POMA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) HEARD learned counsel for the parties. Mr. Choudhary, learned counsel for the petitioners has submitted that on 28. 4. 83, the Reader has passed the remand order. He has produced the photostat copy and from the perusal of the proceedings, it is clear that the Reader has signed for Additional District Judge, Sirohi It was considered proper to call for the original warrant and the original warrants have been produced before me. In the original warrants, the Judicial Magistrate, Abu Road has signed the warrants on 28. 4. 1983. Mr Choudhary has pointed out that this Court has already considered the point in Bosu & Gurubux Singh vs. State of Rajasthan (1 ). My brother Hon'ble Justice Agarwal has dealt with the matter in detail and has observed as under :- "the learned public prosecutor has, however, failed to produce any material to show that the Judl. Magistrate, who has passed the orders dated 1st and 2nd July, 1982, was competent to pass the said orders and that there is a valid order of remand for detention of the accused-petitioner. In the circumstances, it must be held that there is no valid order holding the accused-petitioner in Judicial custody and the present detention of the accused-petitioner is not supported by the authority of any law The accused petitioner is, therefore, entitled to be released on bail inspite of the fact that his earlier bail applications have been rejected by this Court. "

(2.) MR. A. K. Mathur, Additional Advocate General appearing on behalf of the State has submitted that looking to the language of the warrant issued, it should be considered that it is a continuing warrant and no further order of detention is necessary. He further submits that the dates are given in the warrant only for the purpose that the Jailor may produce them before the Court and the Court may scrutinize the matter on the relevant date. Under Section 309 (2) Cr. P. C. , the Court after taking the cognizance of an offence of commencing of trial, finds it necessary or advisable to postpone the commencement or adjourn any enquiry or trial it may, from time to lime for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit for such time as it considers reasonable and may, by a warrant remand the accused, if in custody. It is an admitted position that the trial is taking place. The original warrants were signed by the Magistrate on 23. 1. 80. Thereafter, the accused was produced before the Magistrate from time to time and the case was committed to the Court of Additional Sessions Judge, Sirohi. On 17. 5. 80 the learned Magistrate directed that the accused be produced before the Court of Additional Sessions Judge Sirohi. There after, the learned Sessions Judge has on the date of hearing as under: -

(3.) LEARNED counsel for the petitioner has also referred to the case of Mool Chand v. State (4 ). So far as this case is concerned this is not on the point as the question of the applicability of the bail provisions has not been discussed. LEARNED Additional Advocate General submits that if the Court comes to conclusion that the detention is illegal then the accused should be set at liberty but he should not be released on bail. He submits that the consideration in the matter of releasing the accused persons as provided under s. 437 Cr. P. C. he further submits that in the case of Izhar Ahmed (supra), the courts has not considered in detail the implications of the provisions of s. 437 and 439 and the provisions of Habeas Corpus. He further submits that so far as the word 'custody' used in Sec. 309 is concerned, it should be constructed as a legal custody and no sweeping interpretation should be given to the word 'custody' as used in Sec. 309 to include an unlawful detention. He further submits that in case of unlawful detention, the proper word which could be used is wrongful confinement whereas if anyone is detained under the authority of the law, it is not a confinement but a custody. So he wants, to distinguish between the words 'confinement' and 'custody' and submits the custody as used in section 309 should be interpreted for the purpose for which it has been used and it should be restricted to the legal custody only, the custody of the accused persons under the remand order passed legally. He further submits that in the case of Izhar Ahmed (supra) the only consideration was whether the accused can be re-arrested or not but the matter is different. In the case under S. 439, Cr. P. C. the Court can impose the conditions referred to in section 437 cl. (3) Cr. P. C. but in the case of illegal detention, the Court cannot impose the conditions. He further submits that he word "custody" as used in Sec. 439 Cr. P. C. should be construed as a legal custody. In case of wrongful confinement or illegal detention, it does not fall within the purview of the word 'custody' as used in Sec. 439 Cr. P. C. Mr. Choudhary submits that the word 'custody' should be given a wider meaning and includes also the case of illegal detention. The only difficulty which the petitioner is facing is that in case the order is passed in exercise of the Jurisdiction under the Habeas Corpus, the accused can be re-arrested after passing of the necessary legal orders but whereas in case the bail is granted, he cannot be re-arrested unless the bail is cancelled. There is a further difficulty that if the accused is set at liberty and if he does not appear on the date given by the court, then the bail bonds cannot be forfeited because the detention is illegal and no authorised persons has given the date for the appearance of the accused in the court.