The detention period of 90 days under Section 167 of the Criminal Procedure Code includes both judicial and police custody, and the accused must be released on bail if the challan is put in beyond the 90-day period.

S.S.Dewan, J.

1. This is a petition for bail on behalf of the petitioners who are accused of offences under Sections 148/302/307/149, Indian Penal Code. They instead of being arrested by the police straightaway surrendered themselves in the court of Chief Judicial Magistrate, Sonepat on 20-11-1987 who sent them to judicial custody. On an information being received about their aforesaid detention in judicial custody, the police formally arrested them from the court of the aforesaid Magistrate on 30.11-1987 and kept them in police custody for the maximum period permitted under sub-section (2) of Section 167 of the Criminal Procedure Code (for short, the Code). It is not disputed that the challan was put in the court on 27.2.1988. The petitioners have claimed bail by virtue of the provisions of clause (a)(i) of sub-section (2) of Section 67 of the Code which provides that no Magistrate shall authorise the detention of the accused person in custody under this section for a total period exceeding 90 days and on the expiry of the said period of 90 days, the accused person shall be released on bail if he is prepared to and does furnish bail.

2. Mr. Ashok Chaudhary, learned counsel for the State has urged that the Period of 90 days has to be counted from the date on which the police effects the arrest of the accused and not from the date when the accused on his own surrenders to the court and it is the Magistrates Court who remands him to the judicial custody. There appears to be no substance in the contention. The expression used in the relevant provision is custody under this section which includes both judicial as also the police custody. It makes no difference as to whether the police effects the arrest first and after the police remand is over, then the person is sent to the judicial custody or in the very first instance. The person surrenders to the court instead to the police and the court sends him to the judicial custody and it is during such a custody that the police formally takes charge of the accused and after retaining him in police custody, then be is remanded back to the judicial custody. Since, admittedly, as already observed, the challan is put in beyond the period of 90 days, the petitioners in view of the pre-emptory nature of the provisions, have to be released on bail as beyond the said period of 90 days, their detention will not be in accordance with law. In this view, I am fortified by the decisions in Kamaljeet v. State, 1986(2) RCR 551 and .

3. Consequently the petitioners are ordered to be released on bail on their furnishing bail bonds in the sum of Rs. 10,000/- each with one surety in the like amount to the satisfaction of the Chief Judicial Magistrate, Sonepat.