Heard Sri.Prasanna Rao R, learned counsel for the

petitioners and learned High Court Government Pleader for

the respondent-State and perused the records.

2.

The present petition is filed under Section 439

Cr.P.C.

3.

It is submitted that the present petitioners are

not arrested in Crime No.72/2021. However, the petitioners

3

are facing trial in another Crime No.59/2021 by Jayanagar

Police Station, Tumakuru.

4.

It is contended that the present petitioners have

been produced before the trial Court in this case under the

pretext of body warrant (Production of body warrant as is

contemplated under Section 267 Cr.P.C.,) which reads as

under:

267. Power to require attendance of

prisoners.

(1) Whenever, in the course of an

inquiry, trial or other proceeding under this

Code, it appears to a Criminal Court,-

(a) that a person confined or detained in

a prison should be brought before the Court for

answering to a charge of an offence, or for the

purpose of any proceedings against him, or

(b) that it is necessary for the ends of

justice to examine such person as a witness,

the Court may make an order requiring the

officer in charge of the prison to produce such

person before the Court for answering to the

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charge or for the purpose of such proceeding

or, as the case may be, for giving evidence.

(2) Where an order under sub- section

(1) is made by a Magistrate of the second

class, it shall not be forwarded to, or acted

upon by, the officer in charge of the prison

unless it is countersigned by the Chief Judicial

Magistrate

to

whom

such

Magistrate

is

subordinate.

(3)

Every

order

submitted

for

countersigning under sub- section (2) shall be

accompanied by a statement of the facts

which, in the opinion of Magistrate, render the

order

necessary,

and

the

Chief

Judicial

Magistrate to whom it is submitted may, after

considering

such

statement,

decline

to

countersign the order.

5.

Section 439 Cr.P.C reads as under:

439. Special powers of High Court or

Court of Session regarding bail.

(1) A High Court or Court of Session may

direct-

5

(a) that any person accused of an

offence and in custody be released on bail, and

if the offence is of the nature specified in

subsection (3) of section 437, may impose any

condition which it considers necessary for the

purposes mentioned in that sub- section;

(b) that any condition imposed by a

Magistrate when releasing an person on bail be

set aside or modified: Provided that the High

Court or the Court of Session shall, before

granting bail to a person who is accused of an

offence which is triable exclusively by the

Court of Session or which, though not so

triable, is punishable with imprisonment for

life, give notice of the application for bail to the

Public Prosecutor unless it is, for reasons to be

recorded in writing, of opinion that it is not

practicable to give such notice.

(2) A High Court or Court of Session may

direct that any person who has been released

on bail under this Chapter be arrested and

commit him to custody.

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6.

On conjoint reading of both the provisions, it is

crystal clear that, to entertain the petition under Section 439

Cr.P.C, a person must be arrested and detained in the

custody is a sine qua non factor.

7.

Since, there is no formal arrest in the case on

hand and the present petitioners are detained under the

pretext of body warrant issued under Section 267 Cr.P.C,

with liberty to the petitioners to file an appropriate

application, the present petition stands disposed of.

Sd/-

JUDGE

GH