K. C. BHARGAVA, J. ( 1 ) IN order to appreciate the controversy it will be necessary to briefly state the facts. ( 2 ) ONE Asha Devi aged about 19 year was married to Shivnarain Singh on 23rd May, 1991. In the F. I. R. it was alleged that on account of dowry there was a dispute and (he in-laws of the deceased used to treat the deceased, Smt. Asha Devi, cruelly. On 9-4-92, complainant was informed that his daughter had been murdered. The accused were thereafter challaned The learned Magistrate as well as learned Sessions Judge, Raebareili, rejected the bail application of the applicants. The applicants have now approached this Court. ( 3 ) LEARNED Counsel for the applicants as well as learned State Counsel have been heard. Learned counsel for the applicants has argued that in the present case the applicants are entitled to be released on bail as of right under the provisions of Section 167 (2) of the Criminal Procedure code (hereinafter to be called as the Code) as the charge sheet was filed after statutory period of 90 days provided under the said provision. In the present case the charge sheet should have been tiled by 12-1-92, because 90 days were to expired on that. date. The charge sheet was filed on 14-7-92, 13th July, 92 being the Sunday. The question which now arises is as to whether the chargesheet which has been filed after statutory period of 90 days gives right to the applicants for being enlarged on bail or whether the filing of the; chargesheet can curtail that right. ( 4 ) IT may also be mentioned that before the date of filing the charge sheet the bail application had been rejected by the Magistrate concerned and application for bail was pending before the learned Sessions Judge since 16-6-92. ( 5 ) NOW the question which arises for determination in this application are (I) whether on completion of 90 days as provided under Section 167 (2) of the Code if no chargesheet is filed then the applicants are entitled to bail as of right (II) whether the filing of the chargesheet deprives the accused of the benefit which has accrued to him under Section 167 (2) of the Code. Now we take this question (I) tint for consideration. Now we take this question (I) tint for consideration. It is an admitted fact that the charge sheet in the present case was not filed within 90 day a as prescribed under Section 167 (2) of the Code. Section 167 (2) of the Code AS far as it is relevant is extracted below. The Magistrate to whom an accused person is forwarded under this section may, whether be 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 day in this whole; and if he has no jurisdiation 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 fifteen days if he is satisfied that adequate grounds exist for doing 10, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for 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 ICES 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. " ( 6 ) THIS provision of granting bail to the accused on completion of 90/60 days if the cbargesheet is not filed in the Court has been for the Brit time initiated in the Criminal Procedure Coda of 1973. Earlier this provision was not there and the accused had no right to be enlarged on bail if the chargesheet was not filed within the period of 90/60 days. Earlier this provision was not there and the accused had no right to be enlarged on bail if the chargesheet was not filed within the period of 90/60 days. Therefore, there is a departure of law in the present Code and it has made changes in the law and the same changes have been given effect to and the benefit of the same is to be extended to the accused if there is delay in filing the chargesheel by the Investigating agency. This provision provides that the Magistrate cannot remand an accused to Judicial custody beyond the period of 90/60 days; if the accused is prepared to furnish bail bonds. This is a right conferred on the accused and it ii the duty of the court that this pro-vition of law is strictly complied with. In the present case the learned Sessions judge in hisorder rejected the bail after considering the various authorities cited before him and on coming to a finding that there is nothing on record to show that at what time this additional ground was taken by the applicant Amar Singh and in these circumstance it could not be presumed that the additional ground was taken before submission of the chargesheet in the Court of the learned Magistrate, apart from this the applicant Amar Singh failed to take this plea before the Magistrate although he had ample opportunity to do so in case the chargsaheet was not submitted before taking the additional ground. The learned Sessions Judge further observed that after submission of the charge sheet by the Investigating Officer the applicant could not take the benefit of Section 167 (2) of the Code. On these grounds the bail application was rejected by the learned Sessions Judge. ( 7 ) LEARNED State Counsel had argued that it was the duly of the applicants to have moved an application for bail before the court concerned after compaction of 90 days and before the submission of the chargesheet by the Investigating Officer. In support of the. contention of (he state Counsel -that an application ihould have been moved by Ihli applicants after completion of 90 days and before filing of the chargesheet he has placed reliance on the case of Heeraman v. State of U. P. , 1975 Cri. L. J. 1508. In support of the. contention of (he state Counsel -that an application ihould have been moved by Ihli applicants after completion of 90 days and before filing of the chargesheet he has placed reliance on the case of Heeraman v. State of U. P. , 1975 Cri. L. J. 1508. Where in and Single Judge of this court had an occation to deal with Section 167 (2) (a) of the Code, regarding the condition of grant of bail on completion of 60 days. The point for consideration was that if the chargesheet is not submitted within the period of 90/60 days then the detention will be legal or not. The Honble Court in the judgment has observed that if the chargesheet was not submitted within the period of 60/90 days then the accused should apply for bail on the ground that he is entitled to claim such a bail under the provision of Section 167 (2) (a) of the Code. It was also observed that If the chargsheet has been submitted then the invcgtigation came to an end and the provisions of Section 167 (2) of the Code would cease to apply to such case and only the bail can be granted on merits. The same view was taken by a division bench of this Court in the case of Lakshmi Brahman v. State, 1976 Cri. LJ. 118. Where in after considering the various provisions of the Code the bench came to the conclusion that Section 167 (2) (a) provides that a Magistrate cannot during investigation remand the accused io custody beyond 60 days and if the accused la prepared to furnish bail bonds. It implieer that if the accused even after expiry of 60/90 days docs not furnish the bail bunds the magistrate may remand the accused to custody. According to this authority the accused should apply for bail to the Magiitrate before the chargesheet is filed but after the expiry of 60/90 day. According to both these decisions if the accused does not apply for bail under these provisions then he is not enlitled to claim bail as of right and if the chargesheet is tiled then accused looses his right of statutory bail under Section 167 (2) (a) of the Code. According to both these decisions if the accused does not apply for bail under these provisions then he is not enlitled to claim bail as of right and if the chargesheet is tiled then accused looses his right of statutory bail under Section 167 (2) (a) of the Code. In the case of Hussainara Khatoon v. State of Bihar ( AIR 1979 SC 1377 ) it was held that when under trial prisoncr is produced before the Magisrate and he has been in detention for 90 day or 60 days, an (he case may be, the magistrate must before making an order of further remand to judicial custody point out to the under trial prisoncr thai he is entitled to be released on bail. Thus the Honble Supreme Court has said that it is the duty of the Magistrate to inform the accused after completion of 60/90 days if the chargesheet is not filed by that date then the accused has a right of bail under the provision of section 167 (2) (a) of the Code. ( 8 ) THE next case is the Rajnikani v. Intelligence Officer, Narcotic Control Bureau, New Delhi, air 1990 SC71. In this case the Honble Supreme Court has held that the right of bail under section 167 (2) (a) of the Code is absolute. It ia a legillative command and not courts discretion. If the investigating agency fails to file chargesheet before the expiry of 60/90 days, as the case may be, the accused in custody should be released on bail. This case alto shows that the right to bail under Section l67 (2) (a) of the code has been granted to him by the legislative and it must comply with by the Magistrate before proceeding further. In that case it has also been held that the Magistrate has no power to remand a person and he must pass an order of bail and communicate the accused to furnish the requisite bail bonds. This authority is clear of the point that it is the duty of the Magistrate to pass an order of bail on the expiry of 90/60 days period if the chargesheet has not been filed within that period. It leaves DO discretion with the Magistrate but obliges him to pass an order of bail and communicate the accused that he may furnish the requisite bonds. It leaves DO discretion with the Magistrate but obliges him to pass an order of bail and communicate the accused that he may furnish the requisite bonds. In the present case no such order was passed by the Magistrate or by the sessions Judge. Once the matter was brought to the notice of the Seissons Judge that the chargesheet has not been filed within the period of 90/60 days, the order which was to be passed by the court was that the accused is to be released on bail. This case is also authority for the proposition that no application for bail is necessary by the accused on completion of 90/60 days and before filing of the chrgeshect. This impliedly over-rules the proposition according to which an application by the accused is necessary before he could be granted bail. Those propositions arc contained in the case of Heeraman v. State of U. P. (supra) and Lakshmi Brahman v. State (supra ). The next case in the seriea is Raghubir Singh v. State of Bihar, AIR 1987 SC 149 . After considering the provisions of Section 167 (2) of the code, the code observed that "yet the intention of the legislature teems to be to grant no discretion to the Court and to make it obligatory for it to release the accused on bail". It is further mentioned in para 22 of the same case that "an order for release on bail made under the proviso to Section 167 (2) is not defeated by lapse of time, the filing of the charge-sheet or by remand to custody -under Section 309 (2)". Thus this authority says that the Magistrate is bound to grant bail to the accused who has completed 90/60 days in detention and a charge-sheet is not died within that period. It is also an authority for the proposition that even if a charge-sheet is filed after the period of 90/60 days then the right of the accused to get an order for release on bail cannot be defeated. The argument of the learned State Counsel is that a remand under Section 300 of the code has already been made in the present case after filing a charge-sheet will disentitle the accused to bail. The argument of the learned State Counsel is that a remand under Section 300 of the code has already been made in the present case after filing a charge-sheet will disentitle the accused to bail. Now this controversy is also set at rest by this decision and the accused applicants can get bail as of right even after filing of the charge-sheet and that right is not defeated by filing the charge-sheet by the investigating agency. ( 9 ) THE last case in the series is Aslam Babulal Desai v. State of Maharashtra, III (1992) Current criminal Reports 292 SC. In that case a question was as to whether after the filing of the charge-sheet bail can be cancelled on mere presentation of the charge-sheet thereafter. The Court came to the conclusion that it cannot be done and while considering this point the Honble Court also consider the question of bail under Section 167 (2) (a ). After referring to various views the honble Court quoted the view expressed in the case of Raghubir Singh v. Stale of Bihar (supra)with approval as far as the point. which is in dispute in the present case is concerned. ( 10 ) THUS in view of the provisions of Section 167 (2) (a) of the Code and the case law cited above if is clear that the provisions of Section 167 (2) (a) regarding bail to the accused are mandatory in nature and they have to be strictly complied with by the Magistrate. It is the duty of the magistrate which has been imposed on him by the legislature that if an accused his completed 90/60 days in detention and no charge-sheet is filed against him then the Magistrate should pass an order of bail calling upon the accused to furnish bail bonds. He can not say the accused to move an application for that purpose and if the accused does not move an application after completion of 90/60 days then the bail cannot be rejected to him after filing of the charge-sheet on the ground that the accused bad not applied for bail under the abovesaid provisions. The magistrate is to grant bail and then to ask for bail bonds. Even if there is delay in furnisthing the bail bonds the right of bail is not defeated. The magistrate is to grant bail and then to ask for bail bonds. Even if there is delay in furnisthing the bail bonds the right of bail is not defeated. This right is an absolute right which has been granted by the legislature to the accused and cannot be curtailed. It is also held that once there is lapse on the part of the prosecution agency to submit charge-sheet within 90/60 days the Magistrate cannot after the charge-sheet has been filed refuse to grant bail to the accused. This is the right which has been given to the accused by the legislature under the said provision. Even if the magistrate remanded the accused to custody under the provisions of Section 309 (2) of the Code that will also not defeat (he right of the accused which has been conferred by the legislature under the said provision of law. ( 11 ) THE result is that the orders of bail passed by 1st Additional Sessions Judge, Rae Bareli with respect to Amar Singh and order of Sessions Judge Rae Bareli dated 25-5-92 with respect to Smt. Kashi Kumari cannot be sustained and learned Additional Sessions Judge/sessions Judge, should have granted bail to the applicants under the circumstances of this case. ( 12 ) THE bail application is therefore, allowed. ( 13 ) LET the applicants Amar Singh and Smt. Kashi Kumari be enlarged on bail on their furnishing a persona) bond and two sureties each in the like amount to the satisfaction of C. J. M. Rae Bareli.