An application for bail under Section 439 of the Code of Criminal Procedure, 1973 is not maintainable in a case of illegal detention.

Surendra Narain Jha, J.

1. This is an application under Section 439 of the Code of Criminal Procedure, 1973 (hereinafter called the Code) for grant of bail to the petitioner who is an accused in a case under Section 307/34 of the Indian Penal Code and 27 of the Arms Act.

2. The prosecution case, in short, is that on 20-11-1983 at about 2-35 P. M. one Devendra Prasad Singh made a Fardbeyan alleging, inter alia, that at about 12 noon the same day while he was standing near the gate of the Hospital, the petitioner came to him and the informant asked the petitioner whether he would pay the money to one Bipin or not, on which the petitioner replied in negative as a result of which an altercation took place between the two. It was further alleged that thereafter the petitioner went to his house and came back with a rifle accompanied by his two brothers. Further allegation is that the petitioners younger brother aimed to fire a pistol at the informant, but the pistol could not be fired and the informant caught hold of the pistol, but another brother snatched the same. Thereafter, it is alleged that the petitioner fired from his rifle which hit in the stomach of the informant. On the basis of this Fardbeyan, the first information report was drawn up and a case was instituted and after investigation, charge-sheet was submitted on 26-5-1984 on the basis of which cognizance was taken.

3. The petitioner, having come to know about the institution of the case, surrendered before the Additional Chief Judicial Magistrate Barh, on 29-12-1983 and prayed for bail which was rejected and the petitioner was remanded to jail custody. Thereafter, the petitioner moved an application for bail before the Sessions Judge, Patna, which was numbered as Criminal Miscellaneous (Bail) Case No. 28 of 1984 and the learned Sessions Jugde, pending disposal of the said bail application, by order dated 6-1-1984 granted provisional bail to the petitioner to enable him to appear at the B. Com. Examination, and the period of provisional bail was extended from time to time and after expiry of the period of provisional bail, the petitioner surrendered before the Session Judge, Patna, on -9 7-1984 on which date, the learned Sessions Judge, who, after hearing the bail application, on merit, rejected the prayer for bail vide order dated 9-7-1984 and remanded the petitioner to jail custody with a direction to produce the petitioner before the court concerned on 23-7-1984. It is relevant to mention here that the petitioner moved this Court for bail in Criminal Miscellaneous No. 7013 of 1984, which was also dismissed on merit vide order dated 13-8-1984. Now, the the present application has been filed purely on the point of law which was neither raised nor considered by this Court at the time of the dismissal of the petitioners earlier bail application, mentioned above.

4. Learned Counsel appearing on behalf of the petitioner submitted that the petitioners detention after 23-7-1984 was illegal and violative of the mandatory provisions of Section 309 (2) of the Code and thus the petitioner is entitled to be realeased from the custody forthwith.

5. In order to appreciate the point raised by the learned Counsel, it is essential to look into the provisions of Section 309 of the Code, which lays down

"(1) In every inquiry or trial, the proceedings shall be held as expeditiously as possible and in particular when the examination of witnesses has once begun, the same shall be continued from day to day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded.

(2) If the Court, after taking cognizance of an offence, or oommencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such