KHERAJ Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS bail application under section 439 Cr. P. C. has been moved on behalf to the three accused-petitioners who are standing trial for offence under sec. 147, 148, 302, 302/149, 326 and 325 I. P. C. before the learned Sessions Judge Merta. As the only contention urged for granting bail to the petitioners is their wrongful confinement since May 30, 1983, the facts of the case need not be stated. So far as the plea of wrongful detention is concerned, the learned counsel for the petitioner has raised three contentions before me namely:- (i)that on May 30,1983, the learned Sessions Judge was on leave and the case was adjourned by the learned Additional Chief Judicial Magistrate who is purported to have been authorised by the learned Sessions Judge under s. 10 (3)Cr. P. C, but as a matter of fact such an authorisation was illegal because no judicial officer below the rank of a Chief Judicial Magistrate could have been so authorised under section 10 (3)Cr. P. C; (ii)that even if the Additional Chief Judicial Magistrate could have been authorised under section 10 (3)such authorisation could have been possible only if there was no Additional Sessions or Assistant Sessions Judge in the Sessions Division and since there was an Additional Sessions Judge working at Nagaur within the Sessions Division Merta on 30. 5. 83 the Additional Chief Judicial Magistrate could not have been authorised by the learned Sessions Judge under section 10 (3)Cr. P. C. Therefore, the adjournment of the case and remand of the accused persons to judicial custody from May 30, 1983 was illegal and without jurisdiction; and (iii)that as a matter of fact there was no order or direction of remand of the accused petitioners to judicial custody on May 30, 1983 as the order-sheet in this respect is silent.

(2.) I have heard the learned counsel for the petitioners and the learned Public Prosecutor and have also gone through the original warrant and the copy of the order sheet dated May 30. 1983. I have also perused the order made by the learned Sessions Judge on May 28, 1983 authorising the learned Additional Chief Judicial Magistrate to dispose of urgent criminal matters in his absence.

(3.) FOR the reasons stated above, this application for bail fails and is hereby rejected. .