ABDUL RAHMAN Vs. STATE

JUDGEMENT

(1.) This order will govern HCP Nos. 1198/99 and 1201/99. The controversy as well as the facts involved are common in both the petitions.

(2.) While in HCP. No. 1198 of 1999 which is filed by one Abdul Rahman, the detenu is Noorudeen, in HCP. No. 1201 of 1999 which is filed by the same petitioner Abdul Rahman, the name of the detenu is Ibrahim, S/o Mohammed Ali. Both these persons face prosecution for offence punishable under Section 302, Indian Penal Code in Cr. No. 246 of 1998 registered by J2, Mathichiyam Police Station, Madurai. We would proceed on the facts applicable to Noorudeen. Needless to mention that they are common in the case of the other detenu Ibrahim also, the only difference being the date of detention order. It is a common ground that Noorudeen was detained under the provisions of Section 3(2) of the National Security Act by an order passed by the Police Commissioner, Madurai dated 25-5-1998, while the detenu Ibrahim was detained by an order dated 8-5-1998 passed by the same authority. It is however, common ground that the period of detention i.e. one year period has expired in case of both the detenus. But the validity of the detention order is not the subject in these petitions. These petitions are on entirely different set of facts.

(3.) It is the common case that in both the petitions, after the initial arrest of the detenus in respect of the abovementioned crime by the police, they were produced before the concerned Judicial Magistrate and they were remanded to custody from time to time. During the pendency of their incarceration in jail while they were in custody, the detenus filed the bail application. It is a common ground that both these persons were arrested on 12-4-1998 and 13-4-1998 respectively in respect of the incident which took place on 28-2-1998. It seems that immediately after they were arrested, the detention orders came to be passed as has already been stated above, almost within a month of their arrest. At the time when these detention orders were passed, the detenus were in the judicial remand. After the detention orders were passed, these detenus who are hereinafter referred to as the accused persons, filed an application for bail on 15-7-1998 as probably the period of 90 days has expired and yet, the charge-sheet was not filed by the police against them. The Magistrate passed an order granting bail under the provisions of Section 167(2) of the Code of Criminal Procedure, taking the view that though 90 days period had expired, since the charge-sheet had not been filed, the accused persons were entitled to be released on bail. It seems that after the bail order was passed on 23-7-1998, the prosecution filed the charge-sheet on 7-8-98. Since the accused persons had already been ordered to be released on bail vide order dated 23-7-1998, they furnished sureties before the Judicial Magistrate, II, Madurai on 23-9-1998. It is suggested during arguments that the sureties were offered by the accused earlier on 30-7-1998, but those sureties were returned by the Magistrate. Learned counsel however did not rely those facts during the arguments and shows the date as 23-9-1998 when sureties were furnished before the Magistrate. It seems from the records that the Magistrate wanted to be satisfied regarding the sureties. Therefore, he ordered their verification. The probation officer filed a report regarding the verification of the sureties only on 3-10-1998 and ultimately the sureties furnished by the accused came to be accepted by the Judicial Magistrate on 2-11-1998. It is also an admitted position by the parties that the release warrant was sent by the Judicial Magistrate to the Jail on 2-11-1998. However the release warrant was sent back by the Jail authorities on 13-11-1998 on the ground that the detenus could not be released on the basis of the release warrant, since that they were already under detention, passed by the Police Commissioner, Madurai. Now the petitioner have come up before this Court saying that these accused persons had been ordered to be released on bail as back as on 23-7-1998 and the sureties offered by them were accepted as back as on 2-11-1998 and the release was ordered and in pursuance of that, release warrant was also issued by the Court and therefore since the period of detention which was ordered by the Police Commissioner, Madurai has expired in the month of May 1999, they are bound to be released. Since they were not so released, it seems they had filed an application for bail before the Sessions Court, Madurai. That bail application has been dismissed by the learned Sessions Judge, Madurai on 30th June, 1999. Again a bail application was tried to be moved on behalf of the accused Noorudin, pointing out that in fact he had already been released on bail earlier, but even that bail application seems to have been dismissed by the Second Additional Sessions Judge on 14-7-1999. It is also an admitted position that after the charge-sheet filed before the Judicial Magistrate, Madurai on 7-8-98, the matter now stands committed to the Sessions Court on 22-3-1999 and thereafter the accused are being produced from time to time before the Sessions Judge, Madurai. It has also been brought to our notice that in the meantime while the matter was pending before the Judicial Magistrate, I Class on couple of occasions, the accused persons were not produced before the Magistrate which resulted in his issuing the non-bailable warrant against the accused. However, today the position as it stands is that there is no cancellation of bail and that there is no such non-bailable warrant pending against the accused.