Judgment Nagendra Rai, J. 1. Heard. 2. The petitioner, who is an informant in Hilsa P. S. Case No. 211/93 under Sections 302, 307/34 and 27 of the Arms Act, has filed the present writ application for a direction to Sub- divisional Police Officer (respondent No. 6) to produce opposite party respondent No. 7 Binda Prasad the then Anchal Adhikari, Hilsa, before the Additional Chief Judicial Magistrate in the aforesaid case. During the pendency of the case respondent No. 7 was granted bail on 8-9-1993 by 4th Additional District and Sessions Judge, Nalanda at Biharsharif in bail petition No. 41/93/1279/93 The petitioner has challenged the aforesaid order annexing a copy of the same as Annexure-4 to the supplementary petition. 3. According to the case lodged by the petitioner, on 13-8-1993 at about 2.00 p. m., the deceased Govind Prasad, who was Secretary of the C. P. I. (M) of the District Unit. Nalanda alongwith large number of persons was demonstrating and holding meeting for fulfilment of certain demands in front of the Hilsa Block Officer. During the course of the aforesaid demonstration the deceased Govind Prasad and his other four friends sought for permission from Anchal Adhikari for presenting their grievance before him but he refused to give them permission. In the meantime, soma of the demontrators indulged in raising the slogans. The deceased Govind Prasad again requested the Anchal Adhikari to give him time to place their grievances. In the meantime the Anchal Adhikari (respondent No. 7) Binda Prasad came out from his office and ordered the anchal guard that as the deceased was responsible for all the problems to him he should be killed. Thereafter, one police personnel fired causing injury to Govind Prasad as a result of which he died. Thereafter, again the Anchal Adhikari ordered to fire and police personnel accordingly fired resulting injury to several persons. It was stated that the deceased used to highlight the corrupt actions of the Anchal Adhihari as a result of which he was annoyed and with a view to take revenge the Anchal Adhikari ordered to fire as a result of which the police personned fired resulting in death of the deceased and injuries to others. It was stated that the deceased used to highlight the corrupt actions of the Anchal Adhihari as a result of which he was annoyed and with a view to take revenge the Anchal Adhikari ordered to fire as a result of which the police personned fired resulting in death of the deceased and injuries to others. On the basis of the information given by the informant on 13-8-1993 at 6.30 p.m. Hilsa P. S. Case No. 211/93 was registered for the offence under Sections 302, 307/34 of the Indian Penal Code and Section 27 of the Arms Act against the Anchal Adhikari and the members of the police party a copy, of which has been annexed as Annexure-1 to the writ application. 4. It appears from the record that with regard to the occurrence of the said date Binda Prasad, Anchal Adhikari (respondent No. 7) filed a written report before the Officer Incharge of Hilsa Police Station on the same date at 4.30 p. m. alleging inter alia that about 300 workers of the G. P. I. (M) arm with deadly weapons and raising slogans same near the Anchal Office at 2.00 p. m. and thereafter they indulged in raising slogans and giving speeches and at about 2.40 p. m. the deceased Govind Prasad ordered the mob to kill him (Anchal Adhikari). The agitated mob entered into the anchal office and started damaging the articles and prevented the public servants from discharging their duties. Due to terror the anchal employees started running away from the office to save their life. He (Anchal Adhikari) cams out of his office. He as well as Block Development Officer tried to pacify the mob by saying that their grievances will be sent to the higher officials for consideration. However, the deceased and his companions started brandishing lathi etc. Seeing the aforesaid situation he directed the police party to charge lathi with a view to scatter the miscreants. Thereafter, the miscreants started firing towards him Govind Prasad and others assaulted him with lathi in on the head as a result of which there was profused bleeding. Seeing his life endangered he ordered the police force posted there as anchal guard to fire as a result of which there was stampede and he noticed one person, namely, Govind Prasad after having received injury lying on the ground. Seeing his life endangered he ordered the police force posted there as anchal guard to fire as a result of which there was stampede and he noticed one person, namely, Govind Prasad after having received injury lying on the ground. On the basis of the written report of Binda Prasad (respondent No. 7) a Hilsa P. S. Case No. 210/94 under Sections 147, 148, 149, 448, 427, 353, 223, 332 and 307 of the Indian Penal Code and 27 of the Arms Act was registered, a copy of which has been annexed as Annexure-2 to the writ application. 5. It appears from the record that Binda Prasad was arrested by the police on 13-8-1993 itself. The police officer found four injuries on his vital parts such as skull, nose etc. and in order to safe his life took him to the doctor of Sub-divisional Hospital, Hilsa, who after noticing the serious injuries referred him to Patna Medical College Hospital for specialised treatment. He was examined on 14-8-1993 at Patna Medical College Hospital at 2.00 p. m. Four injuries were found on his person. Out of four injuries two injuries were grievous caused by hard blunt substance, A coyy of the injury report has been annexed with the counter affidavit filed on behalf of respondent No. 5. The Investigating Officer of Hilsa P. S. Case No. 211/91 sent an information to the Additional Chief Judicial Magistrate on 14-8-1993 mentioning therein that on 13-8-1993 the accused Biada Prasad was arrested but as he had received serious injuries he was sent to Hilsa Sub-divisional Hospital and thereafter seeing his serious condition the doctor of the Hospital referred him to Patna Medical College Hospital and the accused has been kept in Patna Medical College Hospital in police custody for the treatment and after his discharge from the bospital he will be produced before the Court. The Additional Chief Judicial Magistrate ordered the aforesaid information to be kept on the record. 6. On 18-8 1993 a petition was filed on behalf of the informant before the Additional Chief Judicial Magistrate to constitute a medical Board to examine the injuries of the accused Binda Prasad and to submit a report so that he may be ordered to be remanded in Hilsa jail. 6. On 18-8 1993 a petition was filed on behalf of the informant before the Additional Chief Judicial Magistrate to constitute a medical Board to examine the injuries of the accused Binda Prasad and to submit a report so that he may be ordered to be remanded in Hilsa jail. The Additional Chief Judcial Magistrate perused the aforesaid petition and after having noticed the fact that the petitioner was arrested and was in police custody held that as the petitioner is being treated at P.M.C.H. in police custody there is no chance of his absconding and as soon as he will recover from his injuries he will be produced before the Court and will be remanded to the jail custody.On 28-8-1993 again an information was sent by the police before the Magistrate informing the Court that the accused will be produced before the Magistrate after his discharge from the hospital where he is undergoing his treatment. 7. On 3-9-1993 a bail petition was filed on behalf of accused Binda Prasad (respondent No. 7) and the learned Additional Chief Judicial Magistrate rejected the bail petition on the ground that the accused is neither in judical custody nor before the Court and as such in his opinion, the bail petition was not maintainable. 8. A petition was also filed on behalf of the informant on 3-9-1993 praying therein to direct the police to produce Binda Prasad (respondent No. 7) to make his detention legal as he has not bean produced before the Magistrate as required by Sections 57 and 167, Cr. P. C. Tha learned Magistrate disposed of the aforesaid application on 4-9-1993 and held that the detention of the petitioner will be deemed to be in police custody but as no permission was sought for from him or any other Magistrate for taking the accused Binda Prasad to P. M. C. H. for treatment directed the Investigating Officer to follow the mandate of law as provided, under Sections 57 and 167, Cr. P. C. so that the accused may be remanded and taken in judicial custody. However, it appears that Binda Prasad (respondent No. 7) filed a bail petition bearing No. 1279/41 of 1993 before the Sessions Judge which was heard on 8-9-1993 and respondent No. 7 was granted bail by the 4th Additional Sessions Judge. P. C. so that the accused may be remanded and taken in judicial custody. However, it appears that Binda Prasad (respondent No. 7) filed a bail petition bearing No. 1279/41 of 1993 before the Sessions Judge which was heard on 8-9-1993 and respondent No. 7 was granted bail by the 4th Additional Sessions Judge. According to the Sessions Judge, the accused should be treated in judicial custody for the period he was in hospital and as such he was entitled to appear through an Advocate. 9. As the respondent No. 7 has been granted bail during the pendency of the writ application the petitioner has now limited his prayer and has challenged the order granting bail to the respondent No. 7. 10. According to learned counsel for the petitioner the Additional Sessions Judge was not justified in granting bail to the respondent No. 7 as he was not in custody as required by Section 439(1) (a), Cr. P. C. 11. Learned counsel for the accused respondent N. 7 on the other hand contended that admittedly in this case the petitioner was arrested by the police on 13-8-1993 and from the order of the Additional Chief Judicial Magistrate, it is clear that the petitioner was under treatment in police custody and as such the Sessions Judge has jurisdiction to entertain and dispose of the bail application. According to the provisions of Section 57 read with Section 167, Cr. P. C. the police cannot keep a person in custody for a period longer than 24 hours and as such the detention of the petitioner in police custody without producing him before the Magistrate as required under Section 167, Cr. P. C. itself was illegal and in that view of the matter even assuming that there was no remand, in the eye of law justifying the grant of bail by the Sessions Judge, this Court should not interfere with the order as on that day the petitioner was entitled to be released from the jail custody on the ground that bis detention itself was illegal and impermissible in law. 12. To appreciate the point canvassed at the bar it will be useful to quote the provision of Section 439, which runs as follows : 439. Special powers of High Court or Court of Sessions regarding bail. 12. To appreciate the point canvassed at the bar it will be useful to quote the provision of Section 439, which runs as follows : 439. Special powers of High Court or Court of Sessions regarding bail. (1) A High Court or Court of Sessions may direct s (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 sub-section (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 any person on bail be set aside or modified: Provided that the High Court or the Court of Sessions shall, before granting bail to a person, who is accused of an offence which is triable exclusively by the Court of Sessions or wbich, 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 Sessions may direct that any person who has been released on bail under this chapter be arrested and commit him to custody. 13. From reading of provision of Section 439 (1) (a), it is clear that the Sessions Judge gets power to grant bail only when any person accused of an offence is in custody. The custody may be both, it may be either police custody as permissible in law or it may be custody in the sense that the accused is under the control of the Court having been remanded by judicial order. So far the police custody is concerned, the police has no power to keep a person in police curtody beyond 24 hours exclusive of the time necessary for the journey from the place of the arrest to the Magistrates Court. If investigation is not completed by the police within 24 hours the accused has to be produced before the Magistrate as provided under Section 167 of the Code. At this stage Magistrate may either release the accused if no ground exists for remand or he may remand him to police custody or judicial custody which in no case initially shall exceed fifteen days in whole. At this stage Magistrate may either release the accused if no ground exists for remand or he may remand him to police custody or judicial custody which in no case initially shall exceed fifteen days in whole. The Magistrate is authorised to detain an accused in police custody only within the initial fifteen days of remand. However, after expiry of the 15 days the Magistrete has no power to send the accused to police custody but he may authorise detention into other custody for a maximum period depending upon the nature of the offence as provided under Section 167 (2), Cr. P. C. 14. In this case the question is as to whether the petitioner was in custody or not at the time of giant of bail by the Sessions Judge. What is the meaning of custody under Section 429, Cr. P. C, came for consideration before the Apex Court in the case of Niranjan Singh and another V/s. Prabhakar Eajaram Kharote and others, AIR 1980 SC 785 . It was held in that case that no person accused of an offence can move the Court for bail under Section 439, Cr. P. C. unless he is in custody. When a person will be treated to be in custody within the meaning or Section 439, Cr. P. C, has been dealt with by the Apex Court in paragraphs 7 and 8 of the judgment, which are as follows : "When is a person in custody, Within the meaning of Section 439, Cr. P. C. When he is in duress either because he is held by the investigating agency or other police or allied authority or is under the control of the Court having been remanded by judicial order or having offered himself to the Courts jurisdiction and submitted to its orders by physical presence. No lexical destrity nor precedential profusion is needed to come to the realistic conclusion that he who is under the control of the Court or is in the physical hold of an officer with coercive power is in custody for the purpose of Section 439. This word is of elastic semantics but its core meaning is that the law has taken control of the person. This word is of elastic semantics but its core meaning is that the law has taken control of the person. The equivocatory quibbhngs and hide and seek niceties sometimes heard in Court that the police have taken a man into informal custody but not arrested him, have detained him for interrogation but not taken him into formal custody and other like terminological dubiotics are unfair evasions of the straightforwardness of the law. We need not dilate on this shady facet here because we are satisfied that the accused did physically submit before the Sessions Judge and the jurisdiction to grant bail thus arose. Custody in the context cf Section 439, (we are not, be it noted dealing with anticipatory bail under Section 438) is physical control or at least physical presence of the accused in Court coupled with submission to the jurisdiction and order of the Court." 15. Thus, it has been held in the said case that even a person under the control of the Court either having been remanded by the judical order or having offered himself to the Courts jurisdiction and submitted to its orders by physical presence before the Court or he is held by the investigating agency or police or other allied authority will be treated to be in custody it was speci- fically held that the physical control or at least physical presence of the accused in Court coupled with the submission to the jurisdiction of orders of the Court will amount to custody. 16. In the present case, as stated above, though the petitioner was not produced either before the Judical Magistrate or the Sessions Judge but from the facts it is clear that he was arrested by the police officer and was in police custody and the same is evident from the order of the Additional Chief Judicial Magistrate. 17. From perusal of the orders passed by the Additional Chief Judical Magistrate, it is clear that the police and informed the learned Magistrate about the arrest of the petitioner and the learned Additional Chief Judicial Magistrate also noticed in his order dated 18-8-1993 that the petitioner was being treated in P.M.C.H. in police custody. These facts clearly show that the petitioner was under duress because of the arrest made by the investigating agency. These facts clearly show that the petitioner was under duress because of the arrest made by the investigating agency. Once the Additional Chief Judicial Magistrate was informed by the police that the respondent No. 7 was arrested and he was in police custody the Additional Chief Judicial Magistrate should have passed an appropriate order under the provision of Section 167, Cr, P. C. However, the illegality or irregularities committed by him in not passing the order will not obliterate the fact that the respondent No. 7 was in police custody and he was not free to move out on his own free will. Though after 24 hours in police custody the custody becomes illegal but the fact remains that he was in police custody and as such the bail petition filed at the instance of respondent No. 7 before the Sessions Judge was maintainable, 18. The matter can be considered from another angle. The law does not contemplate an impossibility. In view of the serious nature of the injuries, it was not possible to produce him before the Magistrate. The police has already informed the Magistrate about the condition and the Magistrate having noticed the fact did not pass any order for which the respondent accused cannot be blamed. The right of the accused to move for bail cannot be denied on the ground of non-performance of duty either by the police or by the Magistrate. 19. On merits it appears that there is a case and counter-case. The accused respondeat No. I has received injuries on vital parts of his body. According to the allegation he is alleged to be an order giver. He was posted as Aachal Adhikari. The Sessions Judge after having taken note of the aforesaid fact, in our view has rightly granted the bail to respondent No. 7 and there is no case for interference against the said order, even assuming that respondent No. 7 was not in custody as contemplated under Section 439 of the Code, thus, conferring a jurisdictioa to the Sessions Judge to grant bail to the respondent No. 7. 20. I am further of tha view that this is not a fit case where we should interfere with the order for another reason stated hereinafter. 20. I am further of tha view that this is not a fit case where we should interfere with the order for another reason stated hereinafter. According to the constitutional mandate as enshrined under Article 22 (2) of the Constitution of India as well as the statutory provisions contained under Sections 57 and 167, Cr. P. C., the accused persons cannot be detained in the police custody beyond 24 hours unless his deteation is authorised by a Magistrate in this case in spite of the information given to the Magistrate after the arrest by the police no order for detention or remand of the petitioner was passe and as such the detention of the petitioner in police custody after expiry of 24 hours from the time of his arrest i. e. 13-1-1993 was illegal. If the petitioner would have come to this Court directly challenging the detention as illegal then this Court would have at that time released the respondent No. 7 on the said ground also. The aforesaid provisions have been incorporated to safe- guard the interest of the accused so that he may not be kept in police custody for longer period and the infraction of the aforesaid provision will entitle the accused to be set at liberty. In that view of the matter, it would not be a sound exercise of judicial discretion to set aside the aforesaid order granting bail to respondent No. 7 on the grounds of breach of the provisions of Section 439 of the Code. 21. In the result, I do not find any merit in this application and, accordingly, the same is dismissed. I.P.SINGH, J. 22 I agree.