J. G. CHITRA, J. ( 1 ) I am dealing with this matter in view of the order of Hon'ble the Chief Justice of this High Court. ( 2 ) THIS is the second bail application of the applicant. The previous bail application hearing number Misc. Cri. Case No. 3492/93 has been decided on merit on 19-1-1994. The bail was granted to two accused-applicants namely Rustam S/o Chhotu and Dinesh S/o Rustam. However, the prayer for bail made by the present applicant was dismissed by Hon'ble Justice R. D. Shukla. The reason given for releasing the applicants-accused Rustam S/o Chhotu and Dinesh S/o Rustam was that the charge-sheet was not filed against them within the period of 90 days. Thus, the accused -applicants were released on bail in view of the provisions of Section 167 (2) of the Code of Crimi nal Procedure 1973 (hereinafter referred to as 'code' ). In the said order; it was observed that so far as the accused-applicant Prakash S/o Rustam, was concerned the charge-sheet was filed against him within the period of 90 days because he was arrested on 5-9-1993. ( 3 ) THE applicant Prakash s/o Rustam along with other accused have been charged for com mitting murders of Raju s/o Baboolal and Rukhji s/o Baboolal. The present applicant was arrested on 5-9-1993 and was remanded to judicial custody. On production on 6-9-1993, the judicial custody remand granted in respect of the applicant Prakash s/o Rustam on that date was till 18-9-1993. ( 4 ) THE challan against the applicant and other co-accused was filed in the Court on 2-12-1993. It appears from the order of this Court passed in Misc. Cri. Case No. 3492/93 that on 23-11-1993 the accused persons were not produced in the Court, only warrants were produced and the learned Magistrate remanded them to judicial custody till 30-11-1993. On 30-11-1993 also they were not produced before JMFC. However, the remand was granted till 14-12-1993. ( 5 ) IN the present bail application which has been filed by the applicant in view of the provi sions of Section 439 of the Code, the applicant has contended in the present bail application in para graph No. 3 that the applicant was not produced from 23-11-1993 till 14-12-1993 and the period of 90 days was over. ( 5 ) IN the present bail application which has been filed by the applicant in view of the provi sions of Section 439 of the Code, the applicant has contended in the present bail application in para graph No. 3 that the applicant was not produced from 23-11-1993 till 14-12-1993 and the period of 90 days was over. He has further contended that on 2-12-1993 though challan was filed against the applicant, the copy was supplied to him on 14 -12-1993. ( 6 ) THE applicant has filed the certified copy of the order-sheet pertaining to the case against him and pertaining to the Court of JMFC. , concerned. ( 7 ) THE learned counsel for the petitioner Shri Jai Singh argued that from the certified copy of the order so far as this applicant is concerned, it is quite obvious, that the remand has been granted in respect of this applicant without his production before JMFC. He submitted further that though challan was filed against him on 2-12-1993, the copies were not supplied to him till 14-12-1993. It is his argument that in view of that, the applicant is entitled to get released on bail. He also submit ted that as other co-accused have been released on bail, this applicant needs to be released on bail. He justified his argument by relying on some judg ments. ( 8 ) SHRI G. Desai Deputy Government Advo cate for the State submitted that it has been held by Supreme Court and other High Courts as well as this High Court that non-production of the accused because of some compelling reason would not be the ground for releasing such accused on bail. He submitted that the reliance which has been placed by Shri Jai Singh, counsel for the applicant on the judgments on this High Court are not relevant to the facts of the present case and the applicant cannot take advantage of such judg ments of this High Court. He submitted that the bail application be dismissed. ( 9 ) I deal with the judgments on which reliance has been placed by learned counsel for the applicant and the Deputy Government Advocate, for which the relevant journals have been submitted before this Court. He submitted that the bail application be dismissed. ( 9 ) I deal with the judgments on which reliance has been placed by learned counsel for the applicant and the Deputy Government Advocate, for which the relevant journals have been submitted before this Court. ( 10 ) IN the matter of Ram Narayan Singh v. The State of Delhi, a judgment reported in AIR 1953 SC 277 : (1953 Cri LJ 1113), the Supreme Court has observed "detention of a person in custody after the expiry of remand order, without any fresh order of remand committing him to further custody while adjourning the case under S. 344, Code is illegal". In the matter of Sandip Kumar Dey v. The Officer-in-charge, Sakchi P. S. Jamshedpur, reported in AIR 1974 SC 871 : (1974 Cri LJ 740), the Supreme Court observed. 'though the order of remand passed in absence of the prisoner in Court is not vitiated, it is highly unsatisfactory. Remand orders cannot be passed mechanically and the Magistrate passing an order of remand ought, as far as possible, to see that the prisoner is produced before the Court when the remand order is passed. ' In the same matter the Supreme Court further observed :"orders of remand ought not to be passed machinically and even though this Court has ruled that the non-production of the accused will not vitiate an order of remand, the Magistrate passing an order of remand ought, as far as pos sible, to see that the accused is produced in the court when the order of remand is passed. It appears from the proceedings that the accused was transferred to Gaya Jail partly for reasons of security and that is why he could not be produced in the Jamshedpur court which passed the various orders of remand. "( 11 ) IN the matter of Ramesh Kumar Ravi alias Ram Prasad and etc. v. State of Bihar etc. , judgment reported in AIR 1988 Patna 199 : (1987 Cri LJ 1489), Full Bench of Patna High Court ob served 'a Magistrate has jurisdiction to pass an order of remand despite the absence of any formal written application or a request for such remand being made by the Police or the prosecution. It would be doing violence to the plain language of Ss. It would be doing violence to the plain language of Ss. 167 (2) and 309 (2) of the Code by reading into them a requirement of a formal application for remand or, in any case, an insistent request there fore. The whole spirit of the Code is that the custody and liberty of the accused is entirely governed by the authority and sanction of a Court of law beyond the initial period of twenty four hours between the first arrest and production before the Magistrate thereafter. By no twisted interpretation can this power in actual fact and practice be passed on into the mere discretion of the investigating agency, whether to ask for re mand or not. Once an accused person is produced before a Magistrate he is in a legal sense in custodia legis and it is the Court's responsibility and power whether he is to be remanded to further custody granted bail or released altogether. By no stretch of imagination can this power of the Court be whittled down and be indeed passed on to the mere discretion of the investigating agency alone. In the same matter Patna High Court observed that though physical production of the accused before the Magistrate is desirable yet the failure to do so would not per se vitiate the order of remand if the circumstances for non-production were beyond the control of the prosecution or the Police. In the same matter Patna High Court observed' The accused is to be physically pro duced before the Magistrate though it may turn out to somewhat burdensome for the State. This on principle appears to be intended as a primal guarantee against any infraction of the valuable right of liberty even though curtailed by the Crimi nal process so as to ensure that the accused has always access in person to the judicial authorities. However, whilst holding so, one cannot possibly go to the other extreme and accept the doctrinair stand that the absence of the physical production of an accused person would vitiate the order of remand incurably. If it is physically impossible to produce the accused in person, then his mere non- production would not render his remand to further custody illegal. However, whilst holding so, one cannot possibly go to the other extreme and accept the doctrinair stand that the absence of the physical production of an accused person would vitiate the order of remand incurably. If it is physically impossible to produce the accused in person, then his mere non- production would not render his remand to further custody illegal. The wholesome provisions of the Code requiring physical production have to be viewed reasonably and not to an impossibly logi cal extreme; ( 12 ) IN the matter of Subhash v. State of M. P. , a judgment reported in 1988 JLJ 444 : (1988 Cri LJ 1553 ). Single Bench of this High Court ob served 'magistrate is duty bound to see that copy of challan papers is furnished to accused when the challan has been filed against him. There is clear breach of the mandate of Sec. 207 of the Code'. In the matter of Subhash v. State of M. P. (supra) the Magistrate extended the period of jail remand without production of the accused and challan was filed in his absence without supplying copy thereof to the accused. On 7-3-1988 the accused was produced before the Magistrate from jail and he was furnished with copies of the charge-sheet before passing the committal order. In the said case the charge-sheet was filed on 20-11-1988, in the absence of the accused, who was not produced before the Magistrate for almost two months thereafter. In the said matter Single Bench of this High Court held that such filing to challan would not arrest the operation of the proviso to Section 167 (2) of the Code which would entitle the accused to bail. In the said matter except for the initial warrant dated 27-10-87 of commitment of jail, rest of the endorsement are on loose papers, which bear a rubber stamp seal impression indicating non-production of prisoner for want of police-guard and just below this endorsement the learned Magistrate at different dates and places had noted produced on. . . . . . . . . . . . . . . . . . . . . . . . . . . to indi cate the date, but the petitioner till actually com mittal order was passed, was never produced for all these months, as can be gathered from the endorsement made on the warrants. . . . . . . . . . . . . . . . . . . . . . . . . . . to indi cate the date, but the petitioner till actually com mittal order was passed, was never produced for all these months, as can be gathered from the endorsement made on the warrants. It was held by single Bench of this Court that such detention amounted to illegal detention. In view of that, the Single Bench of this High Court directed the said accused to be released on bail on his furnishing personal bond in the sum of Rs. 10,000. 00 with one surety in the like amount to the satisfaction of the trial Court. ( 13 ) IN the matter of Anand Kumar v. State of M. P. a judgment reported in 1989 JLJ 55 , Single Bench of this High Court held that when the accused could not be produced for valid reasons -- custody does not become illegal entitling accused for grant of bail. In the said judgment Single Bench of this High Court dealt number of judg ments including the judgment of Supreme Court and other High Courts. In that judgment, the judgment of Single Bench of this High Court in the matter of Subhash v. State of M. P. , 1988 JLJ 444 : 1988 Cri LJ 1553, was also considered. 13a. In the matter of Raj Kumar v. State of M. P. , a judgment reported in 1990 MPLJ. 289, Division Bench of this High Court held 'though it is desirable to have the accused produced before the Magistrate when they are remanded to further custody, but an order of remand made in the absence of accused will not be per se invalid in every case. Where the production of the accused in person before the Magistrate is beyond the control of the State or prosecuting agency, the order of remand made in absence of the accused may not be vitiated. Where the production of the accused in person before the Magistrate is beyond the control of the State or prosecuting agency, the order of remand made in absence of the accused may not be vitiated. From the plain language of Section 167 (2) (b) of the Code of Criminal Proce dure read with Explanation appended at the end of sub-clause (c) of Section 167 (2) of the Code, the mandate of law is clear in very unequivocal terms that the statute has now made it obligatory on the Magistrate concerned granting remand to insist on the physical production of the accused before him before granting any remand. The reason is obvious. It affords a guarantee against any infrac tion of the valuable right of a person to liberty as well as it provides an access in person to the judicial authorities to advance his grievances, if any, and to make any representation if so desired. However, the requirement of production of accused, before granting of remand cannot be stretched to such an extent as to cover even those cases and circumstances where it is almost prac tically impossible to physically produce the accused in person before the Magistrate. There may be situation and circumstances where in spite of all due diligence, bona fide intention and precau tions it may not be possible for the State to physically produce the accused in person before the Magistrate and, therefore, due to the absence of the accused the order of remand may not be vitiated. There may not be any dearth of such situations and circumstances, for example, in cases of terrorists and dangerous criminals whose escort from the place of their custody to the Court or Magistrate concerned and back may not be free from hazards and risk to attack by their associates and accomplices with a view to free them from lawful custody. There may also be case where the accused himself may refuse to appear before the Court or Magistrate on the apprehensions of being shown to the witnesses who are supposed to identify him in a test parade. There may also be case where the accused himself may refuse to appear before the Court or Magistrate on the apprehensions of being shown to the witnesses who are supposed to identify him in a test parade. So also, where several cases are pending against an accused at different places or say in different States and if by chance some dates are fixed in two or more such cases or in close proximity so that it may not be practically possible to produce the accused before all the Courts. The accused may have been seriously injured in the same incident or otherwise by reason of which he may have been hospitalised making it quite impossible for him to move about. The accused may become seriously ill and it may be only at the risk of his life that he may be produced before the Court of Magistrate. There may be many more factors where it may not be practically possible for good and valid reasons to physically produce the accused. " ( 14 ) IN the matter of Dodha v. State of M. P. , a judgment reported in 1992 MPWN Note 76, Single Bench of our High Court held "it was not disputed that the applicant was not produced on 10-12-1991 when the charge-sheet was presented in the Court. The reason for his non-production is said to be non-availability of escort guards, the non- availability of Police guard cannot be treated as an abnormal circumstance to justify grant of remand by a Magistrate, in the absence of accused before the Court. " In the said matter the Single Bench of this High Court held that as the copies of charge- sheet were supplied to the applicant-accused well beyond 90 says, even though the charge-sheet was presented in the Court on a date when the accused was not produced for reasons, which were wholly insufficient, the applicant was en titled to be released on bail under Sec. 167 (2) of the Code. In the said matter the Single Bench of this High Court observed that the right to bail under S. 167 (2) proviso (a) thereto is absolute. It is a legislative command and not Court's discre tion. If the investigating agency fails to file charge- sheet before the expiry of 90/60 days, as the case may be, the accused in custody should be released on bail. It is a legislative command and not Court's discre tion. If the investigating agency fails to file charge- sheet before the expiry of 90/60 days, as the case may be, the accused in custody should be released on bail. But at that stage, merits of the case are not to be examined. Not at all. In fact, the Magistrate has no power to remand a person beyond the stipulated period of 90/60 days. He must pass an order of bail and communicate the same to the accused to furnish the requisite bail bonds. ( 15 ) IN the matter of Kurra Dasarath Ramaiah v. State of Andhra Pradesh, a judgment reported in 1992 Cr. LJ 3485, the Full Bench of Andhra Pradesh High Court observed that "non-availabil ity of escorts for non-production of the accused person constitutes a ground for infraction of the mandatory requirement of S. 167 (2) of the Code. If the accused is not produced the Magistrate can enquire into the reasons for such non-production. It is only when the non-production is due to reasons beyond the constrol of the police or jail authorities, he can authorise further remand but before doing so he must be satisfied that there are adequate grounds for so doing. Mere default on the part of the jail or police authorities in produc ing accused before Magistrate cannot be valid reason to release the accused either on bail or without any conditions. Such a course of action, would amount to abdication of his judicial func tions. " ( 16 ) THUS, it would be clear from the observations of various High Courts and the Supreme Court on which the reliance was placed/that the accused would not be entitled to get the bail only on the ground of non-production of the accused before the Court. The casualness or apathy on the part of the jail authority or police resulting in non -production of the accused before the Court with out justifiable ground has been depricated but only on that ground the accused has not been released on bail. If the accused is to be released on bail, the charge-sheet filed should be beyond the period of 90/60 days. It is pertinent to note that in all those matters the point was revolving around the provisions of Section 167 (2) of the Code. If the accused is to be released on bail, the charge-sheet filed should be beyond the period of 90/60 days. It is pertinent to note that in all those matters the point was revolving around the provisions of Section 167 (2) of the Code. It is to be noted that in the matter of Sandip Kumar Dev v. The Officer-in-Charge, Sakchi P. S. Jamshedpur (supra), the Supreme Court did not release the accused on bail but left the release of the said accused on bail to the discretion of the Court before which the case was pending. In that matter the Supreme Court pointed out that the co -accused was released on bail and the bail of the accused in the said matter was on the same footing as that of Naryan Das. Further it was pointed out that investigation took more than two years for getting it completed. It was treated to be a ground sufficient for releasing the accused on bail. ( 17 ) IN only two matters - reference has been made conspicuously towards at non-supplying of the copies of Challan or papers of investigation to the accused after the charge-sheet was filed against him. These two matters are Subhas v. State of M. P. (supra) and Dodha v. State of M. P. (supra ). In these matters there were other grounds which were significant and according to me responsible for release of the accused on bail. In these two matters no detailed discussion has been made about the effect of non-supplying of the copy of the challan or the papers of investigation beyond 90/60 days to the accused. It is pertinent to note that those cases also mainly revolved around the provisions of Section 167 (2) of the Code. ( 18 ) THE most question arises as to what could be the prejudice which could be caused to the defence of the accused by the delay in supplying the copy of the challan or investigation papers to the accused so far as his claim for bail is con cerned, when the charge-sheet has been submit ted within 90/60 days? Whether the accused would be prevented by such delay in pressing prayer for getting released on bail? The answer would be no in all probability. Whether the accused would be prevented by such delay in pressing prayer for getting released on bail? The answer would be no in all probability. In such cases the accused would be at liberty to move a simple application before the Court praying that he be released on bail and would point out in the said application that copy of the challan or papers of investigation have not been supplied to him. A request can also be made at that time for allowing counsel for such an accused to have perusal of the papers of investiga tion filed in the Court. After getting sufficient and reasonable opportunity of perusal or studying the papers of investigation, the counsel appearing for such accused can bring it to the notice of the Court that in view of the strength of material collected by Investigating agency against him, the accused is entitled to get bail in view of the provisions of law and precedents. When such application has been moved by the accused the Court would definitely consider the prayer for bail made by such an accused by giving proper attention to wards the material collected by investigating agency against such an accused. The accused has to make out a case conspicuously that the delay is abnormal or because of the delay a serious preju dice has been caused to him in respect of getting the bail. ( 19 ) IN the present matter, the accused has been charged for committing two murders and the charge-sheet against him has been filed in the Court within the period of 90 days. Two co -accused has been released on bail by this High Court because charge-sheet against them was filed in the Court beyond period of 90 days. Thus, this accused-applicant was and is not coming under the purview of Section 167 (2) of the Code. His case is also not on the same footing with the case of other two co-accused who have been released on bail. ( 20 ) IN the present matter there is an application moved by the original complainant in which griev ance has been made that if the present accused- applicant is released on bail, he would not allow the original complainant to survive. ( 20 ) IN the present matter there is an application moved by the original complainant in which griev ance has been made that if the present accused- applicant is released on bail, he would not allow the original complainant to survive. It has been pointed out in the said application that if this accused-applicant is released on bail, the original complainant, who is any eye-witness would be in danger so far as his life and safety is concerned. It has also been further pointed out in the said application that the applicant-accused is a mighty person having significant influence in the locality and, therefore, there is likelihood of tampering the obstacle to the prosecution evidence. ( 21 ) IN the present matter, the applicant was not produced before the Court from 23-11-1993 to 14-12-1993 and the charge-sheet has been filed in the Court against him in his absence. No reason has been given for non-production of the accused -applicant before the Court during that period. It is a mistake on the part of the learned Magistrate that he did not make the enquiry about the reasons of non-production of the accused. The learned As sistant Police Prosecutor appearing for prosecu tion also committed mistake in not making any enquiry about the reasons behind non-production of accused and is not bringing on record those reasons to the notice of the Court. But as the Supreme Court has held in the matter of Sandip Kumar Dev v. The Officer-in-charge Sakchi P. S. Jamshedpur (supra) non-production of the accused before the Court would not by itself make detention illegal. So far as non-supplying of the copy of the challan or the papers of investigation is concerned there has been delay of only 12 days or so. There might have been the reasons for it, but unforunately nothing has been brought on record in that context. It is a matter of experience that now a days because of increasing number of crimes and insufficiency of typewriters, it has become very difficult to prepare the copies of papers of investigation. That might have been the reason for the said delay. It might have been attributable to the callousness or negligence of the person looking after this aspect of the prosecu tion. That might have been the reason for the said delay. It might have been attributable to the callousness or negligence of the person looking after this aspect of the prosecu tion. But because of that only, an accused, who has been charged for committing two murders and against the release of such accused, an appre hension has been expressed that by release of such an accused on bail there is likelihood of danger to the life and safety of the eye-witness as well as to leading of the evidence by prosecution in the Court, cannot be released on bail. It is pertinent to note at this juncture that the prosecu tion has a good case for going to the trial against this accused and the prosecution is in possession of the evidence of eye-witnesses which is prima facie corroborated by the medical evidence. ( 22 ) THUS, in view of the discussion made above, I dismiss the argument advanced on behalf of the applicant and the prayer for his release on bail. Bail application stands dismissed. Application dismissed. .