JUDGMENT

NATARAJAN, J. :— This appeal by special leave against an order of a learned single Judge of the Andhra Pradesh High Court in a petition filed under Section 439(2) of the Code of Criminal Procedure (hereinafter referred to as the Code) calls for a critical examination of the scope and effect of proviso (a) to Section 167(2) of the Code. Several High Courts have rendered decisions construing differently the terms of the proviso but a need for the examination of the terms of the proviso by this Court had not arisen till now.

2. The circumstances which form the prefatory for this appeal can be summarised as under.

The hamlet of Madigawada in Village Karamchedu in Andhra Pradesh was the scene of a horrendous riot on the morning of July 17, 1985. The riot culminated in a toll of human lives and huge destruction of property. Five persons were left dead, twenty others were victims of injuries of varying degrees, properties were looted and hutments were damaged or destroyed.

3. In connection with the macabre events the police authorities arrested 94 persons including the appellants herein and had them remanded to custody. The appellants were arrested in the forenoon of July 19, 1985 a