Illegal detention of an accused person does not, per se, entitle him to be released on bail.

K. S. SIDHU J.

( 1 ) THIS Full Bench has been constituted to deal with a number of connected references, calling for answers to certain questions of law, arising out of several bail applications pending before different Single Benches of this Court. We may state here a few facts which would be helpful in appreciating the background resulting in the making of these references, and defining for ourselves the exact nature of the controversy.

( 2 ) MAHESH Chand, Soveran Singh, Srichand and Sajjan Singh are the petitioners, respectively, in the applications listed at serial numbers 1 to 4 in the title above. Mahesh Chand is one of the accused in a case registered by the police under Ss. 394 and 397 I. P. C. He was arrested in this case on Sept. 27, 1983. Sovaran Singh, Srichand and Sajjan Singh were arrested in three separate cases under S. 302 I. P. C. on April 17, Aug. 13 and Sept. 7, 1983 respectively. After the rejection of his application for bail by the Sessions Judge, Mahesh Chand applied to this Court for release on bail on grounds, inter alia, that the Magistrate concerned remanded him to custody under S. 167 Cr. P. C. in contravention of the mandatory provisions of that section inasmuch as he had not been produced before the Magistrate for such remand, and that subsequently, the Magistrate added to the said illegality by extending his custody without there being any application made before him for such extension and without recording any reasons for the extended remand.

( 3 ) SOVERAN Singh and Srichand also made similar applications under S. 439 Cr. P. C. before this Court pleading that their detention in custody during certain periods of time, prior to the making of the said applications, was unauthorised and illegal, and praying that therefore they are entitled to be released on bail on that ground alone. They added in this context that any subsequent order of remand, even if validly made in compliance with the provisions of S. 167, 209 or 309 Cr. P. C. as the case may be, will not cure the earlier illegal detention and that their right to be released on bail springing from such illegal detention is not destroyed or taken away by the orders, subsequently made in compliance with the relevant provisions of law, authorising their detention in custody.

( 4 ) SAJJAN Singh made his application under S. 439 Cr. P. C. on slightly different grounds. He complains that after his arrest on Sept. 7, 1983 he was continually remanded to custody by the Magistrate at Bayana, having jurisdiction in the local area, till Dec. 7, 1983 and that since the total period of the detention so authorised under S. 167 Cr. P. C. exceeded ninety days, he is entitled to be released on bail on that ground. It is common ground between the parties that on completion of investigation in this case the police presented the charge-sheet under S. 170 read with S. 173 Cr. P. C. against Sajjan Singh in the Court of the Chief Judicial Magistrate of the district concerned (Bharatpur) on Dec. 3, 1983, i. e. , well within a period of ninety days from the date of the arrest of the accused and that he took cognizance of the offence on Dec. 3, itself. The grievance of the accused, however, is that he was not produced before the Chief Judicial Magistrate on Dec. 3 and that even otherwise no formal order was passed by the Chief Judicial Magistrate on the even date, postponing the commencement of the enquiry and remanding him to custody, as required under S. 309 Cr. P. C. He further complains that since the Magistrate at Bayana, having jurisdiction in the local area, had already been seized of the proceedings in the case under S. 167 Cr. P. C. the police could not have lawfully presented the charge-sheet in the court of the Chief Judicial Magistrate of the district and that in any case the latter had no jurisdiction to take cognizance of the offence on the basis of a charge-sheet which did not legally belong in his court. In other words the argument is that th