K.S. LODHA, J—This application for bail u/s 439 Cr. P. C. has been filed on behalf of Dewa Ram, who is facing trial for an offence u/s 302 I. P.C. before the Court of Sessions at Merta. The matter earlier came up before me on 16. 6. 83 and on that date, it was found that the case was fixed for recording the evidence of the eye witness Jhumar Ram on 25.6.83. Therefore, the hearing of the bail application was postponed. The matter then came up on 29.6.83 and it was found that on 25.6. 83, the learned Sessions Judge was on leave and, therefore, the aforesaid eye witness could not be examined and that the case had been adjourned to 6.7.83. It was, therefore, directed that the bail application may be listed for hearing on 8. 7. 83. A direction was given to the learned Sessions Judge to see that the witness is examined before that date. It was also observed that in case the witness is not so examined, the bail application will be heard on that date. In the meantime, the learned counsel for the petitioner moved an application raising an additional ground for bail. It was contended that on 25.6.83, the learned Sessions Judge was on leave and had not authorised the learned Addl Sessions Judge of the learned Chief Judl. Magistrate or the learned Addl. Chief Judl. Magistrate u/s 10 (3) Cr. P. C. while the learned Addl. Chief Judl. Magistrate adjourned the case and remanded the accused to custody upto 6.7.83 and, therefore, the detention of the accused from 25. 6.83 to 6.7.83 was illegal and on that account, he is entitled to bail. In this respect, the relevant material was sent for from the learned Sessions Judge. It appears that it took undue long time in getting the same and even after the receipt of that material, the case was got adjourned for one reason or the other. It has now come up for hearing.

2. So far as the question of release of the accused on bail on the merits of the case is concerned, the learned counsel has tried to point out certain inherent weaknesses of the prosecution story but looking to all the facts and circumstances of the case, at this stage I am not prepared to enlarge the accused on bail as the main eye witness Jhumar Ram, who is also the first informant, has not been examined as yet it may be mentioned here that a perusal of the order sheets of the learned Sessions Judge would reveal that the prosecution alone cannot be said to be wholly responsible for the delay in the examination of this wit-ness. It appears that even after the direction of this Court dated 29.6.83, the witness could not be examined on same dates, because incidentally on the same dates, knowingly or unknowingly the bail application was got fixed for hearing before this court and on that account probably the case diary was not available there. Be that as it may, the fact remains that Jhumar Ram has not been examined and in the circumstances of the case, at this stage, it would not be proper to enlarge the accused on bail. I would also not, therefore, like to discuss the alleged infirmities of the case at this stage.

3. Now coming to the additional ground, it may be stated that the question whether on account of the alleged illegal detention for some period, of the accused though thereafter he may have been remanded to custody by a proper; valid order should or should not be a ground for release of the accused on bail, has been a matter of divergent opinions before this Court. In Rati Ram vs. State of Raj. (1), a learned single Judge of this Court was of the view "once an order of remand expires and a fresh order of remand is not passed then the detention becomes illegal, The liberty of an individual is guaranteed under the provisions of the Constitution. By a subsequent order of remand for a subsequent period, the previous order of detention which was patently illegal, cannot be cured. However, it is argued that the subsequent detention justified by orders of remand would cure all illegal detention. If this argument is accepted as such then t

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