ORDER Heard learned counsel for the petitioners and the State. Apprehending arrest in a case registered under Section 304B/34 of the Indian Penal Code, the petitioners who are brother-in-law (Nandoi) and sister-in-law (married Nanad) respectively filed an application under Section 438 of the Code of Criminal Procedure. The matter was first taken up on 28.3.2012 on which date, it was brought to the notice of the Court that two other co-accused persons who were also married sister-in-law (Nanad) and brother-in-law (Nandoi) namely Jogni Devi and Pramod Pandit had already been granted anticipatory bail by order dated 26.3.2012 passed in Cr. Misc. No. 12433 of 2012 by this Court. Thus, it was ordered that the case be placed along with records of Cr. Misc. No. 12433 of 2012 on 29.3.2012. On 29.3.2012 when again the matter was taken up, it came to the notice of the Court that in Cr. Misc. No. 12433 of 2012 a statement had been made that the husband of the deceased namely Kamdeo Pandit had already been granted bail under Section 167(2) of the Code of Criminal Procedure whereas in the present petition, it has been stated that the husband of the deceased is in custody since 6.1.2012. Since both the statements could not have been true as they were contradictory to each other, the petitioners were directed to file an affidavit explaining as to whether the co-accused Kamdeo Pandit was still in jail or had been released on bail under Section 167(2) Cr.P.C. On 2.4.2012 a supplementary affidavit was filed on behalf of the petitioners in this regard annexing a copy of order dated 12.3.2012 passed by the learned C.J.M., Jamui whereby the co-accused Kamdeo Pandit was granted bail under Section 167(2) Cr. P.C. 2. On perusal of the aforesaid order dated 12.3.2012, the Court notices a very disturbing fact. The co-accused Kamdeo Pandit being husband of the deceased was remanded to judicial custody on 6.1.2012. On 12.3.2012, an application for bail was filed on his behalf under Section 167(2) Cr. P.C. A plea was taken that even after expiry of 60 days from the date of judicial remand charge sheet had not been submitted and, thus, the accused was entitled for compulsive bail under the mandatory provisions of Section 167(2) Cr. On 12.3.2012, an application for bail was filed on his behalf under Section 167(2) Cr. P.C. A plea was taken that even after expiry of 60 days from the date of judicial remand charge sheet had not been submitted and, thus, the accused was entitled for compulsive bail under the mandatory provisions of Section 167(2) Cr. P.C. In support of the contention advanced on behalf of the accused reliance was placed on a decision of Single Judge of Jharkhand High Court, since reported in 2002 (3) Cr. L.J.2507 (Sunil Kumar Vs. State of Jharkhand and others) in which it has been held that in a case under Section 304B IPC, if charge sheet is not submitted within 60 days from the date of custody of an accused, he will be entitled to bail under Section 167(2)(a)(ii) Cr. P.C. A copy of the petition was also served upon the D.P.O. Incharge. 3. It appears from the aforesaid order that the D.P.O. Incharge conceded to the prayer of the accused and expressed his inability to disagree with the aforesaid decision as no judgment of overriding effect was within his knowledge. The learned Chief Judicial Magistrate, Jamui called for a report from the office with regard to computation of the period of detention of the accused. The office reported that the accused is in custody since 66 days and no charge sheet has been filed. Thus, the learned C.J.M., Jamui placing implicit reliance upon the decision in case of Sunil Kumar Vs. State of Jharkhand and others (supra), directed the accused Kamdeo Pandit to be released on bail on furnishing bail bonds and sureties to the satisfaction of the court. It is to be noted here that in the said order the learned Chief Judicial Magistrate, Jamui has also taken note of the fact that the prayer for bail of accused Kamdeo Pandit had been rejected on merit by the learned Sessions Judge, Jamui. 4. Apparently, the order passed by the learned C.J.M., Jamui is erroneous in law. Accrual of the right to bail depends upon the maximum term of imprisonment provided for the offence and not the minimum. The term of imprisonment specified for the offence of dowry death under Section 304B IPC, is not less than seven years but it may extend to life imprisonment. Accrual of the right to bail depends upon the maximum term of imprisonment provided for the offence and not the minimum. The term of imprisonment specified for the offence of dowry death under Section 304B IPC, is not less than seven years but it may extend to life imprisonment. Thus, the maximum terms of imprisonment being more than ten years, the period of 90 days remand would be applicable in case of an offence punishable under Section 304B IPC and not the period of 60 days of remand. 5. A Division Bench of this Court in case of Upendra Singh @ Pappu Singh Vs. The State of Bihar & Ors., since reported in 2003(2) PLJR 327 has already settled the issue. It has been held in that case that for bail under Section 167(2) Cr. P.C., the gravity of the offence has to be seen with reference to the maximum sentence provided. 6. Again, in yet another decision in case of Satyanarayan Singh Vs. The State of Bihar & Another., since reported in 2004(4) PLJR 130 , in which, in similar circumstance, in a case under Section 304B IPC when bail was granted to an accused under Section 167(2) Cr. P.C. placing reliance on the decision in case of Sunil Kumar Vs. State of Jharkhand and others (supra) by a Magistrate as charge sheet was not submitted within 60 days from the date of custody of the accused, an application under Section 439(2) Cr. P.C. was filed before this Court for cancellation of bail granted to the accused. A Bench of this Court considered the matter in detail and took note of the judgment of Sunil Kumar Vs. State of Jharkhand and others (supra) and Upendra Singh @ Pappu Singh Vs. The State of Bihar & Ors. (supra) and held the order granting bail to the accused by the learned Magistrate to be bad and against the decision of the Division Bench of this Court which was binding on it. The application under Section 439(2) Cr. P.C. was allowed and the bail granted to the accused was cancelled. In this connection, I think it apt to quote here paragraph nos.4 & 6 of the said judgment which reads as follows:- “4. The learned counsel for the petitioner has submitted that the impugned order shows that learned Chief Judicial Magistrate granted bail to opposite party no. P.C. was allowed and the bail granted to the accused was cancelled. In this connection, I think it apt to quote here paragraph nos.4 & 6 of the said judgment which reads as follows:- “4. The learned counsel for the petitioner has submitted that the impugned order shows that learned Chief Judicial Magistrate granted bail to opposite party no. 2 under Section 167(2), Cr.P.C. by relying on a decision of Single Judge of Jharkhand High Court reported in 2002(3) Criminal Law Journal 2507 by which it has been held that in a case under Section 304B, I.P.C. if chargesheet is not submitted within sixty days from the date of custody of an accused, he will be entitled to bail under Section 167(2)(a)(ii), Cr.P.C. He has further argued that learned Chief Judicial Magistrate, Sitamarhi did not consider the decision of a Division Bench of this Court reported in 2003(2) P.L.J.R. 327 by which it has been held that for bail under Section 167(2), Cr. P.C., the gravity of the offence has to be seen with reference to the maximum sentence provided. In this case, the decision of Supreme Court reported in (2001) 5 S.C.C. 453 (Uday Mohanlal Acharya Vs. State of Maharashtra) which has also been reported in 2001(1) J.L.J.R. 890 S.C. (Reported in 2001(2) PLJR (SC) 182] relied upon by the Single Judge of Jharkhand High Court has also been relied upon. In 2001 (1) J.L.J.R. 890 S.C. the principle was laid down that when investigation is not completed within the specified period, an accused in custody gets an indefeasible right to be released on bail if he is prepared to furnish bail bond. It was further decided that if such an accused filed a petition for bail under Section 167(2), Cr. P.C. before submission of chargesheet and before any order on his petition is passed, chargesheet is submitted, it cannot be said that he has not availed of the right to be released on bail. This was the case on the point of accruing an indefeasible right by an accused in custody for his release on bail under Section 167(2), Cr. P.C. in case of non-completion of investigation within stipulated period which may be ninety days. This was the case on the point of accruing an indefeasible right by an accused in custody for his release on bail under Section 167(2), Cr. P.C. in case of non-completion of investigation within stipulated period which may be ninety days. The learned counsel for the petitioner submits that by ignoring the decision of Division Bench of this Court, the learned Chief Judicial Magistrate, Sitamarhi relied upon judgment of a Single Judge of another High Court which is not proper. His further argument is that in another judgment of a Single Judge of Himachal Pradesh High Court reported in 2003 Criminal Law Journal 1668, it has been held that in case of Section 304B, I.P.C. since maximum term of imprisonment being more than ten years of imprisonment, period of ninety days would be applicable for considering the question of release on bail under Section 167(2), Cr. P.C. According to him on the same point if there are divergent views expressed by different Benches of Single Judge of different High Courts and there is a decision of Division Bench of this High Court covering directly the point in issue, it was not proper for the learned Chief Judicial Magistrate to pass any order ignoring the decision of Division Bench of this Court to which he is subordinate and to base his order on the decision of a Bench of Single Judge of a different High Court when on the said point different view has been expressed by Bench of the Single Judge of another High Court.” “6. In the judgment of a Single Judge of Jharkhand High Court on the basis of which opposite party no. 2 has been granted bail, it has been observed that because imprisonment under Section 304B, I.P.C. provides that it will be of not less than seven years but it may extend to imprisonment for life so it does not come within the purview of Section 167(2)(a)(ii), Cr. P.C. in which only those offences are mentioned in which imprisonment is for life or imprisonment for a term of not less than ten years. According to his Lordship imprisonment for life and imprisonment which may extend to life are different and cannot be equated with other. For the offence under Section 304B, I.P.C., as discussed above, imprisonment of not less than seven years or the imprisonment which may extend to life is provided. According to his Lordship imprisonment for life and imprisonment which may extend to life are different and cannot be equated with other. For the offence under Section 304B, I.P.C., as discussed above, imprisonment of not less than seven years or the imprisonment which may extend to life is provided. It cannot be said that in no case under Section 304B, I.P.C., imprisonment for life can be granted and this will always be less than it. In view of the decision of Division Bench of this Court, referred to above, for the purpose of considering bail under Section 167(2), Cr.P.C., maximum punishment has to be considered. For an offence under Section 304B, I.P.C., maximum imprisonment may extend for life. I find that here for determining the question of bail of accused in the present case was ninety days of the period of custody and not sixty days period of custody. For considering bail of accused on the ground of non submission of chargesheet was ninety days and not sixty days from the date from the date of remand of accused in custody. The order granting bail to opposite party No. 2 by learned Chief Judicial Magistrate cannot be said to be a proper order which cannot pass order against the decision of the Division Bench of this Court which was binding on it.” 7. The issue in a case involving offence punishable under Section 304B IPC whether the period for filing charge sheet would be 90 days or 60 days has finally been set at rest by a decision of the Hon’ble Apex Court in case of Bhupinder Singh & Ors. Vs. Jarnail Singh and Another, since reported in 2006(6) SCC 277 . I would like to quote paragraph nos. 11 and 15 from the said judgment which reads as follows:- “11. A bare reading of Section 304-B IPC shows that whoever commits “dowry death” in terms of Section 304-B IPC shall be punished with imprisonment for a term which shall not be less than 7 years but which may extend to imprisonment for life. In other words, the minimum sentence is 7 years but in a given case sentence of imprisonment for life can be awarded. Put differently, sentence of imprisonment of life can be awarded in respect of an offence punishable under Section 304-B IPC. The proviso to sub-section (2) of Section 167 consists of three parts. In other words, the minimum sentence is 7 years but in a given case sentence of imprisonment for life can be awarded. Put differently, sentence of imprisonment of life can be awarded in respect of an offence punishable under Section 304-B IPC. The proviso to sub-section (2) of Section 167 consists of three parts. The first part relates to power of the Magistrate to authorize detention of the accused persons. This part consists of two sub-parts. In positive terms it prescribes that no Magistrate shall authorize detention of the accused in custody, under this paragraph [meaning sub-section (2) (a)] for a total period exceeding (i) 90 days where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years, and (ii) 60 days where the investigation relates to any other offences. The period of ninety days is applicable to cases where the investigation relates to the three categories of offences which are punishable with (i) death, (ii) imprisonment for life, or (iii) imprisonment for a term of not less than ten years. The question is whether Section 304-B is an offence “punishable” with imprisonment for life. Strong reliance was placed by Mr. D.K. Garg, learned counsel appearing for the appellant on Rajeev Chaudhary Vs. State (NCT) of Delhi. A reference is also made to the decisions of the Jharkhand, the Delhi and the Karnataka High Courts where the ratio in Rajeev Chaudhary case has been made applicable to cases involving offence punishable under Section 304-B IPC. The Jharkhand High Court’s decision is Sunil Kumar Vs. State of Jharkhand. Contrary views appear to have been taken by the Rajasthan and the Himachal Pradesh High Courts in Keshav Dev Vs. State of Rajasthan and State of H.P. Vs. Lal Singh. The Punjab and Haryana High Court appears to have taken a somewhat different view in two different cases. In Kuldeep Singh Vs. State of Punjab it was held that the period of 90 days, as has been held in the case at hand. But a different view (though in relation to some other offences) was taken in Abdul Hamid (Crl. Misc. No. 40599 M of 2005 disposed of on 21.9.2005). In Kuldeep Singh Vs. State of Punjab it was held that the period of 90 days, as has been held in the case at hand. But a different view (though in relation to some other offences) was taken in Abdul Hamid (Crl. Misc. No. 40599 M of 2005 disposed of on 21.9.2005). A bare reading of Rajeev Chaudhary case shows that the same related to an offence punishable under Section 386 IPC and the sentence in respect of the said offence is not less than 10 years. This Court held that the expression “not less than” means that the imprisonment should be 10 years or more to attract 90 days’ period. In that context it was said that for the purpose of clause (i) of proviso (a) of Section 167(2) CrPC the imprisonment should be for a clear period of 10 years or more. The position is different in respect of the offence punishable under Section 304-B IPC. In the case of Section 304-B the range varies between 7 years and imprisonment for life. What should be the adequate punishment in a given case has to be decided by the court on the basis of the facts and circumstances involved in the particular case. The stage of imposing a sentence comes only after recording the order of conviction of the accused person. The significant word in the proviso is “punishable”. The word “punishable” as used in statutes which declare that certain offences are punishable in a certain way means liable to be punished in the way designated. It is ordinarily defined as deserving of or capable or liable to punishment, capable of being punished by law or right, may be punished or liable to be punished, and not must be punished.” “15. Where minimum and maximum sentences are prescribed, both are imposable depending on the facts of the cases. It is for the court, after recording conviction, to impose appropriate sentence. It cannot, therefore, be accepted that only the minimum sentence is imposable and not the maximum sentence. Merely because minimum sentence is provided that does not mean that the sentence imposable is only the minimum sentence. The High Court’s view in the impugned order that permissible period of filing of challan is 90 days is the correct view. Contrary view expressed by the Jharkhand, the Delhi and the Karnataka High Courts is not correct. Merely because minimum sentence is provided that does not mean that the sentence imposable is only the minimum sentence. The High Court’s view in the impugned order that permissible period of filing of challan is 90 days is the correct view. Contrary view expressed by the Jharkhand, the Delhi and the Karnataka High Courts is not correct. The Himachal Pradesh, the Rajasthan and the Punjab and Haryana High Courts taking the view that 90 days is the period, have expressed the correct view …………………………………….” 8. Thus, it is apparent that the decision relied upon on behalf of the accused before learned C.J.M., Jamui in case of Sunil Kumar Vs. State of Jharkhand and others (supra) has expressly been overruled by the judgment of Hon’ble Supreme Court way back in the year 2006. A Division Bench of this Court and a Bench of Single Judge of this High Court has already given a decision covering directly the point in issue after noticing the decision of a Single Bench of Jharkhand High Court and has held that the in a case under Section 304B IPC bail of accused on the ground of non-submission of charge sheet can be considered on expiry of 90 days and not 60 days from the date of remand of accused in custody. The learned C.J.M., Jamui has, thus, erred in law, inasmuch as he has relied upon an overruled judgment of another High Court ignoring the law laid down by the Apex Court, a Division Bench of this Court and a Bench of Single Judge of this Court directly on the point in issue. 9. It is strange that a decision which has been overruled by the Apex Court long back was cited on behalf of the accused and the court did not take note of this position and disposed of the matter placing reliance on the said overruled decision. It is unfortunate that neither the counsel for the accused nor the counsel appearing on behalf of the State assisted the court properly. Member of the Bar are officers of the court. They have a bounden duty to assist the court and not mislead it. The counsel appearing on behalf of the State should always be vigilant on the question of law. Member of the Bar are officers of the court. They have a bounden duty to assist the court and not mislead it. The counsel appearing on behalf of the State should always be vigilant on the question of law. Unfortunately, from the order dated 12.3.2012, I find that the learned D.P.O. In-charge conceded to the illegal prayer of the accused and expressed that he was unable to disagree with the decision cited on behalf of the accused as there was no judgment of overriding effect within his knowledge. The citing of a judgment which has been overruled is a matter of serious concern. I can only express my anguish. 10. In sum and substance, an overruled judgment has been cited on behalf of the accused, the advocate appearing for the State conceded to the said judgment and the court faltered in passing the order. In my view, every one needs to introspect, improve and update on the question of law so that the administration of justice may not suffer. I say no more. 11. Coming back to the prayer on behalf of the petitioners of the present case, as noted above, the petitioners are married brother-in-law (Nandoi) and sister-in-law (Nanad) respectively of the daughter of the informant. As alleged the daughter of the informant was married to one Kamdeo Pandit five years ago. She was reportedly done to death by administering poison on 13.10.2011 at 3.00 p.m. The F.I.R. was instituted on the basis of the oral statement of Chhotelal Pandit recorded at 4.45. p.m. on 13.10.2011. It has been contended on behalf of the petitioners that they have falsely been implicated in the case. Altogether 8 persons have been made accused in the F.I.R. Co-accused Pramod Pandit and Jogni Devi who were married brother-in-law (Nandoi) and sister-in-law (Nanad) respectively have already been granted anticipatory bail by order dated 26.2.2012 passed in Cr. Misc. No. 12433 of 2012 considering the facts and circumstances of the case. The petitioner no. 2 Basanti Devi, who happens to be sister of the husband of the deceased had been married long back to petitioner no. 1 Jogendra Pandit @ Yogendra Pandit. They do not have any concern with the day to day matrimonial life of Kamdeo Pandit, the husband of the deceased. 12. It has also been contended that the dead body of the victim was sent for post-mortem examination. 1 Jogendra Pandit @ Yogendra Pandit. They do not have any concern with the day to day matrimonial life of Kamdeo Pandit, the husband of the deceased. 12. It has also been contended that the dead body of the victim was sent for post-mortem examination. The post-mortem report shows that neither any external nor any internal injury could be detected by the doctor conducting the autopsy. No exact cause of death could be ascertained in absence of viscera report but in the opinion of the doctor the deceased died due to Cardo-respiratory failure. The post-mortem report is annexed as Annexure-2 in Cr. Misc. No. 12433 of 2012 and I have verified the contention of the petitioners from the record of that case. Referring to the F.I.R. it has been pointed out that co-accused Pramod Pandit is agnate of the informant with whom he has dispute relating to land. The only allegation which has been made against the brother-in-laws and sister-in-laws of the deceased is that they used instigated the husband of the deceased and his family members against the deceased. 13. Considering the nature of allegation, relationship of the petitioners with the deceased, facts and circumstances of the case, let the above named petitioners, in the event of their arrest or surrender before the Court below within a period of four weeks from the date of receipt/communication of this order, be released on bail on furnishing bail bonds of Rs. 10,000/- (Ten Thousand only) with two sureties of the like amount each to the satisfaction of the learned Chief Judicial Magistrate, Jamui in connection with Sono P.S. Case No. 120 of 2011 subject to the condition as laid down under Section 438(2) Cr. P.C. as also on the following conditions: (i) That both the bailors will be close relative of the petitioners who will give separate affidavit giving genealogy as to how they are related with the petitioners. (ii) That the petitioners shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him to disclose such facts to the court or to any other authority. (iii) That they shall remain present before the court on the dates fixed for hearing of the case. (ii) That the petitioners shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him to disclose such facts to the court or to any other authority. (iii) That they shall remain present before the court on the dates fixed for hearing of the case. If they want to remain absent, then they will take prior permission of the court and in case of compelling and unavoidable circumstances for remaining absent, they will immediately inform the court and request that they may be permitted to be present through the counsel. (iv) That liberty is given to the State to make an appropriate application for modifying/recalling the order granting bail, if for any reason, the petitioners violates any of the conditions imposed by this Court.