C.P. Sen, J.
1. By this Order Misc. Criminal Case Nos. 517 of 1983 Karan Singh and two others v. State of M. P. and 518 of the 1983 Baliram and Anr. v. State of M. P. are also disposed of as all these three bail applications arise out of Crime No. 112 of 1982 registered under Secs. 395, 397 and 452 read with Section 149, I.P.C. and Section 27 of the Arms Act.
2. On the night intervening 27/28-10-1982 there were two dacoities in village Padlye, police station Khalwa district Khandwa in which 12 to 13 dacoits participated. The first dacoity was committed in the house of Bhagirath Prasad and cash of Rs. 6000/-, gold ornaments weighing 51/2 Tolas and silver ornaments were looted. The second dacoity was in the house of Mangilal in which cash of Rs. 55,000/- and gold and silver ornaments were looted. A report was lodged by Bhagirath on 28-10-1982 at 8.15 p.m. in police station 25 kms., away. These 10 applicants and two co-accused Totaram and Karansingh who are all residents of Chalpi were arrested in the evening of 19-11-1982. On the memorandum of each of the applicants cash and ornaments were recovered. They were identified in the identification parade after 15 days of their arrest and the recovered properties were identified on 29-11-1982. The trial Court granted bail to co-accused Totaram because his active participation in the dacoity was not prima facie made out and he was also not identified. Another co-accused Karansingh was released on bail by this Court in M. Cr. C. No. 31 of 1983 on 20-1-1983 on similar grounds but this Court rejected the bail application of these 10 applicants. After rejection of the bail applications, challan was filed in the case on 17-2-1983 and then fresh applications for bail were moved under Section 167(2) of the Cr. P. C. on the ground that the challan has been filed on the 91st day and, as such, they are entitled to be released on bail. The learned Addl. Sessions Judge held that the challan was filed on the 90th day and, as such, he rejected the bail applications.
3. The present applications are pressed firstly on the ground that there is wrong calculation by the trial Court and the applicants ought to have been released on bail as the challan was filed on 91st day and secondly on merits saying that there was undue delay in holding identification parade and the seizure of cash from each of the applicants is of no consequence, the ornaments recovered are of common use and they cannot be connected with dacoity, so they be released on bail as they are already under detention for more than four months.
4. Section 167(1) provides that when any person is arrested and detained in custody and it appears that the investigation cannot be completed and there are grounds for believing that the accusation is well founded, he has to be produced before a judicial Magistrate for remand within 24 hours. Under Sub-section (2) the Magistrate can grant remand not exceeding 15 days at a time but police custody cannot be given exceeding 15 days in the whole. Under the proviso the Magistrate may authorise detention of the accused person beyond the period of 15 days if he is satisfied that adequate grounds exist for doing so but no Magistrate shall authorise detention of the accused in custody under this proviso for a total period exceeding 90 days where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term not less than 10 years and on the expiry of the period of 90 days the accused person shall be released on bail if he is prepared to furnish bail.
5. Now the question to be considered is how these 90 days have to be calculated. Proviso to Section 167(2) provides that on the expiry of the period of 90 days the accused has to be released on bail if the challan is not filed. The Code does not provide as to how this 90 days period has to be calculated. So we have to refer to Section 9 of the General Clauses Act which gives statutory recognition to the well-established principle applicable to the construction of statutes that ordinarily in computing time the rule observed is to exclude the first and to include the last; This embodies principle of equity. Similarly Section 12 of the Limitation Act provides that in calculating the period, of limitation for any suit, appeal or application, the day from which such period is to be reckoned shall be excluded. Applying this principle, a Division Bench of the Andhra Pradesh High Court in Inre V. S. Mehta : AIR1970AP234 has held while considering Section 106 of the Factories Act which provided that no Court shall take cognizance of any offence under this Act unless complaint is made within 3 months of the date of knowledge of the alleged offence. 'Within 3 months' means within 3 calendar months after the commission of the offence came to the knowledge of the Inspector. This interpretation based on common law as well as on the provisions of the Limitation Act and the provisions of the General Clauses Act results in the exclusion of the day of the knowledge i. e the date of inspection and the 'three months' being calculated as three calendar months. In the view all the prosecutions are within time. A Division Bench of the Patna High Court in Raju alias Raj Kishore v. State of Bihar ILR (1976) 55 Pat 1021 held that the Legislature meant clear 60 days in Section 167(2)(a) of Cr. P. C. and the date on which the accused surrenders in Court has to be excluded from counting of the period of 60 days mentioned in the section and if that date is excluded, charge-sheet can be said to have been submitted on the 60th day and as such the accused could not have been ordered to be released on bail on that account. In that case, the incident took place on 3-5-1976, the applicant surrendered before the Court on 6-5-76 and the charge-sheet was filed on 5th July 1976. Same view has been taken by Delhi High Court in L. R. Chawla v. Murari 1976 Cri LJ 212 holding that the custody under this section cannot be granted for a period exceeding sixty days, a calendar day as a unit of time is the interval from one midnight to another. It is not correct to take into consideration fractions of two days to make up one day. Thus the day on which the custody is granted cannot be excluded. In that case the date of arrest was excluded but it was counted from the day when remand was granted. Similar view has been taken by the Punjab and Haryana High Court in Raj Kumar v. State of Punjab and held that the date of arrest has to be excluded in computing the period of CO days. It may be mentioned that in the aforesaid 3 cases the arrest under Section 167 was before its amendment by Amending Act No. 45 of 1978 extending the period from 60 days to 90 days. The Delhi High Court in State (Delhi Admn.) v. Ravindra Kumar 1982 Cri LJ 2366 while considering as to when police custody can be given held that the arrested person has to be produced within 24 hours and the police custody for a term not exceeding 15 days in the whole begin to run immediately the accused is produced before Magistrate and not from the date of arrest. A Division Bench of this Court in Umashankar v. State of M. P. 1982 Cri LJ 1186 while considering whether bail has to be granted under Section 167(2) although challan is filed after period of 90 days, calculated the period of 90 days by excluding the date of arrest. In that case the accused was arrested on 18-9-1981, remand was granted up to 22-12-81, application for bail was moved on 19-12-81 and challan was also filed on that date, it was held that 90 days expired on 17-12-81 by excluding the date of arrest. The view expressed in the aforesaid cases appears to be correct because the period of 90 days can only exceed by excluding the date of arrest because on that day, the day starts and it is completed after 24 hours.
6. Therefore, in the present case if the date of arrest which is 19-11-82 is excluded and since the challan was filed on 17-2-83 which was 90th day, the applicants are not entitled to be released on bail under proviso to Section 167(2). On merits, their application for bail was rejected by this Court and no ground has been made out for reconsideration. Suffice it to say that there is prima facie case to show involvements of these 10 applicants in the commission of dacoity at two places on the night of 27/28-10-82. They have also been identified and there are recovery of stolen ornaments from each of the applicants. At this stage, we cannot go into the question whether identification was proper or recovery of the property connect the applicants with the offence. All these things will be seen at the time of trial.
7. Accordingly, the applications are rejected.