SURENDRA NATH AGRAWAL Vs. TOONTOON SETH

JUDGEMENT

(1.) HEARD learned Counsel for the petitioner, for the State and for the Opposite party No. 1.

(2.) THE petitioner in this case is the informant of Bhabua P.S. Case No. 1 of 1997 instituted against one Bhanu Prasad and Toontoon Seth, O.P. No. 1, under Section 394 of the Indian Penal Code. The petitioner seeks quashing of order dated 15 -5 -1998 passed by learned 2nd Additional Sessions Judge, Bhabua by which he has granted bail to O.P. No. 1 admittedly after his application for bail had been rejected by this Court on the ground that although charge -sheet was submitted against O.P. No. 1 on 24 -4 -1997 but congnizance was taken by learned Chief Judicial Magistrate, Bhabua only on 30 -4 -1998 and hence, his remand during the aforesaid period was illegal in view of a Division Bench judgment of this Court, reported in 1998(1) PLJR 782 (Sri S.K. Lal Spl. Judge, CBI (AHD), Patna v. Latu Prasad and Ors.).

(3.) LEARNED Counsel for the petitioner further submitted on the basis of decision of the Apex Court in the case of Talib Hussain v. State of Jammu and Kashmir : AIR1971SC62 , that even in an application for writ of habeas corpus, challenged on behalf of the petitioner that his detention is without any authority of law, the question has to be examined and answered with reference to the date fixed for return of rule. Put in other words, it has been submitted that the Court had to consider the legality of the detention on the date of hearing and if one that date his detention is found to be not in contravention of law. a writ of habeas corpus for release cannot be issued. The aforesaid proposition has also been pointed out in another Full Bench decision of this Court in the case of Babu Nandan Mallah v. The State of Bihar as reported in 1971 PLJR 605.