CHOUDHARY JITENDRA Vs. STATE OF U P

JUDGEMENT

(1.) N. L. Ganguly, J. This application by the two applicants under Section 482, Cr. P. C. has been filed against the order of II Additional Sessions Judge, Mirzapur dated 20-3-1991 in the bail application No. 144 of 1991 Chaudhary Jitendra Nath v. State and application No. 145 of 1991 Shailendra Kumar alias Shailendra Chaudhary v. State. The learned Additional Sessions Judge refused to consider the bail application under Section 439, Cr. P. C. on the ground that the accused/applicants were not in custody on the remand order passed by the Court at Mirzapur. He considered this fact as a ground which do not confer jurisdiction for him to consider the bail application.

(2.) THE applicants were arrested in a case under Section 60 of Excise Act on 18-2-91 and they were arrested by the Police at Allahabad and sent to the jail custody. THE applicants are still confined in jail custody at Allahabad. THE applicants were also wanted in a criminal case under Section 302/307, IPC of P. S, Kotwali, Katra, Mirzapur in Crime No. 34 of 1991. THE F. I. R. of the said case is dated 14-2-Vl. Since the applicants were detained at Allah abad, the information was sent to the Mirzapur Police and Court that the accused/applicants are detained at Naini Central Jail, Allahabad. When the matter for consideration of the bail application on behalf of the applicants in Mirzapur Court came up, an objection was raised by the State Counsel that the application is not maintainable, since the accused/applicants have not surrendered before the Mirzapur Court nor there is any order for remand passed by the Magistrate of Mirzapur. It was urged before the learned Sessions Judge that the mere fact that the accused/applicants are detained in some other case at Central Jail, Naini. Allahabad, that would not mean that the accused/applicants are confined in custody. On the basis of this argument that the applicants are not in custody, the bail application was rejected. THE learned Sessions Judge accepted the argument of the D. G. C. (Criminal) there and rejected the application on the ground that the case is not covered under Section 439. Cr. P. C. unless the applicants surrender or is confined in the jail custody on the basis of a remand order passed by the Magistrate's Court.

(3.) WITH these observations, the petition is allowed. Petition allowed. .