S. C. AGRAWAL, J. - (1.) THIS bail application has been moved u/s 439 Cr. P. C. The accused-petitioner Bosu alias Gurubux Singh along with three others is being prosecuted in respect of offences under sections 302 and 120b I. P. C. before Addl. Sessions Judge, Udaipur. The petitioner was arrested on 28th November, 1981 and is in custody ever since then. A charge was framed on 11th February, 1982 and the case was fixed for recording the prosecution evidence on 19th and 20th May, 1982. 19th May, 1982 was declared a holiday and the case was adjourned on 20th May, 1982 but on that day, the Presiding Officer of the court of the Addl. Sessions Judge was on leave and the case was adjourned for recording of evidence to 1st and 2nd July 1982. On these dates also, the Presiding Officer of the court of Addl. Sessions Judge was on leave and the case has been adjourned for recording prosecution evidence on 11th and 13th August, 1982.
(2.) IN the bail application, it has been submitted by the petitioner that there is no valid order remanding the accused-petitioner in custody and in that context, it has been submitted that the Judicial Officers who had adjourned the case on 20th May, 1982 as well as on 1st and 2nd July, 1982 were not competent to pass an order remanding the petitioner to judicial custody and further more the record does not show that any order remanding the petitioner to judicial custody was actually passed. By order dated 15th July, 1982, it was directed that a copy of the bail application be sent to the Addl. Sessions Judge, Udaipur for comments and in response to the said direction contained in the order dated 15th July, 1982, the comments of the Addl. Sessions Judge have been received. In the comments aforesaid, the Addl Sessions Judge has stated that the case was fixed for recording the statements of the prosecution witnesses on 19th and 20th May, 1982 and that 19th May was declared a holiday and the case was taken up on 20th May, 1982 and on that day he was on leave and therefore, the case was adjourned for recording the prosecution evidence on 1st and 2nd July, 1982. The order sheet dated 20th May, 1982 adjourning the case to 1st and 2nd July, 1982 was signed by the Chief Judl. Magistrate, Udaipur. In the comments, it is further stated that on 1st and 2nd July, 1982, the Addl. Sessions Judge was again on leave and the case was adjourned to 11th and 13th August, 1982 and the order sheets dated 1st and 2nd July. 1982 were signed by the Addl Civil Judge-cum-Judge Small Causes Court and Judl. Magistrate, who was currently holding the charge of the Chief Judl. Magistrate, Udaipur. Along with the comments aforesaid, the Addl. Sessions Judge has sent copies of the order sheets containing the orders dated 20th May, 1982, 1st July, 1982 and 2nd July, 1982. I have heard Mr. P. L. Chaudhary, the learned counsel for the petitioner and the learned Public Prosecutor. Mr. Chaudhary has urged the following two contentions: - (1) the Addl. Civil Judge-cum-Judge Small Causes Court and the Judl. Magistrate, who had passed the orders dated 1st and 2nd July, 1982, were not competent to exercise the powers of the Addl. Sessions Judge and they were not competent to pass any order remanding the petitioner to judicial custody u/s 309; Cr. P. C. and, therefore, there is no valid order remanding the petitioner to the judicial custody, and (2) the order-sheet does not show that any order has been passed for remanding the petitioner to judicial custody and, therefore, there is no order remanding the petitioner to judicial custody. In support of bis first contention, Mr. Chaudhary has pointed out that under sub-sec. (5) of sec. 9 Cr. P. C. , the High Court has been empowered to make arrangements for the disposal of an urgent application which is, or may be, made or pending before Court of Sessions when the office of the Sessions Judge is vacant, by an Additional or Assistant Sessions Judge, or, if there be no Addl. or Assistant Sessions Judge, by a Chief Judicial Magistrate, in the sessions division. Mr. Chaudhary has also referred to sub-section (3) of section 10, which lays down that the Sessions Judge may also make provision for the disposal of any urgent application, in the event of his absence or inability to act, by an Addl. or Assistant Sessions Judge, or, if there be no Addl or Assistant Sessions Judge, by the Chief Judl. Magistrate, and every such Judge or Magistrate shall be deemed to have jurisdiction to deal with any such application. The submission of Mr. Chaudhary was that the aforesaid provisions indicate that in case the office of the Sessions Judge is vacant, the High Court is empowered to make alternative arrangements for the disposal of the urgent work pending before the Court of Sessions and in the event of his absence or inability to act, the Sessions Judge may himself make provisions for disposal of such urgent work, but in either event, the Judicial Officers, who can be entrusted disposal of such work can only be Addl. or Assistant Sessions Judge or if there be no Addl. or Assistant Sessions Judge by a Chief Judl. Magistrate. Mr. Chaudhary has submitted that the Judl. Officer below the rank of Chief Judl. Magistrate is not entitled to exercise the powers that have been conferred on Sessions Judge or Addl. Sessions Judge by the Code and. therefore, the Addl. Civil Judge cum-Judge Small Causes Court and Judl. Magistrate was not competent to exercise the powers of Addl. Sessions Judge to pass an order of remand u/s 309 Cr. P. C. in a case which was triable by the Addl. Sessions Judge, Udaipur. In my opinion, the aforesaid contention urged by Mr. Chaudhary must be accepted. As noticed earlier, the provisions contained in the Criminal Procedure Code with regard to the disposal of the urgent matters pending before the court of Sessions are contained in sub-section (5) of s. 9. and sub-section (3) of s. 10. Sub-section (5) of section 9 seeks to deal with a contingency when the office of the Sessions Judge is vacant and subsection (3) of section 10 deals with a situation when the Sessions Judge is absent or unable to act. In either event, the Judl. Officer, who can be empowered to deal with the urgent matters pending before the Sessions Judge, is the Addl. or Assistant Sessions Judge or if there be no Addl. or Assistant Sessions Judge, the Chief Judl. Magistrate in the sessions division, in other words, the Code does not contemplate any Judl. Officer below the rank of a Chief Judl. Magistrate being empowered to exercise the powers of the Sessions Judge in respect of urgent matters pending before the Sessions Judge, In the event of the office of the Sessions Judge falling vacant or the Sessions Judge being absent or unable to act.
(3.) RULE 45 of the General RULEs (Criminal), 1980 framed by this Court provides as under: - "45 Report if Sessions Judge leaves division. In the event of the Sessions Judge leaving his sessions division, he shall make arrangement for disposal of urgent criminal work in view of section 10 (3) of the Code in his absence. On return he shall report to the High Court, the date of his departure from, and his return to his headquarters. Any Additional Sessions Judge or Assistant Sessions Judge, who is leaving the sessions division shall make report of his absence to the Sessions Judge as well as to the High Court. The arrangements for disposal of urgent criminal work in the absence of such Additional Sessions Judge or Assistant Sessions Judge shall be made by the Sessions Judge. " The aforesaid rule also postulates that in the event of the Sessions Judge leaving his sessions division, he shall make arrangements for disposal of urgent criminal work in view of section 10 (3) of the Code in his absence and in the absence of Addl. Sessions Judge, the arrangement for disposal of urgent work shall be made by the Sessions Judge. In the present case, the report submitted by the Addl. Sessions Judge is silent with regard to the authority who had made arrangements for the disposal of the work, that was pending before the said court during the absence of the Presiding Officer on leave on 1st and 2nd July, 1982. But even if it is assumed that the competent authority, had passed an appropriate order for the disposal of toe urgent work pending before the court of Addl Sessions Judge, Udaipur during the absence of the Presiding Officer of the said court on leave on 1st and 2nd July, 1982, I am unable to hold that the Addl. Civil Judge-cum-Judge Small Causes Court and Judl Magistrate could be empowered to exercise the powers of the Addl. Sessions Judge and, therefore, it must be held that the Addl. Civil Judge-cum-Judge Small Causes Court and Judl. Magistrate was not competent to pass an order u/s 309 Cr. P. C. remanding the petitioner to judicial custody. Moreover, in the present case, the orders passed on 1st and 2nd July, 1982 in the order sheets do not show that any order was passed directing the remand of the petitioner to judicial custody. In Chhitar vs. The State of Rajasthan (1) this court after setting out the provisions contained in subsection (2) of section 309 has observed as under : - - "a plain reading of this sub-section would show that every time the case is postponed or adjourned, when the court concerned is required to pass an order for remand of an accused in custody by a warrant. In spite of the fact that the case was adjourned in this court a number of times and a number of Public Prosecutors argued it on different dates, no record has either been produced nor request to summon any has been made to show that the accused were remanded to judicial custody by separate warrants or otherwise. Admittedly the case was taken up on 31 1. 79 and then on 6. 3. 79, 22. 3. 79, 3. 4 79 and 16. 4. 79. In no order-sheet, order or direction for remanding the accused in judicial custody was given. The contention of Mr. Khan that it be presumed by the previous order-sheets that the Sessions Judge intended to remand him to judicial custody, does not stand to reason. No such inference or conjecture can be drawn when the law has prescribed a procedure to be followed. " It was further observed as under: - "since I do not find even any skeleton of an order of remand in the order-sheets, it is difficult to say that there was any substantial compliance. If the language would have been defective or if there would have been some omission or infirmity in the directions, though it could have been inferred from that that the direction was there, then the principle of substantial compliance could have been examined. It is an admitted position in this case that after 20-1-79 in the subsequent order-sheets, there is not even a mention of any direction for remand. Even if in a given case if the Sessions Court would have said that the accused should be produced on the next hearing from jail, then also there could have been some justification for the argument by implication; the intention was to keep them in jail by remand till then can be inferred but since there is nothing in the order sheets, it is difficult to draw such an inference on the abstract doctrine of substantial compliance, which again is of very thin footing so far as criminal jurisprudence is concerned where the action relates to the detention of the accused in jail, which involves deprivation of the liberty of a person which has been duly guaranteed in the constitution and which can be done away with only by due process of law. That being so, I am constrained to observe that how-so-ever unintentional, it may be, this is a case where the record produced before this Court nowhere shows that there was any order of remand of the accused-petitioner to judicial custody after one which was passed on 20 1. 79 and which lasted upto 31. 1. 79 only. That being so, the accused cannot be kept behind the bars in jail any further and the bail application of the accused deserved to be accepted, on the short but surest ground of illegal detention without going into the merits of the case. Since this is a new ground it was neither raised earlier in previous bail application nor considered, the court is justified in considering the second bail application afresh. '* In the present case also, the orders dated July 1 and 2, 1982, do not contain any direction whatsoever with regard to the remand of the petitioner to judicial custody. By order dated 28th July 1982, the learned Public Prosecutor was given opportunity to show that the Judl. Magistrate who had 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. The learned Public Prosecutor has, however, failed to produce any material to show that the Judl. Magistrate, who had 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. ;