D. L. MEHTA, V. J. - (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: - Vfhk;qdr dks iqu% tfj;s fgjklr fnukad------------------------dks miflfkr j[kk tkosaa** and since then the accused persons are under detention. On the last date, that is on. 28. 4. 83, the accused have been detained under the orders signed by the Judicial Magistrate, Abu Road and it has been directed that the accused be produced on 7. 6. 1983. I have given a considered thought and I am of the view that the submissions made by the Additional Advocate General are without any force. Sec. 309 cl. (2) provide for such time "as it considers reasonable. " The Magistrate or the Court have no authority to pass an order for an indefinite detention of the accused persons in judicial lock up. Time has to be fixed and the interpretation which should be given to the warrants is that the Court has authorised the detention of the accused persons only for a limited period and directed that on a particular date the accused should be produced before the Court. So, it should be presumed that the detention was only for the intervening period, that is, the date for which the remand has been granted and the date on which the directions have been issued that the accused should be produced in the Court. Now, it is very clear, after the Judgment of this Court, that the detention of the accused persons is not a legal detention. Neither the Reader had the jurisdiction to pass an order that the accused should be remanded to the custody and should be produced on 7. 6. 1983 nor the Judicial Magistrate, Abu Road, had the jurisdiction to sign the warrant of detention. This Court has already held in the case of Basu (supra) and this view has further been taken by this Court in the case of Birbal vs. State of Rajasthan (2 ). I agree with the view taken by my learned brother Hon'ble Agarwal J. and held that the detention of the accused petitioners was illegal during the period that is, 28. 4. 83 to this date and neither the Reader had the jurisdiction to sign proceedings under which the warrant has been issued nor the Judicial Magistrate, Abu Road, had the jurisdiction to sign the warrant of arrest. The next question involved is whether the accused should be released on bail under the provisions of Section 439. Cr. P. C. or should be set at liberty under the habeas corpus jurisdiction. Learned counsel for the petitioner has submitted that there is a practice of the Court to release the accused on bail and he has cited number of case of this Court to show that whenever the court has found that the detention is illegal because of technical error similar to the error committed by the court below in this Case. This practice has not been disputed by any of the parties but the question is whether the practice as it exists should be followed or the law should be applied. Learned counsel for the petitioner submits that the Court has a jurisdiction to grant bail even if the detention is illegal. He submits that under the provisions of Sec 309 (2) Cr. P. C. the words 'custody' has been used and 'custody' should be equated with detention, whether it is legal or illegal. He has cited before me the case of Izhar Ahmed vs. State (3 ). Para 8 of the said judgment reads as under:- "the learned counsel for the State contended that even if the detention of the applicants had been illegal they should not be released on bail under S. 439 Cr. P. C. and instead they should be asked to secure their release by filing a Habeas Corpus Writ Petition No built up his contention on the plea that if the applicants were released on bail under S. 439 Cr. P. C. , then they cannot be rearrested, once they furnish the required bail bonds, but in case they were released through Habeas Corpus writ petition, it will be open to the authorities concerned to re-arrest them after complying with the provisions of law. Merely because the applicants cannot be re-arrested if they are released on bail, that by itself can be no ground for not releasing them on bait. If their detention is illegal, they can certainly approach the Court for their release under S. 439 Cr. P. C. In the instant case, as stated above, their detentions is illegal and they, therefore, deserve to be released on bail. "
(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. I have given a considered thought in the matter. It is an admitted position that the accused persons are facing trial and they are persons accused of an offence. I think that the 'custody' meaning as used in Sec. 439 Cr. P. C. , should be given a restrictive interpretation to include only the custody which is legal under a valid warrant of remand issued legally by a competent authority. If the warrant of arrest is illegal then it cannot be said that he is in a lawful custody but his detention is illegal and it will amount to wrongful confinement, may be because of bonafide remand order. In the facts and circumstances of the case, I consider it proper that the accused persons should be set at liberty instead of being released on bail. It is, therefore, directed that the accused petitioners should be set at liberty as their custody is not according to law. The accused petitioners are directed to appear in the court of Additional Sessions Judge, Sirohi, on 7. 6. 83. Shri Patu-Singh, Jailor, sub-Jail, Sirohi is present in the court. He is directed also that he should comply with the order of the court. The office is also directed to give necessary instructions according to the court order to the Jailor in writing. . ;