ORDER :

S.NAGAMUTHU, J.

In every "arrest" there is "custody", but not vice versa. Whether in every "formal arrest" there is "custody", as embodied in Article 22(2) of the Constitution of India and Section 57 of the Code of Criminal Procedure, is the interesting issue involved in this Criminal Original Petition.

2. The respondents herein are the accused in Crime No.27 of 2011, on the file of the Anti Land Grabbing Special Cell, City Crime Branch, Trichy, for offences punishable under Sections 147, 148, 365, 307, 427, 294(b) and 506(ii) IPC r/w Section 3 of PPDL Act. Apart from the same, they have been arrayed as accused in two other cases, in Crime Nos.24 of 2011 and 26 of 2011, on the file of the very same police. In the cases, in Crime Nos.24 of 2011 and 26 of 2011, the respondents were arrested and on the orders of remand passed by the learned Judicial Magistrate No.IV, Trichy, they were detained in the prisons in Cuddalore, Palayamkottai and Salem, respectively.

3. While so, in connection with Crime No.27 of 2011, the petitioner/Investigating Officer effected "formal arrest" of the first respondent, on 03.10.2011, at 9.00 a.m. in the prison. Similarly, he effected formal arrest of the respondents 2 and 3, on 03.10.2011, at 3.15 p.m. and 4.55 p.m., respectively. Thereafter, the petitioner rushed to Trichy and on 04.10.2011 made a request to the learned Judicial Magistrate No.V to issue warrant [hereinafter referred to as "P.T warrant" - Prisoner Transit warrant], as per Section 267 of the Code of Criminal Procedure. On considering the same, the learned Magistrate issued warrants directing the respective jail authorities to produce the respondents, on 07.10.2011, obviously, because 05.10.2011 and 06.10.2011 were holidays. Accordingly, the respondents were produced before the learned Magistrate, by the jail authorities, in pursuance of the P.T.Warrants issued on 07.10.2011. But the learned Magistrate No.V was on casual leave on that day and the learned Judicial Magistrate No.IV, [hereinafter referred to as "in- charge Magistrate"], was in full charge of the said Court. The learned in charge Magistrate, heard the representation of the accused, as well as the Public Prosecutor and passed the following order:-

"ORDER: 07.10.2011 at 02.30 P.M.

Formal arrest made on 3.10.11. Requisition for P.T. Warrant given on 4.10.11 in view of holidays concerned Magistrate directed to produced the accused on 7.10.11 on P.T. Warrant. Hence accused produced on P.T.Warrant. Grounds of arrest explained. Right of Legal Aid Explained. Considering the circumstance of the Court holiday on 5.10.11 & 6.10.11 as well as Casual Leave of regular Magistrate on 7.10.11 this court not inclined to remand the accused on Judicial custody in view of available records. Produce the accused before concerned Magistrate on 10.10.11 for further suitable Order in this regard. Hence accused to be produced before regular Magistrate on 10.10.2011."

The said order was not challenged by any party to the proceedings. Thereafter, as directed by the said Magistrate, the respondents were produced before the learned Judicial Magistrate No.V, on 10.10.2011. At that time, again the petitioner submitted a request to the learned Magistrate to pass an order of remand to all the three respondents, as provided under Section 167 Cr.P.C.

4. Pausing for a moment, it is necessary to mention that in the mean while, the accused were granted bail in the cases relating to Crime Nos.24 of 2011 and 26 of 2011. Despite their release on bail in those two cases, the respective jail authorities did not set them at liberty, on 08.10.2011. Alleging that such detention of the respondents in prison without any authorisation from the Court amounts to illegal detention, the wife of the second respondent herein filed H.C.P.(MD)No.913 of 2011 before this Court, on 10.10.2011, to set all the respondents herein at liberty and the same is pending.

5. Reverting back to the proceedings before the Magistrate on 10.10.2011,