ORDER :

The present petition is filed under Section 439 of Cr.PC., with the following prayer:

“Wherefore, the above named petitioners 1 and 2 most respectfully pray that this Hon’ble Court be pleased to order for release of the above petitioners 1 and 2/accused Nos.1 and 3 on bail in Crime No.20/2021 of Jayanagara Police Station, Tumkur, for the offence punishable under Section 392 of the Indian Penal Code, which is now pending before the learned IV Addl. Civil Judge (Jr.Divn.) and 5th J.M.F.C., at Tumkur and pass such other order/s as this Hon’ble Court deems fit under the circumstances of the above case, in the interest of Justice and equity.”

2. Brief facts of the case are as under:

The petitioners herein were arrested by the Police of New Extension Town Police Station, Tumakuru on 06.12.2021 in respect of Crime No.87/2021. They were sent to judicial custody. Thereafter, Jayanagar Police, Tumkuru, registered a case in Crime No.20/2021 against the petitioners. Since the custodial investigation of the petitioners was necessary in Crime No. 20/2021, Jayanagar Police filed an application before the Jurisdictional Magistrate in Crime No. 20/2021 seeking custody of the petitioners as is contemplated under Section 267 Cr.P.C., on 08.12.2021. The said application was allowed on 27.12.2021 and thereafter, the custody of the petitioners was granted to Jananagar Police Station for the period from 29.12.2021 to 30.12.2021. Admittedly, the said order came to be passed by exercising the powers vested with the learned Trial Magistrate under Section 267 Cr.P.C. The order of handing over the custody of the petitioners to Jayanagar Police in respect of investigation in Crime No. 20/2021 from custody in Crime No. 87/2021 was as per Form No.36 of Cr.P.C. On completion of the custodial investigation, the petitioners were sent back to the judicial custody in Crime No.87/2021.

3. The petitioners were enlarged on bail by order dated 18.01.2022 in Crime No.87/2021. However, the petitioners were not released by the jail authorities though they had the benefit of grant of bail in Crime No. 87/2021 purportedly on the ground that there is a body warrant issued by the learned Magistrate in respect of Crime No.20/2021.

4. Therefore, the petitioners approached learned District Judge for grant of bail under Section 439 of Cr.P.C. in Criminal Misc. Petition No.66/2022. Learned III Addl. District and Sessions Judge, Tumakuru after hearing the Public Prosecutor, on merits dismissed the application filed under Section 439 of Cr.P.C. Thereafter, the petitioners are before this Court with the aforesaid prayer.

5. Learned counsel for the petitioners vehemently contended that the petitioners are entitled to be enlarged on bail in view of the fact that they have been enlarged on bail in Crime No. 87/2021 by order dated 18.01.2022 and petitioners are continued in custody on the basis of the body warrant issued in Crime No. 20/2021.

6. The same is opposed by the learned High Court Government Pleader stating that the petitioners are known criminals.

7. Apart from the merits of the matter, while hearing the parties, this Court raised a technical point to be satisfied on behalf of the petitioners inasmuch as the petitioners were not at all arrested and sent to judicial custody in respect of Crime No. 20/2021 as such, how a bail petition is maintainable under Section 439 Cr.P.C. In reply to the same learned counsel for the petitioners, contended that though they are not arrested, the Jail Authorities are not releasing the petitioners on the ground that there is a body warrant issued in Crime No. 20/2021.

8. In order to appreciate the said aspect of the matter, it is necessary for this Court to cull out the provisions of Sections 439 and 267 of Cr.P.C., which reads as under:

“439. Special powers of High Court or Court of Session regarding bail.

(1) A High Court or Court of Session may direct –

(a) that any person accused of an offence and in custody be released on bail, and if the o