Judgment Nagendra Rat, J. 1. -the petitioner has filed the present application challenging his detention in Gopalpur P. S. Case No.92/93 under Section 398 of the Indian Penal Code on the ground that same is in contravention of the provisions contained in proviso (a) (ii) to Sec.167 (2) of the Code of criminal Procedure (hereinafter referred to as the Code) according to which a Magistrate is not authorised to detain an accused in custody for more than sixty days during the period of investigation. 2. The necessary facts for the disposal of the present application are that one Umesh Rai of village Dharampur in the district of Samastipur lodged a Fardbeyan before the A. S. J. , Gopalpur Police Station at Chhapra notional Highway-31 Road On 11-5-1993 at 1130 a. m. alleging, inter alia, that he was a driver of Truck, bearing No.8, P. L 9411, and he was carrying bitter gourd (Karela) from Mainaguri to Samastipur. Kamlu Rai, an another driver, and a business man were also in the Truck When the truck reached west to Kataria Bridge in the night at 1 a. m , he noticed that a Truck loaded with coal crossed over the bamboos which were loaded on a bullockcart standing across the road. When he wanted to cross his truck also, 10-15 miscreants appeared and wanted to stop the truck. Then he wanted to pass away his truck speedily over the bamboos but the front axle of the truck broke down, as a result of which the truck fell into a nearby ditch. In the meantime, the police force came from Kursela Barrier and the miscreants managed to flee away They could not succeed in removing the articles. He gave the description of the miscreants and claimed to have identified them. 3. On the basis of the said Fardbeyan Gopalpur Police registered gopalpur P. S. Case No.92/93 under Sec.398 of the Indian Penal Code against unknown person. The petitioner was arrested and was forwarded to the Court of the Additional Chief Judicial Magistrate, Naugachhia on 4-6-93.14-6-93 a T. I parade was held in which the petitioner was identified by two persons On 17-6-93 the petitioner filed an application before the Additional chief Judicial Magistrate for bail which was rejected on the same date. Thereafter be filed an application for bail before the Add. Thereafter be filed an application for bail before the Add. Sessions Judge maugacbhia in B. P No.108/93 which was rejected on 21-8-93. 4. The Police did not submit charge sheet in the case till 6-8-93. The petitioner thereafter on the same date filed an application, for bail on the ground that as the issued investigation has not been completed within sixty days and he has been made an accused in a case which is punishable with an imprisonment for a terms less than 10 years, he is entitled to be released in terms of proviso (a) (ii) to Sec.167 (2) of the Code of Criminal Procedure. In other words, as the charge sheet has not been submitted within 60 days, he is entitled to be released on bail according to the said proviso. The said prayer was rejected by the Addl. Chief Judicial Magistrate, nangachhia on 6-8-93, against the said order he moved the Addl. Sessions Judge, naugachhia, in Bail petition No.148/93, which was rejtcted on 8-9-93. Thereafer the present writ application has been filed for the reliefs as prayed in the petition. 5. Learned counsel for the petitioner contended in this case the petitioner was taken into custody on 4-6-93 and upto 6-8-93 the police had not completed the investigation and as the offence alleged to have been committed is under Sec.398 I. P. C. which provides minimum sentence of seven years imprisonment only, the petitioner is entitled to be released on bail by virtue of the proviso (a) (ii) to Sec.167 (2) of the Code. According to him, the provision for detention for 90 days. as provided under Sec.167 (2) proviso (a) (i) of the Code shall not be applicable in this case, as the offence under Sec.398 I. P. C. is not punishable with any of the punishments mentioned therein. 6. According to him, the provision for detention for 90 days. as provided under Sec.167 (2) proviso (a) (i) of the Code shall not be applicable in this case, as the offence under Sec.398 I. P. C. is not punishable with any of the punishments mentioned therein. 6. Learned counsel appearing for the State on the other hand contended the Sec.398 I. P. C. does not create a substantive offence, on the other band, it only regulates the measure of punishment when the offender at the time of attempting to commit robbery or dacoity is armed with deadly weapon The substantive offence is either to attempt to commit a robbery or dacoity and as in the present case the allegation is of attempt to commit dacoity, the offence committed by the petitioner is under Sec.395 I, P. C, which prescribes punishment for imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years : and, as such the proviso (a) (i) to Sec.167 (2) of the Code, which authorises detention for 90 days, will be applicable in this case. 7. Section 57 of the Code provides that a police officer shall not detain in custody a person arrested without warrant for more than 24 hours, unless there is a special order of a Magistrate under Sec.167 of the Code. 7. Section 57 of the Code provides that a police officer shall not detain in custody a person arrested without warrant for more than 24 hours, unless there is a special order of a Magistrate under Sec.167 of the Code. Subsection (1) of Sec.167 of the Code provides that when a person is arrested and detained in "custody and it appears that the investigation cannot be completed within a period of 24 hours fixed by Sec.57, and there are grounds for believing that the accusation or information is well founded, the Officer-in-charge of the police station or the police officer making the investigation, if he is not below the rank of sub inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate Sub-section (2) provides that a Magistrate to whom an accused person is forwarded, whether he has jurisdiction to try the case or not, authorise the detention of the accused in such custody as the magistrate thinks fit, from time to time, for a term not exceeding fifteen days in the whole ; and if he has no jurisdiction to try the case or commit it tor trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction. Proviso (a) to clause (2) empowers the Magistrate to detain the accused person in custody other than the police custody beyond the period of fifteen days on his being satisfied that adequate grounds exist for detention, but in no case the detention of accused person in custody shall exceed 90 days, where the investigation relates to an offence punishable with death or imprisonment for life or an imprisonment for a term of not less than 10 years, and 60 days where the investigation relates to any other offence. On expiry of 90 days and 60 days, as the case may be, the accused shall be released on bail and his release on bail shall be deemed to be a release under the provisions of Chapter XXX III of the code Thus it is evident that during investigation the Magistrate can authorise detention of the accused in custody other than the police custody beyond the period of 60 days if he is satisfied that there is adequate ground for such detention, but that detention cannot exceed to 90 days if the investigation relates to an offence punishable with death or imprisonment for life or rigorous imprisonment for a term not less than ten years or sixty days where the investigation relates to any other offence. In other words, if the investigation is not com pleted within 90 days or 60 days, as the case may be, the Magistrate is bound to release the accused on bail on furnishing bail bound to his satisfaction. 8. In this case, the question is as to whether the case of the petitioner falls under proviso (a) (i) or a (ii) to Sec.187 (2) of the Code In other words, whether the investigation in the case of the petitioner related to an offence punisable with death, imprisonment for life or imprisonment for a term of not less than ten years or it related to any other offence where punishment provided is below ten years. 9. According to the allegation, the petitioner along with more than five persons attempted to commit robbery. Thus, the offence alleged against the petitioner is a dacoity punishable under Sec.395 I P. C As an attempt to commit robbery by more than five persons is also covered by the definition of dacoity, as defined under Sec.340 I. P. C. In course of dacoity the allegation against the petitioner is that be was armed with deadly weapon. The petitioner has been made an accused under Sec.398 I. P. C. which provides that if, at the time of attempting to commit robbery or dacoity, or offender is armed with any deadly weapon, the imprisonment with which such offender shall be punished shall not be less than seven years. 10. The petitioner has been made an accused under Sec.398 I. P. C. which provides that if, at the time of attempting to commit robbery or dacoity, or offender is armed with any deadly weapon, the imprisonment with which such offender shall be punished shall not be less than seven years. 10. According to the learned counsel for the petitioner, for determining the question as to whether clause (i) or (ii) of proviso (a) to Sec.167 (2) of the Code will apply the minimum punishment provided for a particular offence will he decisive factor According to him, as the minimum punishment provided for the offence under Sec.398 is only "seven years, clause (i) of proviso (a) to sub-section (2) of Sec.167 will not apply in-this case, on the other hand, clause (ii) of proviso (a) to section 167 (2) of the Code will apply, according to which the maximum period for detention of the accused person in custody during investigation shall be 60 days and as, admittedly, the investigation has not been completed within 60 days in this case, the petitioner was entitled to be released on bail and the learned Addl Chief fudicial magistrate and the Addl. Sessions Judge have erred in rejecting the praves of the petitioner for bail. I find myself unable to agree with the aforesaid submission for the reasons stated hereinafter. 11. A bare reading of proviso fa) to Sec.167 (2) show that if the investigation relates to an offence which is punishable with death or imprisonment of life of for imprisonment for a term of not less than ten years, the maximum period of detention during investigation is 90 days and in other cases it is 60 days If the. offence is punishable with ten years or more, provision a (i) will apply. The minimum sentence prescribed for a particular offence is not at all relevant for deciding the question whether proviso a (i)or a (ii) to Sec.167 (2) of the Code will apply. 12. Section 398 I. P. C. is not a substansive offence. It only provides that if at the time of attempting to commit robbery or dacoity the offender is armed with deadly weapon then the minimum punishment shall not be less than seven years The substantive offence is an attempt to commit robbery or dacoity. 12. Section 398 I. P. C. is not a substansive offence. It only provides that if at the time of attempting to commit robbery or dacoity the offender is armed with deadly weapon then the minimum punishment shall not be less than seven years The substantive offence is an attempt to commit robbery or dacoity. If the accused person was armed with a deadly weapon while attempting to commit a robbery then the substantive offence would be attempt to commit robbery, which is punishable under Sec.393 I. P. C. If the allegation is that the accused person was armed with a deadly weapon at the time of attempting to commit dacoity then the substantive offence would be dacoity punishable under Sec.395 of the Penal Code, as an attempt to commit dacoity is also included within the definition of the dacoity which provides, inter alia, that if five or more persons conjointly attempt to commit a robbery then every person so attempting is said to commit dacoity. Sec.398 only regulates the punishment when certain facts are found in existence at the time of attempting to commit robbery or dacoity. 13. In the present case the allegation is that the petitioner was armed with deadly weapon at the time of attempting to commit dacoity and as such the offence which the petitioner is alleged to have committed is a dacoity as defined under Sec.391 of the Penal Code punishable under Section 395 of the Penal Code which provides punishment to 10 years imprisonment and more and as such proviso a (i) to Sec.167 (2) of the Code is attracted and he can be detained for a maximum period of 90 days during investigation and not sixty days as contended by the counsel for the petitioner. Learned counsel for the petitioner fairly stated that the charge sheet was submitted before expiry of 90 days of detention. Thus, it is clear that proviso a (ii) to section 167 (2) of the Code is not attracted in this case and the courts below rightly did not enlarge the petitioner on bail. In my view, there is no merit in this application it is accordingly dismissed. Application dismisssed.