V. S. DAVE, J. - (1.) THIS bail application under S. 439 Cr. P. C. has been filed in a case registered for offences under Ss. 395, 396, 397 and 302 I. P. C. The accused moved a bail application before the learned Sessions Judge, Dholpur which was rejected by the order, dated 13-5-1987. The learned Sessions Judge in his order stated that the accused was summoned by production warrant dated 11-2-87 issued by the Chief Judicial Magistrate, Dholpur to produce him in his court, but since he has not been produced till date and his custody has not been given to the Rajasthan Police, he cannot be deemed to have been arrested in the instant case and for that reason application under S. 439 Cr. P. C. is not maint-ainable. THIS is pertinent to mention here that accused is in judicial custody in case No. 2/86 of police station Kheragarh, District Agra for offence under S. 392 I. P. C. and at present he is lodged in Central Jail, Agra.
(2.) THE accused-petitioner, Lakhan Singh, is one of the several accused persons arrayed as accused in the instant case. 8 persons had been arrested and a charge-sheet has been filed against them including a charge sheet under S. 249 Cr. P. C. against the petitioner. THE police moved an application before the Chief Judicial Magistrate that on investigation it came to know that the accused is in judicial custody in a case at Agra and, therefore, the production warrant should be given to the police. This application was given on 9-2-1987 which reached Central Jail, Agra on 11-2-1987. THE date fixed for his production was 19-2-1987 but since the case was already fixed in Agra he was not produced before the Magistrate and consequently the custody was not handed over to the police. Thus the Rajasthan police has not got the custody of the accused till date. It is submitted by the learned counsel for the petitioner that a person can be in custody in more than one case at the same time and once the production warrant has been issued despite the fact that it has not been executed yet the petitioner should be presumed to be within custody of the Rajasthan Police. Learned counsel drew my attention to S. 267 Cr. P. C. S. 267 reads as under: "s. 267. Power to require attendance of prisoners- (l) Whenever, in the course of an inquiry, trial or other proceeding under this Code, it appears to a Criminal Court- (a) that a person confined or detained in a prison should be brought before the court for answering to a charge of an offence, or for the purpose of any proceedings against him, or (b) that it is necessary for the ends of justice to examine such person as a witness, the court may make an order requiring the officer-in-charge of the prison to produce such person before the court for answering to the charge or for the purpose of such proceeding or, as the case may be, for giving evidence. (2) Where an order under sub-section (1) is made by a Magistrate of the second class, it shall be forwarded to, or acted upon by, the officer in charge of the prison unless it is countersigned by the Chief Judicial Magistrate to whom such Magistrate is subordinate. (4) Every order submitted for countersigning under sub-sec. (2) shall be accompanied by a statement of the facts which, in the opinion of the Magistrate, render the order necessary, and the Chief Judicial Magistrate to whom it is submitted may, after considering such statement, decline to countersign the order. " The aforesaid section empowers the court to require the attendance of the prisoners. On a careful reading of the section I am of the opinion that this section does not contemplate a situation like the one which has arisen in the instant case. The learned counsel relied on Govt. of Andhra Pradesh Vs. Anne Venkate-swara Etc. (1 ). In this case their Lordship of the Supreme Court considering qua the benefit of S. 428 Cr. P. C. as to whether the period of detention undergone by the accused should be given set off against the sentence of imprisonment where the detention was under the Preventive Detention Act or Maintenance of Internal Security Act. It was held that there was no provision either in the Code of Criminal Procedure or in the Maintenance of Internal Security Act which requires the service of warrant to be delayed until after the period of preventive detention is over. There is no bar to a man being detained under the preventive detention law when a criminal proceeding for the offences on which the preventive detention is based is pending. "there is however substance in the other point raised by the writ petitioners regarding the computation of the period during which the writ petitioner in each case should be held to have suffered imprisonment on conviction. In A. V. Rao's case (W. P. 1875/76) he was already in detention under the Preventive Detention Act when the First Information Report was lodged on December 18, 1969 in connection with the sessions cases. Some of the co-accused in these cases were attested and produced before the Magistrate for remand on December 19, 1969, but Rao was produced before the Magistrate sometime in April, 1970 after he was released from preventive detention. It was argued that he also could have been produced before the Magistrate on December 19, 1969. On behalf of the respondent, State of Andhra Pradesh, it was contended that as Rao was already in detention under the Preventive Detention Act, it was not possible to produce him before the Magistrate for remand until the period of preventive detention was over. We do not find any justification in law for the position taken up by the State. Rao being already in custody, the authorities could have easily produced him before the Magistrate when the First Information Report was lodged. Nothing has been pointed out to us either in the preventive detention law or the Code of Criminal Procedure which can be said to be a bar to such a course. That being so we think that the claim that the entire period from December 19, 1969, when many of the co-accused were produced before the Magistrate, to April 18, 1970 should be treated as part of the period during which Rao was under detention as an under trial prisoner, must be accepted as valid. A. V. Rao's appeal No. 484 of 1976 is allowed to this extent. " The aforesaid case cannot be considered to be an authority on the point involved in the instant case. Attention was then drawn to Devendra@ Ram Niwas v. State (2 ). This was a case where the argument was raised about completing 90 days a detention before a charge sheet was submitted. In this case the police has shown the arrest of the accused on 8-1-84, while his identification parade had already been conducted for the purposes of this case on 16-12-83, while he was under custody in some other case. Challan was filed on 26-3-84 i. e. within 90 days from the date of arrest shown on 8-1-84, but if computed from the date of identification parade it was clearly beyond the period of 90 days. The court held that he should be deemed to have been arrested on the date his identification parade was conducted and as such the challan was submitted beyond a period of 90 days, and he was entitled to be released under S. 167 (2) Cr. P. C. The learned Judge though did not assign reasons but obviously it can be read that act of holding the identification parade in a particular case could only be when he was lodged in jail for the purpose of investigation in that case. When the police gets the identification parade inside the jail through the person is lodged in jail yet he is deemed to be in police custody. Thus, in that case the custody of the accused had already been given to the police for the purpose of investigation. Both the parties have failed to show me from the record that at any time the accused has been brought in notional or constructive custody of the Rajasthan Police. Merely because an application was moved and production warrant was issued it cannot be said that accused had been in the custody of Rajasthan Police for invoking the provisions of S. 439 Cr. P. C. , because if this interpretation is given to S. 267 Cr. P. C. then it would be impossible for the police to investigate the case because from the date of issuing of the production warrant the accused has already been in custody for 90 days in Agra and, therefore, he should otherwise be released under the provisions of S. 167 (2) Cr. P. C. and in that matter in certain cases mischief can also be played. In serious cases that of dacoity and murder like the present case where not only the identification parade has to be got conducted but investigation regarding the recovery of weapons of offence and the recovery of the property involved in dacoity is to be elicited from the accused it cannot be done unless his custody is given to the Rajasthan Police. Therefore, for invoking the provisions of S. 439 Cr. P. C. I am in agreement with the view taken by the learned Sessions Judge that there is no constructive custody of the accused or the notional custody for invoking the provisions of S. 439 Cr. P. C. The word 'in custody' used in S. 439 Cr. P. C. has to be given a narrow meaning for the purpose of interpreting section 267 Cr. P. C. otherwise it would not only frustrate the underlying object of S. 167 Cr. P. C. but would result in anomalous position and it would be impossible to carry on the investigation in a particular case if the accused is in custody in some other case in some other District or in some other State. Therefore, unless it is demonstrated from the diary that the accused's custody can be inferred from the record for any purposes whatsoever of the investigation, then he can be deemed to be in custody, but only because the production warrant is issued he cannot be considered to be in custody. For the reasons mentioned above, I find no force in this application and is dismissed. .;