JUDGMENT

NATARAJAN, J. :— This appeal by special leave against an order of a learned single Judge of the Andhra Pradesh High Court in a petition filed under Section 439(2) of the Code of Criminal Procedure (hereinafter referred to as the Code) calls for a critical examination of the scope and effect of proviso (a) to Section 167(2) of the Code. Several High Courts have rendered decisions construing differently the terms of the proviso but a need for the examination of the terms of the proviso by this Court had not arisen till now.

2. The circumstances which form the prefatory for this appeal can be summarised as under.

The hamlet of Madigawada in Village Karamchedu in Andhra Pradesh was the scene of a horrendous riot on the morning of July 17, 1985. The riot culminated in a toll of human lives and huge destruction of property. Five persons were left dead, twenty others were victims of injuries of varying degrees, properties were looted and hutments were damaged or destroyed.

3. In connection with the macabre events the police authorities arrested 94 persons including the appellants herein and had them remanded to custody. The appellants were arrested in the forenoon of July 19, 1985 and were produced before the Illrd Additional Munsif Magistrate, Chirala on the next day, i.e. July 20,1985. They were initially remanded to judicial custody for a period of 15 days and thereafter the remand was extended from time to time till October 18, 1985.

4. The investigating officer filed a charger-sheet in the case at 10.30 a.m. on October 17, 1985, that being the 90th day of remand. Even so, the appellants filed a petition before the Magistrate and sought enlargement on bail in terms of proviso (a) to Section 167(2). The learned Magistrate, overruling the objection of the State, granted bail to the appellants on the ground that the period of 90 days stipulated in the proviso had to be reckoned from the date of arrest and not from the date of remand and so computed the charge-sheet had not been filed on the 90th day but on the 91st day and hence the accused were entitled to bail. The State challenged the order of bail before the High Court by means of a petition under Section 439(2) of the Code. A learned single Judge of the High Court allowed the petition holding that the period of 90 days envisaged by the proviso to Section 167(2) has to be computed only from the date of remand and, therefore, cancelled the bail and directed the Magistrate to issue warrants of arrest for the appellants. It is the correctness of the order of the learned Judge which is challenged in this appeal.

5. Mr. Madhusudan Rao, learned counsel for the appellants, strenuously contended that the liberty of the citizen is the paramount factor for consideration while construing the terms of proviso (a) of Section 167(2) and as such the period of 90 days, in the case of grave offences, and the period of 60 days in the case of other offences set out as outer limits for detention of accused persons should be computed from the very day the accused was arrested and taken into custody by a police officer and not from the day he was produced before the Magistrate and remanded to custody. In fact Mr. Rao went so far as to say, placing reliance on a decision rendered in Fakira Naik v. State of Orissa, 1983 Cri LJ 1336 (Orissa) that even the detention during the fraction of a day should also be counted as detention for a day since a calendar day as a unit of time is the interval between one midnight and another. In support of his contention Mr. Rao placed reliance on some decisions where the time limits set out in the proviso have been held to run from the date of arrest itself.

6. Mr. Ram Reddy, learned counsel for the State of Andhra Pradesh, advanced arguments to the contrary and submitted that the period of detention contemplated under the proviso is exclusively referable to the detentions ordered by a Magistrate and there is no scope for tagging on to this period any anterior perio