S. Madhusudan Rao, J.

(1) THE two petitioners are the first and the second accused in P. R. C. No, 4 of 1975 on the file of the II Additional judicial First Class Mrgistrates Court, Amalapuram. They were remanded to judicial custody along with five others on 30-5-1975 on the ground that they were concerned in Cr. No. 140/75 of the Munmidivaram Police Station which is a case registered under Secs. 364, 342, 302, and 201 r. w. Sec 34 I. P. C. While the investigation was proceeding they were being remanded to judicial custody from time to time. As no charge-sheet was filed even by 4th August, 75, they submitted an application under Crl. M. P. No. 296/75 before the Magistrate requesting that they may be released on bail in so far as their custody pending investigation exceeded 60 days by then. They stated in the application that they were ready to furnish ball and that they were prepared tj abide by any conditions that might be imposed by the Court. The learned Magistrates adjourned the petition for leading on 7-8-75. While so, the police filed a charge sheet against the petitioners and others on 6-8-75 and the learned Magistrate took cognizance of offences u/s. 364, 342, 302 and 201 I. P. C. against the petitioners and others. After receiving the charge-sheet he passed an order remanding the petitioners to judicial custody under Sec. 309 (2) Cr P. C. Having passed the order of remand on 6-G-75 after taking cognizance of the offences, the learned Magistrate rejected the petitioners application for bail in cri. M. P. No. 296/75 on 7-8-1978. This petition is directed against the said order of rejection dated 7-8 75.

(2) SRI P. Shiv Shanker, the learned counsel for the petitioners contends that the proviso (a) to Sub-section (2) of section 167 of the new Code of Criminal procedure is mandatory and that after the expiry of the period of 60 days of detention in judicial custody, an accused person shall have to be released on bail, if he is prepared to and does furnish bail. It is argued that the 60 days detention of the petitioners expired by 30th July 1975 and when the petitioners filed an application in Crl. No. 296 of 75 on 4-8-75 stating that they were prepared to furnish ball, the learned Magistrate was not justified in postponing the disposal of the application till the 7th of August, 75. It is further contended that the order of remand passed by the learned Magistrate under Sec. 309 (2) of the new Code on the 6th of August, on receipt of the charge-sheet, Is illegal and invalid, In so far as the petitioners were by then not under proper legal custody and the order seeks to render otiose the time limit prescribed in the proviso (a) to sec-167 (2) of the Code.

(3) SRI P. Ramchandra Reddy, the learned Advocate-General appearing for the State, in his usual candour, states that the action of the learned Magistrate in continuing the detention of the petitioners beyond 60 days despite the petitioners readiness to furnish bail, cannot be justified

(4) PROVISO (a) to Sub-section (2) of section 167 of the new Criminal Procedure Code reads as follows :" (A ). The Magistrate may authorise detention of the accused person, otherwise than in custody of the police, beyond the period of fifteen days if he is satisfied that adequate grinds exist for doing so, but no Magistrate shall authorize the detention of the accused person in custody under this section for a total period exceeding sixty days, and on the expiry of the said period of sixty days, the accused person shall be released on bail if he is prepared to and does furnish bail; and every person released on ball under this section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that chapter.

(5) SECTION 309 (2) of the new Code to the extent relevant reads as follows: "if the Court, after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as. it thinks fie, for such time as it considers reasonable and may by a warrant remand the accused if In custody- provided

(6) WHILE section 167 deals with remands during investigation and prior to the Courc taking cognizance of an offence, sec, 309 (2) deals with remands after the court takes cognizance of an offence. The words of the proviso (a) to sec. 167 (2) are too clear to permit any doubt with regard to the power or total period of remand during the investigation. However serious the offence may be, a Maglatrate cannot authorise the detention of an accused person for a total period exceeding 60 days during the investigation on the expiry of the period of 60 days, the accused should be released on bail, if he furnishes bail. The only circumstance under which an accused person can be remanded to custody beyond 60 days during the investigation is when the accused is not prepared to or when he is unable to furnish bail. In a recent case, Natabar Parlda vs. State of Orissa (1) (AIR 1975, Supreme Court, 1465) the supreme Court, while pointing out that the Intention of the Legislature seems to be to grant no discretion to the court and to make it obligatory for It to release the accused on bail soon after the expiry of the period of 60 days, observed as follows :"but if it is lot possible to complete he investigation within a period of 60 days then even in serious and ghastly types of crimes the accused will be entitled to be released on bail. Such a law may be a "paradise for the criminals", but surely it would not be so, as sometimes it is supposed to be, because ofthe courts. It would be so under the command of the Legislature. "

(7) BY 4th August, 75 the petitioners were In custody for 65 days. They entitled to be released on bail on and after 31-7-75 if only they furnished bail to the satisfaction of the court. They Intimated their readiness to furnish bail on the 4th of August, On this day the Magistrate had no alternative except to release them on ball. He has, however, adjourned the application filed by the petitioners to the 7th of August and passed an order of remand under Sec. 309 (2), on 6th August after taking cog. nuisance of the offences on a charge-sheet filed by the police on the 6th August.

(8) UNDER Sec. 309 (2) Cr. P. C. a magistrate may remand the accused "if in custody". The "custody" contemplated under the Sub-section (2 ). "lawful custody and not unlawful or illegal custody. By 6-8-75 though the petitioners were in custody, the custody was illegal and unauthorised and such illegal custody cannot be treated as the necessary custody for a proper order of remand under Sec. 309 (2) Cr. P. C. In any case where the investigation has not been completed within 60 days after the accused has been remanded to judicial custody under sec. 167 Cr. P, C. whatever the nature of the offence, be it dacoit or murder and whatever its magnitude whether gruesome murder or even mass murders it is not open to the court to circumvent the mandate contained in the proviso (a) to section 167 (2) by postponing Its imperative obligation of releasing the accused on bail until when the court gets the power of remanding the accused u/s 309 (2) Cr. P. C. Once the investigation is not completed within 60 days and the accused furnishes bail it is the bounden duty of the Magistrate to release him on bail. After the completion of the investigation if a charge-sheet is filed and the magistrate considers it necessary to remand the accused, it would be open to him to cancel the bail under Sec. 437 (5) cr. P, C. in so far as the bail granted under Sec. 167 (2) (a) should be deemed to be ball granted under the provisions of chapter XXXIII of the Code.

(9) FOR the reasons recorded, this petition for ball has to be allowed and the same is accordingly allowed. It is directed that the petitioners shall be released on ball on each of them executing a bond for Rs. 10,000/- with two sureties for each and each surety in a like sum to the satisfaction of the II Additional judicial First Class Magistrate, Amalapuram.