ORDER : The present petitioner is before this Court for quashing the order dated 12.08.2016 passed by the learned Sessions Judge, Yadgiri, in Special Case No.56/2016. 2. Facts arising to this case are that, on 14.05.2016 complainant filed a complaint before the police alleging that on 01.05.2016 one Goudappa has filed a missing complaint of his brother-Govindappa. On 13.05.2016 when the complainant and other family members were sitting in the house, at that time, one Manjunath, a relative of the complainant came and informed him that, himself and Allabaksha (petitioner) were sitting on the Katta of Hanuman Temple, at that time, Allabaksha has told him that he had illicit intimacy with one Smt. Mallamma who is coming to his land. Her husband on coming to know about the intimacy, has assaulted his wife Mallamma, the said fact came to be informed by Mallamma to petitioner-Allabaksh. Petitioner-Allabaksh in order to finish him off, took the deceased-Govindappa to his land along with A2, there committed his murder by drowning into the water and thereafter, informed the same to Smt. Mallamma. On the basis of such information, complainant went to police station and filed a complaint. On the basis of such complaint a case has been registered in Crime No.24/2016 on 14.05.2016. During the course of investigation, accused was apprehended and he was in custody. On 12.08.2016 accused persons were produced before the Court, on the same day on behalf of accused No.1-Allabaksh an application came to be filed under Section 167(2) of Cr.P.C., for grant of statutory bail on the ground that the petitioner was produced before the Court below on 14.05.2016, same day remanded to judicial custody, as on 11.08.2016 charge sheet has not been filed by Kodekal police, since charge sheet has not been filed within 90 days, petitioner-accused No.1 is entitled to be released on statutory bail. After hearing the learned counsel for the accused and learned Public Prosecutor, the Court below rejected the application filed under Section 167 (2) of Cr.P.C., by order dated 12.08.2016. Petitioner is before this Court for quashing the same. 3. I have heard the learned counsel for the petitioner and the learned HCGP for the State. 4. The learned counsel for the petitioner vehemently contended that the trial Court without looking into the provisions of Section 167(2) of Cr.P.C. properly has passed the impugned order. Petitioner is before this Court for quashing the same. 3. I have heard the learned counsel for the petitioner and the learned HCGP for the State. 4. The learned counsel for the petitioner vehemently contended that the trial Court without looking into the provisions of Section 167(2) of Cr.P.C. properly has passed the impugned order. Further it is contended that the accused was produced before the Court below and remanded on 14.05.2016. From the said day, 90th day will be 11.8.2016, before that date the Investigating Authority has not filed the charge sheet, as such, the bail application came to be filed under Section 167(2) of Cr.P.C. for releasing the accused on statutory bail on 12.08.2016. It is his contention that, Section 167 of Cr.P.C. gives a right to the accused for bail and the said right is indefeasible as it is mandatory in nature and no option is left to the Court, but to release the accused on bail, if he offers and furnishes the bail application. He has further contended that, the trial Court by relying on overruled decision, has wrongly dismissed the application which is liable to be quashed. On such contention, he prayed for allowing the petition. 5. Per contra, learned HCGP vehemently argued and contended that, since the right under Section 167(2) of Cr.P.C. is not indefeasible, once the charge sheet has been filed, bail has to be claimed on merits. He further contended that the day on which the accused was produced and remanded has to be excluded, if excluded day is taken into consideration, the charge sheet has been filed within 90 days. In that view of the matter, petitioner-accused is not entitled to any statutory bail. The trial Court after considering all those aspects has rightly dismissed the petition, the impugned order does not call for any interference. 6. Keeping in view the above submissions let me consider whether the impugned order passed by the trial Court is sustainable in law or not? 7. The trial Court after considering all those aspects has rightly dismissed the petition, the impugned order does not call for any interference. 6. Keeping in view the above submissions let me consider whether the impugned order passed by the trial Court is sustainable in law or not? 7. For the purpose of clarity, I prefer to quote Section 167(2) of Cr.P.C. which reads as under: “Section 167(2): 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, authorize 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 may order the accused to be forwarded to a Magistrate having such jurisdiction: Provided that, - (a) the Magistrate may authorize 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 authorize 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 a term of not 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 authorize detention of the accused in custody of the police under this section unless the accused is produced before him in person for the first time and subsequently every time till the accused remains in the custody of the police, but the Magistrate may extend further detention in judicial custody on production of the accused either in person or through the medium of electronic video linkage; (c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorize detention in the custody of the police. Explanation I.- For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail. Explanation II. - If any question arises whether an accused person was produced before the magistrate as required under clause (b), the production of the accused person may be proved by his signature on the order authorizing detention or by the order certified by the Magistrate as to production of the detention or by the order certified by the Magistrate as to production of the accused person through the medium of electronic video linkage, as the case may be. Provided further that in case of a woman under eighteen years of age, the detention shall be authorized to be in the custody of a remand home or recognized social institution.” 8. On going through the aforesaid provision of law, it is clear that it deals with the power of the learned Judicial Magistrate to remand an accused to custody. However, 90 days’ limitation is fixed. As such, it empowers the learned Magistrate to release the accused on bail, if charge sheet has not been filed within 90 days from the first order of remand. In that light, looking into the order of the trial Court, it depicts that by referring to the decision dated 20.2.2015 in the case of Ravi Prakash Singh @ Arvind Singh Vs. State of Bihar (Crl.Appeal No.325 of 2015), which is reported in (2015)8 SCC 340 , has come to the conclusion that the date of remand has to be excluded while computing 90 days as held by the Apex Court in the case of State of M.P. Vs. Rustam & others, reported in 1995 Suppl (3) SCC 221. In that light, the Court has come to the conclusion that within 90 days the charge sheet has been filed and accused is not entitled to bail. 9. The learned counsel for the petitioner has brought to the notice of this Court the decision of Hon’ble Apex Court in the case of Uday Mohanlal Acharya Vs. State of Maharashtra, reported in 2001 Crl.L.J. 1832(1), wherein, the decision taken in Rustam’s case (cited supra) has been overruled. The trial Court relying on such decision dismissed the application for bail. 10. State of Maharashtra, reported in 2001 Crl.L.J. 1832(1), wherein, the decision taken in Rustam’s case (cited supra) has been overruled. The trial Court relying on such decision dismissed the application for bail. 10. In the light of the observations in the case of State of Maharashtra Vs. Mrs.Bharati Chandmal Varma @ Ayesha Khan, reported in 2002 Crl.L.J. 575 and in the case of Vijay Kumar @ Kavla & ors. Vs. State by Anekal Police, reported in ILR 2009 KAR 327, by careful reading of Section 167(2) of Cr.P.C., it is clear that if the charge sheet has not been filed within 90 days by the investigating agency, the accused is entitled to statutory bail. Even though such entitlement is indefeasible and the said right is mandatory in nature, but the accused has to apply for bail, release of the accused not automatic. In that light, on perusal of the records the date on which the accused was produced is 14.5.2016, after production, the accused was remanded, from that day the period of 90 days will be on 11.8.2016. 11. By relying on the various observation in the citations, though various contentions were taken by the respondents to the effect that while counting 90 days first remand has to be excluded. On the other hand, petitioners were to contend that the day of remand has to be included. Keeping those contentions there itself, as that issue is not involved in this case and the citations are not applicable to the present case on hand, if we look into the facts, whether the day of remand is included or excluded, it will not make any difference, because of the reason that accused did not file the application under Section 167(2) of Cr.P.C., on 11.08.2016. He filed such application on 12.08.2016. The order-sheet dated 12.08.2016 reveals that, A1 and A2 were produced before the Court, an application under Section 167(2) of Cr.P.C., was filed and case for submitting charge sheet was already filed. In that light, simultaneously both the acts have taken place. Whether the charge sheet is filed prior to the application filed by the accused or the application is filed prior to the filing of the charge sheet, no material is forthcoming before this Court. In that light, simultaneously both the acts have taken place. Whether the charge sheet is filed prior to the application filed by the accused or the application is filed prior to the filing of the charge sheet, no material is forthcoming before this Court. In that light, when the charge sheet has already been filed, the trial Court has no other option, but to consider the bail application only on merit as held by the Hon’ble Apex Court in Court in the case of Pragyna Singh Thakur Vs. State of Maharashtra, reported in (2011) 10 SCC 445 , 2011(10) SCC 445 . 12. In the instant case, as contended by him, if the date of remand is included in that event, right accrued to the accused on 11.08.2016, but on that day he did not exercise his right immediately as contemplated under Section 167(2)(ii) of Cr.P.C., by furnishing the application for bail. Facts remain is that both the application under Section 167(2) of Cr.P.C. and charge sheet were filed at one and the same time, that too, before consideration of such application filed by the accused under Section 167(2) of Cr.P.C. In that light, right under Section 167(2) of Cr.P.C., to the accused was lost. In that light only remedy left open to the Court below was to consider such application on merits, on the material placed before it. Even though, all these aspects have not been dealt with by the trial Court, however that is not going to affect the rights of the either petitioner or respondent. 13. An order for release on bail under proviso-A to Section 167(2) of Cr.P.C., may appropriately be termed as an order-on-default. Indeed it is, release of the accused on bail on default of the prosecution in filing charge sheet within the prescribed statutory period. In that light even though before filing of the charge sheet a bail application though filed and if it is not decided and in the meanwhile, if a charge sheet is filed, bail cannot be granted under default clause. The right to bail under Section 167(2) of Cr.P.C., proviso-A is a default right, not absolute one, it can be exercised before the charge sheet is filed. The right to bail under Section 167(2) of Cr.P.C., proviso-A is a default right, not absolute one, it can be exercised before the charge sheet is filed. Merely because, the charge sheet has been filed after the statutory period mentioned in proviso-A to Sub Section (2) of Section 167 of Cr.P.C., the accused does not continue to enjoy such right of release on bail under the said proviso, if there is no order of releasing him on bail prior to the charge sheet being filed. In that light, if the facts are considered the accused/petitioner is not entitled to be released on bail either by inclusion or exclusion of the day of first remand. 14. In view of the above discussion, I am of the considered opinion that the accused-petitioner has not made out any grounds, so as to quash the impugned order, that too under the above said peculiar circumstances. Consequently, the petition is dismissed.