H.S.BRAR,J - (1.) THIS is an application under Section 439 of the Code of Criminal Procedure, for bail filed by Subhash and Sunil petitioners in a case registered against them vide First Information Report No. 280, dated July 29, 1993, Police Station Gohana, under Section 363-A of the Indian Penal Code.
(2.) EARLIER an application for bail under Section 439 of the Code of Criminal Procedure in the same case was filed by them before the learned Sessions Judge, Sonepat, who dismissed the same being not maintainable, as, according to him, the accused - petitioners Subhash and Sunil had been taken into custody in the case in hand. Briefly stated, the facts are that both the accused-petitioners Subhash and Sunil are stated to be lodged in District Jail, Meerut in various cases under Sections 307, Indian Penal Code and 25 of the Arms Act, pertaining to Police Station Transport Nagar, Meerut and in a case under Section 394 of the Indian Penal Code of Police Station Partap Pur, District Meerut. Since the accused-petitioners were also involved in the abovementioned case under Section 363-A of the Indian Penal Code, of Police Station, Gohana, the Police of C.I.A. Staff moved the court of Sub-Divisional Judicial Magistrate, Gohana, for issuance of production warrants in respect of the accused-petitioners to the Superintendent of District Jail, Meerut. However, each time, the various production warrants issued by the Court of Sub-Divisional Judicial Magistrate, Gohana, were returned unexpected with the reports of the Superintendent, District Jail, Meerut under Section 269 (b)(c), Code of Criminal Procedure, and under Section 6(b)(c) of the Prisoners Attendance in Court Act, 1955, to the effect that the accused-petitioners could not be sent to the Court of Sub-Divisional Judicial Magistrate, Gohana, as they were involved in various cases at Meerut and that production warrant be sent again. However, uptil now accused-petitioners Subhash and Sunil have not been produced in the Court of Sub-Divisional Judicial Magistrate, Gohana, in the abovementioned case, in pursuance of the various production warrants. Thus, the accused-petitioners have not been formally arrested by the Police in the abovementioned case under Section 363-A of the Indian Penal Code, of Police Station, Gohana.
(3.) THE learned counsel for the petitioners states that the accused- petitioners were already in Judicial custody and were lodged in District Jail, Meerut in the earlier referred to cases and, as such, they shall be deemed to be in custody in this case as well, especialy when their production warrants had already been issued by the learned Sub-Divisional Judicial Magistrate, Gohana, and thus, the Sessions Judge had the jurisdiction and was competent to release the petitioners on bail in this case under Section 363-A of the Indian Penal Code. Thus, the learned Sessions Judge fell in error in dismissing the bail application of the accused-petitioners as not maintainable.;