S. B. MAJMUDAR, J.

( 1 ) THE petitioner has challenged in this petition under Articles 226 and 227 of the Constitution of India an order passed by the learned Executive Magistrate Ahmedabad city calling upon three persons produced before him by the police to furnish bail in the proceedings under sec. 107 of the Code of Criminal Procedure.

( 2 ) IN order to appreciate the nature of controversy raised for our consideration it is necessary to glance through a few relevant facts.

( 3 ) DURING the recent agitation with respect to reservation of seats in medical colleges one Narendra Chandrashanker Jha along with one Jayesbhai Dhanandebhai Shukla and Bharatbhai Arvindbhai leave was sitting at about 9-30 a. m. on 26-3-1981 at the foot of the statue of Mahatma Gandhi located near the Income-tax cross-roads in the city of Ahmedabad. It was alleged that these three persons were shouting slogans. The Police Sub-Inspector Navrangpura Police Station who is respondent no. 1 in this petition arrested these three persons at about 10 a. m. on that very day in exercise of his power under sec. 151 of the Code of Criminal Procedure 1973 Respondent No. 1 thereafter produced them before the Executive Magistrate for Ahmedabad city who is respondent No. 2 in the present proceedings. Respondent No. 1 submitted before respondent No. 2 that proceedings be commenced against these three persons under sec. 107 of the Code of Criminal Procedure and proper sureties be taken from them. Respondent No. 2 instead of releasing these three persons sent them with respondent No. 1 with a direction to send them to Sabarmati Jail as per his impugned order.

( 4 ) IT is the case of the petitioner that the petitioner and his advocate who were present at the relevant time were informed that these three persons will be produced next day and thereafter they will be released on bail. On the next day i. e. on 27-3-1981 in the morning the petitioner went to court of the second respondent and at about 11 a. m. he learnt that the said three persons were not to be produced on that day and they were to be produced before the second respondent on 30 The aforesaid order of the second respondent has been challenged in the present petition.

( 5 ) THE aforesaid facts of the case are not in dispute. Respondent No. 1 and respondent No. 2 have filed their affidavits-in-reply. Respondent No. 1 in his affidavit-in-reply has staled that on 26-3-1981 he was attached to a mobile van which was meant for the purpose of attending to emergency work and he was at the relevant time working at the Navrangpura police station. He stated that he had arrested the concerned three persons on the day of occurrence in exercise of his power under sec. 151 of the Code of Criminal Procedure. He further stated that thereafter he took these persons to Navrangpura Police Station and a criminal complaint under sec. 107 of the Code of Criminal Procedure was recorded by him against all the three persons bearing case No. 20 of 1981 at Navrangpura Police Station. Thereafter these persons were produced with relevant papers before the Executive Magistrate Shri R. R. Shukla at 9 a. m. and as they refused to offer any bail the Executive Magistrate was pleased to direct the first respondent to taken them to jail and therefore they were taken to Sabarmati Central Jail. Respondent No. 2 Executive Magistrate for Ahmedabad City in his affidavit-in-reply states that at 9 p. m. on 26-3-1981 respondent No. 1 had produced the three persons viz.

( 6 ) MR. Jha Mr. Shukla and Mr. Dave at his residence and he had come alongwith a complaint that was made under sec. 107 of the Code of Criminal Procedure. That an inquiry was made from those three persons as to whether they were willing to be released on bail but they refused to be released on bail and therefore the only alternative that was left to him was to send them to jail. That all the times he was willing to release them on bail but they refused. On 27-3-1981 Mr. Dave and Mr. Shukla

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