1. One of us (Padmanabhan. J.) referred this revision to the Division Bench doubting the correctness of the Single Bench decision of this Court in David v. State of Kerala (1984 KLT. 849).

2. A synopsis of the relevant facts could be given thus. In relation to an incident that took place at 9 p.m. on 12-11-1983 a case was registered, investigated and charge-sheeted against the third respondent for offences punishable under S.279,337 and 304-A of the Indian Penal Code and S.89 (a) and (b) of the Motor Vehicles Act. The accused surrendered before court on 21-11-1983 and he was enlarged on bail. The case is one triable by the Magistrate as a summons case. It is said that investigation was completed within the crucial period on 24-4-1984, but filing the charge-sheet before court on 4-6-1984 alone was beyond the period provided under S.167(5). After taking cognizance the accused filed a petition to drop the proceedings. He placed reliance on S.167(5) of the Code of Criminal Procedure and the decision in David's case (1984 KLT. 849). The magistrate accepted the contention and dropped the proceedings by order dated 19-12-1984. Cw. 2, the injured, has come up in revision. Respondents 1 and 2 are the State and the Sub Inspector, who charge-sheeted the case. We had the advantage of hearing counsel on either side and the Director of Public Prosecution elaborately.

3. S.167(5) of the Code of Criminal Procedure reads:

"If in any case triable by a Magistrate as a summons-case, the investigation is not concluded within a period of six months from the date on which the accused was arrested. the Magistrate shall make an order stopping further investigation into the offence unless the officer making the investigation satisfied the Magistrate that for special reasons and in the interests of justice the continuation of the investigation beyond the period of six months is necessary".

The starting point of six months is the date on which "the accused was arrested". Therefore it must naturally include arrests provided under S.41, 42, 43, and 44 of the Code of Criminal Procedure by the Police, private persons and the Magistrate also. The first question to be considered is whether arrest includes surrender before the magistrate. In all cases of arrest it is mandatory that the arrested person should be produced before the magistrate. Without an order from the magistrate detention cannot be had except to the limited extent provided for enabling the arrested person to be produced before the magistrate. Authorisation for detention, whether it be to police custody or judicial custody, must come from the magistrate subject to the restrictions imposed on him. Whether an accused is arrested and produced before the magistrate or he surrenders, his release is subject to the orders of the magistrate. In both cases he will be enlarged only if so ordered by the magistrate subject to the terms and conditions fixed by him. So also in both cases if he is not released on bail his freedom of movement is fettered and he will have to be either in police custody or judicial custody as ordered by the magistrate. In Velu Viswanathan & others v State, 1971 KLT. 80 and Jaganathan and others v. State 1983 Crl. L. J. 1748, the findings were that arrest includes surrender before court also. S.167(5) does not speak of arrest made by the police alone. When the accused surrenders before the magistrate he is either released on hail or taken to custody and remanded. Such taking into custody is also under S.167. When the accused has appeared and surrendered before the judge or the magistrate he will be treated as in custody for the purpose of considering his bail applications. That is physical custody and submission to the jurisdiction of the court. This position has been confirmed by the Supreme Court in Niranjan Singh and another v. Prabhakar Rajaram Kharote and others (AIR. 1980 SC, 785). There is no distinction between arrest add appearance before court direct except that