( 1 ) THE points involved in this case are :-

1) Where the accused had surrendered before the Magistrate and was sent to judicial custody and was arrested by the police only after a notice had been sent by the Magistrate to the police, the whether the period of 90 days will begin from the date of surrender before the Magistrate or from the date of arrest by the police? 2) Whether the petitioner is entitled to the grant of bail as a matter of right after the expiry of the period of 90 days even if the challan has been filed in the Court on the 91st day i. e. the same day when the accused had made an application to the Court for being admitted to bail?

( 2 ) BEFORE I deal with these points, a few facts relevant to matter may be noted:

( 3 ) CASE FIR No. 289/95 was registered at PS Shakarpur under Section 302 against the petitioner and another person. FIR was registered on May 22, 1995 and the petitioner could not be arrested. He surrendered in the Court on May 27, 1995 and was taken into judicial custody. Notice of surrender was given to the police for 30th May, 1995 and the police, therefore, arrested the petitioner on 30th May, 1995 and the Magistrate remanded him to police custody. On 26th August, 1995 challan was filed in Court, however, in the morning on the same day, an application was filed by the petitioner in the Court for release on bail on the ground that the police had not filed the challan within the period of 90 days from the date of his surrender before the Magistrate and as such he was entitled to be released on bail as a matter of right. The Metropolitan Magistrate considered this plea of the petitioner and by order dated August 29, 1995 rejected the bail application holding that the accused was arrested on May 30, 1995 and challan had been filed in Court on 26th August, 1995 and, therefore, he was not entitled to the benefit of Section 167 (2) of the Code.

( 4 ) IT is contended by learned counsel for the petitioner that the period of 90 days starts from the date of surrender by the accused before the Magistrate and consequently immediately on the expiry of the said period of 90 days, the petitioner is entitled to the grant of a bail as a matter of right under Section 167 (2) of the Code. He has REFERRED TO to a judgment of the Supreme Court in The Central Bureau of Investigation, Special Investigation Cell-1 Vs. Anupam J. Kulkarni, 1992 (2) Crimes 310, in support of his contention that the period of 90 days will begin from the date the accused surrendered before the magistrate and was sent in judicial custody.

( 5 ) THE question which the Supreme Court was considering in Kulkarni s case was whether a person arrested and produced before the nearest Magistrate, as required under Section 167 (1) of the Code, can still be remanded to police custody after the expiry of the initial period of 15 days. It was in the context of deciding the said point that the Supreme Court observed that the period of 90 days or 60 days mentioned in Section 167 (2) of the Code, has to be computed from the date of detention as per the orders of the Magistrate and not from the date of arrest by the police. It is this observation of the Supreme Court that is being relied upon by learned counsel for the petitioner to emphasise his point that period of 90 days should be computed from the date of surrender before the Magistrate and not from the date of arrest as is the contention of the State.

( 6 ) MR. JOLLY is, however, relying upon the judgment reported as C. Satyanarayana and others Vs. State of Andhra Pradesh, AIR 1986 SC 2130, in support of his contention that the period of 90 days has to be computed not from the date of surrender but from the date of arrest by the police. The contention of Mr. Jolly is that on 27th May, 1995 when the accused surrendered before the Magistrate, the State was not aware about the accused having been sent to judicial custody and it was only on receipt of a notice from the Court that the polic