M.C.JAIN, J. - (1.) THIS is an application for cancellation of bail under Section 439(2), CrPC.
(2.) THE non -applicant Rajaram was enlarged on bail by the Sessions Judge, Ganganagar, by his order dated 6th July, 1978, under Section 167(5), CrPC, as challan was not presented within sixty days from the date of his arrest. Rajaram was arrested on a charge under Section 302, IPC, on 10 -4 -1978. Charge -sheet was submitted on 9 -6 -1978. The learned Sessions Judge did not enter into the merits of the bail application and proceeded to enlarge the accused on bail on the basis that the charge -sheet was submitted beyond sixty days from the date of arrest. On behalf of the applicant it is urged that Section 167(2) has not been correctly construed Rajaram was produced before the Munsif and Judicial Magistrate, Karanpur, for remand on 1 -14 -1978 Under Section 57 of the Code of Criminal Procedure the police was entitled to detain the accused in custody for a period of twenty -four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court, and if investigation is not completed within this period the police can seek remand under Section 167(2), CrPC, and the Magistrate can further authorise the detention of the accused in police custody by exercising powers under Sub -section (2) of Section 167 CrPC, for a term not exceeding 15 days. The learned Counsel urged that this period of 15 days is exclusive of the period of custody of the accused by the police under Section 57, CrPC, and he further submitted that the total period of detention for which the Code authorises the Magistrate under the proviso (a) to Sub -section (2) of Section 167, is sixty days. This period of sixty days is also exclusive of the period of police custody under Section 57, CrPC. His submission is that the period of detention under Section 57 should not have been reckoned by the Magistrate under Sub -section (2) of Section 167. The period of detention authorised by the Magistrate would begin only after the production of the accused before the Magistrate for remand. The custody thereafter would be in pursuance o the authorisation by the Magistrate. The learned Counsel in support of his contention placed reliance on the two decisions of the Delhi High Court, Tarsen Kumar v. The State 1975 Cr.L.J. 1393 and L.R Chawla and Ors. 1976 Cr.L.J. 212. He further placed reliance on Artatran Mahacusera and Ors. v. State of Orissa A.I.R. 1956 Orissa 129and Dr. Niranjan Bhattacharies v. Manipur Administration A.I.R. 1958 Manipur 33.
(3.) THE learned Counsel for the accused non -applicant Rajaram, on the other hand, referred to a decision of this Court in (sic) Singh v. The State of Rajasthan 1978 Cr.L.R. 343 and urged that the period under Section 167(2), CrPC, is inclusive of the period under Section 57, CrPC. The period of remand under the main Sub -section (2) and under the proviso to Sub -section (2) of Section 167 is to be reckoned from the date of the arrest and not from the date of the production of the accused before the Magistrate.;