TAJU KHAN Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS matter has come up before us on a reference made by S. C. Agrawal. J. as he has noticed conflict between the two decisions of the learned single Judges of this Court.

(2.) WE may state a few material facts leading to the present reference.

(3.) TAJU Khan presented an application for bail under Section 439. Cr. P. C. in this Court on July 17. 1982. On June 7, 1982, on a report lodged at. the Police Station, Ladnu, a case under Sections 147. 149. 148. 452. 323 and 307. I. P. C. was registered against, the petitioner and some other accused persons. The petitioner Taju Khan was arrested on June 20. 1982. He submitted an application for bail before the Additional Sessions Judge, Nagaur but, the said application was rejected by the Additional Sessions Judge on July 9, 1982. Thereafter a bail application was submitted in this Court. During the pendency of the bail application in this Court, the petitioner moved an application on August 13. 1982. wherein he stated that his present detention after August 9. 1982, is illegal inasmuch as on that date the case was fixed in the Court of Munsif and Judicial Magistrate, Ladnu but on that date the Magistrate was on leave and in his absence, the Reader of the Court signed the order-sheet adjourning the case to August 23. 1982. According to the petitioner, the Reader was not competent to pass an order of remand and. therefore, there is no valid authorisation for the detention of the petitioner in custody after August 9. 1982. When arguments on the bail application were heard, on August 24, 1982. on behalf of the petitioner, it was contended that, the petitioner is entitled to be released on bail, as the petitioner's detention was illegal and the illegality of detention on account, of an invalid order of remand cannot be cured subsequently by a valid order of remand and reliance was placed by the learned, counsel for the petitioner on a decision by P. D. Kudal, J. . in Rati Ram v. State of Rajasthan 1982 Cri LR (Raj) 313 and it. was further contended that even if it is assumed that the illegality in the detention can be cured by a subsequent valid order of remand the legality of detention has to be considered with reference to the date on which the bail application is submitted and not with reference to the date on which the bail application comes up ultimately for consideration before the court and since on August 13. 1982. when, the application came up for consideration, the detention of the petitioner was invalid, so he is entitled to be released on bail.