IMPORTANT POINT
Once an order of remand expires and a fresh order of remand is not passed then the detention becomes illegal and the accused are entitled to be enlarged on bail.

JUDGMENT

P. D. Kudal, J. - These two bail petitions under Section 439 Criminal Procedure Code, 1973, raise a common question of law and as such both of these petitions are disposed of by the single order.

2. It has been contended on behalf of the accused petitioners that the detention of the accused petitioners in custody had become illegal as no order of remand was specifically passed on certain dates. The contention of the counsel for the accused-petitioners is that once the detention of the accused in custody becomes illegal and the accused petitioner is entitled to be set at liberty, then any subsequent conduct or order passed by the Magistrate will not validate an illegal detention. It has been further contended that the liberty of an individual under the Constitution is unavoidable and once the said procedure has not been followed and the detention of the accused becomes illegal then he is entitled to be released on bail. Learned counsel for the accused petitioners has placed reliance on Chhitar and others v. The State of Rajasthan1.

3. Learned Public Prosecutor appearing on behalf of the State has opposed the bail petitions. His contention is that if by subsequent orders of remand the detention of the accused petitioners has become legal then, the accused petitioners are not entitled to be enlarged on bail. Learned Public Prosecutor on behalf of the State further placed reliance on Kana v. The State2, and Ram Narain Singh v. The State of Delhi and others3.

4. The respective contention of the learned counsel for the petitioners and the learned Public Prosecutor have been considered and the record of the case carefully perused.

5. In Ram Narayan Singh's case (supra) it has been held that:

"Detention of person is custody after the expiry of remand order, without any fresh order of remand committing him to further custody while adjourning the case under Section 344, Criminal P. C. is illegal".

6. In Kana's case (supra) it has been held as under:

"It is only the court, which can by warrant, remand the accused if he is in custody, to judicial custody, and the Reader of the court has no power to remand the accused to judicial custody under section 389 (2) Cr. P. C. Therefore the remand of the accused by the reader of the Court on 15-9-78, 20-9-78 and 27/11/78 and 22/12/78 cannot be said to be in accordance with law and the custody of the accused can not be said to be legal. It may be observed here that a practice appears to have developed in court in Rajasthan, that in the absence of the Presiding Officer and even at times in his presence; the Reader of the Court remands the accused to judicial custody by mentioning "By Order" section 309(2), Cr. P. C. only empowers the court to remand the accused by a warrant and the power of the court cannot be delegated to the Reader of the court. Therefore, the sooner this practice is stopped, the better it will be, otherwise, in case of remand of the accused to judicial custody by the Reader of the court, the detent ion of the accused will be illegal."

7. Reliance was placed by the learned Counsel for the accused petitioners on Chhitar and others' case (Supra) in which it has been held as under:

"This is a case where the record produced before this court no where shows that there was any order of the accused petitioner to judicial custody after one which was passed on 28-1-79 and which lasted upto 31-1-79. That being so, the accused cannot be kept behind the bars in jail any further and the bail application of the accused deserved to be accepted, on the short but surest ground of illegal detention without going into the merits of the case. Since this is a new ground it was neither raised earlier in the previous bail application nor considered, the court is justified in considering the second bail application afresh".

8. From the proceedings in these two cases it is apparent that at certain point of time the accused remained in custody without any legal order of remand passed by the Magist