S.S. Saron, J.

1. Learned Counsel for the Petitioner submits that the Petitioner had surrendered before the Court of learned Chief Judicial Magistrate, Ludhiana on 9.8.2004 and he was taken into Police remand on 11.8.2004. It is contended that the period of 90 days for filing the challan expired on 7.11.2004 and the Petitioner filed an application for bail in terms of Section 167(2) Code of Criminal Procedure on 8.11.2004 which was after the expiry of 90 days. Therefore, a right accrued in favour of the Petitioner for being released on bail. Even otherwise it is contended that the case is triable by a Magistrate and, therefore, the Petitioner is entitled to the concession of bail as he is in custody since 9.8.2004 and his custody is not further required for the purpose of investigation.

2. In response, learned Counsel for the State submits that even though the case is triable by the Magistrate, the Petitioner is not entitled to the concession of bail as the offence under Section 409 IPC is punishable for imprisonment upto ten years which may extend upto life. It is contended that the Petitioner was arrested on 11.8.2004 and the challan was filed within 90 days on 8.11.2004.

3. I have given my thoughtful consideration to the respective contentions. It is not in dispute that the Petitioner surrendered before the Court of Chief Judicial Magistrate on 9.8.2004. Therefore, for all intents and purposes he deemed to be in custody in the case as he was subject to the control of the Court for the purpose of grant of remand and other incidental matters. The fact that his police remand was given on 11.8.2004 is inconsequential as Section 167(2) Code of Criminal Procedure authorises the Magistrate to control the custody of an accused by granting him remand for a term not exceeding 60 or 90 days in whole. Section 167(2) Code of Criminal Procedure reads under:

167. Procedure when investigation cannot be completed in twenty-four hours. -

(1) xx xx xx xx

(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, authorise 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 authorise 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 authorise 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 life or imprisonment for a term of not less than ten years;

(ii) sixty days, where the investigation relates to any other offence,

(b) no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him;

(c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police.

4. In terms of the above provisions, it is evident that it is the Magistrate to whom an accused person is forwarded under the said section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit. The proviso thereto envisages that 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 on expiry of the said period of ninety days the accused person shall be released on bail if he is prepared to and does furnish bail. The Honble Supreme Court in Uday Mohanlal Acharya v. State of Maharashtra, 2001(2) RCR(Crl.) 452 (SC) held that an accused gets an indefeasible right of the accused to get bail where challan is not put up within the stipulated period provided for under Section 167(2) Code of Criminal Procedure and it will not extinguish the indefeasible right of the accused to get bail. Accordingly, the challan was not put up within ninety days the accused was held entitled to the concession of bail. This Court in Balwinder Singh v. State of Punjab, 2004(1) RCR(Crl.) 1002 held that in a case where challan was put up after expiry of ninety days and then the accused had applied for bail when challan had already been put up, the right for the release under Section 167(2) Code of Criminal Procedure would not be defeated on presentation of the challan. Insofar as the contentions of the learned Counsel for the State that the findings under Section 409 is punishable with imprisonment with life or upto 10 years, it would be appropriate to notice that this Court in Jagdish Kumar Mehra v. State of Haryana (Cr. Misc. No. 12576-M of 2005), decided on 4.3.2005 observed that from a reading of Section 467 IPC it was clear that an accused found guilty of the said offence could be punished with imprisonment of either description for a term which may extend to ten years even though he could also be punished to imprisonment for life. It was observed that without going into the types of cases in which sentence would extend to ten years and cases in which sentence could be imprisonment for life that it would be suffice to say that an accused found guilty for the offence under Section 467 IPC could get sentence of less than ten years and may be even a few months. If this was the case then Section 167(2) proviso (a)(i) Code of Criminal Procedure would not apply to Section 467 IPC because it related to those cases in which the offence is punishable with death, imprisonment for life or imprisonment for a term not less than ten years. In the circumstances, it was observed that the proviso (a)(i) to Section 167(2) Code of Criminal Procedure was not applicable and the Petitioner having undergone more than sixty days and the final report under Section 173 Code of Criminal Procedure not having been presented, the accused therein was held to be entitled to the benefit of Section 167(2) proviso (a)(ii) Code of Criminal Procedure and he was admitted to bail. Therefore, it cannot be said that merely because the offence of Section 409 IPC is attributed to the Petitioner which is punishable with imprisonment which may extend to life or with imprisonment of either description for a term which may extend to ten years, the considerations for grant of bail would be different. In any case, in the case in hand the Petitioner is seeking the relief under proviso (a)(i) to Section 167(2) Code of Criminal Procedure as he has undergone 90 days after he surrendered to the custody of the Magistrate.

5. It is not in dispute that the offence is triable by the Court of Magistrate. Besides, the Petitioner surrendered before the Magistrate and was taken into custody of the Magistrate on 9.8.2004 and the challan was filed on 8.11.2004 after a period of ninety days having been expired on 7.11.2004. The fact that he was taken in police remand on 11.8.2004 is inconsequential as it is the Magistrate who could control his custody and regulate the same in accordance with the provisions of Section 167(2) Code of Criminal Procedure A person is said to be taken in the custody of the Magistrate when he is under the control of the Court when he has offered himself to the Courts jurisdiction and submitted to its order by physical presence. A person who is in the physical hold of the Magistrate and who has the authority to issue remand is in its custody. The challan having been presented after the expiry of ninety days, the indefeasible right of the accused to get bail would not be extinguished in view of the aforesaid dictum of the Honble Supreme Court and this Court.

6. Consequently, the criminal miscellaneous petition is allowed and the Petitioner shall be admitted to bail on his furnishing personal bond and surety in the like amount to the satisfaction of the learned trial Court.

Petition allowed.