The word "custody" in Section 309(2) of the Criminal Procedure Code means imprisonment both legal and illegal.

( 1 ) THE applicant filed an application for bail on 26/8/1983 under section 439 Criminal Procedure Code. It is stated in the application that a charge sheet was submitted against the applicant on 31/1/1983 under Sections 302/1491148/147 Indian Penal Code in the Court of Munsif Magistrate III, Haldwani. The case of the applicant was committed to the Court of Sessions on 26-2-1983 under Section 209 Criminal Procedure Code and on the same day a warrant was issued by the learned Magistrate in which it was mentioned that the applicant be produced before, the Court of Sessions on 103. 1983. In the aforesaid warrant it was not mentioned that the applicant was remanded to custody during and until the conclusion of the trial.

( 2 ) IT is mentioned in the order sheet of the II Additional Sessions Judge, Nainital that on 1/3/1983 the committal order dated 26/2/1983 was received from the Court of III Additional Munsif Magistrate Haldwani along with the calender and the record of the case against the applicant and it was ordered that the case be registered and the file be put up for fixing the date of hearing in the near future. The case was again put up for orders on 16/4/1983, 19/4/1983 and 17/5/1983 but no custody warrant was issued against the applicant directing his detention in jail during this period. It was on 14/6/1983 that for the first time a custody warrant under section 309 (2) Criminal Procedure Code was issuedt by the learned Judge for detaining the applicant in custody till 27. 6. 1983 and for his production before the Court on that date. Subsequently on the same custody warrant orders were passed by the learned Judge on 27. 6. 1983, 23. 7. 1983, 25. 7. 1983, 22. 8. 1983 and 23. 8. 1983 directing the production of the applicant in court on subsequent dates of hearing.

( 3 ) IT is clear from the above mentioned facts that no custody warrant was issued for the detention of the applicant in jail under section 309 (2) Criminal Procedure Code between 10. 3. 1983 and 14. 6. 1983. It, therefore, follows that the detention of the applicant in jail during this period was illegal and unlawful.

( 4 ) IT was contended on behalf of the applicant before one of us who heard the bail application of the applicant while sitting single that the applicant could not be remanded by warrant to custody on 14. 6. 1983 and thereafter on 23. 7. 19. 83, 25. 7. 1983, 22. 8. J983 and 23. 8. 1983 under section 309 (2) Criminal Procedure Code as he was not in legal custody on 14. 6. 1983. The detention of the applicant in jail is thus illegal. The applicant is, therefore entitled to be released on bail. In support of his contention the learned counsel for the applicant relied on Han Prasad Dubey Tyagi v. District Magistrate Farrukhabad U. P. and others1 in which it bas been held by a Division Bench of this Court. The custody contemplated under section 309 (2) must, in the circumstances, mean legal custody. The power under section 301 (2) Criminal Procedure Code to remand the undertrial to custody cannot be exercised if at the time of making of the order the undertrial is not in legal custody. The above mentioned view of this Court has been followed by this Court in Mahesh Chandra Aliav Pappu v. Adhikshak Janpad Karagar, Nainital and another2, Raghvendra Singh v. State and another3 and Kamlesh Kumar Dixit v. State and others4.

( 5 ) AS the single Judge who heard the bail application of the applicant was unable to, agree with the view taken by this Court in the above mentioned cases he referred the under mentioned question for decision by a Full Bench. Whether the word Tcustody used in Section 309 (2) Criminal Procedure Code means imprisonment both legal and illegal? We are required to answer this question.

( 6 ) SECTION 309 (2) Criminal Procedure Code is as follows: If the court, after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial