no such intimation was conveyed by the Magistrate to the petitioners.) 16. Before parting with the order, it is made clear that the prosecution may seek to have bail u/s. 167(2) Cr.P.C. cancelled on the grounds stated in para 22 of the decision of the Apex Court in Raghubir Singh Vs. State of Bihar (Supra). The prosecution has failed to produce the case diary despite directions. 17. Before parting with the order, it is made clear that the prosecution may seek to have bail u/s. 167(2) Cr.P.C. cancelled on the grounds stated in para 22 of the decision of the Apex Court in Raghubir Singh Vs. State of Bihar (Supra). The prosecution has failed to produce the case diary despite directions. 17. In the result, these petitions are allowed the impugned order dated 30.11.89 by which the Magistrate extended the period of detention and allowing the time to file challan upto 14.12.1989 is quashed, petitioners, Iqbal S/o Noor Mohd. and Raju Nayak S/o Maliram, both to be released on bond of Rs. 20,000/- (Rupees twenty thousand only) with two sureties each in a sum of Rs.10,000/- to the satisfaction of the trial Court, subject to the condition that they shall not, in any way, try to tamper with the evidence or try to intimidate or influence any of the witnesses in the case and that they shall appear before the trial Court on each and every date of hearing and as and when required.