B.A. Patil, J.

Criminal Petition No.2378/2019 has been filed by petitioner/accused challenging the rejection of the application filed under Section 167(2) of Cr.P.C by the VII Additional Chief Metropolitan Magistrate, Bangalore City and Criminal Petition No.1957/2019 has been filed by petitioner/accused under Section 439 of Cr.P.C. seeking his release on bail in Crime No.368/2018 of Mahalakshmipuram Police Station for the offences punishable under Sections 302 and 307 of IPC.

2. I have heard the learned senior counsel Sri Hashmath Pasha for the petitioner and Smt. Namitha Mahesh B.G., the learned High Court Government Pleader for respondent-State in both cases.

3. The gist of the complaint is that:

On 16.12.2018 at about 5.00 a.m., the deceased was cleaning the front place of his hotel with water. The water smeared on the petitioner/accused, who came there and passing through the said road on his bike. As a result of the same, the petitioner fallen down and took up quarrel with the deceased and the persons who were present in front of the shop have pacified the quarrel. Thereafter, petitioner/accused went from that place and after 10 minutes, he came back on his motorbike and asked the deceased whereabouts of his helmet, to which the deceased told that he did not know about his helmet and immediately, the petitioner/accused picked up quarrel with the deceased and stabbed on his chest and other parts of the body with a knife, when the wife of the deceased tried to intervene and pacify the quarrel, the petitioner also assaulted her with a knife and caused grievous injuries. In the meanwhile, Manoj the first son of the deceased came by holding iron pipe and assaulted on the leg of the petitioner and he also tried to attack the said Manoj and at that time, the said Manoj snatched the knife from the hands of the petitioner and assaulted the petitioner and caused injuries. Immediately, the deceased was taken to Lotus hospital in an auto. After first aid, as per advice of doctor, he was shifted to Basaveshwaranagar hospital, where he was treated and declared as dead. The complainant and her son were also treated in M.S. Ramaiah hospital. It is further stated that the petitioner who has also suffered with the injuries was taken to hospital by respondent/police and he was also treated in the said hospital. On the basis of the complaint, a case has been registered.

4. It is submitted by the learned senior counsel that the petitioner was brought to the hospital by the police and got him admitted in Columbia Asia hospital on 16.12.2018 and till 10.01.2019 he was treated in the said hospital and thereafter on 11.01.2019 he was shifted to Med Care hospital and during the said period the petitioner was in surveillance of the police and till 13.02.2019, the police surveillance was present. He further submitted that as per Section 57 of Cr.P.C., and Article 22 of the Constitution of India, he immediately came under the police surveillance, from that date his liberty is restricted and the said provision will be made attracted and from that time within 24 hours he ought to have been produced before the Magistrate. But the same has not been followed.

5. He further submitted that the right of the petitioner has been restricted even though he has not been actually produced before the Magistrate. He further submitted that on 16.12.2018 itself the clothes of the injured have been collected and seized, it shows that the investigation has been started during the said period. It is further submitted that keeping under surveillance itself will have to be considered for the purpose of calculation of the period of 90/60 days as contemplated under Section 167(2) of Cr.P.C., If within the said stipulated period, if the charge sheet is not filed, then under such circumstances, the petitioner is entitled to be released on statutory bail under Section 167(2) of Cr.P.C. He further submitted that while computing the period, it has to be kept in mind that if t