V. S. DAVE, J, J.

( 1 ) THIS is an application for bail filed under Section 439 Cr. P. C. in a case under Sections 302 and 307 IPC.

( 2 ) ALLEGATION against the accused-petitioner is that on mid-night of 4th July, 1991 the accused petitioner alongwith certain persons went to the house of deceased Dharmendra Singh and killed him by firing the gun. After investigation and committal a charge has been framed against him for offence under Sections 302, 460, 420 and 307 IPC and Section 3/25 and 3127 of the Arms Act. The application has been filed on the legal ground that charge-sheet against him has not been presented within 90 days of his arrest which made him entitled to bail in terms of the proviso (a) of S. 167 (2) Cr. P. C. It is alleged by him that he too had sustained injuries in the incident and the Station House Officer, Police Station, Bhanwargarh, District Baran admitted him to the hospital on 5th July, 1991 and as such he was in constructive custody of the S. H. O. , P. S. Bhanwargarh, though a formal arrest memo has been prepared on 6th July, 1991. According to him the charge sheet in the case has been filed in the court of Judicial Magistrate 1st class, Baran on 4th October, 1991, on which, the learned Magistrate did not take cognizance and only mentioned that, for check and report put up on 5. 10. 1991 and a report was made on it by the clerk on 5th October, 1991 and he learned Magistrate on this date took cognizance of the offence, though the copies of the charge sheet were delivered to the accused on 14th October, 1991. The argument of the learned counsel for the petitioner therefore, in this bail application, is that taking the date of arrest from 5th October, 1991 or even 6th October, 1991,90 days have elapsed on the day, the cognizance was taken. He has placed reliance on Narain Singh v. State of Rajasthan, Sardar v. The State of Rajasthan, Jawahar Singh v. The State and Khimbhadhur Palshiram Thapa v. The State of Maharashtra. On the strength of the aforesaid cases learned counsel submitted that in the instant case cognizance was taken beyond period of 90 days, therefore the accused is entitled to bail.

( 3 ) ON behalf of the State it has been argued that the accused was arrested on 6th July, 1991 and for the first time was produced before the Magistrate on 7th July, 1991 on which date he was remanded to police custody, therefore, period should be counted from 7th July, 1991 and that period would be counted upto 4th October, 1991 when the charge-sheet was submitted which period clearly comes to Twithin 90 days.

( 4 ) WHEN the argument was raised before the learned Addi. Sessions Judge he held that as for the first time remand was granted on 7th July, 1991 and charge-sheet was submitted on 4th October, 1991, the accused is not entitled to be released on bail under the provisions of S. 167 (2) Cr. P. C.

( 5 ) I called for the original record and have perused the same. It is borne out from the record that Mahaveer Singh accused-petitioner was admitted to Govt. Hospital, Baran on 5th July, 1991 at 2. 50 p. m. It is mentioned therein that the accused was brought by Shri Shiv Bhagwan, S. H. O. , Police Station, Baran Sadar. It may be mentioned here that the F. I. R. in the case was lodged by Dharmendra at 8. 30 a. m. on 5th July, 1991 wherein the accused was named. Thus, the accused- petitioner was an accused of the offence of murder in F. I. R. No. 39/91 at the time when the S. H. O. , Police Station, Baran had taken him in his custody and admitted him to the hospital. The S. H. O. Shri Shiv Bhagwan however, prepared the arrest memo of accused-petitioner Mahaveer Singh on 6th July, 1991 at 6. 30 p. m. I have carefully gone through this arrest memo and am constrained to say that at the top of it where description of the document is given the dated 5th July, 1991 has been altered to 6th July, 1991 by making an overwriting and the time 6. 30 p. m. is also written in different ink though at the bottom the date