S. S. BYAS, J. - (1.) THESE twin applications, one under section 482, and the other under section 438 Cr. P. C. are directed against an order of the learned Additional Sessions Judge, Sirohi dated June 27, 1983 passed in Sessions Case No. 31 of 1981 on his file. It was prayed that the aforesaid order of the learned Additional Sessions Judge be quashed and in alternative anticipatory bail be granted to them.
(2.) SINCE the facts and circumstances arising for consideration in these two petitions are closely knitted inter se, they were heard together and are disposed of by a common order. In order to properly appreciate the rival contention of the parties, it is necessary to recapitulate the facts and circumstances giving rise to these applications The accused persons are facing trial under ss. 147,148, 302,302/149, IPC in the court below. The charge against them is that they committed as many as six murders. They were in custody and moved this Court for bail under section 439, Cr. P. C. Their application was dismissed by this Court on 27. 8 80 for non-prosecution. A second bail application was filed by them again under sec. 439, Cr. P. C. in this Court. It was dismissed on January 14, 1983 on merits as it was not found a fit case for granting bail. The accused persons filed a third application for bail under section 439 Cr. P. C. in this Court. One of the contentions taken by them was that their detention was illegal because remand to keep them in custody was not passed by the competent authority under section 309 (2 ). Cr. P. C. The contention found favour with my learned brother Mehta, J. The application was allowed. Taking their detention to be illegal on the ground that remand to keep them in judicial custody was not granted by a competent authority under section 309 (2) Cr. P. C, they were set at liberty. However, they were directed to appear in the court-below on June 7, 1983. On June 7, 1983, the accused petitioners failed to personally appear in the court-below. Their advocate appeared on their behalf and submitted an application to seek their exemption from personal appearance. This application was opposed by the prosecution. The learned Sessions Judge adjourned the hearing and fixed 25. 6. 83 for the disposal of the above application. Again, on 25. 6. 83, the accused persons did not put personal appearance in the court and their learned Advocate appeared on their behalf. A similar application like the earlier one was filed to seek exemption from putting persona! appearance. The learned Judge heard the parties and by his impugned order dated 27. 6. 83 rejected the applications of the accused-persons. He issued warrants of arrest against them to secure their appearance in his court. Aggrieved against the said order, the petitioners has rushed to this Court for the reliefs mentioned at the very out set. Very attractive and elaborate arguments were addressed at Bar. For convenience, it would be proper to take the two applications one by one. APPLICATION UNDER SEC. 482. Cr. P. C. Learned counsel appearing for the petitioners made a scathing attack on the impugned order and contended that it was wholly erroneous and bad in law. It was argued that the order passed by my learned brother Mehta, J. on June 3, 1983 was that of releasing the petitioners on bail and not letting them off through Habeas Corpus. In order to build up the argument, the learned counsel took two positions :- (1) that the order was passed by a learned Single Judge, and (2) there were direct authorities of this Court viz. Basu vs. State of Rajasthan (1), Birbal vs. State of Rajasthan (2), and Rati Ram vs. State of Rajasthan (3), in which bail was allowed in cases where detentions of the accused-persons were found illegal for one or other reason.
(3.) IN reply it was vehemently contended that the accused were let off not on bail but under 'habeas Corpus'. It was argued that the accused had strane-ously contended before Mehta, J. , that they should be released on bail instead of being let off but their contention was negatived. The order of Mehta, J. clearly shows that prayer for bail was straight way rejected. I have taken the respective contentions into consideration. Undoubtedly, the order dated June 3, 1983 letting off the accused was passed by a learned Single Judge. A bare reading of the order shows that the petitioners were not released on bail. Since their detention was found illegal, they were let off under the 'habeas Corpus'. This order was passed by the learned Single Judge sitting as a Vacation Judge. It is true that a 'habeas Corpus' petition is to be heard by a Division Bench. But rule 63 of the High Court of Rajasthan Rules, 1952 dealing with the jurisdiction of a Vacation Judge clearly lays down:- "63. Such jurisdiction may be exercised even in cases which are, under the Rules, cognizable by two or more Judges, unless such case is required by any other law to be heard by more than one Judge. " As such, a Single Judge sitting in vacation can hear and decide a matter which is required to be heard and decided by two or more Judges. The order dated June 3, 1983 therefore, does not become bad in law on the ground that it was passed by a Single Judge. ;