JUDGMENT 1. - This is to decide the bail application under Section 439 Cr.P.C. by the petitioners on the ground that they had been illegally detained without there being any remand order against them from 5.10.81 onwards. 2. Briefly stated the relevant facts giving rise to this petition are that the petitioners, alongwith a few others were arrested in a case registered against them under Sections 302, 307, 120-B. I.P.C. and Section 27 of Arms Act. The date of appearance of the petitioners in the court was fixed to be 5.10.81 by the learned Munsif & Judicial Magistrate, Suratgarh. On that date the petitioners were present under custody. Other accused on bail were also present. The Presiding Officer (was on leave and the Reader of the court asked the person bringing the petitioners in the court to seek remand from the Competent Magistrate and fixed the case for 13.10.81. On 13.10.81 neither the four petitioners were kept present nor their warrants were produced in the court for orders. The F. C. presented a tahrirand was intimated of the next date being 26.10.81. On 26.10.81 neither the petitioners were kept present nor their warrants were received from jail. The learned Magistrate therefore called for the explanation of the Assistant Jailor, Raisinghnagar and fixed 10.11.81 as the date for awaiting the case file, which at the time was in the court of Additional District & Sessions Judge, Raisinghnagar. An application was filed in the court of Additional District & Sessions Judge, Raisinghnagar by the petitioners with a prayer that as they were being unlawfully detained in custody since 5.10.81 onwards, they should be released on bail. The submission did not find favour with the Additional District & Sessions Judge and the application was rejected. In the present application, the petitioners have come with a case that their detention from 5.10.81 till today is illegal and, therefore, an order for bail should be passed. 3. The learned counsel for the petitioners submitted that there was no order by any competent Magistrate on 5.10.81 and the order dated 13.10.81 clearly shows that neither the petitioners were produced from jail on that date, nor their warrants presented for orders before the Magistrate concerned and, therefore, on this count alone the petitioners are entitled to an order of bail. The learned counsel has also referred to the order dated 26.10.81 and submitted that during all this period till today, there is no order to indicate that the illegal detention at a time has been regularised subsequently. 4. The lerrned Public Prosecutor assisted by Mr. Bhagwati Prasad, learned counsel for the complainant has controverted these arguments and made two submissions. Firstly, such an application is not entertainable under Section 439 Cr. P. C. because the petitioners have challenged the legality of the custody. Secondly, there is nothing on record to show as what happened subsequent to 26.10.81. It has also been stressed that this Court cannot pass the order for appearance of the petitioners when the Magistrate concerned himself did not think it proper to pass such an order on 26.10.81. Yet another contention raised is that this Court on 19.6.81, while deciding a previous application S. B Criminal Misc. Appeal No. 115/1981 against the order passed by the Additional Sessions Judge, Raisinghnagar dated 3.2.81, has arrived at a conclusion that the application should have been decided by that court under Section 43 9(1) Cr. P. C. and, therefore, this Court should not interfere in the order passed by the learned Additional Sessions Judge dated 26.10.81 as the same has not been passed on merits. 5. At the very out-set, I may observe that the above referred order dated 19.6.81 related to certain other dates prior to 5.10.81 on which according to the petitioners no order for remand was passed. The learned Judge, passing the aforesaid order, had opined that the illegal detention, even if any, was regularised by subsequent order. In that view of the matter, the order of the Additional Sessions Judge dated February 3, 1981, enlarging the petitioners on bail was set aside and it was ordered that the Additional Sessions Judge shall hear the matter under Section 439 (1) Cr. P. C. That order no where speaks about the non-entertainability of such a petition under Section 439 Cr. P. C. 6. This is correct that the order dated 26.10.81 passed by the Magistrate concerned, was not before the Additional Sessions Judge when he decided the application of the petitioners on that date as there the petitioners had assailed the finding regarding the alleged illegal detention upto 13.10.81. P. C. 6. This is correct that the order dated 26.10.81 passed by the Magistrate concerned, was not before the Additional Sessions Judge when he decided the application of the petitioners on that date as there the petitioners had assailed the finding regarding the alleged illegal detention upto 13.10.81. I consider it proper to take into consideration the subsequent order of Magistrate dated 26.10.81 and, in my opinion, that it would simply be harrassment to the petitioners if they are directed to move the learned Additional Sessions Judge in view of the order dated 26.10.81 passed by the Magistrate. 7. Whether the order dated 5.10.81 passed by the Reader, entitles the petitioners to be released on bail on the ground of illegal detention, depends upon the construing of the order dated 13.10.81. If the latter order indicates that remand order was given subsequently then the illegal detention between 5.10.81 and 13.10.81 because of there being no remand order by a competent officer, would become legal from 13.10.81. The `Tahrir filed by F. C. on 13.10.81, referred to in the order-sheet of that day mentions that the four petitioners had been advised rest by the Doctor on account of fever and Diarrhoea and, therefore, they were incapable to attend the court. A prayer has been made for intimating the next date so that the accused may be produced in the court. Though, there is no specific order on 13.10.81 that on 26.10.81 the accused may be produced, still in view of the request of the F. C. in the Tahrir, I am of the opinion, that it serves the purpose and the order dated 13.10.81 may be considered to be an order of remand upto 26.10.81. 8. The order dated 26.10 81 passed by the concerned Magistrate is clear on the point that neither the petitioners were produced before the court on that day, nor their warrants presented for any order. The learned Magistrate in that view of the matter called the explanation of the Assistant Jailor, Raisinghnagar. I find myself unable to subscribe to the contention of the learned Public Prosecutor that as that order does not state about the accused being kept present, it cannot be said that the Jail Authorities were at a fault in not producing the accused before the court so as to bring their case within the ambit of illegal detention. I find myself unable to subscribe to the contention of the learned Public Prosecutor that as that order does not state about the accused being kept present, it cannot be said that the Jail Authorities were at a fault in not producing the accused before the court so as to bring their case within the ambit of illegal detention. Similarly, the contention that the Jail Authorities must have sent some explanation is also devoid of force. I have sent for the record containing the orders of remand to jail of these petitioners. The last order by the court is dated 5.10.81. In view of the order-sheet dated 13.10.81, I have considered that upto 26.10.81, there was no right accruing to the petitioners to claim to be enlarged on bail on the ground of illegal detention. But subsequent to 26.10.81 there is no order of any court, granting remand to keep the petitioners in custody, and, therefore, they have every legitimate right to seek a relief from this Court in that concern. I am strengthened in my views by the pronouncement of this Court in the case of Chhitar & Others. v. The State of Rajasthan, (1979) Cr.L.R. (Raj.) Suppl. (32) . In that case at trial stage an order for remand to jail was passed on 20.1.79 after that date the case was adjourned by the Sessions Judge on 31.1.79, 6.3.79, 3.4.79 and 14.4.79 but no direction to remand the accused to custody was given. In the absence of any such direction, his Lordship considered the detention of the accused in jail as illegal. The case in hand stands on still stronger footing. There is no order for remand or keeping the accused present after 26.10.81. In this view of the matter, the detention of the petitioners from 26.10.81 onwards is illegal. 9. Consequently, the application is allowed and it is ordered that petitioners Devilal, Brijlal, Hetram and Chunnilal shall be released on bail on their furnishing personal boods in the sum of Rs. 10,000/- (Rs. Ten thousand) each, with two sureties of Rs. 5,000/- (Rs. Five thousand) each to the satisfaction of Munsif & Judicial Magistrate, Suratgarh to remain present during the course of enquiry and trial whenever and wherever called upon to do so.Appeal allowed. *******