The period of 90 days or 60 days under Section 167(2) Proviso of the Code should be calculated from and including the date of first remand by the Magistrate. The provisions of Section 10 of the General Clauses Act and Section 12 of the Limitation Act cannot be invoked to construe the terms of Section 167(2) Proviso.

P. K. MISRA, J.

( 1 ) AN allegedly libertine person is claiming liberty on the ground of alleged violation of provisions of Section 167 (2) Proviso, of the Code of Criminal Procedure, 1973 (hereinafter referred to as the "code" ). The petitioner has been arrayed as one of the accused persons in G. R. Case No. 507 of 1995 in the file of the Sub-Divisional Judicial Magistrate, Dhenkanal, on the allegation that he along with two others forcibly violated a helpless and helpless and insane lady. The petitioner surrendered before the Sub-Divisional Judicial Magistrate on 11-12-1995 who passed orders of remand from time to time pending submission of charge-sheet. On 27-2-1996, the Sub-Divisional Judicial Magistrate directed remand of the petitioner till 11-3-1996. On 10-3-1996, the petitioner filed an application before the Sub-Divisional Judicial Magistrate for grant of bail on the ground that charge sheet having not been filed within ninety days, he is entitled to be released on bail, as on envisaged under Section 167 (2), Proviso, of the Code. It was contend that maximum period of remand of ninety days was completion 8-3-1996 and as such bail should be granted as charge sheet had not been filed. The Sub-Divisional Judicial Magistrate replied this contention in the following word :-"_. THE remand of 90 days is over as a matter of fact on 9-3-96. Today is the 91st day. According to the Section of 167 Cr. P. C. , the accused can be remanded in total for a period of 90 days and if the C. S. is not filed he accrues a right for bail but in the instance case the C. S. is submitted and find accused has not right to exercise for such privilege and 167 ceases to operate. _"the Sub-Divisional Judicial Magistrate also refused to enlarge the petitioner on bail on merit.

( 2 ) THE petitioner filed Criminal Misc. Case No. 82 of 1996 before the Sessions Judge, Dhenkanal Angul. The Session, Judge rejected. the contention regarding applicability of Section 167 (2), Proviso, in the following words :-"the petitioner in this case surrendered before the learned S. D. J. M. Dhenkanal on 11-12-95 and he was remanded to custody. Ninety days from that date expired on 10-3-96, But it appears from the final form submitted by the I. O. that the investigation of the case was complete before 8-3-96 and the I. O. signed in the F. F. on that date. But it was received by the concerned Magistrate on 11-3-96. So it cannot be said that the investigation of this case was not complete within the statutory period of 90 days as required u/s. 167 Cr. P. C. . "needles to say that the prayer for bail on merit of the case was rejected on the ground that similar petitions for bail had been rejected on earlier occasions.

( 3 ) IN this application for bail, the learned counsel appearing for the petitioner has contended that the petitioner is entitled to be released on bail under Section 167 (2), Proviso, of the Code. Alternatively, it is submitted that since investigation is complete and charge sheet has been submitted, the petitioner may be released on bail. The learned standing Counsel appearing on behalf of the prosecution has opposed the bail application.

( 4 ) I have heard the counsels appearing for the parties and perused the lower Court records which had been called for. There is some controversy at the Bar as to when ninety day expired. Even there is some confusion in that regard in the orders of the Sub-Divisional Judicial Magistrate and the Sessions Judge. The Sub-Divisional Judicial Magistrate was of the view as revealed from his order dated 10-3-1996 that ninety days' period was over on 9-3-1996 and 10-3-1996, when bail was moved, was the 91st day. On the other hand, the Sessions Judge in his order has observed that ninety days expired on 10-3-1996. It is not known as to how the Sessions Judge came to such conclusion. It may be that the Sessions Judge excluded 11-12-1995, the date of surrender before the Magistrate, when order of remand was passed by the Magistra