(1.) The petitioners have filed this petition under Section 439 Cr. P.C.seeking bail. A charge sheet has been filed against the petitioners for offences under Sections 394 and 302 read with Section 34 IPC. The prosecution case is that on 12-9- 1993 between 11.30 and 11-45 p.m. when the complainant, his father Puttaiah and two others were proceeding in an authorickshaw, the accused persons stopped the same near Seshadripuram Railway bridge, threw chilly powder on Puttaiah's face, forcibly took Puttaiah and the complainant in an autorickshaw and near Oklipuram the petitioners and another absconding accused Kutti stabbed Puttaiah and robbed a sum of Rs. 50,550/- along with the bag in which the amount was kept and escaped, and that Puttaiah succumbed to the injuries sustained by him.
(2.) The first petitioner was arrested on 30-10-1993 and the second petitioner was arrested on 11-10-1993 during the course of the investigation of another case by Kengerigate police. They were remanded to judicial custody in that case. On 16-12-1993 the Circle Inspector who was investigating this case, made an application before the Magistrate seeking police custody of the two petitioners for the purpose of interrogation in this case. The Magistrate ordered issue of body warrant for production of the two petitioners before Court on 20-12-1993. This order was passed on 16-12-1993. On 20-12-1993 when the petitioners were produced before court the Magistrate remanded the petitioners to police custody in case till 21-12-1993. From 21-12-1993 the petitioners were remanded to judicial custody in this case also. The remand was being extended from time to time till 23-3-1994. On 19-3-1994 the police submitted the charge sheet against both the petitioners before the Magistrate. The learned Magistrate on the same day has made the following order : "Register, call on 22-3-1994". On 22-3-1994 the relevant copies of the charge sheet and other police papers were furnished to the accused and the remand of the petitioners was extended till 4-4-1994. On 4-4-1994 an application was filed for bail both under Section 437 Cr. P.C. and under Section 167(2) Cr. P.C. That application was rejected by the Additional Chief Metropolitan Magistrate and the bail petition filed before the Sessions Judge was also dismissed.
(3.) The learned Counsel for the petitioners first contended that the petitioner must be deemed to have been in detention in this case from 16-12-1993 when the Magistrate issued the body warrant as the petitioners could not have been released once the body warrant was issued, even if their detention in the case in which they had been remanded had come to an end. According to him the charge sheet is not filed within 90 days from the date of commencement of such detention and as such the petitioners are entitled to bail under the proviso to Section 167(2). He relied on the decision in Government of Andhra Pradesh v. A. V. Rao, AIR 1977 SC 1096 and Ramu v. State of Karnataka, ILR (1991) Kar 1861.